State Consumer Disputes Redressal Commission
The Oriental Insurance Co Ltd vs Babasaheb Bhimraj Choudhari on 12 January, 2022
1 A/607/2018
Date of filing :13.02.2018
Date of order :12.01.2022
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
FIRST APPEAL NO. : 607 OF 2018
IN COMPLAINT CASE NO.: 334 OF 2016
DISTRICT CONSUMER FORUM : AHMADNAGAR.
The Oriental Insurance Company Ltd,. (D.O.II)
Adalat road, Aurangabad. APPELLANT
VERSUS
Babasaheb s/o Bhimraj Choudhari,
R/o Nandurkhi, Tq- Rahata, Dist.Ahmednagar, RESPONDENT
CORAM :Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.K.M.Loya for appellant,
Adv.Y.S.Choudhari for respondent.
JUDGMENT
(Delivered on 12/01/2022) Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
The appellant Oriental Insurance Company Ltd. has field this appeal against the judgment and order of District Consumer Forum, Ahmadnagar in C.C.No.16/334 decided on 20.12.2016. The appellant is the 'opponent' and respondent Babasaheb Chaudhari is the 'complainant' in the complaint before District Consumer Forum. Hence, they are hereinafter referred as per their status before District Consumer Commission.
2 A/607/2018 It is the case of complainant that, he is the owner of SCODA vehicle bearing registration no.MH-17-AV-1117. He has purchased said vehicle with the finance assistance from Syndicate Bank, Shirdi Branch, Dist. Ahmadnagar. He has purchased said vehicle from SARA Motors Pvt. Ltd,. Gajanan colony, Sahyadri chowk, Ahmadnagar. It was purchased for personal use and earlier insured with United Insurance Company which was valid up to 13.6.2016. Later on he has insured said vehicle with opponent Insurance Company as the opponent gave assurance of prompt service. The vehicle was insured with opponent for the period of 17.6.2015 to 16.6.2016 under private car package policy for terms and conditions laid down in the said policy. The ID value of the vehicle was Rs.6,77,700/-. He has deposited premium of Rs. 24,283/-. On 8.5.2016. Said vehicle met with an accident at Nirmal Pimpri, Tq.Rahata, Dist.Ahmednagar and it was badly damaged. The complainant gave intimation to police station, as well as to opponent Insurance Company. FIR was lodged and police have drawn panchnama. On intimating to opponent and as per their directions vehicle was shifted to SARA Motors on 13.5.2016 by toing for repairing purpose. Said company told that, vehicle is not repairable and also gave quotation to the complainant. Thereupon, as per demand of opponent the complainant submitted claim form with all documents along with claim form. The opponent's surveyor Shri.Naik inspected the vehicle and submitted report to opponent Insurance Company in the month of June 2016. The opponent assured the complainant that they would assess the claim and would pay compensation on total loss basis of earliest possible. The opponent then time and again inquired with opponent, but the opponent avoided to settle the claim. In the meantime Sara 3 A/607/2018 Motors, started charging parking charges at the rate of Rs. 500/- per day and complainant has incurred Rs. 19,000/- towards parking charges. He was also required to pay EMI with interest @ 14 % to finance company without using vehicle. He could not get ID value of Rs. 6,77,700/- on total loss basis and Rs.19,000/- with interest towards parking charge from the opponent. Therefore, he has issued notice to opponent claiming Rs. 75,000/- towards mental agony sustained to him and ID value along with interest. And on avoidance by the company to pay to the complainant the aforesaid amount by opponent, he approached to the District Consumer Commission. Copy of complaint is at page No. 22 to 26.
The opponent Oriental Insurance Company Ltd,. appeared before District Consumer Commission, Ahmadnagar and resited the claim. Copy of w.s. is at page No.27 & 28. The opponent has not disputed that, vehicle was insured with opponent for the period of 17.6.2015 to 16.6.2016 subject to terms and condition of policy. However, it is denied that opponent has insisted the complainant to take policy from them. It is not disputed that the vehicle met with an accident and sustained damage. But it is denied that complainant required to incur Rs.19,000/- towards parking charges or that he has sustained loss due to avoidance of opponent to settle the claim. It is the contention of opponent that, complainant has obtained "No Claim Bonus" at the time of renewal of policy from opponent, against previous policy; for entitlement of NCB information from previous Insurance Company is required. When the insured is unable to produce such information he is permitted to give declaration, in view of G.R. 27 of Indian Motor Tariff. It is the contention of opponent 4 A/607/2018 that, complainant has suppressed the fact of earlier O.D.claim obtained on previous policy and obtained policy by submitting false declaration. Hence, all rights and benefits available under the policy are forfeited. To settle the claim amount was with the financial authority at Regional Office of opponent. The file was sent to Regional Office for necessary decision. The complainant was given opportunity to declare information regarding NCB, his claim was considered sympathetically and he was sanctioned Rs.4,34,642/-. Complainant was asked to comply documents by issuing him a letter dated 20.4.2017. But he failed to comply said letter and instead of it stared claiming parking charges and other damages which is not the liability covered under the policy. It is not the case of deficiency in service on the part of opponent insurance company. The opponent has denied claim under the complaint. However, if the Forum is of the opinion that opponent is liable to pay amount towards damages then the liability of opponent will be limited to Rs. 4,34,642/- as offered to the complainant. Hence, the opponent prayed for dismissal of claim.
The District Consumer Forum, however, pleased to award Rs.4,92,000/- with 9 % from the date of complaint and Rs.25,000/- towards the cost of proceeding.
Being aggrieved by the order of District Consumer Commission the appellant Insurance Company has preferred this appeal on the following grounds.
That, the District Consumer Forum failed to consider the terms and conditions laid down in G.R. 27. The District Consumer 5 A/607/2018 Commission failed to consider that complainant while renewing the policy with opponent Insurance Company has suppressed the fact of previous claim, while claiming advantage of non claim bonus. The complainant to get declare more ID value has deposited more amount than required, by suppressing real fact. It is ignored by the District Commission that, the claim was not repudiated. The District Consumer Commission ought to have considered that the opponent has informed the complainant for compliance of documents to consider his claim on making disclosure of certain facts. But the District Consumer Commission has not considered the documents and terms and conditions of G.R.27 and policy and came to the wrong conclusion. Hence, the opponent Insurance Company has prayed for setting aside the judgment and order of District Consumer Commission.
Both the learned Adv. for complainant and opponent argued on the line of their respective submissions in pleading and respective documents.
Following points arise for our determination. We have noted them along with our findings against it accordingly for the reason to follow.
Sr.No. Points. Answers
1. Whether, there is deficiency in service Yes.
On the part of opponent?
2. Whether there requires interference Yes.
In the judgment and order of
District Consumer Commission?
6 A/607/2018
3. What order or decree? As per final order.
REASONS
Point Nos.1&2 :-
The learned Adv. for appellant Insurance Company Shri.Loya argued that, there is no repudiation of claim. However, offer letter was given to the complainant. He himself not complied it. Moreover, while renewing the policy with opponent Insurance Company the complainant has suppressed the fact of earlier availment of own damage claims. Hence, in view of G.R.27 the claim can be forfeited. Hence, in the given circumstances there is no deficiency in service on the part of opponent Insurance Company. Hence, the order needs to be set aside and complaint is liable to be dismissed.
The learned Adv. for complainant has submitted that, renewal of policy was made with opponent or their assurance of prompt compliance of claim and as they have assured to give zero depreciation claim benefit. The proposal form is filled up by the representative of opponent. As per submission of opponent, they have called information from previous insurance Company and there upon accepted the premium from complainant and issued him the policy. The documents of proposal form and letter calling information by opponent to United India Insurance itself shows that on obtaining information from previous company the policy has been issued. If the opponent would have found any fault on the part of complainant, the opponent ought not to have issued policy or would have imposed penalty if required and then could have issued the policy. Therefore, now the opponent cannot forfeit the claim under 7 A/607/2018 the ground of want of compliance of G.R.27. The complainant has denied that, any offer was given by opponent as alleged in w.s. for settlement, on compliance of documents. All documents are already complied, but the opponent avoided to settle the claim in spite of assurance and though it was no depreciation policy.
Perused the respective submissions/pleadings and documents. It is not disputed that, complainant is the owner of SKODA car, it was earlier insured with United India Insurance till 16.6.2015 and further renewed from opponent Oriental Insurance Company from 17.6.2015 to 16.6.2016 under terms and conditions for no depreciation value. Said vehicle met with an accident on 08.05.2016. Accident was reported with police & police have registered the FIR and also drawn spot panchanama and thereon 13.06.2016 vehicle was shifted from spot to SARA Motors, Shirdi and it was totally damaged. The surveyor of opponent has also inspected the vehicle and assessed the loss to Rs.4,92,000/-.
According to complainant he has submitted all required documents with proposal form and it was asked by opponent to settle the claim on zero depreciation basis for ID value. However, the opponent avoided to settle the claim as previous policy and thereby caused deficiency in service. Due to which the complainant required to pay Rs. 19,000/- towards parking charges and EMI with interest due to non settlement of claim, for longer period.
The proposal form for renewal of policy is at page No. 41 to 46. The policy confirmation form is at page no.40. It reveals that, the 8 A/607/2018 complainant has submitted proposal on 17.6.2015 for renewal of policy against earlier policy which was obtained from United India Insurance which was to existence up to 16.06.2015. The proposal form bears the declaration column No.6 &7 on page No.45, which is required as per G.R.27 it is kept blank and the opponent Insurance Company on the same date i.e. on 17.6.2015 by its letter addressed to United India Company Ltd,. Shirdi has obtained verification regarding column No.4 'Claim experience' which is at page No.40. Wherein it is endorsed as '2 O.D.' and it also bears the seal and signature of Vijay Thorat for United India Insurance, Shirdi Branch त पर सेवा कायालय, िशड (901111045). These endorsement itself show that, on receiving this verification report on the same day, the opponent accepted the premium and issued the policy. The opponent Insurance Company ought to have either rejected the renewal or cancelled the policy.
But here during existence of policy, the opponent Insurance Company on receiving the proposal of O.D claim in respect of accident dated 08.05.2016, issued letter dated 01.12.2016 asked the complainant to disclose information in respect of NCB with allegation of non disclosure of fact as per GR 27 is certainly undesirable. In fact, the opponent in its pleading itself submitted that, "while obtaining policy the claimant is required to submit proposal form with declaration, if he is unable to give information regarding the same, to opponent on verifying the proposal may forfeit the claim". Here, the opponent itself verified the information in proposal form, on the same day vide application at page No.40 and issued policy which was in existence when the accident occurred.
9 A/607/2018 The learned advocate for the opponent has submitted that the claim is not repudiated. The complainant himself has suppressed the fact by giving false declaration about NCB in the proposal form as required under GR 27, for deciding premium, for renewal of policy on no claim basis. And as per said terms and conditions on suppression of information as to earlier for own damage, benefit under the policy are forfeited. Complainant was also called for sympathetic consideration by Registrar Office, but complainant failed to comply the documents.
The complainant has denied about receipt of said letter. The opponent has also not produced postal receipt or acknowledgement to show that, said letter was served upon the complainant. However, the complainant has admitted that the opponent has issued one letter on 20.4.2017, said letter is at page no. 88to89. The reply given by complainant to said letter is at page no. 89to90. In response to it the opponent vide letter dated 16.5.2017 asked the complainant to comply the documents such as pan card, Aadhar Card, affidavit for repairing work and informed the complainant that they are not responsible for repairing the vehicle and also asked him to submit about unconditional withdrawal of complaint from this Consumer Forum. This fact itself shows that, the claim was not settled by complainant for want of documents from bank and that, complainant was insisting for settlement of claim through Insurance company and was not ready to take responsibility as the vehicle was lying with Sara Motors and Sara Motors was claiming parking charges due to which the claim between the complainant and Insurance Company could 10 A/607/2018 not be settled. The complainant has also informed the opponent that, they are ready to accept the amount of Rs. 4,34,640/- with responsibility to settle the claim of Sara Motors for scrap value and to deposit the amount payable to complainant with the Syndicate Bank. In this situation the settlement of claim is being delayed. Under such circumstances the opponent ought to have disbursed the amount of Rs.4,34,642/- for which the complainant has shown willingness to accept and send the same directly to the bank. However, without settling the claim in the manner the opponent has committed deficiency in service. So far as scrap material or vehicle is concerned is not the question to be settled by the District Consumer Forum. Both the parties are silent on this point in their respective pleading that, the same and also in the written notes of argument or oral argument before this Commission.
However, the District Consumer Forum has awarded the net repairing cost assessed and awarded the same to complainant without considering the fact that the opponent Insurance Company has accepted the proposal of policy though alleged 2 OD claim were accepted by the complainant against previous policy, when the proposal form was verified on the same day of renewal of the policy. The opponent itself failed to consider this aspect. Hence, now opponent cannot claim the forfeitance of right of complainant to get the compensation on this policy. It appears that the opponent settled the claim by giving opportunity to the complainant to disclose the information regarding the OD, showing readiness to pay amount of Rs.4,34,642/- as a final offer if settlement. However, not paid this amount to complainant or his banker. The opponent in pleading has 11 A/607/2018 not explained how the amount is concluded for settlement. However, other aspect come forward are if considered, the damage is above 75 %. The two OD claim were taken by complainant against earlier policy though no details about the claim brought on record. The opponent has opportunity to impose certain penal charges on the premium assessed or obtained on NCB basis. And the complainant has also accepted the settlement offer by way of reply to the letter of the opponent. The complainant has in his written and oral argument has also shown his readiness to accept the amount assessed by Insurance Company towards the settlement of the claim.
Therefore, the claim can be settled between the parties to the extent of compensation payable against damage to vehicle. The complainant has also mentioned in written notes of argument and in the letter reply given to opponent that, the complainant has obtained loan from Syndicate Bank, Shirdi Branch and thereby are unable to comply the NOC as they are unable to pay the amount in question. Therefore, the opponent could have paid the amount directly on the bank account. Here the complainant has not made the bank as party to the consumer complaint , though admittedly he raised finance from Syndicate Bank, Shirdi Branch. It is contended that, appellant is required to pay EMI and interest to the bank. No documents showing details of payment to Syndicate Bank is produced on record. Therefore, in the circumstances as submitted by complainant in the correspondence with opponent and in written notes of arguments and while orally arguing the matter the offer given by opponent is acceptable to the complainant and that the opponent could have directly deposited the amount to Syndicate Bank. Hence, he has no 12 A/607/2018 objection if the opponent Insurance Company has directly disbursed the amount of Rs.4,34,642/- to the bank account. Hence, though bank is not made party, and the complainant has neither submitted details of amount payable to the bank, it will be just and proper to direct the opponent Insurance Company to deposit the amount agreed against the claim with Syndicate Bank, Shirdi branch, as specified in RC Book and that the Bank shall adjust said amount against loan account and will give details of adjustment of amount to the loan account to the complainant.
We have already mentioned that, neither the complainant has made correspondence with opponent Insurance Company about scrap value of vehicle nor the opponent is claiming any interest in it. It is for the complainant to make disposal of said scrap vehicle. This aspect is not raised by complainant before this Commission. Hence, the complainant is at liberty to take decision regarding scrap vehicle as per rule. Hence, there is no propriety in considering the said aspect on which both parties are silent in their pleadings and arguments.
In this circumstances this Commission is required to modify the judgment and order on quantum. Moreover, considering the fact that vehicle is purchased with assistance of Syndicate Bank, Shirdi Branch. The complainant has admitted the same and requested in argument to make direct payment to the loan account. Therefore, instead of making payment to complainant directions are required to be given to the opponent to that effect. The complainant and Bank will be at liberty to settle the claim in respect of balance amount if any payable 13 A/607/2018 after adjusting the amount against loan account of vehicle in accordance with agreement between the parties and by adjusting the depreciation value by following due process of law. We therefore answer the points accordingly and pass following order.
ORDER
1. The appeal is partly allowed.
2. The judgment and order of District Forum is hereby set aside and it is modified as under.
i) The respondent insurance company shall make the payment of amount of Rs.4,34,642/- towards the consumer complaint, by making direct payment on the loan account of complainant Babasaheb Bhimrao Choudhari, R/o Shirdi with Syndicate Bank, Shirdi Branch Dist.Ahmednagar , within 30 days from receipt of this order, under intimation to complainant.
ii) The Syndicate bank on receiving the amount shall settle the vehicle loan account between complainant and the bank, in accordance with agreement, between the parties interse.
iii) The complainant to dispose of the scrap vehicle , in accordance with due procedure and adjust the sale proceeds towards the dues of vehicle loan account for payment of dues if any, remained after compliance of clause (ii) of this order.
iv) This order be communicated to the parties and Syndicate Bank, Shirdi, Dist.Ahmednagar.
Sd/- Sd/- Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK