Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that that in the year 2015 he was the owner of the vehicle bearing registration no.PB-29E-9283 and the said vehicle was insured from opposite party no.1 vide insurance policy no.2012843115P 181531605 for the period 2015 to 2016. Thereafter in the month of June, 2015, the complainant transferred his abovementioned insured vehicle in the name of Manjinder Singh son of Ajaib Singh and also informed opposite party no.1 about such sale. After the sale of said vehicle, complainant requested to opposite party no.1 to issue him the NCB Certificate of the abovementioned insured vehicle so that he could avail the benefits in some future transaction-cum-insurance. Thereafter, as per the request of complainant, opposite party no.1 issued him the NCB certificate dated 21.12.2015 which is available within 3 years from 13.04.2015. Thereafter, in the month of August 2016, the complainant purchased a new vehicle bearing registration no.PB-29X-8883 having Engine no.10589 and Chassis no.09813 and in order to avail the benefits of his earlier above mentioned insurance, he submitted the NCB certificate dated 21.12.2015 to opposite party no.2 which was issued by opposite party no.1 in favour of complainant with regard to the fact that complainant is entitled to 50% bonus. Thereafter the complainant insured his vehicle from opposite party no.2 vide insurance policy no.401700/31/16/6300000929 w.e.f the period 31.08.2016 to 30.08.2017 and also paid the consideration amount to opposite party no.2. Unfortunately on 09.05.2017 the vehicle of the complainant met with an accident and due to which insured vehicle of the complainant got damaged and complainant informed the opposite party no.2 about such incident and submitted his claim with them. Opposite party no.2 appointed surveyor to verify the loss caused to the insured vehicle and on 10.05.2017 the said surveyor visited the spot and verified about loss and charged Rs.3,350/- from the complainant on account of his fee and also issued the receipt to complainant. Thereafter, the complainant got his vehicle repaired from Hemkunt Engineering Works and Krishna Auto Sales and said company Hemkunt Engineering Works charged Rs.25,300/- on 15.10.2017 from the Complainant on account of denting and painting of the vehicle in question. Similarly, Krishna Auto Sales vide its invoice no.596 of 2017/18 dated 31.05.2017 informed the complainant as well as opposite party no.2 that the total loss-cum-damage caused to insured vehicle comes to Rs.8,46,698/- including cost of repair of said vehicle and also informed that the said payment is due against them, but opposite party no.2 did not pay any amount to the said agency and then in order to release his vehicle from said agency, the complainant has to pay whole amount under protest. The Complainant further alleges that thereafter, Opposite Party No.2 informed the complainant that NCB certificate dated 21.12.2015 issued by the opposite party no.1 in favour of the complainant is related to policy of year 2014 and also informed that to get his claim, the complainant has to submit NCB certificate for the policy year 2015 and thereafter, the complainant visited the office of opposite party no.1 and disclosed whole facts to them. Then, on 05.09.2017 and 07.09.2017, opposite party no.1 issued the NCB certificates for the insurance policy of year 2015 in favour of the complainant. The complainant submitted the same in the office of opposite party no.2 as per their demand. But to the surprise of the complainant, the claim of the Complainant has been declined by Opposite Party No.2 on the ground that opposite party no.1 had not verified his NCB Certificate and all the certificates had been issued wrongly due to system error of opposite party no.1. However, the complainant never claimed any amount with regard to loss of his vehicle during the policy period with opposite party no.1. The letter dated 30.10.2017 had been sent by opposite party no.2 in connivance with opposite party no.1 unnecessarily, unjustly, illegally and without any justified reason. The complainant had not made any misrepresentation and had not concealed any fact from opposite party. The claim of the complainant was rejected falsely. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Parties, the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- To direct Opposite Party No.2 to pay the claim of Rs.8,97,298/- alongwith interest @ 12% per annum to the complainant from the date of filing of present complaint till realization, under the policy no.401700/31/16/6300000929 with regard to loss caused to his insured vehicle bearing registration no.PB-29X-8883.
- Further Opposite Party No.1 may be directed to pay Rs.1,00,000/- as compensation on account of damage and harassment caused to the Complainant due to the wrongful denial of the verification of his NCB and also to pay damages to he Complainant to the tune of Rs. 50,000/- as damages on account of mental tension and harassment and Rs.5,500/- as litigation expenses to the complainant.
- Or any other relief may kindly be granted to complainant as this Commission may deem fit and proper.
2. Upon notice, opposite party no.1 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable. The complainant has got no locus-standi and that no deficiency in service has been attributed to the opposite parties and from the allegations in the complaint no deficiency in service is made out and hence the complaint is absolutely false and frivolous. Opposite Party No.1 further alleges that the complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court and as such this Commission has got not jurisdiction to entertain, try and dispose off the complaint; that the complainant has not approached the Commission with clean hands, rather he has wilfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite parties. Regarding the issuance of NCB letter, it is submitted that the same were wrongly issued and email dated 15.09.2017 was sent as clarification regarding NCB confirmation vehicle no.PB-29E-9283. Therefore, the complainant has no case or claim or cause of action against opposite party no.1. Opposite party no.1 has been made party in the complaint wrongly and name of the opposite party no.1 is liable to be deleted from the array of parties. On merits, it is submitted that the said vehicle was not insured with the opposite party no.1 at the time of alleged accident. Therefore, opposite party no.1 is not liable to pay any claim or compensation to the complainant and the complaint is liable to be dismissed qua opposite party no.1. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. Opposite party no.2 filed written reply taking certain preliminary objections therein inter alia that the complaint being not maintainable, false, self contradictory, frivolous, vague and vexatious is liable to be dismissed with compensatory costs; that the complainant has not come with clean hands. He has not disclosed the true facts and suppressed the material information from the answering opposite party with regard to ‘No Claim Bonus' and as such has given wrong declaration at the time of purchasing insurance policy from the answering opposite party. The insurance is a contract of "Uberrima fides" and there must be complete good faith on the part of insured and the insured is under a solemn obligation to make full discloser of material facts which may be relevant for insurer to take into an account at the time of accepting the offer made by the person for purchase of insurance policy. In the present case, the complainant has managed to have insurance policy for his vehicle on the basis of misrepresentations made by him before issuance of the policy and even during the processing of claim in question. Accordingly as per terms and conditions of the insurance policy and under the provisions of Indian Contract Act, the claim in question has been resulted into "No Claim" after giving numerous opportunities to the complainant to give his explanations about such deliberate misrepresentations and wrong declarations which constitutes a "fraud" within the meaning of section 17 of Indian Contract Act. No deficient services have been rendered to the complainant as alleged in the complaint. The claim of the complainant was duly entertained, surveyed and investigated. The independent Surveyors were appointed to investigate and survey the extent and genuineness of alleged loss. During inquiries made by opposite party no.2 while processing the claim in question it has been found that the complainant has made a wrong declaration in the proposal form before issuance of the policy and during pendency/processing of the claim, the complainant has also produced wrong NCB Certificates with the opposite party no.2. The complainant had signed the proposal form in English and it cannot be said that the complainant is an illiterate person and he could not understand the technicalities of rules and regulations of insurance policy while signing the abovesaid proposal form. The complainant cannot claim or avail no claim bonus benefit from the opposite party no.2 simultaneously at one point of time without non freezing of ‘No Claim Bonus' with the previous insurer of the complainant. On merits, it is submitted that during inquiries qua such certificate, opposite party no.1 vide its e-mail dated 15.09.2017 addressed to opposite party no.2 has disclosed that "All the certificates (means NCB certificates) are issued wrongly due to system error. Moreover, captioned vehicle was transferred on 15.07.2015 in the name of new insured Mr. Manjinder Singh son of Ajaib Singh and previous insured did not request us to freeze his no claim bonus." The complainant on the basis of intentional misrepresentations wrong declaration and false NCB certificate has obtained an insurance policy from the opposite party no.2 which is not binding being a voidable contract between the parties and cannot be enforced upon opposite party no.2. It has been further submitted that after lodging the claim in question immediately the surveyor was appointed, the loss was assessed and after due application of mind the claim in question has been termed as no claim. It has been further submitted that the complainant knowingly produced wrong NCB certificates. Upon having receipt of information regarding issuance of wrong NCB certificates by opposite party no.1. The answering opposite party had requested the complainant to explain his position about the wrong declaration and wrong NCB certificates vide registered postal letters. The complainant in spite of receiving the said letters did not oblige the answering opposite party with any reply and finally on 30.10.2017, after giving many opportunities to the complainant, the claim in question was termed as no claim. All other allegations have been denied and a prayer for dismissal of the complaint with heavy costs has been made.
4. In order to prove his case, complainant tendered into evidence his affidavit Ex.C1 alongwith copy of NCB Ex.C2, copy of RC of insured vehicle Ex.C3, copy of authorisation certificate of NP Ex.C4, copy of e-receipt issued by Ministry of Road Transport & Highways Ex.C5, copy of permit Ex.C6 and Ex.C7, copy of policy Ex.C8, copy of driving licence Ex.C9, copy of estimate Ex.C10, copy of bill Ex.C11, copy of estimate Ex.C12, copy of receipt Ex.C13, copies of NCB Ex.C14 and Ex.C15, copy of repudiation letter Ex.C16, copy of Aadhaar card Ex.C17 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.R.N. Bansal, Divisional Manager, United Insurance Co. Ex.OP-1/1, copy of e-mail Ex.OP-1/2, copy of terms and conditions Ex.OP1/3. Whereas, Opposite party no.2 tendered into evidence the affidavit of Sh.Kamaljit Singh, Senior Divisional Manager, National Insurance Co. Ltd., Moga Ex.OP-2/1, copy of declaration for insurance Ex.OP2/2, copy of policy Ex.OP2/3, copy of survey report Ex.OP2/4 and Ex.OP2/5, copy of certificate of insurance Ex.OP2/6, copies of letters Ex.OP2/7 to Ex.OP2/15, copy of repudiation letter Ex.OP2/16, copy of agreement Ex.OP2/17 and closed the evidence.
6. We have heard the ld. counsel for the parties, perused the written arguments of the Complainant as well as of Opposite Party No.2 and have carefully gone through the evidence on record.
7. Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that in the year 2015 the Complainant got his vehicle bearing registration no.PB-29E-9283 insured from opposite party no.1 vide insurance policy no.2012843115P 181531605 for a period 2015-2016. Thereafter in the month of June 2015, the complainant transferred his above mention insured vehicle in the name of Manjinder Singh son of Ajaib Singh and also informed the opposite party no.1 about such sale. After the sale of said vehicle, complainant requested to the opposite party no.1 to issue him the NCB Certificate of the above mentioned insure vehicle so that he avail the benefits in some future transaction cum insurance. Thereafter as per the request of complainant, opposite party no.1 has issued the NCB certificate dated 21.12.2015 to him which is available within 3 years from 13.04.2015, copy of letter is Ex.C-2. Thereafter in August 2016 complainant purchased new vehicle bearing registration no.PB-29-X-8883 having Engine no.10589 and Chassis no.09813 and in order to avail the benefits of his earlier above mentioned insurance he submitted the NCB Certificate dated 21.12.2015 to the opposite party no.2 which was issued by the opposite party no.1 in favour of complainant with regard to fact that complaint is entitled to 50% bonus. Copy of RC and certificate are attached herewith and then complainant insured his said vehicle from the opposite party no.2 vide insurance policy no.401700/31/16/6300000929 for the period w.e.f.31.08.2016 to 30.08.2017 and also paid the consideration amount to opposite party no.2 and after receiving the consideration amount and above said NCB Certificate from the complainant opposite party no.2 insured the above said vehicle of complainant and issued the above mentioned insurance policy to the complainant. The registration certificate of the vehicle no.PB-29-X-8883 having Engine no.10589 and Chassis no.09813 is Ex.C3 and its national permit alongwith payment receipts are Ex.C-4 to Ex.C-7 respectively and the insurance policy issued by opposite party no.2 is Ex.C-8. The complainant also produced license of his driver as Ex.C-9 and also produced the Loss Estimate as Ex.C-10. Ld.counsel for the Complainant further contended that unfortunately on 09.05.2017 the above mentioned insured vehicle of the complainant met with an accident and due to such accident the insured vehicle of the complainant got damage and then complainant informed the opposite party no.2 about such incidence and submitted his claim with Opposite Party No.2. Thereafter opposite party no.2 appointed the Surveyor to verify about the lost caused to the insured vehicle and then on 10.05.2017 he visited at the spot and verify about such loss and also charged 3350/- from the complainant and his fees and in this regard he also issued the Receipt to the complainant. The receipt of payment dated 10.05.2017 tendered in evidence as Ex.C-11. Thereafter complainant got his vehicle repaired from Hemkunt Engineering Works and Krishna Auto Sales and said Hemkunt Engineering inform the complaint that on denting and panting of said vehicle Rs.25,300/- has been spend and then same has been paid by the complainant on 15.10.2017 and then Krishna Auto Sales vide its invoice no.596 of 2017/18 dated 31.05.2017 informed the complainant as well as the opposite party no.2 that the total loss cum damaged caused to said insured vehicle due to such accident is Rs.8,46,698/- including cost of repair of said vehicle and also informed that above said payment has been due against them but opposite party no.2 did not pay any amount to the said agency and then in order to get release his vehicle from said agency, the complainant has to pay whole of the said bill under protest, copies of invoice cum payment receipt Ex.C-12 and Ex.C-13. Thereafter opposite party no.2 informed the complainant that NCB Certificate dated 21.12.2015 which was issued by the opposite party no.1 in favour of complainant is relate to the policy of the year 2014 and also informed that to get the above mentioned claim, the complainant has to submit the NCB Certificate for the policy of the year 2015 and thereafter complainant visited at the office of opposite party no.1 and disclose whole facts to him and then opposite party no.1 on 05.09.2017 and 07.09.2017 issued the NCB Certificates for the insurance policy for the year 2015 in favour of complainant and thereafter complainant also submitted same in the office of opposite party no.2 as per demand made by the opposite party no.2, copies of ‘No Claim Bonus' issued by the opposite party no.1 dated 05.09.2017 and 07.09.2017 are Ex.C-14 and Ex.C-15. But the complainant was in shocked on 30.10.2017 when he received a letter from the office of opposite party no.2 informing the complainant that the opposite party no.1 has not verified his NCB Certificates and given the excuse that all the certificates have been issued wrongfully due to system error of opposite party no.1 and also informed that due to said reason the above mentioned claim of the complainant has been declined by opposite party no.2 vide letter dated 30.10.2017 Ex.C-16. It is pertinent to mention here that complainant never claimed any amount with regard to any loss caused to his vehicle during the period of insurance with opposite party no.1, but now opposite party no.1 with one pretext or the other harassed the complainant and giving false excuses to the complainant as well as opposite party no.2 about the issuance of NCB Certificates. The said letter dated 30.10.2017 has been sent by opposite party no.2 with the connivance of opposite party no.1 unnecessarily, unjustly, illegally and without any justified reason and just to delay and refuse the lawful claim of the complainant. It is pertinent to mention that complainant has not given any misrepresentation and concealed any fact from the opposite parties and due to negligence of the opposite parties the claim of the complainant has been falsely rejected. It is pertinent to mention here that under insurance contract it is the legal liability of the opposite party no.2 to pay the claim amount to the complainant, but the opposite party no.2 in connivance with opposite party no.1 without any justified reason refused to pay the same and willfully and intentionally breach the insurance policy. The Opposite parties no.1 and 2 vehemently argued that the NCB issued by the opposite party no.1 due to system error and he was not entitled to any claim and they also argued that complainant had furnished a false declaration for claiming that NCB and as such violated the terms and conditions of the insurance policy and as such the contract of insurance become voidable and they further argued that opposite parties were well within their rights to repudiate the claim of the complainant made under the voidable contract. The said arguments are nothing but against the provisions of GR-27 of Indian Motor Tariff. For proper appreciation of the matter the GR no.27 is reproduced as under: “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, the claimed NCB may be permitted after obtaining from the insured a declaration as per the following working:-
‘1/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 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 be stand forfeited.
’ Notwithstanding the above declaration the insurer allowing NCB will be obliged to write to the policy issuing office of the previous insurer by the recorded delivery calling of confirmation of the entitlement and rate of NCB for 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 previous insurer. Failure of the insurer granting NCB to write to the previous insurer within 21 days after granting the cover will also constitute breach of Tariff.’ From the above, it is clear that opposite party no.2 was bound to enquire from the previous insurance company i.e. opposite party no.1 within 21 days from the date of allowing the NCB, but they have failed to produce any evidence that they had enquired from the previous insurance company about the exact position within stipulated period of 21 days. Thus, the opposite parties have clearly violated GR-27 of the Indian Motor Tariff. They enquired about the policy only when the present claim was lodged by the complainant and even it is not proved that whether the insured/complainant was informed about the cancellation of the said policy and complainant was not even aware of this fact. Since no claim was claimed by him during the previous year, the declaration given by him at the time of purchased of present policy cannot be said to be willful concealment of facts. The opposite parties were required to confirm the status of the NCB within stipulated period and in case of false declaration, the policy could have been cancelled. The opposite parties kept mum and enquired from the previous insurer only when the present claim was lodged. Since opposite parties have clearly failed to comply with the provisions of GR-27 of the Indian Motor Tariff, they were not competent to repudiate the claim of the complainant on the ground mentioned in the repudiation letter and they are liable to pay claim as assessed by the Surveyor.
8. On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court and as such this Commission has got not jurisdiction to entertain, try and dispose off the complaint; that the complainant has not approached the Commission with clean hands, rather he has wilfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite party. Regarding the issuance of NCB letter, it is argued that the same were wrongly issued and email dated 15.09.2017 was sent as clarification regarding NCB confirmation vehicle no.PB-29E-9283. Therefore, the complainant has no case or claim or cause of action against opposite party no.1. Opposite party no.1 has been made party in the complaint wrongly and name of the opposite party no.1 is liable to be deleted from the array of parties. Therefore, opposite party no.1 is not liable to pay any claim or compensation to the complainant and the complaint is liable to be dismissed qua opposite party no.1.
9. Ld..counsel for Opposite Party No.2 has also repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the Complainant has not disclosed the true facts and suppressed the material information from the answering opposite party with regard to ‘No Claim Bonus' and as such has given wrong declaration at the time of purchasing insurance policy from the answering opposite party. The insurance is a contract of "Uberrima fides" and there must be complete good faith on the part of insured and the insured is under a solemn obligation to make full discloser of material facts which may be relevant for insurer to take into an account at the time of accepting the offer made by the person for purchase of insurance policy. In the present case, the complainant has managed to have insurance policy for his vehicle on the basis of misrepresentations made by him before issuance of the policy and even during the processing of claim in question. Accordingly as per terms and conditions of the insurance policy and under the provisions of Indian Contract Act, the claim in question has been resulted into "No Claim" after giving numerous opportunities to the complainant to give his explanations about such deliberate misrepresentations and wrong declarations which constitutes a "fraud" within the meaning of section 17 of Indian Contract Act. No deficient services have been rendered to the complainant as alleged in the complaint. The claim of the complainant was duly entertained, surveyed and investigated. The independent Surveyors were appointed to investigate and survey the extent and genuineness of alleged loss. During inquiries made by opposite party no.2 while processing the claim in question it has been found that the complainant has made a wrong declaration in the proposal form before issuance of the policy and during pendency/processing of the claim, the complainant has also produced wrong NCB Certificates with the opposite party no.2. The complainant had signed the proposal form in English and it cannot be said that the complainant is an illiterate person and he could not understand the technicalities of rules and regulations of insurance policy while signing the abovesaid proposal form. The complainant cannot claim or avail no claim bonus benefit from the opposite party no.2 simultaneously at one point of time without non freezing of ‘No Claim Bonus’ with the previous insurer of the complainant. On merits, it is submitted that during inquiries qua such certificate, opposite party no.1 vide its e-mail dated 15.09.2017 addressed to opposite party no.2 has disclosed that "All the certificates (means NCB certificates) are issued wrongly due to system error. Moreover, captioned vehicle was transferred on 15.07.2015 in the name of new insured Mr. Manjinder Singh son of Ajaib Singh and previous insured did not request us to freeze his no claim bonus." The complainant on the basis of intentional misrepresentations wrong declaration and false NCB certificate has obtained an insurance policy from the opposite party no.2 which is not binding being a voidable contract between the parties and cannot be enforced upon opposite party no.2. It has been further submitted that after lodging the claim in question immediately the surveyor was appointed, the loss was assessed and after due application of mind the claim in question has been termed as no claim. It has been further submitted that the complainant knowingly produced wrong NCB certificates. Upon having receipt of information regarding issuance of wrong NCB certificates by opposite party no.1. The answering opposite party had requested the complainant to explain his position about the wrong declaration and wrong NCB certificates vide registered postal letters. The complainant in spite of receiving the said letters did not oblige the answering opposite party with any reply and finally on 30.10.2017, after giving many opportunities to the complainant, the claim in question was termed as no claim.
10. First of all, ld.counsel for opposite party no.1 has contended that the complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court and as such this Commission has got not jurisdiction to entertain, try and dispose of the complaint. But we do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of ‘Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi’ 2002(6) SCC 635, wherein it was held that the State Commission and District Commission are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.
11. Further it is not disputed that in the year 2015 the Complainant got his vehicle bearing registration no.PB-29E-9283 insured from opposite party no.1 vide insurance policy no.2012843115P 181531605 for a period 2015-2016. Thereafter in the month of June 2015, the complainant transferred his above mention insured vehicle in the name of Manjinder Singh son of Ajaib Singh and also informed the opposite party no.1 about such sale. After the sale of said vehicle, complainant requested to the opposite party no.1 to issue him the NCB Certificate of the above mentioned insured vehicle so that he avail the benefits in some future transaction cum insurance. Thereafter as per the request of complainant, opposite party no.1 has issued the NCB certificate dated 21.12.2015 to him which is available within 3 years from 13.04.2015, copy of letter is Ex.C-2. Thereafter in August 2016 complainant purchased new vehicle bearing registration no.PB-29-X-8883 having Engine no.10589 and Chassis no.09813 and in order to avail the benefits of his earlier above mentioned insurance he submitted the NCB Certificate dated 21.12.2015 to the opposite party no.2 which was issued by the opposite party no.1 in favour of complainant with regard to fact that complaint is entitled to 50% bonus. Copy of RC and certificate are attached herewith and then complainant insured his said vehicle from the opposite party no.2 vide insurance policy no.401700/31/16/6300000929 for the period w.e.f. 31.08.2016 to 30.08.2017 and also paid the consideration amount to opposite party no.2 and after receiving the consideration amount and above said NCB Certificate from the complainant opposite party no.2 insured the above said vehicle of complainant and issued the above mentioned insurance policy to the complainant. The registration certificate of the vehicle no.PB-29-X-8883 having Engine no.10589 and Chassis no.09813 is Ex.C3 and its national permit alongwith payment receipts are Ex.C-4 to Ex.C-7 respectively and the insurance policy issued by opposite party no.2 is Ex.C-8. The complainant also produced license of his driver as Ex.C-9 and also produced the Loss Estimate as Ex.C-10. Undisputedly, on 09.05.2017 the above mentioned insured vehicle of the complainant met with an accident and due to such accident the insured vehicle of the complainant got damage and then complainant informed the opposite party no.2 about such incidence and submitted his claim with Opposite Party No.2. Thereafter opposite party no.2 appointed the Surveyor to verify about the lost caused to the insured vehicle and then on 10.05.2017 he visited at the spot and verify about such loss and also charged 3,350/- from the complainant and his fees and in this regard he also issued the Receipt to the complainant. The receipt of payment dated 10.05.2017 tendered in evidence as Ex.C-11. Thereafter complainant got his vehicle repaired from Hemkunt Engineering Works and Krishna Auto Sales and said Hemkunt Engineering inform the complaint that on denting and panting of said vehicle Rs.25,300/- has been spend and then same has been paid by the complainant on 15.10.2017 and then Krishna Auto Sales vide its invoice no.596 of 2017/18 dated 31.05.2017 informed the complainant as well as the opposite party no.2 that the total loss cum damaged caused to said insured vehicle due to such accident is Rs.8,46,698/- including cost of repair of said vehicle and also informed that above said payment has been due against them but opposite party no.2 did not pay any amount to the said agency on the ground that the complainant had claimed NCB fraudulently and he was not entitled to any claim as per GR-27 of Indian Motor Tariff. He furnished a false declaration for claiming that NCB and as such violated the terms and conditions of the insurance policy and, as such, the contract of insurance become void. Opposite parties were well within their rights to repudiate the claim of the complainant made under the void contract. But however, for proper appreciation of the matter the GR No.27 is reproduced below:-
“ 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 require 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 working:-
‘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 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 be stand forfeited.’ Notwithstanding the above declaration the insurer allowing NCB will be obliged to write to the policy issuing office of the previous insurer by the recorded delivery calling of confirmation of the entitlement and rate of NCB for 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 previous insurer. Failure of the insurer granting NCB to write to the previous insurer within 21 days after granting the cover will also constitute breach of Tariff.”
Even Hon’ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in appeal title as The New India Assurance Co. Versus Shinderpal Singh vide its decision dated 23.07.2013 has held the similar view about the procedure contained in GR-27 of Indian Motor Tariff and held that if Opposite Parties have failed to comply with the provision of GR-27 of the Indian Motor Tariff, they are not competent to repudiate the claim of the complainant on the ground mentioned in the repudiation letter and they are liable to pay claim as assessed by the Surveyor.
12. From the above, it is clear that Opposite Party No.2 i.e National Insurance Company was bound to enquire from the previous insurance company i.e. Opposite Party No.1 United India Insurance Company, within 21 days from the date of allowing the NCB but they have failed to produce any evidence that they had enquired from the previous insurance company about the exact position within stipulated period of 21 days. Thus, Opposite Party No.2 has clearly violated GR-27 of the Indian Motor Tariff. They enquired about the policy only when the present claim was lodged by the complainant. Since no claim was claimed by the Complainant during the previous year, the declaration given by him at the time of purchase of present policy (second policy) cannot be said to be willful concealment of facts. Opposite Party No.2 was required to confirm the status of the ‘No Claim Bonus' within stipulated period and in case of false declaration, the policy could have been cancelled. But the Opposite Party No.2 kept mum and enquired from the previous insurer only when the present claim was lodged. Since Opposite Party No.2 has clearly failed to comply with the provisions of GR-27 of the Indian Motor Tariff, they were not competent to repudiate the claim of the complainant on the ground mentioned in the repudiation letter. It is pertinent to mention over here that at the time of insurance of the vehicle in dispute, Opposite Party No.2 itself has assessed the IDV of the vehicle in question at Rs.25 lakhs and took the premium according to the IDV of the vehicle, but at this stage, the Opposite Party can not wriggle out from its liability to make good the loss to the vehicle in dispute. Moreover, the rulings cited by ld.counsel for Opposite Party No.2 are not applicable to the facts of the present dispute and the same are quite distinguishable. In such a situation, the repudiation made by Opposite Party No.2 regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
13. Now come to the quantum of compensation. The perusal of the copy of the detailed report (9 pages) of Sh.Yogesh Kochhar, Surveyor & Loss Assessor dated 26.06.2017 Ex.OP2/5 produced on record by Opposite Party No.2 itself shows that said surveyor has assessed the net loss occurred to the insured vehicle at Rs.6,50,000/- and after that there was absolutely no reason with Opposite Party No.2 to repudiate the genuine claim of the complainant. It has been held by Hon’ble National Commission, New Delhi in case Oriental Insurance Company Limited Vs. B.Ramareddy II(2006) CPJ 339 (NC) that surveyor’s report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor’s report. Hon’ble Supreme Court of India in case Sri Venkateshwar Syndicate Vs. Oriental Insurance Company Limited, II(2010) CPJ 1 (SC) has held that the report of the surveyor is to be given due importance and weightage and it can not be brushed aside without valid reasons.
14. Consequently, the instant complaint is allowed partly and Opposite Party No.2 is directed to pay a sum of Rs.6,47,500/- (Rupees six lakh forty seven thousands five hundred only (i.e.6,50,000/- as net assessed loss minus Rs.2,500/- because no receipt regarding ‘towing charges’ is produced on record), to the complainant as compensation on the basis of report of surveyor, alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 10.11.2017 till its realization. The Complaint against Opposite Party No.1 stands dismissed. Opposite Party No.2 is also directed to pay lump sum compensation of Rs.10,000/- (Ten thousands only) on account of harassment, mental tension and litigation expenses to the Complainant. The compliance of this order be made by Opposite Party No.2 within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bhatinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete. Announced in Open Commission.
Dated: 12.03.2021.
