D.o.F: 17/7/09

D.o.O:05/4/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                CC.169/09

                        Dated this, the 05^th  day of April 2010.

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                : MEMBER

SMT.P.P.SYAMALADEVI                           : MEMBER

Vishwanatha Bhat.K,

S/o Late Krishna Bhat,

R/at Kumara  Kripa, Kangannar House,     : Complainant

Badiadka,Kasaragod

Jasleen Kohli,Head Direct-

Bajaj Allianz General Insurance Co.Ltd,     : Opposite party

Yerawuada, Pune-6

                                                      ORDER

SRI.K.T.SIDHIQ            : PRESIDENT

      The short but interesting question that is posed before us for consideration is whether Sec.64 VB of the Insurance Act  could be made applicable in this particular case where the insurer failed to collect the premium made by way of cheque already issued by the insurer . 

The facts of the case is as follows:

    The complainant , who is the RC owner of the car bearing Reg.No.KL-14/E 3867 insured  his vehicle with the Bajaj Allianz General Insurance Co.Ltd headed by the opposite party herein. A policy is issued by the opposite party relating to  the period between 18/1/2008 and 17/1/2009 (Although in the complaint the insurance period is wrongly shown as 18/8/2008 to 17/1/2009) as per policy No. OG-08-1005-1801-66811378).  The premium for the policy was Rs.3466/-.  The complainant remitted  the premium by way of cheque drawn on Perdala Service Co-op Bank Neerchal  where he maintains an account in his name.  Admittedly he also  working  as the Secretary of the concerned bank.  That  on 10/1/09 the vehicle underwent  damage in a road accident.  The surveyor assessed the damages  to the tune of Rs.9904/-.  This fact was timely intimated to the opposite party who rejected his claim on the ground that there is no valid insurance coverage  at the time of the road accident.  Hence the complaint  seeking  proper relief and compensation in the interest of justice.

2.   According to opposite paty, the cheque issued by the complainant towards the remittance of premium was  dishonoured by the banker due  to insufficiency of fund in the account maintained by the complainant.  The  factum of dishonour of cheque and the cancellation of policy was already informed to the complainant and it is contended that policy issued to the complainant is void abinito due to the non receipt of consideration for entry in to the insurance contract .  According to them this is seen as a clear violation of Sec.64 VB of the Insurance Act 1938.  Opposite party even dispute the factum of damages caused to the vehicle and the amount spent by way of repair.  According to opposite party hence the complainant is not entitled for any reliefs claimed in the complaint and the complaint is liable to be dismissed.

3.   Complainant filed proof affidavit in support of his case and Exts.A1 to A9 marked on his side.  He faced cross examination by the counsel for opposite party.  The opposite party neither  adduced oral or documentary evidence to substantiate their contentions.

4.   As afore posed  whether the opposite party can take shelter under Sec.64 of VB of the insurance Act to save themselves from  the liability of payment of compensation due.  Our answer is negative.  The opposite party cannot take shelter under 64 VB  of the Insurance Act  Because opposite party failed  to substantiate their contention by adducing cogent evidence in support of their contentions.  It is the case of the opposite party that the cheque already issued by the complainant towards remittance of the premium bounced back as a result of “ insufficiency of funds” in the account maintained by the complainant with the  Bank where to the cheque is said to be drawn.  Had the cheque bounced as alleged  by them the opposite party would have produced relevant  documents  like dishonoured cheque, cheque return memo etc to substantiate their contentions.  The non production of the said documents are fatal as far as the contentions of the opposite party is concerned.   The Hon’ble  Supreme Court  in the case of Gopal Krishnaji Kekkor vs. Mohammed Haji Latif and ors. Reported in AIR 1968 SC 1413 has held that ‘ If a party is possession of best evidence which would throw light on the issue in controversy withholding   it, then the court ought to draw an adverse inference against him  not with standing  that onus of proof does not lie on him.  Further the explanation clause to Sec.64 VB says “ where the premium is tendered by postal money order or cheque sent by post, the  risk may be assumed on the date on which the money order is booked or the cheque is posted  as the case may be.”

5.   On a plain reading of the explanation of Sec.64VB itself  it is clear that the risk would have been assumed on the date on which the cheque is posted or delivered.  It is seen that accident occurred on 10/1/2009 which is approximately 11 months from the date of insurance coverage.  Apart from that, there is another reason to strengthen the case of the complainant Ext.A9 is the  extract of statement of account maintained by the complainant in Perdala Service Co-op Bank Ltd during the period  between 1/12/07 to 2/12/2008 .  It shows that at the relevant point of time  the account had sufficient fund to honour  the cheque issued by him towards the remittance of premium.  No where it is shown that the cheque issued to the opposite party is brought for collection .  Therefore the only possible inference  is that the  cheque  issued by the complainant to opposite party towards the payment of premium was never at all been presented  for collection in the account maintained by the complainant.  Under the circumstances no fault can be attributed to the complainant.

6.   For the above reasons we have no hesitation to hold that the opposite party has committed deficiency in service  and therefore  they are liable to compensate  the complainant for the loss and hardships sustained by him.

7.  Reliefs & Costs:

   The surveyor  deputed to assess damages caused to the complainant’s  vehicle figured the amount at Rs.9904/-  More over the complainant is also entitled to the compensation on account of  complacency amounting to deficiency in service  on the part of opposite party for  which we  fix a sum of Rs.5000/-.

    Therefore, the complaint is allowed and opposite party is directed to pay Rs.9904/- to the complainant with a compensation of Rs.5000/- and a cost of Rs.2500/-.   However, the opposite party is at liberty to deduct the premium amount of Rs.3466/- from the said amount since it is seen that the opposite party has not collected the premium as per  the cheque issued to them.  Time for compliance is 30 days from the date of receipt of  copy of the order.  Failing which the opposite party shall be liable to pay interest for Rs.9904/- @ 12 % per annum from the date of complaint till payment.

MEMBER                               MEMBER                           PRESIDENT

Exts;

A1-,A3,A4- Cash memo

A2-Gate pass

A5- Badge

A628/2/09- copy of lawyer notice

A7- Postal acknowledgment

PW1-Vishwanatha Bhat- complainant

MEMBER                               MEMBER                                          PRESIDENT