Haryana

Ambala

CC/151/2017

Neeraj Mohan trikha - Complainant(s)

Versus

UII - Opp.Party(s)

Harsh Vohra

19 Mar 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA.

C.C.No.151 of 2017.

Date of Instt.:22.05.2017.

Date of Order: 19.03.2018.

 

Neeraj Mohan Trikha s/o Sh.Om Parkash r/o H.No.411, Prem Nagar, Ambala City.

                                                                   ..Complainant.

           Versus

United India Insurance Company Limited 2^nd Floor, Triloki Chambers, Opp. Municipal Corporation, Kesera Bazar Road, Punjabi Mohalla Sadar Bazar, Ambala Cantt, Haryana through its Branch Manager.

 

                                                                   …Opposite party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER       

Present:       Sh.Harsh Vohra, counsel for the complainant.

                   Sh.K.S.Chopra, counsel for the OP.

 

ORDER

 

                    Brief facts of the present complaint are that complainant is owner of car Indigo ECS LX TDIE bearing registration No.HR-01=AL/0618, Engine No.4751DT14CUYP16915 and he got insured the same with OP vide policy No.111023116P101335803 having validity from 29.04.2016 to 28.04.2017. On 15.12.2016 vehicle of the complainant met with an accident with a truck and got badly damaged. The damage to the vehicle was assessed by skilled mechanic of Tata Motors 10^th Mile Stone G.T.Road, Mohra District Ambala to the tune of Rs.20565/- vide job card No.22384 dated 19.12.2016. Thereafter, the complainant after completing all the required formalities submitted the claim to the OP but it repudiated the claim with superfluous self made observations despite the fact that the complainant is very much entitled for the claim of damages to his vehicle as per terms and conditions of the insurance policy. The complainant got served legal notice upon the OP but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service on its part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C5.

2.                On being served, OP appeared and contested the complaint of the complainant by filing its reply wherein it took several preliminary objections such as suppression of material facts from this Forum, maintainability and estoppal etc. It is submitted that the complainant had earlier taken insurance policy from National Insurance Company Limited having validity w.e.f. 29.04.2015 to 28.04.2016. At the time of taking the insurance policy having validity from 29.04.2016 to 28.04.2017 the complainant had submitted wrong declaration that he did not receive any claim just to receive NCB of 20 %. In this regard the insurer was require to give a declaration which runs as follows:

                   “I declare that the rate of NCB claimed by me is correct and that no claim as arisen in the expiring policy period. I further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section-1 of the policy will stand forfeited”

 

The OP has acted with the frame work of GR 27, therefore, the claim of the complainant has rightly been repudiated vide leer dated 24.01.2017 as he had given false declaration to the OP that he had not received any claim from the previous insurance company qua the vehicle in question. There is no deficiency in service and unfair trade practice on the part of Op. Other contentions have been controverted and prayer for dismissal of the complaint has been made.  In evidence, the OP has tendered affidavit Annexure RA, Annexure RB and documents Annexure R1 to Annexure R9.

3.                  Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OP-insurance company reiterated the averments made in the reply and prayed for its dismissal.

4.                Learned counsel for the complainant has argued there was no   breach of terms and conditions of the policy and even the complainant has not violated the provisions of GR 27 but despite that the OP has wrongly and illegally the genuine claim. It has been further argued that the Op/insurance company has itself violated the provisions of GR 27 by not issuing notice within prescribed period of 21 days which is clear cut deficiency in service on the part of OP/insurance company. It has been further argued that the present policy is not a new policy rather previous policy was renewed and the same was issued by OP, therefore, it cannot take the shelter of provisions of  GR 27. In support of his contentions he placed reliance of case law titled as United India Insurance Company Limited Vs. Et.Trav Aids Pvt.Ltd.  2016 (3) CLT page 603 (NC).  

5.                On the other hand the learned counsel for the Op controverted the version of the complainant and stated that the complainant had not disclosed about the claim obtained by him in the previous policy and obtained the concession of non claim bonus to the extent of 20%. The learned counsel pleaded that the Op has repudiated the claim of the complainant legally as the he has been found violating the provisions of Rule 27 of Indian Tariff. 

6.                The main dispute between the parties is that the complainant lodged the claim with the Op the same was repudiated on the ground that the complainant has taken claim in the previous policy and also obtained concession of No Claim Bonus in the present policy which is a mis-representation of fact and breach of utmost good faith which also resulted into violation of G.R.27 of India Motor Tariff. As per G.R.27 of India Motor Tariff, if the insured is unable to produce a certificate from the previous insurer for taking No Claim Bonus (NCB) benefit, the claimed No Claim Bunus (NCB) may be permitted after obtaining a following declaration from the insured:-

                   “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 1 of the Policy will stand forfeited.”

7.                Perusal of the case file reveals that the complainant had earlier obtained an insurance policy from National Insurance Company which was valid from 29.04.2015 to 28.04.2016 and thereafter the present policy Annexure C2 was issued by the OP having validity from 29.04.2016 to 28.04.2017. The OP has specifically taken only one plea that the complainant has concealed the fact of taking claim on account of damage of insured vehicle from the previous insurance company and also obtained NCB from the OP in the declaration filled at the time of insurance from the OP but it is strange that no such declaration form has been placed on the file in order to strengthen the plea raised by it.  It is established on the case file that the complainant had earlier received the claim on account of damage of the insured vehicle with the National Insurance Company and this fact finds support from Annexure R5 wherein it has been mentioned that the insured is hereby entitled to 0 % bonus and it is also not disputed that at the time of renewing the policy in question the OP has also given concession of 20 % as No Claim Bonus Annexure C2. Taking of concession of No Claim Bonus as well as claim on account of damage to insured vehicle by the complainant was very much in the knowledge of the OP and it was for it to immediately cancel the insurance company but it has not done so therefore, at this stage repudiation of the claim of the complainant is not justifiable rather it is shows how the insurance company in order to increase the business allured the customer and when any claim has been lodged, the insurance company takes every steps to avoid the claim by shifting the burden of its own wrong to the shoulders of the customer/consumers.

                             As per GR-27 the insurance company was under obligation to write to the previous insurer within 21 days after granting insurance cover to confirm as to whether the complainant was entitled to the grant of No Claim Bonus (NCB) benefit or not?  Further, even if we consider the document (Annexure R4) as being sent on 27.12.2016 to the previous insurance company i.e. National Insurance Company even then the Op insurance company has failed to follow their own instructions because the said letter was written by the insurance company after 8 months from the issuance of the policy in question.  Thus, when the Op insurance company has not complied with the condition of GR-27, then they have no right to repudiate the claim of the complainant on the ground of ‘No Claim Bonus’.  This obviously amounts to breach of tariff on the part of the insurance company and disentitle the insurance company to take shelter of the plea of misrepresentation of facts on the part of the Op insurance company.  However, we have seen that the complainant on basis of false declaration given to the Op had paid 20 % less premium.  Therefore, the equity demands that bonus payable to the complainant in respect of his insurance claim should be decreased by 20%.  On this point reliance can be taken from the ratio of law laid by the Hon’ble National Commission in case titled as National Insurance Co. Ltd. vs. Harpreet Singh reported in 2016(1) CPR 910: 2016(3) CPJ page 58. The act and conduct of the OP/insurance Company is not only clear cut deficiency in service on its part rather proves its indulgence in unfair trade practice which should be curtailed with heavy hands.  

8.                          The complainant has alleged that he has spent an amount of Rs.20565/- on the repair of said car and in support of this contention he placed on record bill amount to Rs.20565/- as Annexure C5. Perusal of the case file reveals that the surveyor in his report Annexure R9 has assessed the claim to the tune of Rs.19299/-, therefore, it  would be appropriate if we direct the OP to pay the amount as assessed by the surveyor in his report Annexure R9 because as per judgment reported in CPJ 2008(2) P.182 (NC) titled as United India Insurance Company Ltd. vs. Maya, wherein it has been held that “Surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act 1938”. The complainant has failed to rebut the report of the surveyor who had assessed the loss on account of insured vehicle as the complainant did not move any application to summon the surveyor to cross-examination, therefore, this Forum has no other option but to believe on the report of the surveyor.

9.                Thus, in view of the above discussion, we allow the complaint partly and direct the Op to pay an amount of Rs.19299/- as assessed by the surveyor to the complainant along with interest @ 9 % p.a. from date of filing the complaint till its realization after deducting the amount i.e. Rs.1922.57/-  being 20 % taken by the complainant as concession on account of No Claim Bonus and further to pay Rs.3000/- as lump sum compensation on account of mental agony, harassment and cost of litigation. Let the order be complied within 30 days from the preparation of the copy of this order. A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

 

Announced: 19.03.2018

                                                                                      

                            

(PUSHPENDER KUMAR)      (ANAMIKA GUPTA)       (D.N. ARORA)

          Member                               Member                                President