BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM FATEHABAD.
C.C.No.289 of 2015.
Date of Instt.:06.11.2015.
Date of Order: 13.01.2017.
M/s Pawan Trading Company, opposite Nehru Park, Bhiwani District Bhiwani through its proprietor Sushil, Bawani Wale
..Complainant.
Versus
1.United India Insurance Company Limited, 1st Floor, DSS-II opposite Town Park, Town Centre, Bhattu Mandi, District Fatehabad, through its Branch Manager.
2.United India Insurnce Company Limited, Fatehabad, District Fatehabad through its Divisional Manager.
3.United India Insurance Company Limited, Registered and head office: 24, Whites Road, Chennai-600014 through its Managing Director.
…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986
Before: Sh.Raghbir Singh, President.
Smt.Ansuya Bishnoi, Member.
Present: Sh.K.K.Jangra, & Sh.B.L.Narula, counsels for complainant.
Sh.N.D.Mittal, counsel for the OPs.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.
2. Brief facts of the present complaint are that complainant being registered owner of vehicle TATA Manza Car bearing registration No.HR-16-J-0960 got it insured with Opposite Parties (hereinafter to be referred as ‘OPs’) vide policy No.111986/31/11/01/00003308 having validity from 23.02.2012 to 22.02.2013. Said vehicle met with an accident on 12.10.2012 and as a result thereof vehicle was completely damaged and its driver and one other occupant also died in this mishap. Regarding this a Rapat No. 29 was also lodged in police station Kot Dharmu, District Mansa (Punjab) on dated 12.10.2012. It has been further averred that intimation regarding this was given to the OPs and claim was also lodged by submitting all the requisite documents. Thereafter, surveyor of OPs inspected the damaged vehicle and assessed the loss to the tune of Rs.6,07,555/-. Since the IDV of the vehicle was Rs.4,50,000/- but the surveyor had assessed net loss to the tune of Rs.2,99,500/- after deducting the salvage of damaged car alongwith RC Rs.1,50,000/- and Rs.500/- being loss policy clause. The complainant visited the Ops many a times but they repudiated the claim of the complainant vide letter dated 08.11.2013 which is against the mandatory provisions of law and insurance policy. The act and conduct of the Ops clearly amounts to deficiency in service on their part.
3. On being served, OPs appeared and contested the complaint of the complainant by filing joint reply wherein it took several preliminary objections such as suppression of material facts from this Forum and barred by limitation etc. It has also been submitted that at the time of getting the insurance of the vehicle in question the complainant had wrongly and illegally claimed No Claim Bonus to the tune of 20 % amounting to Rs.1866/- by giving written declaration that it had not availed any claim during the previous policy. It has been further submitted that the earlier policy was issued by National Insurance Company Limited for the period from 18.02.2011 to 17.02.2012 and during that policy the complainant had obtained No Claim Bonus from National Insurance Company. The complainant had undertaken that if the declaration made by him was found to be incorrect then the policy contract stands forfeited as per Section 1. The claim of the complainant was rightly repudiated vide letter dated 08.11.2013 as the complainant had intentionally withheld the material information qua obtaining of NCB during the previous policy. However, the ops got the loss assessed from surveyor who assessed loss to the tune of Rs.2,99,500/- on net of salvage value basis but this amount could not be paid as the complainant has violated the terms and conditions of the policy, therefore, the complainant cannot seek compensation for his own damage. It has been further submitted that the complainant is estopped to file the present complaint being not filed within the period of 12 calendar months as the claim was repudiated on 08.11.2013 but the present complaint has been filed in the year 2015 i.e. much beyond 12 calendar months and it is in violation of the terms and conditions of the policy which provides that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been made subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. Other pleas taken by the complainant in his complaint have been controverted and prayer for the dismissal of the complaint has been made.
4. The parties have led their evidence in the form of affidavits and documents. The complainant has tendered in evidence affidavit of Sh.Sushil Kumar as Ex.CW1/A and documents Annexure C1 to Annexure C9 whereas the Ops have tendered affidavit of Sh.K.R.Jain, Divisional Manager as Ex.RW1/A and documents Annexure R1 to Annexure R8. Thereafter, the evidence of both the parties have been closed
5. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OPs-insurance company reiterated the averments made in the reply and prayed for its dismissal.
6. Learned counsels for the complainant has submitted written argument, wherein it has been contended that the vehicle in question met with an accident during the subsistence of the policy but the ops wrongly and illegally repudiated the claim with remarks that said policy was issued by giving 20 % (Rs.1866/-) as no claim bonus on the previous policy. It has been further argued that there is no breach of contract and violation of terms and conditions of the policy because the agent of the insurance company had neither disclosed any fact about No Claim Bonus nor obtained the signatures of the complainant on any declaration. It has been further contended that as per GR-27 of Indian Motor Tariff it was the duty of the insurance company to inquire about this fact from the previous insurance company before issuing of the said policy. In support of this contention learned counsels for the complainant have placed reliance of case law titled as Meena Kanwar Vs. NIC 2015 (4) CPJ 10 (Rajasthan) .
7. Learned counsels for the complainant in their written arguments has further contended that if there is any breach of warranty or condition of policy, even then the claim cannot be denied in toto and the complainant is entitled to get 75 % of the admissible claim on non-standard basis. In support of this argument they relied upon case laws titled as National Insurance Company Limited Vs. Jagir kaur II (2016) CPJ 459 (NC) and United India Insurance Company Limited Vs. Bhupinder Singh 2013(2) CPJ 335 (NC).
7. Learned counsel for the Ops has argued that the complainant is not entitled for any claim as he himself has violated the insurance contract because in the previous policy the complainant has availed 20 % of No Claim Discount wrongly and illegally. It has been further argued that the claim of the complainant has rightly been repudiated on 08.11.2013 as false declaration is clear cut breach of terms and conditions of the policy, therefore, the claim of the complainant cannot be settled even on non-standard basis. In support of his contentions learned counsel for the Ops has placed reliance of case laws titled as Harjinder Singh Vs. Branch Manager Oriental Insurance Co. decided on 15.02.2016 by Hon’ble National Commission in RP No.1521 of 2015, Inder Pal Rana vs. National Insurance Company decided by Hon’ble National Commission on 02.01.2015 in RP No.4470 of 2014, Brij Bhushan Vs. National Insurance Company Limited decided by Hon’ble National Commission on 2208.2012 in RP No.33 of 2012 and United India Insurance Company Vs.Ranjit Singh and another decided by Hon’ble Punjab & Haryana High Court on 08.03.2013 in CR No.5786 of 2011. It has been further argued the present complaint had been filed in the year 2015 i.e. much beyond 12 calendar months and it is in violation of terms and conditions of the policy which provides that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within twelve calendar months from the date of such disclaimer have been made subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. In support of this plea learned counsel for the OPs has relied upon case laws titled as National Insurance Co.Limited Vs. Sujir Ganesh Nayak & Co.& Anr., H.P.State Forest Company Limited Vs. United India Insurance Co.Limited 2009 (CPJ 1 (SC) and M/s Global Ispat Limited Vs. Oriental Insurance Company decided on 10.09.2019 by Hon’ble National Commission in FAP No.13 of 2013.
8. After going through the material available on the case file, we have no hitch to say that the complainant has not been able to prove his case by leading cogent and reliable evidence. It is a settled principle of law that he who seeks equity must do equity with others but in the present case on one hand the complainant himself has breached the policy conditions and on the other hand approached to this Forum. The fact regarding obtaining of NCB of 20 % by the complainant is well established on the case file and this fact has not been denied by the complainant. Wrong declaration made by the complainant makes him dis-entitle for any claim/compensation as held by Hon’ble National Commission in case titled as Inder Pal Rana vs. National Insurance Company (supra). Moreso, Hon’ble Supreme Court of India in United Insurance Co. Ltd. Vs M.K.J. Corporation, III (1996) CPJ 8(SC), laid down the principle of law, that it is a fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from non-disclosure of the facts, which the party privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing the contrary. To the similar effect, the principle of law, was laid down in Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd I(2000)CPJ1(SC)2000. In C.A. No.5322 of 2007, P.C.Chakko & Anr. Vs Chairman, LIC & Others IX(2007) SLT 533=IV(2007)ACC773(SC), the Apex Court observed in para 16 as under ;
“The purpose for taking a policy of insurance is not, in our opinion, very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bona fide. It must appear from the face of the record. In a case of this nature it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the Contract of Insurance, if discovered may lead to the police being vitiated in law.”
We are in agreement to the contentions put-forth by learned counsel for the Ops because the complainant is neither entitled for any claim nor his claim is further covered under the definition of Non-standard basis as granting of 75 % of claim under Non-standard basis would amounts to re-writing of the policy conditions. Hon’ble Punjab & Haryana High Court while deciding the case titled as United India Insurance Company Vs.Ranjit Singh and another (supra) has observed as under:
It is solemn obligation of the assured to disclose all true facts. In this regard, the Hon'ble Apex Court in case General ssurance Society Ltd. Vs. Chandumull Jain & another (1966) 3 SCR 500, observed as under:-
"..the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves."
The aforesaid judgment was followed by the Hon'ble Apex Court in a subsequent judgment rendered in case Life Insurance Corporation of India Vs. Smt. G.M. Channabasamma, AIR 1991(SC) 392, wherein it was also observed that the assured is obliged to be truthful with the company and disclose true facts.
Thus, in view of the provisions of GR-27 of IMT, which governs the grant of 'No Claim Bonus' and the consequences of claiming false 'No Claim Bonus', the claim of respondent No.1 could not be sustained. The action of respondent No.2 in granting 75% of the claim amount to respondent No.1 would amount to re-writing the policy conditions and as such, clearly violates the settled principles of law as laid down by the Hon'ble Supreme Court in the aforesaid judgment.
The present case is also squarely covered by the latest judgment of the Hon'ble Supreme Court in case M/s Suraj Mal Ram Niwas Oil Vs. United India Insurance Co., (2010) 10 SCC 567, wherein it was observed as under:-
"24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words in which the contract is expressed by the parties."
In the present case the complainant has violated the terms and conditions of the policy by not disclosing the material facts regarding taking NCB from the insurance company. Though learned counsel for the complainant has argued that the agent of the insurance company had neither disclosed about the fact qua taking of NCB and nor obtained the signatures of the complainant on any declaration but this plea is not tenable as he has failed to produce any reliable and cogent evidence on the case file in support of his assertions. It is settled principle of law that mere assertion without any credible evidence has no value in the eyes of law. Since there is consent of insurance company in issuing the present policy but when the insured had made mis-representation and concealed the material facts from the company then the contract turned into void and the insurance company cannot held liable for any claim. This plea is fully covered by the case laws titled as Harjinder Singh Vs. Branch Manager Oriental Insurance Co. decided by Hon’ble National Commission on 15.02.2016 and Inder Pal Rana vs. National Insurance Company decided by Hon’ble National Commission on 02.01.2015 (supra) relied upon by learned counsel for the Ops. The act and conduct of the Ops by repudiating the claim is well reasoned and justified and it cannot be held illegal.
9. Learned counsel for the OPs has rightly argued that as per policy condition of the insurance, the present complaint was to be filed within 12 calendar months but the present complaint was filed only on 06.11.2015 i.e. much beyond the prescribed limitation of 12 calendar months as the claim of the complainant was repudiated on 08.11.2013. The plea find supports from the case law titled as H.P.State Forest Company Limited Vs. United India Insurance Co.Limited 2009 (CPJ 1 (SC) (supra) wherein Hon’ble Apex Court has held that Limitation-Claim- if not pressed within 12 months from date of loss, insurance company ceases to be liable- No claim/arbitration proceedings made during prescribed period- Insurer not liable under policy-No relief entitled. Further, Hon’ble National Commission while disposing of FAP No.13 of 2013 titled as M/s Global Ispat Vs. Oriental Insurance Company on 10.09.2014 (supra) has held that if the complaint has not been filed within 12 months from the date of repudiation then the same is barred by limitation and the complainant will not be entitled to get any benefit of limitation provided under CP Act. The verdict made in the case laws relied upon by learned counsel for the complainant is not disputed. However, in view of the legal position as discussed abvoe, there is no deficiency in service on the part of the OPs and the case laws relied upon by learned counsels for the complainant are not applicable to the present case.
10. Hence, in view of above discussed factual as-well-as legal position, we are of the considered view that the present complaint is liable to be dismissed. We order accordingly. There is no order as to costs. A copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
Announced in open court:
13.01.2017 (Raghbir Singh) President, District Consumer Disputes Redressal Forum, Fatehabad.
(Ansuya Bishnoi) Member
