Ajit Bharihoke, Presiding Member
This revision is directed against the concurrent finding of the State Commission Haryana resulting in dismissal of consumer complaint filed by the petitioner “ complainant.
2. Briefly put facts relevant for the disposal of this revision petition are that complainant insured his Fiat UNO car with OP No.1 vide insurance policy no. 2688891 for the period w.e.f. 02.04.2002 to 01.04.2003. The car met with an accident on 09.04.2002. The accident was immediately intimated to the opposite parties. The opposite party appointed a Surveyor who after conducting survey of the damaged car assessed the loss caused as Rs.35,807/-. The surveyor assessed the value of the salvage as Rs.1000/-. The insurance company repudiated the claim on the ground that petitioner had obtained the comprehensive policy by concealing the fact that the vehicle in question was already insured with New India Insurance Company Ambala City for third party claim. The complainant claiming the repudiation to be deficiency in service, filed consumer complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.80000/- against bills of repair besides compensation of Rs.50000/- on account of mental torture and harassment as also Rs.5000/- against the cost of litigation.
3. The opposite parties in their written statement admitted the factum of insurance as also the damage caused to the car in accident. The opposite party justified the repudiation of claim on the plea that the petitioner obtained Double Insurance concealing the fact of earlier third party insurance with New India Insurance Company. Thus, according to the opposite party there is no deficiency in service.
4. The District Forum on consideration of the record and evidence of the parties found merit in the reason given for repudiation of claim and dismissed the complaint.
5. Feeling aggrieved by the dismissal of complaint, the petitioner / complainant preferred an appeal before the State Commission and the State Commission with following observations dismissed the appeal:
œFrom the record it is seen that after expiry of the previous insurance policy on 26.01.2002, the complainant got insured his Fiat UNO car with the New India Insurance Company, Ambala City Branch, which was third party policy. The aforesaid vehicle met with an accident on 09.04.2002. After three months the complainant obtained another comprehensive policy for the aforesaid vehicle from the National Insurance Company. Thus, the claim of the complainant seeking compensation with respect to the damage of his vehicle on 09.04.2002 was denied because at that time the vehicle was not insured comprehensively and it was a third party insurance policy.
Taking into account the facts and circumstances of the case, we hardly find any ground to interfere with the well reasoned order whereby the complaint has been dismissed. Hence, this appeal is dismissed being devoid of any merit.
6. It is against the aforesaid dismissal the appellant has preferred this revision petition.
7. Learned counsel for the petitioner has contended that order of the State Commission is not sustainable for the reason that the State Commission has committed a grave irregularity in ignoring the fact that the claim of the petitioner was in respect of œown damage? covered under the comprehensive insurance which damage was not covered under the earlier third party insurance obtained from New India Insurance Company. Learned counsel submitted that if at all there was Double Insurance, it was only in respect of third party claim. Therefore, the opposite party after having received the full premium for comprehensive insurance cannot get away from its responsibility by taking plea of concealment of fact of vehicle having been insured with New India Insurance Company.
8. Learned counsel for the respondent on the contrary has submitted that insurance contract is a matter of trust and in the instant case admittedly the petitioner has obtained Double Insurance cover concealing the existence of earlier third party insurance. Therefore, the respondent was justified in repudiating the claim. Learned counsel referred to Indian Motor Tariff GR 22 which deals with the case of Double Insurance and submitted that since the insurance policy in question is a subsequent policy, it is liable to be treated as cancelled.
9. We have considered the rival contentions and perused the record. The main issue for consideration is whether taking of the comprehensive insurance policy of the car by the complainant / petitioner during the currency of an existing third party policy amounts to such a concealment of fact which would deprive petitioner of the claim for the accidental damage caused to the car?
In order to find answer to this question, it would be useful to have a look on GR 22 dealing with cancellation of insurance and Double insurance which is reproduced thus:
When two policies are in existence on the same vehicle with identical cover, one of the policies may be cancelled. Where one of the policies commences at a date later than the other policy, the policy commencing later is to be cancelled by the insurer concerned.
If a vehicle is insured at any time with two different offices of the same insurer, 100% refund of premium of one policy may be allowed by cancelling the later of the two policies. However, if the two policies are issued by two different insurers, the policy commencing later is to be cancelled by the insurer concerned and pro-rata refund of premium thereon is to be allowed.
If however, due to requirements of Banks/Financial Institutions, intimated to the insurer in writing, the earlier dated policy is required to be cancelled, then refund of premium is to be allowed after retaining premium at short period scale for the period the policy was in force prior to cancellation.
In all such eventualities, the minimum premium as specified in the tariff is to be retained.
In either case, no refund of premium can be allowed for such cancellation if any claim has arisen on either of the policies during the period when both the policies were in operation, but prior to cancellation of one of the policies?.
10. On reading of the above rule, it is clear that this rule nowhere provides that obtaining of the Double Insurance would deprive the insured of the benefit of the insurance cover. The rule only states that if two policies are in existence on the same vehicle with identical cover, one of the policy may be cancelled. The rule also deals with the refund of premium in respect of cancelled policy. In the instant case admittedly, the insurance cover taken from New India Insurance Company is third party insurance whereas the insurance cover obtained from the opposite party is a comprehensive insurance. The comprehensive insurance cover includes œown damage? as well as œtheft? besides the third party cover. Therefore, in our considered view, the insurance cover obtained by the petitioner from the opposite party is not fully identical cover in respect of vehicle in question because the earlier insurance policy did not provide cover against theft or own damage. Therefore, under this rule, subsequent insurance policy cannot be cancelled and the earlier policy has to be cancelled to ensure that the petitioner may not claim the third party relief twice. Ld. Counsel for the respondent has failed to show any law / rule / terms of Insurance which provides that obtaining Double Insurance on the same vehicle would disentitle the insured to get claim under the policy. This crucial fact has been ignored by the District Forum as well as the State Commission. Therefore, in our considered view the impugned order of the State Commission dismissing the complaint suffers from a grave factual infirmity, accordingly, not sustainable.
11. Coming to the question of compensation. In this regard, case of the complainant is that he is entitled to Rs.80000/- as damages for the loss caused to the vehicle as he has paid repair bills to that extent to the workshop. In this regard, the complainant is relying upon the copy of the bills of Delhi Automobiles Ltd. and various dealers from whom the spare parts were allegedly purchased. On the contrary, respondent has placed on record photocopy of the report of surveyor Vikas Kohli who has assessed the damage caused to the car at Rs.35,807/-. The surveyor has also assessed the value of the salvage at Rs.1000/-. The petitioner has not led any evidence on the record to show that the copies of the bills placed on record relate to the repair of the damage caused by the accident only. There is no evidence on record to show that report of surveyor who is an independent person is not reliable. Therefore, going by the report of the Surveyor, we conclude that the damage to the extent of Rs.35,807/- was caused to the car. Salvage has been valued at Rs.1000/- Since there is no evidence of return of salvage, in our view, respondent is liable to pay a sum of Rs.34,807/- to the appellant against his insurance claim.
12. In view of the discussion above, we allow the revision petition and set aside the impugned order and partly allow the complaint. The opposite party no.1 / respondent no.1 is directed to pay to the petitioner a sum of Rs.34,807/- as damages alongwith 9% interest thereon from the date of claim till realisation of the amount. Revision petition is disposed of accordingly.