BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 24th November 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 240/2015
Complainant/s:
Dr.S.B.Kalsoor,
Age: 80 years, Occ: Rtd. Superintendent, R/o. Brahma Kunja, HIG 58, Navanagar, Hubli 25.
(In Person)
v/s
Respondent/s:
The Manager, Bajaj Allianz General Insurance Co. Ltd., New Cotton Market, Hubli 29.
(By Sri.A.S.Shetty, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondent to pay the claim amount of Rs.44,738/- with interest along with Rs.50,000/- as compensation towards mental agony, cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant is the owner of the car bearing registration No.KA 25 MA 0659. The said vehicle was insured with the respondent under policy bearing No.OG15-1704-1801-00001121 on 16.09.2014 covering the risk of comprehensive insurance for a period from 16.09.2014 to 15.09.2015. The complainant has paid Rs.9,785/- towards the premium for the risk covering comprehensive policy. The said vehicle met with accident on 25.01.2015. Since it was continuously 2 days holiday from the date of accident the complainant could not intimate the accident to respondent immediately but it was intimated thereafter. Inspite of repeated requests, letters and personal approaches the respondent did not settle the claim. Even the letters 07.02.2015 and 15.02.2015 did not yield any results. On 26.02.2015 the complainant paid Rs.1,084/- to the respondent by way of cash under receipt & requested to treat the policy as comprehensive one. But the respondent instead treating the said policy as comprehensive treated the same as third party insurance. Meanwhile one Mr.Sunil, surveyor asked the complainant to give one letter. On good faith the complainant issued the letter. Though the claim was made on one or other pretexts the respondent postponed the claim settlement. Since the policy is private car package policy it means the said policy is comprehensive one. The complainant got repaired the damaged vehicle by paying Rs.44,738/-. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondent taken contention that the complainant has concealed true facts as such the complaint as brought is not maintainable and prays for dismissal of the complaint. While the respondent admits the issuance of the policy, coverage of the risk to the date of accident and admits the liability subject to terms and conditions of the policy and limitations thereof and the confirmation of the compliance of Sec.64 (V) (b) of Insurance Act. While the respondent denied the allegations made in the complaint that the complainant approached the representative of the respondent by name Mudusar Kaladagi and in turn he assured issuance of comprehensive policy and puts the complainant to strict proof of the same. Among such other admissions and denials the respondent averred, at the time of proposal the complainant availed no claim bonus of 20% on the policy stating that he has not availed any claim on the previous policy issued by his previous insurer. Further the respondent denies the assurance given by one Mr.Sunil, surveyor and also issuance of the signed letter to the said Mr.Sunil, surveyor on good faith. After submission of the claim intimation from the complainant on 31.01.2015 the respondent requested the complainant to furnish necessary documents but not furnished. On investigation the complainant had claimed the claim from his previous insurer Bharati Axa. Inspite of it while giving proposal to the respondent company complainant claimed 20% discount on the premium which is breach of IMT provisions. The respondent had issued the policy on the principles of utmost good faith. But complainant violated the principles of insurance. Hence, the respondent issued notice to the complainant on 11.02.2015 asking the complainant, why his claim should not be repudiated for giving false declaration. When there was no any satisfactory answer from complainant the respondent repudiated the claim through letter dt.18.02.2015 giving reason of concealing the claim on his previous policy and claim of 20% NCB on the present policy which leads to breach of contract. While at the time of proposal the complainant also had given undertaking disclaiming the claim if any material facts were suppressed or concealed, claim could be forfeited. The respondent further averred repudiation is justified. For violation of the terms and conditions of the contract as such no deficiency in service as alleged. The payment of Rs.1,084/- made on 26.02.2015 will neither validate previous claim nor does it have any retrospective effect. Hence, complainant is not entitled for relief under own damage claim for the period prior to the payment of Rs.1,084/- dtd.26.02.2015. While the respondent denied the repair charges claimed by the complainant. Interalia averred, after intimation the respondent deputed its surveyor and in turn surveyor submits report. Further the respondent asserting justification in repudiating the claim prays for dismissal of the complaint with costs.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit. Respondent apart from examining himself also examined one more witness surveyor. Both have relied on documents. Apart from argument both have filed notes of argument. Respondent relied on citations. Heard. Perused the records.
Finding on points is as under.
- Negative
- Negative
- As per order
Reasons
Points 1 and 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant had insured his vehicle with the respondent and paid the premium. Further it is also not disputed with regard to the fact , the said vehicle met with an accident and submits claim and inturn the respondent repudiated the claim for concealment of the claim made on previous insurance policy and availment of 20% NCB under the present policy.
6. Now the core question to be determined is, whether inspite of false declaration regarding no claim bonus complainant was entitled to receive compensation, if so, for what relief the complainant is entitled.
7. Since the facts have been revealed in detail which requires no repetition.
8. Though the complainant restricts his prayer to order for repaired charges nowhere in the pleadings or in the evidence the complainant did not disclose any facts with regard to whether his vehicle met with accident during the tenure of his previous policy and he availed NCB to an extent of 20% on the present policy. The real fact has unveiled only after written version filed by the respondent and after oral admission made by the complainant subsequently during the course of prosecution. Hence, fact of concealment of real facts unveiled leading to justification in repudiating the claim by the respondent for violation of IMT provisions.
9. As rightly pointed out supra though the complainant restricted his pleadings during the course of prosecution improved his versions and taken his contention indifferently on different angles which have not comes in aid of the claim of the complainant and those indifferent contentions are baseless and are improved versions and are hearsays without any documentary evidence. What are the contentions off line the records cannot be taken into consideration. Hence, same were disbelieved and have no consequence.
10. As rightly pointed out by this Forum only fact to be seen whether false declaration regarding no claim bonus could be accepted or not otherwise the claim of the complainant could be considered on non standard basis. In this regard the learned counsel for respondent vehemently opposed with supporting citations viz.,
- RP 985/15 NC – Oriental Insurance co. ltd., vs. Sri Dharnidher Sharma
- RP 470/14 NC- Inderpal Rana vs. National Insurance co.
- RP 1046/15 NC- New India Assurance co. vs. Dinesh Kumar
11. While the citation no.1 is with regard to approach of petitioner/ complainant with clean hands. Any suppression or concealment with regard to the claim particularly with regard to the own damage claim insured is not entitled for any relief except in the case of 3rd party claim.
12. While the citation no.2 is with regard the undertaking given by the proposer undertaking to disclaim in the event of false declaration. In this respect the LC for respondent draw the attention to the Ex.R4 declaration signed by the complainant.
13. While the citation.3 referred supra is with regard to the suppression of claim and availment of NCB. This citation is very appropriate and similar to that of the present complaint. Taking into facts of the case and relevancies relied the LC for respondent argued and asserted the justification in repudiating the claim and prays for dismissal of the complaint. Interalia the complainant did not adduce any cogent and appulsive evidence in support of his contentions and to establish deficiency in service.
14. In the light of aforesaid discussions we are of the view that as complainant obtained insurance policy from respondent by false declaration, insurance policy is null and void and complainant is not entitled to any compensation or claim under the policy. Accordingly held issue.1 and 2 in negatively.
15. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24th day of November 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
