BEFORE THE DISTRICT CONSUMER      

       DISPUTES REDRESSAL FORUM, DHARWAD.

COMPLAINT NO.193/2016
 

Dated: 31^st day of July, 2017

                                                                                                    P r e s e n t:                  

                                                                 Smt.C.H.Samiunnisa Abrar, B.A., LLB   :  President

                 Sri.B.S.Keri, B.A., LLB (Spl)                  :   Member

Opposite Parties   :-   1.         The Manager,

                                                 Shodha Toyota,Shoda Motors Ltd.

                                                 Opp. KSFC, Hubli – 580 002.

                                                 (Absent)

                                         2.   The Manager,

                                                 Reliance General Insuranc Company Ltd.,

                                                Desai Cross, Deshpande Nagar,

                                                Hubli.   

 
                 (Rep. by Sri.S.G.Patil, Adv. For OP2)

JUDGMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OPs.

2.    The brief fact of the case is that the Complainant is permanent resident of Ilkal town. The Complainant has purchased a vehicle Toyota ETIOS with OP No.1 on 28.03.2012 and the same has been registered in R.T.O., Bagalkot bearing No.KA-29/M-7106. At the time of purchasing vehicle, OP No.1 had got insured the Complainant’s vehicle with IFFCO Tokio General Insurance Company as per there tie up agreement with Insurance Companies. The Complainant submits that OP No.1 has got tie up agreement with various General Insurance Company for purposes of insuring their vehicle which are sold by them. The said insurance was valid from 28.03.2012 to 27.03.2013. Again OP No.1 insured Complainant vehicle with  Chola MS General Insurance Company which was valid from 28.03.2013 to 27.08.2014 and with IFFCO Tokio with validity period 28.03.2014 to 27.03.2015 with Reliance General Insurance Company with valid period 28.03.2015 to 27.03.2016 bearing policy No.1402552311000512 and with Reliance General Insurance Company with validity from 28.03.2016 to 27.03.2017 and the Complainant is regular customer to OP NO.1 who was to receiving premium amount and issued insurance policy to vehicle.

3.      The Complainant vehicle met with an accident on 27.11.2015 and caused the damages to vehicle to the extent of Rs.10,000/-. The OP No.2 conducted the surveyor. Thereby OP No.2 has repudiated the Complainant’s claim and issued a letter dated: 03.12.2015 mentioning the reasons Complaint has misrepresented the fact. Again on 14.02.2016 the Complainant’s vehicle met with an accident near Chilakamukhi Cross, Near Koppal. The said accident registered in Koppal Rural Police Station under Cr. No.45/2016 and the intimation of said incident was to OP No.2 within time and taken his vehicle to OP

NO.1 to get it repaired. The OP No.2 had also conducted the spot survey, but the said claim was repudiated, the claim on the grounds that Complainant had misrepresented the fact with its letter dated: 03.12.2015. Even though, the Complainant has furnished all information with said previous policy at the time of obtaining the policy with OP No.2 and also OP NO.1 had also got fully knowledge of all transaction of previous policy, since OP No.1 has issued different insurance policy every year, hence mis-representation of fact and utmost good faith on part of Complainant and also the question of suppression of facts does not arose. The OP No.1 who was knowing well that Complainant had obtained one claim in previous policy even though they have provided NCB benefit to the Complainant so the act done by OP No.1 is binding upon OP No.2. Therefore, Ops are liable to pay vehicle damages amount as per the estimated report of RS.79,159/-. The Complainant has issued a legal notice to Ops on 11.04.2016, but the Ops have not answered. The said act of the Ops amounts to deficiency in service and unfair trade practice and illegally repudiated the claim of the Complainant who has not violated any fundamental terms and conditions of policy. Hence, Complainant is constrained to file this Complaint before the Forum for his grievance.  

4.      Complaint was registered and notices were ordered as such OP No.2 appeared through his advocate and filed their Vakalat and Written Version. OP No.1 remained absent.

WRITTEN VERSION OF OP2

The sum and substance of the contentions of OP No.2 is as follows;

5.      The Complaint filed by the Complainant is false, frivolous and vexatious as such it is liable to be dismissed with cost. This Complaint is premature and no cause of action has arisen to the Complainant to file this Complaint. The Complainant has not exhausted all the remedies available to the insured under the Insurance Policy. This Complaint is not maintainable and liable to be dismissed. The OP partly admits and partly denied the contents of Para No.2 and 3 of the Complaint as false and incorrect.  The OP admit that the Complainant got insured his vehicle Toyota ETIOS bearing Reg. No.KA-29/M-7106 for the period 20.03.2015 to 27.03.2016 and from 28.03.2016 to 27.03.2017. The contents of Para No.4 to 9 of the Complaint are false and incorrect. The OP denied that the Complainant had furnished all information of previous policy at the time of obtaining the policy. The OP specifically denied that the act and dates done by the OP are binding on this OP. The OP No.2 already informed to the Complainant that as per the declaration given by him, the OP No.2 had provided 20% NCB to the Complainant, but on verification it was observed that the Complainant has taken one claim on previous policy which is a misrepresentation of fact and breach of utmost good faith which also results into violation of 64 VB. Therefore, OP prays that this Complaint has to be dismissed in the interest of justice and equity.   

6.     In the background of the above said pleadings, the Complainant filed his affidavit and produced the documents which are marked as EX C1 to C12 and they are:

On the other hand, OP No.2 filed the Written Version and one Sri.Vijaykumar S/o Kashinath Kotin, Occ: Manager Legal, RGICL filed Chief Affidavit by way evidence and filed one citation in support of his version.

7.      On perusal of above documents and arguments heard on both the sides, the points arises before us for adjudication is as follows:

Our Answer to the above Points are:-

Point No.1 –  

Point No.2 – 

Point No.3 – As per the final order.

8.      On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

DECISION AND REASONS

  9.  POINT NO.1 and 2: Since both the points are inter-link and identical, we proceed with both the points together.

     10.      The Complainant has filed this Complaint against the Ops for his insured amount on vehicle Toyota ETIOS which has been insured with OP No.2. OP No.1 has collected the premium amount from the Complainant as per the Complaint, Complainant had insured his vehicle with a different insurance Company after purchasing of the vehicle. In 2012 IFFCO TOKIO General Insurance Company and in 2013-14 the vehicle has been insured with Chola M.S. General Insurance Company. In 2014-15 again IFFCO TOKIO and 2015-16 insured with Reliance General Insurance Company. But, from 2012 to 2016, for all the policies the agent is OP No.1. The Complainant submits that as per the instruction of OP No.1, the Complainant paid the premium. On 27.11.2015 the vehicle met with an accident causing minor damages to the vehicle to a extent of Rs.10,000/-. The OP No.2 conducted the survey, but unfortunately OP No.2 repudiated the claim mentioning the reason that Complainant has misrepresented the fact. As per the Complaint, again the vehicle was met with an accident on 14.02.2016, near Koppal, FIR has been lodged, and vehicle got repaired in the showroom

of OP No.1, OP No.2 conducted the survey and repudiated the claim mentioning the reason as stated above. OP contended that the claim had been repudiated, because Complainant has availed 20% N.C.B. in the policy at the time of renewal of previous policy of M/s ICICI Lombard General Insurance Company Ltd. Further OP No.2 submits that during issuing the policy, the Insurance Company usually verify previous policies to find out any claim has been obtained or not and then only OP will provide N.C.B. benefit. OP No.2 obtained all the information of OP NO.1 with regard to the previous policy and the claim and then provides N.C.B. But, after coming to know the fact that, OP No.1 had taken O.D. Claim on previous policy, OP No.2 is liable to pay the vehicle damages as per the estimate to the tune of Rs.79,159/-. Here, the burden is on OP No.1 to say that if OP No.2 and Complainant is submitting true or false. But, OP No.1 was not present before the Forum after the notice was duly served on him. Ongoing through the records on file and as per the narration of the Complaint, C-5 on 03.11.2012 OP No.2 issued a letter to the Complainant stating that:

          “On perusal of the said documents and the investigations in the matter, it is observed that you have availed 20% NCB in our policy at the time of renewal from Reliance General Insurance Company Ltd. against previous policy of M/s ICICI Lombard General Insurance Co. Ltd. (previous Insurer Co.).”

Again OP No.2 issued a letter on 17.04.2015 demanding to pay the NCB amount which has been taken by the Complainant i.e.Rs.3,279/- as per the notice is as under:

                 “This is with reference to your motor vehicle policy, bearing policy number 140255231000512 with Reliance General Insurance. In this connection, kindly refer to the undertaking-cum-Declaration Letter dated: 30 Mar 2015 submitted by you. As per

the said letter, you have declared that no claim has arisen in the expiring policy period. Based on your Declaration, we have provided you with 20% discount on your premium as No Claim Bonus.   

               We have now received an intimation from IIB/your previous insurer IFFCO TOKIO General Insurance Company Ltd., wherein it has been stated that there was a/were claim (s) registered against your policy with them. In this event, since the declaration given is found to be incorrect, any and all coverage under Section 1 of the policy from the date of commencement of the Policy stands forfeited. Therefore, the said NCB entitlement has become invalid and you are entitled to pay us additional premium applicable on the policy.

               To reinstate the benefits under section 1 of the said Policy, we request you to send us a cheque/DD of Rs.3,279/- drawn on Reliance General Insurance Company Ltd to us within 15 days from the date of this letter, failing which, the policy is liable to be cancelled ab-initio.”

          As per the correspondence made between the OP and the Complainant, it is clear that Complainant received the letter from OP and same had not denied by the Complainant. It is also clear that Complainant also had neglected while paying the insurance to his vehicle. It is very much necessary to go through the records, before and after obtained policy.

          11.    Moreover it cannot be denied that the complainant had paid the premium amount to the insurance, the complainant well aware that he had obtained an OD claim in his previous insurance policy and also the Op No.1 aware of it, Op No.1 had acted as an insurance agent in all the policies issued in favour of the complainant’s vehicle, Op No.1 being the showroom for the vehicle purchased by the complainant by a good faith on him knowingly Op No.1 had made a big error while receiving the premium amount from the complainant,

misrepresenting the fact that the complainant had obtained OD claim previous policy and availed a no claim bonus to the complainant which had been blindly accepted by the complainant.

          12.    Op No.2 being a reputed insurance company they should be more conscious while appointing their agent to collect the insurance policy the agents should act genuinely between the customer and complainant where in this case the Op’s and the complainant have made mistakes and negligent in their part of act, complainant and Op No.1 have misrepresented the fact and obtained NCB (No Claim Bonus) for which the complainant was not eligible and Op No.2 have to verify and go through the proposal forms before issuing the insurance policy and also the company should appoint a genuine agents, Op No.2 is irresponsible in verifying the records while issuing the policy. Hence, a complainant is also responsible for this act; hence claim has to be allowed in non-standard bases. i.e. 60% amount of estimated cost should be paid by Op No.1 & 2. Estimation issued by Op No.1 for Rs.79,159/- in which 40% of the amount being Rs.31,600/- should be paid by the Op No.1. 20% of the estimation amount being Rs.15,800 should be paid by the Op No.2 as such we answer point no.1 & 2 in partly affirmative.      

          13.    POINT NO.3:  On the observation of the above points and discussion, we answer Point No.3 as follows:

-:O R D E R:-

1. This Complaint is partially allowed.
2. Op No.1 is directed to pay an amount of Rs.31,600/- (Thirty One Thousand and Six Hundred)to the Complainant towards the estimated amount of the vehicle.  
3. Op No.2 is directed to pay an amount of Rs.15,800/- (Fifteen Thousand and Eight Hundred)to the Complainant towards the estimated amount of the vehicle. 
4. The Complainant has to bear the remaining cost for the repair of the vehicle.
5. Further Op’s are directed to comply this order within 30 days from the receipt of this order failing which Op have to pay an interest @ 9% per annum till realization, further Op no.2 is directed to repair the vehicle as per his estimation only and file a report of the same. 
6. No orders on cost.   
7. Send a copy of this Order to both parties free of cost.