Chandigarh

DF-I

CC/840/2017

Shri Balwan Singh - Complainant(s)

Versus

Cholamandalam MS General Insurance Co. Ltd. - Opp.Party(s)

Rose Gupta

09 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

                                               

Consumer Complaint No.	:	CC/840/2017
Date of Institution	:	01/12/2017
Date of Decision	:	09/10/2019

 

1. Shri Balwan Singh son of Shri Jeet Ram, resident of House No.15, Village Chandrawal, District Fatehabad.
2. M/s Mohan Fourwheel Private Limited, Village Chikanwas, Near Kalpana Chawla College, Sirsa Road, Hisar through its Director Shri Himanshu Garg son of Shri Narender Kumar Garg, resident of House No.30, Sector 14, Hisar.

… Complainants

V E R S U S

1. Cholamandalam MS General Insurance Company Ltd., through its Director, having its Registered Office & Head Office at Dare House, 2^nd Floor, No.2, NSC Bose Road, Chennai – 600001.
2. Cholamandalam MS General Insurance Company Ltd., Chandigarh Branch, SCO No.2463-2464, 1^st Floor, Sector 22C, Chandigarh through its Manager.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Ms. Anita Kumari, Vice Counsel for Sh. Rose Gupta, Counsel for complainants
	:	Sh. Sanjeev Arora, Counsel for OPs

 

Per Rattan Singh Thakur, President

1.           The long and short of the allegations are, complainant No.2 is a Private Limited Company and it had appointed Sh.Himanshu Garg as its Special Power of Attorney.  Complainant No.1 on 11.11.2015 had purchased one Eicher-1110 Truck No.HR-62-6718 from complainant No.2 which was insured with OPs vide motor proposal form valid from 11.11.2015 to 10.11.2016 for a sum of Rs.8,10,000/-. Averments are, there was internal arrangement between OP-2 and complainant No.2 for cashless zero depreciation policy of all vehicles sold by complainant No.2 including the vehicle purchased by complainant No.1, Sh. Balwan Singh. Complainant No.2 had paid the insurance premium of the vehicle amounting to Rs.33,470/- to OPs through account payee cheque dated 30.11.2015.  However, no policy was issued by the OPs. The vehicle in question met with an accident on 28.5.2016 and it was got inspected before repair by Sh. Jaswant Singh Nain, independent government approved surveyor.  FIR was also lodged in the Police Station Kasimpur, District Hardoi (UP) and the vehicle was released to complainant No.1 under the orders of Additional Civil Judge (Jr. Division), Hardoi on 18.6.2016.  Complainant No.2 prepared the repair estimate to the tune of Rs.7,37,583/- on 25.6.2016. The surveyor appointed by OPs had recommended total loss at Rs.6,50,152/- and it was not paid by OPs to complainant No.1.  Even the expenses of surveyor to the tune of Rs.7,360/- were paid by complainant No.2.  However, OPs repudiated the claim on the ground vehicle in question was not insured in favour of complainant No.1. Complainant No.2 claimed the amount of Rs.6,50,152/- alongwith surveyor fee, towing charges, 50% of premium of Rs.33,470/-, sum of Rs.2,00,000/- as compensation besides litigation expenses. Hence, the present consumer complaint.
2.         Initially OPs had not filed their reply despite availing many chances and their defence was struck of vide order dated 27.7.2018.  However, the OPs carried the matter before the Hon'ble State Commission, UT, Chandigarh by way of RP No.36 of 2018 and the order passed by this Forum was set aside and the OPs were permitted to file their reply.  Accordingly, the OPs filed their reply. Per reply furnished by OPs, their line of defence is, complainant No.2 or complainant No.1 had never paid the premium with respect to the insurance policy.  It is also the case, proposal form was not signed by the OPs and this is a fraudulent and forged document.  On these lines, the cause is sought to be defended.
3.         Rejoinder or rebuttal evidence was not filed by the complainant despite availing many chances and vide order dated 6.8.2019, the opportunity to file rejoinder or rebuttal evidence was closed under the orders of this Forum.
4.         Parties led evidence by way of affidavits and documents.
5.         We have heard the learned counsel for the parties and gone through the record of the case. After appraisal of record, our findings are as under:-
6.         At the very outset, we may take note here, per averments made in the consumer complaint, date of purchase of the vehicle in question bearing HR-62-6718 appears to be 11.11.2015. Further, according to the averments made in the consumer complaint, complainant No.2 had insured the vehicle on payment of premium of Rs.33,470/- to the OPs vide cheque dated 30.11.2015.  If the date of purchase is 11.11.2015, how the premium for insurance was paid on 30.11.2015 is not clarified either in the evidence in the form of affidavit or in the averments made in the consumer complaint.
7.         Per the averments made by the complainants, in spite of receipt of premium of Rs.33,470/- on 30.11.2015, no insurance policy was issued by the OPs. Thus, suffice it to say, on the date of accident, i.e. 28.5.2016, there was no certificate of insurance either in the name of complainant No.2 or in the name of complainant No.1, therefore, the matter of vehicle being insured, on the date of accident, is out of question.
8.         Per claim of complainant, premium was paid through cheque, but the reply of the OPs is, this amount which was transferred in the account did not pertain to vehicle HR-62-6718.  No evidence was led by the complainants to prove this amount confined to the vehicle in question.  There is another document Annexure C-4 which shows it is a motor proposal form on which premium of Rs.37,868/- was paid and proposed period of insurance was 11.11.2015 to 10.11.2016 which was allegedly issued by the OPs.  According to the OPs, they had not issued this proposal form nor their authorized representative had signed it so as to bind it.  Moreover, it is the admitted case of the complainants, no such insurance policy despite receipt of premium was issued by the OPs. It is a question to be gone into by leading expert evidence and examination of witnesses of OPs authorized person had signed the motor proposal form or not?  Moreover, in the instant consumer complaint, relief was prayed in favour of the seller i.e. complainant No.2 and not complainant No.1.  This further creates a complex question of law and fact and needs detailed investigation by way of leading evidence of the parties in the form of chief examination, then cross examination and expert opinion with regard to the hand writing and signatures of alleged authorized person of the OPs needs to be compared by the questioned document examiner to arrive at a finding of the same being signed by the representative of the OPs or not. 
9.         It is pertinent to take note of here, with regard to the denial of allegations, complainants had not furnished rejoinder to rebut the allegations made in the reply submitted by the OPs to the consumer complaint which pertains to the fraudulent behavior as well as forgery committed by the so called representative of the OPs.  Moreover, vehicle is now in the ownership of complainant No.1 who allegedly purchased it from complainant No.2 while the consumer complaint is being filed for the benefit of the seller i.e. complainant No.2. The case is, vehicle was purchased on 11.11.2015 and the insurance money of Rs.33,470/- was allegedly paid on 30.11.2015. Then how the policy was issued from 11.11.2015 to 10.11.2016 is not understandable. Moreover, under what circumstances the policy was not transferred in favour of complainant No.1 by complainant No.2 is not understandable.  The mandate of Section 157 (2) of the Motor Vehicles Act, 1988 is reproduced below :-

                        “157. Transfer of certificate of insurance.     

                        (2)    The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.”

 

There are no reasons assigned for not getting the insurance certificate transferred within the time frame as envisaged in the aforesaid provisions of the Motor Vehicles Act, and now the claim is being made on behalf of complainant No.2.

10.         There are various self contradictory documents few of which have been referred above and it has become a complex proposition of law and fact which is not easy to be determined in a summary manner as per mandate of Consumer Protection Act, 1986.  In case titled as Harbans & Co. Vs. State Bank of India, II (1994) CPJ 456 it was observed when the case is not a simple case of deficiency in service and involves determination of complex questions of facts and law, which cannot be satisfactorily determined by the redressal agency in the time frame provided under the rules, it would be better for the complainant to seek redress of his grievances in a civil court, if so advised.  Further in case Jayantilal Keshavlal Chauhan Vs. The National Insurance Co. Ltd., 1994 (1) CPR 396 it was observed if fraud is alleged, it is desirable that the complainant should be directed to civil court as investigation about such fraud is required to be done. 
11.         The complainants in the civil suit can claim protection of Section 14 of the Limitation Act, 1963 to exclude the period of limitation as they bonafidely fought this case before this Forum and the complex questions of law and fact needed to be decided by the civil court which will have a detailed investigation.  In so far as the present consumer complaint is concerned, it is hereby dismissed, leaving the parties to bear their own costs.  However, the complainants, if so advised, may agitate their claim before the civil court. 
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
09/10/2019	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President