Tamil Nadu

South Chennai

846/2009

Mr.Jayaprakash - Complainant(s)

Versus

Capital Honda AaditAuto Company Pvt. Ltd.,Manager & another - Opp.Party(s)

S.Devika & T.Mohan

12 Dec 2019

ORDER

                                                                             Date of filing      : 30.09.2009

                                                                               Date of Disposal : 12.12.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.846/2009

DATED THIS THURSDAY THE 12^TH DAY OF DECEMBER 2019

                                 

Mr. Jayaprakash,

S/o. Mr. Prabhakaran Nair,

No.2, CM Street,

Nungambakkam,

Chennai – 600 034.                                                        .. Complainant.

                                                                                                   ..Versus..

1. Capital Honda,

Represented by its Manager,

Aadit Auto Company Pvt. Ltd.,

No.18, G.S.T. Road,

(Opp. AAI Cargo Complex),

Meenambakkam,

Chennai – 600 027.

 

2. ICICI Lombard General Insurance Company Ltd.,

Represented by its Regional Manager,

Regional Office,

Chotabhai Centre,

Nungambakkam High Road,

Chennai – 600 034.                                                 ..  Opposite parties.

 

Counsel for the complainant            : M/s. T. Mohan & another

1^st opposite party                             : Ex-parte

Counsel for the 2^nd opposite party  : M/s. Elveera Ravindran

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.2,61,466/- with interest at the rate of 18% p.a. from the date of claim until date of payment and to pay a sum of Rs.1,00,000/- towards compensation for suffering, hardship and mental agony with cost of Rs.7,500/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he purchased a Honda Civic car from the 1^st opposite party dealer for Rs.11,17,000/- on 30.10.2008.  The complainant also paid a sum of Rs.43,664/- in cash towards insurance premium to the 1^st opposite party had confirmed having forwarded to the 2^nd opposite party as per fax message initialed by the 2^nd opposite party for having received the said insurance premium agreed to provide comprehensive insurance cover in respect of Honda Civic car.  The 1^st opposite party also issued a cover note No.PCVH7755623 for the period from 31.10.2008 to 30.10.2009.   The complainant submits that on 27.11.2008, the car met with an accident.   Hence, the complainant raised insurance claim for the extensive damage to the car through the 1^st opposite party and 2^nd opposite party for a sum of Rs.2,61,466/- with the 2^nd opposite party.  The complainant submits that the 2^nd opposite party without settling the claim informed the complainant that the cheque for the insurance premium for the impugned vehicle has been dishonoured with a endorsement ‘insufficient fund’ and there was no insurance cover on the date of accident.  The complainant submits that the 1^st opposite party had confirmed having passed on the insurance premium to the 2^nd opposite party and obtained the initial of the 2^nd opposite party acknowledging the receipt of the said premium.    

2.     The complainant submits that even presuming that the cheque issued towards premium in respect of the entire batch of vehicles has indeed been dishonoured that would in no way absolve the liability of the 2^nd opposite party for the reasons that:

1. The 1^st opposite party is only an agent of the 2^nd opposite party is liable for the acts of its agent.
2. The complainant had parted with the premium amount to the agent of the 2^nd opposite party much before the date of accident.
3. A policy cover note for the period from 31.10.2008 to 30.10.2009 had been issued by the 2^nd opposite party which is a sufficient proof for the contract of insurance.
4. The policy note binds both the opposite parties and neither of them can take a stand that they are not liable or responsible for the acts of the other.
5. The dishonoured cheque had been issued by the 1^st opposite party as an agent of the 2^nd opposite party and collection of premium by the 1^st opposite party will amount to receipt of premium by the 2^nd opposite party.
6. The law, as interpreted by Courts, clearly stipulates that the 1^st opposite party is only an agent of the 2^nd opposite party and the insured cannot be deprived of a legitimate claim on such absurd grounds as raised by them in the present case.
7. A fresh cover note also issued by the insurance company on 05.12.2008 though the premium for the insurance had been paid in October 2008. 

The complainant submits that he sent legal notice dated:26.06.2009 to the opposite parties to pay a sum of Rs.2,61,466/- towards the cost of repairs with compensation and interest.    The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.     The 1^st opposite party after due service of notice has not filed written version in the prescribed time limit given in the Consumer Protection Act, 1986.  Due application in CMP. No.266/2010 has been filed for condoning the delay in filing the written version and CMP No.267/2010 was filed to set aside the ex-parte order wherein, a conditional order was passed by this Forum that was not duly complied by the 1^st opposite party.  Hence, CMP Nos.266/2010 & 267/2010 both were dismissed.  Thereby, the 1^st opposite party was set ex-parte.

4.      The brief averments in the written version filed by 2^nd opposite party is as follows:-

The 2^nd opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 2^nd opposite party states that the complainant is not a Consumer as per the Section 2(1) d(i) of the Consumer Protection Act, 1986.  The 2^nd opposite party states that the vehicle was hired for commercial purposes and it is seen that the complainant had violated the terms and conditions of the policy by plying the same for the hire purposes with a white board.  The 2^nd opposite party states that the allegation that the complainant paid a sum of Rs.43,664/- towards insurance premium on 30.10.2008 to the 1^st opposite party is false.   In any event, the complainant has not paid any amount directly to the 2^nd opposite party.   The 2^nd opposite party states that the  cover note issued by the 2^nd opposite party in favour of the complainant is very clear that all the cheque are subject to realisation which implies that in the event of non-payment of dishonour of cheque the policy stands cancelled.  There is no liability of insurance on the part of the insurance policy.   The 2^nd opposite party states that the allegation that there is no accident happened on 27.11.2008.  There was no insurance cover and hence, the 2^nd opposite party is not liable since, it is clearly stated that only on acceptance of the proposal form and the receipt of premium in full the liability will commence.  The 2^nd opposite party states that the claim made by the 2^nd opposite party for the repair charges is duly repudiated with a suitable reason that there is no subsistence of policy.  The cheque issued towards the premium is returned dishonoured. Therefore, there is no deficiency in service on the part of the 2^nd opposite party and hence, the complaint as against the 2^nd opposite party is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A13 are marked.  Proof affidavit of the 2^nd opposite party is filed and no document is marked on the side of the 2^nd opposite party.

6.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.2,61,466/- with interest at the rate of 18% p.a. towards repair charges as prayed for?
2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, hardship and deficiency in service with cost of Rs.7,500/- as prayed for?

7.      On point:-

The 1^st opposite party after due service of notice has not filed written version in the prescribed time limit given in the Consumer Protection Act, 1986.  Due application CMP. No.266/2010 was filed for condoning the delay in filing the written version and CMP No.267/2010 was filed to set aside the ex-parte order was filed; wherein a conditional order was passed by this Forum was not duly complied by the 1^st opposite party.  Hence, CMP Nos.266/2010 & 267/2010 were dismissed.  Thereby, the 1^st opposite party remained ex-parte.  Both complainant and 2^nd opposite party filed their respective written arguments.  Heard the complainant’s Counsel also.  Perused the records namely; the complaint, written version, proof affidavit and documents.  The complainant pleaded and contended that he purchased a Honda Civic car from the 1^st opposite party dealer for Rs.11,17,000/- on 30.10.2008.  The complainant also paid a sum of Rs.43,664/- in cash towards insurance premium to the 1^st opposite party; had confirmed having forwarded to the 2^nd opposite party as per fax message initialed by the 2^nd opposite party for having received the said insurance premium agreed to provide comprehensive insurance cover in respect of Honda Civic car.  The 1^st opposite party also issued a cover note No.PCVH7755623 for the period from 31.10.2008 to 30.10.2009 as per Ex.A5.  But the complainant has not filed any document to prove that the complainant has paid a sum of Rs.43,664/- by way of cash towards insurance premium to the 1^st opposite party and in turn fax message to the 2^nd opposite party for providing comprehensive insurance policy. 

8.     Further the contention of the complainant is that on 27.11.2008, the car met with an accident.  Hence, the complainant raised insurance claim for the extensive damage to the car through the 1^st opposite party for a sum of Rs.2,61,466/-.  But the complainant has not produced any evidence to prove the said accident.  Further the contention of the complainant is that the 2^nd opposite party without settling the claim informed the complainant that the cheque for the insurance premium for the impugned vehicle has been dishonoured with an endorsement ‘insufficient fund’ and there was no insurance cover on the date of accident as per Ex.A11, Rejection of Claim dated:26.12.2008 which reads as follows:-

“With reference to your claim under vehicle insurance, we wish to inform you that we have received the papers and documents submitted by you for processing the claim.   On the basis of our examination of the submitted documents, we regret our inability to honour the claim for further process because:

Premium Cheque Bounced (64 VB Compliance)”.

 proves that the averments that the complainant paid the premium by way of cash is false and the cheque issued towards insurance premium is dishonoured for the reason ‘insufficient fund’.  

9.     Further the contention of the complainant is that the 1^st opposite party had confirmed having passed on the insurance premium to the 2^nd opposite party and obtained the initial of the 2^nd opposite party acknowledging the receipt of the said premium for which, there is no evidence.   Further the contention of the complainant is that even presuming that the cheque issued towards premium in respect of the entire batch of vehicles has indeed been dishonoured that would in no way absolve the liability of the 2^nd opposite party for the reasons that:

The 1^st opposite party is only an agent of the 2^nd opposite party is liable for the acts of its agent.

A policy cover note for the period from 31.10.2008 to 30.10.2009 had been issued by the 2^nd opposite party which is a sufficient proof for the contract of insurance.

A fresh cover note also issued by the insurance company on 05.12.2008 though the premium for the insurance had been paid in October 2008 as per Ex.A8. 

But it is apparently clear that there is no evidence to prove that the 1^st opposite party is the agent of the 2^nd opposite party and the cover note payment by the 2^nd opposite party for the period from 31.10.2008 to 30.10.2009 shall go automatically since the cheque issued towards the policy premium was dishonoured for the reason ‘insufficient fund’.   The alleged cover note issued on 05.12.2008 without any other premium is of no way connected with the insurance policy for the impugned vehicle.  On a careful perusal of Ex.A8, it is very clear that:

Premium Collection Details:-

(Collection No./ Amount / -  1014705205 / Rs.43,600/- /

Receipt Date)                         03.12.2008

proves that it cannot be taken into consideration for the claim related to the accident dated:27.11.2008. 

10.    Further the contention of the complainant is that the law is well settled as per the following judgements as in:-

i.                                 I (2005) CPJ 27 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

First Appeal Nos.159, 160 Y 161 of 2004

Between

Harsolia Motors

-Versus-

National Insurance Co. Ltd.

Held that

          “Consumer Protection Act, 1986 – Sections 2(1)(d), 2(1)(o) – Consumer – Service – Commercial purpose – Insurance policy taken by commercial units – Whether excluded from purview of C.P. Act – Complainants availed service of insurance company for commercial purpose -  Complaint dismissed by State Commission as not maintainable – Hence appeal – Hiring of services of insurance company by complainants who are carrying on commercial activities cannot be held to be a commercial purpose – Policy is taken for reimbursement or indemnity for loss which may be suffered due to various perils – No question of trading or carrying on commerce in insurance policy – Contract of insurance generally belongs to general category of contract of indemnity – Services may be for any connected commercial activity, yet it would be within purview of Act – Commercial purpose means goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose – Person who takes insurance policy to cover envisaged risk not takes policy for commercial purpose – Policy is only for indemnification of actual loss, not intended to generate profit – Appeals allowed – Order of State Commission set aside – Matter remitted back for being decided on merit”.

ii.                                    I (2005) CPJ 33 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Revision Petition No.1212/2004

Between

Meenakshi Mission Hospital and Research Centre

-Versus-

Samuraj & anr.

Held that

          “Consumer Protection Act, 1986 – Sections 2(1)(g) & 21(b) – Medical Negligence – Anaesthesia administered by two anaesthetists at 10.00 a.m. and at 10.30 a.m.  – Child was pulseless – Doctor who allegedly administered anaesthesia not produced before commission – Two progress cards about same patient on two separate papers produced – What two anaesthetists were doing inside O.T. not explained – Deficiency in service proved – name of anaesthetists not mentioned in operation notes / progress record – Hospital accountable for whatever happens in hospital, liable to pay compensation and cost”.

iii.                                    2005 (1) CPJ 573 (MP)

MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

Appeal Nos.574 & 1272 of 2004

Between

Ram  Kumar Kaushikiya & anr.

-Versus-

Nav Bharat Dainik Samachar Patra

Held that

          “Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Non-payment of sum assured – Claim repudiated as premium received after death of insured – Premium collected by Nav Bharat Newspaper on 16.09.2001 remitted to Insurance Company on 28.09.2001, after death of insured – Nav Bharat acting as agent of Insurance Company – Certificate of insurance issued on behalf of Insurance Company by Nav Bharat – Forum wrongly exonerated Insurance Company from liability – Both jointly and severally liable  to pay sum assured”.

iv.                                       III (2005) CPJ 27 (NC)

Revision Petition No.2189 of 2001

Between

Central Bank of India & anr.

-Versus-

Heera Soni & ors.

 

Held that

          “Consumer Protection Act, 1986 – Section 21(b) – Insurance – Group insurance policy – Insured, employee of Bank, expired – claim of heir not settled – Contention, policy lapsed due to non-payment of premium – Bank acting as agent, having implied authority of LIC for collecting premium from employees – Amount deducted from salary of employees would be deemed to have been paid to company -  Failure on part of agent to deposit deducted amount with LIC, not lead to lapse of policy – company liable to pay policy amount to beneficiaries with interest at the rate of 9% p.a.”.

v.                                     III (2001) CPJ 139

MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

Appeal No.224 of 2000

Between

Khaleel Ahmed Ansari

-Versus-

United India Insurance Co. Ltd.

Held that

          “Consumer Protection Act, 1986 – Section 15 – Appeal – Insurance – Students safety insurance policy – Claim repudiated as deceased died prior to receipt of premium by Insurance Company – Complaint dismissed by Forum – Hence appeal – Principal of educational institution responsible to collect the premium and remit the same to Insurance Company – Premium received in advance on 31.07.1998 at the time of admission – Insurance started on 31.07.1998. deceased died on 03.08.1998 fully covered by the policy – Order of Forum set aside – Insurance Company liable to pay insurance amount along with interest”.

vi.                                   2002 (1) CPR 105

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

MADHYA PRADESH, BHOPAL

Appeal No.224 of 2000

Between

Khaleel Ahmed Ansari

-Versus-

United India Insurance Co. Ltd. & Anr.

Held that

          “Consumer Protection Act, 1986 – Sections 12 & 17 – Insurance claim – Deceased, a school student covered under student security insurance, met with accident on 03.08.1998 and died – claim repudiated on ground that premium was received on 23.09.1998 & deceased died prior to receipt of insurance – Dist. Forum dismissed complaint – Appeal – Under the scheme “Students Safety Insurance Policy”, premium was to be collected by principal of the school & not by Insurance Co. – Premium of Rs.0.60 in respect of deceased student was deposited with admission fee on 31.07.1998 – Insurance would commence on 31.07.1998 – It was internal arrangement between Insurance Co. & principal of school as to when & how the collected premium shall be deposited – Deceased shall be deemed to be insured & Insurance Co. was liable to pay amount of Rs.10,000/- under the policy with interest at 9% from date of complaint”.

v.                                         II (2003) CPJ 609

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM

Appeal Nos.692 & 710 of 2000

Between

The Manager, New India Assurance Co. Ltd.

-Versus-

Syamala Rajan & Ors.

Held that

          “(i) Consumer Protection Act, 1986 – Section 15 – Insurance – Subscribers’ insurance scheme – Complainant’s husband subscriber of newspaper, joined insurance scheme, died due to drowning – Claim not entertained – Contention, application form not filled by deceased – Contention not acceptable – Application form submitted through agent proved – O.Ps. being joint sponsors equally responsible to disburse the insured amount.

          (ii) Consumer – Person claiming insured amount on demise of insured gets the status of beneficiary and is consumer”.

vi.                                    III (2005) CPJ 228

GUJARAT STATE CONSUMER DISPUTES REDRESSAL COMMISSION, AHMEDABAD

Appeal No.1062 of 2004

Between

Gujarat State Gram Vikas Parishad

-Versus-

Ishwarbhai Boghabhai Talpada & Ors.

Held that

          “Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Accident scheme floated by O.P. No.1 – Deceased became member of scheme by paying Rs.100/- - Unfortunately died accidental death next day – Claim not honoured – Contention, amount collected by O.P. Nos.2 & 3 from deceased not credited within stipulated period, deceased’s name not registered with Insurance Company – Contention not acceptable – O.P. Nos.2 & 3 acted as agents of O.P. No.1 – Principal vicariously liable for acts and omissions of agent / employee – Complaint rightly allowed by Forum – Order upheld in appeal”.

  vii.                                   III (2005) CPJ 321

UTTARANCHAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, DEHRADUN

Appeal No.33 of 2005

Between

National Insurance Co. Ltd.

-Versus-

R.S. Suman & Ors.

Held that

          “Consumer Protection Act, 1986 – Section 15 – Insurance – Repudiation of claim – Contention, premium deposited after death of victim, not acceptable – College students insured as per notification issued – Entire premium amount of all students paid, accepted by Company – Principal of school agent of Company, Company bound to make payment”.

viii.                                 III (2006) CPJ 185

CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RAIPUR

Appeal No.236 of 2005

Between

Kalyan Singh & Anr.

-Versus-

Lilavati Bai & Ors.

Held that

          “Consumer Protection Act, 1986 – Section 15 – Vicarious Liability – Joint and several liability – Insurance – Group insurance policy – Under policy scheme, premium amount was to be received by appellants and claim form routed through them, was to be submitted to insurer – Appellants acted as agents of insurer – Principal insurer vicariously liable for payment of assured amount as premium was paid by deceased to its agents – Insurer jointly and severally liable with appellants to pay assured sum – Since appellants failed to prove submission of claim form to insurer, cost and compensation amount payable by them”.

Further the contention of the complainant is that the complainant is claiming a sum of Rs.2,61,466/- towards the cost of repairs with compensation and interest.  But there is no valid subsistence of policy produced in this Forum to prove that the impugned vehicle having valid policy of insurance on the date of accident.

11.    The learned Counsel for the 2^nd opposite party would contend that the complainant is not a Consumer as per the Section 2(1) d(i) of the Consumer Protection Act, 1986.  As per Ex.A12, the vehicle was used for hire with white board.  Further the contention of the 2^nd opposite party is that the allegation that the complainant paid a sum of Rs.43,664/- towards insurance premium on 30.10.2008 to the 1^st opposite party is false and there is  no proof.   In any event the complainant has not paid any amount directly to the 2^nd opposite party.  Further the contention of the 2^nd opposite party is that the cover note issued by the 2^nd opposite party in favour of the complainant is very clear that all the cheque are subject to realisation which implies that in the event of non-payment of dishonour of cheque the policy stands cancelled.  There is no liability of insurance company under the alleged insurance policy and cover note.   In this case, it is very clear that the cheque issued towards insurance premium is dishonoured.   Further the contention of 2^nd opposite party is that the allegation that there is no accident on 27.11.2008.  There is no F.I.R. also.  There is no endorsement of this opposite party Insurance Company regarding the accident.  Under such circumstances, the complainant is not entitled to any claim. 

12.    Further the contention of the 2^nd opposite party is that the claim made by the 2^nd opposite party for the repair charges is duly repudiated with suitable reason that there is no subsistence of policy.  The cheque issued towards the premium is returned as dishonoured.  The following citations referred by the complainant are not relevant to the case in hand. 

i.  2005 (3) CPJ 27

ii. 2001(3) CPJ 139 (MP) 

iii. 2002 (1) CPR 105 (MP)

iv. 2003 (2) CPJ 609 (Ker.)

v. 2005 (1) CPJ  573 (MP)

vi. 2003(3) CPJ 228 (GUJ.)

vii. 2005 (3) CPJ 321 (Uttara)

viii. 2005(3) CPJ 478 (MP)

ix. 2006 (3) CPJ 185 (Chat.)

Considering the facts and circumstances of the case, this Forum is of the considered view that this complaint has to be dismissed.

In the result, this compliant is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of December 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	23.10.2008	Copy of receipt No.BRS820342 for Rs.50,000/-
Ex.A2	30.10.2008	Copy of receipt No.CRO80475 for Rs.3,21,750/-
Ex.A3	31.10.2008	Copy of receipt No.CRO80477 for Rs.58,000/-
Ex.A4	31.10.2008	Copy of receipt No.CRO80479 for Rs.18,800/-
Ex.A5	31.10.2008	Copy of Policy Cover Note No.PCVH 7755623
Ex.A6	03.11.2008	Copy of receipt No.BRS820391 for Rs.6,55,000/-
Ex.A7	27.12.2008	Copy of receipt No.BRS0800695 for Rs.13,450/-
Ex.A8	05.12.2008	Copy of new policy cover Note No.PCVH 7755901
Ex.A9	17.12.2008	Copy of new policy No.cum certificate No.3004/55661734/00/000
Ex.A10	22.12.2008	Copy of claim statements
Ex.A11	26.12.2008	Copy of letter of rejection of claim by ICICI Lombard
Ex.A12	09.01.2009	Copy of letter from Bala Tourist Service to the ICICI Lombard Insurance Co. Ltd.
Ex.A13	26.06.2009	Copy of legal notice of the complainant to the opposite parties

 

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-  NIL

 

 

MEMBER                                                                                                                                                                                PRESIDENT