Chandigarh

DF-I

CC/187/2024

RAKESH RAI - Complainant(s)

Versus

THE ORIENTAL INSURANCE COMPANY LIMITED THROUGH ITS MANAGER - Opp.Party(s)

DEEPAK AGGARWAL

18 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                          

Consumer Complaint No.	:	CC/187/2024
Date of Institution	:	01/04/2024
Date of Decision	:	18/12/2024

 

Rakesh Rai S/o Sh. Ram Parkash aged 66 years, Resident of House No. 3639, Sector 23-D, Chandigarh, 160023.

….Complainant

Versus

1.    The Oriental Insurance Company Limited, through its Manager, Plot No. 119, Sector-44, Gurgaon, Haryana, 122002.

 

2.    Ashwani Automobiles Pvt. Ltd., Plot No.54, Industrial Area, Phase-2, Chandigarh, 160001, through its Director.

 

3.    The Oriental Insurance Company Limited, through its Assistant Manager, SCO-109,110,111 Surendra Bldg., Sector 17-D, Chandigarh 160017.

...Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Ajay Singh Parmar, Advocate Proxy Sh.Deepak Aggarwal, for complainant
	:	Sh.Amit Jaiswal, Advocate for OP No.1 & 3
		Sh.Gaurav Bhardwaj, Advocate for OP No.2. (defence struck off vide order dated 21.10.2024).

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainant against the Opposite Parties (hereinafter referred to as the ‘OPs’).  The brief facts of the case are as under :-     
   1. It transpires from the averments as projected in the consumer complaint that in the year 2020, the complainant had purchased a second hand Audi Q3 TDI car Model 2015 bearing registration No.CH-01-CM-8662 (hereinafter referred to as the ‘subject car’). After purchasing the subject car, the complainant approached OP No.1 and 3 ((hereinafter referred to as the ‘OPs/insurers’) for transfer of the policy in his name and at that time, OPs/insurers  by charging Rs.59/- as transfer charges, transferred the subject policy in the name of the complainant. At the time of issuing fresh policy, the complainant was told to surrender the previous policy and after doing the needful, the OPs/insurers had issued the fresh policy No.211200/31/2024/352934, valid w.e.f. 24.12.2023 to 24.12.2024 for IDV of Rs.15,98,827/-, after charging the premium of Rs.22,563/- (hereinafter referred to as the ‘subject policy).  On 08.01.2024, when subject car was being driven by the complainant, the same met with an accident due to fog and the same was badly damaged and the complainant had miraculous escape. Soon after the accident, the complainant reported the matter to OP No.1 who deputed the surveyor to conduct the spot survey and the subject car was taken to OP No.2 for its repairs. The complainant handed over the quotations of repairs to be carried out by OP No.2 to the surveyor and he asked the complainant to go forward with repairs and assured that 50% of the amount of the total bill will be paid by OPs/insurers as per law. The complainant got the subject car repaired from OP No.2 who raised the tax invoice dated 08.02.2024 for Rs.6,21,433.34P (Annexure C-4). After repairs when the complainant went to get the subject car, it was informed by officials of OP No.2, that OPs/insurers are not issuing DO letter on the pretext that the complainant has wrongly claimed No Claim Bonus (for short ‘NCB’) of 20% in the current policy. When the aforesaid fact came to the notice of the complainant, he immediately apprised the OPs/insurers about the policy which was issued on the basis of the previous policy and at that time, the OPs/insurers asked unless the complainant pay Rs.3311/- as deficient amount on account of NCB claimed by him, the DO letter will not be issued. Under the compelled circumstances, the complainant deposited Rs.3311/- which was acknowledged by the OPs/insurers vide Annexure C-5. Despite receiving of the aforesaid amount from the complainant, the OPs/insurers have not settled the claim and rather told him that they will deduct 20% of the total net assessed liability amount i.e. Rs.70,000/-. Thereafter, the complainant sent legal notice (Annexure C-7) to the OPs but with no result. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. The OPs resisted the complaint by filing their separate written versions.
   3. OPs No.1 and 3 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts and bad for non-joinder of necessary parties.  It is admitted that the subject car was insured with OPs/insurers and prior to obtaining the subject policy, the complainant got the previous policy transferred in his name. It is alleged that as the complainant had obtained the subject policy for the first time from the OPs/insurers, he was not entitled to claim NCB as he was entitled to claim the NCB only at time of renewal of the policy after the expiry of the full period of 12 months from the date of issuance of the subject policy. The copies of the GR 17 and GR-27 of the India Motor Tariff (IMT) are Annexures R-2 and R-2/A. The complainant got the subject policy renewed through online portal Policybazaar Insurance Brokers Pvt. Ltd. and at the time of filling online renewal /proposal form, the complainant wrongly claimed 20% NCB benefit whereas he was not entitled for the same as the policy was issued in his name only on 21.08.2023 and on account of wrong information submitted by the complainant, the subject policy was issued to him after giving benefit of 20% of premium amount against NCB. It is further alleged that when the complainant has admitted his mistake of wrongful claiming NCB, he deposited an amount of Rs.3311/- on  29.02.2024 as per the terms of the circular dated 11.04.2019 (Annexure R-5). Even the answering OPs have approved the payment of Rs.2,71,810/- after 20% deduction from the net assessed liability apart from the salvage and the complainant and the OP No.2 were also informed accordingly. However, the complainant has not taken delivery of the car from the workshop of OP No.2 for the reasons best known to him. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   4. In its separate written version, OP No.2 took preliminary objections of maintainability and  cause of action.  It is alleged that in fact the subject car was repaired by it and the total bill of Rs.6,31,433.34 was raised out of which neither the complainant has paid anything nor the OPs/insurers paid anything as there is dispute regarding the benefit of NCB with the insurance company. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   5. In rejoinder to written version of OPs No.1 and 3, complainant reiterated the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
2.        In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the contesting parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had purchased the subject car and after purchasing the same, he got the previous insurance policy in respect of the subject car transferred in his name and while getting the renewal through online portal i.e. Policybazaar Insurance Brokers Pvt. Ltd., the complainant  claimed benefit of 20% NCB and the subject policy was accordingly issued in his name, as also evident from the policy (Annexure C-3) and after the accident of the subject car, the complainant got the same repaired from OP No.2 who raised the Tax Invoice dated 08.02.2024 for Rs.6,31,433.34P, as also evident from Annexure C-4 and after the repair of the subject car, the complainant had deposited 20% of the deficient premium amount of Rs.3311/- on account of the NCB benefit earlier taken by him with the insurers/OPs as also is evident from the Annexure C-5 and the insurers/OPs have assessed the loss to the subject car to the tune of Rs.3,40,928.91 in pursuant to the survey report, as also evident from Annexure R-4 and after making deduction to the extent of 20% towards the NCB benefit wrongly claimed by the complainant had approved the same to the tune of Rs.2,71,810/-, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of the OPs/insurers by making deduction of 20% from the net assessed liability of Rs.3,40,928.91 as assessed by the Surveyor towards the NCB benefit wrongly claimed by the complainant, amounts to deficiency in service and unfair trade practice and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs/insurers have rightly settled/approved the claim of the complainant to the tune of  Rs.2,71,810/- after making deduction of Rs.70,000/- and there is no deficiency in service on the part of OPs/insurers and the complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OPs/insurers.
   2. In the back drop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the issue if the OPs/insurers have wrongly made deduction of 20% of the net assessed liability of Rs.3,40,928.91 on account of wrongly taking NCB benefit by the complainant or not and for that purpose the documentary evidence led by the parties and the same are required to be scanned carefully.
   3. Perusal of the previous policy (Annexure C-2), which was got transferred by the complainant in his name on 21.08.2023, clearly indicates that the same was valid w.e.f. from 24.12.2022 to 24.12.2023. It is further clear from the previous policy as well as from the subject policy (Annexure C-3) that after 04 months of the transfer of the policy in his name, the complainant got the subject policy renewed on 24.12.2023 and the same was valid till 24.12.2024. It is further proved on record that the subject car met with an accident on 08.01.2024 i.e. less than one year of the transfer of the policy in his name and  the complainant was not entitled for 20% NCB benefit on the premium amount and the complainant had given wrong information while obtaining the subject policy while renewing the same  through online portal i.e. Policybazaar Insurance Brokers Pvt. Ltd. and, therefore, had wrongly availed 20% NCB benefit.
   4. So far as the case of the complainant that after receiving/accepting 20% deficient premium amount of Rs.3311/- on 29.02.2024, the OPs/insurers are liable to pay the full assessed amount of Rs.3,40,928.91 and they cannot make deduction as alleged is concerned, since it stands proved on record that the said amount of Rs.3311/- was only paid by the complainant on 29.02.2024 i.e. after the date of accident i.e. 08.01.2024 and even as per the policy schedule (Annexure C-5), there is specific clause that the aforesaid policy would exclude all pre-existing damages, it is safe to hold that the complainant is not entitled for any benefit even on payment of Rs.3311/- after the date of the accident, since the said policy (Annexure C-5) will cover loss/damage only after 29.02.2024 till the expiry of the subject policy i.e. upto 24.12.2024.
   5. Moreover, law is well settled on this point that in case a person has obtained NCB from the insurer for which he/she was not entitled as per the terms and conditions of the policy, the entire claim of the insured cannot be repudiated, rather the same is to be settled by the insurer/insurance company subject of course to proportionate deductions to the extent of such NCB availed by the insured.  In this regard, reliance can be placed on the order of the Hon’ble State Commission, UT, Chandigarh in case titled National Insurance Company & Anr. Vs. Mohinder Kumar, Appeal No.248 of 2017 in which the Hon’ble State Commission has decided the matter by relying upon two orders of Hon’ble National Commission in the case of National Insurance Co. Ltd. Vs Harpreet Singh, Revision Petition No.3216 of 2012 decided on 8.2.2016 and Anjani Gupta Vs Future Generally India Insurance Company, Revision Petition No.1051 of 2017 decided on 12.12.2017.  In the first order of Harpreet Singh’s case (supra) the Hon’ble National Commission observed as under :-

       “On reading of the above, it is clear that where the insured is unable to produce the evidence pertaining to his No Claim Bonus entitlement, he may be permitted to give a declaration in support of his No Claim Bonus. It is further provided in the tariff that notwithstanding the above declaration, the insurer allowing the No Claim Bonus shall be under obligation to write to the policy issuing office of the previous insurer seeking confirmation of entitlement of the insured and the rate 6 of No Claim Bonus and previous insurer shall be under obligation to respond to said query within 30 days. It is further provided that failure of the insured granting No Claim Bonus to write to the previous insurer within 21 days shall constitute the breach of tariff. In the instant case, admittedly no communication was sent by the petitioner to the previous insurer within 21 days after granting the insurance cover to the insured. This obviously amounts to breach of tariff on the part of the petitioner insurance company and disentitle the insurance company to take shelter of the plea of misrepresentation of facts on the part of the petitioner. However, the fact remains that respondent complainant on the basis of false declaration given to the petitioner paid 25% less premium. Therefore, the equity demands that bonus payable to the complainant in respect of his insurance claim should be decreased by 25%.”

 

6. On similar facts, another Bench of Hon’ble National Commission in Anjani Gupta’s case (supra), observed as under :-

“It would therefore be seen that if No Claim Bonus is wrongfully taken by the insured, the claim would still be payable on a non-standard basis, if the insurer had the means to verify the correctness of the declaration made by the insured, while claiming the No Claim Bonus. In the present case also, the respondent had an opportunity to verify the correctness or otherwise of the declaration made by the petitioner/complainant by making necessary inquiry from the concerned insurer. That having not been done, the complainant is entitled to reimbursement of the loss sustained by him, subject of course to proportionate deduction. Since the No Claim Bonus was availed by the complainant @ 25%, the amount payable to the complainant/petitioner has to be reduced in the same proportion.”

 

7. Similar proposition of law was also laid down by the Hon’ble National Commission in the cases of National Insurance Company Ltd. Vs. Jagir Kaur, 2016 (2) CPJ 459 and United India Insurance Company Ltd. Vs. M/s Jindal Poly Buttons Limited, 2017 (2) CPR 553.
8. The prayer of the complainant is that he is entitled to 50% of the total Tax Invoice raised by OP No.2 towards the repairs of the subject car which comes to Rs.3,10,716/- alongwith interest @ 18% p.a.  However, perusal of the survey report clearly indicates that the surveyor had assessed net liability of the OPs/insurers to the tune of Rs.3,40,928.91 and in pursuance to the survey report, as the OPs/insurers have made deduction of 20% on account of wrongful claiming of NCB benefit by the complainant  and thereby assessed the actual liability of the OPs/insurers to the tune of Rs.2,71,810/-.
9. Moreover, nothing has come on record if there is any infirmity in the surveyor report. It is pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

        “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, the Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

       “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

10.        As it has come on record that despite approval of the genuine claim of the complainant by the OPs/insurers, they have not released the aforesaid amount of Rs.2,71,810/- either to the repairer or to the complainant, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of the OPs/insurers.
11. At the time of arguments, the complainant has submitted that OP No.2 is not releasing the subject car by asking him to pay Rs.1,000/- per day as parking charges failing which the same will not be released even on payment of the repair charges. However, it has come on record that the complainant has been fighting for his rights since  the date of filing the present complaint against the OPs and even OP No.2 has not resisted the claim of the complainant, we are of the opinion that OP No.2 be directed to release the subject car in favour of the complainant on receiving the repair charges only from him without charging anything towards the parking charges etc.
12. In view of the aforesaid discussion, it is safe to hold that the complainant has partly proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4.        In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs No.1 and 3 are directed as under :-
   1. to pay Rs.2,71,810/-  as approved by the OPs/insurers  to the complainant along with interest @ 9% per annum (simple) from the date of filing of the complaint i.e. 01.04.2024 onwards. However, it is made clear that OP No.2  shall release the subject car to the complainant without charging/recovering any parking charges etc. from him.
   2. to pay ₹20,000/-  the complainant as compensation for causing mental agony and harassment;
   3. to pay ₹10,000/- to the complainant as costs of litigation.
5.        This order be complied with by OPs No.1 and 3 jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6.        However, the consumer complaint against OP-2 stands dismissed with no order as to costs as no cause of action has been proved against it.
7.        Pending miscellaneous application(s), if any, also stands disposed off.
8.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

18/12/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Suresh Kumar Sardana] Member