Complainant through Adv. Munot 

Opponent through Adv. Raje

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Per : Mr. V. P. Utpat, President                      Place   :  PUNE

// J U D G M E N T //

(16/07/2013)

This complaint is filed by the aggrieved consumer against the opponent bank for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,  

1]       The complainant is a resident of Shukrawar Peth, Pune.  He is running a proprietary concern named as “M/S Sha Takhatmal Foujimalji Kothari”.   He is operating current account with the opponent bank for 6 years prior to filing of the complaint.   He is availing facility of mediclaim insurance policy from Oriental Insurance Company for 13 years prior to filing of the complaint.  The mediclaim policy is joint policy standing in his own name as well as in the name of his wife Mrs. Pista Vinod Kothari.  The policy was renewed by him on 5/11/2009 for the sum of Rs.2,50,000/- each, for himself and his wife in order to secure their health.  He had issued cheque no. 994660 dated 4/11/2009 for Rs. 8,446/- by way of premium of the said policy.  On the previous day i.e. on 3/11/2009, he had deposited cheque bearing no.2980 of Rs. 14,025/- which was drawn on Union Bank of India, in his current account.  He was under impression that said cheque must have been credited in his current account.  However, due to mistake of the opponent, the said cheque was credited in another account and the cheque which was issued in favour of Oriental Insurance Company was dishonoured on 7/11/2009.  Due to dishonour of the said cheque, the mediclaim policy, which was taken by him, was cancelled by Oriental Insurance Company.  The mistake committed by the opponent is deficiency in service.  He is a heart patient and he had renewed mediclaim policy for 13 years continuously without any break and he was entitled for reimbursement of all the expenses, hospitalization and surgical expenses etc. on the basis of that policy.  Due to cancellation of the mediclaim policy, he has lost security of his life, even after renewing the said policy; as he will not get benefit for heart disease due to clause of pre-existing disease.  Hence he has claimed compensation of Rs. 5 lacs i.e. amount of mediclaim policy from the opponent. 

2]      The opponent appeared before the Forum and resisted the complaint by filing written version.  It has denied the contents of the complaint in toto.  It is flatly denied that due to mistake of opponent the mediclaim policy of the complainant was cancelled.  It is also denied that there is deficiency in service on the part of the opponent.  It is the case of the opponent that there was technical error and not willful default in crediting cheque as well as in dishonouring cheque, which was presented by the complainant.  It is further denied that the complainant has lost security of life due to cancellation of mediclaim policy.  According to the opponent, the said coverage is available to the complainant and his wife by renewing the policy and as per the policy of Insurance Company; they are entitled for the coverage of pre-existing disease after period of 48 months.  It is further contended that the complainant himself is negligent in issuing cheque in favour of Insurance Company without verifying balance in his account.  The complainant is not a consumer.  The opponent has prayed for dismissal of the complaint.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-

REASONS :-

4]      The admitted facts in the present proceeding are that, the complainant is holding current account with the opponent.  He was holding mediclaim insurance policy of Oriental Insurance Company.  His cheque was dishonoured by the opponent, which was issued in favour of the Insurance Company.  He has also produced the policy, which was cancelled by the Insurance Company due to dishonour of the cheque.  It is significant to note that the opponent has not specifically denied the mistake committed by the employee or officer of the opponent.  It is the case of the opponent that there is technical error and not willful default.  It is significant to note that the technical error committed by the opponent has caused loss to the complainant, as his mediclaim policy was cancelled due to dishonour of cheque.  It is not denied by the opponent that cheque, which was presented by the complainant, was not credited in his account as per his request and due to this act or omission of the opponent, the mediclaim policy of the complainant was cancelled.  The learned Advocate of the opponent argued before me that there is no actual loss or damage sustained by the complainant and the damages, which were claimed in the present complaint are hypothecated, as there is no evidence before the Forum that the complainant or his wife had required any medical treatment or reimbursement for the same.  It is further argued that there is circular of Insurance Company that policy can be renewed and the pre-existing disease can be covered after 48 months.  But this fact can not cure the deficiency in service, which was caused by the opponent and admittedly the opponent has wrongly credited the amount in another account and again dishonoured the cheque, which was issued in the name of Oriental Insurance Company for mediclaim policy. 

          The complainant has asked compensation of Rs. 5 lacs on the ground that he had obtained insurance policy for reimbursement of medical treatment up to Rs. 5 lacs.  In fact, he never took medical treatment or asked reimbursement from the Insurance Company.  In such circumstances, it is not proper to award compensation by considering the amount of mediclaim insurance policy.  According to the opponent, the complainant is a proprietary concern and he has opened current account, hence this is commercial transaction.  It is significant to note that the cheque, which was issued by the complainant, was not for any commercial transaction but it was for securing his own life.  In such circumstances, the objection raised by the opponent can not be accepted.  In the result, I held that the opponent has caused deficiency in service.  The complainant is a ‘consumer’ and he is entitled for the compensation by filing complaint before the Consumer Forum.  After considering the nature of deficiency, I held that complainant is entitled for the compensation to the tune of Rs. 10,000/-.  He is further entitled to receive compensation of Rs. 5000/- for mental agony and physical suffering as well as cost of the proceeding of Rs. 1000/- in the present litigation.  In the result, I pass the following order,

**  ORDER **

1.                 Complaint is partly allowed.

2.                 It is hereby declared that the opponent

has caused deficiency in service. 

3.       The opponent is directed to pay total amount

of Rs. 16, 000/- (Rs. Sixteen Thousand only)

to  the complainants within 6 weeks from the

date of receipt of this order.

4.       Copies of this order be furnished to the

parties free of cost.

5.                 Parties are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed.