The complainant Rishav Garg (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against New India Assurance Co. Ltd., and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that he purchased a second hand car i.e. Hyundai I-20 Sportz Car bearing registration No.PB-03AB-4465. The complainant purchased private car package policy bearing No. 3321003119000002659 from opposite party No.1 against premium of Rs.6016/- for the said car.
It is alleged that at the time of purchase of policy in question every detail which was sought by opposite parties was disclosed i.e. old policy number, copy of R.C. of vehicle etc. After calculating the total amount of premium by opposite party No.1, complainant paid the same. Policy period was 11.07.2019 to 10.07.2020 and the IDV was 2,80,000/-.
It is also alleged that on 23.09.2019 at about 8:00 p.m., car of complainant was met with an accident in the area of village Cheema, at Bathinda-Sunam Road. Intimation in this regard was given on 25.09.2020 to the opposite parties. At the time of accident, the insured vehicle was being driven by Sh. Varinder Kumar, father of complainant and is having a valid driving licence.
The complainant alleged that surveyor of opposite parties duly inspected the damaged vehicle and at that time, repairing agency submitted the estimate of Rs.1,45,150 (cost of spare parts) + 44,500/- (labour charges) = 1,89,650/-. At the time of inspection, said surveyor obtained signatures of complainant on some blank and printed papers on the pretext of formalities for processing the claim. The claim of complainant was being processed by opposite party No.2 and complainant submitted complete bills of spare parts, labour charges and bill of receiver van, totaling to Rs.2,00,057/- to the opposite parties.
It is alleged that instead of making payment of claimed amount/ settlement of claim, opposite parties through letter dated 30.07.2020 raised two objections i.e. this is fresh insurance policy so complainant cannot get it insured without pre-inspection of the vehicle. If pre-inspection was arranged at the time of insurance, then the same be provided and second objection was that the policy has been issued with 50% NCB while complainant was not entitled for the same.
The complainant alleged that above said objections are vague, un-tenable, illegal, arbitrary and unjust as per law and facts of the case. Firstly, it was not a fresh insurance policy because the policy was purchased well within time, without any break and Secondly, if there was any such condition (although specifically denied) as per rules of opposite parties, then it was for opposite parties to ask the complainant to get his vehicle inspected and in case complainant would not have got inspected as per direction of opposite parties, then it was required on behalf of opposite parties to refuse to issue the policy. Thirdly, allowing 50% NCB was perfectly correct because same is permissible under rules of the opposite parties. The amount of premium was calculated by opposite parties themselves and not by complainant, so it was for opposite parties to decide, at the time of issuance of policy, to calculate the exact amount of premium.
It has been pleaded that if there was violation of any rules, as alleged by opposite parties, then the opposite parties have to reject the policy at initial stage and opposite parties were not expected to wait till 30.07.2020 i.e. the date when opposite parties first time raised the above said two objections.
The complainant also alleged that after repair of vehicle, complainant submitted final bills and photographs and other required documents in July, 2020. Complainant is entitled to get/recover the Insurance claim of Rs.2,00,057/- from opposite parties. The opposite parties have delayed the claim of complainant arbitrary, illegally and on vague, un-tenable grounds. That complainant got issued legal notice dated 28.09.2020 in this regard, but to no effect. The complainant alleged that he repeatedly approached the opposite parties by paying personal visits as well as through correspondence with a request to settle claim and make payment of insurance claim, but opposite parties did not accede to the request of the complainant. Due to said irresponsible act and conduct of the opposite parties, complainant has suffered physical and mental pain, harassment, agony and sufferings for which he claims compensation to the tune of Rs.1,00,000/-.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay insurance claim amount of Rs. 2,00,057/- and compensation to the tune of Rs.1,00,000/- in addition to Rs. 15,000/- as litigation expenses.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply raising legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Act. That the complainant has concealed material facts and documents from this Commission as well as the opposite parties.
It has been pleaded that the complainant has concealed the fact that the complainant purchased insurance policy No. 3321003119000002659 of opposite parties online for the period 11.07.2019 to 10.07,2020 by filling the details himself without any pre-inspection of vehicle No. PB-03AB-4465 although the same was mandatory as per rules. Further, the previous policy was in the name of one Mr. Deepak Kumar Bansal and not in the name of the complainant as such the complainant was not entitled to any No Claim Bonus (NCB) whereas he availed NCB of 50% against rules. The complainant availed 50% no claim bonus while procuring insurance policy in question from opposite parties through online platform by stating that there was no claim against previous insurance policy from United India Insurance Company Ltd. As per rules, no claim bonus is given to the policy holder/owner and not to the car. The owner may get no claim bonus against a fresh car or against a car purchased second hand in case he was having no claim bonus against previous car. Since the policy was obtained by concealment of true facts and by wrongly availing no claim bonus, the policy was void ab initio as such the complainant is not entitled to any compensation as alleged.
Further legal objections are that the complainant is not consumer of the opposite parties. That the complainant has no locus standi or cause of action to file the present complaint against opposite parties and that the complaint is not maintainable in the present form.
On merits, the opposite parties denied that the complainant disclosed every detail like old policy number, copy of RC of vehicle etc, to the opposite parties rather the complainant had purchased the insurance policy through online platform himself by concealing the true facts.
It has been pleaded that previous policy was in the name of one Deepak Kumar Bansal, so the complainant was not entitled to get any no claim bonus as the benefit of no claim bonus is available to the policy holder/owner and not attached to the car in question.
The opposite parties have also pleaded that the complainant has claimed excessive amount of compensation i.e. Rs. 2,00,057/- on the basis of estimates. The estimates are based on guess work whereas the assessment by surveyor is authentic one. The opposite parties had deputed Er. Rakesh Kumar Gupta, an IRDA approved surveyor who vide survey report dated 18.07.2020 assessed the loss at Rs. 77,080/- and salvage value at Rs.1,150/-. Thus net loss was assessed at Rs. 75,930/- although even that is not payable as material concealments were made by the complainant and availed NCB wrongly and did not get pre-inspection of vehicle done. The opposite parties denied that surveyor had taken the signatures of the complainant on any blank or printed papers on the pretext of formalities for processing the claim as alleged. The opposite parties admitted that letter dated 30/07/2020 was issued to the complainant to inform him about the deficiencies that since this was the fresh insurance policy taken by the complainant after purchase from Deepak Kumar Bansal, so it could not be got insured without pre-inspection of the vehicle. So the complainant was asked to arrange the pre-inspection at the time of insurance in case he had got it done. Further the policy has been issued with 50% NCB while the complainant was not entitled for the same. So he was asked to clarify. The opposite parties have pleaded that they sent one more letter dated 07/08/2020 to the complainant to fulfill the queries of the opposite parties but the complainant has failed to clarify the same.
The opposite parties have denied that the said objections are vague, un-tenable, illegal, bitrary or unjust as alleged. Rather the objections/deficiencies raised by the opposite parties are totally valid and are subject to policy terms and conditions, IMT and Motor Vehicles Act. The complainant had made a false declaration in the proposal form at the time of obtaining the said policy through online platform and obtained 50% no claim bonus to which he was not entitled. Since the policy was obtained against a false declaration and by concealment of material facts, the complainant is not entitled to any claim. The premium was calculated online by the system on the basis of claim of 50% NCB by the complainant. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence affidavit dated 13-10-2020 of complainant (Ex. C-1) and the documents (Ex. C-2 to Ex. C-19).
In order to rebut the evidence of complainant, the opposite parties tendered into evidence documents (Ex. OP-1/1 to Ex. OP-1/11) out of which there are two affidavits i.e. one of Ashish Pal (Ex. OP-1/3) and other of Rakesh Kumar Gupta (OP-1/5).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heard learned counsel for the parties and gone through the record.
In the case in hand, these are admitted facts of the parties that complainant purchased second hand car i.e. Hyundai I-20 Sportz Car bearing registration No.PB-03AB-4465 and got it insured with the opposite party No. 1 under private car package policy bearing No. 3321003119000002659 for the period from 11.07.2019 to 10.07.2020 for the IDV of Rs. 2,80,000/- against premium of Rs.6016/- (Ex. C-3). The car met with an accident and complainant filed claim with the opposite parties. At the time of processing claim, the opposite parties raised two objections vide letter dated 30-7-2020 (Ex. C-15) and sought clarification from complainant in this regard and claim is not settled.
The learned counsel for the opposite parties submitted that complainant failed to answer/clarify the queries despite repeated reminders. The complainant availed NCB wrongly and did not get pre-inspection of vehicle done. The complainant purchased the insurance policy through online platform himself by concealing true facts. Since previous policy was in the name of one Deepak Kumar Bansal and the benefit of no claim bonus is available to the policy holder/owner and not attached to the car in question, thus, complainant is not entitled to any NCB.
A perusal of letter letter dated 30th July, 2020 (Ex. C-15) reveals that vide this letter opposite parties intimated the complainant that while processing the claim, they have noticed two deficiencies i.e. pre-inspection at the time of insurance of the vehicle was not got done and secondly the policy has been issued with 50% NCB whereas complainant is not entitled for the same. The opposite parties asked the complainant to submit this regard.
Learned counsel for the opposite parties relied upon the provisions of India Motor Tariff. Under GR 27 India Motor Tariff, it has been mentioned that :-
GR 27 No Claim Bonus – (d) The entitlement of NCB shall follow the fortune of the original insured and not the vehicle or the policy. In the event of transfer of interest in the policy from one insured to another, the entitlement of NCB for the new insured will be as per the transferee's eligibility following the transfer of interest.
A perusal of file reveals that complainant has not concealed the fact regarding previous policy from the opposite parties rather he has even declared/disclosed previous policy number and accordingly opposite parties have duly mentioned previous policy number in policy (Ex. C-3 ) issued by them.
Further as per Clause (f) of Regulation GR 27 of India Motor Tariff :-
“(f) In the event of the insured, transferring his insurance from 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. Evidence of the insured's NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.
Where the insured is unable to produce such evidence of NCB entitlement from the previous insurer, the claimed NCB may be permitted after obtaining from the insured a declaration as per the following wording :
“I/we declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period (copy of the policy enclosed). I/We further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section 1 of the Policy will stand forfeited.
Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write 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. Failure of the insurer granting the NCB to write to the previous insurer within 21 days after granting the cover will also constitute a breach of the Tariff.”
The opposite parties have not discharged their obligation required under GR 27 and not confirmed regarding No Claim Bonus from previous owner. If the opposite parties have taken action within 21 days time, they would have cancelled the policy or have asked for more premium, if it was found that complainant was not eligible for No Claim Bonus as claimed by him. But, there is nothing on file to show that any action in this regard was taken by the opposite parties at that relevant time.
The plea of the opposite parties is that the premium was calculated online by the system then how the opposite parties woke-up suddenly and considered facts and circumstances manually and raised objections vide letter Ex. C-15 at a later stage when claim was submitted by complainant, if every process/official work was being done on online system. Thus, there is no fault on the part of the complainant if opposite parties failed to comply with the regulations of GR 27 and did not take action in time. The opposite parties should have cancelled the policy or should have asked for additional premium.
So far as query regarding pre-inspection of the vehicle in question is concerned, as per oppoiste parties, the complainant has purchased the insurance policy in question from online portal of the opposite parties. The opposite parties have not placed on file any evidence to prove that any condition regarding pre-inspection of vehicle has been displayed/uploaded on online portal. Moreover, the opposite parties were duty bound to point out discrepancy, if any, found at the time of approving the insurance policy on online portal or while sending hard copy to insured and not at the time when insured lodge claim. Further more, the pre-inspection was to be got done by the opposite parties and there is no evidence on file to prove that opposite parties ever asked the complainant for the same. This Commission is of the opinion that the opposite parties being expert hand, had a duty to act judiciously and not only detriment to the interest of insured.
Hon'ble Punjab & Haryana High Court in the case titled New India assurance Co. Ltd., Vs. Usha Yadav 2008(3) RCR Civil 111 has observed that :
“Cash rich Insurance Company indulging in luxury litigation to repudiate claim of the insured – It seems that the Insurance companies are only interested in earning the premiums and find ways and means to decline the claim.”
The complainant has claimed Rs. 2,00,057/- on account of repair charges of vehicle in question. Ex. OP-1/4 is the survey report of Er. Rakesh K. Gupta, Surveyor & Loss Assessor. The said surveyor has assessed the loss to the tune of Rs. 77,080/- after thorough inspection of the accidental vehicle in question.
Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited IV 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report.
In view of what has been discussed above, this Commission is of the considered view that there is deficiency in service and unfair trade practice on the part of the opposite parties. Thus, this complaint is partly allowed with Rs.11,000/- as cost and compensation against the opposite parties. The opposite parties are directed to pay Rs 77,080/- being insurance claim to complainant with interest @8% p.a. w.e.f. after three months of submission of claim, till payment.
The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
