CC No.1552.2015

Filed on 26.08.2015

Disposed on.20.12.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 20^th DAY OF DECMBER 2017

CONSUMER COMPLAINT NO.1552/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 26.08.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to settle the claim amount of Rs.93,945/- along with interest at 18% p.a. from the date of the claim till realization, to pay a sum of Rs.50,000/- for mental agony, pain and suffered by the Complainant and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he has availed a Private Car Package policy bearing No.010046603800 for the period 18.02.2010 to mid-night on 17.02.2011.  By paying premium of Rs.11,246/-.  During the existence of the policy unfortunately Complainant met with an accident on 09.02.2012 and made a claim to Opposite Party on 22.02.2012 for Rs.93,945/-.  The Opposite Party No.1 & 2 had informed the Complainant that the same will be considered and a cheque will be sent to his postal address.  Which never was received by the Complainant in spite of repeated follow up with Opposite Parties.  In the mean while the said policy had come up for renewal from the period of 18.02.2011 to mid-night 17.02.2012 and the Complainant had opted for renewal of the policy with Opposite Parties by paying a premium of Rs.10,013/-.  Based on the details provided by the agent of Opposite Parties the insurance premium was remitted to the Opposite Parties by cheque.  The renewal insurance premium policy and the receipt towards payment of the premium.  The Complainant received a letter dt.13^th April 2011 stating that the Complainant had to pay an additional premium of Rs.2,247/- as he had made a claim during the previous insurance period due to which the No Claim Bonus stand withdraw.  Accordingly, the Complainant had made the payment to Opposite Parties vide cheque bearing No.567485 dt.30.04.2011.  The Complainant paid the additional premium demanded by the Opposite Parties and regularized the policy.  The Opposite Parties have not revealed the dismissal of the said insurance claim till the end of the insurance coverage period and Complainant has in good faith renewed the policy for the further period of one year for the period of 18.02.2011 to 17.02.2012.   The Opposite Parties Company having collected the premium and further having renewed the policy with the Opposite Parties for the second term and this being accepted by Opposite Parties and in addition to having accepted the additional premium stating claim in the previous insurance period it is the responsibility of the Opposite Parties to honour the claim made by the Complainant under the period terms of insurance. Since the Complainant has being in continuously communicating with Opposite Parties, but till date Opposite Parties agents nor Opposite Parties have communicated what is the status of his claim.  The Opposite Parties have not fulfilled the promise made to the Complainant at the time of entering the policy, therefore, the act of the Opposite Parties not delivering the benefits amounts to deficiency of service and Unfair Trade Practice.  The Opposite Parties inspite of receiving the premium on regular intervals and on timely basis failed to adhere to the terms of claim amounts.   Hence this complaint.     

3. Even though notice was served on Opposite Party No.2, the Opposite Party No.2 failed to file their version, hence placed ex-parte.
4. In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is not maintainable either in law or on the facts.  The Complaint is barred by Limitation.  The Complainant has filed his complaint on 25^th August 2015 belatedly by more than 4 years from the date of repudiation of the claim by this Opposite Party.   The Issuance of the Auto Secure Private Car Package Policy bearing No.0100466038 valid from 18.02.2010 to 17.02.2011 in favour of the Complainant covering the Maruthi Swift Car bearing Reg.No.KA-02-MD-4015 for the Insured declared value of Rs.3,99,000/- and renewed a premium of Rs.11,246/-.  The liability of this Opposite Party is subject to terms and conditions of the above said policy.  On the declaration of the Complainant accepting the risks on 18.02.2010 has allowed a No Claim Bonus as at 20% on the own damage portion of the premium a discount of Rs.1,809/- resulting in the Short Payment of Premium by the Complainant.  On 22.02.2011, the Complainant has informed to the Call Centre of the Opposite Parties that the said vehicle was met with an accident on 09.02.2011 at 8.30 for which a complaint/FIR bearing No.33/11 before the Kudur Police Station for the offences under Section 279, 304 A of IPC.  In fact the Complainant has failed to intimate the said claim immediately after the occurrence/accident to this Opposite Party as the terms and condition of the policy.  Immediately after the receipt of the intimation the Opposite Party as deputed Mr.M.N.Manjunath, Surveyor under Insurance Regulatory Development Authority of India to assess the loss.  Without admitting the liability the Surveyor had assessed the loss for Rs.54,871/- subject to terms and conditions of the Policy.  As soon as the claim was lodged on 22.02.2011 against the 1^st policy issued to the Complainant, this Opposite Party has taken up the confirmation of NCB earned by the Complainant from the previous Insurer who has issued policy for 2009-10 i.e., M/s Royal Sundaram Insurance Company Limited.  It is also submitted that the said Insurer has confirmed that the Complainant has lodged 2 numbers of Own Damage claims under their policy as such he has not earned any No Claim Bonus.  In view of the Confirmation of said Insurance Company it is clear that the Complainant had willfully suppressed the history of the claims and claimed to have earned the benefit of No Claim Bonus, the same is misrepresentation of facts.  The Complainant has without intimating the above said accident to this Opposite Party has renewed the above said policy for further period of one year i.e., 18.02.2011 to 17.02.2012 and paid a total premium of Rs.10,014/-which includes Service Tax on the basis of the previous policy a No Claim Bonus @25% was allowed at Rs.2,037/-.  As such the Opposite Party has allowed the next slab of No Claim Bonus at 25% on the Own Damage Premium since no claim was lodged until the date of renewal as such the Complainant has enjoyed un eligible No Claim Bonus resulting in the short payment of premium.   The claim raised by the Complainant towards the loss dt.09.02.2011, he did not entitle to claim any NCB for the above subsequent policy, hence the Opposite Party has asked the Complainant to pay the difference in premium of Rs.2,247/-.  Accordingly, the Complainant has opted paid the said amount on 02.05.2011 for the current year’s policy.  The contention of the Complainant that he paid Rs.2,247/- towards the shortfall towards the first policy is wrong.  As far as the payment of difference in premium continuation of 2^nd policy i.e., 2011-12 from the date of payment of difference in premium on 02.05.2011 is concerned as true but no assurance was given by this Opposite Party to the Complainant to admit the liability charges of the Insured vehicle, sending of cheque to him was nothing but a false allegation since this Opposite Party cannot admit the liability which falls under the previous policy issued to Complainant since it was belatedly intimated with sole aim to keep this Opposite Party under dark until the next policy was issued.  Based on the estimate of repairers M/s Mandovi Motors, the repair assessment cum processing sheet/work order it was assessed a net cost of Rs.55,370/- and the Insured’s share @ Rs.37,694/- which are subject to the further terms and conditions of the policy and any violation/breach of the same as stated above, this Opposite Party is not liable to indemnify the Insured.  The Opposite Party has sent the claim repudiation letter dt.03.03.2011 vide under Claim No.620312793 to the Complainant and copy also addressed to the financier M/s Kotak Mahindra Premiums Limited, admitting their inability to indemnify the insured for the reasons stated therein.  As per the Condition No.8 of the Auto Secure Package policy.  The claim of the Complainant was repudiated.  There is no cause of action for the complaint and there is no deficiency of service on the part of the Opposite Party, since the claim of the Complainant was repudiated stating the reasons within the reasonable period since there exist delay in intimating the claim and misrepresentation as far as the No Claim Bonus earned is concerned, nonpayment of full premium resulting in violation of terms and conditions of the policy as such the present complaint deserves to be dismissed.    Hence prays to dismiss the complaint.

5. The Complainant, Sri.Dhananjeya Gowda filed his affidavit by way of evidence and closed his side.  The Opposite Party, Sri.Alok Gupta filed his affidavit by way of evidence.  Heard the arguments.

6.      The points that arise for consideration are:-

1. Whether the complaint is barred by time ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled ?

7.     Our findings on the above points are:-

                POINT (1):-  No

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

8. POINT NO.1:- The learned Counsel for the Opposite Party argued that the complaint is barred by Limitation and the same is not maintainable and liable to be dismissed.   The Complainant has filed his complaint on 25^th August 2015 belatedly by more than 4 years from the date of repudiation of the claim by this Opposite Party vide their letter dt.03.03.2011 under Claim No.620312793 addressed to the Complainant and the limitations commences from the said date or repudiation.  Hence, this complaint is barred by time and liable to be dismissed.  In support of his argument he relied upon a decision reported in Kandimalla Raghavaiah & Co V/s National Insurance Company Limited and another and M/s Yeturu Biotech Limited V/s National Insurance Company Limited & another II(2014)CPJ679.  On the other hand, the learned Counsel for the Complainant argued that the complaint is within time not barred by time.  The Complainant has being in continuously communicating with the Opposite Parties about the honour of the claim, but till date Opposite Parties agents nor Opposite Parties have not communicated what is the status of his claim.  Ultimately the Complainant issued Legal Notice dt.21.02.2015 demanding the Opposite Party to settle the claim of the Complainant within 15 days from the date of receipt of this Legal Notice, Opposite Party is in the receipt of the Legal Notice, the Opposite Parties 1 to 3 fails to receive the notice.  Even though the Opposite Parties is the receipt of notice but fail to give reply nor comply the demand made in legal notice.   The Complainant filed this complaint within 2 Years from the date of issuing Legal Notice i.e., 21.02.2015.  Therefore, this complaint is within time and not barred by time. 
9. With this argument and on perusal of record, the Complainant filed this complaint on 26.08.2015, but as looking into the letter dt.03.03.2011 addressed by the Opposite Party to the Complainant, the Opposite Party have not repudiation claim of the Complainant.  On the other hand, draw of the attention of the Complainant further consideration within 15 days of receipt of this letter under mentioning in the said letter that the Complainant has suppressed the material facts at the time of obtaining the policy.  Thereby, the Complainant is eagerly waiting with a fond hope that the Opposite Party honour the claim till 22.02.2011 but the Opposite Party have fails to honour the claim.  For that reason, the Complainant has issued Legal Notice to settle the claim within 15 days from the date of receipt of the legal notice, thereby the cause of action will arose to present this complaint on 21.02.2015 within 2 years from 21.02.2015 Complaint is filed hence the complaint is not barred by time.  The law laid down in Kandimalla Raghavaiah & Co V/s National Insurance Company Limited and another and M/s Yeturu Biotech Limited V/s National Insurance Company Limited & another II(2014)CPJ679 is not applicable and helpful to the case of the Opposite Parties.  On the other hand, the complaint is in time.  Hence, this point is held ‘No’.

10. POINT NO.2:- As looking into the allegations made in the complaint and also the version filed by the Opposite Party, it is not in dispute that the Complainant had availed a Private Car Package policy bearing No.010046603800 for the period 18.02.2010 to 17.02.2011.  By paying premium amount of Rs.11,246/-.  It is also not in dispute that during the existence of the policy unfortunately Complainant met with an accident on 09.02.2012 and made a claim to Opposite Parties on 22.02.2011 for a sum of Rs.93,945/-.  Further in order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the policy.  By looking into this policy, it is very clear that the Complainant had availed a Private Car Package policy bearing No.010046603800 for the period 18.02.2010 to 17.02.2011 and also produced the bills.  As looking into these documents, the Complainant through Mandovi Authorized Dealer of Maruti Vehicles got it repaired his car Maruti Shift bearing No.KA02MD4015 on 17.02.2011 and for the above said repair is spent about Rs.93,945/-.  This evidence of the Complainant has not been challenged or denied by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Complainant had availed a Private Car Package policy bearing No.010046603800 for the period 18.02.2010 to 17.02.2011 during the existence of the policy, Complainant vehicle met with an accident on 09.02.2012 for that the Complainant got it repaired the vehicle with Authorized Dealer of Maruti Vehicle i.e., Mandovi Motors Private Limited on 17.02.2011 by paying a sum of Rs.93,945/-. 

11. It is further case of the Complainant, the Complainant made a claim with Opposite Parties on 22.02.2012 for a sum of Rs.93,945/-.  The Opposite Party No.1 & 2 had informed the Complainant that the same will be considered and a cheque will be sent to his postal address.  Which never was received by the Complainant in spite of repeated follow up with Opposite Parties.  In the mean while the said policy had come up for renewal from the period of 18.02.2011 to 17.02.2012 and the Complainant had opted for renewal of the policy with Opposite Parties by paying a premium of Rs.10,013/-.  The Complainant had received a letter dt.13^th April 2011 requesting the Complainant to pay an additional premium of Rs.2,247/- as he had made a claim during the previous insurance period due to which the No Claim Bonus stand withdraw.  The Complainant had made the payment to Opposite Parties through cheque bearing No.567485 dt.30.04.2011. In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the copy of the renewed policy.  By looking into this document, it is clear that the Complainant renewed policy covering from 18.02.2011 to 17.02.2012 by receiving premium amount of Rs.10,013/-.  Further it is clear as looking into the receipt dt.12.02.2011 issued by the Opposite Party in favour of the Complainant.  The Complainant also produced the receipt for additional payment of Rs.2,247/- through cheque bearing No.567485 dt.30.04.2011.  Even this evidence of the Complainant is remains unchallenged.  Therefore, it is proper to accept the contention of the Complainant.   From the evidence placed by the Complainant, it is crystal clear that the Complainant presented the Claim Form with Opposite Party as soon as his vehicle met with an accident during the policy is inforce, thereby, it is the bounded duty of the Opposite Party to indemnify the Complainant by honouring the claim instead of doing so the Opposite Party fails to honour the claim of the Complainant till this date, inspite of Complainant made demand and requests by issuing legal notice, thereby it amounts to deficiency of service on the part of the Opposite Party.

12. The Opposite Party in their version taken a defence that the Opposite Party has sent the claim repudiation letter dt.03.03.2011 vide under Claim No.620312793 to the Complainant and copy also addressed to the financier M/s Kotak Mahindra Premiums Limited, admitting their inability to indemnify the insured for the reasons.  As per the Condition No.8 of the Auto Secure Package policy.  As such the repudiation of the Own Damage Claim is very much in order by virtue of the terms and conditions of the policy. On the declaration of the Complainant while accepting the risks on 18.02.2010 has allowed a No Claim Bonus on the own damage portion of the premium a discount of Rs.1,809/- +Service Tax was allowed resulting in the Short Payment of Premium by the Complainant. To substantiate this defence, Sri.Alok Gupta, Zonal Claims Manager of Opposite Party, in his sworn testimony, he has reiterated the same and produced the copy of the private Car Policy bearing No.010046603800 for the period 18.02.2010 to 17.02.2011.  No doubt the Opposite Parties allowed 20% of No Claim Bonus on the Own Damage while issuing the policy and also produced the renewal cover note, it is dt.20.02.2011 submitted by the Complainant for covering the Insurance Policy from 18.02.2010 to 17.02.2011. If it is so, why the Opposite Party have received additional premium amount of Rs.2,247/- from the Complainant.  As the evidence placed by the Complainant, if there is any violation in terms and conditions of the policy.   As the defence taken by the Opposite Party, the Opposite Party ought to have repudiated the claim on that day itself but demanded the Complainant to pay additional premium amount of Rs.2,247/- as demanded by the Opposite Party.  The Complainant pay additional premium amount through cheque and renewed the policy.  Therefore, it is not proper to accept the defence taken by the Opposite Party. 

13. The learned Counsel for the Opposite Party argued that on the declaration of the Complainant accepting the risks on 18.02.2010 has allowed a No Claim Bonus as at 20% on the own damage portion of the premium a discount of Rs.1,809/- resulting in the Short Payment of Premium by the Complainant.  On 22.02.2011, the Complainant has informed to the Call Centre of the Opposite Party that the said vehicle was met with an accident on 09.02.2011.  As soon as the claim was lodged on 22.02.2011 against the 1^st policy issued to the Complainant, this Opposite Party has taken up the confirmation of NCB earned by the Complainant from the previous Insurer who has issued policy for 2009-10 i.e.,                     M/s Royal Sundaram Insurance Company Limited.  The Insurer has confirmed that the Complainant has lodged 2 numbers of Own Damage claims under their policy as such he has not earned any No Claim Bonus.  In view of the Confirmation of said Insurance Company, it is clear that the Complainant had willfully suppressed the history of the claims and claimed to have earned the benefit of No Claim Bonus, the same is misrepresentation of facts and Shortfall payment amount of premium which shall result in the void of the contract ab-initio.
14. In support of his argument, he relied upon a decision reported in Shri Inder Pal Rana V/s National Insurance Company Limited, 2015 NCJ 425(NC), Harjinder Singh Lal V/s Oriental Insurance Company Limited and another II(2016)CPJ629, Tata AIG General Insurance Company Limited V/s Darshan Girjaba Devre (I (2017) CPJ 392).  Nodoubt as looking into the law laid down in the above said decisions, it is crystal clear that the benefit of No Claim Bonus has been claimed on wrong facts-Policy of Insurance has become vitiated ab initio-No claim payable under this policy.  But the law laid down in the said decisions are not applicable to the facts of this case.  Since in the said decisions, the Insurance Company have not demanded to pay Shortfall of premium amount.  Whereas in their case the Opposite Party demand to pay the Shortfall of Rs.2,247/- for No Claim Bonus and as demanded by the Opposite Party, the Complainant had paid the said amount through cheque and after paying the said amount the Opposite Party had renewed the policy, thereby, the law laid down in the said decisions are not applicable to the facts of this case.  Hence, it is not proper to accept put forth by the learned Counsel for the Opposite Party. 

15. As stated earlier, as the material evidence placed by the Complainant, it is crystal clear that even though the Complainant presented the Claim Form, as a result of loss caused to his vehicle during policy is inforce. The Complainant made repeated requests and demand with Opposite Party to honour the claim instead of honoring the claim the Opposite Party without adopting proper to honour the claim, thereby it amounts to deficiency of service on the part of the Opposite Party.  Hence, we answer point No.2 in Affirmative. 

16. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service by the Opposite Party.

The Opposite Party is directed to reimburse the repair charges of the vehicle is Rs.93,945/-.

The Opposite Party is directed to pay compensation of Rs.25,000/- for causing mental agony.

The Opposite Party is directed to pay a sum of Rs.5,000/- towards cost.

The Opposite Party is directed to pay the aforesaid amount within 30 days from the date of receipt of this order.  Failing which the aforesaid amount will carry interest at 12% p.a. from the date of order till the date of payment.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 20^th day of December 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Dhananjeya Gowda V, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Policy
2. Copy of the payment receipt
3. Copy of the Bills
4. Copy of renewal Insurance Premium Policy
5. Copy of receipt towards payment of the premium
6. Receipt of paying the additional premium
7. Copy of the Legal Notice.

Witness examined on behalf of the Opposite Parties:

1. Sri.Alok Gupta, Zonal Claims Manager of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Private car Package Policy with terms and conditions
2. Renewal cover note
3. Renewal notice of Royal Sundaram
4. Tata AIG Auto new business List
5. Intimatiion cum Preliminary Claim Form
6. Renewal Notice of Royal Sundaram
7. Motor Final Survey Report
8. Smart Card of Driving Licence
9. FIR-Spot Sketch
10. NCB/Claim Confirmation From Royal Sundaram Insurance Company
11. PLOD Claim Note.
12. Claim repudiation letter dt.25.02.2011
13. Claim repudiation Letter dt.03.03.2011

       MEMBER                                                                      PRESIDENT