OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. No. 97/08
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2) Md Jamatul Islam - Member
Mr.Nripen Ch.Deka - Complainant
Son of Annada Charan Deka
Resident of Mathura Nagar,
Asomi Path, H.No.13,
Dispur,Guwahati-6,
District:-Kamrup, Assam
-vs-
1) I.C.I.C.I. Lombard General Insurance Company Ltd. - Opp.parties
Mayur Garden,4th floor,
A.B.C. Bus Stop, G.S.Road,
Guwahati-781005
2) Sri Hironmoy Bora
Office add: Lotus Capital,
Near Chandmari Fly over,
Chandmari, Guwahati-3
Residential Add: C/O-Sri Kiran Bora,
H.No.18, Hear P.P.School, Japorigog, Guwahati-5.
Appearance: Ld.advocate Mr.R.N.Dev Sarma for the complainant and Ld.advocate Mr.Krishna Borah and Mr.Bicharjyo Kashyap for the opp.parties.
Date of argument:- 2.11.18
Date of judgment:- 22.11.18
JUDGEMENT
This is a case U/S 12 of the Consumer Protection Act,1986.
1) The complaint filed by Sri Nripen Ch.Deka against ICICI Lombard, Guwahati and Sri Hironmoy Bora was admitted at 16.9.08 and notices was served on both the opp.parties and opp.parties filed their written statements separately. Thereafter the complainant filed his evidence in affidavit on 29.4.2010 and he was cross-examined by both the opp.parties and oral evidence of Sri Saranan Baruah is recorded as court witness and he was cross-examined by Opp.Party No.1 side only. The Opp.Party No.2 had been absent on 20.1.17 and accordingly this forum vide order dtd.20.1.17 directed that the case against Opp.Party No.2 will proceed on exparte. Thereafter the Opp.Party No. 1 side filed evidence of one, Sri Prasanna Baruah and he was cross-examined by the Ld.counsel of the complainant. Thereafter on 10.8.2018 Ld.advocate Mr.Ramendra Nath Dev Sarma filed written argument for the complainant and Ld.advocate Mr.Bicharjyo Kashyap filed written argument for the opp.party. Thereafter , on 2.11.2018 , we heard oral argument of Ld.advocate Mr.Ramendra Nath Dev Sarma for the complainant and of Ld.advocate Mr.Krishna Borah for the Opp.Party No.1 and today, we deliver the judgment which is as below-
The complainant case is brief is that, on the application of the complainant, Opp.Party No.1 issued a cover- note on 27.1.2007 vide No. PE 4116071 in respect of his vehicle bearing No. AS01/AB 2205, Engine No. GA 64L 47557, Chessis No. MAIPL 2 GAK 62252375 after payment of Rs.22,171/- in cash as insurance premium. But he did not receive any notice from Opp.Party No.1 regarding termination/ cancellation of the said cover- note of the policy. Opp.Party No.2 took all necessary steps during issuance of the said cover- note of the policy. After issuance of the cover- note he requested Opp.Party No.2 on several times to furnish the policy, but the latter ignored his request, but replied that the policy is in his custody with due care and asked him not to think any more regarding the policy. His vehicle met with an accident on 6.9.07 while he was driving and accordingly , he lodged a claim with Opp.Party No. 1 vide claim No. M0T 00593493 dtd.24.9.2007, and one surveyor by name Mr.Faruque surveyed the matter and Opp.Party No.2 informed him that his claim was accepted by Opp.Party No.1 and payment would be made within 31st Dec. 2007. The complainant received a letter dtd. 5.11.2007 from Opp.Party No.1, wherein, it is stated that his claim is not admissible as per terms and condition of the policy as the policy against the said cover- note is not valid. He, then, sent a legal notice to Opp.Party No.1 on 23.1.2008 with a copy to Opp.Party No.2, but the opp.parties did not send any reply to him. After receiving the said notice , he failed to make payment of EMI’s to ICICI Bank Ltd. due to denial of his claim by Opp.Party No.1. In the said accident, he sustained severe injury which shattered his physical frame and mind, and he became permanently disabled by 100% after amputation of his right hand; and he also incurred expenditure of Rs.1,00,000/- towards his treatment and his vehicle was also completely damaged, and he incurred Rs.80,000/- towards repairing of his vehicle. He submitted all relevant documents to Opp.Party No.1 . He is entitled to get Rs.1,00,000/- as compensation due to permanent disability he sustained as per norms of package policy and Rs.80,000/- towards repairing of the vehicle with interest @ 12% per annum from the date of lodging the complaint. The cause of action arose on 24.9.2007, 5.11.07, 23.1.2008 etc.
2) The pleading of Opp.Party No.1 (ICICI Lombard General Insurance Company) is that this forum has no jurisdiction to disposed of the present complaint . No relation as “service provider” and “consumer” had been made between them and the complainant . There is no cause of action for filing the complaint. The complainant is not registered owner of vehicle No. AS01/AB 2205, Engine No. GA 64L 47557, Chessis No. MAIPL 2 GAK 62252375 .They had not received an amount of Rs.22,171/- from the complainant towards payment of insurance premium and they also did not under-take any risk of the complainant. When premium is paid by way of cheque, the policy is issued after realization of the same. But no payment was received by them in cash or by cheque from the complainant . The cover- note mentioned by the complainant was lost by their agent (M/S Lotus Capital) and said agent vide a letter on 9.7.2007 reported them that certain cover note including the concerned cover note was lost by them, and hence they are not liable to any claim arising from the lost cover- note. No valid cover- note as stated by complainant can be said to have been issued in favour of the complainant, and as such , question of cancellation/ termination of cover note of the policy does not arise. They received accident information about making of accident by said vehicle on 6.0.07 and in good faith, they registered the claim filed by the complainant and took steps towards processing the claim, but they found that there was no policy in existence in favour of the complainant and hence they, vide letter dtd. 5.11.2007, informed the complainant that the said cover- note was not valid and that claim was not admissible. The complainant did not submit documents relating to his termination as well as documents relating to repairing of the vehicle including MVI report to them and as such, they have no legal liability to pay compensation to him The vehicle was driven by the complainant without valid and effective licence in violation of statutory provision of Motor Vehicle Act, 1988 and as such, they are not liable to pay any compensation to the complainant in future. They are not liable to pay any compensation claimed by the complainant. As per cover- note produced, the date of issue of the cover note is 27.1.2007 and same would be valid for another sixty (60) days i.e. 27.3.2007, not in further. The accident had taken place long after the said validity period, and as such, they are not liable to pay any compensation to the complainant.
3) The pleading of Opp.Party No.2 is that the complaint is not maintainable ; it is frivolous and vexatious . He is not one of agents of Opp.Party No.1, but he is the proprietor Direct Sales agency of ICICI bank Ltd. and he did process documents of the complainant for the purpose of availing loan from the said bank for purchasing the vehicle in question. The complainant purchased the vehicle availing the loan from the said bank. The complainant had not paid amount of Rs.22,171/- in cash as insurance premium for his vehicle, but the complainant had issued a cheque bearing No. 469906 dtd. 27.1.07 drawn on United Bank of India for an amount of Rs. 16,000/- assuring to make payment of remaining amount on 29.1.07 and he, on good faith, processed the papers of the policy and handed over the cover- note to the complainant for facilitating the delivery of the vehicle to him, but on Monday morning the complainant informed him that he would be insuring the vehicle with another insurer and he would come to collect the cheque book at a subsequent time. The complainant did not make payment of the premium amount to the opp.parties, for which, the cover- note stand cancelled from the very inception. The cover- note was never issued for no consideration received by cash, and as such, there is no question of receiving the insurance amount in cash by him. The complainant made out a concocted story of payment of insurance amount in cash. The cover- note was issued by package policy which was subject to certain terms and conditions, but the cover- note are never issued against cash payment and as such cover- note is subject to release of cheque which is found from the cover- note itself. The complainant has failed to make payment of the insurance premium and so the cover note is invalid. After issuance of the cover- note, the policy is issued only after realisation of cheque amount, but in the instant case, the complainant did not make payment of the premium amount, and as such question of issuance of policy does not arise. In such situation, the cover- note automatically cancelled due to non-payment of premium. The complainant never requested him in any occasion after issuance of the cover- note to give the policy and he himself did not report to the complainant that the policy is in his custody and asked the complainant not to thick any more regarding the said policy. On the next day of issue of the cover- note, the complainant told him that he would insure his vehicle with another insurer. He never informed the complainant that complainants claim was accepted and Opp.Party No.1 processed the claim and the payment would be made within 31st Dec.2007. Opp.Party No.1 rightly repudiated the claim of the complainant as the complainant failed to pay the premium. The complainant did not submit any documents to him and hence question of submission any document does not arise at all. The complainant was asked to submit the money receipt of the payment of premium, but he failed to submit the same. The complainant issued a valid cheque for an amount of Rs.16,000/- out of Rs.22,171/- promising to pay to make payment of the remaining amount on the next working day, but he failed to pay the amount , rather informed him that he will do insurance of his vehicle with another insurer; and as such, the cover- note stood automatically cancelled for non-payment of premium. The complainant is not entitled to any compensation from Opp.Party No.1 or from him. The complainant filed the instant complaint for wrongful gain; and there is no cause of action for filing the complaint.
3) We have perused the pleading as well as evidence of the parties. We have found that it is both side’s admitted fact that the vehicle of the complainant bearing registration No. AS-01/AD-2205 (Engine No. GA 64L 47557, Chessis No. MAIPL 2 GAK 62252375) had met with an accident on 6.9.07 and got badly damaged and about the accident the complainant inform the Opp.Party No.1 in due time and the complainant also filed a claim before the Opp.Party No.1 vide claim No. MOT 005 93493 dtd. 24.9.2007 , but Opp.Party No.1 vide their letter dtd. 5.11.07 inform the complainant that the complaint is not admissible as the cover- note , he had filed, is not valid.
4) Complainant states that after the accident he repaired his vehicle incurring an expenditure of Rs.80,000/- . We have perused the evidence of the complainant and found that he states that, he spent Rs.80,000/- in repairing his vehicle after the accident. He, to proof his claim, submitted repairing bills vide Ex.14 and Ex.14(1). We have perused Ext.14 and it is found that, Ext.14 is a retails invoice of purchasing parts to the tune of Rs. 1,32,085.33 of the vehicle of the complainant by Ram Narayan Shew Prasad, Jorhat and Ext.14(1) is the Invoice of charge of repairing to the tune of Rs.2,91,050/-, but complainant is not claiming entire amount of this two invoices , but claim only Rs.80,000/- towards repairing cost. From Ext.14 and 14(1) it is seen that this two documents prove the claim of the complainant that, the complainant spends a good sum in repairing his vehicle. As the complainant claim only Rs.80,000/- towards repairing charge, it can be said that he seeks lesser amount against his total expenditure of Rs.423135/- which he incurred in repairing his vehicle after the accident. Therefore, we are of opinion that, if the vehicle of the complainant is found covered under a policy issued by Opp.Party No.1, then the complainant would be entitled to get Rs.80,000/- re-imbursed by Opp.Party No.1 towards the expenditure of repairing of his vehicle.
5) The complainant further states that in the said accident he got grievious injury and got his right hand amputated and that caused him permanently disabled by 100% and therefore for such injury he is entitled to get compensation of Rs.1,00,000/- from Opp.Party No.1. We have found that compensation for bodily injury sustained by the owner, driver, passengers etc. is a subject to be decided by Motor Accident Claim Tribunals established under Motor Vehicle Act,1988. Therefore, this forum has no jurisdiction to adjudicate upon the dispute of not giving compensation to the complainant by the Opp.Party No.1 for permanent disability sustained by the complainant in the said accident. To dispose of this dispute the complainant has to approach Motor Accident Claims Tribunal.
6) Now, big question is that whether the vehicle of the complainant was covered under any policy issued by Opp.Party No.1. In this respect the plea of the complainant is that he had approached Opp.Party No.1 for issue policy against his said vehicle and Opp.Party No.1 also issued a cover- note vide No. PE 4116071 after payment of Rs.22,177/- in cash as premium and Opp.Party No.2 all necessary steps during the insurance of aforesaid cover- note/policy and after issuance of the said cover- note he approached Opp.Party No.2 to furnish the policy to him and the latter asked him not to think any more regarding the policy and told him that the policy was with his custody. It is found that opp.party side indirectly admits that the said cover- note was issued by them but it had been lost by Lotus Capital who is their Agent in procuring insurance policy. The second plea of the opp.party is that, the complainant have not paid Rs.22,171/- in cash towards the premium of insurance of the vehicle of the complainant. We have perused the evidence of the complainant and found that the complainant has exhibited copy of said cover- note as Ext.1 without objection from the Opp.Party No.1 meaning thereby that Opp.Party No.1 admits that Ext.1 is the said cover- note. As Ex.1 is copy of the cover- note which is admitted by Opp.Party No.1 . We have to based on this document to give our decision. After perusing the cover- note, it is clearly found that the said cover- note was issued by the official of Opp.Party No.1 insuring the said vehicle of the complainant for the period w.e.f. 27.1.2007 to 26.1.2008 after taking payment of Rs.22,171/- in cash from the complainant . Thus, it is establish that on 27.1.2007 the complainant had approach Opp.Party No.1 through Opp.Party No.2 namely, Shri Kiranmoi Bora of Lotus Capital, Chandmari (Agent of Opp.Party No.1 ) and he paid Rs.22,171/- to Opp.Party No.1 in cash towards payment of premium and Opp.Party No.1 after receipt of the said amount issued Ext.1 cover note (PE 4116071) insuring his vehicle for the period 27.1.2007 to 26.1.2008. It is fact that the policy was not handed over to the complainant although it was the burden of Opp.Party No.1 to send the policy to the complainant.
It is also fact that the said cover- note was not cancelled by Opp.Party No.1 and no information about invalidness of said cover- note was given to the complainant . Hence , we hold that the cover- note is not invalid cover- note and the said cover- note is clearly a certificate of insuring of the said vehicle of the complainant by Opp.Party No.1 covering the period with effect from 27.1.2007 to 26.1.2008. So, in such situation , non delivery of concerned policy to the complainant does not make the said insurance cancelled or rejected. It is also found that the vehicle of the complainant had met with the accident on 6.9.07 i.e. within effectiveness of said insurance. Therefore, we hold that the Opp.Party No.1 side is liable to re-imburse the expenditure incurred by the complainant in repairing his vehicle after the accident.
7) Basing on above discussion , we hold that , Opp.Party No.1 is liable to re-imburse Rs.80,000/- to the complainant towards repairing of his vehicle after the accident. Therefore, repudiation of the claim of the complainant by Opp.Party No.1 is quite illegal and also an act of deficiency of service and Unfair Trade Practice. So, according to us Opp.Party No.1 is liable to pay Rs.80,000/- to the complainant as re-imbursement of repairing charge he had incurred in repairing his vehicle after the accident along with interest @ 6%p.a. from filing of this complaint (16.9.08) and also to pay him at least Rs.10,000/- for causing harassment and mental agony to him as well as Rs.10,000/- as cost of the proceeding.
8) Summing up our discussion as above, we hold that, the complainant has strong cause of action against Opp.Party No.1 (ICICI Lombard General Insurance Co. ,Guwahati branch, G.S.Road) but he has no cause of action against Opp.Party No.2 and he has succeeded to prove his case against Opp.Party No.1. Accordingly, the complaint against Opp.Party No.1 is allowed on contest and against Opp.Party No.2 is dismissed on exparte, and Opp.Party No.1 is directed to pay Rs.80,000/- along with interest @ 6%p.a. from 16.9.08 till full satisfaction of the award towards the re-imbursement of expenditure made by the complainant in repairing his vehicle and also to pay Rs.10,000/- as compensation for causing harassment and mental agony to him as well as Rs.10,000/- as cost of the proceeding . They are directed to pay the awarded amounts, within 45 days and, in default, other two amounts shall also carry interest at the same rate from today till full satisfaction of the award.
Given under our hands and seals of this day of 22nd Nov.2018.
(Md. Jamatul Islam) ( Smt A.D.Lahkar ) (Md. Sahadat Hussain)
Member Member President
