DATE OF DISPOSAL: 03.12.2024.
PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT(I/C)
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his grievance before this Commission.
2. The complainant is the owner of vehicle No. OD-07M-9818 which is used for personal livelihood since is unemployed. The said vehicle has valid registration certificate being registered with the competent registering authority at Chhatrapur, District: Ganjam. The vehicle has the Goods Carriage Permit under the Odisha Motor Vehicle Rules, 1993 issued by the competent authority. The vehicle was insured with the O.P. i.e. New India Assurance Company Ltd. Berhampur Branch with period of cover from 24.05.2017, 12.01 A.M. to 23.05.2018, 11.59 A.M. as per the policy scheduled and certificate of insurance bearing policy No. 6010262334. The complainant had deposited Rs.45,099/- with the O.P. towards the insurance coverage on 22.06.2017. The vehicle left Visakhapatnam to Kabisuryanagar with a load of LPG Gas cylinder at about 14.30 hours of 18.11.2017 through N.H. 16 road and by 20.00 hours which reaching near Sathapuram fly over bridge within the limits of Tekkali, Srikakulam district dashed to the stationery lorry as a result, the lorry was furled aside. The front portion of the vehicle totally damaged, front glass damaged, along with cabin causing total loss of Rs.5,84,100/-. After the aforesaid damages and accident of the vehicle within the period of coverage of the insurance, the complainant claimed the amount of Rs.5,84,100/- from the O.P. Instead of making payment of the amounts claimed, the O.P. in his letter dated 04.04.2018 asked clarification. The complainant submitted clarification to the letter dated 04.04.2018 on 10.11.2018 to reconsider the matter of claim of the policy. Inspite of receipt of the clarification submitted by the complainant, the O.P. kept silent without reconsidering for payment of the damage cost as per the terms and conditions of the policy. Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to pay of damage money of Rs.5,84,000/-, compensation of Rs.50,000/- and litigation costs of Rs.7500/- in the best interest of justice.
3. The Commission admitted the case and issued notice to the Opposite Party.
4. The Opposite Party filed written version through his advocate. It is stated that the averments made in the complaint are partly true and correct. It is true that complainant is the owner of the vehicle bearing Regd. No. OD-07-M-9818 and same was insured under the O.P. vide policy No. 55060131170300000545 valid from 24.5.2017 to 23.5.2018. While obtaining the policy, the complainant availed the benefit of 20% NCB with a condition mentioned in proposal form that, “if NCB is not considered at the time of claim, the insurer will be on no liability.”
While matter stood thus the O.P. get intimation from the complainant regarding the accident of insured vehicle on 19.11.2017. The O.P. deputed an independent surveyor selected under IRDA panel Mr. S.B.Choudhury for making sport survey of the accident vehicle. Thereafter final surveyor Mr. Kavish Chandra Malahotra who is also an independent surveyor selected under the IRDA panel for making final surveyor and assessment of the loss of the damaged vehicle. The said surveyor after due survey assessed the net loss of Rs.4,50,460/- of the damaged vehicle and submitted its report dated 24.02.2018 to the O.P. While processing the claim, the OP noticed that, the present complainant suppressing the fact regarding a claim was lodge with Reliance GIC in his previous policy. By suppressing the fact, the complainant obtained present policy by availing the No Claim Bonus (herein after called ‘NCB’) of 20%. If it was renewed with previous insurance company – Reliance GIC, the complainant would not eligible to get the ‘No Claim Bonus’ as there was a claim. The Complainant with anobvious reason and an intention to get NCB renewed the previous policy with the present OP instead of Reliance GIC by giving false declaration. To clarify the said issue, the OP had issue Letters Dated 04.04.2018 and 22.05.2018 to the present complainant respectively that, ‘why the claim shall not be treated as no claim for getting NCB by suppressing material facts relating to existence of previous claim.’On acknowledge of the above two letters, the complainant did not clarify the issue of NCB raised by the OP rather requested to reconsider the claim. When the complainant failed to clarify the issue, the OP repudiated the claim on accent of ‘NCB not confirmed.’
The complainant files the complaint on his individual capacity. From the R.C., GC Package Policy and insurance policy in respect of the above vehicle it revealed that Maa Dakhina Kali Indane is the owner of the above vehicle. The proper owner of the insured vehicle has to file the complaint. So the present complaint is not maintainable for non-filing of the complaint by the real owner of the insured vehicle. The complainant registered the above vehicle for commercial purpose and the said vehicle was engaged for commercial purpose for making profit which violates the basic provision of the C.P.Act. So the complaint is not maintainable under law. Hence the O.P. prayed to dismiss the case with exemplary cost in the interest of justice.
5. The complainant and Opposite Party adduced their evidences in shape of documents while filling of complaint and written version respectively.
6. The case is based on the Insurance Act read with M.V.Act.
7. On the date of hearing the Commission heard from both the parties on the point of issues at length. The Commission perused the complaint, written version, evidence on affidavits, written arguments and documents available in the case records.
On analysis of the evidences adduced by both the parties, it is apparent that, the complainant measurably failed to discredit the evidences produced by the OP regarding availing of 20% on NCB at the time of renewal of previous policy and the complainant is not the consumer of the opposite party. The OP proved its case as the complainant intentionally suppressed the material fact regarding avail of 20% NCB while renewed the previous policy, not pleaded the same in the complaint and failed to prove that he clarified to the satisfaction of the Letter of the OP Dated: 04.04.2018 and 22.05.2018 regarding 20% NCB and not suppressed any material fact in the case about no claim in previous policy of Reliance GIC.
It is manifest from the record that the complainant also failed to prove that he is the owner of the vehicle bearing Registration Certificate no.:OD-07M-9818. The complainant misrepresented in the case and not the original claimant. It is tantamount that, the complainant maliciously filed the case with a bad intention to obtain the benefits out of the said policy. Nowhere in the complaint and evidence it is mentioned that, the present complainant is the proprietor of the Maa Dakhinakali Indane and filed the case on representative capacity on its behalf.
The documentsupon which the complainant relied upon and filed along with the complaint, does not disclose that present the complainant is the owner of the vehicle and availing any personal livelihood whereas the complainant failed to prove that there was deficiency in services on the part of the Opposite party. There is nothing in the record to suggest that, the complainant is authorized to represent and file the case on behalf of the Maa Dakhinakali Indane.
In view of the above factual aspects, the present complainant is neither meet out the ingredients of complainant nor consumer of the OP in accordance to the C.P.Act, 1986 and the complaint is also not maintainable under the Act, 1986.
The law is well settled by the Apex Court of India in Oriental Insurance Company Limited v. Mahendra Construction –Civil Appeal No. 3359 of 2019 wherein their Lordship observed that, ‘Burden cannot be cast upon insurer to follow up on an inadequate disclosure by conducting a line of enquiry with previous insurer in regard to nature of claims, if any, that were made under earlier insurance policy. This suppression goes to very root of contract of insurance which would validate grounds on which claim was repudiated by insurer. Repudiation justified. Complaint dismissed.’
It is no doubt that, the complainant renewed the previous insurance policy by paying consideration amount and on the date of event, the insurance was in force and surveyors of the op submitted the assessment of loss but mere disclosure of a previous insurance policy and surveyor assessed the loss did not discharge the obligation which was cast on the proposer to make a full, true and complete disclosure of claim which were lodged under previous policy in preceding years. In the instant case, the complainant suppressed the said important material fact avail the 20% NCB from the present Opposite Party and also failed to disprove that he has not availed the same from the opposite party. It is material fact that, the insured should inform the insurer regarding claims lodged for his vehicle in the previous year and NCB is not applicable. Instead of undertake that, the complainant availed the NCB from the op with a condition as mentioned in the proposal form. Accordingly, the insurer opposite party has placed on the record the best possible evidence in support of the plea that there was a misrepresentation and a suppression of material facts. Hence repudiation of claim by the op.party is justified.
In consideration of the above discussion and ratio of judgment in Oriental Insurance Company Limited (Supra), the Commission dismissed the complaint of the Complainant on contest against the opposite party. In the facts and circumstances of the case, there shall be no order as to costs.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 03 December 2024.
