DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.103 of 22-01-2014

Decided on 23-05-2014

M/s Bir Bhola Carrier, Malout Road, Near Ambuja Factory, Bathinda, through its Partner Sukhpaljeet Singh Walia.

........Complainant

Versus

The New India Assurance Company Limited, Divisional Office, The Mall, Bathinda, through its Divisional Manager.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Naresh Garg, counsel for the complainant.

For Opposite party: Sh.J.D Nayyar, counsel for the opposite party.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is owner of vehicle bearing No.PB-03X-9793 and the same was previously hypothecated with ICICI Bank Ltd. The abovesaid vehicle was comprehensively insured (Package Insurance) with the opposite party vide insurance certificate No.36060031110100002473 w.e.f. 17.1.2012 to 16.1.2013 and again renewed vide insurance certificate No.36060131120100005082 w.e.f. 17.1.2013 to 16.1.2014. At the time of issuing of the new insurance certificate No.36060131120100005082 dated 11.1.2014 w.e.f. 17.1.2013 to 16.1.2014, the official of the opposite party issued as new insurance not as a renewal of insurance certificate No.36060031110100002473 dated 13.1.2012 w.e.f. 17.1.2012 to 16.1.2013 as if he renewed the policy with the previous policy number, the computer itself does not renew the same with NCB as the total data of the previous policy mismatch with the new data like claiming of NCB etc. The complainant further alleged that due to own fault of the official of the opposite party, he feeded in the computer as New Insurance, the NCB generated with the mind of the official of the opposite party. At the time of issuing of the abovesaid insurance certificate the opposite party obtained the signatures of the complainant on the blank proposal form. On 3.7.2013, the abovesaid vehicle met with an accident while the same was driven by Harbhajan Singh, who was having valid driving licence. The complainant immediately lodged the claim with the opposite party, it appointed the surveyor, he inspected the vehicle and under the order of the opposite party through its surveyor the complainant shifted his vehicle at Moga for its repair. The complainant spent the amount of Rs.1,75,000/- on the repair of the truck and crain charges etc. and total repair carried under the supervision and instructions of the surveyor of the opposite party. The complainant received the letter dated 30.12.2013 vide which the opposite party rejected his claim on the ground that he earned NCB (No Claim Bonus), whereas in the previous policy there was the 'claim'. The letter dated 30.12.2013 is without any basis. The insurance is continuous insurance and the previous insurance dated 17.1.2012 to 16.1.2013 has been issued by the same officer and company and it was in the knowledge of the opposite party. The claim in the previous policy was duly in the knowledge of the opposite party but it never demanded any extra payment as premium from the complainant since 17.1.2013 till accident i.e. 3.7.2013 and at the time of paying the claim the opposite party rejected the claim of Rs.1,75,000/- vide 'No Claim' letter dated 30.12.2013. Hence the complainant has filed the present complaint to seek the directions to the opposite party to pay him the claim alongwith cost and compensation.

2. The opposite party after appearing before this Forum has filed its written statement and pleaded that at the time of purchase of the policy in question the complainant has claimed NCB (No Claim Bonus) by suppressing the fact that he has received the claim against the previous policy. As the complainant has purchased the present policy by misrepresenting the facts and has also claimed claim regarding the previous policy as such NCB cannot be claimed by him as per the rules and regulations and terms and conditions of the policy. The opposite party further pleaded that the claim, if any, was payable subject to the rules and regulations and terms and conditions of the abovesaid policy that has been duly supplied to the complainant alongwith the abovesaid policy. It is the responsibility of the insured not to suppress the facts regarding the receipt of the claim with regard to the previous policy and not to take benefits of NCB in the fresh policy. The complainant has intentionally suppressed the fact regarding his having taken claim regarding the previous policy and has wrongly availed NCB. There is no fault on the part of the officials of the opposite party. The complainant has not spent any such amount of Rs.1,75,000/- on the repair of the truck or crain charges etc. The complainant has been duly informed that the claim cannot be paid to him as he has wrongly availed NCB by suppressing the fact regarding his having obtained the claim against the previous policy. The claim of the complainant has rightly been rejected vide letter dated 30.12.2013 as he has already availed NCB against the previous policy.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. Admitted facts of the parties are that the vehicle of the complainant bearing registration No.PB-03X-9793 was insured with the opposite party vide insurance certificate No.36060031110100002473 w.e.f. 17.1.2012 to 16.1.2013 and again renewed vide insurance certificate No.36060131120100005082 w.e.f. 17.1.2013 to 16.1.2014. The vehicle of the complainant met with an accident on dated 3.7.2013.

6. The disputed facts of the parties are that the claim of the complainant is not payable as at the time of seeking of the insurance certificate No.36060131120100005082 w.e.f. 17.1.2013 to 16.1.2014, the complainant has availed NCB (No Claim Bonus) and has not informed the insurance company at the time of seeking of the insurance certificate renewed that he has already availed the claim under the previous policy of the same vehicle.

7. The submission of the complainant is that the abovesaid vehicle was comprehensively insured with the opposite party vide insurance certificate No.36060031110100002473 w.e.f. 17.1.2012 to 16.1.2013 and again renewed vide insurance certificate No.36060131120100005082 w.e.f. 17.1.2013 to 16.1.2014. At the time of issuing of the new insurance certificate No.36060131120100005082 valid w.e.f. 17.1.2013 to 16.1.2014, the official of the opposite party issued as new insurance not as renewal of insurance certificate No.36060031110100002473 dated 13.1.2012 w.e.f. 17.1.2012 to 16.1.2013 as if he renewed the policy with the previous policy number, the computer itself does not renew the same with NCB as the total data of the previous policy mismatch with the new data like claiming of NCB etc. The complainant further submitted that due to the fault of the official of the opposite party, he feeded in the computer as New Insurance, the NCB generated with the mind of the official of the opposite party. At the time of issuing of the abovesaid insurance certificate the opposite party obtained the signatures of the complainant on the blank proposal form everytime as per regulation of IRDA under Regulation 4(1) of 2002 as the same is mandatory and without proposal form no insurance can be issued. The complainant signed on the blank proposal form before issuing of the relevant insurance in the year 2012 and 2013 as the insurance office and company was the same and it is the continuous insurance and each and every detail was in the possession of the opposite party and the complainant also told the opposite party orally that there was the claim in the previous insurance. The complainant further submitted that the claim in the previous policy was duly in the knowledge of the opposite party but it never demanded any extra payment as premium from the complainant since 17.1.2013 till accident i.e. 3.7.2013. To support his version the complainant has referred to various authorities.

8. On the other hand the submission of the opposite party is that at the time of purchase of the policy in question the complainant has claimed NCB (No Claim Bonus) by suppressing the fact that he has received the claim against the previous policy. As the complainant has purchased the present policy by misrepresenting the facts and has claimed 'claim' in the previous policy, thus he is not entitled for the insurance claim. The opposite party further submitted that it has not obtained the signatures of the complainant on any blank proposal form. The complainant has intentionally suppressed the fact regarding his having taken claim regarding the previous policy and has wrongly availed NCB in the fresh policy.

9. The opposite party has rejected the claim of the complainant vide Ex.C4. The relevant portion of Ex.C4 is reproduced hereunder:-

“With reference to above it is submitted with due regards that we were in receipt of survey report for the abovesaid loss from M/s G.S Associates, Surveyors and Loss Assessors, Bathinda. While processing this claim we observe that you have earned NCB (No Claim Bonus) @ 25% and the confirmation of this was still awaited from previous insurer. We send another letter to your previous insurer and they have confirmed that there were two claims reported under your previous policy and you were not entitled for any NCB. In our policy we have allowed you NCB @ 25% and this the violation of terms and conditions of the policy.

Keeping in view our good relations, the said claim was kept pending for discussions with higher authorities to find out some solution to settle this claim. But after all discussions, it has been decided that there is violations of terms and conditions of policy and as per GR-27 of Indian Motor tariff all the benefits under the policy respect of Section I of the policy stands forfeited and therefore, we have closed your file No Claim.”

The claim of the complainant has been rejected as per GR-27 of Indian Motor tariff. The relevant portion of GR-27 is reproduced hereunder:-

“d) The entitlement of NCB shall follow the fortune of the original insured and not the vehicle or the policy. In the event of transfer of interest in the policy from one insured to another, the entitlement of NCB for the new insured will be as per the transferee's eligibility following the transfer of interest.”

The complainant has concealed the fact that he has taken the claim under his previous policies, thus he was not entitled for the NCB @ 25%. The support can be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Tata AIG General Insurance Company Ltd. & Anr. Vs. Gulzari Singh in Revision Petition No.1255 of 2009, decided on 26.2.2010, wherein the Hon'ble National Commission has held in the last Para:-

“.....to pay an amount of Rs.97,960/- less the discount of Rs.1120/- given on account of 'No Claim Bonus' as the State Commission, thereby altered the terms of the policy which it had no authority to do. Clearly it had no such jurisdiction. In case of LIC of India Vs. Smt.G.M Channabasamma (1991) 1 SCC 357, the Hon'ble Supreme Court has held that a contract of 'insurance' is a contract of 'uberrima fides' and there must be complete good faith on the part of the assured. The assured thus is under a solemn obligation to make full disclosure of material fact which may be relevant for insurer to take into an account. Further in the case of General Assurance Society Ltd. Vs. Chandumull Jain & Anr. (1966) 3 SCR 500, the Hon'ble Apex Court has observed that 'the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves'. The direction to adjust the 'No Claim Bonus' against the amount of damage assessed passed by the State Commission, clearly violates this settled principle of law and therefore, cannot be sustained.”

On the very first instance the complainant has concealed the material fact regarding the 'claim', he has availed in his previous policies and he was not entitled for the NCB. It was the duty of the complainant to disclose it to the opposite party while renewing his insurance policy for the vehicle in question, but he has failed to disclose it, which is violation of the policy terms and conditions and GR-27. Moreover the premium amount is paid less, so the complainant is not entitled for any claim.

10. Therefore in view of what has been discussed above there is no deficiency in service on the part of the opposite party. Thus this complaint fails and is hereby dismissed without any order as to cost.

11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

23-05-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member