State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd. vs J.C.Kapoor on 5 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 311 of 2015 Date of Institution : 18.11.2015 Date of Decision : 05.01.2016 The Oriental Insurance Company Ltd., SCO No.99-100, Sector 17-B, Chandigarh-160017, through its Regional Manager. Now through its Authorized Signatory B.S. Ahuja, Dy. Manager, Regional Office, SCO No.99-100, Sector 17-B, Chandigarh. ...Appellant/Opposite Party V e r s u s J.C. Kapoor S/o Sh. K.D. Kapoor, R/o H.No. 3598, Sector 37-D, Chandigarh. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. J.P. Nahar, Advocate for the appellant.
Sh. J.C. Kapoor, (Advocate), respondent in person.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT This appeal is directed against an order dated 13.10.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short the Forum only) vide which, it accepted consumer complaint bearing No.14 of 2015, filed by the complainant (now respondent) In a nutshell, it was case of the respondent/ complainant that his vehicle was insured with the appellant/opposite party, between the period from 04.09.2013 to 03.09.2014, against insured declared value of Rs.2,05,000/-. The said vehicle caught fire on 11.07.2014. A DDR was got recorded with the concerned Police Authority. Claim was lodged with the appellant for settlement of the same. However, despite writing many letters, nothing was done by the appellant. Ultimately, claim raised by the respondent was repudiated by the appellant, vide letter dated 29.10.2014. Relevant portion of the said letter reads thus:-
"In fact, you have not mentioned with regard to any claim in preceding three years while submitting Proposal Form, which is dully signed by you, so your contention that our Agent did not ask about NCB (No Claim Bonus) is totally wrong and against the facts as stated above.
You have suppressed with regard to having received insurance claim from the previous insurance company which you deliberately did not disclose at the time of obtaining a new policy from our company and therefore, you are not entitled to the benefit under the policy. Thus, on the basis of declaration given by you in the Proposal Form all benefits under the policy in respect of section-1 of the policy stand forfeited.
Therefore, your claim is not payable and the same is repudiated".
It was submitted that when the policy in dispute was purchased, the fact that no claim was raised in the last three years from any Insurance Company, was not mentioned. As such, on account of concealment of material facts, the claim was wrongly repudiated by the appellant. Hence the consumer complaint.
The appellant/opposite party in its written version, while admitting the factual matrix of the case, with regard to purchase of Insurance Policy, with respect of the vehicle in question, by the respondent; its validity period; occurrence of fire incident; recording of DDR with the Police Station concerned; lodging of claim etc. stated that the respondent lodged a claim, with the previous Insurance Company and had received a claim of Rs.7034/-, which fact was intentionally suppressed by him, at the time of obtaining the Policy, in dispute, as such, his claim was rightly rejected by the appellant. The remaining averments were denied being wrong.
In the rejoinder filed by the respondent, he reiterated all the averments contained in the complaint, and repudiated those, contained in the written version of the appellant.
The Parties led evidence, in support of their case.
After hearing respondent/complainant in person, Counsel for the appellant/opposite party and on going through the evidence, and record of the case, the Forum opined that there is no evidence on record to show that any mis-statement was made by the respondent, as alleged, for obtaining the Insurance Policy. Finding deficiency in providing service, on the part of the appellant, consumer complaint was allowed and following relief was granted to the respondent, by the Forum:-
"Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is partly allowed. The Opposite Party is directed, , to:-
[a] Pay Rs.2,05,000 after deducting NCB therefrom with interest @9% p.a. from the date of filing of the claim, till realization.
[b] pay Rs. 800/- as demurrage charges. [c] Pay Rs.30,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; [d] Pay Rs.10,000/- towards costs of litigation;
The above said order shall be complied within 30 days of its receipt by Opposite Party; failing which it, shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] of Para above from the date of filing of the claim, till it is paid. The amount as per sub-para [b] &[c] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from costs of litigation."
Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
We have heard Counsel for the appellant, respondent in person, and, have gone through the evidence, and record of the case, carefully.
Counsel for the appellant, by placing reliance upon the document Annexure R-3, submitted by the respondent to get the Insurance Policy issued, said that as per Clause 6 (d), when disclosing particulars of previous Insurance Policies, against above column, it was not stated that in the past three years, he (respondent) had lodged any claim, qua his vehicle, in dispute. By stating as above, it was averred that the following written declaration was filed by the respondent, on account of which, he is not entitled to get any relief:-
""I/We declare that the rate of NCB claimed by me/us is correct and that no claim has arisen in the expiring policy period (copy enclosed). I/We further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section-I of the policy will stand forfeited. I/We also declare that any additions or alterations are carried out after the submission of this proposal form then the same would be conveyed to the insurers immediately"
It is stated that on account of above fact, relief has wrongly been granted to the respondent, by the Forum. To strengthen case of the appellant, its Counsel has placed reliance upon a judgment of National Commission, titled as Shri Inder Pal Rana Vs. National Insurance Co. Ltd., Revision Petition No.4470 of 201 4 , decided on 02.01.2015, wherein, it was opined that in a case, where fact of non-disclosure of earlier claims filed, to get no claim bonus benefit from the Company is established, the claim qua vehicle can be rejected. It is prayed that in view of wrong declaration filed by the respondent, let the appeal be allowed and consumer complaint filed be dismissed.
To the contrary, the respondent has vehemently contended that the allegations of non-disclosure of true facts, is palpably wrong. In the proposal/application form, against column (d) of Clause 6, nothing has been mentioned. Only the IDV/amount of the vehicle has been shown. If the proposal form was not complete, his proposal/application form should have been rejected by the appellant. It is further stated that on the date of making proposal i.e. 04.09.2013, the respondent had not got any claim from the previous Insurance Company. Previous Insurance Policy of the car, in dispute, remained in existence upto 03.09.2013. Before that date, an accident had occurred and claim was lodged. However, the claim was sanctioned in favour of the respondent only on 30.05.2014 i.e. after about nine months from the date, when the Insurance Policy was purchased from the appellant. Furthermore, it is stated that as per Clause (f) of GR 27 of the India Motor Tariff, in the cases, where no claim bonus was claimed, it is duty of the Company to get information from the previous Insurance Companies, within 21 days. However, it was not done. An objection was raised only when the incident of fire in the vehicle occurred on 11.07.2014. Only thereafter, information was got from the previous Insurance Company qua claim disbursed, in favour of the respondent. He prayed that appeal filed by the appellant, be dismissed.
After giving our thoughtful consideration, to the contentions, raised by Counsel for the appellant, respondent in person and the evidence, on record, we are not inclined to interfere in the judgment under challenge. It was rightly opined by the Forum that the allegations of misrepresentation against the respondent, when making proposal for insurance is not justified. We have gone through the proposal form. Clause 6 (d) of the same reads thus:-
Claims lodged during the Preceding 3 years Year Number Amount 2,05,000/-
Perusal of Clause 6 extracted above indicates that against column (d), the respondent had not stated that he had not raised any claim, in the past three years, qua the vehicle, in question. The said column is blank. Only the IDV/amount of the vehicle under insurance has been mentioned. If that was so, taking note of the blank column, it was duty of the appellant to ask the respondent, to supply information qua that query. However, it was not done. The proposal form with blank column was accepted.
Furthermore, as per admitted facts on record, qua the previous Insurance Policy, the respondent had raised claim and that was sanctioned in his favour, on 30.05.2014 i.e. after about nine months of accepting his proposal form for insurance with the appellant. Above fact clearly indicates that there is no wrong declaration by the respondent, as alleged. In the declaration reproduced above, it is only said by the respondent that the rate of no claim bonus claimed by him was correct. He was justified to say so because at that time, his claim by the previous Company was not approved. Like the one in hand, that claim could have also been rejected on any technical ground by the previous Insurance Company. It was duty of the appellant to ask the respondent to disclose, whether any such claim was lodged by him or not. Not only as above, some other columns of the proposal form are also blank (see page 69 of the Forum record). Above facts clearly goes to show that terms and conditions of the Policy were not explained to the respondent. Further, proper information was not elicited from him, when accepting the proposal form.
Not only as above, the appellant had not performed its duty, which is mandatory. Clause (f) of GR 27 of India Motor Tariff, envisaged that when an insured is getting his policy transferred from one Company to another, he is entitled to get no claim bonus on production of letter from the previous Company, confirming acceptance of NCB. If such a letter is not produced, when proposal is signed for purchase of Insurance Policy, the insured can be asked to file an undertaking, mentioning that he had not obtained NCB from the previous Insurance Company. Format of undertaking has already been extracted in the previous part of this order. This Clause casts upon the Insurance Company, an important duty to get above fact checked, with regard to non-accepting of NCB by the proposer, from the previous Insurance Company, within time bound manner. Such provision reads thus:-
"(f) In the event of the insured, transferring his insurance from one insurer to another insurer, the transferee insurer may allow the same rate of NCB which the insured would have received from the previous insurer. Evidence of the insured's NCB entitlement either in the form of a renewal notice or a letter confirming the NCB entitlement from the previous insurer will be required for this purpose.
Where the insured is unable to produce such evidence of NCB entitlement from the previous insurer, the claimed NCB may be permitted after obtaining from the insured a declaration as per the following wording:
"I/We declare that the rate of NCB claimed by me/us is correct and that no claim as arisen in the expiring policy period (copy of the policy enclosed). I/We further undertake that if this declaration is found to be incorrect, all benefits under the policy in respect of Section I of the Policy will stand forfeited."
Notwithstanding the above declaration, the insurer allowing the NCB will be obliged to write to the Policy issuing office of the previous insurer, by recorded delivery calling for confirmation of the entitlement and rate of NCB for the particular insured and the previous insurer shall be obliged to provide the information sought within 30 days of receipt of the letter of enquiry, failing which the matter will be treated as a breach of Tariff on the part of the previous insurer. Failure of the insurer granting the NCB to write to the previous insurer within 21 days, after granting the cover will also constitute a breach of the Tariff."
It is mandated that on issuance of claiming NCB, the Insurance Company is bound to write to the previous Insurance Company calling for confirmation of entitlement and rate of NCB, as per particulars supplied by the insured. If such confirmation letter is not written within 21 days, delay constitutes the breach of Tariff. In the present case, admittedly it was not done. Had the appellant performed its duty within the stipulated period, the Policy issued could have been cancelled or an option could have been given to the insured to get it regularized on payment of an amount of Rs.2164.05Ps., which was claimed towards NCB. Nothing was done and after about more than nine months of issuance of the Insurance Policy, when incident of fire had occurred, information was sought from the previous Insurance Company, and claim of the respondent was rejected. Above facts clearly shows that there was deficiency in providing service by the appellant. By not performing its duty within 21 days, from the issuance of the Insurance Policy i.e. 04.09.2013, the appellant had acquiesced and forfeited its right to get information, as referred to above, after about 09 months of the issuance of the Policy.
Under similar circumstances, in the case of TATA AIG General Insurance Company Limited and another Vs. Arvinder Brar, First Appeal No.187 of 2015, decided on 21.09.2015, this Commission held as under:-
"The car met with an accident on 06.05.2014, claim was lodged on 8.5.2014, and the same was rejected by the appellants/Opposite Parties vide letter dated 3.6.2014 (Annexure C-9) sent through registered post. As is clearly evident from Annexure R-4, it was only after lodging of the claim by the respondent/ complainant that the appellants/Opposite Parties took up with the previous Insurer for verification of No Claim Bonus details whereas they were required to do so within 21 days. Paras 9 and 10 of the order of District Forum, being relevant are produced hereunder:-
"9. It is evident from the afore-extracted Clause (f) of G.R.27 of India Motor Tariff that the insurer was also duty bound to write to the previous insurer, within 21 days, after granting the cover for confirmation of the entitlement and rate of NCB. Since the policy had been issued by the Opposite Parties, in respect of the vehicle, in question, in favour of the complainant, it was its duty to obtain the information, as to whether, any claim had been obtained by the complainant, in respect of the Policy, of the previous year, within 21 days, but it failed to do so. Under these circumstances, the fault also lay, on the shoulders of the Opposite Parties, in not confirming about this factum, within the specified time, stipulated in the aforesaid Clause (f) of GR 27 of India Motor Tariff.
10. The Surveyor and Loss Assessor vide report Annexure R-5, assessed the loss, to the tune of Rs.88,089/-. Report of the Surveyor and Loss Assessor, is based on the cogent and convincing material and data. No evidence was produced, on the record, to rebut the report of the Surveyor and Loss Assessor. It is, no doubt, true that the report of the Surveyor is neither binding, on the parties, nor the Consumer Fora, yet it being a very significant document, cannot be discarded lightly."
Thus, there was clear cut deficiency attributable to the appellants/Opposite Parties, as they failed to adhere to the provisions of Clause (f) of G.R.27 of India Motor Tariff, by not obtaining the requisite information, in respect of the Policy, in question, of the previous year, within the stipulated period of 21 days. The appellants were very prompt in declining the claim but they did not care to send the Insurance Policy to the complainant. On the face of facts and circumstances aforesaid, the facts of the instant case are distinguishable from the facts of Inder Pal Rana Vs. National Insurance Co. Ltd.'s case (supra)."
Facts mentioned above, clearly indicates that no misrepresentation was made by the respondent. The proposal form with blank relevant column was accepted. No attempt was made to get information, from the previous Insurance Company, by the appellant, qua receipt of any claim by the respondent, within 21 days, from the date of issuance of the Policy, in dispute. If, at an appropriate time, above obligation had been discharged by the appellant, two options were available, first the Insurance Policy in the instant case could have been cancelled by the appellant or/and option was also available with the respondent to get it regularized on payment of Rs.2164.05Ps. For such a paltry amount, claim to the tune of Rs.2,05,000/-, cannot be repudiated. Furthermore, on the date, when proposal form was made, claim filed qua previous Policy had not yet been approved. It was approved after issuance of the Policy, in dispute. As such, reliance placed by Counsel for the appellant on Shri Inder Pal Rana 's (supra) is not applicable, as the facts were altogether different in that case. In that case, it was specifically averred by the insured in the relevant column, that he had not raised any claim, qua the insured vehicle, with the previous Insurance Policy. Thus, no ground, whatsoever, is made out by the appellant, to persuade this Commission, to reverse findings of the Forum.
No other point, was urged, by Counsel for the appellant and respondent in person.
In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting interference of this Commission.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
05.01.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg