Hon’ble Mr. Subhas Ch. Guin, Member.
The repudiation of insurance claim has brought the Complainant before this Commission for redressal of grievance. The Complainant Mrs. Sayar Dugar who is a resident of 168, Biswa Singha Road, P.O. & Dist.- Cooch Behar purchased one insurance policy for her car having details follows:- Maruti Swift Dzire (ZDI PLUS) Registration No. WB 64 Q2801, Engine No. 3071748, Chasis No. 104414 and year of manufacture-2017 from New India Assurance General Insurance Company Limited for the period 06.06.2018 to 07.06.2019 but at the instance of the agent she switched to the Bajaj Allianz General Insurance Company Ltd for the next year for the period 07.06.2019 00.01 am to 06.06.2020 midnight on payment of Rs. 17,394/- vide policy No. 0G-20-2472-1801-00000301. Unfortunately, abovesaid vehicle of the Complainant got damaged due to an accident on 26.05.2020 during subsistence of the policy number mentioned above and forthwith the Complainant had brought the matter to the notice of the Insurance Company who assured her of claim to be settled as the vehicle had a proper insurance coverage. Therefore, she stacked a claim for such damage of her vehicle to the Insurance Company on 28.05.2020 vide No. 0C-21-2404-1801-00000059. She also placed the car at the authorized service centre of the insurance company viz. Prova Automobiles, Cooch Behar at their advice. Prova Automobiles generated an estimate of the car over such damage to the tune of Rs.3,96,912.22/- which was intimated to the Insurance Company. The Branch Manager, Bajaj Allianz General Insurance Company limited, Cooch Behar branch (OP-1) also disclosed to the Complainant that she should not be worried about settlement of her claim as they would pay the entire amount. But with utter surprise, she received a letter dated 07.06.2020 from the Deputy Manager, Bajaj Allianz general Insurance Company Limited, Sevoke Road, Siliguri (OP-2) seeking clarification as to why her claim should not be repudiated for having experienced one claim on previous policy which was with New India Assurance General Insurance Company Ltd. Therefore, the OPs withheld her genuine and bonafide claim against her valid car insurance policy with the OPs. On receipt of such letter from the OP-2, she contacted the OP-1 who again assured her by saying that those were mere formalities for which she should not be worried about the claim settlement. Being a simple lady having no knowledge and intricacies of insurance clauses she availed of a meagre claim benefit from the New India Assurance General Insurance Company Limited for the period 06.06.2018 to 07.06.2019 when her car got damaged and that too against her previous insurance policy. But during taking the policy from the OP-1, the Complainant had availed of 20% No Claim Bonus (in short NCB) against her policy premium without mentioning the receipt of claim from the previous insurance company inadvertently. This inadvertent omission on the part of the Complainant at the time of taking insurance policy with the OPs does not debar the Complainant in any way to claim accidental benefit against her bonafide policy with the OPs. Therefore, being the insurer OPs were bound to extend the insurance benefit to the Complainant. But the OPs did not take any step towards the claim of the Complainant which she raied on 28.05.2020. Ultimately, the Complainant had to pay total sum of Rs. 2,66,273/- to the Prova Automobiles, Cooch Behar, an authorized service centre of the OPs towards cost of repair of her car although she had a valid insurance policy with the OPs. The OPs withheld the claim till date willfully, wrongly and illegally. As the claim settlement was withheld by the OPs, the Complainant served one notice upon the OPs through registered post with A/D for settlement of her claim through her Advocate Mr. Kumardip Mukherjee to the tune of Rs. 2,75,000/- (approx) on 11.02.2021, but till date OPs did not settle the claim, although she had a valid insurance policy which she took on payment of Rs. 17,934/- as premium for the period 07.06.2019 to 06.06.2020 and accident of the car occurred within this period also. Therefore, the OPs are liable to pay the entire amount incurred by the Complainant for repairing the car but without being paid by OPs, the Complainant suffered a huge financial loss and was also suffering from mental pain and agony due to this deficiency in service of the OPs. As a last resort, the Complainant filed this case before the Commission for redressal of her grievances. The cause of action of the present complaint arose on 26.05.2020 when the Complainant’s care met with an accident and subsequently on 28.05.2020, 07.06.2020 and 11.02.2021 when the Complainant preferred claim of insurance and she got a letter from the OP-2 and served legal notice to the OPs respectively. The Complainant prayed to the Commission for a direction to the OPs to pay Rs. 2,66,273/- towards cost of repairing of her car, Rs. 75,000/- towards unfair trade practice, Rs.50,000/- towards mental pain and agony, Rs. 15,000/- towards cost of litigation.
The OPs contested the case by filing written version and evidence on affidavit. Neither they filed written argument nor did they advance oral argument. On the basis of submission of the Ld. Advocate of the OPs, the case was referred to national Lok Adalat held on 13.05.2023 for settlement but the Ld. Advocate for the OPs did not turn up before the Commission. So the case was again reverted back to the regular bench of the Commission.
When the case was at argument stage, the Ld. Advocate for the OPs did not turn up for advancing oral argument for last three dates of hearing. So, the argument was heard on behalf of the Complainant only and the case was fixed for passing final order. The final order will be passed on the basis of the evidences, the OPs produced before the Commission.
The OPs in their defence stated that, they had issued an insurance policy in favour of the Complainant for her car having Registration No. WB 64Q 2801 subject to the terms and conditions of the insurance policy stated therein. So, after getting information regarding the alleged damage of the abovementioned car, the OPs deputed one surveyor namely Sudhamoy Das to survey the claim of the Complainant and the surveyor submitted a survey report. It was also submitted by the OPs that this OP Company was not liable to pay any amount more than the amount assessed by the independent IRDA licensed surveyor.
On the other hand, the Complainant had violated the terms and conditions of insurance policy and accordingly the OPs were not liable towards the alleged damage of the above mentioned vehicle as claimed by the Complainant. The Complainant had availed 20% NCB from the OPs on her policy premium in spite of having experienced one claim on previous policy with the New India Assurance General Insurance Company vide policy number 98000031180306622446 which led to misrepresentation of material fact and breach of insurance contract from the Complainant's end. The OPs also stated that as per declaration on proposal form that failure to disclose material facts which an insurer would regard as likely to influence the acceptance and assessment of the proposal can lead to the policy being rendered void. Therefore, the Complainant had suppressed the fact to the OPs with melafide intention knowing fully that such statement were contrary to the insurance policy and the Complainant had not mentioned the earlier benefit (NCB) which she availed from the New India Assurance General Insurance Company Ltd. The OPs also argued that they issued two registered letter with A/D on 07.06.2020 and 18.06.2020 to the Complainant seeking explanation of the claim as to why the claim should not be repudiated. But she did not bother to reply for the same. So, the claim of the Complainant was rightly repudiated on 18.07.2020 on the ground as per declaration on the proposal form. Therefore, the question of any deficiency in service and unfair trade practice on the parts of the OPs does not arise. So, the Complaint case is liable to be dismissed.
Perused the case record and all documents submitted by the Complainant and OPs whereby it is found that the amount paid by the Complainant shown in the Tax Invoice of Prova Automobile is Rs. 2,56,573/- whereas the amount mentioned in the complaint petition is Rs. 2,66,273/- and the Complainant also claimed the same amount in prayer portion of the complaint petition which is Rs.10,000/- (approx) more than the actual payment made by the Complainant. Heard the argument advanced by the Complainant at length. Hence, below mentioned points are required to be discussed to reach a conclusion about the decision of this instant case.
POINTS FOR CONSIDERATION
- Is there any deficiency in service/ unfair trade practice on the parts of the OPs?
- Is the Complainant entitled to get any relief as prayed for in the complaint petition?
DECISION WITH REASON
Points No.1 & 2.
These two points are taken up together for discussion as they are interlinked with each other and for brevity. The Complainant Mrs. Sayar Dugar switched to OP Company for her car insurance from New India Assurance General Insurance Company Limited for the period 07.06.2019 00.01 am to 06.06.2020 midnight having policy No. 06-20-2472-1801-00000301 (policy annexed) and during taking this policy with the OPs she availed 20% NCB on her policy premium although she had a claim of meagre amount with the previous insurance company i.e. New India Assurance General Insurance Company Limited. Thus, the OPs repudiated her claim which she stacked on her car being damaged due to an accident during subsistence of the abovesaid policy on a plea that she had misrepresented material fact leading to breach of insurance contract which resulted in payment of the cost of repairing of her car on her own (Tax invoice annexed). The OPs also stated in their W/V and evidence on affidavit that the complainant signed a declaration on proposal form which reads as “failure to disclose material facts which an insurer would regard as likely to influence the acceptance and assessment of your proposal can lead to your policy being rendered void.” While taking an insurance policy for car, the applicant is to fill up a proposal form with some declaration in it to be signed by him/her and submit same to the insurance company. As this is a proposal form, the insurance company will check and verify it with other documents submitted by the applicant. If they find it up to the marks, then the policy document will be issued. The subject policy was a switch case which OPs should have cross checked the document online before issuing policy documents. The Complainant inadvertently did not mention about her claim in the previous insurance company which resulted in having availed 20% NCB in her policy premium. As there is a provision of switching the Company, it is duty and responsibility of the OPs/agent of OPs to check the details of the insured which is available online. If at the proposal stage, it was found that she had a claim whatever amount it was, the OPs could have rendered the policy void or issued the policy without 20% NCB in favour of the Complainant. But the OPs have overlooked that claim of the Complainant which resulted in issuance of policy with 20% NCB in favour of the Complainant.
On the other hand, the OPs had given a quote from the proposal form which the Complainant signed for insurance policy but they did not submit the original proposal form before the Commission. So, the Commission is in dark about such proposal form. Therefore, these activities of the OPs tantamount to deficiency in service/ unfair trade practice which in turn cause mental pain and agony to the Complainant. So, the Commission is of the view that the Complainant is entitled to get relief prayed for in the complaint petition. Thus, the points No.1 & 2 are answered in affirmative and decided in favour of the Complainant.
In the result, the instant case succeeds on contest.
Hence, it is
Ordered
That the instant case No. CC/44/2021 be and the same is allowed on contest with cost against the OPs.
So, the OPs are directed to pay the Complainant Rs.2,56,573/- towards cost of repairing of her car, Rs.30,000/- for deficiency in service, Rs.30,000/- for mental pain and agony and Rs.10,000/- for cost of litigation jointly and/or severally. The OPs are further directed to pay the total sum of Rs.3,26,573/- to the Complainant within thirty (30) days from the date of this order failing which the total awarded sum shall carry an interest @ 6% p.a. from today to till its realization.
DA to note in the Trial Register.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
