Chandigarh

DF-II

CC/486/2018

Gurpreet Kaur - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Mashwinder Singh Adv.

26 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	486 of 2018
Date  of  Institution	:	28.08.2018
Date   of   Decision	:	26.07.2019

 

 

 

 

Gurpreet Kaur, R/o H.No.627, Phase-1, SAS Nagar, Mohali.

                                         

             ……..Complainant

 

Versus

 

1]  The Oriental Insurance Company Limited, Service Centre (Chandigarh RO), SCO No.109-111, Sector 17-D, Chandigarh 160017 through its Manager.

 

2]  The Oriental Insurance Company Limited, SCO No.20, Phase-1, SAS Nagar, Mohali 160055

         2^nd Address

The Oriental Insurance Company Limited, Registered Office, Oriental House P.B.No.7037, A25/27, Asaf Ali Road, New Delhi 110002 through its Managing Director/Chairman.

 

3]  M.P.Singh, Agent, Oriental Insurance Company Limited, House No.HL-117, Phase-2, SAS Nagar, Mohali.

 

4]  Saluja Motors, Showroom No.52, Industrial Area, Phase-1, Chandigarh through its Managing Director/Chairman.  

 

………. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN        PRESIDENT

SMT.PRITI MALHOTRA    MEMBER

         SH.RAVINDER SINGH     MEMBER

 

 

Argued By:       Sh.Mashwinder Singh, Adv. for complainant.

                Sh.Ram Avtar, Adv. for OPs No.1 & 2.

                None for Opposite Party No.3.

                Sh.Ankur Bali, Adv. for OP No.4.

 

 

PER PRITI MALHOTRA, MEMBER

 

                                Briefly, the case of the complainant is that her Car bearing Regd. No.PB-65-AFORESAID-4604, was duly insured with OPs No.1 & 2 for the period from 21.2.2017 to 20.2.2018 (Ann.C-7).  It is averred that on 20.2.2018 when the complainant was driving the said car through Airport Road, Mohali, near TDI, she applied sudden brakes on seeing a stray cattle approaching towards her, as a result, the vehicle skidded and jumped over the footpath, causing damage to front portion and rear right side door of the car in question.  The vehicle was taken to Saluja Ford, authorised dealer for repair and the insurer was also intimated about the loss.  The Surveyor Sh.Rajesh Khanna appointed by OP Insurance Company inspected the damaged vehicle at the workshop.  The complainant also deposited another amount of Rs.2933/- on 20.2.2018 towards ‘No Claim Bonus’ amount in addition to Rs.12,000/- earlier paid as insurance/premium amount. However, the complainant was shocked to receive letter dated 27.3.2018 of OP Insurance Company intimating that she has given wrong declaration about no claim bonus, whereas she had availed the claim during previous policy from previous insurer. It is stated that the complainant had not filled the proposal form and the agent filled it at his own.   It is submitted that Saluja Motors had prepared repair estimate of Rs.1,18,145/-, but when the complainant came to know about rejection of her claim by the OP Insurance Company, she got the car repaired by replacing only most necessary parts and paid an amount of Rs.37,866/- for repair of accidental vehicle. It is also submitted that the complainant could not get the car repaired properly as per the repair estimate because of wrong rejection of claim by the OP Insurance Company.  Hence, this complaint has been filed alleging the said repudiation of claim as illegal and a deficiency in service on the part of Opposite Parties.

 

2]       The OPs No.1 & 2 have filed joint reply and while admitting the factual matrix of the case, stated that the complainant while submitting proposal form, has concealed the fact of her having already availed a claim from previous insurer i.e. Iffco Tokyo General Insurance Company Ltd. and as such wrongly took benefit of ‘NO Claim Bonus’ while getting the policy renewed by answering OP's.  It is stated that the complainant to get benefit of 20% NCB did not disclose about the earlier claim lodged with previous insurer and therefore, the claim was not payable and it has rightly been repudiated.  It is submitted that on receipt of intimation of loss, Sh.Rajesh Khanna, Surveyor & Loss Assessor was deputed for assessment of the loss, who visited Saluja Motors Repairs Workshop and after inspection of the damaged vehicle, the net loss of Rs.31,445/- was assessed and submitted his report dated 2.3.2018 (Ann.R-9). It is also submitted that the complainant was not entitled for any claim due to non-disclosure of the fact in the proposal form and has taken benefit of ‘No Claim Bonus’ while renewal of the insurance policy. Pleading no deficiency in service and denying all other allegations, the OPs No.1 & 2 have prayed for dismissal of the complaint.

         The Opposite Party No.3 has filed short reply stating that the complainant had not disclosed at the time of renewal of the policy that she had already taken insurance claim benefit during previous policy, otherwise she would not have entitled to get NCB.  It is stated that the difference of premium is payable by the complainant if short premium is charged inadvertently. Other allegations have been denied for want of knowledge and it is prayed that the complaint be dismissed.   

         The Opposite Party No.4/Saluja Motors has also filed reply stating that the vehicle in question was repaired, as per instruction of complainant, to her entire satisfaction. It is stated that answering Opposite Party has no concern with the repudiation of claim of complainant as being done by the insurance company.  Other allegations have been denied being not related to and it is prayed that the complaint be dismissed qua Opposite Party No.4.

 

4]      Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the entire record.

 

6]       Admittedly, the car of the complainant i.e. Ford Figo Aspire bearing Regd. No.PB-65-AF-4604 was duly insured with OPs No.1 & 2 for the period 21.2.2017 to 20.2.2018.  It is undisputed that the said car got damaged on 20.2.2018 when complainant applied sudden brakes on seeing a stray cattle approaching towards her while going through Airport Road, Mohali, near TDI, as a result, the vehicle skidded & jumped over the footpath, causing damage to front portion and rear right side door of the car in question.  It is also undisputed that Surveyor Sh.Rajesh Khanna, as appointed by OP Insurance Company inspected the damaged vehicle at the workshop (M/S Saluja Motors) and assessed the loss. Thereafter, the complainant lodged a claim in respect of the damaged vehicle, which was rejected by the Opposite Party vide letter dated 27.3.2018 followed by letter dated 8.5.2018 on account of alleged misrepresentation of facts as complainant wrongly availed NCB of 20% from the OP Insurance Company availing the policy in question.  

 

7]          We feel that the objection raised by the Opposite Parties No.1 & 2 that the Complainant is guilty of concealment of facts qua NCB does not have any merit for the reasons recorded hereinafter.

 

8]       The plea of the complainant is that she has not availed NCB by misrepresentation from Opposite Parties No.1 & 2 as they never obtained declaration from her regarding the claim previously claimed by her from earlier insurance company. On the other hand, Opposite Parties No.1 & 2 have failed to rebut this contention of the complainant by way of producing on record any cogent evidence wherein the complainant had given any wrong declaration on the date of signing of declaration regarding claim previously claimed by her from earlier Insurance Company. Hence, in absence of any cogent evidence, the contention of Opposite Parties No.1 & 2 that the complainant obtained NCB from them by misrepresentation does not have any merit and the same is rejected. Even otherwise, it is the duty fastened upon the Opposite Parties No.1 & 2 to verify about the entitlement of the NCB to the Complainant; even at the time of issuing the insurance policy especially when the policy was being renewed from them.

 

9]       Record reveals that the Policy coverage continued running from 21.2.2017 to 20.2.2018  and the accident took place on 20.2.2018 i.e. on the last day of the currency of the present policy. It has been observed that during this period, Opposite Parties No.1 & 2, till the date of loss/damage i.e. till last day, neither enquired from the previous insurance company about the entitlement of the Complainant to get NCB, if any, nor demanded the difference of NCB from the Complainant, nor cancelled the insurance policy on any such ground. Furthermore, Opposite Parties No.1 & 2 have failed to prove on record that they had followed the procedure enshrined in Clause (f) of GR 27 of India Motor Tariff, which is reproduced as below:-

“(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 which the insured 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 insurer, the claimed NCB may be permitted 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 (copy of the policy enclosed). I/We further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section I 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.”

 

10]      It is evident from the afore-extracted Clause (f) of G.R.27 of India Motor Tariff that 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.  In the present case, the Opposite Parties No.1 & 2 also committed breach of the tariff as referred above as it was their duty to obtain the information, as to whether, any claim had been obtained by the complainant, in respect of the previous Policy of the previous year, within 21 days, but they failed to do so. Under these circumstances, the fault, if any, lies with Opposite Parties No.1 & 2, in not confirming about the factum, within the period stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff.

11]      We also put reliance on the judgment of Hon’ble State Consumer Disputes Redressal Commission, UT., Chandigarh passed in Appeal No.24 of 2017 – United India Insurance Company Ltd. & Anr. Vs. Tek Chand Garg & Anr., decided on 29.3.2017, wherein an identical issue, as involved in the present case, has been dealt with in detail. 

12]      Further, the Report of the Surveyor and Loss Assessor (Ann.R-8), is based on the cogent and convincing material and data. No evidence has been produced on the record, to rebut the report of the Surveyor and Loss Assessor. It is, no doubt, true that the report of the Surveyor is neither binding, on the parties, nor the Consumer Fora, yet it being a very significant document, cannot be discarded lightly.  However, the Surveyor and Loss Assessor vide report dated 2.3.2018 (Ann.R-9) assessed the loss to the tune of Rs.31,415/- on Repair Basis.

 

13]      In view of the above discussion & findings, as discussed in the preceding paragraphs, we are of the opinion that the OPs No.1 & 2 have illegally & wrongly rejected the genuine claim of the complainant, which amounts to gross deficiency in service on their part. Therefore, the present complainant is allowed against Opposite Parties NO.1 & 2 with following directions. 

a]  To pay an amount of Rs.37,866/- to the complainant being the repair cost incurred by her vide bill dated 20.2.2018 (Ann.C-23);

b)  To pay an amount of Rs.15,000/- as compensation on account of deficient services.

 

c)  To pay litigation cost of Rs.8000/- to the complainant.

 

         This order shall be complied with by the Opposite Parties No.1 & 2 within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional compensatory cost of Rs.20,000/- part from the above relief.

 

14]      The complaint qua OPs No.3 & 4 stands dismissed.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

26^th July, 2019                       

                                                                             Sd/-             (RANJAN DEWAN)

PRESIDENT

         

 

Sd/-

                                                                    (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER