Kerala

Thiruvananthapuram

CC/16/478

Jayakrishanan - Complainant(s)

Versus

Manager,OrientaL Insurances - Opp.Party(s)

16 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

PRESENT

                                     SRI.P.V.JAYARAJAN        : PRESIDENT

        SMT.PREETHA.G.NAIR    : MEMBER

                                    SRI.VIJU.V.R                   : MEMBER

CC.NO.478/2016 (Filed on: 05/10/2016)

ORDER DATED : 16/02/2023

COMPLAINANT

Jayakrishnan Nair.R

Ramavilas, Pachalloor,

Vellayani.P.O

Thiruvananthapuram

(By Adv.C.S.Rajmohan)

VS

OPPOSITE PARTIES

1. The Manager,

M/s.Oriental Insurance Co.Ltd,

Near Aristo Junction,

East Thampanoor,

Thiruvananthapuram – 695001

2. The Manager,

M/s.Oriental Insurance Co.Ltd,

A-25/27, Asaf Ali Road,

New Delhi – 110 002

(By Adv.V.Manikantan Nair)

ORDER

SRI.VIJU.V.R                 : MEMBER

1.       The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection 1986. The brief facts of the case is that the complainant is a registered owner of a Nissan Sunny Car bearing with Reg.No.KL-01-BJ-1001 and the said vehicle was duly insured with the opposite parties 1 & 2 and had valid insurance policy coverage from 15/10/2015 to 14/10/2016 with policy No.442301/31/2016/8976. On 02/03/2016 the complainant’s vehicle met with an accident and it was taken to the authorized workshop of Nissan. The bill amount was Rs.59,000/- (Rupees fifty nine thousand only). The accident was duly informed to the opposite parties 1 & 2 and claim was forwarded. The complainant availed the policy by issuing a post dated cheque for the policy amount and after receiving the same valid policy certificate was issued to the complainant on 12/10/2015.

2.       The complainant paid Rs.59,000/- (Rupees fifty nine thousand only) after the repair and the vehicle was released to the complainant. To reimburse the said amount claim was forwarded and proceeded to the opposite parties 1 & 2. But to the utter dismay of the complainant the opposite parties 1 & 2 informed that the vehicle was not having a valid policy and the same was intimated to the complainant over the phone on 28/03/2016. During the time of availing the policy complainant issued a cheque to the opposite parties        1 & 2. The cheque was dated 14/12/2015. It is clear that on accepting the cheque the policy was issued noticing the date on the cheque. The accident happened only on 02/03/2016. The opposite parties 1 & 2 can encash the cheque on 14/12/2015. No intimation was given by the opposite parties 1 & 2 regarding the non encashment of cheque by the opposite parties 1 & 2. There was sufficient amount in the account of the complainant to honour the cheque. After accepting the cheque the opposite parties 1 & 2 has issued the policy on 12/10/2015. When intimation of repudiation of the claim was informed over phone complainant immediately issued a letter on 28/03/2016. But till date there was no reply from the side of the opposite parties 1 & 2. The opposite parties 1 & 2 has not intimated the complainant regarding the non encashment of the cheque. The act of opposite parties 1 & 2 amounts to unfair trade practice and deficiency in service, hence this complaint.

  3.     The opposite parties 1 & 2 entered appearance and filed version. The opposite parties 1 & 2 has averred that the complaint is not maintainable either in law or on facts. It is admitted by the opposite parties 1 & 2 that the complainant is a registered owner of Nissan Sunny car bearing Reg.No. KL-01-BJ-1001 and also it is admitted by the opposite parties 1 & 2 regarding the date of accident as well as the information regarding the accident. It is denied by the opposite parties 1 &2 that the said vehicle had a valid insurance coverage from 15/10/2015 to 14/10/2016. The complainant gave a cheque dated 14/01/2015 for Rs.12,159/- (Rupees twelve thousand one hundred and fifty nine only) for policy coverage from 15/10/2015 and without noticing the date of cheque as a post dated cheque, by mistake the opposite parties 1 & 2 issued the policy coverage from 15/10/2015 to 14/10/2016. The opposite parties 1 & 2 presented the cheque for collection before the HSBC bank and the same was dishonoured and returned on 16/10/2015 with endorsement “instrument postdated”. So the opposite parties 1 & 2 cancelled the policy and intimated the complainant regarding cancellation of policy vide letter dated 24/11/2015. The opposite parties 1 & 2 also informed the complainant vide letter dated 28/03/2016 regarding the repudiation as no claim since no valid insurance for the vehicle. The complainant being an advocate by profession was fully aware at the time of proposing policy that no insurance company will accept post dated cheque as a consideration for premium and he actually cheated the office. But the policy was issued by mistake without noticing the date on the cheque. The averment of the complainant that the opposite parties 1 & 2 can encash the cheque on 14/12/2015 itself will show that for policy covering from 15/10/2015 there was no valid consideration for the policy and hence the policy itself is void ab-initio. There is no unfair trade practice and deficiency in service from the part of the opposite parties 1 & 2. Hence complaint may be dismissed with costs to the opposite parties.

4.       Issues to be ascertained:

1. Whether there is unfair trade practice or deficiency in service from the side of opposite parties 1 & 2 ?
2. Whether the complainant is entitled to get the reliefs?

5.       Issues (i) & (ii):-  Both these issues are considered together for the sake of convenience. The complainant has filed affidavit in-lieu of chief examination and was examined as PW1. He has produced 6 documents which were marked as Exts. P1 to P6. The complainant was cross examined by opposite parties     1 &  2. The opposite parties 1 & 2 has filed proof affidavit in-lieu of chief examination & produced 4 documents which were marked as Exts D1 to D4. The complainant & opposite parties 1 & 2  has filed Argument Note. The accident as well as the intimation regarding the accident was admitted by the opposite parties 1 & 2. The main contention raised by the opposite parties is that the claim was repudiated because at the time of accident there was no valid policy. It can be seen from Exts. P2 & P6 the opposite parties 1 & 2 has issued a policy in the name of the complainant which was having a validity from 15/10/2015 to 14/10/2016. It is contended by the opposite parties 1 & 2 that since the complainant has issued a Post dated cheque for the policy amount & since the cheque was returned by the bank as “ instrument post dated”, they have cancelled the policy issued by them, which can be seen from Exts. D1 & D3. Opposite parties 1 & 2 has produced Ext D3 to prove that they have intimated the complainant regarding the cancellation of policy. It can be seen that Ext.D3 was send as a registered article. Even the presumption attached to the delivery of an article sent by registered post in terms of Section 27 of the General Clauses Act, 1897 can be rebutted by the addressee by appearing before the court as a witness and stating that he has not received the article. The burden would then shift to the party who wants to rely on the presumption to satisfy the court by leading oral or documentary evidence to prove the service of such article on the addressee [See Green View Radio Service v. Laxmibai Ramji (1990) 4 SCC 497 and Kulkarni Patterns Pvt. Ltd. v. Vasant Baburao Ashtekar (1992) 2 SCC 46] . In this case the complainant has deposed that he had not received Ext D3, but the opposite parties 1 & 2  has not taken any steps to prove that Ext.D3 was served to the complainant. It was obligatory for the insurer to prove the service of the postal article claimed to have been sent by them to the owner. The cheque was not dishonoured but it was returned as post dated. If that be so the opposite parties 1 & 2 ought to have intimated the complainant without any delay & also on going through Ext. D2 it can be seen that the returned memo was dt: 16/10/2015 & the Ext. D3 was dt: 24/11/2015, which also makes this commission to disbelieve Ext. D3.So the possibility of the owner being not aware of the return of the cheque issued to the insurer for the said purpose cannot be ruled out. So the opposite parties 1 & 2 cannot evade from their liability towards the insured.

 6.      However the premium amount was not paid by the insured to the insurer. The insured will be aware that no amount was deducted from his account. Insurance policies, being uberrimae fidei contracts, are governed by utmost faith between the contracting parties, hence the claim has to be settled on non-standard basis. The Apex Court in the case of Amalendu Sahoo Vs.Oriental Insurance Company Ltd (2010) 4 SCC 536 has held that in case of any variation from the policy document / any breach of the policy document, the Insurance company cannot repudiate the claim in toto  and the claim of the complainant ought to be settled on non-standard basis. Hence the insured is entitled to get 75% of the claimed amount from which Rs.12,159/- (Rupees twelve thousand one hundred and fifty nine only )will be deducted as the policy amount and Rs.1000/- (One thousand only) will be deducted as compulsory excess.

In the result, the complaint is partly allowed. The opposite parties 1 & 2 are jointly and severally directed to pay an amount of Rs 31,091/- (Rupees thirty one thousand and ninety one only) and pay Rs.10,000/- (Rupees ten thousand only) as compensation for the mental agony suffered by the complainant and pay Rs 2500/- (Rupees Two Thousand and five hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9 % per annum from the date of default till realization.

                   A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

               Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 16^th day of February 2023.

                                                                                          Sd/-

P.V.JAYARAJAN   : PRESIDENT

                                                                                              Sd/-

                                                                              PREETHA .G.NAIR: MEMBER

                                                                                                 Sd/-

VIJU.V.R     : MEMBER

 

 

 

 

Be/

 

 

 

APPENDIX

CC.NO.478/2016

List of witness for the complainant  

 

PW1                      -  Jayakrishnan Nair

Exhibits for the complainant

Ext.P1                   - Copy of RC book

Ext.P2                   - Copy of the policy certificate issued by the opposite parties

Ext.P3                   - Copy of the details of receipt on payment of premium issued by the opposite parties

Ext.P4                   - Copy of payment done by the complainant to workshop

Ext.P5                   - Copy of notice issued by the complainant to the first opposite party dated 28/03/2016

Ext.P6                   - Copy of print out of the e-mail send by the opposite party to the complainant dated 15/10/2015

List of witness for the opposite parties – NIL

List of Exhibits for the opposite parties

Ext.D1                  - Cheque dated 14/12/2015 bearing No.016189 for Rs.12,159/-

Ext.D2                  - Dishonoured slip received from HSBC Bank dated 16/10/2015

Ext.D3                  - Letter dated 14/11/2015 regarding cancellation of policy

Ext.D4                  - Letter dated 28/03/2016 regarding as no claim

Court Exhibits      - NIL

 

                                                                                   Sd/-

                                                                              PRESIDENT