Delhi

East Delhi

CC/59/2019

MAHKAR SINGH - Complainant(s)

Versus

ROYAL SUNDERAM G.I.C. - Opp.Party(s)

27 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.59/2019

 

	MAHKAR SINGH S/o Attar Singh R/o:- B-1181, Block-B, Dairy Farm, Gharoli, Delhi-96	….Complainant
Versus
	The Manager/Head ROYAL SUNDARAM GENERAL INSURANCE CO. Ltd 108/109 & 111, First Floor Ambadeep 14 K.G. Marg, New Delhi-110001	……OP

 

Date of Institution: 14.02.2019

Judgment Reserved on: 13.10.2022

Judgment Passed on: 27.10.2022

               

CORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Ritu Garodia (Member)

 

JUDGEMENT

1. The complaint pertains to deficiency in service on the part of OP in repudiating the claim of the Complainant. w.r.t his stolen vehicle.
2. Brief facts as stated by the Complainant in his complaint are that he is/was the owner of Maruti, Swift VDI Car bearing registration No. DL-5CK-9403.  He insured the vehicle with OP vide Policy No.DPC0919234000100 dated 13.12.2017 covering a period of one year from 31.12.2017 to 30.12.2018 for a sum of Rs.4,05,000/-, and paid the premium of Rs.15,293/-. Thereafter the OP issued the Policy documents. 
3. In the intervening night of 17.02.2018 and 18.02.2018 the Complainant’s vehicle was stolen. A case of theft was registered under Section 379 IPC at Police station, Ghazipur vide FIR No.005632/18 dated 20.02.2018. Intimation regarding this theft was given to OP and a claim was filed.  OP deputed Shri Lakshay Jain of Jain and Associates for investigation/survey. Claim was repudiated by OP on 02.07.2018 on the ground that the Complainant has availed 20% NCB on the policy but in fact he was not eligible for NCB, for he had availed certain claim in the previous year from the previous insurance.
4. The complainant has accordingly filed the present complaint  and prays for the claim amount of Rs.4,05,000/- along with interest @ 18% per month, compensation of Rs.5,00,000/- and litigation expenses of Rs.90,000/-. 
5. OP in its reply has admitted that the Complainant took a private car package policy subject to terms and conditions. After the proposal form was duly filled by the Complainant, the policy was issued. OP has relied on the investigation report by Lakshay Jain and Associates. The said report dated 26.03.2018 states that the Complainant had taken up previous claim with HDFC Ergo.  It is stated that the Complainant had prejudiced the right of the insurance to ascertain the risk and rate at which the vehicle could have been insured.  OP sought information from the previous insurer regarding the claim made under the previous policy, and has filed the correspondence with the previous insurer. Since the information w.r.t. previous claim was not given by the complainant while taking the policy, and the policy was obtained by misrepresentation/concealment of material fact this, his claim was repudiated. 
6. The Complainant has reaffirmed in the replication the averments made in the original pleadings. He has submitted that OP has deliberately not supplied the proposal form of the policy with its reply. He has also stated that no information have been hidden from the executive of OP at the time of taking the policy. However the complainant has not denied the fact in the replication that he had taken the claim in the previous year.
7. The Complainant has filed evidence by way of affidavit and has exhibited the following documents:

1. Copy of Policy along with payment receipt is exhibited as Ex-CW1/A.
2. Copy of FIR is exhibited as Ex-CW1/B.
3. Copy of repudiation letter exhibited as Ex-CW1/C.
4. Copy of legal notice is exhibited as Ex-CW1/D. 

8. OP has filed affidavit of investigator Shri Lakshay Jain.  OP has exhibited investigation report as RW2/1.  OP has also annexed communication between the parties. 
9. The Commission has perused the pleadings and documents and considered the arguments.  It is undisputed that the Complainant is/was the owner of Maruti, Swift VDI Car, bearing registration No. DL-5CK-9403 and has taken a policy from OP bearing No.DPC0919234000100 dated 13.12.2017, running from 31.12.2017 to 30.12.2018. The car was stolen in the intervening night of 17.02.2018 and 18.02.2018.  It is admitted that OP received the intimation regarding the theft of the vehicle and deputed an investigator to verify the claim. OP has appointed the surveyor ‘Jain and Associates’ to investigate the loss. OP has raised a contention that the car was stolen on 18.02.2018, and FIR was lodged on 20.02.2018. The investigator report dated 26.02.2018 clearly states that the Complainant had given a written complaint to Police Station, Ghazipur on 18.02.2018 and there was no delay in intimating to the police.
10. The investigator assesses the claim as follows:
    3904917712950.  

“In my opinion, the theft of Maruti Swift VDI BSIV (M) Car No. DL 5CK 9403, Chassis No. MA3FHEB1S00803060, Engine No. D13A553420, Color White Model 2014, appears to be true and genuine as per inquiries & submitted documents.

There is no malafide intention on the part of the insured in preferring claim from the insurers.

*The above vehicle was in the physical possession of Mr. Mehkar Singh immediately before the theft incidence.

Also, no breach of any term, exception, limitation, endorsement and condition of the policy has come to my knowledge or has been noticed and as such the insurer may process the claim as per terms & conditions of the policy.”

11. The theft is therefore genuine as admitted by both the parties.
12. However, the claim was repudiated vide letter dated 02.07.2018. The said letter states that the claim is repudiated as the Complainant had preferred a claim with the previous insurer and was not eligible for ‘no claim bonus’. As the Complainant has availed 20% NCB with OP by misrepresenting the facts the claim was rejected. OP has also filed correspondence with HDFC Ergo General Insurance Co. The said correspondence shows that one claim was paid to the Complainant by HDFC Ergo General Insurance Co. The Policy certificate shows that 20% deduction was made on account of no claim bonus. This fact although was not confirmed by the surveyor, yet as per the document filed by OP in the form of mail, as read the previous insurance co. the fact has been proved by the OP. 
13. The issue for determination is whether the insurance is liable to pay the claim of the Complainant despite the fact that complainant has concealed the fact of having taken claim from the previous insurance, and has concealed the fact from the OP, and has paid lesser premium on account of wrong declaration or whether the OP was justified in repudiating the claim in toto.
14. To decide the issue, the provisions of GR 27 of Indian Motor Tariff need to be taken into consideration which deals with NCB of the insured vehicle.  As per GR 27 an insured becomes entitled to NCB on the renewal of the policy after the expiry of full duration of 12 months.  In the event of insured transferring the insurance from one insurer to another insurer, evidence of the NCB entitlement should be provided either in the form of renewal notice or a letter confirming the NCB entitlement from the previous insurer. In the absence of above two requirements, NCB may be permitted after obtaining a declaration from the insured.  Thereafter, the Insurance will be obliged to write to the previous transferee/insurer within 21 days regarding the NCB who would be obliged to provide the information within 30 days from the receipt of the letter. 
15. Undisputedly, insurance was obtained from the new insurer on this 31.12.2017 and the theft took place on 18.02.2018.  As per GR 27 of the Indian Motor Tariff the insured can take benefit of no claim bonus, only if he provides the information that he had not taken any claim during the period of previous policy.  If the insured does not furnish such information, the Insurance Co. can take a declaration from the insured and then collect information from the previous insurer by writing a letter within 21 days failing which it would constitute, the breach of the Indian Motor tariff on part of the insurer. In instant case, the Insurance Co. has failed to produce any evidence that any declaration was taken from the Complainant at the time of issuing the policy or that any letter was written to the previous insurer within 21 days as required.
16. In fact, the correspondence relied upon by the OP shows that a letter was written to the HDFC Ergo General Insurance Co. on 23.02.2018 after receiving the information of the theft of the Complainant’s vehicle. It is clear that OP has acted in a way that resulted in a breach of condition. Simultaneously the complainant has also not disclosed the true facts to the insurance company while taking the policy.  
17. Hon’ble National Commission in Anjani Gupta V/s Future General Insurance decided on 12.12.2017 has observed as under:

“4. The legal issue involved in this petition is no more res-integra the same having already been decided by a Three-Members Bench of this Commission in RP No.1836 of 2016, Branch Manager, National Insurance Company Ltd. Vs. Naresh Kumar decided on 20.02.2017. The Three-Members Bench took the following view in the above referred matter:

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."

18. Thus, it is clear that if no claim bonus is wrongfully/fraudulently taken by the insured, the Complainant is entitled to reimbursement of the loss subject to the proportional reduction in the claim.  Since, ‘no claim bonus’ was availed by the Complainant @ of 20%, the amount payable is also reduced by 20%. 
19. Accordingly the Commission is of the opinion that there is deficiency of service on the part of OP in rejecting the claim in toto, and accordingly OP is directed to pay:

1. IDV of Rs.4,05,000/- after deducting 20%.
2. To pay interest @ 9% p.a. on the reduced amount from the date of filing claim till realization.
3. However in these circumstances no order is passed thereby granting compensation to the complainant, but litigation cost of Rs.5000/- is awarded.

This order be complied with within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 27.10.2022