The complainant Pankaj Kumar (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., and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that his Car Hyundai i 20 Asta white colour, make of Hyundai Motors, Model 2016 bearing registration number PB-03-AQ-6790 was insured with opposite party No. 1 vide policy No. 2004013117P107144559 for the period from 10/08/2017 to 09/08/2018.
It is alleged that on 06/06/2018 at about 11:30 a.m., the complainant was driving the said vehicle following a Long body Truck. When he reached near AVC Motors Mansa Road, the said Truck driver applied breakes, all of sudden, and the vehicle of the complainant hit with the said truck from the back side due to which the vehicle of the complainant was damaged. No report was given to the police as there was no fault on the part of any person. Intimation in this regard was given to opposite party No.1. The complainant after completing all the formalities submitted his claim for Rs. 90,230/- dated 27/06/2018 vides R/O No. R201804754 which was approved by Raja Motors, Bathinda, authorised service centre, but the opposite parties did not pay a single penny to the complainant till date.
It is alleged that the complainant repeatedly approached the office of opposite party No.1 and inquired about claim, but they kept on lingering the matter on one pretext or the other. No satisfactory reason was given to the complainant. The complainant filed an application under RTI Act to the Public Information Officer of the opposite parties on 13/02/2019 vide which he asked for the reasons for delaying the reimbursement of his claim.
It is further alleged that the opposite parties repudiated the claim of the complainant on the false ground vide its reference No. 2004013118CO50223001 dated 13-11-2018, in which it was stated that the file stands closed, on account of wrong declaration of NCB entitlement. It was further stated that the claim file is repudiated and stands closed as "No Claim" on account of violation of condition of the policy. The copy of the said letter was sent to the complainant in reply to the RTI application on 16/03/2019.
It is alleged that the action for repudiation of claim of the complainant by the opposite parties is illegal and against law. Due to said act of the opposite parties, the complainant has suffered grave mental tension, agony, botheration, financial loss, harassment and humiliation for which he claims compenstion to the tune of Rs. 1,00,000/-.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to make payment of loss of the said vehicle as per terms and conditions of the policy and pay compensation to the tune of Rs, 1,00,000/- in addition to any other additional alternative relief.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply raising legal objections that the complainant is not consumer within the definition of "consumer" under the 'Act' and there is no deficiency on the part of the opposite parties. That complainant has no locus standi or cause of action to file the complaint. That the complaint is not maintainable in the present form. That the complainant has concealed true and material facts from this Commission. That complicated and intricate questions 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 under the 'Act'. That this Commission does not have jurisdiction to try and entertain the present complaint. That the complainant is estopped by their act, conduct, omission, negligence and acquiescence from filing the present complaint.
It has been pleaded that the complainant, at the time of taking policy, has concealed the fact that he has not received claim from the previous Insurance Company i.e. New India Assurance Co. Ltd., for the period 10-8-2016 to 9-8- 2017 and he has claimed NCB (No Claim Bonus) in the current policy period of 10-8-2017 to 9-8-2018. The complainant has enjoyed 20% NCB from United India Insurance Co. Ltd. by giving the wrong declaration. The previous insurer of the complainant i.e. New India Assurance Co. has confirmed that there was one claim reported under the policy. As such, the complainant was not entitled for NCB (No Claim Bonus) in the current insurance policy and it is violation of GR-27 of Indian Motor Tariff. Since the complainant has obtained the present policy by misrepresenting the facts and has also claimed claim from previous Insurance Company i.e. New India Assurance Co Ltd., as such, NCB cannot be claimed by the complainant as per rules and regulations and terms and conditions of the policy.
It has also been pleaded that opposite party No. 1 has sent a repudiation letter dated 13.11.2018 to the complainant as he had violated the terms and conditions of the policy by giving declaration that :
" I/We declare that the date if NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period. 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."
Therefore, no amount is payable to the complainant as previous insurer of the complainant i.e. New India Assurance Co. has confirmed that there was/were one claim reported under the policy. Thus, as per current policy, there was breach of policy condition and the claim has been rightly repudiated vide letter 13.11.2018 as there is concealment regarding the actual facts.
On merits, it has been pleaded that the insurance is strictly as per terms and conditions of the policy and claim, if any, was payable subject to rules and regulations and terms and conditions of the policy.
The opposite parties have further pleaded that opposite party No. 1 deputed Er. Dinesh Goyal, Surveyor, for conducting survey of the vehicle and the surveyor assessed the loss at Rs. 80,443/- after applying the depreciation and other provisions as per terms and conditions of the policy and IMT as per survey report dated 10.7.2018. The claim of the complainant was repudiated because at the time of taking policy complainant had concealed the fact that he has not received claim from the previous Insurance co. i.e. New India Assurance Co. Ltd., for the period 10-8-2016 to 9-8-2017 and he has claimed NCB (No Claim Bonus) in the current policy Period of 10-8-2017 to 9-8-2018 and he has enjoyed 20% NCB from United India Insurance Co. Ltd. (opposite parties) by giving the wrong declaration.
In further reply, the opposite parties reiterated their version as pleaded in legal objections and detailed above. In the end, the opposite parties prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 28-3-2019 (Ex. C-1), photocopy of DL (Ex. C-2), photocopy of RC of vehicle (Ex. C-3), photocopy of Insurance Policy (Ex. C-4), photocopy of Invoice Summary (Ex. C-5), photocopy of Form 'A' (Ex. C-6), postal receipt (Ex. C-7) and photocopy of RTI information (Ex. C-8).
In order to rebut the evidence of complainant, the opposite parties tendered into evidence affidavit dated 22-5-2019 of Baldev Singh (Ex. OP-1/1), photocopy of policy (Ex. OP-1/2), photocopy of NCB (Ex. OP-1/3), photocopy of letter (Ex. OP-1/4), photocopy of survey report (Ex. OP-1/5) and photocopy of policy (Ex. OP-1/6).
The learned counsel for the complainant filed written arguments.
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 his Car Hyundai i 20 Asta While Colour bearing Regisration No. PB-03AQ-6790 from the opposite parties vide Insurance policy No. 2004013117P107144559 for the period from 10.8.2017 to 9.8.2018. (Ex. C-4). The car met with an accident on 6.6.2018 i.e. within covered period. The complainant filed claim with the opposite parties. The opposite parties repudiated the claim vide letter dated 13-11-2018 (OP-1/4).
It is the case of the opposite parties that complainant violated the terms and conditions of policy and concealed material facts from the opposite parties at the time of availing policy from them and complainant was not entitled to any NCB (No Claim Bonus) but he availed 20% NCB by filing/giving wrong declaration.
The repudiation letter is Ex OP-1/4. The relevant portion of this letter reads as under :
“ We are closing your claim file on account of the following reason :
Wrong declaration of NCB entitlement. According to the Rules & Regulations of No Claim Bonus, as per Indian Motor Tariff 1-7-2002, if the declaration is found to be incorrect all benefits under Section 1 of the Motor Policy will stand forfeited. Please note that claim file is repudiated and stands closed as 'No Claim' on account of violation of condition of the policy :- “ I/We declare that the date if NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period. 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.”
Ex. OP-1/3 is the No Claim Bonus Certificate issued by New India Insurance Co. Ltd., i.e. previous insurer of the complainant. This document shows that the insured vehicle was enjoying 0% NCB for the policy period 10-8-2016 to 9-8-2017 and there was one claim reported under the previous policy as on 31-10-2018, so complainant was not entitled to NCB on the next renewal of the insurance of vehicle which he got done from the opposite parties vide policy in question. Therefore, it is to be accepted that complainant was not entitled to 'No Claim Bonus', which was claimed/availed by him.
Now, question is whether opposite parties are justified to repudiate the claim in toto on the ground that the insured has claimed 'No Claim Bonus' for which he 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.”
Further perusal of the policy (Ex. C-4) reveals that previous policy number is mentioned therein, meaning thereby that particulars of previous policy were not concealed by complainant.
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%.
Ex. OP-1/5 is the Motor Survey Report of Er. Dinesh K Goyal. Vide this report, the said surveyor & loss assessor has assessed the loss to the tune of Rs. 80,443/- less/minus Rs. 700/- being salvage value i.e. 79743/-. 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. Therefore, the complainant is entitled to the claim amount of Rs. 79,743/- minus 20% i.e. Rs. 15,948/-.
Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation against the opposite parties. The opposite parties are directed to pay to complainant Rs. 63,795/- with interest @ 9% p.a. w.e.f. 13-11-2018 (date of repudiation) 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.
