| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.13 of 16-01-2018 Decided on 26-03-2019 Des Raj Garg aged about 74 years S/o Kundan Lal R/o # 115, Friends Colony, Moga-142011. ........Complainant Versus 1.United India Insurance Co. Ltd., Khati Bazaar, Rampura Phul-151103, through its Branch Manager. 2.Sundram Finance Ltd., 3038A, Ahluwalia Complex, Guru Kashi Marg, Bathinda, through its Branch Manager. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Manisha, Member. Present:- For the complainant: Sh.Naresh Garg, Advocate. For opposite party No.1: Sh.S.M Goyal, Advocate. For opposite party No.2: Sh.Gurinder Singh, Advocate. ORDER M.P Singh Pahwa, President The complainant Des Raj Garg (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties United India Insurance Co. Ltd. and Other (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that he is the registered owner of Maruti SWIFT ZDI car bearing No.PB-29U-1310. It is hypothecated with Sundram Finance (opposite party No.2). The car was comprehensively insured with opposite party No.1 vide insurance policy bearing No.2004043116P12594146 w.e.f. 24.12.2016 to 23.12.2017. The insurance is 'ZERO DEP Policy'. Opposite party No.1 charged extra payment of Rs.2393.25/- from the complainant. It is alleged that the official of opposite party No.1 also took the signatures of the complainant on blank proposal form under the mandatory provisions before issuing the policy. No copy of the proposal form was issued to the complainant by opposite party No.1 till date whereas it is mandatory for the insurance company as per regulations of IRDA under Regulation (4)( l) of 2002 to furnish to the insured free of charge, within 30 days of the acceptance of proposal and copy of the proposal form. The proposal form was accepted on 23.12.2016. It is case of the complainant that on 30.4.2017, the car met with an accident at Mohali and was damaged. Under intimation to opposite party No.1, the car was shifted with CM Auto Sales (P) Ltd., Mohali i.e. authorized service center of manufacturer. The complainant lodged the claim with opposite party No.1, it appointed surveyor. The total repair was carried under the supervision of the surveyor of opposite party No.1. The workshop charged an amount of Rs.49,889/- from the complainant. It is further alleged that the surveyor also took the signatures of the complainant on blank claim form and necessary documents i.e. R.C, D.L and insurance policy etc. The surveyor and opposite party No.1 never sent any survey report to the complainant, although it is mandatory under the regulations of IRDA Rules i.e. Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000 Rule (I). The complainant many times requested opposite party No.1 for his claim, but all in vain. Now on 3.8.2017, complainant received one letter from the office of opposite party No.1 vide which it rejected his claim with the illegal remarks that he earned NCB (No claim Bonus) whereas in the previous policy, there was claim. He got issued legal notice dated 18.8.2017 to opposite party No.1 through his counsel, but to no response. It is further alleged that letter dated 3.8.2017 is illegal and it is issued just to save the skin of the officials as they have not checked the previous insurance policy status within time. Now, at the time of claim, they took this illegal objection whereas under the rules, it is the duty of opposite party No.1 to check NCB Status with previous insurance within 30 days from the proposal form. There is total fault of the official of opposite party No.1, who issued the insurance. Now at the time of claim, opposite party No.1 rejected the claim of Rs.49,889/- with malafide intention and by using illegal method. NCB neither involved in the accident nor loss took-place due to NCB. It is also stated that as per clause 10 of GIC (TAC Now IRDA), if there is any breach of condition of policy, 75% of the claim is payable under non-standard claim. It is also alleged that due to non-payment of the claim amount, the complainant is suffering mental agony and pains. There is deficiency in service on the part of opposite parties. For these sufferings, the complainant has claimed compensation to the tune of Rs.20,000/- with interest @ 18% per annum in addition to Rs.49,889/- on account of loss of vehicle and cost of litigation to the tune of Rs.20,000/-. Hence, this complaint. Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing their separate written version. In the written version, opposite party No.1 has raised the legal objections that the complainant is resident of Moga whereas accident took-place at Mohali. As such, this Forum has no territorial jurisdiction to entertain and decide this complaint. The complainant has no locus-standi or cause-of-action to file complaint. His claim was rejected only after duly considering the records and also scrutinizing the declaration made by him at the time of purchase of the insurance policy. He has already taken accident claim from insurer, but he has not disclosed the same, rather he had declared and stated that he is already getting NCB (No Claim Bonus) and is entitled to the same. Accordingly, he was allowed 20% NCB on the policy. It is mandatory condition of the policy that in case, NCB has been obtained by concealing the true facts or by making false or wrong declaration, the policy would be treated not valid nor would create any right in favour of the insurer and would also not bind the insurance company in any manner. The complainant himself being guilty of committing illegality and making misrepresentation by concealing the truth and making false declaration. He is not entitled to lodge any claim on the basis of policy regarding loss. He has admitted his fault. He is estopped from the filing this complaint due to his acts, conducts, omission, admissions and acquiescence. The complaint is bad for non-joinder and mis-joinder of necessary parties. It is false, frivolous, vexatious and it has been filed to get wrongful benefit. On merits, issuance of insurance policy is not denied, but it is asserted that the policy was duly supplied to the complainant and it was subject to its specific terms, conditions and exceptions. It is denied that any official of opposite party No.1 took signature of the complainant on any blank proposal form. It is further denied that copy of proposal form was not given by opposite party No.1, rather copies of proposal form and policy were duly supplied to the insured. The complainant never made any complaint or representation for not receiving the copies of proposal form or policy. It is admitted that the complainant lodged the claim for compensation of car regarding accident dated 30.4.2017. It is also admitted that the surveyor was appointed, but it is denied that he took signature of the complainant on any blank claim form. Issuance of letter dated 1.8.2017 holding the claim as 'No Claim' is admitted. In further written version, opposite party No.1 reiterated its stand as taken in the legal objections and detailed above. In the end, opposite party No.1 has prayed for dismissal of complaint In the written version, opposite party No.2 has also raised the legal objections that it is impleaded being financier. The dispute is between the complainant and opposite party No.1. The complainant took financial assistance from opposite party No.2 for purchase of Maruti cars. He took loan of Rs.5,00,000/- on 23.12.2014. As per account statement, on 23.2.2018, net receivable amount against the complainant is Rs.1,98,350/-. Opposite party No.2 being financier, has first charge and first claim on this car being its hypothecate and finance. At the time of deciding the complaint, the interest of opposite party No.2 be first protected and amount due against Maruti cars be first paid to it On merits, opposite party No.2 has controverted all the averments of the complainant mainly for the reason that same relate to opposite party No.1. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 4.5.2018, (Ex.C1); photocopy of policy, (Ex.C2); photocopy of no claim letter, (Ex.C3); photocopy of D.L, (Ex.C4); photocopy of R.C, (Ex.C5); photocopy of bill, (Ex.C6); photocopy of receipt, (Ex.C7); photocopy of legal notice, (Ex.C8); photocopies of postal receipts, (Ex.C9 and Ex.C10) and submitted written arguments. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Baldev Singh dated 6.7.2018, (Ex.OP1/1); photocopy of proposal form, (Ex.OP1/2); photocopy of e-mail, (Ex.OP1/3); photocopy of claim approval sheet, (Ex.OP1/4); photocopy of final survey report, (Ex.OP1/5); photocopy of affidavit of Des Raj Garg, (Ex.OP1/6); photocopy of claim intimation slip, (Ex.OP1/7) and closed the evidence. Opposite party No.2 has tendered into evidence affidavit of Vikramjeet Singh dated 25.7.2018, (Ex.OP2/1); photocopy of account statement, (Ex.OP2/2) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant and opposite party No.2. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. Learned counsel for complainant has also relied upon the followings case law:- i) Amalendu Shaoo Vs. OIC, 2010(2) CPJ 9 SC; ii) National Insurance Co. Ltd. Vs. Prem chand, 2001 (II) CPJ 60 (NC); iii) UIIC Vs. Ghanshyam Singh, 2009(1) CPJ 93 NC; iv) NIC Vs. Harpreet Singh, 2016(3) CPJ 58 NC; v) NIC Vs. Jagir Kaur, 2016 (2) CPJ 459 NC. On the other hand, learned counsel for opposite party No.1 has further submitted that the contract of insurance is based on uberrima fides to be expressed by both parties. The complainant has claimed 'No Claim Bonus' whereas he is not entitled to same. This fact is not denied by the complainant. Therefore, he has obtained the policy by misrepresentation. As such, he is not entitled to any relief. Therefore, repudiation of claim is justified. We have given careful consideration to these rival submissions. Admitted facts are that the complainant got his car insured with opposite party No.1. The car met with an accident during cover period. The claim lodged by the complainant was repudiated on the ground that he has claimed 'NCB' whereas he was not entitled to it. Admittedly, he has claimed 'NCB' and there is nothing to show that he was entitled to this benefit. Now, question is whether opposite party No.1 is justified to repudiate the claim on the ground that the insured has availed 'No Claim Bonus' without entitlement. The policy was issued to the complainant on 24.12.2016. The accident took-place on 30.4.2017 i.e. more than 4 months after availing policy. As per Regulation GR-27, in such case, opposite party was obliged to confirm from the previous insurer within 21 days from the issuance of policy regarding entitlement and rate of NCB. Opposite party No.1 has also not discharged its obligation required under GR-27. Similar matter was examined by Hon'ble National Commission in case of Harpreet Singh (Supra). The following observations of Hon'ble National Commission will be helpful to solve the controversy. “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 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%.”
Similar view was expressed by Hon'ble National Commission in case of Jagir Kaur (Supra). Hon'ble Supreme Court of India in case of Amalendu Sahoo (Supra) has also approved the observations of Hon'ble National Commission recorded in United India Insurance Company Limited Vs. Gian Singh, 2006 CTJ 221 (CP) (NCDRC) that in case of violation of conditions of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. Therefore, keeping in view the aforesaid legal and factual position, conclusion is that repudiation of claim in toto is not justified and complainant can be held entitled to 75% of the payable claim. Now, question is regarding amount for which the complainant is held entitled to. He has claimed that he has spent Rs.49,889/-. Of-course, he has also placed on record bill, (Ex.C6) to support this claim, but admittedly, he has not applied depreciation applicable to the various parts as per policy schedule. Opposite party No.1 has placed on record report of surveyor, (Ex.OP1/5) wherein loss assessed on repair basis is Rs.46,881/-. There is no challenge to this report. It is well settled that the insured claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor's report. It was also observed in case of Sri Vanktashwra Sindikat Vs. Oriental Insurance Company and Others, (II) 2010 CPJ 1(SC), surveyors have been appointed under statutory provision, they are links between the insurer and insured when the question of settlement of loss or damage arises. The report of surveyor could become the base for settlement of claim by the insurer in respect of loss suffered by the insured. Therefore, keeping in view the factual and legal position, loss assessed by the surveyor is to be accepted, which is Rs.46,881/-. The complainant is entitled to 75% of this assessed loss i.e. Rs.35,160/-. The repudiation of claim in toto is not justified. Therefore, the complainant is held entitled to interest @ 9% per annum from the date of repudiation i.e. 1.8.2017 till payment. Although, opposite party No.2 has pleaded that it being financier, has first charge and first claim on the car being its hypothecate and finance, but the claim is not regarding theft or total loss. In these circumstances, opposite party No.2 has its separate remedy to claim from the complainant. For the reasons recorded above, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party No.2. Opposite party No.1 is directed to pay Rs.35,160/- to the complainant with interest @ 9% per annum from the date of repudiation i.e. 1.8.2017 till payment. The compliance of this order be made 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 heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 26-03-2019 (M.P Singh Pahwa) President (Manisha) Member
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