Per Shri Narendra Kawde, Hon’ble Member
The original opponents/appellants have filed this appeal challenging the order dated 27/06/2012 passed in consumer complaint No.129/2009 (Shri Darshan Girjaba Devre V/s. Tata AIG General Insurance Co. Ltd.) by District Forum, Thane. While holding deficiency of service against the appellants/opponents, the District Forum directed the appellants/opponents to pay an amount of Rs.3,35,280/- minus salvage with interest @ 9% p.a. with effect from 31/12/2008. Additional amount of Rs.10,000/- and Rs.1,450/- was awarded on account of compensation and cost of litigation respectively. Aggrieved thereby this appeal has been filed on the ground that the insured i.e. original complainant did not disclose that he had availed insurance policy from Bajaj Allianz General Insurance Co. Ltd. to extend the insurance cover to the ill-fated vehicle which was for the period between 12/09/2007 to 11/09/2008. Therefore, the policy issued by the appellants bearing No.01505533733 for a period 26/10/2008 to 25/10/2009 was obtained by making misrepresentation and non-disclosure of material fact by the complainant. Learned District Forum as stated in the appeal failed to appreciate provisions of Section 64 VB of the Insurance Act, 1938 and thereby committed a serious error in holding deficiency against the appellants/opponents.
2. We heard Learned Counsel Mr.A.S. Vidyarthi for the appellants and Learned Counsel Mr.Avinash More for the respondent.
3. Admitted facts are that the vehicle was insured with the Insured Declared Value of Rs.3,35,280/- for a period from 26/10/2008 to 25/10/2009. Insured vehicle met with an accident on 25/10/2008. Amount of premium of Rs.9,266/- was remitted on 25/10/2008 vide receipt No.00-00-00186362 by cheque to the opponents. However, it is on the request of the complainant, policy was to start with effect from 00:01 hours of 26/10/2008 though payment of premium was paid on 25/10/2008. The claim due to accident was repudiated by the appellants/opponents on the sole ground that the policy had not incepted at the time of accident on 25/10/2008. No other ground whatsoever is invoked for repudiation of the claim.
4. The insured vehicle met with an accident on 25/10/2008 at 10.30 a.m. whereas (as per policy document) policy was incepted on 26/10/2008 at 00:01 hours. The appellants/opponents relied on the proposal form duly submitted by the complainant. However, on going through copy of the proposal form available on record, we do not find signature of the complainant. Learned Counsel for the appellants/opponent stated that on telephonic instructions, the proposal form was prepared in the system and only after confirming with the complainant, policy was issued effective from 26/10/2008 at 00:01 hours. Proposal envisages that within a period of 15 days, it is incumbent upon the appellants/opponents to obtain details and signature of the proposer on all the documents wherever required for authentication of the proposal and other formalities. Such an exercise has not been carried out by the appellants.
5. In the written version, opponents/appellants have taken a ground that the complainant did not disclose the earlier policy issued to the insured in respect of same vehicle by Bajaj Allianz General Insurance Co. for a period 12/09/2007 to 11/09/2008. Since the proposal form reportedly filled up in the system and processed for issuance of policy, all the details as required to be obtained and place on record was the duty of the appellants/opponents as envisaged in proposal form. Therefore, on this count also the appeal is not sustainable.
6. Learned District Forum has rightly observed that the risk commenced under the insurance policy immediately after payment of premium as provided under Sub-Section 2 of Section 64 VB of the Insurance Act, 1938. In the case on hand, admittedly, amount of premium was paid on 25/10/2008 by cheque and the receipt was issued accordingly. Therefore, the risk commence after receipt of payment of premium either paid in cash or by cheque as per the provisions of the Insurance Act. On this count also, appeal has to fail since the risk commenced in this case has to be effective from 25/10/2008. Now, there is a question of deducting the salvage since it is a case of total loss. Learned District Forum has observed that the ill-fated vehicle was surveyed by Mr.R.B. Joshi who reported the case as “Total Loss” and he also reported that the vehicle is beyond the repairs. However, said Survey Report is not available in the appeal compilation. Quantification of salvage is not available on record. Therefore, we need not go into all these details.
7. The complainant relied on the order of the Hon’ble National Commission in the matter of New India Assurance Co. Ltd. V/s. Integrated Organic Pvt. Ltd. in First Appeal No.10 of 1995 decided on 20/09/2001. Ratio of this case though may not be exactly required to be considered since in that case the amount of premium received on behalf of the Insurance Company by their Agent which was deposited late though the insured paid the said amount well in time and the Insurance Cover Note was issued stating that the insurance cover commenced from 04/03/1992 though the accident took place on 05/03/1992. Here, case on hand is crystal clear that admittedly the amount of premium was paid on 25/10/2008 and accident took place on 25/10/2008.
8. In view of these observations, appeal must fail as there is no merit. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 16th October 2014.
