(Delivered on 11/07/2019)

PER SMT. U. S. THAKARE , HON’BLE PRESIDING MEMBER.

1.         First Appeal bearing No.  A/12/36 and First Appeal bearing No. A/12/358 are arising out of order dated 24/08/2011 passed by the Additional District Consumer Forum, Nagpur in consumer complaint No. 29/2011. Hence, both appeals are decided by common judgment.  First Appeal bearing No. A/12/36 is filed by the original opponents being aggrieved by the  order dated 24/08/2011. First Appeal bearing No. A/12/358 is filed by original complainant – Mrs. Swati  Lade for enhancement of compensation. 

2.         Facts giving rise to the present appeals in short  as under:-

a.         Complainant – Mrs. Swati Lade had filed consumer complaint  bearing No. 29/2011 before the  Additional District Consumer Redressal Forum, Nagpur  by alleging deficiency  in service. It is the grievance  of  complainant – Mrs. Swati that  claim of the complainant  under valid  insurance  policy is wrongly  repudiated  by the original opponents and as such  guilty  of  deficiency  in service. Complainant – Mrs. Swati Lade is a business woman. She is conducting her business with help of her husband for earning livelihood.  She had purchased car of Mahindra company bearing No. MH-40/9402 with aid of finance company i.e. opponent No. 3.  She had taken comprehensive insurance policy  for her car for period   of 02/01/2009 to 01/01/2010 from Oriental Insurance Company. Subsequently, she obtained insurance policy from opponent No. 1 for period of 17/02/2010 to 16/02/2011. The agent of  HDFC Ergo General  Insurance Co. Ltd.  visited the complainant  and  informed  about  the  company and  its progress in business. Believing the words of agent of  the opponent insurance company, the complainant had obtained insurance policy from the opponent No. 1.  Prior  to issuance  of policy  the employee of the insurance company had been to the house of complainant  for   inspecting  the vehicle. Photographs  of the vehicle  were taken. One  form was filled  up by  the  complainant  on direction  of employees. The complainant  had shown  old insurance  policy to the employees  of the insurance company  and as per demand Xerox copy  of   the policy  was given  to the  insurance company  through  employees.  After perusing  the  documents  valuation  of  the vehicle  was decided  as Rs. 5,07,000/-. Premium  was calculated  to the tune of Rs. 17,763/- per year.  The complainant paid amount of premium to the opponent insurance company by cheque. The opponent Nos. 1&2 had issued insurance policy in the name of the complainant for  period 17/02/2010 to 16/02/2011. Copy of insurance policy was duly served to the complainant.

b.         On 23/02/2010 the complainant found that her car was stolen. She  went  to  police station  for  filing  report. The police  advised  her  first  to take  search  of the vehicle. When insured vehicle  of the complainant was not find out, police  obtained  report  and registered  the  crime  on 22/04/2010. The complainant gave intimation to opponent Nos. 1&2.  Police could not find out the vehicle   of the complainant and filed A-Summary  Report before the  Court of J.M.F.C. at Kamptee. The complainant was helpless she lodged  the claim  due to loss of  the vehicle  with  opponent – insurance company. She was waiting for settlement of claim.  She had given the documents as per demand of insurance company. The opponent Nos. 1&2 repudiated the claim of the complainant without sufficient reason.  It is alleged that first policy submitted by the complainant was false and fake. Being dissatisfied with the repudiation of claim  the complainant  had filed  consumer complaint  against  the opponents. It was requested to declare the opponent Nos. 1 to 3 as guilty of deficiency in service  and unfair trade practice. She also requested   to direct the opponent Nos. 1 & 2 to pay  amount of Rs. 5,07,000/- to the complainant  with interest  at the rate of 12% p.a. In addition she also claimed Rs. 1,00,000/- towards compensation  for   mental  pain and agony and Rs. 15,000/- towards  cost of litigation.

3.         The opponent Nos. 1&2 resisted the claim by filing written statement and denied  that  they are  guilty  of deficiency  in service.  They specifically denied  that   the claim of  the complainant  is wrongly  repudiated  and said  repudiation  amounts to deficiency  in service. It is admitted that   policy was issued by the opponent Nos. 1&2 in favour of the complainant after accepting   premium. It is submitted that the consumer complaint filed by the complainant is false and bogus. The complainant has suppressed   the material facts and obtained insurance policy from the opponent Nos. 1&2. The complainant had given copy of old insurance policy but said copy was false and fabricated. She  had  cheated  the opponent  Nos. 1&2 and obtained the policy.  Her consumer complaint is liable to be rejected with cost.

4.         Consumer complaint  proceeded exparte against  the  finance company /opponent No. 3, as the opponent No. 3 failed to appear without  any  sufficient  reason  before the  Additional District Consumer Forum, Nagpur inspite  of receipt  of notice.

5.         The original complainant and original opponent  Nos. 1&2  have led evidence  by filing  affidavits. Both the parties have relied on several documents.  The complainant  has relied  on insurance  policy  issued by  Oriental  Insurance Company, insurance  policy  issued by the opponents, police  papers, repudiation  letter,  correspondence between  the parties , notice issued  to the opponents  and other  documents.  The opponents relied on cover note issued by Oriental Insurance Company, proposal form, survey report, repudiation letter. Both   the parties had filed brief notes of argument.

6.         After considering the evidence on record and  after giving thoughtful consideration  to the  argument   advanced   on behalf of   both parties,  the learned  Additional District Consumer Forum, Nagpur  was pleased  to allow consumer complaint  and direction  was given to the opponent Nos. 1&2 to pay  amount of Rs. 4,17,667/- to the complainant  with  interest at the rate of  9% p.a.  from  28/05/2010. The opponent Nos. 1&2 were also directed to pay amount of Rs. 10,000/- to the complainant towards compensation and amount of Rs. 2000/- towards cost of litigation.

7.         Being dissatisfied with  the impugned order dated 24/08/2011 the original opponent Nos. 1&2  have filed  appeal bearing No. 36/2012 and original complainant  has filed  appeal bearing No. 358/2012. Both the  appeals  are arising out  of  same order, hence,  they are  considered  together.

8.           To avoid  the confusion  parties  are referred  as  original complainant  and original  opponents. It is admitted facts that original complainant  - Mrs. Swati Lade is the owner of vehicle bearing No. MH-40/9402. She had purchased  said vehicle  by obtaining  finance  from  original  opponent No. 3- Kotak Mahindra Bank Ltd.  On purchase of the vehicle it was insured with Oriental Insurance Company. Subsequently, the original complainant insured the vehicle with original opponent Nos. 1&2.  Insurance policy bearing  No. VC00074218000100 was taken by the complainant for the period  17/02/2010 to 16/02/2011. Vehicle of complainant was stolen, report  was lodged  in Police Station, Kamptee. Police could not  trace out  the vehicle  and thief. Ultimately  A-Summary was filed. The complainant  was lodged the claim  with  the  opponent Nos. 1&2. Her claim under   insurance policy  was repudiated  by letter dated 28/05/2010. These  facts are  at  not dispute.

9.         Heard learned advocate  Mr. C.B. Pande  for  original  opponent Nos. 1&2. It is vehemently urged that order passed by the learned Additional District Consumer Forum, Nagpur  is illegal  and incorrect. The learned  Additional District Consumer Forum, Nagpur failed to appreciate  the documents filed  by the  original  opponent Nos. 1&2 on record  in there proper  perspective. It is not considered  that  complainant – Mrs. Swati Lade approach the insurance  company  with an intention  to  insure  the vehicle  since  her earlier  policy  issued by  Oriental  Insurance Company, Nagpur  had expired. She  informed  that  she  did not  lodge  any claim with  earlier  insurer  and she is  entitled  for 20% No Claim Bonus (NCB) from  the premium. She made incorrect  submissions.  Considering the proposal form  and receipt  of premium  insurance  policy  was issued.  It was valid  during  17/02/2010  till 16/02/2011(midnight). The complainant  lodged  the claim  when vehicle was stolen. At that time it was  found  that  the  complainant has  breached  the  basic principle  of insurance   “Utmost  Good Faith” and made false  declaration  while  obtaining  the insurance policy. The learned counsel Mr.  C.B. Pande  has drawn our attention  to several  documents  and has requested to  set aside  the illegal order  by allowing  the appeal  No. A/12/36 to avoid injustice.

10.       Learned counsel Mr.  Sambaray supported the finding of learned  Additional District Consumer Forum, Nagpur and has requested  to dismiss the appeal filed  by the opponent Nos. 1&2 for want of  merit. At the same time he has requested to enhance the amount of relief granted to the complainant by allowing appeal bearing No. 358/2012.

11.       It is  evident  from the affidavit of evidence and  documents  on record  that  initially  after  purchase,  the  vehicle  of the complainant   was insured  with  Oriental  Insurance Company for the period  02/01/2009  to 01/01/2010. The complainant had filed cover note of insurance issued by Oriental Insurance Company Ltd.  In said cover note value of car is shown as Rs.  4,88,500/-. Premium  was calculated  for  amount of Rs. 4,64,075/-. Policy was issued by Oriental  Insurance Company  on payment of premium  of Rs. 19,939/-.

12.       Cover note issued by the opponent Nos. 1&2 is on record filed by the complainant. In said cover note value of vehicle is shown as Rs.5,07,000/-. The complainant claims no claim bonus (20%). She had given declaration also.  The opponent Nos. 1&2 calculated the premium to the extent of Rs. 17,763/-.

13.       The opponent Nos. 1&2 obtained cover note issued by Oriental Insurance Company Ltd., Nagpur. In said cover note period of insurance is shown as 18/02/2009 to 17/02/2010. It is  the grievance  of original  opponents  that  both  cover notes are  issued by  Oriental  Insurance Company but period  of  insurance  is different.  The complainant  has submitted  false  policy  to the opponents  while obtaining  new  policy  from  the opponents for  subsequent  period.  The value of the car is shown more particularly when less value was shown while taking first insurance policy.  It is clear that false document was submitted by the complainant.

14.       It is brought  to our knowledge  and it is proved  that  the agent of the opponents  had been  to the complainant. The agent  informed  the complainant  about  the  business activity of the opponents. It is specifically informed that the opponent No. 1&2- Insurance Company took quick  decision  while  settlement of claim. It is not necessary for the complainant to take vehicle to the  opponents.  Employees would come to house  and would inspect. The complainant  was  convinced  by the opponents  for taking  insurance policy.

15.       It is to be noted here that the copy of earlier insurance policy was given to the agent. The said policy was verified by the opponents and on verification subsequent policy was issued by the opponents.

16.       In fact the opponent Nos. 1&2 should have verified  the correctness  of the policy  issued by  Oriental  Insurance  Company  prior to  issuance of subsequent  insurance policy  by the opponents.  It appears that insurance policy was issued by the original opponent Nos. 1&2 on 23/02/2010. Old  insurance policy was called by original  opponents from  Oriental  Insurance Company.  The opponent Nos. 1&2 received the copy of old policy from Oriental Insurance Company on 25/02/2010. But prior to that insurance policy  was issued by the  opponent Nos. 1&2 on 23/02/2010. We find substance   in argument  advanced  on behalf  of the  original  complainant  that  by placing  reliance on the documents  submitted by  the  complainant  policy was issued.  The complainant was not benefited by submitting false documents.  Otherwise  as per rule of All  India Motor  Tariff  the complainant  could  have obtained  subsequent  policy  within  the period of 90 days  when  she did not file any claim  earlier.

17.       It is for the  opponents to verify which  period  was correct whether  the  earlier  policy was  inforce for the period 02/01/2009 till 01/01/2010 or  period  18/02/2009 to 17/02/2010.

18.       The  learned advocate  Mr. C.B. Pande has submitted that  for purpose of  investigation  surveyor  was appointed  and report  submitted by the surveyor  shows that  some  manipulation  was made while writing  period.

19.       We have perused the letter written by surveyor on 03/05/2010 to opponent No. 1. It is not detailed survey report. It cannot be ascertained which documents were perused and inspected by the surveyor. Copies of documents might  have not collected  by the surveyor. Therefore, copies of record  are not  filed  with survey  report. Apart from that  surveyor  did not  come  forward  to file his affidavit  and to  state on oath   that  the  document was  manipulated.      The report of  surveyor  cannot be accepted  to brand  that policy  document  submitted by the complainant  to opponent Nos. 1&2 was false  and fake.

20.       It is for the  valuer  of the  insurance company  to ascertain  the value  of  the vehicle  to decide the premium. Some time it happens  that  to reduce the amount of premium the value of  the vehicle  is shown  less.  It is true that  in subsequent  policy  issued  by the opponents  value of  vehicle  is shown  more but it for the  opponents  to  mention the correct  value of  the vehicle and to  calculate the amount  of premium. Premium  was calculated  on said value  and accepted  by opponents.  The objection raised by the opponent Nos. 1&2 is without any base.  In fact it was for the opponent Nos. 1&2 to ascertain the correct valuation   of the vehicle and to verify the correctness of earlier policy before issuing   the subsequent policy by the opponents.

21.       The opponent Nos. 1&2 have harped   upon the declaration given by the complainant. The opponents  failed to prove  that  the complainant  at any time  claimed  bonus   on basis  of earlier  policy. Her declaration cannot be said to be  wrong or incorrect and was given with intention  to obtain discount  in premium.  Only because there is difference in period of insurance policy, it is difficult to say that the complainant cheated the opponents. It is for the opponents   to show that earlier policy cover note submitted by the complainant was bogus. The best  witness  was available  for the  opponents.  Any employee  of Oriental  Insurance  Company could have been called  as witness with  record. Affidavit of the employee of Oriental  Insurance  Company  does not find place  on record. For want of  affidavit of  surveyor  the complainant  did not get an opportunity  to cross examine  the valuer.  We do not find  substance  in the  objection  raised  on  behalf of the opponents.  The findings  given by the  learned District Consumer Forum are correct and  based on the sound reasoning.

22.       The original complainant has requested   to enhance the claim of relief while passing award of Rs.4,17,667/-. The learned Additional District Consumer Forum has  considered  exact value  of the vehicle  as shown in earlier  policy. The  said value was  declared on 02/01/2009.  It is rightly appreciated that the value of vehicle was reduced. The learned Additional  District Consumer Forum has considered 10% depreciation. The amount  is calculated  by  keeping  practical  approach in mind. In addition  interest was also  granted on said amount  since 28/05/2010. The order passed by the  learned Additional  District Consumer Forum is just legal and correct,  it requires  no interference. The complainant is not entitled for enhancement as a result both appeals deserve to be dismissed.  With  this view  we pass following  order.

ORDER

i.          Appeal No. A/12/36 is dismissed.

ii.          Appeal No. A/12/358 is dismissed.

iii.         No order as to costs.