Chandigarh

DF-I

CC/538/2014

Arvinder Brar - Complainant(s)

Versus

TATA AIG General Insurance Company Ltd. - Opp.Party(s)

Gaurav Bhardwaj

16 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No	:	CC/538/2014
Date  of  Institution	:	12/08/2014
Date   of   Decision	:	16/06/2015

 

 

 

 

 

Arvinder Brar S/o S.Harcharan Singh Brar, resident of H.No.2831, Sector 21-C, Chandigarh.

….Complainant

Vs.

 

(1)   TATA AIG General Insurance Company Limited, SCO 232-234, 2^nd Floor, Sector 34-A, Chandigarh, through its Manager.

 

(2)  TATA AIG General Insurance Company Limited, Peninsula Corporate Park, Piramal Towere, 9^th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai – 400013, through its Managing Director.

…… Opposite Parties

 

 

BEFORE:   SH. P.L. AHUJA                PRESIDENT

          SH. SURESH KUMAR SARDANA     MEMBER

 

For Complainant	:	Sh. Gaurav Bhardwaj, Advocate
For OPs	:	Sh. Rajesh K. Sharma, Advocate

 

PER SURESH KUMAR SARDANA, MEMBER

 

 

 

          In brief, the Complainant got insured his vehicle bearing Regn. No.CH-01-AR-0307, from Opposite Party No.1, valid from 10.12.2013 to 09.12.2014, vide cover note dated 10.12.2013 (Annexure C-1) after paying a premium of Rs.41,742/-. Unfortunately, the said vehicle met with an accident on 6.5.2014 as a buffalo came in front of it. Opposite Party No.1 was immediately informed and the vehicle was taken to Pioneer Toyota for repairs. The vehicle of the Complainant was repaired and the Surveyor Er.Mohit Sharma duly inspected the vehicle. The Opposite Parties were asked to pay the amount spent on repairs, but the Opposite Parties refused to pay the amount, as such the amount of Rs.90,101/- was paid by the Complainant to the repairer vide invoice dated 15.5.2013 (Annexure C-6). However, to the utter shock of the Complainant, the Opposite Party cancelled the insurance policy and sent a Cheque dated 23.5.2014 for Rs.10,360.72P after deductions for the period the policy was in force (Annexure C-7). The Complainant has not got the said Cheque encashed and the same is still lying with him. Thereafter, the Complainant received a letter dated 3.6.2014 from Opposite Party No.1 denying the liability to pay the claim. The reason mentioned was that some wrong declaration with regard to the NCB was given by the Complainant (Annexure C-9). The Complainant visited the office of the Opposite Party and explained the whole position, but nothing positive could come out. When all the frantic efforts made by the Complainant, failed to fructify, as a measure of last resort, alleging that the aforesaid acts of the Opposite Parties tantamount to deficiency in service and unfair trade practice, the Complainant has filed the instant Complaint u/s 12 of the Consumer Protection Act, 1986, seeking various reliefs.

 

2.     Notice of the complaint was sent to Opposite Parties, seeking their version of the case.

 

3.     Opposite Parties in their joint reply, while admitting the factual matrix of the case, have pleaded that on receipt of intimation of loss to the vehicle, the answering Opposite Party deputed a Surveyor to assess the loss as per the terms & conditions of the policy. The said Surveyor assessed the loss to the Complainant as Rs.88,089/- vide Surveyor Report Annexure R-5. It has been asserted that the answering Opposite Party had requested the confirmation of “No Claim Bonus” earned during the previous year by the Complainant from its previous insurer i.e. ICICI Lombard General Insurance Company, who replied that a claim was paid to the Complainant (Annexure R-4). It has been asserted that as per the IRDA Rules, if any undertaking regarding “No Claim Bonus” is found to be incorrect, all the benefits under the policy in respect of Section 1 stand forfeited. The Complainant was asked to explain as to why his claim be not repudiated vide letter dated 14.5.2014, to which the Complainant did not reply (Annexure R-6). The claim of the Complainant was therefore repudiated vide letter dated 3.6.2014 by the answering Opposite Party. Denying all other allegations and stating that there is no deficiency in service or unfair trade practice on their part, Opposite Parties have prayed for dismissal of the complaint.

 

4.     The Complainant also filed rejoinder wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted.

 

5.     Parties were permitted to place their respective evidence on record, in support of their contentions.

 

6.     We have heard the learned Counsel for the parties and have perused the record along with the written arguments filed on behalf of both the sides. 

 

7.     The main issue for rejecting the claim of the Complainant by the Opposite Parties stands around the statement of NCB by the Complainant in the proposal form and accordingly taking NCB. Since the old policy was duly supplied to the Opposite Parties, Opposite Parties were required to confirm the NCB within 21 days of the issuance of cover note/policy as per IRDA Guidelines. Opposite Parties have failed to verify the fact of NCB from the earlier insurer and report to the Complainant before the issuance of the policy in question. As per the Complainant, the proposal form produced by the Opposite Parties does not contain his signature and hence his certificate regarding NCB does not stand, as this has not been disputed by the Opposite Parties.

 

8.     At any rate, it was the duty of the Opposite Parties, according to Clause (f) of GR 27 of India Motor Tariff, which is extracted hereunder, to confirm from the Policy issuing Office, in respect of the previous Policies, as to whether, any claim had been obtained by the complainant or not:-

 

“(f) In the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB which the insured would have received from the previous insurer. Evidence of the insured's NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.

 

Where the insured is unable to produce such evidence of NCB entitlement from the previous insurer, the claimed NCB may be permitted after obtaining from the insured a declaration as per the following wording:

 

“I/We declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period (copy of the policy enclosed). I/We further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section I of the Policy will stand forfeited.”

 

Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the Policy issuing office of the previous insurer, by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry, failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days, after granting the cover will also constitute a breach of the Tariff.”

 

 

9.     It is evident from the afore-extracted Clause (f) of G.R.27 of India Motor Tariff that the insurer was also duty bound to write to the previous insurer, within 21 days, after granting the cover for confirmation of the entitlement and rate of NCB.  Since the policy had been issued by the Opposite Parties, in respect of the vehicle,  in question, in favour of the complainant, it was its duty to obtain the information, as to whether, any claim had been obtained by the complainant, in respect of the Policy, of the previous year, within 21 days, but it failed to do so. Under these circumstances, the fault also lay, on the shoulders of the Opposite Parties, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff.

 

10.     The Surveyor and Loss Assessor vide report Annexure R-5, assessed the loss, to the tune of Rs.88,089/-. Report of the Surveyor and Loss Assessor, is based on the cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the Surveyor and Loss Assessor. It is, no doubt, true that the report of the Surveyor is neither binding, on the parties, nor the Consumer Fora, yet it being a very significant document, cannot be discarded lightly. 

 

11.     Here, we are fortified by the similar view taken by the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, in F.A. No. 131 of 2014 titled as “Niraj Kumar Sehgal Versus The Oriental Insurance Company Ltd. & Ors.”, decided on 23.04.2014.

 

12.     Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed. The Opposite Parties are directed, jointly and severally, to:-

 

[a]  Pay Rs.88,089/- to the Complainant, as assessed by the Surveyor as per survey report Annexure R-5, along with interest @9% p.a. from the date of filing of the claim, till realization (minus) the benefit of NCB given to the Complainant i.e. Rs.6,084.26P;   

 

[b]  Pay Rs.15,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

 

[c] Pay Rs.10,000/- towards costs of litigation;

 

 

13.     The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] of Para above from the date of filing of the claim, till it is paid. The compensation amount as per sub-para [b] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from costs of litigation of Rs.10,000/-. 

 

14.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

 

Announced

16^th June, 2015                          

Sd/-

(P.L. AHUJA)

PRESIDENT

 

Sd/-

(SURESH KUMAR SARDANA)

MEMBER