Date of filing: 26.12.2016 Date of disposal: 28.05.2018
Complainant: Manju Rani Hansda Hembram, W/o. Ujjal Kumar Hemberam, resident of Arrah
Kalinagar, Bidhan Park, P.O.-Arrah, P.S.-Kanksa, Durgapur-12, Dist.-Burdwan.
-VERSUS-
Opposite Party: Manager, Bajaj Allianz General Insurance Co. Ltd., City Plaza Building, 2nd
Floor, City Centre, Sahid Kshudiram Sarani, Durgapur-16, Dist.-Burdwan.
Present: Hon’ble President: Smt.Jayanti Maitra(Ray).
Hon’ble Member : Dr. Tapan Kr. Tripathy.
Appeared for the Complainant: Ld. Advocate, Tapan Kumar Jash.
Appeared for the Opposite Party: Ld. Advocate, Soumalya Ganguli.
J U D G E M E N T
This is a case u/S. 12 of the C.P. Act for an award directing the O.Ps. to pay Rs.2,89,182/- towards total damage of the vehicle, to pay Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.25,000/- as litigation cost to the complainant.
The complainants’ case in short is that she is the registered owner of vehicle No.WB40Z/6519 (Maruti Alto) which was insured with the O.P. under packager policy of Insurance bearing No.OG-14-2432-1801-00003654 covering the period from 09.02.2015 to 08.02.2016 and the said policy was issued from the office of the O.P., Bajaj Allianz General Insurance Company Ltd. and the risk of own damage and also risk of third party and driver were covered in the said policy.
During the validity period of the policy said vehicle met with an accident on 24.01.2016 at about 3.30 P.M. when one truck bearing No. WB 51A/5498 coming opposite side with high speed dashed the said Alto Car of the complainant near Faridpur Chashipara under Durgapur P.S. As a result said car was totally damaged and the occupants of the said car were seriously injured and the said matter was reported to Durgapur Police Station and Durgapur P.S. started Durgapur P.S. Case No.61/2016 dated 30.1.2016 U/s. 279/338/304A/427 IPC. Thereafter the complainant informed the O.P. about the said accident and damage of the car and lodged claim on 08.02.2016. O.P. did not settle the claim of the complainant by assessing the loss of the vehicle. As per guideline of IRDA, the insurance company is duty bound to settle the claim within one month but the insurance company violated the said guideline of IRDA. The said vehicle is lying at Durgapur P.S. in fully damaged condition.
The complainant several times went to the office of the O.P. for settlement of claim but O.P. is keeping mum about the claim and are avoiding to settle the claim which is illegal and arbitrary and such acts performed by the O.P. clearly indicates the deficiency in service and unfair trade practice on the part of the O.P. and due to non-settlement of claim the complainant has been suffering great mental pain, agony and harassment. Finding no other alternative the complainant has been compelled to file this case before this Ld. Forum for relief.
The O.P. contested this case by filing written version stating inter-alia that complainant had a Private Car Package Policy bearing No.OG-15-2432-1801-00003624 in respect of an Alto Car bearing No.WB 40Z 6519 for coverage of insurance from 09.02.2015 to 08.02.2016. That an amount of Rs.5,672/- was also paid as premium to O.P. in respect to the above mentioned policy. But the complainant has paid the premium through a cheque of State Bank of India, Panagarh Branch bearing No.098163 and cheque was returned to the O.P. Insurance Company unpaid by a return memo mentioning a reason that ‘Drawer’s signature differs/illegible/ required’.
That a letter dated 19.02.2015 which was printed on 23.02.2017 was also sent to the complainant by the O.P. Insurance Company mentioning that the cheque of State Bank of India, Panagarh Branch bearing No.098163 was returned to the O.P. Insurance Company unpaid and so the vehicle will not cover any risk for the above mentioned Insurance Policy and the letter was received by the complainant on her mailing address.
As per police record the alleged accident took place on 24.01.2016 and complainant lodged the complain over the accident on 30.01.2016 vide Burdwan P.S. Case No.61/2016. The reason for delay for filing the complaint was not convincible. This O.P. submits that the case of petitioner is stage managed and for the purpose of getting the claim, false case was foisted. It is surprising that the complainant have not forwarded any letter regarding the incident of accident to the O.P. but in its complaint petition the complainant mentioned that she lodged a claim about the said accident with the O.P. Insurance Company vide a letter dated 08.02.2016 which was never received by the O.P. Insurance Company and so no claim was lodged by O.P. Insurance Company.
It is humbly submitted that complainant furnished a cheque bearing No.098163 draws on State Bank of India dated 16.01.2015 for Rs.5672/- towards insurance premium. Accordingly, certificate of insurance No.OG-15-2432-1801-00003624 was issued subject to realization of the cheque after receipt of the cheque, it was immediately presented for realization. However, it was returned back with endorsement that ‘drawer’s signature required’. The O.P. came to know from their banker about dishonor of cheque along with copy of note issued by banker of the complainant. Thereafter on 19.02.2015 a communication was issued by post in the name of complainant informing her that cheque towards premium has been dishonored and insurance policy stood ‘void and initio’ in view of clause No. IV of IRDAI Regulations, 2002. Therefore, complainant has no cause of action to claim any relief against O.P.
It is also surprising that in the complaint petition the complainant mentioned an Insurance Policy No.OG-14-2432-1801-00003654 which was issued by O.P. Insurance Company but in annexure of the complaint petition she has annexed the policy bearing No.OG-15-2432-1801-0003624 issued by O.P. Insurance Company. It is found by O.P. Insurance Company from its record that the Insurance Policy No. OG-14-2432-1801-00003654 was not valid at the time of accident. Hence this O.P. prayed for dismissal of the instant complaint.
DECISION WITH REASONS
To prove the case the complainant has filed his affidavit-in-chief stating all those facts which she has stated in her petition of complaint. OP filed questionnaires and complainant filed answers to such questionnaires. OP also files its evidence-on-affidavit and thereafter Complainant filed questionnaires and OP files answers to that questionnaires. Argument of both sides heard at length.
Be it mentioned that in the original petition of complaint the policy number was wrongly stated and subsequently complainant amended the complaint petition stating the actual number of the policy. OP stated in his written version, as well as, in his evidence that the complainant purchased a Private Car Package Policy in respect of his Alto Car for coverage of insurance from 09.02.2015 to 08.02.2016. Thereafter the amount of Rs. 5,672=00 towards the premium was paid through cheque of SBI, Panagarh Branch bearing No. 098163 but the cheque was returned to the OP unpaid and returned memo mentioned reason that “Drawer’s signature differs/illegible/required”. The said copy of the cheque is Annex. ‘B’ & ‘C’ for memo is also filed. OP claims that vide letter dated 19.02.2015 he informed the same to the complainant that complainant received the same. To that extent he filed Annex. ‘D’ & ‘E’ but the Annex ‘D’ is a letter of information regarding dishonour of cheque dated 19.02.2015 but surprisingly printed on 23.02.2017and postal receipt filed in this regard is without any date and in reference that whether the same is in relation to the said letter dated 19.02.2015 one signature in Manjurani Hansda Hembram on the A.D. Card without any reference of any date ******* and it is difficult to believe by this Forum whether the said A.D. Card is received by the complainant and it relates to the said letter dated 19.02.2015. Ld. Lawyer for the complainant in this regard stated that complainant specifically stated in his evidence that she was never informed about the dishonor of the cheque nor the cheque was sent back. Complainant also cited the judgment of Hon’ble High Court 2000(2) T.A.C. 145 (MP) of Madhya Pradesh that communication regarding dishonor of cheque to the policy holder should be established otherwise insurer is liable for payment of compensation. That the insurer should have filed best evidence, i.e., receipt of sending postal letter by registered post and Acknowledgement Due that the dishonour of cheque was actually informed to the complainant. Therefore, we can safely conclude that the insurer failed to prove this fact that the complainant received the information regarding dishonor of her cheque. Moreover, Hon’ble High Court of Karnataka as reported in 1999 (3) T.A.C. 304 (Kant.) that liability of Insurance Company that the dishonor of cheque issued towards premium and that the vehicle insured but the cheque towards premium had bounced instead of dishonor, the Insurance Company held liable. (The decision of Hon’ble Apex Court as reported on 22.02.2001 in Appeal (Civil) 1350 of 2001in National Insurance Company Limited Vs. Seema Malhotra and Ors. goes to show if the insured makes up premium even after the cheque was dishonoured but before the date of accident it would be a different case as payment of consideration can be treated as paid in the order in which the nature of transaction required it. As such an event did not happen in this case the Insurance Company is legally justified in refusing to pay the amount claimed by the respondents.) OP also alleges that the incident took place on 24.01.2016 in which the vehicle of the complainant was damaged but the information of the accident was reported to the Durgapur P.S. on 30.01.2016 and the delay in filing the FIR is not properly explained. But from the copy of the FIR we find that the complainant informed the incident to the concerned Police Station on 30.01.2016 wherein she has stated that the vehicle met with an accident by rash and negligent driving of a truck bearing No. WB 51A 5498 and therefore her Alto Car was badly damaged. One of the occupants was declared brought dead in the hospital and the condition of the husband of the complainant due to accident in the car was serious and she was very much in mental shock and pain for treatment of his husband and delay in making FIR has been explained. The copy of the FIR of the Durgapur P.S. Case No. 61/2016 dated 30.01.2016 u/S. 279,328,304A & 427 IPC. It also informed the intimation to the OP-Insurance Company was made on 08.02.2016 stating details of the police case and accident. The copy of the letter is also filed by the OP as Annex. ‘G’. Following investigation the Police filed charge sheet and the vehicle was seized by the Police. A copy of charge sheet and seizure list is also filed. Therefore, the complainant has been able to prove that the vehicle was seriously damaged following the accident and the incident took place during the continuation of the policy coverage period from 09.02.2015 to 08.02.2016. The OP has not been able to prove that the dishonor of the cheque towards premium was properly intimated to the complainant. Therefore, the OP cannot avoid his liability by simply citing the letter dated 19.02.2015 printed on 23.02.2017 and the ground of refusal that non-receipt of the premium amount the contract of insurance is void ab initio in terms of the Clause 4 of IRDA Regulations. As the dishonor of the cheque was not communicated to the complainant and communication has not been established, the OP is very much liable for payment in terms of the policy. The OP kept themselves mum about the claim and not take any steps for survey of the damaged vehicle for settlement of the claim and therefore it is very much deficiency on the part of the OP which causes financial loss, as well as, mental pain, agony and harassment to the complainant. The complainant submits that the ID value of the said vehicle is of Rs. 2, 89,182=00. We find that the complainant is very much entitled to receive the ID value of the said vehicle for total damage and the prayer of the complainant should be allowed. Accordingly, the complainant has been able to prove her case and she is entitled to get the amount which she prayed for. C.F. paid is correct.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 246/2016 be and same is allowed on contest against the OP in part with direction to the OP – Manager, Bajaj Allianz General Insurance Co. ltd., City Plaza Building, 2nd Floor, City Centre, Sahid Kshudiram Sarani, Durgapur – 16, Dist: Burdwan to pay Rs. 2,89,182=00 as insurance amount for total damages of the concerned vehicle within 45 days from the date of passing of this award, in default, it will carry 8% interest for the default period and the OP- Manager, Bajaj Allianz General Insurance Co. ltd., City Plaza Building, 2nd Floor, City Centre, Sahid Kshudiram Sarani, Durgapur – 16, Dist: Burdwan is further directed to pay Rs. 5,000=00 as compensation towards mental pain, agony and harassment and Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this order, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
Jayanti Maitra (Ray)
President
D.C.D.R.F., Burdwan
(Tapan Kr. Tripathy)
Member
D.C.D.R.F., Burdwan
