DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.250 of 18-09-2018

Decided on 10-04-2019

Mrs. Garima M Verma aged about 32 years D/o Mohan Pal Singh, Flat No.303, Building No.OA-2, ONGC Colony, Poonam Nagar, Andheri (E), Mumbai Now at 53/2, Mall Road, Garhi Cantt, IC-70686K, Maj, CDA O AC No.14243211451K, Dehradun.

........Complainant

Versus

United India insurance Company Limited, Branch Office Near Dr. KaIra, First Floor, Verka Chowk, Talwandi Sabo, through its Senior Branch Manager.

.......Opposite party

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.Vinod Kumar Garg, Advocate.

For opposite party: Sh.Sunder Gupta, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Mrs. Garima M Verma (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite party United India insurance Company Limited (here-in-after referred to as opposite party).

2. Briefly, the case of the complainant is that she is the registered owner of Volswagon Polo car bearing No.MH-02DJ-1659. It is comprehensively insured with opposite party vide insurance policy bearing No.2004063117P 112737527 w.e.f. 7.12.2017 to 6.12.2018. Opposite party never issued the policy with terms and conditions except policy number.

3. It is alleged that at the time of purchase of policy, the complainant gave all the details to opposite party and disclosed it all facts correctly, but OP neither asked for any signatures of the complainant nor made any further queries, rather it took signatures on blank proposal form of the person, who had been sent to give the premium amount. Opposite party after its entire satisfaction, insured the vehicle of the complainant. The complainant is an employee of ONGC and she gets the reimbursement of the premium amount paid against the insurance of the vehicle. As such, there is no question of making any concealment regarding previous claim and availing any no claim bonus.

   It is further alleged that on 30.5.2018, the vehicle met with an accident near Wadia Institute of Himalayan Geology, Dehradun when the complainant was driving the car, as a drainage cover broke and vehicle fell in drain. Its intimation was given to opposite party. After receiving the intimation, opposite party deputed surveyor, who conducted survey of the vehicle and demanded copies of documents i.e. registration certificate, driving licence and insurance certificate etc. These documents were supplied by the complainant.

4. It is further alleged that the surveyor obtained the blank signatures of the complainant on some printed forms with the understanding that the total loss of repairs will be paid to her at the earliest. The complainant got the vehicle repaired from DDPM Automobiles, Dehradun and spent Rs.58,118/- on its repair. The bills were also supplied to the surveyor. The surveyor asked the complainant to get the vehicle repaired and claim will be paid to her within short period.

5. It is also alleged that opposite party repudiated the claim of the complainant vide letter dated 7.8.2018 on the ground that complainant has claimed 20% no claim bonus vide proposal dated 6.12.2017 whereas against the previous policy, she had availed claim from the previous insurer i.e. New India Assurance Company Limited. As such, she availed non-genuine no claim bonus by not disclosing the material facts.

   As per complainant these allegations are false and baseless. The repudiation letter dated 7.8.2018 is illegal, null and void and is liable to be set-aside on the grounds that opposite party did not get any proposal form signed from the complainant, rather it took signatures of person, who was sent to give premium amount to it, on blank proposal form. It is duty of opposite party to verify the fact of previous insurance, but it did not make any such verification. There is negligence and deficiency in service on its part.

6. It is also alleged that due to act and conduct of opposite party, the complainant is suffering financial loss, mental agony and pain etc. For these sufferings, she has claimed Rs.25,000/- as compensation in addition to Rs.11,000/- as cost of litigation and Rs.58,118/- spent for repair with interest @ 18% per annum Hence, this complaint.

7. Upon notice, opposite party appeared through its counsel and contested the complaint by filing written version. In the written version, opposite party has raised the legal objections that the complainant got her car insured with opposite party after filling-up the proposal form where she has claimed that no claim bonus was obtained from the previous insurance company. Believing this declaration, opposite party granted 20% no claim bonus as per GR-27. After receipt of intimation regarding accident on 30.5.2018, opposite party got no claim bonus confirmation from the previous insurer i.e. New India Assurance Company Ltd. It was confirmed by the previous insurer that one claim was reported under the policy. As such, the complainant was not entitled to 'no claim bonus' on renewal of the previous policy. She has concealed this fact from opposite party. Accordingly, her claim was repudiated after investigation by opposite party vide its letter dated 7.8.2018 and repudiation is perfectly legal as per terms and conditions of insurance policy.

   Further legal objections are that the contract of insurance is uberrima fides. Both the parties are supposed to maintain utmost good faith. The complainant has not disclosed about the previous claim from the previous insurance company and she has obtained no claim bonus of 20% at the time of getting the car insured from opposite party.

8. It is further unfolded that after receipt of intimation regarding accident, Er.Nirmal Kumar Verma was deputed to inspect the insured vehicle and assess the toss. He submitted his report dated 25.6.2018 and assessed the net loss on repair basis to the tune of Rs.51,000/- only subject to terms and conditions of insurance policy. Since the complainant has concealed the true and material facts at the time of obtaining the insurance policy from opposite party and has claimed NCB of 20%, although she was fully aware that she has obtained claim from previous insurance company, so the claim was rightly repudiated vide letter dated 7.8.2018.

9. Other legal objections are that the complainant has not come to this Forum with clean hands. She has no locus-standi or cause-of-action to file the complaint. Amount of compensation claimed is highly excessive and exorbitant one and lastly, the complaint is false, frivolous and vexatious to the knowledge of the complainant.

10. On merits also, opposite party has reiterated its stand as taken in the legal objections and detailed above and denied all the material averments of the complainant.

11. Parties were asked to produce the evidence.

12. In support of her claim, the complainant has tendered into evidence photocopy of R.C, (Ex.C1); photocopy of pay slip, (Ex.C2); photocopy of D.L, (Ex.C3); photocopy of claim form, (Ex.C4); photocopy of job sheet, (Ex.C5); photocopy of invoice, (Ex.C6); photocopies of letters, (Ex.C7 and Ex.C8); photocopy of endorsement of policy, (Ex.C9) and her affidavit dated 11.9.2018, (Ex.C10).

13. To rebut the claim of the complainant, opposite party has tendered into evidence affidavit of Baldev Singh dated 16.11.2017, (Ex.OP1/1); photocopy of certificate, (Ex.OP1/2); photocopy of e-mail, (Ex.OP1/3); photocopy of letters, (Ex.OP1/4, Ex.OP1/5, Ex.OP1/9 to Ex.OP1/11); photocopy of claim payment, (Ex.OP1/6); photocopy of final survey report, (Ex.OP1/7); photocopy of no claim bonus, (Ex.OP1/8) and photocopy of policy schedule, (Ex.OP1/12).

14. We have heard learned counsel for parties and gone through the file carefully.

15. Learned counsel for complainant has submitted that admittedly, opposite party has repudiated the claim of the complainant vide letter dated 7.8.2018, (Ex.C7) on the ground that she has availed 'No Claim Bonus' for which she was not entitled to.Complainant has categorically pleaded that she has nowhere claimed 'No Claim Bonus'. Opposite party has not produced any proposal form to prove that the complainant has made any misrepresentation to avail 'No Claim Bonus'. The complainant has also placed on record salary slip, (Ex.C2), which also proves that the car insurance was being reimbursed to her by employer. Therefore, she was not having reason to misrepresent for availing 'No Claim Bonus'. Moreover opposite party has already got deposited amount of Rs.2560/-, which is difference of premium due to granting of 'No Claim Bonus'. Now, opposite party cannot justify repudiation on the ground of 'No Claim Bonus. The complainant has also placed on record copy of bill, (Ex.C6), which proves that she spent Rs.58,118/- for getting the vehicle repaired. Therefore, she is entitled to reimbursement of this amount. Opposite party has unnecessary repudiated the claim of the complainant. The complainant is entitled to interest on this amount as well as litigation expenses.

16. It is further submitted by learned counsel for complainant that as per Regulation GR-27, when opposite party has granted NCB on the basis of declaration, then opposite party was under obligation to get this fact confirmed from previous insurer within 21 days from the date of issuance of policy regarding entitlement and rate of NCB. The policy was issued on 3.12.2016. Opposite party has got the fact verified on 2.8.2018 i.e. much after expiry of prescribed period and after accident. Opposite party cannot take benefits of its own default.

    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.

17. On the other hand, learned counsel for opposite party has submitted that the contract of insurance is based on uberrima fides. Both parties are supposed to reveal the factual position honestly. The complainant has availed 'No Claim Bonus'. Although, opposite party has not produced the proposal form. This fact is proved from the policy document itself, (Ex.OP1/12). The total premium payable was Rs.17,015/- and opposite party has received Rs.14,795/- after giving benefits of 'No Claim Bonus'. Opposite party has also produced copy of letter, (Ex.OP1/4) written by the complainant wherein she has admitted that 'No Claim Bonus' has been erroneously included in the policy. Therefore, even if, no proposal form was filled-up by the complainant, she was aware of the fact that she has been given 'No Claim Bonus' for which she was not entitled to. Of-course, she has paid the difference of Rs.2560/-, but it is after occurrence. Therefore, she cannot take benefits of fact that she has paid difference of amount availed on account of Bonus. As the policy was availed by her by concealment of facts, therefore, she is not entitled to any relief. Therefore, repudiation of claim is justified.

18. We have given careful consideration to these rival submissions.

19. Repetition of admitted facts is not considered necessary. The fact only remains that the complainant got her car insured from opposite party. After accident, her claim was repudiated vide letter dated 7.8.2018, (Ex.C7) on the ground that she availed 'No Claim Bonus'. Although, complainant has denied having asked for 'No Claim Bonus', but from perusal of policy documents, (Ex.OP1/12), it is noticed that the total premium payable was Rs.17,015/- and opposite party has received Rs.14,795/- after granting benefits of 'No Claim Bonus'. Therefore, the complainant was aware of the fact that she has received benefits of 'No Claim Bonus' for which she was not entitled to. Of-course, subsequently, she has paid difference of amount availed on account of 'No Claim Bonus', but this payment is after occurrence.

20. Admitted facts are that the complainant got her car insured with opposite party. The car met with an accident during cover period. The claim lodged by the complainant was repudiated on the ground that she has claimed 'NCB' whereas she was not entitled to it. .

21. Now, question is whether opposite party 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 7.12.2017. The accident took-place on 30.5.2018 i.e. more than 5 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 has also not discharged its obligation required under GR-27.

22. 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.

    1. “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 her 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.

23. 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.

24. Now, question is regarding amount for which the complainant is held entitled to. Complainant has claimed that she has spent Rs.58,118/-. Of-course, she has also placed on record bill, (Ex.C6) to support this claim, but admittedly, she has not applied depreciation applicable to the various parts as per policy schedule. Opposite party has placed on record report of surveyor, (Ex.OP1/5) wherein loss assessed on repair basis is Rs.51,000/-. 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.

25. Therefore, keeping in view the factual and legal position, loss assessed by the surveyor is to be accepted, which is Rs.51,000/-. The complainant is entitled to 75% of this assessed loss i.e. Rs.38,250/-. The repudiation of claim in toto is not justified.As such, the complainant is held entitled to compensation by way of interest @ 9% per annum from the date of repudiation i.e. 7.8.2018 till payment.

26. For the reasons recorded above, the complaint is partly accepted with Rs.5000/- as cost against opposite party. Opposite party is directed to pay Rs.38,250/- to the complainant with interest @ 9% per annum from the date of repudiation i.e. 7.8.2018 till payment.

27. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

28. The complaint could not be decided within the statutory period due to heavy pendency of cases.

29. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    10-04-2019

    (M.P Singh Pahwa)

    President

     

     

    (Manisha)

    Member