Haryana

Ambala

CC/119/2018

Nishant Kumar Verma - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

25 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                          Complaint case No.:  119 of 2018.

                                                          Date of Institution         :  05.04.2018.

                                                          Date of decision   :  25.07.2019.

 

Nishant Kumar Verma, age 27 years, son of Shri Satish Kumar Verma, resident of Flat No.B-9, I.O.C. Colony, Ambala Cantt. Now resident of House No.1475, Sector-10, HUDA, Ambala City.

          ……. Complainant.

                                                       Versus

 

1. The New India Assurance Company Limited, N-Block, Connaught Circus, (310300) Bombay Life Building, N-34, Connaught Circus, New Delhi, Delhi (Pin 110001) through its Managing Director/Chairman/Incharge/Proprietor.
2. The New India Assurance Company Limited, Civil Line, Arya Chowk, Above OBC Bank, Ambala City through its Senior Branch Manager.

 

               ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Yogesh Sehgal, Advocate, counsel for complainant.

Shri Sukaam Gupta, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.4,30,960/- alongwith interest.
2. To pay Rs.60,000/- as compensation.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

 

Brief facts of the case are that the complainant purchased a car (LMV) Ford Ecosport bearing Chassis No.MAJAXXMRKAER43437, Engine NO.ER43437 from Kanav Motors Pvt. Ltd., Karnal having Registration No.HR-01AK-8908. He got insured the said car from the OP vide Policy No.31030031160100088560 for the period from 08.01.2017 to 07.01.2018 by paying premium amount of Rs.10,257/-. On 24.02.2017, he went to Dharampur, Himachal Pradesh in the said car. In the morning of 25.02.2017, he started his journey by driving the car at a moderate speed and when reached in front of HMT Officer Colony, near Pinjore, Distt. Panchkula, then suddenly a Nilgai (blue cow- Boselaphus Trafocamelus) came in front of his car. He turned the car towards left side to save that Nilgai and applied breaks, due to this, the balance of the car became uncontrolled and fell in the pits and it badly damaged. He informed the police and a DDR No.8 dated 25.02.2017 was registered. He also informed the OPs about the said accident and lodged the claim vide letter dated 25.02.2017. As per instruction of the employees of the OPs, he took the damaged car for its repair to Kanav Motors Pvt. Ltd., Ambala, it demanded an amount of Rs.4,30,926/- to repair the car, but the OPs did not pay the said amount to Kanav Motors Pvt. Ltd., as such, Kanav Motors Pvt. Ltd. refused to give possession of the car to him. Lastly, he paid the said amount to Kanav Motors Pvt. Ltd. from his own pocket vide receipt No.FTARH01179RE dated 03.08.2017 through cheque vide reference No.RRTAG0206100. He received a letter dated 11.10.2017 from the OP No.2, informing him that his claim had been repudiated by the competent authority on the ground that he had availed No Claim Bonus @25% instead of 20%, as per the confirmation of No Claim Bonus received from the previous insurer i.e. The National Insurance Co. Ltd. The OPs had not given any opportunity to the complainant prior to rejecting the claim and under compulsion, the complainant had paid Rs.4,30,926/-, the cost of the repair to the Kanav Motors Pvt. Ltd. If the OPs were of the apprehension that the premium had been paid less, then it could have either demanded the same or cancelled the policy, but nothing was done by the OPs. The OPs have wrongly repudiated the claim of the complainant on this flimsy ground, which amounts to deficiency in service. Hence, the present complaint.

2.                 Upon notice, OPs appeared through counsel and filed written version, raising preliminary objections that there is no deficiency on the part of OPs in rendering the services to the complainant. On merits, it is stated that after receiving the intimation regarding the accident from the complainant, the OPs immediately deputed the surveyor namely Er. H.K. Garg to assess the loss, who assessed the loss to the tune of Rs.2,85,648/- in accordance to the terms & conditions of the insurance policy and submitted his independent survey report on 24.07.2017. After receiving the survey report, the OPs while scrutinizing and processing the claim of the complainant, were shocked to know that complainant had availed 25% of the cat the time of getting the policy renewed. It is further stated that said policy was renewed for the first time by the complainant himself online through Policy Bazaar and while renewing the same, complainant intentionally and wilfully mentioned 25% as No Claim Bonus (NCB) in the said column, whereas, being the first renewal, he was entitled for 20% of No Claim Bonus (NCB), as per terms & conditions of the insurance policy, which are as under:-

No Claim Bonus

          The insured is entitled for a No Claim Bonus (NCB) on the Own Damage section of the policy, if no claim is made or pending during the preceding year (s), as pr the following table:-

Period of Insurance	% of NCB on OD Premium
The preceding year	20%
Preceding Two consecutive years	25%
Preceding Three consecutive years	35%
Preceding Four consecutive years	45%
Preceding Five consecutive years	50%

 

                   Although, the insurer granting “No Claim Bonus” has right to written to the previous insurer within 21 days after grating the cover note, yet complainant cannot take any benefit of the same, because, in this case, complainant had fraudulently mis-represented the facts. Principle of equity is that who seeks equity must do the equity, but complainant has not done so, rather he has tried to cheat and mislead the insurance company and claimed no claim bonus at a higher rate than due. Even if this Hon’ble Forum comes to the conclusion that the complaint needs to be allowed, in that case, liability of OPs is only to the tune of Rs.2,76,648/-, being the amount assessed by the surveyor, as the policy in question is a private car package policy not private car enhanced policy and in package policy, depreciation is applied according to the age of the vehicle and prayer has been made for dismissal of the present complaint.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Shri Kamala Kishore Sachdeva, Sr. Divisional Manager of the New India Assurance Co. Ltd, Ambala Cantt. as Annexure OP/A alongwith documents Annexure OP1 to OP5 and closed the evidence on behalf of OP.

4.                We have heard the learned counsel of the parties and carefully gone through the case file and the case laws referred by the ld. counsel for the parties.

5.                 The learned counsel for the complainant has argued that vide letter dated 11.10.2017 (Annexure C-5), the OPs have wrongly repudiated genuine case of the complainant on the ground that complainant was entitled for No Claim Bonus @20%, but he had availed @25%, therefore, they are not only liable to pay the claim amount but also liable to pay the compensation to the complainant for the mental agony and physical harassment suffered by him. In support of his contention, the ld. counsel for the complainant has placed reliance on the cases, titled as United India Insurance Company Ltd. Vs. M/s Jindal Poly Buttons Ltd., Revision Petition No.2920 of 2015, date of decision 18.04.2017 (NC); National Insurance Company Ltd. Vs. Harpreet Singh, Revision Petition No.3216 of 2012, date of decision 08.02.2016 and Meena Kanwar d/o Rajendra Singh Vs. National Insurance Co. Ltd. & Others, First Appeal No.541 of 2014, date of decision 16.09.2015 (NC).  

6.                On the contrary, the learned counsel for OPs has argued that the complainant had availed no claim bonus @25%, whereas, being the first renewal he was entitled to get the no claim bonus @20% as per terms and conditions of the policy. Since the complainant has purchased the policy in question by misrepresentation and has violated terms and conditions of the policy, therefore, he is not entitled to get any benefit under the policy in question. In support of his contention, the ld. counsel for the complainant has placed reliance on the case, titled as Shri Inder Pal Rana Vs. National Insurance Co. Ltd., Revision Petition No.4470 of 2014, date of decision 02.01.2015 (NC).

7.                Admittedly, the car of the complainant having registration No.HR-01AK-8908 was duly insured with the OPs for the period from 08.01.2017 to 07.01.2018 vide policy document Annexure C-6/OP-1. The plea of the OPs is that the complainant was in fact entitled for No Claim Bonus @ 20%, but he had wrongly availed the No Claim Bonus @25% at the time of taking the policy in question, therefore, as per terms & conditions of the policy, he is not entitled to get any claim amount. It may be stated here that according to Clause (f) of GR 27 of India Motor Tariff, which is extracted as under:

                   “(f)” in the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB while the insurer would have received from the previous insurer. Evidence of the insured’s NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.

                    Where the insured is unable to produce such evidence of NCB entitlement from the previous owner, the claimed NCB may be premised after obtaining from the insured a declaration as per the following wording:

                    I/We declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period. I/We undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the Policy will stand forfeited”.

                    Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the Policy issuing office of the previous insurer, by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry, failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days, after granting the cover will also constitute a breach of the Tariff.”                 

                   The insurer was also duty bound to write to the previous insurer within 21 days, after granting the cover for confirmation of the entitlement and rate of NCB. Since the policy had been issued by the OPs in respect of the vehicle in question in favour of complainant, it was their duty to obtain the information, as to whether, any claim had been obtained by the complainant in respect of the policy, of the previous year, within 21 days, but they failed to do so. Under these circumstances, the fault also lay, on the shoulder of the OPs, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff, thus, both the complainant and the OPs were at fault. As stated above, in these circumstances, by no stretch of imagination, it could be said that by repudiating the claim of the complainant, as a whole, especially when the OPs were also at fault, on account of contravention of Clause (f) of GR 27 of India Motor Tariff, they were deficient in rendering services to some extent.

8.                The next question, that falls for consideration, is, as to whether, there was breach of fundamental condition of the policy by the complainant. In our considered opinion, when both the complainant and the OPs were at fault, to the extent, referred to above, breach of condition of the policy, by claiming the NCB @25% instead of 20%, could neither be said to be fundamental nor germane to the incident. In United India Insurance Co. Ltd. Vs. Bhupinder Singh, III, 2013 CPJ 333 (NC), in which reliance was placed on National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008 CPJ, 1 (SC), wherein, the duly insured vehicle was stolen. The complainant wrongly claimed no claim bonus at the time of renewal of the policy. The claim of the complainant was repudiated by the insurance company, as a whole. In these circumstances, in India Insurance Co. Ltd. Vs. Bhupinder Singh (Supra), the Hon’ble National Consumer Disputes Redressal Commission has held that the breach of the condition was not germane to the theft, and hence, the claim was required to be settled on non-standard basis. The principle of law, laid down in the aforesaid cases is fully applicable to the facts of the instant case. The insurance company, therefore, was required to settle the claim of the complainant, on Non-Standard basis. By not settling the claim of the complainant, on non-standard basis, the OPs were deficient in rendering services. The surveyor vide report dated 22.07.2017 (Annexure OP-2) has assessed the net amount payable of Rs.2,75,648/-, after deduction of salvage of Rs.10,000/- from the total payable amount of Rs.2,85,648.00. The report of the surveyor is based on cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the surveyor. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. The complainant, is thus, held entitled for a sum of Rs.206736/- i.e. 75% of Rs.2,75,648/-, on non-standard basis. The complainant has also claimed compensation to the tune of Rs.60,000/- for mental agony and physical harassment suffered by him. It may be stated here that the claim of the complainant was repudiated on the ground that the complainant had wrongly claimed No Claim Bonus @25% instead of 20%. By taking more No Claim Bonus than the actually due, the complainant had committed mistake and thus, he is not entitled to get compensation on account of mental agony and physical harassment suffered by him.

9.                In view of the aforesaid discussion, we hereby partly allow the present complaint with no order as to costs and direct the OPs to pay Rs.2,06,736/-, i.e. 75% of the Rs.2,75,648/- on non-standard basis, to the complainant. The above said amount shall be paid by the OPs to the complainant within 30 days from the date of the receipt of the copy of this order, failing which, the said amount shall carry interest @ 9% per annum from the date of filing the complaint till its realization. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :25.07.2019.

 

 

 

          (Vinod Kumar Sharma)           (Ruby Sharma)               (Neena Sandhu)

              Member                                  Member                       President