West Bengal

Birbhum

CC/123/2016

Prabir Ghosh, S/o Lt S.S Ghosh - Complainant(s)

Versus

Branch Manager, National INS Co Ltd - Opp.Party(s)

Sanjit Kr Acharya

19 Mar 2018

ORDER

Dr. Soumen Sikder,  Member

One Prabir Ghosh filed a complaint against Branch Manager, National Insurance Co. Ltd. Suri Branch, stating that he purchased an insurance policy from the O.P on his two wheeler, Hero Honda Splendor. The insurance policy was valid from 11.04.2016 to 10.04.2017. On 26.08.2016 the vehicle met with an accident when the complainant was going to his relatives house at Parota, Nanoor. On the way two dogs were coming into the vehicle when it was in motion. The complainant lost control over the vehicle and the vehicle dashed and fell down into a culvert. In consequence the vehicle was damaged and the complainant was injured. The complainant informed Insurance Company of the matter and submitted claim form along with estimated cost of repair of the damaged vehicle as per O.P’s instruction. The O.P Company and their Surveyor instructed the complainant to repair the vehicle at the authorized service centre. The complainant made repair incurring expenses of Rs. 12,047/- on 06.09.2016. The complainant submitted the bills/money receipts of repairing charges of the damaged vehicle. Inspite of getting all the relevant documents the O.P did not settle the claim. Being aggrieved the complainant has come to the Forum for proper relief.

The O.P, Branch Manager, National Insurance Company Ltd. Suri Branch appeared and contested the case. He filed the written version stating that the complainant issued a cheque for payment of 1^st premium with the proposal form of the policy. The said cheque was dishonoured and the policy was cancelled as there was no consideration in respect of the said policy. So, there was no question of admission of the claim.

Both parties filed certain documents. The complainant was examined and cross-examined as P.W. Ld. Advocate for the O.P filed written argument. The complainant adopted the complaint as written argument.

Upon pleading of the parties the following points are to be taken for discussion.

Points

1. Whether the complainant is a consumer or not?
2. Whether the O.P has deficiency in service or not?
3. Is complainant entitled to relief as prayed for?

Decision with reasons

            The complainant has filled up a proposal Forum of National Insurance Co. for taking up insurance policy on his two wheeler, Hero Honda Slendor on 11.04.2016. He also paid the first insurance premium of Rs. 1073/- by issuing a cheque being No. 048427 dated 11.04.2016 drawn on State Bank of India and payable to National Insurance Co. Ltd. The O.P insurance company after getting the proposal form with first policy premium by cheque issued insurance policy certificate being No. 150401/31/16/6200000466 in favour of the insured Prabir Ghosh, S/o Late Sagar Sudha Ghosh, Suri, Birbhum on the same day. The said cheque was signed by the policy holder as Prabir Kr. Ghosh under the printed name Prabir Ghosh, S/o Lt. Sagar Sudha Ghosh. The insured has an S/B account being No. 11126145874 with cheque facility in the name of Prabir Ghosh, S/o Late Sagar Sudha Ghosh. P.W. admitted it in the cross examination. However, the said cheque was sent for clearance on 13.04.2016 to the State Bank of India, Suri Branch. State Bank of India, Suri Branch by sending a statement to ICICI informed that ‘drawer’s signature differs’ on the cheque being No. 048427 amount Rs. 1073/- and the A/c Deptt. Of the O.P put note on this statement ‘Pl. cancel the policy due to cheque dishonoured’.

The O.P did not settle the claim filed by the insured on the ground that the complainant paid first insurance premium by cheque. The cheque was dishonoured for mismatch of signature. The policy was cancelled as the contract is void ab initio.

The complainant in cross examination admitted that “after filing of the case, on perusal of my S/B Account I came to know said cheque amount has not debited from said account”.

The O.P stated in his written version as well as in written argument that the premium cheque was dishonoured and the policy was cancelled. Since the policy was void ab initio this answering O.P is not liable to indemnity in any manner to the owner of the vehicle. He also raised the point that the complainant is not a consumer under the O.P.

Ld. Advocate for the complainant argued that the O.P did not inform him of policy cancellation. The O.P has filed a copy of the letter dated 20.04.2016 addressed to Regional Transport Officer stating that the policy No. 150401/31/16/6200000466 issued in favour of Prabir Ghosh has been cancelled from inception through endorsement No. 15040131166284000001 and they are no longer on risk from that date. Prabir Ghosh is also requested to surrender motor policy No. 150401/31/16/6200000466 for cancellation immediately through this letter. The complainant said that the O.P never informed the complainant of dishonoured of the cheque.

The question is being an S/B account holder the complainant used cheque. He must know how to sign on the cheque. If the cheque issued by a person dishonoured due to mismatch of signature or insufficient fund the responsibility lies on the account holder and he is liable.

Now the question is whether the complainant is a consumer under the O.P?

The complainant entered into a contract by submitting proposal form along with a cheque for service to be provided by the O.P. The policy premium was the consideration. The O.P issued a policy certificate as per agreement for providing service. The policy certificate issued by the O.P in the name of Prabir Ghosh contents a note  warranted that in case of dishonour of the premium cheque, this documents stands automatically cancelled ab initio. The cheque issued by the complainant had been dishonoured due to mismatch of the signature. The signature should have been Prabir Ghosh instead of Prabir Kr. Ghosh. The consideration for an agreement is essential element. There was no consideration as the cheque was dishonoured. So, the contract is void ab initio as per Contract Act. Sec.2.

On the other hand Consumer Protection Act says there must be consideration whether it is paid or partly paid and partly payable for purchase of goods or services from the O.P. In this case there is no consideration. So, the complainant is not a consumer under the O.P.

As the complainant is not a consumer under the O.P there is no question of deficiency in service on the part of the O.P in respect of claim settlement. So, the case fails. 

Hence,

O R D E R E D

                                                that C.F case No. 123/2016 be and the same is dismissed for default on contest against the O.P without any order as to cost.

            Copy of this order be supplied to the parties each free of cost.