DOF.28.8.2010 DOO.26.4. 2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 26th day of April 2011 CC.213/2010 Rajesh, Karayambrath House, P.o.Ponniam East, Thalassery. Complainant (Rep. by Adv.P.Raghunathan) Manager, M/s.New India Assurance Co. Ltd., Sadhoo Building, Ner Municipal Bus stand, Kannur 1. (Rep. by Adv.V.K.Rajeev) Opposite parties O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to refund the insurance premium amount of ` 10,946 with cost of this proceeding. The case of the complainant in brief is as follows: The complainant purchased vehicle under Hire Purchase agreement with IndusInd Bank and was insured with Cholamandalam M/s. General Insurance Co. Ltd., Policy has been renewed usually by the Finance Company and the premium is deducted from the owner of the vehicle.. It is a custom followed by the Finance companies. IndusInd Bank renewed the policy during the period from 1.9.09 to 31.8.2010. Without the knowledge of renewal by the finance company the owner insured vehicle with New India Assurance company Ltd., with effect from 1.9.09 to 31.8.10 resulting in double insurance coverage. Realizing this fact complainant approached the opposite party and requested refund the premium, opposite party requested to submit the original insurance policy and complainant made declaration. But on 4.8.2010 opposite party informed that they are not inclined to refund the premium. On 5.89.10 complainant sent lawyer notice and opposite party sent reply denying the averments in notice. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version contending that the claim of the complainant for cancellation of the insurance policy (1.9.2009 – 31.8.10) is not maintainable as per the rules and regulations. The policy taken from the opposite party is prior to the insurance policy taken by the financier of the vehicle. The financier is not made as a party. The other insurance company also not made as a party. The complaint is bad for non joinder of necessary parties. The financier bank and the M/s.Cholamandalam General Insurance Company are necessary parties. It is the IndusInd Bank who took insurance with M/s. Cholamandalam General Insurance without the knowledge of complainant. Hence bank is liable for the loss and not the opposite party, if complainant is entitled for cancellation of the subsequent policy. So the IndusInd Bank and Cholamandam General Insurance Company have to redress the grievance of the complainant. If the complainant had the knowledge that renewal of insurance policy is usually done by the finance company as a custom he should not have opted to take an insurance policy with the opposite party without at least making an enquiry. Hence the insurance policy by the opposite party to the complainant on the basis of the proposal made by him cannot be construed as an act of unfair trade practice or deficiency. If at all he had taken another policy and wanted to cancel one among the two he should have done it immediately after knowing the fact. He cannot say he was not aware till 17.6.10 since it is a document to be kept with the vehicle along with the R.C. Hence if Indusind Bank has taken another policy the same would have been sent to complainant for the purpose of keeping it with the vehicle. If it is seen a policy taken subsequently, action should have been taken to cancel the same without delay. Even if it is found the policy of Cholamandalm issued earlier and opposite party is found to be refund the total amount it will come only `863 deducing the premium for 295 days. Opposite party is not liable for any loss since there is no deficiency in service . Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1 and documentary evidence Exts. A1 to A5 and B1 to B3. Issue Nos.1 to 3 Admittedly complainant insured his vehicle with the opposite party with effect from 1.9.2009 to 31.8.2010. The Financier of the vehicle also renewed the policy for the same period. Since there is double insurance policy the complainant requested the opposite party to refund the premium amount. But opposite party took a position that he is not inclined to refund the premium. Opposite party contended that he made request for refund on 17.6.2010 which after 9 months and 17 days. The insurance policy from opposite party was taken prior to the policy of Cholamandalam general Insurance company. Policy is a document which should be kept in the vehicle together with the R.C. So Cholamandalam General Insurance Company should have sent the policy to complainant for the purpose for keeping it in the vehicle with the RC. So complainant is well aware of the existence of such policy. Opposite party specifically contended that complainant should have taken immediate action to cancel the policy which is issued subsequently and request to refund the premium amount. Complainant argued that since he had not received the policy paper prior to the period of expiry the complaint was under the impression that the policy had not been renewed by the financier so he approached the opposite party for issuing policy. After this the complainant though little bit late received the policy renewed by the financier during the same period. Complainant also argued that the contention of opposite party that the policy from the opposite party was taken prior to the policy of cholamandalm Insurance company is not correct. It is on same date. Hence the existing policy has to be made alive. The contention that complainant is entitled for only `836 since there was enjoyment of risk for 295 days is wrong since the opposite party deliberately delayed in settling the matter. Complainant filed chief affidavit in tune with the pleadings. Affidavit evidence stated that the alleged insurance policy for the period 1.9.09 to 31.8.10 was renewed by the financier as usual and sent to him in time but he received after 1.9.09. So under the impression that the Bank had not renewed the policy complainant approached opposite party and insured the vehicle paying a premium of `10946. Complainant further states that it is only after this he received the InudsInd policy. So he decided to maintain the policy that continued from the beginning of purchase and to request to refund the amount from opposite party. Complainant states that he has approached the opposite party several times and opposite party has not raised any objection to refund the amount and at least they obtained a statement of complainant in stamped paper. Thereafter on 22.6.10 opposite party sent a letter saying that his request would be considered as early as possible and asking to produce the policy in office. In cross examination complainant deposed that he has asked opposite party to refund the premium after 3 months. In re-examination he has deposed that he has asked opposite party to cancel the policy and refund the amount both by telephone and by approaching directly. He has also deposed that when he went to opposite party’s office he was told that amount would be paid. The Manger also asked him to submit hundred rupees stamp paper with signature. But after submitting the stamp paper no refund was made. Thereafter on 17.6.10 he sent written request to refund the amount. He also added that the statement in the stamp paper was an undertaking to the effect that there shall not be any claim in respect of the vehicle. Opposite party mainly depending up on the report of the Tariff Advisory committee on the point that if two issuance policies are taken for the same vehicle under two insurance companies the policy taken subsequently is to be cancelled and the balance of the premium amount has to be refunded on a pro rata basis. Ext.A1 and A2 are the different policies of the different companies for the same period from 1.9.09 to 31.8.2010. Both policies take life enforceable by law on the same date and time. The life time also is one and the same. In the eye of law no one policy can be considered earlier to the other or one is later to another. If that be so, complaint cannot be blamed in choosing the company where from the insurance of the vehicle had been continued to be existed right from the purchase as one that is to be maintained as valid the policy. There is no logic behind the contention of the opposite party that opposite party’s policy should be maintained. DW1 in his cross examination deposed that “Ext.A1 t\m¡n-bmÂ-AtX Ime-¯n Cholamandalam policy Dmbn-cp-¶p-sh-¶Xv icn-bm-Wv……….Insurancehy-h{]Im-cT financier ¡v hml-\T insure sN¿m-T.-B-b-Xn-·p³]v R-§-fp-sS- I-T-]-\n-bnÂ\n¶v insure FSpt¯m F¶-dn-bn-Ã.-cv policy Hcp hml\-¯n-\p-s-¦n Hcp policy cancel sN¿m-hp-¶-XmW”. Thus it can be seen that opposite party has no consistent case that the policy of opposite party is one that has been issued prior to the Cholamandalam policy. It is also come out in evidence that in the case of double policy one policy can be cancelled. The second important question that arises for consideration is the aspect in relation to the delay in applying for the refund. The case of the opposite party is that it is after 9 months that the complainant requested for the refund of the amount. If in case opposite party is found liable to refund the amount it would come only to the extent of remaining period. Opposite party contended that complainant requested for refund on 17.6.10 DW1 deposed that “Refund\v Bh-i-y-s¸-«Xv17.6.10\mWv. Bb-Xn\v R.C owner R§sf kao-]n-¨n-cp-¶n-Ã. PW1/complainant on the other hand deposed that “ 17.6.10 \v apT-]mbn insure IT-]-\n-tbmSv policy cancel sN¿p-¶-Xn-\pT refund \ÂIp-¶-Xn-\pT t^mWn IqSn Bh-i-y-s¸-«n-cp-¶p. t\cn-«pT cp-{]m-h-i-yT C³jq-d³kv IT-]-\n-bn 17.6.10\v ap³]mbn t]mbn-cp-¶p.-A-§ns\ t]mb-t¸mamt\-Pss]k Xcm-sa¶v ]d-ªn-cp-¶p.-]-W-T-X-cm³ 100 cq] stamp paper FgpXn H¸n-«p-sIm-Sp-¡m³ Bh-i-y-s¸-«n-cp-¶p. A§s\ H¸n«v sImSp-¯-ti-jT ]WT X¶n-cp-¶n-Ã. AXn-\p-tijT 17.6.2010 \v tcJm-aq-eT insurance company bn Bh-i-y-s¸-«n-cp¶p. The complainant’s case is that it is due to the laches on the part of opposite party in settling the issue that caused the delay in submitting the written request. PW1 gives evidence that they have approached the opposite party before 17.6.2010. DW1 in his cross examination deposed thus : office ]cm-Xn-¡m-c³ h¶-t¸mrefund sN¿m³ Ign-bn-sö Imc-yT insured s\ t\cn-«-dn-bn-¨n-cp¶p . It is an admission that complainant has gone to their office earlier to the writtenrequest. But the opposite party did not say whether it is before or after 17.6.2010. But complainant’s specific case is that he has gone to opposite party’s office 2 times before 17.6.2010 and also contacted over telephone. Anyhow if opposite party has informed the complainant directly that they are not inclined to refund the amount. It is evident that the complainant has gone to the office of the opposite party before giving writtenrequest for refund. The evidence of DW1 that complainant has not approached them for the purpose of refund is only a lie. DW1 deposed that “refund \v tcJm-aq-eT Bh-i-y-s¸-«Xv 17.6.10 \mWv. Bb-Xn\v RC owner R§sf kao-]n-¨n-cp-¶nÃ. If it is true how can opposite party directly inform the complainant that they are not ready to refund the amount. That is not true. More over it is pertinent to note that opposite party is tactfully silent with respect to the statement in stamp paper. It is the case of the complainant that he was asked to submit the signed stamp paper with the statement and after submitting the statement of declaration the amount was not paid. Opposite party is not saying more about this stamp paper. It is not produced also. DW1 answered to a question in cross examination that “declaration sâ Imc-yT a\:-]qT ad-¨p-sh-¨-X-Ã.-Hm-^o-kn ]cm-Xn-¡m-c³ h¶-t¸mrefund sN¿m³ Ign-bnà F¶-Im-yT ]d-ªn-cp¶p“ . It is clear that stamp paper was submitted but money was not refunded. It was informed to complainant that they are not inclined to refund the amount after receiving the stamp paper only. Thus the evidence goes to show that complainant approached the opposite party earlier to written request to refund the premium on 17.6.10 more than once. Undoubtedly it is clear that the document and all has been submitted by the complainant as per instruction given by opposite party. If there was no earlier connection between parties in relation to this issue, question of furnishing those documents does not arise. So it can very well be assumed that the dealings of opposite party caused delay in submitting the written request for refund. Complainant was put under the impression that the amount would be paid soon possible. More over Ext.A3 proves that opposite party was ready and willing for processing the cancellation and refund the amount. Ext.A3 letter sent by opposite party asked the complainant to submit the original insurance policy and certificate at the earliest for processing the cancellation and refund endorsement. The purpose of surrendering the above said documents is so clear that the intention is to take necessary steps to refund the amount. Ext.A2 is a relevant document not merely to prove the initial readiness of opposite party to refund the amount but also to prove that refund is allowable if opposite party is intended to do so without any hurdles of rules and regulations. In the light of the above discussion we are of the opinion that there is deficiency in service on the part of opposite party for not settling the issue by refunding the amount. Complainant is entitled to get the amount refunded. The level of standard of dealing of a leading institution like that of opposite party is expected to be handled in such a way without giving opportunity to consumers to form disregard to the good will of the institution. Opposite party is liable to refund the amount. Hence the issue Nos. 1 to 3 is fund in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite party to refund `10,946 (Rupees Ten thousand Nine hundred and forty six only) together with `500 (Rupees Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order against opposite party as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1. Insurance policy of Cholamandalam Vs. General Insurance dt.1.9.09. A2. Insurance policy of New India Assurance co. dt.1.9.09. A3. Letter dt.22.6.10. issued by OP A4. Copy of Lawyer notice sent to OP A5. Reply notice Exhibits for the opposite party: B1. Copy of the collection receipt and adjustment voucher B2. Copy of the Insurance policy B3. Report of Tariff Advisory committee Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: DW1.Suresh Babu /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
