Judgment & Order dt. 28.02.2018
Repudiation by the OP i.e. National Insurance Company Ltd. to the claim of the complainant who is an insuree of the OP has galvanized the complainant to lodge this complaint u/s 12 of the CP Act, 1986.
The complainant’s case in brief is that the complainant / petitioner is a registered owner of Bus No.WB-61/2933 and she insured the vehicle with the OP and purchased a package policy from the OP. The National Insurance Company Ltd. Vide No.150703/31/16/6300001789 on 24.5.2016 and same was valid up to date 23.5.2017.
That as per said policy the complainant’s vehicle has been covered by own damage coverage for sum assured of Rs.2,25,000/- as insurer’s declared value was Rs.2,25,000/- at the time of insurance.
That the vehicle was damaged in a road accident and for its repairing the complainant spent Rs.1,93,806/- only.
That the complainant applied before the OP for getting the repairing estimated cost of Rs.1,62,670/- due to accidental damage of the bus and requested the OP insurance to make arrangement of repairing cost but no suitable attempt was made on behalf of the OP. But, on 12.9.2017 the OP informed the complainant through a letter and stated that “on the basis of your declaration regarding eligibility of No Claim Bonus (NCB) @ 50% has been found incorrect”. As per II-B it is found that claim was settled for Rs.72,800/- by Bajaj Allianz General Insurance Co. Ltd. and you were not entitled for NCB at the time of insurance of vehicle after the expiry of the policy.
Since the declaration was wrongly made and also NCB @ 50% has been enjoyed by you till the date. It is only at the time of above claim of your declaration has been checked and found misrepresented. As you had undertaken that if your declaration found to be incorrect, all the benefits under the policy in respect of Sec-1 of the policy will stand forfeited.
Therefore, your claim has been repudiated on the said ground”.
That no declaration was made by this complainant to the OP in respect of NCB. That previously, the complainant’s husband Sankar Basak was the registered owner cum insured of the Bus No.WB-61/2933 and he died on 30.5.2015. That after his death being legal heir of the deceased husband, his wife/the complainant is the registered owner and insured of the vehicle and she transferred her name by paying proper fees to the concerned RTA and by paying premium changed her name in the insurance policy and since then she continued her policy with the OP by renewing the same but she never made any declaration about NCB to the OP and also she had no knowledge about any of her declaration or her husband’s declaration regarding “No Claim Bonus”.
That the vehicle was insured with the OP since 2013. That when the complainant changed her name in the insurance policy after her husband’s / previous insured death, the OP had ample scope to aware him about the NCB, as OP by all the scope in their system together information about previous accidental claim. But, the OP failed to do so and taken premium for own damaged claim for last 4 years, 3 years from her husband and in the year 2016 from the complainant.
That the complainant is a woman she had her son depends upon the income of the vehicle, unfortunately her husband’s death, she such the vehicle for their livelihood.
That the OP willfully repudiated the bonafide claim of the complainant’s only to harass him, as the complainant not made any declaration to the OP and there is gross deficiency in service made by OP and OP tried to grape the premium money fraudulently.
Hence the complainant filed this complaint case before District Forum. The complainant has prayed for principal amount of Rs.1,93,806/- along with interest @ 12% p.a. and also compensation of Rs.10,000/- and also litigation cost of Rs. 5,000/-.
The complainant has filed some documents in support of her claim such as (1) FIR (photocopy), (2) Insurance Policy (photocopy), (3) Estimated Bill (photocopy), (4) Repairing Bill (photocopy) and (5) Letter of repudiation (photocopy).
On the other hand, the OP National Insurance Co. has filed a written statement / written version in which the Insurance Co. has stated inter alia that the complainant no cause of action for this case against the OP. That the petition is not maintainable according to law. That the complainant has no locus standi to file this petition for compensation with interest from the Insurance Co. That the petition is barred by waiver, estoppel, acquiescence. That the claim of the complainant is whimsical excessive and complainant has not disclosed how and what basis the complainant is entitled to get such compensation. That according to the contract act if there is an agreement based on false basis and for wrongful gain that such agreement is void according to law and any renewal based on the void agreement will be treated as voidable one.
That the complainant’s husband namely Sankar Basak by a owner of the bus bearing No.WB-61/2933 and the vehicle was insured under Bajaj Allianz General Insurance Co. Ltd. At that time the owner i.e. the husband of the complainant namely Sankar Basak took accidental benefit of Rs. 72,800/- from the said Insurance Co.
That the vehicle was insured with the said Insurance Co. from 30.3.2012 to 29.3.2013 and the said Insurance Co. allowed 50% NCB and just before expiry of the policy a claim was lodged on 12.3.2013 on which both the parties settled the amount. The insurer, thereafter, transferred and renewed the policy from 23.5.2013 to 22.5.2014 after a gap of 55 days with the said National Insurance Co. and was getting 50% NCB till the period of claim lodged on 26.12.2016.
At the time of insurance with the said National Insurance Co. the insured filled up a form gave a declaration to the effect that “no claim has arisen in the expiring policy period” and willfully suppressed that the owner once took benefit from the said Bajaj Allianz General Insurance Co. Ltd.
That being a owner of a vehicle it was known to him that if benefit was taken during the period of insurance with any company then he will get no NCB @ 50% and so it can be presumed that the owner change the company for getting such benefit. The OP will have to believe the customer and so takes such declaration from the insurer whether he was taken the benefit or not.
That an owner gave a false statement before the Insurance Co. and also gave a declaration that he never took any benefit from the previous company suppressing the truth for getting 50% NCB.
That after the death of Sankar Basak his wife i.e. complainant became the insured of the same vehicle and continued the policy of her husband at the time of renewal it was not required to take any further declaration as the vehicle was under the OP and it is only required if declaration was otherwise.
That when the previous policy was continuing then the false declaration was continuing.
It is also stated in India Motor Tariff that in case of transfer of vehicle from one insured to another the entitlement of the NCB for the new insured will be as per transferee’s eligibility. It is also stated that in the event of the insured, transferring his insurance to one insurer to another insurer the transferee insurer may allow the same rate of NCB which the insured would have received from the previous insurer. That according to the tariff if the declaration is found to be incorrect all the benefits under the policy in respect of Sec.1 of the policy will be stand forfeited.
That in this case false and incorrect statement was not corrected by the new owner and she also had taken such benefit and so the owner will get no benefit from the company according to Tariff. The OP National Insurance Co. informed the complainant stating all the fact and reason for “no claim”.
That there is no deficiency from the part of OP and the claim by the complainant is liable to be dismissed. Both the parties have filed the affidavit-in-chief in which they have stated what have been told in the complaint and also in the written version by the OP respectively.
On perusal of the written complaint and the documents filed by the complainant and also written version filed by the OP following points have been framed for decision.
Points for determination :-
- Whether the complainant is a consumer or not under CP Act, 1986?
- Whether the complainant is actually entitled to get insured claim for?
All the arguments advocated by the parties have been taken into consideration for decision to the instant case.
DECISION WITH REASONS
The OP in their written versions and also argument before the Forum has pleaded why the NCB is not entitled in compliance with the India Motor Tariff rules but OP has not provided any document whether any benefit has been provided to the present insured by the previous insurer i.e. Bajaj Allianz General Insurance Co. Ltd. according to rule as stated in the sub-para 4 of para-F of GR 27 -
Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to writer to the policy issuing office of the previous insurer by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry failing which the matter will be treated as a breach of tariff on the part of the previous insurer.
Moreover, the present insured i.e. the complainant when submitted her insurance proposal form to the OP has not declared any such statement whether NCB from the previous insurer has been received or not. (As shown in the Ext. No. 5 filed by the OP on firisti dt. 19.1.2018).
It is also not revealed from the OP’s written version and argument if they had informed the same to the complainant within 3 months from the date of purchase of the policy. It is also suppressing, if the claim is going to be repudiated by the OP why the survey was made by the authorized surveyor of the OP, who has submitted his inspection report kept in the record as Ext No.3 filed on firisti dt. 19.1.2018 with a valuation of Rs.1,03,721/- (Rupees One lakh three thousand seven hundred and twenty one) only. The assessment done by the surveyor engaged by the OP proves that the insured i.e. the complainant is entitled to get benefit for the accident of the said vehicle.
Repudiation by the OP as well as assessment of the loss by the surveyor engaged by the OP leads this Forum to feel deficiency in service as well as negligence to the consumer by the OP.
Hence,
O R D E R E D
That the instant case be and the same succeeds on contest. The OP is directed to pay the amount assessed by their surveyor amounting to Rs.1,03,721/- (Rupees One lakh three thousand seven hundred and twenty one) only with interest @ 10% p.a. on the same from 01.04.2017 till the date of payment.
OP is further directed to pay compensation amount of Rs.5,000/- and Rs.3,000/- as litigation cost to the complainant. All the payments are to be made within 30 days from the date of this order, failing which another interest of 12% p.a. will be borne on total amount on insured value including 10% interest on compensation amount of Rs.5,000/- except the litigation cost. In default the complainant is at liberty to execute the execution application after the expiry of 45 days of issuing of this order.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
