Date of filing:8.11.2013
Date of Disposal:24.7.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SMT N. TRIPURA SUNDARI, B. COM., B. L., PRESIDENT (FAC)
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
THURSDAY, THE 24th DAY OF JULY, 2014.
C.C.No.179 OF 2013
Between :
Yepuri Ganeswara Rao, S/o Subba Rao, Hindu, 35 years, Owner of Maruti Car bearing No.AP 16 BR 3444, R/o Flat No.B1, Sandilya Towers, Pothinenivari Street, Machavaram,Vijayawada – 4.
….. Complainant.
And
1. The Managing Director, The Future Generali India Insurance Company Ltd., #001Delta Plaza, 414, Veer Savarkar Marg, Prabhadevi, Mumbai – 400 025.
2. The Branch Manager, The Future Generali India Insurance Company Ltd., D.No.40-2-5, 4 & 5 Floors, CVR Chamber, Beside Kalaniketan, Labbipet, Vijayawada – 10.
…....Opposite Parties.
This complaint is coming before us for final hearing on 15.7.2014 in the presence of Sri T.Uma Maheswara Rao and Sri M.Adinarayana Rao, Advocates for complainant and Sri T.Veerabhadra Rao, Advocate for opposite parties and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble President (FAC) Smt N. Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint are in brief:
1. The complainant is the owner of Maruthi Swift LDI car and the said vehicle was insured with the opposite parties for a period of one year commencing from 23.5.2013 to 22.5.2014 on payment of requisite premium. The policy covers own damage, third party, PA to owner-driver, PA to persons and other than owner/driver. While so on 29.5.2013 the said vehicle met with an accident and it was badly damaged. The complainant informed the said fact to the opposite parties and they advised the complainant to send estimated damages of the vehicle. Accordingly the complainant estimated damages to a tune of Rs.2,91,767.96ps towards spare parts and labour charges and submitted the same to the opposite parties along with claim form. The opposite parties promised that they will settle the claim within one week. Surprisingly on 10.7.2013 the opposite parties sent a letter stating that the complainant’s claim was unable to admit on verification. The complainant made a claim of his previous insurer i.e., M/s HDFC Ergo General Insurance and they settled the claim. The opposite parties also got issued a notice by cancelling the policy with a reason as per policy condition No.5. The opposite parties alleged that the complainant claimed 35% NCB at the time of entering into the policy which is deviation of policy terms and conditions. The complainant got issued notice to the opposite parties stating that the proposed form was neither filled nor signed by the complainant. The complainant also furnished copy of previous policy at the time of insurance of present policy. On going through the same only the opposite parties issued the policy, at the time of accident the policy was in force and repudiation of claim made by the opposite parties is arbitrate, illegal not based on any valid reasons. The opposite parties with a view to claim made by the complainant making bold allegations without any valid reason which amounts to deficiency in service. Hence the complainant is constrained to file this complaint against the opposite parties praying the Forum to direct the opposite parties to pay an amount of Rs.2,91,768/- towards cost of spare parts and labour charges with interest at the rate of 25% per annum from the date of claim i.e., 31.5.2013 till the date of realization to declare cancellation of policy is null and void to pay Rs.2,00,000/- towards compensation for deficiency in service and to pay Rs.5,000/- towards costs.
2. The 1st opposite party filed its version and the 2nd opposite party adopted the same.
The version of the opposite parties is in brief:
The opposite parties denied all the allegations of the complaint and submitted that the opposite parties issued a motor policy bearing No.V-2403859FPV to the car for the period of one year commencing from 23.5.2013 to 22.5.2014 subject to terms and conditions, exceptions, limitations and liability of the policy. The policy was issued to the complainant basing on the declaration given in the proposal with regard to the previous claim and as such the opposite party allowed 35% of no claim bonus as the complainant willfully suppressed the material fact and enjoyed no claim bonus from the opposite parties. On 30.5.2013 the complainant lodged a claim stating that his car met with an accident on 29.5.2013 at 4.30pm within the limits of Agiripalli P.S. Krishna District and estimated the damages at Rs.2,91,768/-. On receipt of the claim intimation the opposite parties appointed an independent IRDA licensed surveyor Mr.A.V.S.C.Bose. He conducted survey and assessed the net loss of Rs.1,80,000/- and he submitted his survey report. The opposite parties examined the documents submitted by the complainant and the said car met with an accident previously and the complainant claimed own damages from M/s HDFC ERGO General Insurance Company Limited and the complainant suppressed the material fact of the previous accidental claim in the proposal form and the complainant obtained the policy of this opposite party and availed no claim bonus at 35% for wrongful gain from this opposite party. Since the complainant suppressed the fact of claiming own damage from the expiring policy M/s HDFC ERGO General Insurance Company Limited and gave incorrect declaration with regard to the claim status under expiring policy and availed discount of 35%. Therefore all the benefits under Section 1 of the policy stands cancelled. Therefore this opposite party did not consider and accordingly repudiated the claim and the same was intimated to the complainant through letter dated 10.7.2013. No claim bonus was allowed only after verification made by the complainant with regard to the previous claims on the expiring policy and the accident took place under close proximity after issuing the policy. The policy is issued based on the principle of utmost good faith if anything found to be false and incorrect is not liable to indemnify. Therefore these opposite parties are not liable to pay any claim amount to the complainant and there is no deficiency in service on the part of the opposite parties and the complaint in not accepting the claim of the complainant.
3. The complainant gave his affidavit and got marked Ex.A.1 to Ex.A.8 and on behalf of the 1st opposite party Sri V.Murali, Claims Manager gave his affidavit and got marked Ex.B.1 to Ex.B.13 and Sri A.V.S.C.Bose licensed surveyor and loss assessor gave his affidavit and filed his final survey report.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of the opposite parties
towards the complainant in repudiating the claim of the complainant?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the martial on hand the complainant is the owner of Maruthi LDI car under Ex.B.5 registration certificate issued by Andhra Pradesh Transport Department and the said vehicle was insured with the opposite parties for a period of one year commencing from 23.5.2013 to 22.5.2014 under Ex.A.3 on payment of requisite premium of Rs.6,800/- on 20.5.2013 under Ex.B.2. The policy covered own damage, third party, P.A. to owner-driver, P.A. to persons and other than owner/driver Ex.A.3 discloses the same. The complainant says that while so on 29.5.2013 the said vehicle met with an accident and it was badly damaged. The same fact was informed to the opposite parties and on the advise of them the complainant sent estimated damages Ex.A.6 dated 31.5.2013 Rs.2,91,708/- towards spare parts and labour charges and submitted the same along with claim form Ex.B.6 and it was received in claims on 21.6.2013. The opposite parties sent a letter Ex.B.10 dated 10.7.2013 stating that on verification with his previous insurer M/s HDFC ERGO General Insurance Company Limited they found that a claim had been reported and settled under expiring policy. The present policy was issued by the opposite parties on 35% no claim bonus based on the declaration given by him regarding the previous claims in the proposal form Ex.A2 and Ex.B.1 no claim bonus of 35% is allowed. The opposite parties issued a notice Ex.A.5 dated 16.7.2013 cancelling the policy as per policy of the complainant condition No.5. The complainant got issued a legal notice Ex.A.7 dated 29.8.2013 stating that the proposed form was neither filled nor signed by the complainant. The opposite parties got issued reply notice Ex.A.8 dated 23.10.2013 stating that as per exceptions, limitations, liability of the policy, and declaration given by him in the proposal form with regard to previous claims and was allowed 35% no claim bonus and accordingly the policy was issued. At the time of taking the policy, he informed all the facts about previous policy Ex.,A.1 and the claim made and submitted all documents relating to it to the opposite parties.
7. The opposite parties says that on receiving the intimation of the accident and damages of the vehicle of the complainant the opposite parties appointed an independent IRDA licensed surveyor Mr.A.V.S.C.Bose, he conducted the survey and assessed the loss of Rs.1,80,000/- and submitted his report Ex.B.8 dated 8.7.2013., The opposite parties examined the documents Ex.B.3 submitted by the complainant and noticed that the said car met with an accident previously and the complainant claimed for own damages M/s HDFC ERGO general insurance company limited. The complainant suppressed the material facts of previous accidental claim in the proposal form and gave incorrect declaration with regard to the expiring policy and allowed discount of 35%. Therefore all the benefits under Section 1 of the Policy cancelled. No claim bonus was allowed if the complainant gave correct information with regard to the previous claims on the expiry policy and the accident took place under close proximity after issuing the policy. The policy is issued based on the principles of utmost good faith if anything found to be false and incorrect is not liable to indemnify.
8. On hearing both parties we, the Forum came to conclusion that it is the duty of the opposite parties to verify the proposal form before issuing the policy. Once the proposal is accepted by the opposite parties and issued policy they cannot go behind. The complainant informed about the previous insurance policy to the agent and having known by the agent about the previous claim, it was for the agent to have advised him properly and in case when the form was filled up by the agent, the complainant cannot be made to suffer for the negligence of the agent. The signature of the complainant in proposal form seems deferment to the signatures on other documents. In so far as the complainant was concerned, there was no concealment from his side. The complainant relied the citations cited by Hon’ble N.C.D.R.C. dated 2.8.2013 in
1. M/s Budhania Service Station Through Raghuvir Singh Budhania Proprietor Vs. National insurance Comp. Ltd., that before granting insurance policy it is duty of insurance company to issue policy after considering all requisite formalities.
2. Delhi State Consumer Disputes Redressal Commission gave rule on 2.7.2012 in Narayana Chimandas Bhambhani Vs Oriental Insurance Co., Ltd., that once insurance company has accepted proposal it cannot go behind the same even if proposal is in violation of criteria mentioned in insurance policy.
8. The opposite parties filed the citation of N.C.D.R.C. dated 26.2.2010 (1) Tata AIG General Insurance Company Ltd., Mumbai Vs Gulzari Singh, Delhi which is prior 2010 to the citations 2013 filed by the complainant.
9. In view of the submissions and citations filed by the both parties and on verifying the policy issued by the opposite parties to the complainant which is left unfilled some columns, we hold that there is not only deficiency in service but also unfair trade practice adopted by the opposite party. Hence the opposite party is liable to pay the assessed amount which is assessed by its surveyor and the complainant is entitled for the same along with compensation.
POINT No.3:-
10. In the result, the complaint is allowed in part and the opposite parties are directed to pay the assessed loss amount which is assessed by its surveyor Rs.1,80,.000/- deducting the discount amount allowed on no claim bonus with interest at the rate of 9% per annum from the date of receiving the claim form i.e., 21.6.2013 till realization and to pay Rs.2,000/- as costs to the complainant. Time for compliance one month. Rest of the claim of the complainant are rejected.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 24th day of July, 2014.
PRESIDENT(FAC) MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 Y.Ganeswara Rao D.W.1 V.Murali,
Complainant Claims Manager, of the
(by affidavit) 2nd opposite party
(by affidavit)
D.W.2 A.V.S.C.Bose, Surveyor and Loss
Assessor, Vijayawada.
(by affidavit)
DOCUMENTS MARKED
On behalf of the Complainant:-
Ex.A.1 . . Photocopy of Private Car Package Policy.
Ex.A.2 20.05.2013 Photocopy of Proposal Form.
Ex.A.3 . . Photocopy of Certificate of Insurance Cum Policy Schedule.
Ex.A.4 10.07.2013 Photocopy of letter from the 1st opposite party to the complainant.
Ex.A.5 16.07.2013 Photocopy of Cancellation Notice.
Ex.A.6 . . Estimation of Vahan Motors Private Ltd.,
Ex.A.7 29.08.2013 Office copy of legal notice.
Ex.A.8 23.10.2013 Reply legal notice.
For the opposite parties:-
Ex.B.1 20.05.2013 Proposal Form.
Ex.B.2 20.05.2013 Photocopy of State Bank of India Cheque for Rs.6,800/-.
Ex.B.3 . . Copy of Certificate of Insurance Cum Policy Schedule,Photocopy of Private Car Package Policy along with Terms
and conditions.
Ex.B.4 . . Photocopy of claim history report.
Ex.b.5 . . Copy of Certificate of Registration.
Ex.B.6 . . Motor insurance claim form.
Ex.B.7 03.06.2013 Motor Survey Report (Spot).
Ex.B.8 08.07.2013 Motor Survey Report (Final).
Ex.B.9 . . Copy of E-mail correspondence.
Ex.B.10 10.07.2013 Photocopy of letter from the 1st opposite party to the
complainant.
Ex.B.11 08.07.2013 Copy of letter from the opposite party to the complainant.
Ex.B.12 . . Postal receipt.
Ex.B.13 23.10.2013 Reply legal notice along with postal receipt and postal
acknowledgement.
PRESIDENT(FAC)
