Haryana

Karnal

566/2011

Oswal Pumps Ltd - Complainant(s)

Versus

The United India Insurance Compay - Opp.Party(s)

Sh.Subhash Gupta

26 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                         

                                                          Complaint No. 566 of 2011

                                                          Date of instt.: 09.09.2011

                                                          Date of decision: 27.11.2015

 

M/s Oswal Pumps Ltd. 71/3, Mile Stone, Oswal Estates, GT Road, Karnal through its Director Sh.Rajiv Gupta

                                                                  ……..Complainant.

                   Vs.

 

United India Insurance Company Limited, through its Senior Divisional Manager, Divisional Office, GT Road, Karnal..

                                                                  …..Opposite Party.

 

                     Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.

                   Smt. Shashi Sharma……….Member.

                   Sh.Anil Sharma …………….Member.

 

Present:-       Sh.Sudhakar Mittal Advocate for the complainant.

                   Sh.Narender Chaudhary Advocate for the OP.

ORDER:

 

                        The facts giving rise to the present complaint u/s 12 of the Consumer Protection Act 1986, are that the complainant got insured its Martui car bearing registration No. HR-05U-8553 from the Opposite Party (in short OP) vide policy o.110700/31/09/01/00005952 for Insured Declared Value of Rs.5,25,000/- and  deposited premium of Rs.10,107/- . During the insurance policy, the car met with an accident and was badly damaged. The car was taken to Karnal Motors, for repairs and intimation of the accident was given to the OP, who deputed surveyor for assessment of the loss and to  ascertain the liability. The OP also deputed investigator in order to ascertain the genuineness of the accident.  Surveyor and investigator found the claim of the complainant genuine and submitted their reports.  The vehicle was got repaired from Karnal Motors, workshop and a bill of Rs.3,75,423/- was raised for repairs. The complainant asked the OP to issue cheque of its share so that delivery of the vehicle could be obtained from the workshop, but the OP started making lame excuses and finally issued letter dated 13.3.2011 repudiating the claim on the ground that complainant had obtained 20% “No Claim Bonus” by misrepresenting the facts. Thereafter, the complainant approached the office of OP and told that earlier claim under the same policy was already passed by the OP by making payment of Rs.4400/-, therefore, there could be no question of repudiating its claim for repairs of the car, but the OP did not pay any heed to such request. It has  further been submitted that complainant never misrepresented the fact  in order to obtain “No claim Bonus” to the extent of 20% and there was no intentional concealment of any fact by the complainant. At the time of issuance of the policy all the required documents were handed over to the OP and after going through the contents thereof, the policy was issued. The OP again renewed the policy after the accident on 31.10.2010 and insured the vehicle for the period of 1.11.2010 to 31.10.2011.When the OP had no objection for renewal of the policy, it had no right to raise objection   to payment of the claim under the insurance policy, as the OP  was bound under the principle of estoppel.  No hearing and opportunity was given to the complainant before repudiating its claim and the documents on the basis of which claim was repudiated were never handed over to it (complainant). In this way, there was deficiency in service and unfair trade practice on the part of the OP, which caused mental harassment apart from financial loss.

 

2.                Notice of the complaint was given to the OP, who put into appearance and filed written statement  controverting the claim of the complainant. Objections have been raised that complaint is not legally maintainable in the present form; that complaint is an abuse of the process of law ; that car in question was used and driven in contravention of the terms and conditions of the insurance policy and  that there was no deficiency in services on the part of the OP.

 

                   On merits, it has been submitted that during course of investigation and survey, it was revealed that insurance policy was obtained by making false declaration  claiming “No Claim Bonus”, whereas the complainant had already taken claiam from the previous insurer.  The complainant filed fake no claim bonus certificate dated 4.3.2011 issued by the ICICI Lombard General Insurance Company Limited, wherein it was assured that insured Oswal Pumps Ltd. was entitled to 20% bonus as “No Claim Bonus”  which shall be available within 90 days from 31.10.2009, whereas ICICI Lombard General Insurance Company Limited never issued such certificate and the complainant  forged the “No Claim Bonus” certificate, therefore, the complainant was not entitled to any claim and  its claim was rightly repudiated by the OP. The other allegations made in the complaint have been denied.

 

3.                In evidence of the complainant affidavit of Rajeev  Gupta, Director of the complainant firm Ex.CW1/A and documents Ex.C1 to Ex.C5 have been tendered.

 

4.                On the other hand in evidence of the OP, affidavit of Sh.S.S.Vasudeva, Assistant Divisional Manager, Ex.RW1/A and documents Ex.R1 to Ex.R10 have been tendered.

 

5.                We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

 

6.                The copy of the letter dated 31.3.2011 sent by the OP to the complainant Ex.C4 shows that claim of the complainant was repudiated on the ground that the complainant had misrepresented the facts at the time of taking insurance policy; that the complainant was not entitled for any “No claim Bonus”, whereas  it had obtained 20% No claim bonus by misrepresenting facts and on verification from the previous insurance company, it was revealed that the complainant was not entitled for any No Claim  Bonus but the complainant had filed a fake declaration in the proposal form in that regard.

  7.                       Admittedly, the OP had insured the car of the complainant for an ID value of Rs.5,25,000/- for the period of 1.11.2009 to 3.10.2010.  It is not  in dispute that previously the said car was insured with the ICICI Lombard General Insurance Company.  The complainant was given benefit of No Claim Bonus to the extent of 20% i.e. Rs.2342/- at the time of issuance of the insurance policy by the OP.  The main plank of the OP is the copy of proposal form Ex.R9, according to which the complainant had given declaration that he had not obtained any claim from the previous  insurer  i.e. ICICI Lombard General Insurance Company. The surveyor and loss assessor of the OP sought verification of No Claim Bonus certificate from ICICI Lombard General Insurance Company Limited  who certified that car of the complainant was insured with it and insured was entitled to 0% bonus as “No Claim Bonus”. The copy of the report submitted by the ICICI Lombard is  Ex.R7 and report prepared on that basis by the surveyor and loss assessor is Ex.R6.  The copy of the claim assessment sheet Ex.R8 indicates that complainant had submitted letter of “No Claim Bonus” confirmation of  ICICI Lombard General Insurance Company Limited, but the same was found fake. Thus, from the documentary evidence on record, it is clearly established that complainant had submitted some confirmation letter regarding “No claim Bonus” issued by the ICICI Lombard General Insurance Company Limited  and in the proposal form gave declaration that no claim was obtained from the ICICI Lombard General Insurance Company Limited  i.e. previous insurer of the insured car, but on  investigation, it was found that complainant had obtained claim from ICICI Lombard General Insurance Company limited and he was not entitled to get any benefit of No Claim Bonus but while obtaining the policy from the OP benefit of No claim bonus was obtained. In this way, the complainant concealed and misrepresented the fact to the OP regarding obtaining claim from the previous insurer i.e. ICICI Lombard General Insurance Company limited, while obtaining insurance policy from the OP.

 

8.                 The Learned counsel for the complainant put a great thrust  upon the contention that the complainant made no misrepresentation or wrong declaration regarding obtaining the claim from the ICICI Lombard General Insurance Company Limited at the time of obtaining insurance policy from OP and for that reason the OP had paid  claim of Rs.4400/- on 27.8.2010 as proved from the record maintained by it, the copy of which is Ex.C5,therefore, while considering claim in dispute of the complainant, the OP had no right to raise plea that complainant had obtained              No Claim Bonus at the time of obtaining policy by misrepresenting the facts to the OP, because OP is estopped from raising such objection.

 

9.       The OP in the written statement denied that the claim of Rs.4400/- was paid by it to the complainant under the same policy. There is only copy of ledger entry of the complainant Ex.C5, wherein it has been mentioned that amount of Rs.4400/-was received from the OP on 27.8.2010.  There is no material on record, which may show that complainant was having only one vehicle in question insured with the OP and the amount was received by it in respect of the claim of the same vehicle. Therefore, on the basis of self serving document of the complainant, it cannot be accepted that OP had paid any claim to the complainant regarding the same vehicle during the period of insurance. Even if, for the sake of argument , it is accepted that amount was paid to the complainant in respect  and relating to the same vehicle,  then also  the OP is not estopped from raising  the plea that complainant had claimed benefit of No Claim Bonus by misrepresenting facts, because  if any legal objection did not come to the notice of the OP at the time of granting previous claim, it cannot be said that it cannot raise such legal ground while considering the second claim put forth by the complainant during same period of insurance.   Revival of the same policy also does not effect the right of the  OP in any manner  to repudiate the claim of the complainant on the ground of mis representation of the material fact while obtaining the policy. Under such circumstances, the argument advanced by the learned counsel for the complainant cannot be accepted being devoid of force.

 

10.            The contract of insurance is based upon the principle of ubbreima fides i.e. utmost good faith. If any, material fact is concealed by the insured, he is not entitled to get any benefit under the policy. As the complainant had made false representation regarding obtaining   claim from previous insurer i.e. ICICI Lombard General Insurance Company limited, while obtaining policy from the OP and obtained the benefit of No Claim Bonus, it is not entitled to get any claim from OP in respect of repairs of the insured car. Under such circumstances, we have no hesitation in observing that order of the OP repudiating the claim of the complainant was quite justified.

 

11.               As a sequel to the foregoing discussion, we do not find any merit in the present complaint and the same is, therefore, dismissed. The parties concerned be communicated of the order accordingly and the file lbe consigned to the record room after due compliance.

Announced
dated:27.11.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma) (Smt.Shashi Sharma)    

       Member.     Member.

 

 

 

 

Present:-       Sh.Sudhakar Mittal Advocate for the complainant.

                   Sh.Narender Chaudhary Advocate for the OP.

 

                   Arguments heard. For orders, the case is adjourned to 27.11.2015.

 

Announced
dated:26.11.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma) (Smt.Shashi Sharma)    

       Member.     Member.

 

Present:-       Sh.Sudhakar Mittal Advocate for the complainant.

                   Sh.Narender Chaudhary Advocate for the OP.

 

                   Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:27.11.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma) (Smt.Shashi Sharma)    

       Member.     Member