Date of Filing: 13/07/2011
Date of Order: 20/09/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 20th DAY OF SEPTEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1288 OF 2011
Govindappa,
S/o. K.M. Nagappa,
Aged About 41 years,
R/at: No.8 & 9, 10th Cross,
Basavanapura Main Road,
K.R. Puram, Bangalore-36.
(Rep. by Advocate Sri.N. Raghu Babu) Complainant.
-V/s-
The Manager,
Bajaj Allianz General Insurance Company Limited,
No.31, Ground Floor, TBR Tower, 1st Cross,
New Mission Road, Next to Bangalore Stock Exchange,
BANGALORE-560 027.
(Rep. by Advocate Sri. Santosh Kumar.L) Opposite party.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.1,93,947/-, are necessary:-
The complainant is the owner of the vehicle bearing No. KA-53/N-9956. The brother of the complainant is the owner of the vehicle bearing No.KA-53/N-139. One Prathik Kumar the agent of the opposite party whose agent code number is 0004244 Vidyavathi approached the brother of the complainant to issue two cheques for Rs.12,670/- and Rs.9,500/- respectively towards the premium. Accordingly the brother of the complainant furnished the previous policies and two cheques towards premium amount. The said agent of the opposite party issued a cover note for both vehicles. After 20 days the opposite party have issued the policy for both the vehicles covering own damages basic policy and also to cover the inmates of the cars. During discussion the brother of the complainant has stated that in the earlier policy of the vehicle of the complainant there was claim in respect of the own damage, but due to the miscommunication the policy of both the vehicle was obtained at a time. The agent might have confused and availed No Claim Bonus (NCB). During the discussion the agent was not asked the complainant’s brother to fill the proposal form. The opposite party has not declined to issue the policy even after four months nor sent any letter cancelling the policy. The clause which referred to in the proposal form, the declaration of the holder of the policy, is not signed by the complainant and the opposite party have intentionally not intimated or not issued any notice stating particulars about the NCB. When the complainant intimated regarding the accident dated: 03.06.2011 the opposite party wrongly cancelled the policy without giving opportunity to the complainant. The repudiation is illegal. The complainant had to incur Rs.1,43,947/- towards repair charges. Hence the complaint.
2. In brief the version of the opposite party are:-
The opposite party has issued the insurance policy bearing No. OG-11-1701-1801-00039703 in respect of the vehicle bearing No. KA-53-N-9956 for a period between 15.02.2011 to 14.02.2012. The liability if any under the above policy is subject to the proposal form, documents, terms and conditions so submitted by the complainant. The complainant had previously insured the vehicle in question with M/s. Royal Sundaram General Insurance Company for a period of 15.02.2010 to 14.02.2011. The complainant chose to insure the said vehicle with the opposite party for the subsequent period and submitted the proposal forum with relevant documents, NCB declaration dated: 09.02.2011 and the opposite party representative/agent issued the Cover Note to the complainant. The complainant made an accident claim on 07.06.2011 with respect to the damages caused to his vehicle on 03.06.2011 and the opposite party issued a claim No. OC-12-1701-1801-00003008. The opposite party appointed an IRDA approved surveyor to conduct preliminary survey and requested the complainant to submit certain documents for verification to enable them to process the claim. At that state when the opposite party was processing the claim, verifying the documents it was noticed that the complainant was not entitled for NCB from the opposite party as the complainant has made claim with his earlier insurance company in the immediate preceding year. The complainant had misrepresented facts in the proposal form and in the declaration form issued to the opposite party. The opposite party sought explanation from the complainant on 20.06.2011 seeking why the policy should not be cancelled for the breach of the policy conditions to which the complainant replied on 22.06.2011 admitting that due to miscommunication he misrepresented to the opposite party with respect to the NCB and the benefit/discount of the no claim bonus was inadvertently passed to him. The misrepresentation and false declarations given in the NCB as it is contrary to the terms of the policy. The declaration given by the complainant and the policy conditions reads thus:-
“I/we declare that the rate on NCB claimed by me/us is correct and that no claim has arisen in the expiring policy period. I/We further undertake that if the declaration is found to be incorrect, all benefits under the policy in respect of Section-I of the policy will stand forfeited”. The opposite party humbly seeks permission of this Hon’ble Forum to highlight Condition (8) of the policy which states that – “the due observance and fulfillment of the terms conditions and endorsement of this policy and so far as they relate to anything to be done or complied with the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy”.
Hence the claim was rejected. The complainant issued a notice on 27.06.2011, which was duly replied on 26.07.2011. The complainant is fully aware of the misrepresentation/wrong declaration and concurrent breach committed by him. The opposite party reserves its rights to initiate appropriate legal proceedings with respect to the complainant in respect of the averment inPara-6 of the complaint. All the allegations to the contrary are denied. Because of non-disclosure the complaint has to be dismissed as held in many number of cases.
3. To substantiate their respective cases, the parties have submitted their respective affidavits and documents. The opposite party has filed the written arguments. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether the repudiation of the claim by the opposite party amounts to deficiency in service or unfair trade practice?
- What order?
5. Our findings on the above points are:-
Point (A) & (B):As per the final order
For the following:-
REASONS
POINT (A) to (B):-
6. The pleadings of the parties are summarized supra, the same be read here again. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant is the owner of the vehicle in question bearing No. KA-53/N-9956 which was insured with the Royal Sundaram General Insurance Company for the period between 15.02.2010 and 14.02.2011, in that regard, in that period the said vehicle had met with an accident and the complainant claimed from the said Royal Sundaram General Insurance Company certain amount and it was paid to him and he received it. Further it is an admitted fact that the complainant got the insurance renewed with the opposite party for the subsequent period between 15.02.2011 and 14.02.2012 under the policy No. OG-11-1701-1801-00039703.
7. In this regard while obtaining the policy the complainant had given a declaration to the opposite party on 09.02.2011. The said declaration reads thus:-
“Sub: Declaration in NCB EARNED 20%
I/We hereby declare that the ratio of NCB claimed by me/us is correct and that no claim has arisen in the expiring policy period (copy of policy enclosed). I/We further undertake that if this declaration is found to be incorrect, then all benefits under the policy in respect of Section 1 of the Policy shall stand forfeited.”
That is to say the complainant had claimed and given a “No Claim Bonus” at 20% on the premium and the opposite party has given that, in the sense the complainant had declared that he had not claimed any amount under the previous policy of Royal Sundaram General Insurance Company for the preceding period to any effect he had claimed that bonus and accordingly paid less premium to the opposite party and obtained benefits. That means the complainant had given untruth declaration before the opposite party and obtained “No Claim Bonus”. This is a false declaration made by him.
8. In this case the complainant had made certain claim with the opposite party regarding the damages to his vehicle. The details of the accident is not stated by the complainant at any place. In that regard the surveyor had assessed the damages at Rs.1,15,252/-, but however when the opposite party processed the paper it found about claiming under the previous policy with Royal Sundaram General Insurance Company and issued notice to the complainant. The complainant has replied on 22.06.2011, which reads thus:-
What he has stated is that due to some miscommunication between the agent and himself the NCB was given to his vehicle that’s all. Here he does not say anything about the declaration made on 09.02.2011. It appears to the necked eye the declaration given on 09.02.2011 is executed by the complainant, signed by the complainant and so also the letter of the complainant dated: 22.06.2011. The signatures found therein belongs to the same person.
9. However the complainant in the complaint at Para-6 has stated that the said proposal form the declaration is not signed by him. This is a disputed question of fact, this cannot be decided by this forum. If the complainant has not signed the declaration how can the opposite party come to know of “No Claim Bonus” of the previous policy? How can it receive the lesser amount with respect to premium? This clearly goes to show the complainant has not come to this forum with clean hands. Based on the declaration of no claim bonus the opposite party has given no claim bonus and taken lesser premium. But now the complainant say, after taking the policy, that he has not made the declaration. Then who has signed the declaration? There is no answer. The complainant has stated, his brother has issued the cheque. The brother who made the transaction of renewal of the policy with the opposite party, if it is so, who is that brother? There is no answer. The name of the brother is not forth coming; nor the brother of the complainant has filed any affidavit. Hence an adverse inference has to be drawn against the complainant.
10. In any event as the complainant disputes the declaration given on 09.02.2011 stating that he has not given the said declaration. It requires a detailed investigation detailed cross-examination appointment of a handwriting and allied circumstances that cannot be decided in a summery way. If the complainant is aggrieved he is at liberty to approach the Civil Court seeking appropriate relief for which this order will not come in the way.
11. The complainant had given a false declaration and obtained NCB, hence the opposite party was right in repudiating the claim. If he has not given declaration, how can he receive the policy as he has not paid the premiums. Hence there is no justification to hold that it is an unfair trade practice or deficiency in service. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 20th Day of September 2011)
MEMBER MEMBER PRESIDENT
