w w w . L a w y e r S e r v i c e s . i n



The Branch Manager, National Insurance Co. Ltd. v/s Suchandra Basak


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- P. BASAK & CO PVT LTD [Strike Off] CIN = U35921WB1955PTC022298

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    First Appeal No. A/400/2018

    Decided On, 13 March 2020

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SHYAMAL GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE MR. UTPAL KUMAR BHATTACHARYA
    By, MEMBER

    For the Appellant: Debojit Dutta, Advocate. For the Respondent: Mousumi Chakraborty, Advocate.



Judgment Text


Utpal Kumar Bhattacharya, Member

Being aggrieved with the judgment and order dated 28/02/2018 passed by the Ld. District Forum, Dakshin Dinajpur, Balurghat in Complaint Case No. 48/2017 allowing the Complaint on contest, the Appellant/OP filed the instant appeal u/s 15 of the C P Act, 1986 challenging the said order.

The Appellant/OP was directed in the said order to pay to the Respondent/Complainant Rs. 1,03,721/-being the amount assessed by its appointed surveyor with interest @ 10% p.a. accrued thereon for the period from 01/04/2017 till the date of payment.

The Appellant/OP was further directed to pay compensation and litigation cost of Rs. 5000/- and Rs. 3000/- respectively.

Payment of entire decretal amount was directed to be made within 30 days from the date of the order, failing which, as ordered, another interest @ 12% p a. would accrue to the amount to be paid with interest and also on the compensation amount.

The Respondent/Complainant was allowed liberty to put the order into execution after expiry of 45 days from the date of issuing the impugned judgment and order.

The brief fact of the issue was that the husband of the Respondent/Complainant, the erstwhile owner of the subject vehicle, had got his vehicle insured with the Bajaj Allianz General Insurance Company Ltd. for the period from 30/03/2012 to 29/03/2013 when the said insurer allowed them 50% of the Non-Claim Bonus (NCB). Said company had settled a claim lodged with it by the insured on 12/03/2013 on payment of Rs. 72,800/-to the insured as an accidental benefit.

The subject vehicle, thereafter, was insured with the Appellant/OP Company after a gap of 55 days since the date of expiry of the earlier policy with the previous insurer. The Appellant/OP Company renewed the policy, on approach, with the period of coverage from 24/05/2013 to 23/05/2014 and an IDV of Rs.3,00,000/-on payment of total premium of Rs. 26,098/-allowing the Respondent/Complainant an NCB to the extent of 50% in spite of the fact that the Respondent Complaint received a claim of accidental benefit from his previous insurer which , as alleged, the Respondent/Complainant suppressed willfully at the time of renewal of the policy with the Appellant/OP Company.

The policy, thereafter, was renewed for two further years with the Appellant/OP Company for the periods w.e.f. 24/05/2014 to 23/05/2015 and 24/05/2015 to 23/05/2016 with no rectification of the information gap mentioned above. Meanwhile, during subsistence of the last policy, the erstwhile owner died on 30/05/2015 leaving behind his wife, being the Respondent/Complainant, as nominee.

The subject vehicle, thereafter, was transferred with due observance of the requisite formalities in favour of the Respondent/Complainant and the policy in respect of the subject vehicle was renewed for another more year from 24/05/2016 to 23/05/2017 with the foretold irregularities, this time, for obvious reasons, in the name of the Respondent/Complainant, being the present owner of the subject vehicle.

The vehicle, during subsistence of the policy, met with an accident and was severely damaged. The Respondent/Complainant had to spend an amount of Rs. 1,93,806/-for making the vehicle roadworthy. She filed the claim for reimbursement of the said amount to the insurer. The insurer engaged his surveyor to assess the actual loss sustained by the insured. The surveyor assessed the said loss at Rs. 1,03,721/-. The Appellant/OP, however, denied the claim to be reimbursed on the ground that the owner of the vehicle, with a view to getting the benefit of NCB, gave a false declaration to the effect that she never took any claim benefit from previous insurer.

Being aggrieved with the said denial, the Respondent/Complainant filed the Complaint Case before the Ld. District Forum praying for passing an order to pay her the entire amount she paid for making the vehicle worthy of plying on the road together with litigation cost and compensation. Ld. District Forum disposed of the Complaint Case passing the impugned judgment and order which was put under challenge in the instant Appeal.

Heard Ld. Advocates appearing on behalf of both sides.

Ld. Advocate appearing on behalf of the Appellant/OP submitted that the declaration furnished by the Respondent/Complainant towards her eligibility of NCB @ 50% was found incorrect. As submitted, as per IIB, it was found one claim was settled for Rs. 72,800/-by Bajaj Allianz General Insurance Co. Ltd. She was accordingly not entitled to the NCB at the time of having her vehicle insured.

As he continued to submit, since she had made a wrong declaration and enjoyed the benefit of NCB @ 50% and since such non-disclosure of fact was detected only at the time of processing the subject claim for reimbursement, the Appellant/OP Company refused to accept her claim and at the same time, conveyed to her the forfeiture of her policy.

As submitted, the surveyor was appointed for assessing the loss sustained by the Respondent/Complainant out of the subject incident. He, as contended, was not supposed to verify the previous claim.

Referring to the running pages 23, 24, 25 and 26, being the policies issued to the owners of the subject vehicle by the Respondent/Complainant Company for four successive years, the Ld. Advocate pointed out that the papers were speaking about availing 50% NCB which, in the given scenario, the Respondent/Complainant was not entitled to.

As revealed from the above, as he continued further, there was a violation on the part of the Respondent/Complainant through misrepresentation of fact which actually induced the Appellant/OP to allow her the NCB. Since the benefit was procured not in a legal way, the Appellant/OP Company had rightly decided towards repudiation of claim and forfeiture of the policy itself.

In the above context, Ld. Advocate referred to the decision of the Hon’ble Apex Court in Civil Appeal No. 3359 of 2019 (arising out of SLP (c) No. 3381 of 2019) [Oriental Insurance Company Ltd.—Vs—Mahendra Construction] wherein, while discussing on the subject issue, the Hon’ble Court referred to the observation of the two judges Bench of the Hon’ble Court in [Satwant Kaur Sandhu—Vs—New India Assurance Co. Ltd.] wherein it was observed “Nonetheless, it is a contract of insurance falling in the category of contract ubrrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.”

As submitted, the record would reveal that an effort was made to draw sympathy upon the Respondent/Complainant projecting her as a poor, ignorant and widow lady when there was no special provision for a case to be decided with any kind of leniency in favour of any lady.

With the submission as above, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.

Ld. Advocate appearing on behalf of the Respondent/Complainant, per contra, submitted that most of the listed documents, shown under Annexure at the bottom of the last page of the complaint, running page 17, and the copy of the survey report, based on which the impugned judgment and order was delivered, were not furnished with the Appeal.

Inviting attention to running page 4 of the case record, the Ld. Advocate submitted that there was reference of survey report in that page and the assessed loss in the survey report was observed in the impugned order as reasonable. As he continued, the Appellant/OP Insurance Company preferred not to attach the survey report lest the same attracted demerits to their decision of denial.

As he maintained, his client adopted the Insurance Policy afresh after the death of her husband. She was not aware of her husband’s any declaration towards not availing any claim in respect of the subject vehicle earlier as alleged by the Appellant/OP. As stated, any irregularity, if crept in the policy issued in her name, was absolutely unintentional as the same was a continuity of an earlier lapse done someone else beyond her knowledge and not by her. She could not even detect the reflection of the said irregularity in her policy document because of her lack of experience.

As submitted, it was peculiar that the Appellant/OP Insurance Company maintained silence without detecting any irregularity in the policy and consumed substantial amount of policy premium for four successive years and took a plea for denial of a genuine claim when its turn for reimbursement of the subject claim had come.

With the submission, as above, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.

Perused the papers on record and considered the submissions of the Ld. Advocates appearing on behalf of both sides. The crux of the issue appeared to have been hidden on the sole point as to whether there was at all any willful lapse for allegedly false declaration on the part of the Respondent/Complainant.

From the uncontroverted allegation brought in the Complaint, it appeared to be a fact that the husband of the Respondent/Complainant, since deceased, availed himself of an accidental benefit in respect of the insured vehicle from the erstwhile insurer, the Bajaj Allianz General Insurance Company Ltd. in the year 2013.

He, at the time of the policy being shifted to the Appellant/OP Company, availed himself of 50% NCB allegedly suppressing the fact of reimbursement against an earlier claim in respect of the subject vehicle by the previous insurer giving false declaration about his non-availing of any benefit out of the Insurance policy of the same vehicle before. The said husband continued with the said policy with no remedial step to make good the irregularities for three successive years before his death.

The Appellant/OP, as it revealed from the record, had received a handsome amount of premium for four successive years without any checking of the policy papers as it did while processing the same in connection with the instant claim. Expectedly, as normally happened, the Appellant/OP Company should have checked the policy papers and pointed out the anomaly advising, as a good service provider, its customer, in other words consumer, to take appropriate action to make good the defect. We did not get any documents in the record wherefrom it would be evident that the deceased policy holder, during his life time, had ever given any declaration towards non-availability of any kind of benefit from its erstwhile Insurance Company.

Since the policy was shifted to a different Insurance Company, the Policy holder’s ignorance about his liability to declare his taking any kind of benefit from erstwhile insurer could not be totally ruled out.

The Respondent/Complainant’s ignorance about the policy documentation as well as lapse committed intentionally or unintentionally by her husband, since deceased, while executing the policy with the Appellant/OP, appeared to have reasons to be appreciated.

The Appellant/OP verified the Insured’s entitlement from the IIB almost four years after taking policy premium regularly for the entire period and that too, when the claim for reimbursement was filed with it. It never appeared to be much bothered about protecting the interest of its customer by giving her due caution in time for making good the irregularities in the policy and also about the complication she was likely to face in future in case of non-compliance. The activity of the Appellant/OP Company left reflection of its keenness to find fault with the policy with an intention to reject the claim. The activities of the Appellant/OP, therefore, resembled more of a trader than a good service provider which made us consider it deficient in rendering services.

The decision of the Hon’ble Apex Court in [Oriental Insurance Company—Vs—New India Assurance Company Limited] (supra) did not appear to be squarely applicable in this case as, sufficient reasons were left for the deceased insured for his being ignorant of the policy towards disclosure of settlement of an earlier claim, particularly when, the policy was being transferred to other insurer. Naturally, chance was there that the mistake, an omission on the part of the husband of the Respondent/Complainant, since deceased, was carried over leading to misstepping on the part of the Respondent/Complainant beyond her knowledge.

Said decision appeared to be more inappropriate in view of the fact that the Insurance Company could not display its slightest promptitude to indentify instant point of dispute for long four years consuming substantial amount of policy premium every year and could successfully dig the issue only when its turn for payment of compensation came. In this regard, we place our reliance on the decision of the Hon’ble Apex Court in [Life Insurance Corporation of India—Vs—Smt. Asha Goyel] reported in (SC) 2001 (1) R.C.R (Civil) 347 wherein it was observed that Section 45 of the Insurance Act provides, inter alia, that no policy of life insurance effected after the coming into force of this Act shall, after the expirty of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the

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insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that is suppressed facts which it was material to disclose. Being guided by the above illuminating observation of the Hon’ble Apex Court, we were of the considered view that the Ld. District Forum had made no mistake so far as the question of assessment of merit of the complaint is concerned. We, however, are not at one with the Ld. District Forum for allowing both interest and compensation to be paid to the Respondent/Complainant by the Appellant/OP and are of the considered view that the same should be suitably modified. Hence, Ordered that the Appeal stands allowed in part with cost of Rs. 3,000/- to be paid to the Respondent/Complainant by the Appellant/OP. The Appellant/OP is further directed to pay to the Respondent/Complainant an amount of Rs. 1,03,721/-, being the amount assessed by his appointed surveyor for repairing the subject vehicle along with a compensation of Rs. 5,000/- within 45 days from the date of the instant order, failing which, simple interest @ 9% p.a. shall accrue to Rs. 1,08,721/-, being the total of the aforesaid repairing cost and compensation, from the date of default till the entire amount is fully realized. The impugned judgment and order stands modified accordingly.
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