BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 341 of 2015.
Date of Institution: 23.12.2015.
Date of Decision: 01.05.2019.
M/s Shakshi Estates (P) Ltd., 441-Rajendra Jain Tower-1, Plot No. 18, District Delhi through its Director Vijay Bhatt son of Shri Phool Chand.
..….Complainant.
Versus
1. United India Insurance Company Ltd. Branch registered & head office at 24, Whites Road, Chennai through its authorized representative.
2. United India Insurance Company Ltd. one of its Branch situated at Circular Road, Bhiwani through its Branch Manager.
…...Opposite Parties
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Mrs. Saroj Bala Bohra, Member.
Present: Shri Yudhister Vats, Adv. for the complainant.
Shri Rajbir Singh, Advocate for the OP No. 1.
OP No. 2 already exparte.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief facts of the care are that the complainant is registered owner of a I-10 Car Magma bearing Registration No.DL-02-CAE-3771 and the same was insured with the OPs w.e.f. 27.8.2014 to 26.8.2015 vide cover note /policy No. 1112823114P146237079. It is alleged that on 23.4.2015 the above said vehicle was being driven by Dasrath son of Shri Inder Singh, resident of village Kaluwas, Tehsil & District Hisar, the same met with an accident and damaged badly. It is further alleged that the complainant has informed the employee of the OPs regarding accident and they inspected the spot. It is further alleged that the complainant has took the vehicle to the workshop and got prepared the estimate of loss of above vehicle, as per the direction of the OPs. It is further alleged that the complainant has submitted all the required documents with the OPs and after checking all documents the OP company accepted the same and a claim No.1112823115C050020001 was lodged. It is further alleged that after lodging of claim the employee of the OPs told the complainant to get repair the vehicle and gave assurance that they will pass the claim as soon as possible and on this complainant has got repaired the vehicle by paying Rs.1,59,745/- and submitted the bills to the OPs, but the OP did not pass the claim and put off the matter on one pretext or the other and they finally repudiated the claim vide letter dated 15.10.2015. It is further alleged that the complainant has never received any notice regarding any documents. It is further alleged that the complainant has never gave any consent to the OPs to withdraw his claim vide any alleged
Letter dated 15.10.2015 and the said letter is result of fraud, malafide, misrepresentation on the part of the OPs. It is further alleged that the complainant has never breached the policy conditions and the OPs have leveled false allegations. Hence, there is deficiency in service on the part of OPs. Hence, the present complaint.
2. On appearance, the OPs filed written statement alleging therein that the Car bearing registration No.DL-02-CAE-5771 was insured vide policy No.1112823114P146237079 covering the risk w.e.f. 27.8.2014 to 26.8.2015 issued by Micro office, Bawani Khera and the insured made a declaration to the effect that previous insurance policy No.1112023113P103177329 w.e.f. 27.8.2013 to 26.8.2014 issued by Red Cross Bhawan, Mini Zoo Road, Bhiwani is claim free and the insured was given rebate of Rs.937.57P being 20% No Claim Bonus and a sum of Rs.5192/- was charged as insurance premium. It is further alleged that on receipt of accident on 23.4.2015 near village Kanwari on Hisar-Tosham road, Shri Rajiv Gupta, Surveyor & Loss Assessor, 447, Sector-15A, Hisar was deputed to assess the loss and afore said surveyor submitted his report assessing the loss at Rs.89,131.87P and recommended for an appropriate settlement in accordance with the terms & conditions of the insurance policy. It is further alleged that while settling the claim, it was observed that the complainant had claimed 20% No Claim Bonus (NCB) on the policy w.e.f. 27.8.2014 to 26.8.2015 issued by Micro office, Bawani Khera on the basis of no claim reported on his previous policy w.e.f. 27.8.2013 to 26.8.2014 issued by Red Cross Bhawan, Mini Zoo Road, Bhiwani as per declaration given by the complainant in the proposal form submitted at the time of renewal of his insurance policy with the OPs. It is further alleged that OPs got confirmed from the office of Red Cross Bhawan, Mini Zoo Road, Bhiwani that the insured under policy covering vehicle w.e.f. 27.8.2013 to 26.8.2014 was enjoying 0% Bonus for the period of 2013. It is further alleged that hence, complainant is not entitled to any compensation in respect of the damages of the vehicle in question and the OPs absolved itself from any further liability arising out of the claim lodged by complainant and the claim was filed as No Claim and intimation was duly conveyed to the complainant vide letter dated 15.10.2015. Hence, in view of the above facts, there is no deficiency in service on the part of the OPs and as such, the complaint of the complainant is liable to be dismissed with costs.
3. Ld. Counsel for the complainant has placed on record the documents Annexure C1 to C7 in evidence and closed the evidence.
4. Ld. Counsel for the OP No.1 has placed on record documents as Ex. RW1/A, Ex. RW2/A & annexure R1 to R4 and closed the evidence.
5. We have heard both the parties at length and have gone through the case file carefully.
6. Ld. counsel for the complainant reiterated the contents of the complaint. Ld. counsel for the complainant submitted that the insurance policy was issued by the OPs at their own after taking copy of previous insurance and they got the signature of the complainant. He further submitted that the NBC, if any, was given by the OPs themselves and the complainant has no knowledge about the same. Ld. Counsel for complainant has placed his reliance upon RP No.1836 of 2016, NIC Vs Naresh Kumar, decided on 18.4.2017 by the Hon’ble National Commission.
7. Ld. Counsel for the OP No.1 reiterated the contents of the written statement. Ld. counsel for the OP No. 1 has argued that complainant is not entitled to any compensation in respect of the damages to insured vehicle, as the complainant has taken NBC while issuance of insurance policy and the claim was rightly repudiated and intimation was conveyed to complainant vide letter dated 15.10.2015. Ld. counsel for the OP No. 1 has placed his reliance upon RP No. 1255 of 2009, Tata AIG Gen. Ins. Vs Gulzari Singh, decided by the Hon’ble National Commission, New Delhi vide order dated 26.2.2010, But the same is not applicable to the facts of the present case due to peculiar facts & circumstances
8. After hearing learned counsel for both the parties and having gone through the material available on record, we are of the considered view that the complaint of the complainant deserve acceptance, as there is deficiency in service on the part of OPs. It is admitted fact that the vehicle in question was got insured by the complainant with the OPs w.e.f. 27.8.2014 to 26.8.2015. It is also admitted fact that the vehicle in question met with an accident on 23.4.2015 during the operation of policy. It is also admitted by the OPs in written statement that earlier also the vehicle in question was insured with them. Now question arises whether the complainant is entitled to get the claim of the damaged vehicle, if so to what amount. The sought answer is “Yes”. The only plea taken by the OPs is that the complainant has taken 20% rebate i.e. Rs.937.57P being No Claim Bonus at the time of issuance of the insurance policy. This plea of the OPs is not tenable at all, because it is the duty of the OPs to check in their record that whether the complainant has earlier taken any claim on the previous policy or not, but they failed to do so. It is very easy for the OPs to check the record, because now-a-days everything is computerized and there is no difficulty to find out anything about the contents of the previous policy. In olden days it was very difficult to check the status of the previous policy due to manual system, but now it is very easy process. The insurance company cannot take the plea that the insured had not disclosed all the facts about claim taken by him in the previous policy, especially when the earlier policy was also issued by the OPs. Moreover, the insurance company must be very careful at the time of issuance of insurance policy, because lateron they have to pay the claim, if any arisen out of the policy issued by them. The insurance companies are bound to issue the insurance policy with open eyes after proper enquiry. So, it is clearly proved on record that insurance company was having knowledge about the claim taken by the complainant on the previous policy, because the previous policy was also issued by the OP company. Thus, in our view, it cannot be said that insurance company has no knowledge of the claim taken by the complainant on his previous policy. Ld. Counsel for the complainant has placed his reliance upon case law titled as NIC Vs Naresh Kumar, which is fully applicable to the facts of the present case. In above case, the Hon’ble National Commission has held that: -
“a. The cases in which it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and the insurer had means to verify the correctness of the declaration of the insured seeking No Claim Bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurer’s own record, Exception to 19 of Indian Contract Act would come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However, because the insured had taken benefit of No Claim Bonus and paid less premium, the insurance claim would be reduced proportionately”.
“b. In cases of the insured taking the insurance policy of the vehicle from new insurance company and it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and where the insurer had failed to seek confirmation regarding correctness of the declaration submitted by the insured in support of plea for No Claim Bonus within the stipulated period as provided in GR 27 of Indian Motor Tariff, the insurer would not be justified in repudiating the insurance claim. However, because the insured had taken benefit of No Claim Bonus by making false declaration his insurance claim would be reduced proportionately”.
Hon’ble National Commission has partly allowed complaint directing the insurance company to pay the claim amount after deducting 20% from the claim amount”.
9. Moreover, from the perusal of Surveyor report dated 31.7.2015 Annexure R-I, it is clear that the OP Company has no intention to settle the claim of the complainant, as the Surveyor has assessed the net loss to the tune of Rs.90,131.87P less excess clause Rs.1000/- = Rs.89,131.87P. The OPs have also placed on record affidavit of surveyor. The complainant has claimed an amount of Rs.1,59,745/- and in support of its plea has placed on record copy of bill as Annexure C4. The complainant has also placed on record copy of cash bill receipt of Rs.1390/- paid to the surveyor Madhur Thukral as Annexure C5. The complainant is entitled to payment of amount assessed by the surveyor i.e. Rs.89,131.87P after deduction of 20% from the said amount, which comes to Rs.71,306/-.
10. Moreover, the Insurance Companies deliberately with malafide intention does not settle the claim of its consumers in time and harassed them without any reason. In the present case the OPs have unnecessarily harassing the complainant physically as well as mentally since 2015 i.e. more than four years due to mistake done on their own part. The Consumer Protection Act, 1986 is also a beneficial legislation for the consumers. So in our view, the complainant is also entitled for the compensation on account of mental and physical harassment & punitive damages for deficiency in service & mal-trade practice on the part of the Insurance Company. Therefore, in view of the facts & circumstances mentioned above, complaint is partly allowed and the OPs are directed:-
i) To pay sum of Rs.71,306/- (Seventy one thousand three hundred six only) along with interest @ 9% p.a. from the date of filing of complaint till its final realization.
ii) To pay Rs.25000/- (Twenty five thousand only) as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OPs and punitive damages.
iii) To pay Rs.7000/- (Seven thousand only) as counsel fee as well as the litigation charges.
The compliance of the order shall be made within 30 days from the date of the order. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: - 01.05.2019.
(Saroj Bala Bohra) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
