Punjab

Moga

CC/15/63

Sukhpal Jit Singh - Complainant(s)

Versus

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

Sh.H.S.Lodhi

31 Dec 2015

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                      C.C. No. 63 of 2015

                                                                Instituted On: 07.08.2015

                                                  Decided On: 31.12.2015

 

Sukhpal Jit Singh aged 42 years s/o Sh.Rattan Singh, resident of House No.2325/6, Kartar Singh Nagar, Moga, Tehsil & District Moga.

Complainant 

Versus

 

1. The New India Assurance Co. Ltd., 7 Gulabi Bagh, G.T.Road, Moga, through its Divisional Manager.

2. Ajaib Singh Sembhi, Administration Officer (Development), The New India Assurance Co. Ltd., 7 Gulabi Bagh, G.T.Road, Moga.

 

Opposite Parties

 

 

Complaint under section 12 of the

Consumer Protection Act, 1986.

 

 

 

Coram:      Sh.S.S.Panesar, President

                   Smt.Bhupinder Kaur, Member

Present:      Sh.Hardeep Singh Lodhi, Advocate Cl. for complainant.

                    Sh.Ajay Gulati, Advocate Cl. for opposite parties.  

 

ORDER

(S.S.Panesar, President)

                  Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against The New India Assurance Co. Ltd., 7 Gulabi Bagh, G.T.Road, Moga, through its Divisional Manager and others (herein-after referred to as opposite parties) - directing them to reimburse Rs.1,12,328/- on account of repair & spare charges of the vehicle alongwith interest @ 18% p.a. on the abovesaid amount as well as to pay Rs.50,000/- on account of mental harassment and physical agony suffered by the complainant or any other relief which this Forum may deem fit and proper.

2.                Briefly stated, the facts of the complaint are that the complainant is the owner of a car Model Hyundai i20 suportz 1.4 DSL BS iv, Engine no.D4FCCU149342 and Chassis no.MALBB51RLCM443176. The abovesaid vehicle of the complainant was insured with opposite party no.1, vide policy no.36110031140300002398 for the period w.e.f 31.07.2014 to 30.07.2015 on payment of premium of Rs.11,501/-. Suddenly on 05.05.2015, the abovesaid car of the complainant met with an accident and the same got damaged in the process. Since the car was insured with opposite party no.1 and, with prior information to opposite party no.1, the complainant got toed away his car from the spot to Guru Nanak Maruti Service Station also known as Nanaksar Auto Mobile, G.T.Road, Moga for the purpose of its repair. Opposite party no.2 i.e. Ajaib Singh Sembhi got this very vehicle insured from opposite party no.1 under Enhanced Cover Policy i.e. Bumper to Bumper Policy and assured the complainant that not even a single penny will be charged from the complainant, in case of accident of the vehicle in question. A sum of Rs.1,12,328/- (Rs.97,328/- for spares + Rs.15,000/- on account of repair charges) were spent by the complainant on the repair of vehicle in question. During the period of repair, complainant lodged his claim with opposite party no.1 for bearing expenses of repair of his car, but opposite party no.1 refused to reimburse/pay the repair charges to the concerned service station i.e. Guru Nanak Maruti Service Centre by raising false and frivolous objections with regard to the claim of NCB. Opposite party no.2 had also fraudulently issued the abovesaid policy to the complainant without mentioning its proper model etc. therein. Opposite party no.2 had mentioned the Cubic Capacity of the car of the complainant as 1197 CC and also mentioned its Variant as 1.2 Sportz instead of 1396 Cubic Capacity and variant/sub model Sportz 1.4 DSL BS iv, which also shows malafide intention of opposite party no.2. Despite repeated requests and representations made by the complainant, opposite parties failed to make payment of repair/spare charges to the complainant. Complainant also got issued a legal notice dated 15.07.2015 upon the opposite parties, but to no effect. The service rendered by the opposite parties is deficient one. Hence, this complaint.

3.                Upon notice, opposite parties appeared through counsel and filed written reply contesting the same. They took up preliminary objections that the complaint is not maintainable. Further submitted that the alleged claim has already been repudiated on dated 27.07.2015, after due application of mind and as per the terms and conditions of the Insurance policy in question. The complainant has suppressed the fact regarding 'No Claim Bonus' as the complainant had already received claim from the previous insurance company i.e. ICICI Lombard qua the vehicle in question and the complainant had suppressed this fact and availed 20% discount as 'No Claim Bonus' from the Insurance Policy. As the complainant had already taken a claim from his previous insurer i.e. ICICI Lombard, therefore, the complainant was not entitled for 20% discount i.e. No Claim Bonus out of the premium, while purchasing the insurance policy in question. The complainant had fraudulently suppressed the fact with regard to having received insurance claim from the previous insurance company and deliberately did not disclose at the time of obtaining a new Insurance policy, therefore he is not entitled to the benefits under the policy. Further submitted that the complainant being a literate person has signed the proposal form in English and was fully aware about the terms and conditions of the policy and also made declaration that he has not concealed any material fact from the answering Insurance Company. The contract of 'Insurance' is a contract of 'Uberrima Fides' i.e. of utmost good faith and there must be complete good faith on the part of the insured. The insured is under a solemn obligation to make full discloser of material facts which may be relevant for the insurer to take into an account. Had the complainant disclosed the fact regarding obtaining the claim from previous insurer, it might be possible that the answering insurance company had not entered into the contract of insurance in question with the complainant on such rate of premium and terms and conditions. No deficient services have been rendered to the complainant.  On merits, the contents of all other paras have been denied and a prayer for the dismissal of the complaint has been made.

4.                In his evidence, the complainant Sukhpal Jit Singh appeared in witness box as his own witness and filed his duly sworn affidavit Ex.C-1 in support of his allegations made in the complaint. The complainant also produced on record photocopies of the documents Ex.C-2 to Ex.C-10 and closed his evidence.

5.                To rebut the evidence of the complainant, opposite parties tendered affidavit of Sh.Ashok Goyal, Divisional Manager Ex.OP1, 1/1 and copies of documents Ex.OP1, 2/1 to OP1, 2/8 and closed the evidence on behalf of opposite parties.

6.                We have heard learned counsel for both the parties and have also carefully gone through the record.

7.                On the basis of evidence on record, learned counsel for complainant has vehemently contended that it is an admitted fact that the complainant is the owner of Model Hyundai i20 suportz 1.4 DSL BS iv, Engine no.D4FCCU149342 and Chassis no.MALBB51RLCM443176. It is also an admitted fact that the complainant got the car in dispute insured from opposite party no.1, for the period 31.07.2014 to 30.07.2015 on payment of premium of Rs.11,501/-, copy of the insurance document accounts for Ex.C3. It is also not disputed that the car in dispute met with an accident on 05.05.2015 and the complainant had to incur expenditure of Rs.1,12,328/- on spares and repair charges. But, however, opposite party no.1 refused to reimburse the expenses in dispute by raising false and frivolous objections with regard to the claim of NCB. Despite repeated requests and representations made by the complainant, opposite parties failed to make the payment of spares and repair charges. The complainant also got issued legal notice dated 15.07.2015 to the opposite parties, copy of the legal notice accounts for Ex.C-8, while copies of the postal receipts account for Ex.C9 and Ex.10. It is the case of the complainant that services rendered by the opposite parties are deficient and complaint may be allowed and opposite parties may be directed to reimburse the amount of Rs.1,12,328/-, besides a sum of Rs.50,000/- on account of mental harassment and physical agony suffered by the complainant.

8.                On the other hand, learned counsel for the opposite parties has vehemently contended that the complainant is guilty of suppression of material facts, previously the car in dispute belonging to complainant was insured with ICICI Lombard General Insurance Co. Ltd. for the period w.e.f 31.07.2013 to 30.07.2014 vide insurance document, copy whereof is Ex.C6. The complainant had obtained a sum of Rs.5198/- as compensation from ICICI Lombard General Insurance Co. Ltd, document Ex.OP1, 2/5 bears witness to that fact. But, however, at the time of getting the insurance policy in dispute, he did not disclose the factum of getting insurance claim earlier. On that account, the complainant received 20% NCB from New India Assurance Co. Ltd . under the policy for the period 31.07.2014 to 30.07.2015, copy whereof is Ex.OP1, 2/8. This amounts to suppression of material facts from the insurer, which disentitles the complainant from claiming the insurance claim in dispute. It is further contended that there is no deficiency in service on the part of the opposite parties and it is, therefore, contended that instant complaint may be dismissed being false and frivolous.

9.                We have given thoughtful consideration to rival contentions.

10.              From the perusal of the evidence on record, it becomes evident that complainant has obtained claim on account of accident regarding the insurance policy for the period 31.07.2013 to 30.07.2014, copy whereof is Ex.OP1, 2/2 on record. It is also proved on record that the complainant did not disclose that fact to the insurer at the time of getting the current insurance policy. It is also proved from the plain reading of the insurance policy in dispute that the complainant obtained NCB to the tune of 20% on the current insurance policy on the plea that no accident claim has been obtained previously. Now question arises as to whether non discloser of previous insurance claim is sufficient ground for rejecting the insurance claim? Answer to this query finds recorded in Inder Pal Rana, Petitioner Vs National Insurance Co. Ltd., Respondent - 2015 (2) CLT Page 107 (NC), wherein, it has been laid down that since the consent of Insurance Company to the Insurance Policy which is nothing, but a contract between the insurer and the insured was obtained by misrepresentation and fraud, the said contract is voidable at the option of the Insurance Company. Consequently, the insurer was justified in repudiating the claim on account of misrepresentation made by the petitioner. It has been further laid down in the judgement supra that in the case before us, by seeking a no claim bonus, the petitioner made an assertion that he had not taken any claim on the vehicle which he was seeking to insure with the National Insurance Company. Having taken a claim, he knew it very well that the aforesaid representation made by him was not correct. The aforesaid misrepresentation obviously was made with intent to deceive, so as to obtain a No Claim Bonus which National Insurance Company Ltd. would not have allowed, had the petitioner disclosed that he had already taken a claim against the aforesaid insurance policy from ICICI Lombard General Insurance Co. Ltd. Facts of the case in hand quite similar to the judgement supra and the same are applicable to the facts of the present case on all its fours.

                   Further reliance can be had on Tata AIG General Insurance Company Ltd. & another, Petitioners Vs Gulzari Singh, Respondent- 2010(2) CPJ (NC) 272, wherein it has been laid down that thus the attempt not to disclose details of the claim obtained from the previous Insurance Company is clearly visible. When this is to be considered against the declaration given that if at any stage the statement contained in the application form are found to be untrue and inaccurate all the benefits under the policy will sand forfeited, it cannot but be held that the respondent/complainant would not be entitled to the benefit under the policy.

11.              Thus, taking the case from any angle, it becomes amply clear that the complainant is guilty of suppression of material facts from the insurer and he has not approached this Forum with clean hands. Since the complainant had obtained the NCB to the tune of 20% despite having knowledge that he had already obtained the claim on account of repair/spares expenses qua the vehicle in dispute from the previous insurer, which amounts to fraud and misrepresentations on his part. Therefore, his claim in dispute has rightly been repudiated by the opposite parties. Consequently, the instant complaint fails and same is ordered to be dismissed accordingly. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

 

 

                   (Bhupinder Kaur)                     (S.S. Panesar)

                      Member                                    President

 

Announced in Open Forum.

Dated:31.12.2015.