District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 386/2020.
Date of Institution:16.10.2020.
Date of Order: 27.02.2023.
Pradeep Kumar, aged about 42 years S/o Shri Rampal Singh R/o House No 20, Gali No.4, Near Paswan Public School, Friends Colony, Old Faridabad
…….Complainant……..
Versus
M/s. Cholamandalam MS General Insurance Co. Ltd., Branch Office: A/269, Hans Plaza, 2nd floor, Neelam Bata Road, NIT, Faridabad – 121001 through its Divisional Manager (Service may be effected at NIT, Faridabad) vide policy No. 3379/01335084/000/00 (Policy Type – Package – Goods Carrying vehicle) w.e.f. 21.01.2016 to 20.01.2017,
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. K.S.Rawat, counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite party
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of Canter TATA-1109 bearing its registration NO. HR-38U-2624 which was insured with the opposite party vide certificate cum policy bearing No. 3379/01335084/000/00 effected from 21.01.2016 to 20.01.2017 for sum insured amount of Rs.10,94,000/- . On 07.12.20216, the complainant had parked his aforesaid vehicle at Goal Labour Chowk, Near Village Akhir, NIT, Faridabad at about 08:00PM (evening time) and after parking his vehicle, the complainant went to the house of his friend at Village Ankhir for some urgent work and after one hour, the complainant came back at his vehicle and saw that his vehicle was not standing there whose Number was HR-38U-2624, Engine No. 497TC92PVY841843, Chassis No. MAT457403E7P19947, Model 2015-TATA-1109 orange colour had been stolen by some unknown person. The complainant tried to search his vehicle here and there as per his best effort but the vehicle of the complainant was not found anywhere, for which the complainant approached to the Police Station NIT, Faridabad on 10.12.2016 time 18:10 hrs. and the concerned police lodged General Diary Reference Entry No. 21 and thereafter the police lodged FIR No. 433 dated 10.12.2016 in P.S.NIT, Faridabad under section 379 of Indian Penal Code against the theft of his vehicle as the said area comes within the territorial jurisdiction of P.A., NIT, Faridabad. Thereafter the complainant had also informed the opposite party being the nearest office of the opposite party immediately after receiving the copy of said FIR from the police department. The complainant completed all the formalities as required by the opposite party and the complainant submitted the claim form with the opposite party alongwith the necessary documents. The complainant repeatedly requested to the opposite party’s office where the complainant met with the officials of the opposite party many times who given the assurance to release the insured amount of the vehicle very soon but opposite party kept delaying the matter on one pretext on the other and finally the opposite party refused to release any claim amount orally. The complainant moved three applications under RTI Act to the DCP Head Quarter Faridabad on 30.07.2020, 07.08.2020 & 31.08.2020 respectively but the police did not give sought information to the complainant and on the application dated 31.08.2020, the police had given/disclosed that the untraced report had already been filed before the Hon’ble Illaqa Magistrate pertains to the said FIR and to collect the said untraced report and order dated 26.07.2017 from the successor court of Ms. Seema JMIC, Faridabad. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) settle the claim and pay up all the losses i.e. insured amount of Rs.10,94,000/- alongwith interest to the complainant immediately to avoid from any further mental agony and harassment.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /- as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that no valid contract of insurance ever came into existence or existed betwixt the complainant and reply opposite party, reason being, the cheque bearing NO. 865527 dated 20.01.2016 for Rs.34,893/- favouring M/s. Cholamandlam MS GIC ltd., so drawn on Vijaya Bank, Branch : Faridabad pertaining to account No. 830101051000334 in the name of Neelam being the wife of the propsper/complainant towards insurance premium on account of insuring canter NO. HR-38U-2624. The reply opposite party had sent the said cheque for its collection & encashment to its banker i.e HDFC Bank, Branch, Cannaught Place, Delhi which cheque returned dishonored, so received by the banker of the insurance company. In turn, the said banker of the insurance company had informed with regards to dishonoring of subject cheque vide memo of return. Thereafter, the insurance company had sent an intimation to the complainant, whereby, intimating the complainant with regards to dishonoring of the cheque and further intimating that contract of insurance was void ab initio and they were not on risk in respect of the cover note/certificate of insurance. In case, he want to take fresh insurance cover, remit immediately the premium by cash/DD only to enable them to assume the risk from the date of fresh collection subject to confirmation that there had been no loss till date of such remittance. Further, advised to return the original cover note/certificate of insurance to the insurance company immediately. Since no insurable premium amount was ever passed on to the insurance company either in cash or by way of any other mode against insurance policy No. 3379/01335084, hence the insurance company never undertaken to indemnify the complainant on account of risk, if any, sustained. In terms of proviso under section 64VB of the insurance Act, 1938, the insurance company was not liable to make good the loss to a person/proposer, in absence of insurance premium amount. Accordingly, the insurance policy No. 3379/01335084/000/00 for the period 21.01.2016 to 2001.2017 stood automatically cancelled for want of insurance premium. In this behalf, the complainant was duly intimated by the insurance company vide its letter of intimation, though it was not mandatory for the insurance company to intimate in this behalf, as it was incumbent upon the complainant to maintain sufficient balance towards the insurance premium in his account with the bank and to fill in the cheque leaf correctly & perfectly. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– M/s. General Insurance Company Ltd. with the prayer to: a) settle the claim and pay up all the losses i.e. insured amount of Rs.10,94,000/- alongwith interest to the complainant immediately to avoid from any further mental agony and harassment. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /- as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Pradeep Kumar, Ex.C-1 - - RTA letter dated 30.07.2020. Ex.C-2 – Motor Proposal form, Ex.C-3 – Motor Policy Schedule cum Certificate of Insurance, Ex.C-4 – FIR, Ex.C-5 – RC, Ex.C-6 – RC,, Ex.C-7 – Antim report, Ex.C-8 – order dated 26.07.2017 passed by Ms. Poorva Mehra CJJD/JMIC, Faridabad, Ex.C-9 – Motor Policy Schedule Cum Certificate of Insurance valid from 21.01.2016 to 20.01.2017, Ex.C-10 - letter, Ex.C-11 - letter dated 16.07.2021, Ex.C-12 – Authorization Certificate of N.P.(Goods), Ex.C-13 - Account statement from 01.01.2015 to 28.02.2017.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Priyamvada Roy, deputy Manager, Legal, M/s. Chola Mandlam MS General Insurance Company Limited, Plot NO. 39, 2nd floor, Opp. Metro Pillar NO. 120, Pusa Road, Karol Bagh, New Delhi, Ex. R-1 – Motor Proposal Form, Ex.R-2 – photocopy of cheque amounting to Rs.34,893/-, Ex.R-3 – letter, Ex.R-4 - note dated 22.01.2016 regarding return cheque advice processed under CTS clearing, Ex.R-5 - letter dated 27.01.2016 regarding cancellation of policy, Ex.R-6 - list of Department of Posts, Ex.R-7 – Acknowledgement,.
6. As per dictum of Section 69 of Consumer Protection Act, the District Commission is empowered to admit a complaint within two years from the date on which the cause of action has arisen. The present complaint is time barred under Limitation Act as the alleged theft had taken place on 07.12.2016 whereas the complaint had been filed in the year 2020 i,e 16.10.2020 after expiry of four years.
7. Resultantly, the complaint is dismissed being time barred. Copy of this order be given to the parties free of costs and file be consigned to the record room.
Announced on: 27.02.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
