BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.46/2016

DATE OF FILING: 18/03/2016
 

ORDER DATED: 16^th day of September, 2017

   P r e  s e n t: 

01) Smt. Sharada. K.                                                  President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                            Lady Member…

                            B.A (Music)

                V/s.

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) for seeking direction to OPs to pay Rs.14,30,312/-towards loss and damage sustained to the vehicle as estimated by OP No.2, notice charges, damage for mental agony and harassment, loss of agriculture income and cost of proceedings with interest at 18% p.a. from the date of purchase of pipes and to secure the vehicle in the custody of OP No.2 to this Forum for observation, inspection and the adjudication of this Complaint and other reliefs deemed fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant is an agriculturist at Ankalagi, Kaladagi and other adjoining villages in Bagalkot Taluka with his family members. The complainant purely depending upont he agriculture income, he wanted to improve the lands and therefore he wanted to purchase a vehicle to attend the lands to approach the agricultural offices, revenue Offices and to purchase seeds, fertilizers. Therefore, he is a customer within the meaning of C.P. Act.  The OP No.1 is a General Insurance Company which is dealing with insuring the vehicles against accident etc. and OP No.2 is Unit of Company which deals with selling of the various categories of the 4 wheeler vehicles.

3.      The complainant purchased a vehicle bearing No.KA-29/M-7198 on 28.04.2012 from OP No.2. The ame was registered in the R.C.book in the name of complainant. At the time of purchase from OP No.2, the vehicle was insured for the period from 23.04.2012 to 23.04.2013 through OP No.1. The complainant has paid necessary premium for the said period. The said vehicle with Policy No.HAX/S9572221 was insured for the second period from 24.04.2013 to 23.04.2014. As per direction of OP No.2, complainant has pay an amount of Rs.16,834/- towards the siad renewal period and the same is remitted to OP No.2’s Account through RTGS. Later on, complainant received a letter from OP No.1 on 22.05.2013 regarding wrong NCB declaration for recovery of Rs.3,039/- with a shortfall amount. The complainant has already renewed the policy with the same company and he has taken a claim on 29.09.2012, which is 6 months earlier before the declaration of OP No.1 renewal notice. Thereafter, complainant has received a letter with short policy period dated: 26.06.2013 saying that the policy will expire on 24.12.2013. The complainant has never denied to pay shortfall amount and nobody from either OP No.1 or OP No.2 have contacted complainant to collect shortfall amount. Later, the said vehicle met with an accident in February-2014 and complainant took the vehicle to OP No.2 for the repair and estimation thereof. OP No.1 denied entertaining the claim on the ground that the policy is expired. It appears the above facts that Ops have misused the innocence of complainant for which complainant is now suffering. The acts of the Ops have caused much loss and mental agony and also financial loss and loss of agricultural income to the complainant. Thereafter, complainant got issued a notice on 10.08.2014 to both the Ops to settle the claim as mentioned in the notice to which the complainant was entitled and they have not replied so far. Therefore the present Complaint is filed against Ops to settle the claim of the complainant and other reliefs.

4.      After receipt of notice, OPs appeared through their counsels and filed separate Written Versions.

WRITTEN VERSION OF OP NO.1:-

 The present Complaint filed by the complainant is false, frivolous and not tenable in the eye of law and hence deserves to the dismissed. The Ops denied all the allegations made in the Complaint. It is true this OP had insured the complainant’s vehicle for the period from 23.04.2012 to 23.04.2013 and it is also true that the complainant opted to insure his vehicle for the period from 24.04.2013 to 23.04.2014 by paying a premium of Rs.16,834/-. After receiving the premium it is found that the complainant had a claim on 29.09.2012 that is during the period of previous policy which he had not disclosed to this OP.  Therefore, this OP has sent a letter to the complainant requesting him to pay the short fall premium amounting to Rs.3,039/-, but till today the complainant has neither replied to the letter nor has paid the short fall premium. Such being the facts, the OP has reduced the policy period from 24.04.2013 to 24.12.201 and has issued endorsement for the same. Inspite of service of short fall premium notice to the complainant, he has not approached the OP to pay the short fall and he has not replied to the notice also. The complainant has not approached the Forum with clean hands. OP also submitted that as on the date of accident i.e. 14.02.2014, there is no policy issued by this OP to the complainant covering the vehicle, the question of accepting the claim by this OP does not arise at all. This fact is well within the knowledge of the complainant. Therefore, there is no deficiency in service on part of this OP. There is no cause of action subsisting against this OP and as such the claim against this OP may kindly be dismissed with cost in the interest of justice and equity.

WRITTEN VERSION OF OP NO.2:-

 The averments made in the Complaint are false and same are denied toto. This Complaint is barred by the limitation. There is no relationship between this OP with complainant as an Insurer and Insurary. This OP collect the money from the complainant in a sum of Rs.13,700/- and handover the same to OP No.1. But, for the second time, it is not true OPNo.2 renewal the Insurance policy because this OP is not insurance agent therefore the complainant is customer of this OP only to make help by giving as reminder to the insured the vehicle and therefore claiming of NCB shortfall of payment is no way concern to business of OP No.2. Whatever amount collected by this OP remitted to OP No.1, therefore his duty is over. This OP is wrongly impleaded in this Complaint. Hence, the Complaint is to be dismissed as mis-joinder of the parties. No cause of action arose to the complainant against the OP. Hence, the Complaint is liable to be dismissed as want of cause of action. There is no deficiency in service from the OP and the complainant has misused the legal process of law against this OP. Hence this Complaint be dismissed with the compensatory cost of Rs.25,000/-.

5.      The complainant tendered affidavit evidence and filed documents in support of his case. OPs filed affidavit evidence and filed documents in support of his case. The complainant and OP No.1 have filed Written Arguments. After considering the material placed on record, the following points that arise for our consideration are:-

1. Whether the complainant is entitled to get any compensation?

2. What order?

          After considering the arguments advanced by the learned counsel for both parties and the material evidence placed on record, our findings for the above points are as follows;

1. Partly in the affirmative.
2. As per final order;

-: R E A S O N S :-

6.  POINT NO.1:- The main contention of the complainant that OP No.1 is a General Insurance Company which is dealing with insuring the vehicles against accidents etc. and to pay compensation whenever the fact arises in pursuance of the Terms and Conditions of the insurance policy. It is also Op No.1 admitted that the motor vehicle bearing No. KA 29/M-7198 was insured for the period from 23.04.2012 to 23.04.2013 thus on the above said period was to expire again he got renewal the policy from 24.04.2013 to 23.04.2014 by paying the premium amount of Rs.16,834/- which was accepted by the OP No.1 and issued a policy for the above said period. So the contract was completed and it is binding on both the parties. But, later the OP No.1 demanded the complainant to pay an additional premium of Rs.3,039/- with short fall amount. It was upto the OP No.1 and 2 bearing to the notice of the complainant, the premium amount that is to be paid by him and taken them only the renewal premium amount. If that was so, the complainant could have paid the entire premium amount once the contract is complete and the parties took to perform their post of the contract they are bound to perform it, policy was reduced to a short period. But there is no provision under the insurance law to issue a policy less than one year. The insurance company when it received a lesser amount than reduced they should have returned the amount received by complainant and asked the complainant worth the full amount for using his vehicle which is not done by it. Before shortening the period of the insurance policy that if due over not pay the short fall premium, the insurance period will be reduced, there is no provision under the Insurance Law for issue of policy for short period than one year. Hence, the act of OP No.1 in reducing the period of insurance is bad and not acceptable. OP No.1 has filed his Objections to the said Complaint in Para No.2 of Objection admitted that there is a contract of insurance between complainant and OP No.1 and that there is a policy of insurance as alleged by the complainant.

7.      Further, during the course of arguments, the counsel for the complainant has relied on the citations. It has been ruled in the case of Indira Gutpa V/s Oriental Insurance Company, 1997 CPJ 218 that once the cover note is issued, it is to be presumed that it was issued after necessary verification.

8.      Therefore, this is none other than deficiency in service rendered by the OP No.1. Once the deficiency in service is proved, the next point is how much compensation is entitled for? The discussions we reach to conclusion that OP No.1 shall have to pay an amount, loss and damage sustained to the vehicle as estimated by OP No.2-Company Rs.7,02,312/-, towards mental agony of Rs.5,000/- and cost of Complaint is Rs.2,000/-. Hence, we answer Point No.1 in partly in the affirmative.      

9.  POINT NO.2:  In view of partly affirmative finding to Point No.1, we proceed to pass the following:

:: ORDER ::

1. The complaint is allowed in part.
2. The OP No.1-Insurance Company have to pay a sum of Rs.7,02,312/- (Rupees seven lakh two thousand three hundred and twelve) towards loss and damage sustained to the vehicle as estimated by OP No.2-Company.
3. Further, OP No.1 is directed to pay Rs.5,000/- (Rupees five thousand) towards mental agony and Rs.2,000/- (Rupees two thousand) towards cost of litigation.
4. Claim against OP No.2 is hereby dismissed.
5. OP No.1 is hereby directed to comply the order of this Forum within a period of sixty days from the date of receipt of the Order, failing which the above said amount of Rs.7,02,312/- shall carry interest at the rate of 12% per annum from the date of order, to till realization.

    6) Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 16^th day of September, 2017)