Haryana

Ambala

CC/373/2016

M/s MR Electricals - Complainant(s)

Versus

United India Insurance Co Ltd. - Opp.Party(s)

I.S. Gill

13 Mar 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA.

C.C.No.373 of 2016.

Date of Instt.:03.10.2016.

Date of Order: 13.03.2018.

 

M/S MR Electricals 21 Industrial Area, Ambala City, Haryana through its proprietor Sanjiv Gulati son of Shri Mela Ram resident of H.No.124, Sector 1, Jail Land HUDA, Ambala City District Ambala.

 

                                                                   ..Complainant.

           Versus

United India Insurance Company Limited 2^nd Floor, Triloki Chambers, Opp. Municipal Committee, Post Box No.84, Ambala Cantt. 133001, through its Divisional 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.I.S.Gill, counsel for the complainant.

                   Sh.Dev Batra, counsel for the OP.

 

ORDER

                    Brief facts of the present complaint are that complainant got its vehicle Verna CRDI bearing registration No.HR-02K-0081 insured with OP vide policy No.1101003115P104753310 having validity from 27.07.2015 to 26.07.2016. On 21.01.2016 at about 9 P.M. when the complainant was returning back to his house, another vehicle hit the car from rare side resulting into damaging of car badly. Thereafter, the complainant took the damaged car to City Automobiles and on 22.1.2016 in-charge thereof intimated the OP. Surveyor appointed by the OP inspected the vehicle  and further completed all the formalities with regard to claim. The complainant got the vehicle repaired as per instructions of the surveyor by spending a sum of Rs.70448/-. He submitted all the requisite documents including the bill to the Op but it has repudiated the claim vide letter dated 06.04.2016 due to wrong No Claim Bonus. The complainant had received No Claim Bonus of 25 % in the previous policy and when that vehicle had met with an accident, he had also claimed the damages caused to the vehicle.  The OP was having full knowledge about receiving of claim in the previous policy. The OP had renewed the old policy with policy having validity from 27.07.2015 to 26.07.2016 and further reduced the No Claim Bonus from 25 % to 20 % in the said policy. The complainant has not made any declaration at the time of renewal of the policy but the OP has wrongly and illegally repudiated the claim amounting to Rs.70448/- qua the insured vehicle.  The act and conduct of the OP amounts to deficiency in service and unfair trade practice on its part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C9.

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 NCB is admissible to the party if in the preceding full year of insurance, neither any claim was made nor was pending. 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 complainant is a beneficiary & he was continuing with the benefit of NCB in the running policy in question despite knowing the fact that he had obtained the claim for damage in the previous policy.  The present policy is not renewed policy rather new policy has been obtained instead of Nariangarh from Ambala Cantt. which contains separate/new policy number. Hence, while applying a fresh with new branch a proposal form was also signed for taking the benefit of NCB and in the light of above declaration the complainant beneficiary of NCB and he has enjoyed the benefits of NCB by giving lesser premium of Rs.1616.68 to the Op. On receiving the claim in hand the previous insurer was asked the particulars of previous insurance, claim in any & NCB etc. during previous policy & accordingly it was informed by them that claim was raised for damages suffered in an accident on 29.10.2014 during previous policy. The declaration made for NCB vide Section 01 of the policy was found wrong & false and the complainant had concealed the vital fact from the insurance company. The repudiation made by the OP is just proper and in accordance with the terms and conditions of the policy. 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 ha tendered affidavit Annexure RA, Annexure RB and documents Annexure R1 to Annexure R10.

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 because the insurance company has reduced the No Claim Bonus from 25 to 20 % at the time of renewal of the policy in question. 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.  In this regard he drew the attention of this Forum towards the false and incorrect declaration made by the complainant (Annexure R1) while availing the benefit of no claim bonus to the extent of 20%.  In support of his contentions he has placed reliance of case law titled as Harjot Kaur Vs. Future Generali India Insurance Company Limited FAP No.504 of 2016 decided by Hon’ble State Commission, Chandigarh on 07.11.2017 and provisions of GR27 qua No Claim Bonus.  It has been further argued that the policy in question is not a renewal policy rather the same has been taken by the complainant afresh; therefore, concession of No Claim Bonus to the extent of 20 % was given to the complainant.

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 the OP Annexure R7 having validity from 27.07.2014 to 26.07.2015 and thereafter the present policy Annexure R1/Annexure C2 was issued by the OP having validity from 27.07.2015 to 26.07.2016, therefore, the plea of the Op that the complainant had taken the new policy is not tenable because both the policies have been issued by Op and that too without any break. It is not disputed that the complainant had earlier received the claim on account of damage of the insured vehicle with the OP 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 R1/Annexure C2). Since both the policies have been issued by OP, therefore, it is ceased to take plea that the complainant had obtained No Claim Bonus by misrepresenting and making false and wrong declaration in proposal Form Annexure R1. 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, 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. 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.  The case law relied upon by learned counsel for the OP is not applicable to the case in hand and same is being distinguished.

8.                          The complainant has alleged that he has spent an amount of Rs.70448/- on the repair of said car and in support of this contention he placed on record bill amount to Rs.55973.33/- Annexure C4 and bill amounting to Rs.14475/- Annexure C5. Perusal of the case file reveals that the surveyor in his report Annexure R8 has assessed the claim to the tune of Rs.32787/-.  The bills  Annexure C4 and Annexure C5 appears to be issued on higher side, 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.32987/- 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.1616.68/-  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: 13.03.2018

                                                                                      

                            

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

          Member                               Member                                President