KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 216/10
JUDGMENT DATED 14.12.11
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
The Branch Manager, HDFC Bank Limited,
VGP Building, Near Iron Bridge, : APPELLANT
Kollam.
(By Adv. V.S. Bhasurendran Nair)
k
Vs
Clifford Fernandaz, Cliff House,
Kadappakada P.O., Kollam. : RESPONDENT
(By Adv. S. Reghukumar)
JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR: MEMBER
The order in CC 7/07 of CDRF Kollam is being assailed in this appeal by the opposite party. As per the impugned order the opposite party is under directions to pay to the complainant a sum of Rs.38,000/- with interest at 9% p.a from the date of complaint till realization and cost of Rs.2,000/ - to be paid within 1 month from the date of the order.
2. The complainant has approached the Forum stating that he had joined in a Health Insurance Policy promoted by the New India Assurance Company through its Ottapalam Branch during the year 2002 for a sum of Rs. 2,00,000/- and that he was renewing the policy every year. It is his case that he had drawn a cheque dated 23.5.2005 for Rs.5,441/- out of the account maintained by him with the opposite party to the New India Assurance Company Ltd., for the renewal of the premium for the Insurance Policy for the 3rd year and has entrusted the same with the office of the Insurance Company at Ottappalam and that the cheque, sent to the opposite party for collection, was returned stating “funds insufficient”. The complainant has stated that there was enough amount in his account for honoring the cheque and due to the dishonor of the cheque, the policy of the complainant got lapsed. It is his further case that due to the lapse of the policy, he had lost the continuation of the policy along with the benefit of free medical checkup to Rs. 50,000/-. Alleging deficiency in service on the part of the opposite party the complainant sought for directions to the opposite party to pay sum of Rs.4,75,000/- as compensation and cost of the proceedings.
3. In the version filed by the opposite party, it was submitted that the complainant had deposited the cheque directly to the Insurance Company which was sent to the opposite party for clearance and as per the rules, the above cheque ought to have been routed through the clearing bank of the concerned area, the State Bank of Travancore, Kollam Main Branch. It was further submitted that instead of sending the cheque to the above said branch, the cheque was directly sent to the opposite party and they returned the same to the Ottappalam Branch for presenting through the proper clearing branch of the SBT. It was also submitted that while returning the cheque they could not endorse the reason for not honoring the cheque. It was also submitted that the X mark in the column “fund in sufficient” was not entered by the opposite party and the complainant did not produce the original of the cheque return memo along with the complaint. It is the case of the opposite party that the complainant had approached the Forum with unclean hands.
4. Before the Forum the complainant was examined as PW1 and Exts. P1 to P10 were marked on his side. The opposite party was examined as DW1 and Exts. D1 to D3 were marked.
5. Heard both sides.
6. The learned counsel for the appellant/opposite party vehemently argued before us that the order of the Forum below directing the appellant to pay Rs.38,000/- with interest is perse unsustainable as the Forum has not appreciated the documents produced by the opposite party and the evidence tendered by the Branch Manager. Inviting our attention to Ext. D3 the learned counsel advanced the contention that as per entry in Ext. D3 it could be seen that the cheque was returned to the sender for presenting the same through SBT Kollam. It is also his case that the cheque was sent to SBT Ottappalam. The learned counsel has advanced the further contention that the complaint is a belated one and complainant has not produced the original of Ext. P3 the cheque return memo. He has also a case that the complainant had enough time to contact the opposite party when he received the cheque return memo and the delay in filing the complaint has to be viewed suspiciously. The learned counsel has further submitted that the Forum below had failed in appreciating the fact that the DW1 has specifically deposed before the Forum that as per the rules the cheque ought to have been presented through SBT Kollam branch and it was for the said reason that the cheque was returned to SBT Ottappalam. Arguing for the position that there was no deficiency in service the learned counsel submitted that the appeal is to be allowed setting aside the order of the Forum below.
7. On the other hand, the learned counsel for the respondent/complainant opposed the contentions of the learned counsel for the appellant. It is his very case that the opposite party ought not have the returned the cheque for the reason ‘fund in sufficient’ as there was enough funds in the account of the complainant at the time of presenting the cheque. He has also submitted that by dishonoring the cheque, the complainant lost the benefit of additional coverage of Rs.50,000/- and also that the complainant lost the coverage of certain deceases covered under policy. He has also filed a petition to accept four documents which were omitted to be presented before the Forum below and submitted that the documents would show that the complainant was very particular in having Hospitalization and Domiciliary Hospitalization Benefit Policy from time to time. The learned counsel argued for the position that the order of the Forum below is only to be upheld and the appeal is dismissed.
8. On hearing both sides and also on perusing the records we find that it is the admitted case of both the parties that the complainant had issued a cheque for Rs.5,441/- for renewing his policy and the cheque was presented to a branch office of the Insurance Company at Ottappallam. It is also found that the said cheque was presented to the SBT Branch at Ottappalam which in turn was sent to the opposite party for clearing. The opposite party would argue that as per the rules the said cheque ought to have been presented through the SBT Kollam Branch and as the same was sent directly to the opposite party they returned the same to the ottappallam branch for presentation through SBT Kollam. In support of the said argument, the opposite party produced Ext. D3. On a perusal of Ext. D3 it is found that the cheque for Rs.5,441/- was returned to SBT Ottappalam. The reason shown is “Present for clearing through SBT Kollam”. The Forum below has found that since the cheque was dishonored for ‘insufficient funds’ when there was sufficient fund, it was deficiency in service on the part of the opposite party which resulted in loss to the complainant. It is argued by the learned counsel for the appellant that the complainant has not produced the original of Ext. P3, the cheque return memo. The learned counsel for the respondent countered the argument by submitting the original was with the insurance company and only a copy was given to the complainant. If that be so, either of the parties can take steps for the production of the original from the Insurance Company and prove their claim regarding the noting of insufficient funds’. Moreover, respondent/complainant has produced certain documents which are stated to be essential for the adjudication of the dispute involved in the complaint. In the said facts and circumstances we find that a remand of the matter is inevitable for the proper disposal of the complaint after giving opportunity to both sides, to substantiate their rival contentions.
In the result, the appeal is allowed. The matter is remitted back to the Forum below for fresh disposal after giving opportunity to both sides to adduce further evidence.
The office is directed to send the IA1361/10 and the documents submitted there with along with the LCR to the Forum below.
The parties are directed to appear before the Forum on 23.1.2012 for further proceedings.
In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR : MEMBER
DA
