Haryana

Ambala

CC/59/2017

Mukesh Ahuja - Complainant(s)

Versus

M/s Cholamandalam Gen Inss - Opp.Party(s)

Sunil Jain

15 May 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                                        Complaint case no.  :  59 of 2017

                                                                        Date of Institution    : 27.02.2017

                                                                        Date of decision       : 15.05.2018

 

 

Mukesh Ahuja s/o Sh. Amir Chand Ahuja, Resident  of House No.2580/300, Gian Marg, Behind S.D.Public School, Ambala Cantt.

……. Complainant.

Vs.

 

1. M/s Cholamandalam MS General Insurance Company Ltd, 2^nd Floor, “Dare House” No.2, NSC Bose Road, Chennai-600001, India through its Authorized Signatory. 
2. M/s Cholamandalam MS General Insurance Company Ltd, SCO No.2463-64, First Floor, Sector-22C, Chandigarh, 160022 through its Branch Manager.
3. M/s AU Insurance Broking Services Pvt. Ltd, Lawrence Road, Opposite Capitol Cinema, Near GMN College Ambala Cantt-133001 through its Branch Manager.

 

 ….….Opposite Party.

 

Before:           Sh. D.N. Arora, President.

                        Sh. Pushpender  Kumar, Member.                        

                        Ms. Anamika Gupta, Member.

 

Present:          Sh. Sunil Jain, counsel for the complainant.

                        Sh. R.K.Vig, counsel for Op Nos. 1 & 2.

Sh. Rajiv Sachdeva, counsel for OP No.3.

 

ORDER:

                        In nutshell, brief facts of the present complaint is that the complainant is the registered owner of private four wheeler Verna Model, Hyundai Make registration no.HR-01-aj-7018, Engine No.DU342342, Chassis No.EMI 1609168, purchased  by complainant for his personal use.  The complainant took “Private Car Policy” of OP No.2 vide Policy No.3362/ 01203141/000/00 on 11.06.2016 from the OP No.3 and on the same  dated complainant issued a cheque bearing number 95090, drawn on Bank of Maharashtra, Ambala Cantt for the amount of Rs.24909/- which includes Rs.21660/- as a Premium and Rs. 3249/- as Service tax. The said policy was valid for the period 11.06.2016 to 10.06.2017 midnight. That as per the term of policy accidental cashless claim was available for all the service center of Hyundai. On 05.11.2016 at 09.30 night, the car of complainant met with an accident near R.D.Farm, Jagadhri Road, Village Tepla, Ambala and the said vehicle got struck of the car standing near the road. Thereafter complainant had called official of OP No.3 and informed him about the said accident. On the direction, given by the official of OP No.3, the complainant to park the vehicle in the authorized service center i.e. Samriti Hyundai, Village Tepla, Ambala which was near to the accidental place. On 06.11.2016, in the presence of complainant, a surveyor had surveyed the vehicle to access the loss and directed the service center to repair the said vehicle and gave a claim no.3362320400 by the surveyor to the complainant. On 19.11.2016 the vehicle was delivered to him after charging Rs.3,750/- on account of depreciation only  and that time it was also informed by the official of authorized service center to the complainant that the balance amount of bill i.e. Rs.59762/- will be paid by the Ops as the policy of the complainant is caseless. On 21.11.2016 complainant received a call from the said service center for pending rubbing work and he reached the service center with his vehicle then the official of said service center had informed complainant that he has to drop the vehicle for two days. On 23.11.2016, when complainant reached there to take delivery of his vehicle, it has been informed by the officials of said service center that insurance company i.e. Ops denied to repair the vehicle on cash less basis and it was further instructed by the said service center that complainant could take the delivery of vehicle after payment of the balance amount of the bill i.e. Rs.59762/-. On enquiry it was informed by Ops to the complainant as his cheque was not encashed being dishonored so the policy of the complainant is not valid, thereafter he contacted with his bank, it was informed  by his banker that said cheque was never presented to the bank for the said cheque was never presented to the bank for the payment. Despite repeated requests made by the complainant to the Ops for the payment of Rs.59,762/- to the service centre, they failed to do so and therefore the vehicle of the complainant was hold by the said service center for more than 25 days and in the forced circumstances, on 16.12.2016 complainant had to pay Rs.59762/- through RTGS from the account of complainant’s wife to the said service center. For the mistake of non presentation and non encashment above said cheque of Ops or their official and complainant cannot be held liable for the same because there was sufficient balance in the account of complainant for the encashment of the above said cheque amounted to Rs.24909/- drawn on Bank of Maharashtra, Ambala Cantt during the month of June 2016 to October 2016 & Ops had neither presented the said cheque for encashment nor sent any cancellation letter to complainant in this regard. The complainant issued a legal notice on 24.01.2017 to the Ops. Thus, the complainant has suffered huge mental tension, harassment and agony besides monetary loss on account of the deficiency in services and negligent act of the Ops. Hence, the present complaint.  

2.                Upon notice, OP No.3 appeared through counsel and tendered written statement and stated that OP No.3 is a mere agent of OP No.2 and the role of OP No.3 is merely to forward the documents which are provided from the consumers to the OP Nos. 1 & 2. The documents and cheque issued by the complainant to the OP No.3, was as per terms of its job was validly delivered to OP No.2. It is imperative to mention that the insurance cover notice was also issued in favour of the complainant which signifies the fact that the documents and the cheque were validly transmitted to the OP No.2.

Upon notice, OP Nos.1 & 2 appeared through counsel and tendered written statement and stated that the complainant at the time of taking policy from the insurance company valid from 11.06.2016 to 10.06.2017. The complainant was required to tender premium of first policy and he issued cheque no.095090 dated 09.06.2016 for Rs.24,909/- in favour of OP Nos. 1 & 2. The cheque on presentation for encashment was dishonored by the bank with the remarks “REFERS TO DRAWER”. This would clearly show that there were no funds available in the account. After the dishonor of cheque, the OP Nos. 1 & 2 through notice got a legal notice served on 11.04.2017. Prior to issue to notice, the Ops even informed  the complainant through written letter dated 28.11.2016. They further stated that it is not totally correct that Surveyor anywhere directed him to get the vehicle repaired from any particular shop. Thus, there is no deficiency in service and negligency on the part of OP Nos. 1 & 2 and prayed for dismissal of the present complaint.

3.                   To prove his version complainant tendered his affidavit as Annexure C-A with documents as annexure C-1 to C-18 and close his evidence. On the other hand, Counsel for the OP No.1 & 2 tendered affidavit as Annexure R-A along with documents Annexure R-1 & Annexure-R-11 and close their evidence. Counsel for OP No.3 tendered affidavit as Annexure R-A/3 and close his evidence.

4.                     We have heard counsel for the parties and carefully gone through the case file.

It is admitted facts that the complainant has obtained the policy “Private Car Policy” of OP No.2 vide Policy No.3362/ 01203141/000/00 from the OP No. 1 through OP No. 3 for the period 11.6.2016 to 10.06.2017. It is not disputed that the vehicle in question got damaged on 05.11.2016 and the complainant got repaired the vehicle through authorized service center Samirit Hyundai Service Center at village Tepla Ambala for amounting to Rs.63512/- as per copy of bill Annexure C-4. It is not disputed that the OP also deputed the surveyor for assessment of loss as per Annexure R-7 and surveyor has assessed the loss amounting Rs. 62,000/- vide Annexure R-8 dated 05.12.2016. The vehicle in question has been delivered by the service center on 19.11.2016 and amount Rs. 3750/- has been charged from the complainant by the service center. After sometime the Hyundai service Center asked the complainant to bring the vehicle back on the pretext that the rubbing work is due but they refused to deliver the vehicle that your insurance company has not given the rest of the amount to the service center on the ground that your policy has been cancelled due to dishonoring the cheque. Ultimately, the complainant had to pay Rs. 59,762/- to Hyundai Center on 16.12.2016.

Now question arises that whether insurance company can decline to pay the repaired  amount to the complainant on the ground that cheque has been dishonored. We have pursued the Annexure R-2. There insurance company has presented the cheque to their bank on 17.06.2016 and it is mentioned in Annexure R-2 that the cheque has been referred to drawer  on 18.06.2016 and they have intimated  to the complainant on 28.11.2016 as per Annexure R-3 and as your  policy has been cancelled and they have also informed to the complainant that cheque dated 09.06.2016 has been dishonored on 18.06.2016. Now, we want to see what was the balance in the account of the complainant on the date of presentation of the cheque. From the perusal of the passbook Annexure C-17 of the complainant, it is clear that from the date i.e. 29.04.2016 to 13.06.2016 there was only Rs.10973.43/- balance in the account of the complainant but on 13.06.2016 complainant had deposited the amount of Rs. 25,000/- and there was balance amount of Rs. 35,973.43/- in the account of the complainant on 13.06.2016. It is also clear from the bank account of the complainant that from the 13.06.2016 to 22.011.2016 there was sufficient amount in the account of the complainant. The OP Nos. 1 & 2 are also  admitting in the Annexure R-2 that the cheque was presented to the bank on 17.06.2016 and on that date there was sufficient amount balance in the account of the complainant i.e. Rs. 35,973.43/-. It is worthwhile to mention here that the accident was occurred on 05.11.2016 but the OP has intimated the complainant after accident i.e. on 28.11.2016 as per Annexure R-3 as well as Annexure R-10.  It is strange that if we presume that the cheque in question has become dishonored as per the letter they should inform to the complainant the above said fact regarding the cheque has been referred to the drawer/dishonoring but they failed to intimate the complainant till 28.11.2016 whenever accident was occurred before that date. Hence  we are of the considered view that there is no fault on the part of the complainant and OP has wrongly withheld the amount of Rs. 62000/- as assessed by the surveyor in his report as Annexure R-8. It is admitted fact the premium amount of the policy has not been deducted from the account of the complainant and he was bound to pay the premium as policy remained inforce from 11.6.2016 to till cancellation of the policy i.e. 28.11.2016. Hence, insurance company is in-proportionately entitled for premium amount of that period with interest @ 9% from 11.06.2016 to 28.11.2016.

We hold that the OP Nos. 1 & 2 are deficient in service in not paying the assessed amount.  Accordingly, the present complaint is allowed with cost which is assessed Rs. 5,000/- and Op Nos. 1 & 2 are directed to comply with the following directions within thirty days from receipt of copy of the order:-

1. To pay a sum of Rs. 62,000/- to the complainant with interest @ 9% from the filing of compliant till its realization &  the complainant is directed to pay in-proportionately premium amount of the policy for the period with interest @ 9%  from 11.06.2016 to 28.11.2016 and this amount would be deducted from the amount of Rs.62,000/-.
2. To pay the amount Rs.5,000/- cost of proceedings as assessed above.

 

Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

Announced on : 15.05.2018                                                                                                                                                         

   

 (PUSHPENDER KUMAR)       (ANAMIKA  GUPTA)          (D.N. ARORA)

Member                                 Member