Chandigarh

StateCommission

CC/100/2023

Neki Ram Kishori Lal - Complainant(s)

Versus

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

Pankaj Chandgothia Adv.

30 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	100 of 2023
Date of Institution	:	12.09.2023
Date of Decision	:	30.04.2024

 

M/s Neki Ram Kishori Lal, Through its Proprietor Subhash Kumar, Sabji Mandi, Near Post Office, Baddi, District Solan (HP)-173205 Presently residing at: First Floor, SCF 62, Sector 30 C, Chandigarh-160030 Email:nrklbaddi@gmail.com Mobile: 9318944375

 

…… Complainant

V e r s u s

1. United India Insurance Co. Ltd. SCO No. 855, 1st Floor, NAC, Manimajra, Chandigarh-160101, through its Manager. Phone: 01724005235 Email: vishul@uiic.co.in
2. Mr. Gurjeet Singh, Agent, United India Insurance Co. Ltd. SCO No. 855, 1st Floor, NAC, Manimajra, Chandigarh-160101. (Mobile: 9417250671)
3. M/s Canara Bank, Near Dawat Chowk, Sai Road, Baddi, Solan HP-173205., Through its Manager.
4. Insurance Regulatory and Development Authority of India (IRDAI), Gate No.3, Jeevan Tara Building, First Floor, Sansad Marg, New Delhi-110001.

…..Opposite parties.

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-              Sh.Pankaj Chandgothia, Advocate for the complainant.

Sh.Raj Kumar Bashamboo, Advocate for the opposite party no.1.

Opposite parties no.2 to 4 exparte vide order dated 06.10.2023.

 

RAJESH K. ARYA, MEMBER                  

                   The complainant by way of filing this complaint is seeking directions to OPs No.1 and 2 to pay the insured declared value to the tune of Rs.17.30 lacs alongwith interest of the insured vehicle in question, theft whereof took place during subsistence of the insurance policy bearing no.1116043121P108826570 (valid from 05.12.2021 to 04.12.2022) issued by them; to refund the amount received by them for renewal of the said policy, as the vehicle in question stood stolen before issuance of the said policy; and also to pay compensation for mental agony, harassment, deficiency in service and also unfair trade practice etc.

2.           Following pleas have been taken by the complainant in his complaint:-
   1. that various terms and conditions contained in the insurance policy amount to unfair contract, which attracts section 47 of the CPA 2019;
   2. that the insurance company did not appraise and evaluated the underwriting and also did not comply with the requirements of relevant rules and regulations;
   3. that at the time of issuance of the policy in question, OP No.2 did not inspect the vehicle in question and even did not get any proposal form signed from the complainant;
   4. that copy of the earlier insurance policy of the vehicle in question was supplied to OP No.2 but the complainant never asked for any discount on the premium amount or additional rider on the OD damage;
   5. that the vehicle in question was stolen on the late night of 27.11.2022 from Udgoy Nagar, Delhi for which FIR was lodged on 28.11.2022;
   6. that despite the fact that the OPs No.1 and 2 were informed immediately and untraced report dated 28.02.2023, Annexure C-5 was also provided to OPs No.1 and 2 yet, they delayed the claim for more than five months and kept on asking documents from the complainant which were provided to them;
   7. that despite the fact that the OPs No.1 and 2 were liable to pay the IDV of Rs.17.30 lacs to the complainant, yet, vide  email dated 17.08.2023, Annexure C-8 it was informed by the insurance company that it will pay only an amount of Rs.949500/- i.e. after deducting NCB recovery to the extent of 45% on the ground that he had already taken claim against his previous policy, despite the fact that the insurance company never asked such fact from the complainant.
   8. that against the NCB to the extent of Rs.5074.92, the insurance company wanted to usurp huge amount out of the IDV whereas, only an amount of Rs.5074.92 could be deducted by it and even this amount of Rs.5074.92 is also wrongly calculated by the insurance company;
   9. that the insurance company even renewed  the policy in question for the period from 05.12.2022 to 04.12.2023 on receipt of premium amount, fully knowing well that the vehicle in question has already been stolen and that the claim thereof is pending adjudication and even in this  renewed policy, NCB discount to the extent of 50% was given
   10. that thereafter the insurance company indulged into unfair trade practice by asking the complainant to furnish his consent for release of amount of Rs.949500/- and even various deductions were illegally made in arriving at this amount even;
3.           Hence this complaint.
4.           Despite service, none put in appearance on behalf of OPs No.2 to 4, as a result whereof, they were proceeded against exparte vide order dated 06.10.2023
5.           Opposite party no.1 in its written reply while admitting factual matrix of the case with regard to issuance of policy in question in respect of the vehicle in question and also its theft, as per details given in the consumer complaint, took numerous pleas/ objections as under:-
   1. that this Commission is not vested with pecuniary jurisdiction to entertain this complaint and this complaint did not fall under section 47 of the CPA 2019;
   2. the complaint is bad for misjoinder of necessary parties and OPs No.2 to 4 have been wrongly impleaded;
   3. that proposal form was duly signed by the complainant, after affixing his seal declaring that the rate of NCB claimed by him is correct and that no claim has arisen from the previous policy and accordingly discount was given qua premium of the policy in question;
   4. that the complainant concealed the fact regarding obtaining of insurance claim qua the vehicle in question from the previous insurer and as such obtained discount qua NCB;
   5. that an amount of Rs.798500/- was therefore deducted by OP No.1 to the extent of 45% of NCB obtained by the complainant and also after deducting excess clause as per terms and conditions of the policy in question;
   6. that the fresh policy after theft of the vehicle in question was  infact obtained before theft of the  said vehicle and was accordingly issued on the basis of disclosures made to the agent of OP No.1. However, refund of premium  will be made on the request of the complainant

 

6.           Remaining averments were denied by OP No.1 and prayer has been made to dismiss the complaint with costs.
7.           In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those contained in written statement filed by OP No.1 and also filed additional documents, Annexure C-14 and C-15.
8.           This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents by way of application(s).
9.           We have heard the contesting parties and have carefully gone through the entire record of the case.
10.           First coming to the question, as to whether, this Commission is vested with pecuniary jurisdiction to decide this complaint or not, it may be stated here that since the  complainant has challenged various terms and conditions of the policy in question, Annexure C-2 and also of the proposal form, as such, irrespective of the fact as to what amount has been paid by the complainant, this complaint is maintainable before this Commission in view of the provisions of Section 47 (i) and (ii) of the CPA 2019. As such, objection taken by OP No.1 in this regard stands rejected.  
11.           Now coming to the merits of this case, it may be stated here that after going through the entire record of the case, we are of the considered view that the conclusion arrived at by the insurance company to the effect that the complainant is entitled to get insured amount in respect of the insured stolen vehicle, after deduction of 45% of the claim amount, cannot be faulted at, for the following reasons:-
    1. Firstly, it is clearly coming out from the proposal form, Annexure R-2, for obtaining the policy in dispute, valid for the period from 05.12.2021 to 04.12.2022, that the complainant has stated that he has not preferred any claim under the previous policy, yet, later on the fact that statement of the complainant turned to be misleading and incorrect, from the perusal of  previous insurance policy (The Oriental Insurance Company Limited), Annexure R-6, wherein, it was clearly mentioned that the complainant has already claimed 35% of NCB and this fact has now not been disputed by the complainant;
    2. Secondly, it is also coming out from the proposal form, Annexure R-2, which has been signed by the complainant underneath his rubber stamp, that though the fact that the complainant was entitled for NCB to the extent of 35%, yet, he took NCB to the extent of 45% i.e. Rs.5074.92ps, at the time of obtaining the said policy;
12.           Under above circumstances, when the complainant at the time of obtaining the policy in question, himself concealed the material fact regarding obtaining of claim from previous insurance policy, irrespective of the fact that the insurance company was also legally bound to get this information from the previous insurance company,  the complainant is  entitled to get the IDV of the vehicle after deducting 45% out of the same, in view of the ratio of law laid down by the Hon’ble National Commission in National Insurance Company Limited Versus Harpreet Singh, III (2016) CPJ 58 (NC) wherein it was held that in cases where the insured had obtained policy by concealing the fact regarding NCB, irrespective of the fact that the insurer fails to get the said information from previous insurer, equity demand that bonus payable to the insured should be decreased to the extent of NCB.
13.           As far as plea taken by the counsel for the complainant that the proposal form, Annexure R-2 was never signed by the complainant and that he was not conversant with English but on the other hand, he had only handed over the rubber stamp to the agent of the insurance company, who has misused the same, while filling the blank proposal form, as per the convenience of the company, it may be stated here that this plea is not supported by any cogent evidence. Furthermore, it is very strange to note that a proprietor of the company will hand over its rubber stamp to any third person.

                   As far as plea taken by counsel for the complainant that the proprietor of the complainant is not conversant with English and as such the proposal form was signed blank by the  complainant in Hindi but filled by some agent of the company in English, it may be stated here that this plea also has no legs to stand because the proprietor of the complainant has failed to give any justification, as to why he has made his rubber stamp in English, if he was not at all conversant with English.  Furthermore, it is settled law that a person signatory to any document cannot wriggle out of the same. Under these circumstances, plea taken by counsel for the complainant in this regard stands rejected.

14.           Now coming to the question, as to whether, the complainant is entitled to any relief or not. It may be stated here that it has been candidly admitted by the insurance company vide email dated 17.08.2023, Annexure C-8, that the complainant is entitled to an amount of Rs.9,49,500/- after deducting NCB to the extent of 45% out of Rs.1730000/- and less excess of Rs.2000/- as per policy. However, the insurance company failed to convince this Commission, as to what stopped them for releasing this amount of Rs.9,49,500/- to the complainant. Thus, by retaining the said amount of Rs.9,49,500/- by the insurance company, financial loss has been caused to the complainant. On the other hand, the insurance company was  bound to make payment of the said amount, within a period of three months from the date of submission of the claim by the complainant.
15.           Now coming to the refund of premium received by the insurance company for renewal of the policy is concerned, it may be stated here that perusal of record reveals that the vehicle in question was stolen on 27.11.2022, yet, the policy in question was renewed by the insurance company for the period from 05.12.2022 to 04.12.2023, Annexure C-9 and C-10, on receipt of premium amount of Rs.21,953/-. The insurance company has failed to give justification as to how it has insured the stolen vehicle after obtaining premium from the complainant. To our mind, the complainant is entitled to get refund of amount of Rs.21,953/- with interest.
16.           For the reasons recorded above, this complaint is partly accepted, with costs and OP No.1 (Insurance Company) is directed as under:-
    1.     To pay the claim amount of Rs.9,49,500/- to the complainant alongwith interest @9% p.a. from the date of expiry of three months, from the date of filing the claim by the complainant.
    2.     To refund the amount of Rs.21,953/- alongwith interest @9% p.a. from the date of receipt thereof.
    3.     To pay compensation to the tune of Rs.50,000/- and also cost of litigation to the tune of Rs.10,000/- to the complainant.
    4.     This order be complied with by OPs No.1 and 2, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the awarded amounts shall carry interest @12% p.a. from the date of default, till realization.
17.           Complaint against OPs No.2 to 4 is dismissed with no order as to cost.
18.           All pending applications stand disposed of, accordingly.
19.           Certified copies of this order be sent to the parties, free of charge.
20.           The file be consigned to Record Room, after completion.

 

Pronounced.

30.04.2024

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 [RAJESH K. ARYA]

MEMBER

 Rg