By. Sri. A.S. Subhagan, Member:

            This is a complaint preferred under section 35 of the Consumer Protection Act 2019.

            2.  Facts of the complaint in brief:- 

                 The first Complainant is the registered owner of the Motor car bearing No. KL 12 K 9647 and the second Complainant is the son of the first Complainant who is taking care of the first Complainant, since he is a senior citizen.  The first Complainant took a Private Car Package Insurance Policy from the first Opposite Party’s company through the second Opposite Party on 08.02.2020 bearing Policy No.32060031200160005638 having coverage from 09.02.2020 to midnight of 08.02.2021.  On 22.12.2020 the insured motor car met with an accident and sustained damage.  The damaged vehicle was taken to Marina Motors, Kalpetta and replaced the damaged parts and made to  running condition which cost about Rs.15,872/-.  Hence the Complainant approached the Opposite Party claiming reimbursement for the damage worth Rs.15,872/- duly submitting all necessary documents on time.  Thereafter, the second Complainant approached several times at the second Opposite Party’s office for realization of the amount of claim but the second Opposite party prolonged the matter perversely.  At last, the Opposite Party issued a notice to the first Complainant on 01.03.2021 informing that they are closing the file as “No Claim”.  The Complainant contented that he is entitled to get Rs.15,872/- as reimbursement for the damage caused to his vehicle during the coverage period of the policy, but the Opposite Parties are repudiating the claim.  The act of the Opposite Parties includes unfair trade practice and deficiency in service and hence the Complainants sustained huge loss and difficulties due to the inhumane attitude of the Opposite Parties.  Hence this Complaint praying to direct the Opposite Parties to release the claim amount in a reasonable time and also to direct to pay compensation of Rs.50,000/- for mental agony and difficulties and also to award appropriate cost of this proceedings.  Commission registered the complaint and the first and second Opposite Parties appeared and filed a common version.

            3.  Brief contents of version:-  The Opposite parties submitted that the Car No. KL 12 K 9647 was insured with the Opposite Parties at the material time of the alleged accident.  The policy was renewed by the Complainant from the Akshaya Centre suppressing the facts regarding the Own Damage Claim obtained in the year 2017-2018 as per the Claim No.10613118C050896001 based on IP No.1016013117P115732344.  As per the previous year policy 0% No Claim Bonus was allowed in the Policy No.1016013118P114552151 dated 09.02.2019 for the period 2018-2019.  Hence bonus for the policy No.0206003120P114517523 for the year 2019-2020 was 20%.  But the Complainant suppressing the fact regarding earlier own damage claim, obtained the insurance policy from the Akshaya Centre by deducting 35% No Claim Bonus instead of 20%.  This fact was brought to the notice of the Complainant by the first Opposite party and the first Opposite Party issued the notice demanding the refund of NCB recovery of an amount of Rs.1,162/-, to the Complainant through mail on 19.01.2021, 28.01.2021, 03.02.2021 and final reminder on 08.02.2021 through registered post but the Complainant failed to refund the amount of NCB obtained illegally.  Hence, the Opposite Party reduced the claim amount proportionately by incorrect NCB % declared.  On 01.03.2021 the Opposite Party sent a letter through registered post to the Complainant intimating that “It has been observed that even after several mails dated 19.02.2021, 28.01.2021, 03.02.2021 sent to the Complainant on his registered email id and final reminder dated 08.02.2021 sent to him through registered AD at his registered address for NCB recovery.  But there was no communication from him.  Hence the Opposite Parties were closing the file as No Claim”.  The Opposite Parties absolved themselves from any further liabilities arising out of that claim, “which the Complainant might note”.  The Opposite Parties also submitted that the Complainant has approached this Commission without any bonafides in an experimental nature suppressing the material facts regarding non-refund of the NCB obtained illegally.  Hence the Opposite Parties submitted to disallow the complaint with cost of the Opposite Parties.

4.  On going through the complaint, version, documents marked and the oral evidence adduced by the Complainant, the Commission raised the following points for consideration.

(1) Whether there has been any unfair trade practice/deficiency in

       service on the part of the Opposite Parties?

(2)  If so whether the Complainant has the right to get compensation?

(3)  Relief and Costs.

5. Chief affidavit was filed by the first Complainant through the second Complainant.  Ext.A1 to A3 documents were marked from the side of the Complainant and the second Complainant, the son of the first Complainant was examined as PW1.  The Opposite Parties had no evidence to adduce. 

6.  Point No.1:- On a detailed perusal of the complaint, version, documents marked and oral evidence adduced by the Complainant it is clear that the Complainant had a Private Car Package Insurance Policy with the Opposite Parties in respect of car No. KL 12 K 9647.  This Policy was renewed through Akshaya Centre.  These facts are admitted by the Opposite Parties, and by the Complainant in the oral examination of PW1.  The allegation of the Complainant is that, on meeting the vehicle with an accident, though he submitted the insurance claim application to the Opposite Parties seeking reimbursement of the cost of repairs of the vehicle amounting to Rs.15,872/- together with all documents, the Opposite Parties prolonged the matter perversely and at last the first Opposite Party issued a notice to the first Complainant on 01.03.2021 informing that they are closing the file as “No Claim”.  It is seen that the car was met with the accident during the period of insurance coverage of the policy.  The averments of the Opposite Parties are that (1) The Complainant had availed the own damage claim on the Policy in the year 2017-18, (2) As per the previous year policy 0% NCB was allowed in the policy on 09.02.2019 for the period 2018-19 and hence NCB for the period 2019-20 should be 20%, (3) But the Complainant obtained policy from Akshaya Centre by deducting 35% NCB instead of 20%.  (4) Though, this fact was brought to the notice of the Complainant demanding the refund of NCB recovery of an amount of Rs.1,162/-, through several notices including email and registered posts, the Complainant failed to refund the NCB (5)  Hence the Opposite Party reduced the claim amount proportionately by incorrect NCB% declared.  (6) Hence, finally the Opposite Party, on 08.02.2021, sent a registered letter in the registered address of the Complainant for recovery of the NCB. (7)  As there was no communication from the Complainant in spite of repeated notices, the Opposite Parties absolved themselves from future liabilities arising out of the claim.  To substantiate the averments of the Opposite Parties they have neither produced any documents nor have they given any oral evidence.  But in oral evidence the Complainant deposed that “35% No Claim policy A\phZn¨psIm­mWv C tkh\¯n \n¶pw R§Ä¡v t]mfnkn Cjyq sNbvXXv.   Ext.A1  C{]Imcw ]dªXmbn ImWp¶p F¦n icnbmWv.  No Claim 20% \v ]Icw 35%  deduct  sNbXmWv kzoIcn¨sX¶pw 15% Xncn¨S¡Wsa¶pw ]dªv I¼\n t\m«okv Ab¨ncp¶p”. Here it is understood that the Complainant had availed an excess 15% NCB in respect of the policy as the E-seva Kendram of the Akshaya centre issued the renewed policy with 35% NCB instead of eligible NCB of 20%.  That is, the Complainant had availed additional 15% of NCB than the 20% eligible NCB.  It is admitted by the Complainant in oral evidence that the insurance company had noticed the matter to the Complainant demanding refund of the NCB of 15%.  On a careful scrutiny of the issue in depth, the Commission observes that though the Opposite Party issued notice to the Complainant stating “No claim” under the policy, the Opposite Party had neither cancelled the policy nor refunded the insurance premium collected from the Complainant till the date of accident of the vehicle.  Instead they had kept the policy premium collected up to the date of accident and on claiming the benefit under the policy they declared that the Complainant has no eligibility to get claim under the policy, as 15% of NCB has not been refunded by the Complainant.  In the version filed by the Opposite Parties, it is stated that they had sent notices to the Complainant demanding Rs.1,162/- on 19.01.2021, 28.01.2021, 03.02.2021 and on 08.02.2021, keeping the policy live up to the date of 08.02.2021.  It is true that the Complainant failed to refund Rs.1,162/- being the excess NCB availed.  But at the same time the Opposite Parties continued to send a series of notices to the Complainant instead of cancellation of the policy.  After sending a primary notice and a final notice the Opposite Party ought to have cancelled the policy and they were at liberty to do so.  Instead of doing this they kept the policy live, kept the collected premium under their custody without refunding it and without accepting the claim of the Complainant.  So keeping the premium amount already received from the Complainant, which constitute a major part of the premium, and issuing repeated notices on several times and keeping the policy live and intimating  “No Claim” on the policy to the Complainant is not fair but unfair.  Keeping the premium amount remitted by the Complainant, the Opposite Parties have tried to get unlawful enrichment of money from the Complainant in an unfair manner.  It is true that the Complainant has not refunded the 15% of NCB ie, Rs.1,162/-.  Still a substantial portion of the premium amount has been received and kept by the Opposite Party towards the premium for unlawful enrichment.  Instead they ought to have accepted the claim of the Complainant in proportion to the total premium and the remitted premium, as the Opposite party has received a major portion of the premium and kept the policy live.  So long as a major part of the policy premium was kept by them without cancellation of the policy and without refund of the premium collected, the act of the Opposite Parties is considered to be a deemed acceptance of the policy.  Commission accepts that contract of General insurance is a contract of indemnity and hence the general principles of insurance and the terms and conditions of the contract of insurance are to be followed by the parties to the contract.  In the present case the insurance policy of the vehicle was a continuing one from years back with the Opposite Party and when the Complainant failed to refund the excess NCB availed, to the Opposite Party, they had to refund the policy premium without accepting the policy, to the Complainant after intimating the fact to him. They did not do so.  But they continued to issue a series of notices without cancellation of the policy and without refund of the premium collected and without accepting the claim of the Complainant who is a senior citizen.  Here, the Opposite Parties have not acted in good faith.  This is against the principles of natural justice and is unfair trade practice/deficiency in service, so as to get unjustifiable enrichment of money from the Complainant.  So, there has been unfair trade practice/deficiency in service on the part of the Opposite Parties.  So the Complainant has the right to get the policy coverage in proportion to the total policy premium due and the actual premium remitted by him. Here, the Complainant has not remitted the excess NCB availed by him to the Opposite Party.  So the Complainant is entitled to get the policy benefit proportionately ie the total claim amount X actual premium paid by the Complainant ÷ total premium due = 15872x8054 ÷ 9216 =13,870.77; rounded off to Rs.13,871/-.  So Point No.1 is proved in favour of the Complainant.

7.  Point No.2:-   As Point No.1 is proved in favour of the Complainant he is entitled to get compensation but the amount of compensation claimed by him is seen exorbitant and hence he will get a reasonable compensation of Rs.10,000/-.  So Point No.2 is also proved in his favour.

8.  Point No.3:-  As Point No.1 and 2 are proved in favour of the Complainant  Point No.3 is also proved in his favour.

In the result, the Complaint is partly allowed and the Opposite Parties are ordered to

1.  Pay the claim amount of Rs.13,871/- (Rupees Thirteen Thousand Eight Hundred and Seventy One Only)
2. Pay an amount of Rs.10,000/- (Rupees Ten Thousand Only) as compensation and
3. Pay Rs.5,000/- (Rupees Five Thousand Only) as cost of the proceedings.

The above amounts shall be paid to the Complainant jointly and severally by the first and second Opposite Parties within one month from the date of this order, failing which the amounts will carry interest @ 8% per annum from the date of this Order.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 27^th day of August 2022.

Date of Filing:-16.08.2021.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the complainants:-

PW1.              Jobin Jose.                                        Resort Employee.

Witness for the Opposite Parties:-

                        Nil.     

Exhibits for the complainants:

A1.                  Copy of Registration Certificate.

A2.                  Copy of Private Car Package Policy for the period of 09.02.2020 to

                       08.02.2021.

A3.                  Tax Invoice.                                                  Dt:31.12.2020

Exhibits for the Opposite Parties:-

                        Nil.     

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                               Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.