Punjab

Ludhiana

CC/15/330

Maninder Kaur - Complainant(s)

Versus

Cholamandalam MS Gen.Ins.co.Ltd. - Opp.Party(s)

M.S.Maninder Adv.

13 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 330 of 19.05.2015

Date of Decision            :   13.07.2016 

 

Maninder Kaur Kahai wife of Shri Amrik Singh Kahai, resident of House No.109, Basant Vihar, adjoining Phase I, Dugri, Jawaddi Khurd, Ludhiana.

….. Complainant

                                                         Versus

 

1.Cholamandalam MS General Insurance Company Limited, 2^nd Floor, Dare House, 2 NSC Bose Road, Chennai-600001.

2.Mr.Pardeep Singh, representative, IndusInd Bank Limited, SCO 12-13, 2^nd floor, Canal Colony, Pakhowal Road, Ludhiana.

3.IndusInd Bank Limited, SCO 12-13, 2^nd Floor, Canal Colony, Pakhowal Road, Ludhiana through its Manager.

…Opposite parties 

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :          Sh.Amrik Singh Kahai, representative

For OP1                         :          Sh.Vyom Bansal, Advocate

For OP2                         :         Sh.Charanjit Singh, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, registered owner of vehicle Chevrolet Beat bearing registration No.PB-10-DR-3337 on allurement of OP2(an employee of OP3, the corporate agent of OP1) availed services of Dep-Cap Insurance of the vehicle by paying an amount of Rs.14,700/- in all. That amount of Rs.14,700/- paid through cheque No.189345 of HDFC Bank Limited. OP2 handed over cover note No.3181875 with validity from 25.5.2014 to 24.5.2015 to the complainant. That cover note was issued by OP2 in his hands. Front windshield glass of the said vehicle was damaged, due to which, complainant approached the Windshield Expert, Dholewal, Ludhiana. Said expert demanded Rs.5348/- from the complainant, which was paid. Thereafter, complainant approached OPs for finding that there was unfair trade practice adopted by OPs in issuing the policy. Dep-Cap policy covering the total depreciation and entire parts of the vehicle, was purchased by the complainant. On calculation, difference was found because the figure of 8673+1332+100+500 was = Rs.10,155/-, despite the fact that total premium mentioned in Dep-Cap policy was of Rs.14,646/-. Complainant was stunned to know that policy handed over to her was not Dep-Cap policy. Rather, vehicle of the complainant was insured through ordinary insurance policy. Above referred cheque of Rs.14,700/- was encashed on 28.5.2014. Claim for windshield damage has not been passed by OPs till date. So, by pleading adoption of unfair trade practice by the OPs, refund of paid premium amount of Rs.14,700/- along with interest @12% p.a. sought. Besides, refund of Rs.5348/-, the price of windshield sought. Further, compensation for mental harassment of Rs.65,000/- and litigation expenses of Rs.10,000/- more claimed.

2.                In the written statement filed by OP1, it is claimed that cover note No.3181875 for the car of complainant was issued by the staff of OP3, who is an authorized agent to sell the insurance products of OP1. Premium amount was received by OP3 and thereafter, intimation was sent to OP1 regarding issue of policy. It is claimed that OP1 received only Rs.11,742/- as premium amount for insurance with validity period from 25.5.2014 to 24.5.2015. The policy was not issued for Dep-Cap policy. Rather, premium was received by OP1 from OP3 in respect of sale of normal insurance policy. Benefits under the policy are governed by the terms and conditions of the policy, due to which, liability of OP1 is limited to the extent of terms and conditions of the policy. After receipt of claim of the complainant, OP1 registered the claim and thereafter,despite repeated requests to the complainant to provide documents vide letter dated 31.5.2015, no response was received from the complainant and nor any documents received from her and that is why vide letter dated 31.5.2015, the claim was treated as No Claim. It is claimed that this Forum has no territorial jurisdiction to entertain the present complaint because no part of cause of action accrued in the territorial jurisdiction of this Forum. Complaint alleged to be frivolous. Complainant never raised any concern with the OP1 even after receipt of policy schedule. In the cover note filed along with complaint, mention not made qua issue of Dep-Cap Policy and as such, claim of the complainant alleged to be frivolous. Besides, it is claimed that complainant is not a consumer. Complainant as per claim of OP1, is misleading this Forum by twisting the facts. Deficiency in service on the part of OP1 not proved. Besides, it is claimed that complicated question of law and facts are involved in the complaint, which cannot be decided in summary proceedings. OP3 admittedly has been authorized by OP1 to sell its products. As per passbook of the complainant, the amount was paid to OP3 and thereafter, cover note was issued by the staff of OP3. OP1 has rendered full services to the complainant. By denying each and every other averment of the complaint, prayer made for dismissal of complaint.

3.                In the separate written statement filed by OP2, it is pleaded interalia as if the complainant has not approached this Forum with clean hands because he has suppressed the material facts; complaint against OP2 in individual capacity is not maintainable; complainant has no cause of action against OP2 and complaint in the present form is not maintainable. As per terms of the Corporate Insurance Agency Agreement dated 1.11.2013 entered into between OP1 and OP3, OP3 can issue only the cover note as per the Private Car Premium Calculation provided to it by OP1. After receiving the premium, OP3 has to provide information regarding the proposal forms logged by it to OP1 within 30 days from the date of issue of cover note. Thereafter, OP1 to issue the policy to the consumer. OP2 after receiving the email regarding car premium calculation, issued the cover note for an amount of  Rs.14,700/-. As per the information received through email by OP2, the premium amount was for Dep Cap policy. Premium for Dep Cap including service tax comes to Rs.14,646/- and the same was received from the complainant. OP2 sent the scanned copy of cover note along with other documents to Sh.Gagandeep Singh Rehal, State Banca Head, IBL Chandigarh of OP1 on 27.5.2014. Scanned copies of said email produced along with written statement. Responsibility is of OP1 to issue the policy to the consumer. As complainant before filing this complaint never approached OP2 and as such, there is no deficiency in service on the part of OP2. Op2 admittedly is the representative of OP3. OP2 issued the cover note only as per instructions of OP1. Other averments of the complaint denied.

4.                In separate written statement filed by OP3, it is pleaded interalia as if the complainant has not approached this Forum with clean hands; complainant has no cause of action against OP3 and the complaint in the present form is not maintainable. As per the terms of Corporate Insurance Agency Agreement dated 01.11.2013 entered between OP1 and OP3, OP3 can issue the cover note as per the Private Car     Premium Calculation provided to it by OP1. After receiving the premium, OP3 has to provide information regarding the proposal forms logged by it to OP1 within 30 days from the date of issue of the cover note and thereafter, OP1 to issue the policy to the consumer. Employee of OP3 after receiving the email from the employee of OP1 regarding the car premium calculation, issued cover note of amount of Rs.14,646/-. After receiving the information qua the total premium amount of Rs.14,646/-, employee of OP3 issued the cover note and thereafter, sent the scanned copies of the same along with other documents to Sh.Gagandeep Singh Rehal, State Banca Head, IBL Chandigarh of OP1. Scanned copies of email dated 27.5.2014 attached with the written statement. As per term No.6.5 of the terms and conditions of Corporate Insurance Agency Agreement, it is the responsibility of OP1 to compensate the consumer for deficiency in service. Complainant never approached OP3 before filing this complaint and as such, there is no deficiency in service on the part of OP3. Even allegation of adoption of unfair trade practice refuted. Admittedly, OP2 is the representative of OP3. Each and every other averment of the complaint denied.

5.                Complainant to prove her case tendered in evidence her affidavit Ex.CA along with affidavit Ex.CB of her representative Sh.Amrik Singh Kahai and even tendered documents Ex.C1 to Ex.C3 as well as Ex.C2/A and thereafter, closed the evidence.

6.                On the other hand, counsel for the OP1 tendered in evidence affidavit Ex.RA1 of Sh.Ashutosh Kumar, Assistant Manager Claims(Legal) of OP1 along with documents Ex.R1/1 and Ex.R1/2 and thereafter, closed the evidence.

7.                Counsel for the OP2 tendered in evidence affidavit Ex.RA2 of Sh.Pardeep Singh, Employee of OP3 along with documents Ex.OP2/1 to Ex.OP2/6 and thereafter, closed the evidence.

8.                Counsel for  OP3 tendered in evidence affidavit Ex.RA3 of Sh.Bhavik Bhardwaj,  special power of attorney of OP3 along with documents Ex.R3/1 to Ex.R3/6 and thereafter, closed the evidence

9.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed by the representative or counsel for the parties and those were heard. Records gone through minutely. 

10.              It is contended by representative of complainant that policy documents has not been sent till date and even intimation qua sending of those documents not received by complainant. However, allegations in that respect not levelled in the submitted affidavits Ex.CA and Ex.CB and as such, the same allegations not borne from the record. Rather, it is the case of complainant that copy of cover note Ex.C1 supplied to her by OP2. That cover note Ex.C1 on back of it contains terms and conditions and as such, case of the complainant is not believable that terms and conditions of the policy were not supplied to her.

11.              After going through Ex.C1 and copy of statement of account of husband of complainant Sh.Amrik Singh Kahai placed on record as Ex.C3, it is made out that Rs.14,700/- was paid through cheque to OP3 and that is why mention in Ex.C1 qua receipt of premium amount of Rs.14,646/- was specifically made.

12.              The bone of contention remains as to whether after acceptance of this premium amount of Rs.14,646/-, Dep Cap insurance policy(depreciation is totally covered and entire vehicle is fully insured) was issued or a normal policy was issued as claimed by OP1 through submitted affidavit Ex.RA/1 of Sh.Ashutosh Kumar, Assistant Manager. In affidavit Ex.RA/1, it is mentioned that OP1 received the amount of Rs.11,742/- for issuance of policy in question. In view of receipt of amount of Rs.11,742/-, it is claimed that through Ex.R1/1, a normal policy alone was issued. There is no dispute regarding the fact that as per Corporate Insurance Agency Agreement Ex.R3/1=Ex.OP2/1 executed between OP1 and OP3, OP3 after receipt of the premium amount to inform OP1 and thereafter, after going through the scanned copies of sent documents, OP1 to issue the policy. So, certainly OP3 to act as agent of OP1 in matter of issue of policy after acceptance of the premium amount of Rs.14,646/- from the complainant through cheque.

13.              As per Section 226 of The Indian Contract Act, 1872, contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person. In view of this legal proposition, it is obvious that the contract of insurance entered by OP1 with its customer through agent i.e. Op3,liable to be enforced in the same manner against OP1 as if same is personally entered by OP1. As the authority to accept the premium amount specifically given by OP1 to OP3 and as such, OP3 after acceptance of this premium acted as an agent of OP1, owing to which, liability of OP1to remain as the same as is of OP3 as an agent.

14.              As per Section 231 of The Indian Contract Act, 1872 if an agent entered into a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may have required the performance of the contract; but the other contracting party has, as against the principal, the same rights as he would have had as against the agent, if the agent had been principal. As Corporate Insurance Agency Agreement dated 1.11.2013 was arrived at between OP1 and OP3 and as such, the complainant was having reason to believe as if OP3 accepted the premium amount through its representative i.e. OP2 as an agent of OP1. In view of this, complainant being contracting party, can enforce the same right against principal as well as against the corporate agent as are available with her under the contract agreement.

15.              Section 233 of The Indian Contract Act, 1872 provides that where an agent personally liable, then a person dealing with him may hold either him or his principal, or both of them liable. In view of this legal proposition, complainant can hold both the corporate agent i.e. OP3 as well as the principal i.e. Op1 liable. However, OP2 accepted the premium amount for and on behalf of OP3 and OP1 and as such, liability of OP2 does not remain, particularly when he just after acceptance of the premium on behalf of his principal i.e. Op3 forwarded the same to principal of OP3 i.e. OP1.

16.              Section 237 of The Indian Contract Act, 1872 provides that when an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent’s authority. In the case before us also as OP2 being representative of OP3 made complainant to believe at the time of acceptance of premium of Rs.14,700/- that the insurance policy is corresponding to the received premium amount will be issued and as such, OP2 on behalf of OP3 rendered principal of OP3 i.e. Op1 liable for the obligation incurred that on acceptance of premium amount of Rs.14,700/-, out of  which Rs.14,646/- credited in the account of OP1 by issue of policy cover note Ex.C1.

17.              Copy of Corporate Insurance Agency Agreement executed between OP3 and OP1 has been produced on record as Ex.OP2/1 by OP2, but as Ex.R3/1 by OP3. OP2 through sworn affidavit Ex.RA2 of Sh.Pardeep Singh as well as OP3 through sworn affidavit Ex.RA3 of its special power of attorney Sh.Bhavik Bhardwaj admitted as if after receipt of email from the employee of OP1 regarding car premium calculation of the complainant, Op3 issued cover note for amount of Rs.14,646/-. The said information as per contents of affidavits Ex.RA3 and Ex.RA2 of Ops clearly mentioned that amount received as premium for Dep Cap Insurance policy. Contents of affidavits Ex.RA2 and Ex.RA3 further establishes that after receiving the email information from the employee of OP1, OP3 issued the cover note. Scanned copies of cheque along with other documents were sent to Sh.Gagandeep Singh Rehal, State Banca Head, IBL Chandigarh of OP1 on 27.5.2014. Scanned copies of email information dated 27.5.2014 along with received cheque amount of Rs.14,700/- produced on record as Ex.OP2/3 and OP2/4 along with copy of insurance cover note as Ex.OP2/6 by OP2. Copy of private car premium calculation sheet produced on record as Ex.R3/2 shows as if Rs.3236/- more chargeable as premium for Dep Cap including service tax in addition to the premium of normal policy of Rs.11,410/-. So, these documents along with copy of insurance policy cover note Ex.R3/4 also produced on record by OP3 establishes as if premium amount of Rs.14,646/- for Dep Cap insurance policy was accepted from the complainant by OP3 through its representative i.e. OP2. As OP3 through its representative OP2 accepted the premium for Dep Cap insurance policy from the complainant and as such, the principal i.e. OP1 cannot escape from liability, particularly when clause 6.5 of Corporate Insurance Agency Agreement Ex.OP2/1=Ex.R3/1 provides that responsibility for any deficiency in service rendered to the policyholders solicited and procured by the Corporate Agent,   will remain of OP1. Liability of OP1 to compensate and indemnify the corporate agent against any such loss, expenses, costs etc, actually incurred also stipulated through term 6.5 of Corporate Insurance Agency Agreement Ex.OP2/1=Ex.R3/1. As the premium amount of Rs.14,646/- accepted by OP3 as an agent of OP1 with assurance to the complainant that said amount includes premium for Dep Cap Insurance Policy including service tax and as such, the complainant can hold both OP1 and OP3    liable for issue of the wrong policy,  which  as per claim of OP1 is normal policy   only. After receipt of premium of Dep Cap Insurance Policy, the normal policy for premium amount of Rs.11,272/- (placed on record as Ex.R1/1) could not have been issued. The matter remains between OP1 as principal and OP3 as its agent to see as to where the paid premium of Rs.14,700/- by the complainant through cheque   Ex.OP2/4 has gone. Complainant being customer can hold both principal and agent liable for the illegal act of issue of normal policy by mis-representation. If the premium amount of Rs.14,700/- including service tax accepted for issue of Dep Cap Insurance Policy, then act of issue of normal policy Ex.R1/1 is an unfair trade practice and as such, submissions advanced by representative of complainant has force that OP should be made liable to refund the paid premium amount of Rs.14,700/-. As Op1 and OP3 issued the policy of lesser coverage than the one for which premium accepted and as such, certainly the complainant entitled for the refund of paid premium amount of Rs.14,700/-. Action of OP1 and OP3 in not issue of due policy after acceptance of premium amount of Rs.14,700/-, caused mental tension and harassment to the complainant and as such, keeping in view the facts that the complainant had to appear before this Forum for one year, it is fit and appropriate to award compensation amount of Rs.10,000/- for mental harassment. Corporate Insurance Agency Agreement was between OP1 and OP3 and liability between them to be determined as per term 6.5 thereof and as such, by keeping in view the above said discussion and legal position, it has to be held that liability to refund the received premium amount of Rs.14,700/- to the complainant with interest will remain of OP1 and OP3 only. OP2 duly sent the scanned copies of documents to OP1 as revealed by produced documents i.e.Ex.OP2/1 to OP2/6 and as such, he in no way remained at fault after acceptance of premium amount of Rs.14,700/- from the complainant for and on behalf of OP3, the agent of OP1. So, complaint against OP2 merits dismissal, particularly when he paved the way for due adjudication by producing on record the scanned copies of correspondence held by him with OP1 for and on behalf of his employer i.e. OP3.  

18.              As a sequel of the above discussion, complaint allowed in terms that OP1 and OP3 will refund the paid premium amount of Rs.14,700/- to the complainant with interest @8% p.a. from 28.5.2014 till payment. Compensation for mental harassment of Rs.10,000/- and litigation expenses of Rs.3000/- more allowed in favour of complainant and against OP1 and OP3 only. Liability of OP1 and OP3 will be joint and several. Complaint against OP2 dismissed. Payments referred above be made by OP1 and OP3 within 40 days from the date of receipt of copy of order. Copies of order be supplied to the parties free of costs as per rules.

19.                        File be indexed and consigned to record room.

 

                   (Babita)                                        (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:13.07.2016

Gurpreet Sharma.