The complainant Saroj Garg (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against United India Insurance Co. Ltd., (here-in-after referred to as opposite party).
Briefly stated the case of the complainant is that she is/was owner and in possession of One Toyota Fortuner bearing registration No. PB-03AL-1881. The said vehicle was got insured with the opposite party vide policy No. 1105813116P117615394 for the period from 30.3.2017 to 29.3.2018.
It is alleged that unfortunately, the said vehicle met with an accident on 6.11.2017. The complainant informed the opposite party regarding accident and also submitted her claim but no action has been taken so far by the opposite party. Thereafter the complainant approached the opposite party number of times and requested to admit her rightful claim and make the payment of the claim of vehicle as per the terms and condition of policy, but there was no response from the side of the opposite party. Ultimately the opposite party has declined the claim of the complainant on a false and baseless ground.
The complainant also alleged that the purpose for which the complainant got insured vehicle has not fulfilled as the opposite party has received the premium, but now they are dilly dallying the payment of insured/c1aimed amount.
It is alleged that at the time of insurance of vehicle in question, the complainant also provided copy of old insurance cover note and policy to the agent of the opposite party. The complainant also signed the documents asked for on behalf of the opposite party by the agent. All the information of the vehicle was disclosed to the concerned agent of the opposite party and the said agent assured the complainant that the insurance system of all the companies are inter-connected by the Government/authority. It was also assured by the concerned agent of the opposite party that there is system for charging the premium as per record of vehicle which shall be verified by the opposite party from previous insurance company and it shall be done at their own.
The complainant alleged that premium amount was paid by the complainant as third party and thereafter no verbal or written letter/information has been received by her on behalf of opposite party regarding any other payment to be paid or regarding any verification of concerned vehicle from the previous insurer or regarding wrong information as alleged by them. The complainant sent letters dated 19.12.2017 and 2-1-2018 to the opposite party alongwith documents, but to no effect. The letters dated 25.1.2018 and 27.2.2018 sent by the opposite party are wrong, baseless and with vague allegations.
The complainant further alleged that the opposite party failed to comply with its own terms and conditions due to which the complainant suffered mental tension and agony for which she claims compensation to the tune of Rs.1,00,000/- beside the insurance claim.
On this backdrop of facts, the complainant has prayed for directions to the opposite party to make the payment of bill already submitted to the opposite party as per terms and conditions of the policy and also pay Rs. 1,00,000/- as compensation plus Rs. 50,000/- as travelling charges in addtion any other additional alternative and consequential relief.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply raising legal objections that the complainant has no cause of action or locus standi to file the present complaint against the opposite party. That the complainant has not approached this Commission with clean hands and has not placed true and correct facts. That the complainant does not fall within the definition of consumer as defined under the 'Act'. That the complainant has filed this false and fictitious complaint against the opposite party and has unnecessarily harassed the opposite party by dragging them into uncalled for litigation.
It has been pleaded that the true facts are that previously the complainant had taken policy from Bharti AXA General Insurance Company Limited and had taken claim from the said insurance company, but at the time of taking insurance policy in question from opposite party, the complainant by representation and concealing truth had mentioned in the proposal form, the claim experience in the last three years as nil. Thus the policy in question was obtained by complainant by misrepresentation and by concealing / non disclosure of material facts which is violation of policy terms and conditions by the complainant and as such the complaint is/was not entitled to claim. The complainant is barred to claim relief under the Consumer Protection Act for her unethical act and conduct in the matter and complainant is not entitled to the relief prayed for.
Further legal objections are that the complainant is estopped by her own act and conduct from filing the present complaint. That there is no deficiency in service on the part of opposite party. That complicated and intricate question of law and facts are involved in the present complaint, which requires voluminous evidence and as such the present complaint cannot be disposed off in summary nature and should be decided only by the Civil Court and that the complaint is false, frivolous and vexatious.
On merits, the opposite party admitted that insurance policy was of course got issued, but it was got issued by complainant by misrepresentation and by concealing the material facts and as such the complainant had violated the terms and conditions of the policy.
It has been pleaded that the claim was rightly repudiated and the repudiation is legal and valid in all respects. The complainant herself is at fault and had violated the terms and conditions of the policy. The claim is not payable to the complainant. The complainant is literate and she signed the proposal form wherein she mentioned the claim experience in the last three years as nil. The complainant herself is guilty of taking policy fraudulently by mis-representation and concealing material facts. The insurance system of all the insurance companies are not interconnected by the Govt. authority as falsely alleged. In further reply, the opposite party has reiterated its version as taken in legal objections and detailed above. After controverting all other averments, the opposite party prayed for dismissal of complaint.
In support of her claim, the complainant has tendered into evidence photocopy of insurance policy (Ex. C-1), photocopy of R.C. Of vehicle (Ex. C-2), photocopy of bill (Ex. C-3), photocopy of payment receipt (Ex. C-4), photocopy of letters (Ex. C-5 to Ex. C-8) and affidavit dated 24-8-18 of complainant (Ex. C-9).
In order to rebut the evidence of complainant, the opposite party has tendered into evidence affidavit dated 4-10-2018 of Sh. Baldev Singh (Ex. OP-1/1), photocopy of proposal form (Ex. OP-1/2) and photocopy of e-mail (Ex. OP-1/3).
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.
Admitted facts of the parties are that the complainant got insured her Toyota Fortuner Car bearing registration No. PB-03AL-1881 from the opposite party vide insurance policy 1105813116P117615394 (Ex. C-1)by paying premium of Rs. 38,470/-. The covered period was from 30.3.2017 to 29.3.2018 The car met with an accident on 6.11.2017 i.e. within covered period. The complainant filed claim with the opposite party. The opposite party has repudiated the claim by pleading that “as per proposal form submitted by you, it is found that you have mentioned the claim experience in the last three years as nil' but as per the confirmation given by your previous insurance company, there was claim, thus you have mis represented. The claim is repudiated on the ground of mis-represented and non disclosure of material facts, which is violation of policy terms and conditions of the policy.
Although, opposite party has not produced on record any other evidence except letter/e-mail, (Ex.OP1/3) wherein it is mentioned that the insured (complainant) was enjoying 'Nil NCB' of previous policy - claim paid on the policy, so NCB was not applicable on renewal. However, insurance policy/cover note (Ex. OP-1/2) shows that complainant has signed this document wherein NCB has been declared as 20%. Therefore, it is to be accepted that complainant was not entitled to 'No Claim Bonus', which was claimed/availed by her.
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.
Now, question is whether opposite party is justified to repudiate the claim in toto on the ground that the insured has claimed 'No Claim Bonus' for which she was not entitled to.
Hon'ble National Commission vide its order dated 2-2-2017 in the matter of United India Insurance Company Limited Vs. M/s. Jindal Poly Buttons Limited & Branch Manager, National Insurance Company Limited Vs. Naresh Kumar passed in Revision Petition No. 2920 of 2015 and 1836 of 2016 held :
“(a) The cases in which it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and the insurer had means to verify the correctness of the declaration of the insured seeking No Claim Bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurer' own record, Exception to 19 of Indian Contract Act would come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However, because the insured had taken benefit of No Claim Bonus and paid less premium, the insurance claim would be reduced proportionately.
(b) In case of the insured taking the insurance policy of the vehicle from new Insurance Company and it is established that the insured by making wrongful declaration has taken benefit of No Claim Bonus and where the insurer had failed to seek confirmation regarding correctness of the declaration submitted by the insured in support of plea of No Claim Bonus within the stipulated period as provided in GR 27 of Indian Motor Tariff, the insurer would not be justified in repudiating the insurance claim. However, because the insured had taken benefit of No Claim Bonus by making false declaration, his insurance claim would be reduced proportionately.”
In view of the above finding of the Hon'ble National Commission, this Commission is of the considered opinion that repudiation of insurance claim in toto by the Insurance Company was not justified because insurance company failed to fulfill its obligation under GR 27 of Indian Motor Tariff. However, as the complainant has paid 20% less premium, equity demands that insurance company should have allowed the insurance claim on pro rata basis i.e. by reducing the entitlement under the claim by 20%.
The complainant has placed on file bills (Ex. C-3) of repair charges of accidental vehicle in question and receipt (Ex.C-4) which reveal that complainant spent Rs. 44,028/- and paid the said amount to repairer through credit card. The opposite party has not challenged these documents of the complainant. Therefore, the complainant is entitled to the claim amount of Rs. 44,028/- minus 20% i.e. Rs. 8805.60.
Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation against the opposite party. The opposite party is directed to pay to complainant Rs. 35,223/- with interest @ 9% p.a. w.e.f. 25-1-2018 (date of repudiation) till payment.
The compliance of this order be made by the opposite party 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.
