West Bengal

Dakshin Dinajpur

CC/69/2022

Smt. Sumana Chaki, W/O- Subhash Chaki - Complainant(s)

Versus

The General Manager, HDFC ERGO General Insurance Co. Ltd. - Opp.Party(s)

Santanu Dey

25 Aug 2023

ORDER

  The instant case has been initiated under section 35 of the Consumer Protection Act, 2019 claiming an principal amount of Rs.19,948/- + 10.2% per month as interest (on and from 26.11.2021 to till date of realization) + Rs. 1,00,000/- towards compensation and litigation cost of Rs.50,000/-  against the Opposite Parties.

 The fact of the case, in brief, is that the Complainant is the registered owner of a four wheeler Vehicle No. WB-61A 6346(Maxi CAB Scorpio S4 + 4WD 9STR) and the vehicle was registered on 19/12/2017 under RTA Dakshin Dinajpur at Balurghat. The complainant plying this vehicle by paying tax to the Government and earns money to maintain her only livelihood. The aforesaid vehicle of complainant was covered by insurance Policy No. 313592/31/2020/437 of Oriental Insurance Co. Ltd., Balurghat Branch, Dakshin Dinajpur from 27/11/2019 to midnight of 26/11/2020. Subsequently said vehicle was again covered by insurance Policy No. 313592/31/2021/307 of Oriental Insurance Co. Ltd., Balurghat Branch, Dakshin Dinajpur from 27/11/2020 to midnight of 26/11/2021. Subsequently, Complainant purchased Insurance Policy of her vehicle from HDFC ERGO General Insurance Co. Ltd., i.e. through O.P. no. 2 & 3 and one Policy cover note has been issued by O.P. 1 vide no. 2311204401761500000 in the name of Complainant after receiving Rs. 19,948/- as premium from the Complainant covering the vehicle from 27/11/2021 to midnight 26/11/2022 in continuation of the previous policy number 313592/31/2021/307 of Oriental Insurance Co. Ltd., Balurghat Branch, Dakshin Dinajpur against the aforesaid vehicle of Complainant. All on a sudden on 24/03/2022 as well as 04/04/2022 the Opposite Party no. 2 in connivance with O.P. no. 1 & 3 issued one notice to the complainant that they have issued Policy number 231120441761500000 in order to cover insurance to a two wheeler and the complainant has been directed to deposit an amount of Rs. 13,462/- further within 07 days from the date of receipt of their letter otherwise they will cancel the policy. On 29/04/2022 the Opposite Parties are together in connivance with each other issued one letter to the Complainant that her aforesaid Vehicle Insurance Policy stand cancelled on and from 27/11/2021 and applicable amount of refund is Rs. 00.00. This is to note that the Opposite Parties cancelled the Policy for the reason stating that “Due to misrepresentation/ non disclosure of material fact at the time of making the proposal, the own damage section under the policy is cancelled”. It is ridiculous to see that the Opposite Parties issued insurance Policy against a four wheeler but demanded further amount of Rs. 13,462/- stating that they have issued said policy against a two wheeler and not only that vehicle number has also been mentioned in all policy papers. The Opposite Parties also updated the cancellation of Insurance Policy of Complainant’s vehicle to M - Paribahan online search app and caused irreparable damage, mental pain and agony to this Complainant. The Complainant also loosing the benefit of continuing insurance Policy due to the illegal, whimsical and arbitrary and negligent act of the Opposite Parties. The claim of Rs. 13,462/- is also illegal and have no basis at all. The Opposite Parties have not render proper customer service to the complainant and due to such negligent act, the Opposite Parties are fully liable to compensate the complainant. The Opposite Parties also did not refund any amount to Complainant which they have taken for the purpose of covering the vehicle insurance of the complainant till 26/11/2022 midnight. The matter of fact is that the policy number which has been mentioned in the letter dated 29/04/2022 regarding cancellation of Policy does not match with the Policy which has been issued in favour of the complainant against her vehicle number WB- 61A 6346. The complainant issued Legal Notice to the Opposite Parties. on 20/05/2022 through registered Post with A/D and the said notices were dully served upon the Opposite Parties but till date they did not respond or do any needful to render customer service to the Complainant. The complainant has been facing irreparable loss and damage due to unnecessary harassment by this Opposite Parties and ultimately the complainant compelled to file this petition before your Commission for getting relief as prayed for such harassed and negligent conduct of above Opposite Parties.

              Notice was issued upon the Opposite Parties and after receiving the notice the opposite party No.1&3 appeared before this Commission and filed their joint written version. The Opposite Party No.2 also appeared before this Commission after receiving notice but failed to file written version within the statutory period in spite of giving several opportunities hence, the case is proceeded ex parte against Opposite Party No.2.

             By filing written version, the Opposite Parties No.1&3 has stated that the complainant’s son- Mr. Saswata Chaki had approached this Opposite Parties Insurance Company to insure their vehicle SCORPIO S4+ 4 WD9STR bearing no. WB-61A-6346 in the name of the Complainant- Sumana Chaki. It is material to note that the complainant’s husband namely Subhash Chaki and son Saswata Chaki have also insured their other vehicles with this Opposite Parties Insurance Company. As all other vehicles of the Complainant and her family members were private cars insured under Private Car Package Policy and in the absence of any clear communication or instruction from the complainant’s end or her son Mr. Saswata Chaki, this Opposite Parties Insurance Company issued a Private Car Package Policy for vehicle bearing no. WB-61A-6346 too vide policy bearing number 2311204401761500000, w.e.f.  27^th November 2021 to 26^th November 2022 entirely upon good faith. Total premium paid by the complainant for this insurance policy was Rs. 19,948/-. Subsequently, this Opposite Parties Insurance Company had sought for the R.C. copy of the vehicle from the complainant’s son and upon receipt of which, it was affirmed that the class of the vehicle fell in the category of a MAXI CAB and thereby clarified that the vehicle was used for commercial purposes only considering the class in which the vehicle was registered. In this connection, the R.C. copy received from the Complainant’s son and additionally an online extract of the R.C. from the M Parivahan website. Thereafter, this Opposite Parties/Insurance Company vide telephonic discussion had informed Mr. Saswata Chaki that said vehicle is ought to be covered under Commercial Vehicle Package Policy instead of Private Car Package Policy with the Whats app text messages but the complainant’s son did not provide any clarity on what they intended to do which appears to be deliberate on their end. This Opposite Party/ Insurance Company had also informed Mr. Saswata Chaki that he has the option to get the insurance done from another insurer considering the issuance of an incorrect policy. In the absence of any instructions or decision from the complainant’s end over text messages or telephonic calls, this Opposite Parties / Insurance Company issued an intimation of Policy cancellation letter to the complainant dated 04^th April 2022 allowing them a chance to revert within 7 days vide official communication on their decision as to whether they choose to remain insured with us vide a fresh proposal and correct policy with applicable premium, i.e. deficit premium amount of Rs. 13,462/- after deduction of premium already paid by complainant. The said letter also contained the payment link with proper instructions on how to pay the remaining premium amount and also contained a warning of policy cancellation upon failure of receipt of correct details from the complainant’s end. It is categorically submitted that the complainant has perpetrated fraud knowing that this Opposite Party / Insurance Company had issued the policy under a mistake of fact but they knew that the mistake was being committed and yet chose to stay silent thereby taking advantage of a bonafide mistake. At the inception, it was mandatory for the complainant to disclose inter alia the R.C. extract of the vehicle which itself shows that WB-61A-6346 is a commercial vehicle but because of the complainant’s non disclosure which prevented this Opposite Parties to ascertain the actual facts and circumstances and for such reason a Private Car Package Policy was issued to the said vehicle in good faith but on an erroneous assumption. However this erroneous assumption on part of the Opposite Parties / Insurance Company was brought about by the complainant’s omission only. The complainant knowing fully well, took advantage of the situation and sat tight on the assumption.

Under the above circumstances this Complainant cannot get any relief from this Opposite Parties / Insurance Company Limited. This claim petition is thus fictitious and devoid of any merit and is liable to be dismissed against the OP, HDFC ERGO General Insurance Company Limited.

           In support of his case, the complainant has filed the photo copies of the following document-

  1)  New India Policy Paper (WB 61 A 6346)

  2 ) Vehicle Registration Certificate of vehicle No. WB 61 A 6346  

  3)  The present policy no.2311204401761500000 of HDFC ERGO  Insurance Co. Ltd. covering the vehicle from 27.11.2021 to 26.11.2022 

  4) The previous policy no.313592/31/2021/307 of Oriental Insurance Co.   Ltd. from 27.11.2020 to 26.11.2021 

  5)  the previous policy no.313592/31/2020 437 of Oriental Insurance Co. Ltd. 27.11.2019 to 26.11.2020  

  6) Letter dated 24.03.2022 issued by the Opposite Parties to the Complainant

  7) Letter dated 04.04.2022 issued by the Opposite Parties to Complainant

  8) Letter dated 29.04.2022 issued by the Opposite Parties to the Complainant regarding cancellation of policy no.2311204401761500000

  9) Advocate’s letter dated 20.05.2022 sent to Opposite Parties No.1,2&3 with postal receipt and delivery reports of India Post.

                     On the other hand. the Opposite Parties have submitted the photo copies of following documents:-

1. Insurance policy no.2311204401761500000 issued by Opposite Parties in the name of the Complainant for the period from 27.11.2021 to 26.11.2022
2. Terms and conditions for private car package policy   
3.  Certificate of Registration of vehicle no. WB 61A / 6346
4. R.C. details 
5. Copy of whats app test massage
6. Copy of intimation of policy cancellation letter.

                  In view of the above mentioned discussions the following points cropped up for determination.

                                     Points for determination

1. Is the complainant a consumer to the Opposite Parties?
2. Is there any negligence and deficiency in service on the part of the Opposite Parties?
3. Is the Complainant entitled to get any relief/reliefs as prayed for?

  REASONED DICISION

                 We have heard arguments by Ld. Advocates for the both sides at length. Perused the materials on record, evidence on affidavit and written argument filed by the both parties. We have also gone through the documents submitted by both the parties.

              At the time of argument, Ld. Advocate for the Complainant narrated the fact of the case as mentioned in the complaint petition. Ld. Advocate further submitted that it is the mistake of the Opposite Parties that they insured four wheeler as two wheeler and demanded more Rs.13,462/- to correct the same. The Policy of the Complainant has been cancelled without any refund. There is negligence and deficiency in service on the part of the Opposite Party. The Complainant has proved his case so, he is entitled to get relief as prayed for.

          On the other hand, Ld. Advocate for the Opposite Party also narrated his defense case as mentioned in the written version. Ld. Advocate for the Opposite Party further submitted that no benefit will be allowed if the claim is wrong. The Complainant has suppressed the real fact knowing the fault of the Opposite Parties which have been done mistakenly. The Complainant has fraudulently insured a commercial vehicle as private vehicle and in spite of informing the fact to the Complainant, the Complainant did not turn up. There is no latches or deficiency in service on the part of the Opposite Parties. So, the instant case is liable to be dismissed.

Let all these points be discussed one by one -

Point  NO. 1

             It is an admitted fact that the Complainant insured his vehicle SCORPRIO S4 + 4WD9STR bearing no. WB 61 A 6346 under the Opposite Parties. Hence, this Commission is of the view that the complainant is a consumer u/s 2(7) of Consumer Protection Act 2019.  

Accordingly, this point is decided in favour of the Complainant.               

Points No. 2 & 3 

        Both these points are taken up together for the sake of convenience and brevity.

         It is an admitted fact that the vehicle being no. WB 61 A 6346 of the Complainant is insured with the Opposite Parties vide Insurance Policy No.2311204401761500000 for a period from 27.11.2021 to midnight of 26.11.2022.

             From the Registration certificate of the afore said vehicle, it appears that the said vehicle is a MAXI CAB registered on 19.12.2017 and has seating capacity of 09 persons. This vehicle was insured for the first time under Oriental Insurance company for the period from 27.11.2019 to 26.11.2020 and for the  second time under the same insurance company for the period from 27.11.2020 to 26.11.2021 and for the third time the Complainant purchased Insurance Policy of Opposite Parties for a period from 27.11.2021 to 26.11.2022 in continuation of the previous policy.

           Now, it is the allegation of the Complainant that at the time of purchasing insurance, she insured her four wheeler and the same has been mentioned in the Insurance certificate but the Opposite Parties by their letter dated 24.03.2022 informed the Complainant that mistakenly, the four wheeler has been registered as two wheeler and further by their letter 04.04.2022 demanded a sum of Rs.13,462/- for issuing correct policy and subsequently by a letter dated 29.04.2022 informed the Complainant that the  said Insurance Policy being no.2311204401761500000 has been cancelled. But the cancellation letter of the Opposite Parties has a wrong insurance policy number. The Complainant has further alleged that the Opposite Parties have also updated the cancellation of Insurance Policy of the Complainant’s vehicle to M-Paribahan online search app and caused irreparable damage, mental pain and agony to the Complainant.  

               On the other hand, it is submitted by the Opposite Parties that in spite of knowing the fact that the Opposite Parties have mistakenly insured the vehicle as two wheeler in stead of four even then the Complainant did not disclose the fact to the Opposite Parties and when the fact came to the knowledge of the Opposite Parties, they informed the Complainant to come and get the said policy corrected by paying a sum of Rs.13,462 and when the Complainant did not pay heed , the Opposite Parties cancelled the said policy and also updated the said cancellation of policy of the vehicle of the Complainant to M-Paribahan and also forfeited the premium amount of Rs.19,948/- paid against the said policy of the vehicle.

              Now, on perusal of the Registration Certificate and Insurance Policy of the vehicle lying in the name of the Complainant, it appears that the description of vehicle is MAXI CAB, Registration No. is WB 61 A6346 and seating capacity is 09 persons. If this be the so, then how the Opposite Parties presumed that it is a two wheeler and insured the same as two wheeler whereas the Opposite Parties are professionals in this regard. Apart from it, they cancelled the insurance policy without returning the premium amount to the Complainant. Further, they updated the said cancellation of insurance policy of the vehicle in M-paribahan online search app. This conduct of the Opposite Parties caused irreparable loss and mental agony which resulted that the Complainant is unable to ply the vehicle on road. Here, we find the whimsical attitude and intentional latches on the part of the Opposite Parties.

            In view of the above mentioned findings, this commission is of opinion that the Complainant is a consumer to the Opposite Parties and there is negligence and deficiency in service on the part of the Opposite Party so, the Complainant is entitled to get  any relief .

. Accordingly, both these points are decided  in favour  of the Complainant.

  Hence, it is

                                                                            O R D E R E D

 

            That the complaint case No. 69 of 2022 be and the same is allowed on contest in part against the Opposite Parties but with cost.

            The Opposite Parties are directed to pay a sum of Rs.19,948/- jointly or severally with an interest @ 8% p.a. from 27.11.2021 till full realization by issuing an account payee cheque in favour of the Complainant within 45 days from the date of passing of this order failing which the Complainant is at liberty to execute the order as per law. The Opposite Party is further directed to pay Rs. 10,000/- towards compensation and Rs.5.000/-towards litigation cost within the above mentioned period.

Let a plain copy of this order be supplied to the parties free of cost