BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 57 of 2015

Date of Institution: 19.1.2015

  Date of Decision: 19.5.2016

Gurbrinder Singh Chahal C/o Baba Banda Singh Bahadur College of Education, Dhariwal, Tehsil and  Distt. Gurdaspur

Complainant

Versus

1. M/s. ANR Motors Pvt.Ltd., Castle Toyota Amritsar near Daburji Bypass,G.T.Road (authorized dealer of Toyota), through its Proprietor
2. The New India Assurance Company Limited, Regd. & Head Office, New India Assurance Bldg., 87, Mahatma Gandhi Road,  Fort, Mumbai 400 001, through its Managing Director
3. The New India Assurance Company Limited, 80 Court  Road, Amritsar through its Manager

Opposite Parties

Complaint under section 11/12 of Consumer Protection Act, 1986

Present:    For the Complainant          :Sh.Kashmira Singh Dhaliwal,Advocate

For the Opposite Party No.1 : Sh.Kanwar Pahul Singh,Advocate

For Opposite parties No.2 & 3: Sh.P.N.Khanna,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Sh.Anoop Sharma,Member

Order dictated by:

Sh.S.S. Panesar, President.

1.       Gurbarinder Singh Chahal complainant has brought the instant complaint under section 11 and 12 of  the Consumer Protection Act, 1986 on the allegations that complainant purchased one car make Toyota Innova from opposite party No.1 which was got insured by opposite party No.1 with opposite party No.3 on the pretext that it had a tie up with  the Insurance company. A sum of Rs. 26,504/- was paid as premium and cover note No. 498050 was issued in favour of the complainant. The insurance was w.e.f 16.9.2010 to 15.9.2011. The complainant got the car registered  in the office of District Transport Officer, Gurdaspur and registration No. PB-06-M-0069 was issued. Before the expiry of the insurance policy, the complainant got the same renewed from opposite party No.3 through its agent, who had been functioning from the premises of opposite party No.1. The complainant paid Rs. 24,013/-  as premium and cover note No. 616007 dated 15.9.2011 was issued . In the month of December 2011, the vehicle met with a road accident in which the vehicle was extensively damaged. The complainant duly informed  opposite party No.3 regarding the accident and its field officer visited the spot and took photographs of the damaged vehicle. On the instructions of the said field officer, the complainant took the car to the workshop of opposite party No.1, where the same was repaired and a bill for an amount of Rs. 76,449/- was issued by opposite party No.1 to the complainant. The complainant approached opposite party No.3  and requested to make the payment of the bill. Officials of opposite party No.3 agreed to make the payment through cheque. Thereafter the complainant paid the amount to the opposite party and took delivery of the car on 23.12.2011. The complainant has been approaching opposite party No.3 for payment of the claim amount, but the same has been unpaid. Rather letter dated 13.1.2012 was issued stating therein that the complainant  had procured the cover note without depositing the premium either in cash or by way of cheque. As a matter of fact, the complainant had paid the premium amount by means of cheque bearing No. 000049  dated 15.9.2011 drawn on Axis Bank Ltd., G.T. Road, Dhariwal.It is only after the giving of the cheque to agent of opposite party No.3 that the cover note was issued. This illegal act and conduct of the opposite party amounts to deficiency in service , as a result of which the complainant suffered great loss and mental harassment . The complainant has prayed for issue of directions to the opposite parties to pay the insurance amount of Rs. 76,449/- and Rs. 20000/- as compensation on account of mental and physical harassment suffered by him. Hence, this complaint.

2.       Upon notice complaint was contested by the opposite parties.

3.       Opposite party No.1 in its written reply admitted that the car was so purchased from it by the complainant and the same was damaged in the month of December 2011  in an accident. The car was repaired by opposite party No.1 at the cost of Rs. 76,499/- which was paid  to it by the complainant. The complainant took the delivery of the car after repairs on 23.12.2011. While denying the other allegations made in the complaint, it is pleaded that  it had only provided the information to the complainant before hand that policy was going to expire on 15.9.2011. Opposite party No.1 has nothing  to do with the functioning of the agent of opposite party No.3. It had made necessary arrangement to provide all the services relating to car under roof  but it has nothing to do regarding relation of the complainant with opposite party No.3. Opposite party No.1 is not a necessary party to the present complaint and the complaint is not maintainable against opposite party No.1. It is further pleaded that matter in dispute relates to Amritsar and as such District Forum ,Gurdaspur has no jurisdiction to entertain and try  the complaint.

4.       Opposite parties No.2 & 3 filed joint written reply in which it is admitted that car in dispute was purchased by the complainant from opposite party No.1 , was got insured for the period from 16.9.2011 to 156.9.2012.  After denying the other allegations made in the complaint, it is pleaded that for the renewal of the insurance policy , opposite party No.1 contacted the complainant, who asked them to issue the cover note for renewal and assured to make the payment of premium through cheque. But no such cheque was sent to them nor  the premium was paid in cash. Opposite party No.3 got published a public notice in Dainik Bhaskar Newspaper on 7.2.2012 to the effect that it was not liable for the cover note bearing No.616007 on account of  non payment of premium. Letter dated 13.1.2012 was correctly issued  to the complainant. The complainant has not approached the District Forum with clean hands and he is guilty of suppression of material facts. The complainant has failed to point out any deficiency or unfair trade practice on the part of opposite parties No.2 & 3. The complainant is estopped from filing the complaint by his own act and conduct and the complaint as framed was not maintainable and  a prayer for dismissal of the complaint with cost was made.

5.       Originally the complaint was filed at District Consumer Disputes Redressal Forum, Gurdaspur, which was allowed vide order dated 14.8.2012 passed by District Forum, Gurdaspur. The Insurance company was directed to settle the claim of the complainant and to pay the admissible insurance claim alongwith interest @ 9% p.a from the date of the complaint till realization of that amount alongwith Rs. 2000/- as litigation expenses. Opposite parties preferred an appeal before the Hon’ble State Consumer Disputes Redressal Commission, Punjab,  Chandigarh  which vide order dated 9.7.2014 accepted the appeal and the order passed by the District Forum, Gurdaspur was set-aside  and the complaint filed by the complainant was dismissed without prejudice to his rights to file the fresh complaint in the appropriate District Forum  and that in case of limitation for filing   the same has already expired, then to move an application for condonation of delay.

6.       In his bid to prove his case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A copies of Insurance cover notes Ex.C-1 & Ex.C-2, copy of order dated 9.7.2014 of the Hon’ble State Commission Ex.C-3, copy of order dated 14.8.2012 passed by District Forum, Gurdaspur Ex.C-4, copy of RC Ex.C-5, copy of bank passbook of Axis Bank Ex.C-6 and closed his evidence.

7.       To rebut the aforesaid evidence Kanwar Pahul Singh,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Rakesh Kapoor, GM Finance Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.

8.       On the other hand Sh.P.N.Khanna,Adv.counsel for opposite parties No.2 & 3 tendered into evidence affidavit of Sh.Sukhdev Singh Gill, Divisional Manager Ex.OP2,3/1, affidavit of surveyor Pritpal Singh Ex.OP2,3/2, survey report Ex.OP2,3/3, copy of cover note Ex.OP2,3/4, newspaper cutting  Ex.OP2,3/5, copy of letter dated 13.1.2012 Ex.OP2,3/6, copy of postal receipt Ex.OP2,3/7, statement of account Ex.OP2,3/8 and closed the evidence on behalf of opposite parties No.2 & 3.

9.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

10.     On the basis of the evidence on record, ld.counsel for the opposite party No.1 has vehemently contended that complainant  did not attribute any deficiency in service on the part of opposite party No.1 whereas the complainant has alleged deficiency in service on the part of opposite parties No.2 & 3 only. As such the complainant is having grievance against opposite parties No.2 & 3 only. The matter in dispute pertains to non payment of insurance claim of the complainant which is to be paid by opposite parties No.2 & 3 only i.e. Insurance company. Replying opposite party is having no concern with the issue of claim of the complainant. There is no privity of contract regarding insurance between complainant and replying opposite party. Hence, opposite party No.1 is unnecessary party to the present complaint. The present complaint is  nothing but a sheer abuse of process of law and the same is liable to be dismissed as per section 26 of the Act  at the threshold against opposite party No.1.

11.     On the other hand ,Ld.counsel for opposite parties No.2 & 3 have vehemently contended that in the present case, the complainant has not approached the Forum with clean hands and he is guilty of suppression of material facts from the Forum. Basically the complainant did not make payment of premium and as such compliance of section 64VB  has not been made. The purpose of section 64 VB of the Motor Vehicle Act is to confirm whether the premium with respect to particular cover note has been paid and if it is not paid, then said cover note is only a piece of paper as it does not  form the concluded contract of insurance. In order to elaborate the aforesaid preposition, it is necessary to highlight the following points for due consideration of this Forum:-

1. That cover note in question was issued to the complainant at his assurance that he will make payment by means of cheque but subsequently he never made any payment particularly by any cheque No. 00049 for Rs. 24013/-..
2. That in the said cover note there is no reference of any cheque number. It is the basic all  that if any cheque is issued by the party towards premium amount, the detail of said cheque is filled up in the cover note itself. Hence, it is apparent that the said cover note was without any consideration. As per Insurance law, if there is no compliance of 64VB, no claim is payable under the said cover note as the same never concluded into contract of insurance. The purpose of section 64 VB is to confirm whether the payment against particular cover note has been received and realized through bank or not.
3. No such certificate has ever been issued by the opposite party in this regard i.e. confirming that the payment has been realized by means of cheque in the account of the company. Consequently the said cover note is without any consideration  being not matured as contract of insurance .
4. That in the light of said circumstances,opposite parties No.2 & 3 even wrote letter dated 13.1.2012 to the complainant , copy whereof is Ex.OP2,3/6 to the effect that without depositing premium, cover note is  mere piece of paper as there is no contract of insurance . The complainant was also called upon to deposit insurance document i.e. insurance policy within 15 days from the receipt of the letter, but the complainant has failed to comply the same.
5. That on the safer side the opposite parties No.2 & 3 even made public notice in the  Daily Dainik Bhaskar on 7.2.2012 that Insurance company is not liable for cover note bearing No.616007 as the premium has not been received by the Insurance company pertaining to said cover note.
6. That even if the payment is made by means of cheque, it is always received subject to its encashment and if the cheque is dishonoured, then said cover note cannot be considered as contract of insurance  but only a piece of paper having no force in the eyes of law.
7. That the complainant in order to prove his alleged allegations that he has made payment  by means of cheque to the agent of New India Assurance Co.Ltd., the best evidence available with the complainant to produce counter foil of the said cheque in which detail is also filled up to show that to whom the cheque has been issued . But the said document has not been produced by the complainant for the reasons best known to him. It clearly shows that the plea taken by the complainant that he had issued cheque is an after thought and just to get wrongful claim from the Insurance company.
8. Had the complainant made payment by cheque , there was  no occasion with the opposite party to not to get it encashed which clearly shows that although the complainant promised to issue the cheque  and managed to get  the cover note but subsequently he did not make any payment by cheque or cash. As such the cover note in question is without any consideration and all the benefits under the said cover note stand forfeited from its inception.

Ld.counsel for opposite parties No.2 & 3 further contended that in the light of aforesaid facts, it is apparent that basically complaint has been filed on the basis of alleged cover note  which is without consideration and there is non compliance of section 64VB, therefore, the same cannot be considered being matured as a contract of insurance  inter-se  parties.  Irrespective of the aforesaid arguments, in order to pinpoint the extent of loss , the opposite party appointed Mr.Pritpal Singh, Surveyor & Loss Assessor to quantify the loss so that  there should not be any dispute regarding said quantum if at all any original policy is produced by the complainant as demanded by the Insurance company in Jan.,2012. The surveyor has  considered the loss from different angles and has assessed the same to the tune of Rs. 44,884/- subject to deposit of salvage which has been assessed at Rs. 2000/-. If salvage is not deposited, then liability of Insurance company was quantified to the tune of Rs. 42,884/-. However, the said report was submitted subject to  fulfilment  of basic terms and conditions of the  Insurance policy . As in the present case , no contract of insurance has matured for want of non payment of premium, therefore, non contract of insurance came into force. Therefore, even the loss assessed by the independent surveyor is not payable .

12.     Even if for the sake of arguments  and without conceding , it is presumed that the complainant was entitled to get the Insurance claim, the complainant was entitled to an amount of Rs. 42884/- only after adjusting the salvage value.

13.     Reliance has been placed on  United  India Insu.Co. Vs. Roshan Lal Oil Ltd 2001(2) CPC page 340 (SC) wherein it has been laid down that surveyor report  being an important document cannot be rejected without any reason. Further reliance has been placed upon Champa Lal Verma Vs.Oriental Insurance Co.Ltd III(2008) CPJ 93 (NC) wherein it has been laid down that surveyor report has to be given due weightage- Consumer Fora cannot go into quantum dispute. The complainant is free to approach civil court/IRDA/Arbitration.

14.     On the basis of aforesaid contentions, ld.counsel for opposite parties No.2 & 3 vehemently contended that  present complaint is without force and the same may be dismissed accordingly.

15.     However, from the appreciation of the facts and circumstances of the case, it becomes evident that earlier the complainant filed complaint before District Forum, Gurdaspur , which was allowed vide order dated 14.8.2012, copy whereof is Ex.C-4. Against that order, first appeal No. 1329 of 2012 dated 5.10.2012 was  filed by the opposite party (New India Assurance Co.Ltd) before the Hon’ble State Commission, Punjab Chandigarh, which was allowed vide order Ex.C-3 dated 9.7.2014. The order passed by the District Forum was set-aside on the point of territorial jurisdiction with liberty to the complainant to file fresh complaint in the appropriate District Forum. In the terms of the order of the Hon’ble State Commission, present complaint has been filed by the complainant before this Forum . The only question before this Forum to be adjudicated is that if the cover note was issued by the agent of opposite parties No.2 & 3 without payment whether the Insurance company is liable to pay the claim to the insured ? As per case of the complainant, at the time of purchasing the vehicle from opposite party No.1, complainant got the same insured  from opposite parties No.2 & 3 and the cover note Ex.C-1 bearing No. 498050 which was valid from 16.9.2010 to 15.9.2011. As opposite parties No.2 & 3 had tie up with opposite party No.1, before the expiry of the first cover note, agent of opposite parties No.2 & 3  approached the complainant for the renewal of insurance on 15.9.2011, namely Ms.Avneet kaur in the office of opposite party No.1 and issued cover note Ex.C-2 bearing No. 616007 after  receiving the amount of premium by way of cheque No. 000049 for a sum of Rs. 24013/- which was duly signed by Ms.Avneet Kaur and bearing the stamp of Insurance company. The vehicle unfortunately met with  an accident in December 2011. The field officer of opposite parties No.2 & 3 visited the site and took photographs of the damaged vehicle. On the instructions  of the field officer, the complainant took the vehicle to the workshop of opposite party No.1 for its repair . The surveyor was deputed by opposite parties No.2 & 3 , who assessed the loss caused to the vehicle. The complainant approached opposite party No.3 and requested for payment of the bill of repair and further complainant was told to make payment  and said opposite party No.3 would send the cheque  of the abovesaid amount in favour of the complainant. As per the instruction and assurance given by opposite party No.3, complainant paid the amount of the repair to opposite party No.1 and took the delivery of the vehicle on 23.12.2011. Everything was OK from the date of issue  of cover note till the accident and deputing of the surveyor, instructing and assuring the complainant to take the delivery of the vehicle after its repair on payment by the complainant from his pocket to opposite party No.1. Opposite parties No.2 & 3 never disclosed  that  premium of the cover note was not received  by opposite party No.3 and suddenly vide application dated 13.1.2012 they repudiated the claim arbitrarily on the ground that payment of premium has not been received. It was just a ploy to escape from the liability to make payment of the insurance claim. But, however, since the cover note has been issued by the duly authorized agent namely Ms.Avneet Kaur, after receiving the cheque from the complainant on 15.9.2011,  in the office of opposite party No.1  and there was no dispute about the fact that the agent was appointed was opposite parties No.2 & 3, then what was the hitch to examine said Avneet Kaur in evidence  to clear the entire picture? The agent was working under opposite parties No.2 & 3 and she was under their dictate and in case she issued the cover note Ex.C-2  without the payment in cash or by cheque, she could very well state the same before this Forum. This shows that the best evidence available with opposite parties No.2 & 3 has been purposely with-held by the opposite parties, for the reasons best known to them. Another question arises that if agent Avneet Kaur issued the cover note without receiving the premium payment, opposite parties No.2 & 3 must have initiated some action against her. But, however, they have failed to prove or produce any such document on the file that such and such action has been initiated against her. This shows that the opposite parties No.2 & 3 are just finding excuses to avoid the payment  of the insurance claim to the complainant.

16.     Not only that  when the cheque was issued by the complainant in favour of opposite parties No.2 & 3, there were sufficient funds in the account of the complainant to meet  the requirement of the cheque. The complainant has produced on record statement of bank account Ex.C-6. No fault can be attributed to the complainant , if the cheque was not presented by the Insurance company for encashment , rather it was the duty of opposite parties No.2 & 3 to  present the cheque for encashment within the time as validity of the cheque was six months from the date of its issue. It is not the case of opposite parties No.2 & 3 that cover note was not filled or signed by Ms. Avneet Kaur , their agent. Another factory which shows that the plea taken by opposite parties No.2 & 3 , was without any substance, is evident from the fact that opposite parties No.2 & 3 slept  over the matter for about four months from the issue of cover note. It is not the duty of the complainant to remind opposite parties No.2 & 3 to present the cheque received from him for its encashment. Why opposite parties NO.2 & 3 did not check their accounts until passing of over 4 months of the date of issue of the cheque and why the big risk was taken by them and why they came to know after the repair of the accidental vehicle  that the payment was not received ? It is significant to note that  had no payment was received, opposite parties No.2 & 3 could initiate the proceedings for cancellation of the policy. But till date the policy has not been cancelled for the reasons best known to opposite parties No.2 & 3. How and why they suddenly woke up  from slumber , it is for opposite parties No.2 & 3 to explain.

17.     The cover note of Insurance Ex.C-3 is fully enforceable even at present. Even if it is presumed that no payment of the premium amount has been made, even then the same is quite enforceable inter-se complainant and opposite parties No.2 & 3. Reliance in this connection can be had on United India Insurance Company Ltd. Vs. Laxmamma and Others 2012(2) RCR (Civil) page 834 wherein the Hon’bl;e  Apex court went on to held that :

“20. Having regard to the above legal position, in so far as facts of the present case are concerned, the owner  of the bus obtained policy of insurance from the insurer for the period April 16,2004 to April 15,2005 for which the premium was paid through cheque on April 14,2004. The accident occurred on May 11,2004. It was only thereafter that the insurer cancelled the insurance policy by communication dated May 13,2004 on the ground of dishonour of cheque which was received by the owner of the vehicle on May 21, 2004. The cancellation of policy having been done by the insurer  after the accident, the insurer became liable to satisfy award of compensation passed in favour of the claimants.

21 : In view of the above, the judgement of the High Court impugned in the appeal does not call for any interference. Civil appeal is dismissed. However, the insurer shall be at liberty to prosecute  its remedy to recover the amount paid to the claimants from the insured. No order as to costs.”

18.     From the aforesaid discussion, it becomes evident that the complainant is liable to be granted the insurance claim . But now the question arises as to what amount the complainant was entitled to ? In this case, the complainant is stated to have incurred an amount of Rs. 76499/- vide bill dated 22.11.2012 to opposite party No.1 on account of repair of the vehicle in dispute. But however, the surveyor appointed by opposite parties No.2 & 3 have assessed the amount to the tune of Rs. 44,884/- and after salvage the amount payable was Rs. 42,884/-. In view of the law laid down in   Unirted  India Insu.Co. Vs. Roshan Lal Oil Ltd (supra) “as far as loss assessed by the surveyor  is concerned, the weightage to the same has to be given by the court being substantial piece of evidence as surveyor is the best person to assess the loss  and the court cannot assume the role of surveyor.” Further reliance can be  placed upon Paam Eatables Vs. United India Insu.Co 2004(3) CLT page 163 wherein it has been laid down that surveyor’s report being an important document cannot be rejected without any reason.

19.     As such in our considered opinion, complainant is entitled to insurance claim to the tune of Rs. 42884/- after adjusting the salvage amount of Rs. 2000/- and the complaint stands allowed accordingly against opposite parties No.2 & 3. The complainant is also entitled to compensation for mental agony, pain to the tune of Rs. 10000/- .Besides that cost of the litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of one month from the date of receipt of copy of the order ; failing which, awarded amount shall carry interest @ 9% p.a from the date of passing of order until full and final recovery. Complaint against opposite party No.1 fails and is hereby dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated : 19.05.2016

/R/                                                                         ( S.S.Panesar )

President

                              ( Kulwant Kaur Bajwa)           (Anoop Sharma)

                                                Member                         Member