State Consumer Disputes Redressal Commission
Hdfc Ergo General Insurance Company ... vs Prakash Singh Bhandari on 22 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 96 / 2014
HDFC ERGO General Insurance Company Limited
having its office at 2nd Floor, Ratan Square Building
Vidhan Sabha Marg, Lucknow
through Manager Legal
......Appellant / Opposite Party
Versus
Sh. Prakash Singh Bhandari S/o Sh. Veer Singh Bhandari
R/o Nirmal Bagh A, Pashulok
Rishikesh, District Dehradun
......Respondent / Complainant
Sh. Sudhanshu Dwivedi, Learned Counsel for the Appellant
Sh. Amit Agarwal, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 22/01/2015
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 10.09.2012 passed by the District Forum, Dehradun in consumer complaint No. 77 of 2010. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant - opposite party to pay compensation of Rs. 1,47,528/- to the respondent - complainant together with Rs. 10,000/- towards mental agony and Rs. 10,000/- towards litigation expenses within a period of one month from the date of the order, failing which the respondent was also held entitled to interest @9% p.a. on the above amount from the date of filing of the consumer complaint till payment.2
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered owner of vehicle No. UK07-U-0200 (Maruti Alto LXI). The said vehicle was insured with the appellant - HDFC ERGO General Insurance Company Limited for the period from 01.09.2009 to 31.08.2010. During the currency of the insurance policy, the insured vehicle met with an accident on 14.01.2010. The intimation of the accident was given to the insurance company, who appointed surveyor. The complainant lodged the claim with the insurance company, which was repudiated by the insurance company. Thereafter, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that the complainant has wrongly availed the No Claim Bonus from the insurance company by concealment and misrepresentation; that under the previous policy of the vehicle, the complainant has received the claim from the previous insurer, i.e., Reliance General Insurance Company Limited; that the previous insurer of the vehicle had confirmed that the complainant had already taken two claims from them; that the complainant had availed the No Claim Bonus from the insurance company by concealing the above fact and hence the claim was not payable and was rightly repudiated vide letter dated 29.03.2010; that the surveyor has assessed the loss to the tune of Rs. 1,47,528.65/- and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 10.09.2012 in the above manner. Aggrieved by the said order, the insurance company has filed the present appeal.
35. We have heard the learned counsel for the parties and have also perused the record.
6. The insurance company has repudiated the claim of the complainant on the ground that at the time of taking the insurance policy in question, the complainant did not disclose that he had already taken two claims from the previous insurer of the vehicle in question and hence wrongly availed the No Claim Bonus of Rs. 1,050/-, to which he was not entitled and, as such, on account of concealment of fact by the complainant, his claim was not payable. The complainant has stated that at the time of taking the policy, the agent of the insurance company did not ask any question with regard to the previous claim with regard to the vehicle in question and hence no fact was concealed by him and whatever amount of premium was asked for by the agent of the insurance company, the same was remitted to him.
7. The insurance company has not filed any evidence to show that the complainant has deliberately suppressed / concealed the above fact from the insurance company at the time of taking the insurance policy in question. When the complainant was not in knowledge of the fact that he has to disclose whether he has taken any previous claim in respect of the vehicle in question from the previous insurer of the vehicle, he can not be said to be guilty of suppressing / concealing any fact. When the insurance company had knowledge about the previous insurer of the vehicle, the insurance company should have first got the facts verified from the previous insurer of the vehicle and then only should have extended the benefit of No Claim Bonus to the complainant. This apart, merely because the complainant has inadvertently availed the No Claim Bonus of Rs. 1,050/-, his entire 4 legitimate claim can not be denied and the insurance company was not at all justified to repudiate the claim of the complainant. At the most, the insurance company can deduct sum of Rs. 1,050/- availed as No Claim Bonus by the complainant from the amount found payable to the complainant and the rest of the amount is to be paid to the complainant. The District Forum has also held so, but has fell in error in not deducting sum of Rs. 1,050/- from the amount found payable to the complainant. Therefore, the said amount of Rs. 1,050/- is to be deducted from the amount of compensation payable by the insurance company to the complainant.
8. So far as the quantum is concerned, the surveyor appointed by the insurance company Sh. Preetesh Joshi has assessed the loss to the tune of Rs. 1,47,528.65/- and the District Forum has also awarded the said amount. Therefore, it can not be said that the amount of compensation awarded by the District Forum is on the higher side and is excessive. However, as stated above, the District Forum ought to have deducted sum of Rs. 1,050/- from the amount of Rs. 1,47,528/- and the remaining amount was to be awarded to the complainant. Therefore, the amount of compensation is liable to be reduced to Rs. 1,46,478/- (Rs. 1,47,528/- minus Rs. 1,050/-). Further, we are of the view that the interest awarded by the District Forum @9% p.a. is on the higher side and in our considered opinion, the same need to be reduced to 7% p.a. Since the complainant has been awarded interest, there is no question of any separate compensation for mental agony and hence the award of Rs. 10,000/- passed by the District Forum towards mental agony can not be sustained and is liable to be set aside. This apart, the litigation expenses of Rs. 10,000/- awarded by the District Forum are also on the higher side and the same need to be reduced to Rs. 5,000/-. This way, the appeal succeeds partly and is to 5 be allowed accordingly and the order impugned passed by the District Forum is liable to be modified as such.
9. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 10.09.2012 passed by the District Forum is modified and the appellant - insurance company is directed to pay compensation of Rs. 1,46,478/- to the respondent - complainant together with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs. 5,000/- towards litigation expenses. Costs of the appeal made easy.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K