Tamil Nadu

South Chennai

CC/277/2014

S.Chandhrabose - Complainant(s)

Versus

M/s. Royal Sundaram Alliance Insurance Company Limited - Opp.Party(s)

B.R.Shankaralingam

05 Mar 2020

ORDER

                                                                          Date of filing      : 11.07.2014

                                                                            Date of Disposal : 05.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                     : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.277/2014

DATED THIS THURSDAY THE 05^TH DAY OF MARCH 2020

                                 

S. Chandrabose,

S/o. Mr. T. Sivan,

New No.281, Old No.134,

Thambu Chetty Street,

Chennai – 600 001.                                                        .. Complainant.                                                      

                                                                                              ..Versus..

 

1. The Manager,

Royal Sundaram Alliance Insurance Company Limited,

Vishranthi Melaram Towers,

No.2/319, Rajiv Gandhi Salai (OMR),

Karappakkam,

Chennai – 600 097.

Having its registered office at:-

No.21, Patullos Road,

Chennai – 600 002.

 

2. The Manager,

Maruti Insurance Broking Private Limited,

No.1, Nelson Mandela Road,

Vasant Kunj,

New Delhi – 110 070.  

 

3. The Manager,

INDUS MOTOR CO. PVT. LTD.,

(Insurance Section),

Nos.203 to 206, Mount Poonamallee Road,

Kattuppakkam,

Chennai – 600 056.

Having Registered Office at:-

Gulam Towers,

Nos.46 to 49, Royapettah High Road,

Chennai – 600 014.

4. The Manager,

KAPICO MOTORS INDIA PVT. LTD.,

(Insurance Section),

No.309, Poonamallee High Road,

Kilpauk High Road,

Chennai – 600 010.

 

5. VISHNU CARS PRIVATE LIMITED,

Nos.203 to 206, Mount Poonamallee Road,

Kattupakkam,

Chennai – 600 056.

And also at:-

No.176/1, Luz Church Road,

(Near Kamadhenu Theatre)

Mylapore,

Chennai – 600 004.                                              ..  Opposite parties.

 

Counsel for the complainant          : M/s. B.R. Shankaralingam &    

                                                          others

Counsel for the 1^st opposite party : M/s. M.B. Gopalan & others

Counsel for the 2^nd opposite party : M/s. S. Ramasubramaniam &

                                                           Associates

3^rd Opposite party                           : Exparte

Counsel for the 4^th opposite party : M/s. P. Arivudai Nambi & another

 

Counsel for the 5^th opposite party : M/s. N.V. Prakash & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties 3 & 5 to refund a sum of Rs.4,423/- with 18% interest p.a. from 28.02.2014 till realization and the opposite parties are jointly and severally liable to pay a sum of Rs.1,00,000/- towards compensation for mental agony along with interest at the rate of 18% p.a. from the date of the complaint till realization and with cost of Rs.20,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he is the owner of a car bearing Registration No.TN 06 F 2529 and the model of the car is Maruti Alto.  The complainant submits that on 25.02.2014 in the morning at about 10.30 A.M. a person came to the complainant’s house stating that he is coming from the 1^st opposite party office for providing insurance to his car, the complainant also issued a cheque bearing number 000080 drawn on Lakshmi Vilas Bank Ltd. dated:25.02.2014 for Rs.4,914/- as premium infavour of the 1^st opposite party to the said person for the period from 06.03.2014 to 05.03.2015 for which, the said person issued a temporary receipt voucher in the name of 4^th opposite party.   The name of the said person as per the receipt is K. Yuvaraj.  The complainant submits that on the same day another person Mr. Thirunavukkarasu from the 3^rd opposite party approached the complainant that he came to effect insurance for his car.   The complainant told him that half an hour before another person came and collected the insurance amount, but the person from the 3^rd opposite party said already locked the insurance for the complainant’s car and another person cannot effect insurance for the complainant’s car.   The complainant submits that immediately he checked the receipt issued by the 1^st person who came and collected the cheque bearing number 000080 drawn on Lakshmi Vilas Bank Ltd. dated:25.02.2014 for Rs.4,914/- in favour of the 1^st opposite party and it was the receipt issued by the 4^th opposite party and the complainant showed the receipt to the person who came later and the said person told the complainant that he was coming from the 3^rd opposite party who sold and serviced the vehicle and also insured the vehicle through them only for the last two years.  The 3^rd opposite party person told the complainant that insurance for the complainant’s car for the period from 06.03.2014 to 05.03.2015 through the 1^st opposite party already effected and he had just came to collect the cheque. 

2.     The complainant submits that the 3^rd opposite party person said that no other person except the 3^rd opposite party can effect insurance for the complainant’s car through the 1^st opposite party. The complainant immediately contacted the 4^th opposite party over phone and the 4^th opposite party person told that within two days they would send a policy certificate to the complainant.  The complainant waited for two days upto 27.02.2014 no policy copy received by him.  The complainant submits that he sent an email dated:28.02.2014 to the 4^th opposite party narrating the events and asked them not to present the cheque and also informed them that he had issued stop payment to the said cheque to his banker and then the 3^rd opposite party’s person approached the complainant and the complainant told him about the loss suffered by the complainant towards issuing the stop payment advice because of the late arrival of their people and the 3^rd opposite party told that they would compensate the complainant and will give  rebate in the amount of premium to be paid and obtained from the complainant a cheque dated:28.02.2014 bearing the number 00081 drawn on Lakshmi Vilas Bank Ltd. in favour of the 3^rd opposite party for Rs.4,423/- stating that the 3^rd opposite party would pay the balance and make a payment to the 1^st opposite party.  The complainant submits that he was shocked to receive a letter from the 1^st opposite party dated:12.03.2014 that the 1^st opposite party cancelled the insurance policy bearing No. MOP 2223744 in respect of the complainant’s car bearing registration No.TN 06 F 2529 stating the reason that the cheque bearing No.000080 dated:25.02.2014 for Rs.4,914/- drawn on M/s. Lakshmi Vilas Bank Ltd. has been returned unpaid with “Payment stopped by the drawer”.  The same letter has been sent by the 1^st opposite party to the R.T.O. and the 3^rd opposite party.  

3.     The complainant submits that the act of 3^rd opposite party in receiving money from the complainant for transferring the same to the 1^st opposite party but failing to do so amounts to criminal misappropriation.   The complainant submits that the act of 4^th opposite party to present the cheque despite clear instruction not to do until the policy copy was procured from the 4^th opposite party.  But the 1^st opposite party cancelled the policy as if the cheque was dishonoured is another instance of unethical business practice and criminal breach of trust.  The complainant submits that the copy of the policy send by the 4^th opposite party through e-mail and the policy hard copy given to the complainant by the 3^rd opposite party are signed by the one and the same person of the 1^st opposite party in two similar policy documents on the same date.   The complainant submits that the letter dated:12.03.2014 from the 1^st opposite party cancelling the insurance policy was issued carelessly and negligently without taking care to verify all the particulars.  The complainant submits that none of the opposite parties spoken anything about the fate of policy issued to him through the 3^rd opposite party.   The complainant submits that the act of the 3^rd opposite party in not resolving the dispute with the other three opposite party does not seen as a good business practices, particularly when the cheque given to the 3^rd opposite party was encashed immediately, the 3^rd opposite party should have seen to it that no damage done to the customer.   The act of the opposite parties 1 to 5 amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

4.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The 1^st opposite party states that the 1^st opposite party received only the cheque bearing No.00080 in their name for renewal of the complainant’s insurance for vehicle bearing Registration No.TN 06 F 2529 subject to renewal of policy No.MOP2223844 for the period from 06.03.2014 to 05.03.2015 was issued.  The said cheque was presented by the 1^st opposite party in the normal course of business and there was no instruction from the complainant not to present the cheque.   In any event, such instruction is not valid since Policy has been issued on the basis of the said cheque.   The cheque was dishonoured on presentation for the reason that there was no sufficient fund in the complainant’s account.   The 1^st opposite party has not received any other payment from the complainant, the policy issued on the basis of cheque was cancelled upon dishonour of the cheque. 

5.     The 1^st opposite party submits that the complainant has not produced any evidence before this Forum that further payment was received by the 1^st opposite party after  dishonour of cheque for renewal of policy.   Hence, this opposite party cannot be blamed for the conduct of the opposite parties 2 & 3 they are motor vehicle dealers.  Any dispute or confusion between the complainant and the opposite parties 2 & 3 through whom the complainant chose to renew his insurance, cannot be ground to hold the 1^st opposite party liable for dishonour of cheque or cancellation of the Policy or for payment of compensation for any act of commission/ omission of the opposite parties 2 & 3.  The 1^st opposite party denies that allegations in paragraph 3 & 4 except that cheque No.00080 dated:25.02.2014 for Rs.4,914/- was issued by the complainant for renewal through the 4^th opposite party. The 1^st opposite party states that the contract between the 3^rd opposite party and the complainant  have no knowledge and attributable to the 1^st opposite party.  The 1^st opposite party is not aware of any communication to stop presentation of a cheque.   When the cheque has been issued in favour of the 1^st opposite party, it is observed that the communication was sent to the 4^th opposite party.   The cancellation of the policy referred in paragraph 8 was necessitated by the dishonour of cheque.    In any case allegations against the opposite parties 3 & 4 cannot give raise to any cause of action against the 1^st opposite party.  The presentation of cheque was by the 1^st opposite party in whose favour it was drawn and not in favour of 4^th opposite party. The 1^st opposite party has not received premium for the policy No.MOP2223844, the same cannot be continued unless fresh premium paid by the complainant and in which case as per Section 64 VB of the Insurance Act cover can only be granted from the date of receipt of premium.  There is no cause of action arose as against the 1^st opposite party and hence, the complaint as against the 1^st opposite party is liable to be dismissed.  

6.      The brief averments in the written version filed by 2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The 2^nd opposite party states that the complaint do not contains any allegations or averments against the 2^nd opposite party and no cause of action against the 2^nd opposite party and furthermore, no specific relief has been claimed against the 2^nd opposite party and on plain reading of the complaint and documents filed in support of the complainant’s claim against the 2^nd opposite party no case has been made out against the 2^nd opposite party. It is therefore submitted that the 2^nd opposite party is neither a necessary party nor proper party to the complainant’s case and the same is not maintainable as against the 2^nd opposite party.  The 2^nd opposite party states that he is a facilitator of insurance and offers a special Motor Insurance Product from the leading insurance companies.  The insurance policies are issued by the respective insurance companies are subject to their specific terms and conditions.   The insurance premium paid by the complainant goes to the respective insurance company and not to the 2^nd opposite party.  The 2^nd opposite party states that no privity of contract with the complainant.  The sole allegation against the 2^nd opposite party in the complaint is that, the opposite parties 3 & 4 function only under the authorization of the opposite parties 1 & 2.  It is vehemently denied that the opposite parties 3 & 4 act under any authorization issued by the 2^nd opposite party.   The 2^nd opposite party states that the complainant has not replied to the legal notice dated:12.04.2014 issued by the 2^nd opposite party. This substantiates the contention that the complainant has no cause of action against the 2^nd opposite party.   In such circumstances, the 2^nd opposite party cannot be held liable for the alleged claims of the complainant.  Therefore, there is no deficiency in service on the part of the 2^nd opposite party and hence, the complaint as against the 2^nd opposite party is liable to be dismissed.

7.     In spite of receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence the 3^rd opposite party was set ex-parte.

8.      The brief averments in the written version filed by 4^th  opposite party is as follows:

The 4^th opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The 4^th opposite party states that the role of the 4^th opposite party is “nothing but an AGENT as to co-ordinate between the 1^st opposite party and the complainant, whoever is availing Insurance facility from the 1^st opposite party.   The 4^th opposite party states that no personal knowledge about visit of the 3^rd opposite party with the complainant address and about his alleged discussion with the complainant.  Hence, this opposite party do not wish to traverse the same in detail as against the 3^rd opposite party.  The complainant had never contacted the 4^th opposite party as alleged in the complaint.  It is a case of the complainant that he had sent an email dated:28.02.2014 to this opposite party informing not to present the cheque and also about the stop payment instruction which he had sent to his bank.   As stated in the foregoing paragraph No.3, followed by the collection of the cheque dated:25.02.2014 a voucher had been issued by the 4^th opposite party. Thereafter, the 4^th opposite party had sent an email dated:27.02.2014 at 02.41 P.M. to the Zonal Manager, Mr. Gautham Shenoy (Maruthi Insurance Division) and highlighted about the receipt of  the cheque from the complainant on 25^th February 2014 and hence requested for want of policy.   It is relevant to note that without any lawful and valid authority or consent from the insurer (complainant), the 3^rd opposite party should not have blocked the policy well in advance on 25.02.2014, even without receiving the cheque from the vehicle’s owner the complainant herein.  It is nothing but unilateral action on the part of the 3^rd opposite party for no insurance company will be held responsible if any untoward accident happens before getting the cheque from the customer and the realisation of the cheque from the drawer bank.   This kind of tacit procedure adopted by the 3^rd opposite party is disastrous to the insurance company in the event of occurring any accident to the subject vehicle proposed to be insured.  Hence about the unilateral blocking of the policy by the 3^rd opposite party had also been brought to the knowledge of the Zonal Manager pursuant to the e-mail referred above and soon thereafter, the said fact had been clearly appraised to the complainant on 27^th February 2014 itself.

9.     Whileso, the complainant had whimsically sent an email dated:28.02.2014 to the 4^th opposite party stating that not to present the cheque and also about his advice given to the bank to stop the payment.  The said mail had been received by the 4^th opposite party around 09.30 A.M.   Immediately, the 4^th opposite party had sent an email dated:28.02.2014 at 09.47 A.M to the higher up namely; the Chief Operating Officer (KAPICO) and highlighted about the urgency warranting to issue a policy to the customer atleast by end of the day i.e. on 28.02.2014 itself.  Then, based on the request and the genuine grievance of the 4^th opposite party, the policy blocked on 25.02.2014 by the 3^rd opposite party which is not legally valid and without any authority, had been swiftly transferred at the instance of the Zonal Manager, Maruti Insurance Division to the 4^th opposite party  at 12.23 PM on 28.02.2014 and immediately the 4^th opposite party had sent an email dated:28.02.2014 at 01.02 PM by attaching a policy copy containing the vehicle No.TN 06 F 2529.  The 4^th opposite party states that the policy has been issued with a clear note by indicating that “If the premium is paid by cheque, the issue of policy is subject to the realization of cheque”.      Equally, the complainant has no locus standi to allege the insurance company that as if the company had tarnished his image.  The cancellation of policy is governed by the terms and conditions squarely covered in the policy which has been issued in the name of the complainant based on the cheque issued by him.   Therefore making allegation in paragraphs Nos.13 & 14 against the 4^th opposite party about the presentation of cheque on 06.03.2014 of course after intimation of policy by online policy on 28.02.2014 itself.  Therefore, the contention of the complainant is not sustainable and hence, this complaint is liable to be dismissed.

10.    The brief averments in the written version filed by 5^th opposite party is as follows:

The 5^th opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The 5^th opposite party states that the 5^th opposite party was impleaded at a very later stage and no cause of action against the 5^th opposite party.  This opposite party has not committed any deficiency in service or unfair trade practice.   The 5^th opposite party states that the 5^th opposite party has occupied the same premises which was previously occupied by the 3^rd opposite party M/s. Indus Motors.   The 5^th opposite party has started functioning from the said premises at the capacity of independent dealership of Maruti by executing a new rental agreement with landlord of the said premises and there is no “privity of contract” neither with the complainant nor with the 1^st opposite party.  The 5^th opposite party states that the resolution of all the issues, matters of litigation of whatsoever nature with customers, statutory authorities, employees and / or any other aggrieved parties, if any pertaining to the period that Indus Motors was in operation, though came to light at any later date, shall be the sole responsibility of Indus Motors and Vishnu Cars will not accept any responsibility or liability towards the same.  Therefore, there is  no deficiency in service on the part of the 5^th opposite party and hence, the present complaint is liable to be dismissed as against the 5^th opposite party.

11.    To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 are marked.  Proof affidavit of the 1^st opposite party is filed and no document is marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party is filed and no document is marked on the side of the 2^nd opposite party.  Proof affidavit of the 4^th opposite party is filed and documents Ex.B1 to Ex.B7 are marked on the side of the 4^th opposite party.  Proof affidavit of the 5^th opposite party is filed and documents Ex.B8 to Ex.B10 are marked on the side of the 5^th opposite party.

12.    The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.4,423/- the premium amount paid to the opposite parties 3 & 5 with 18% interest p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.20,000/- as prayed for?

13.    On point:-

After receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence, the 3^rd opposite party was set ex-parte.  The complainant and the opposite parties 1, 2, 4 & 5 filed their respective written arguments.   Heard the complainant’s Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that he is the owner of a Maruti Alto motor car bearing Registration No.TN 06 F 2529 which was insured with the 1^st opposite party.  The said insurance policy was under for renewal and as such initially, the 4^th opposite party, one of the dealers of Maruti had approached the complainant for renewal of the same.  The complainant had issued a cheque to the 4^th opposite party for the due renewal of the insurance policy with the 1^st opposite party.  The complainant further contended that thereafter the 3^rd opposite party herein had approached the complainant and informed that it is the authorized agent for providing / renewing insurance policy of the 1^st opposite party and as such, it had also sought for payment towards renewal of the insurance policy.  Hence, the complainant had issued another cheque to the 3^rd opposite party for renewal of the insurance policy which is seen from Ex.A9, copy of the bank statement.

14.    Further the contention of the complainant is that the 3^rd opposite party approach the complainant and informed that the insurance policy pertaining to the vehicle bearing Registration No.TN 06 F 2529 has been generated and is made ready and a copy of the same was also provided.  Likewise, the 4^th opposite party also represented the same and it had also furnished a copy of the insurance policy.  The complainant after prior intimation had instructed the 4^th opposite party not to present the cheque and requested the 3^rd opposite party to issue the insurance policy since, it had given only the copy of policy first.  The complainant had also issued stop-payment instruction to his bankers with regard to the cheque issued to the 4^th opposite party.  On the other hand, the 3^rd opposite party duly encashed the cheque is seen from Ex.A9.   But for the dishonour of the cheque issued to the 4^th opposite party, the 1^st opposite party had cancelled the insurance policy issued in favour of the complainant proves unfair trade practice and deficiency in service.    

15.    Further the contention of the complainant is that as per Ex.A3, letter sent by the 1^st opposite party to the complainant and a copy of the same has been marked to the Regional Transport Officer, Chennai East and the 3^rd opposite party herein indicates the dishonour of cheque issued to the 4^th opposite party and the policy generated for the complainant

”In view of above, the motor insurance policy issued to cover the above vehicle stands cancelled form inception.   Our endorsement No.001 towards cancellation of the above policy is enclosed for your reference.

We therefore request you to return us the original policy.  If you wish to insure your vehicle afresh with us, you are requested to get in touch with the nearest Maruti Dealer.  Our Customer Service Officer will be happy to assist you”. 

Under Ex.A3, it is evident that the 1^st opposite party itself had authorised all the Maruti dealer regarding renewal of insurance policy of its company.  The 2^nd opposite party has specifically pleaded that it is no way connected with the 1^st opposite party and as such, the 2^nd opposite party is not at all a necessary party to the instant proceedings.  The copy of the computer generated insurance policy issued by the opposite parties 3 & 4 are marked as Ex.A7 & Ex.A8.   The temporary receipt issued by the 4^th opposite party for the receipt of cheque from the complainant is marked as Ex.A1.  On a careful perusal of Ex.A1, Ex.A7 & Ex.A8, it is very clear that the insurance policies of the 1^st opposite party is sourced and serviced only by the 2^nd opposite party.  Equally, on a careful perusal of Ex.A7 & Ex.A8, it is evident that the policies have been generated only by the 2^nd opposite party for and on behalf of the 1^st opposite party.   

16.    As far as the 5^th opposite party is concerned admittedly, it had taken over / acquired by the 3^rd opposite party by a Memorandum of Understanding dated:09.11.2015 as per Ex.B9 clause 7 which reads as follows:-

Clause 7: “Vishnu car hereby declares and assures that it is capable of taking over the entire operation and possession of the schedule assets and continue the operations in such a manner that it does not disturb the services offered to the existing customer of Indus Motors in any manner whatsoever and also does not affect the prejudice dealing with the Principle i.e. MSIL”

as such for any act done by the 3^rd opposite party, the 5^th opposite party is jointly liable.   Further, on a careful perusal of the Ex.A1, 7 & 8, it is evident that the opposite parties 2 to 5 are the agents of the 1^st opposite party, who are facilitating the insurance services provided by and on behalf of the 1^st opposite party.   Hence, this Forum come to a conclusion that the opposite parties 1 to 4 are collectively liable for the deficiency in service / unfair trade practice.   

17.    Further the contention of the complainant is that it is not in dispute that the complainant had issued two cheques; one to the 3^rd opposite party and other to the 4^th opposite party for the purpose of renewal of his motor car insurance policy and it is also admitted that the cheque issued to the 4^th opposite party was not honoured by him.   As far as the cheque issued to the 3^rd opposite party the same was duly encashed as evidence from Ex.A9, copy of the pass book of complainant.   On a careful perusal of the entry made in Ex.A9 dated:03.03.2014, a sum of Rs.4,423/- has been encashed by the 3^rd opposite party for the purpose of renewal of the insurance policy of the impugned vehicle. Under Ex.A3 letter dated:12.03.2014, the 1^st opposite party has cancelled the insurance policy issued in favour of the complainant on the ground that the cheque issued by him was dishonoured on his instruction for stop payment.  Ex.A3 does not speak about anything with regard to the encashment of the cheque issued to the 3^rd opposite party though a copy of Ex.A3 has been marked to the 3^rd opposite party.   It is also evident that the premium amount for renewal of insurance policy has been duly paid by the complainant and inspite of the same, the 1^st opposite party had cancelled the policy issued in favour of the complainant proves the deficiency in service.  Further the contention of the complainant is that a letter to the opposite parties 1 to 4 marked as Ex.A4 & Ex.A5 and tracking reports evidenced that the letter has been duly received by the opposite parties 1 to 4; did not even cared to verify the recording with regard to the receipt of premium amount by the 3^rd opposite party

18.    The learned Counsel for the complainant cited a decision reported in:-

Hon’ble Supreme Court, New Delhi

2019 (3) SCC page No.196

Between

Madhav Hari Joshi

-Versus-

Divisional Engineer,

Life Insurance Corporation

Held that

“Consumer Protection – Service – insurance – restitutionary compensation – when warranted – grant of, for non allotment of insurance policy and non-refund of money deposited by the customer – mere refund of money in with interest – insufficiency of, when the consumer is wrongfully deprived of the use of his monies”.    

The complainant is claiming refund of a sum of Rs.4,423/- paid towards renewal of insurance with interest and a compensation of Rs.1,00,000 with cost.

19.    The contention of the 1^st opposite party is that admittedly, the 1^st opposite party received the cheque bearing No.00080 for Rs.4,914/- in their name for the renewal of the complainant’s motor car insurance vehicle bearing Registration No.TN 06 F 2529 as per Ex.B9 subject to renewal of policy No. MOP222384444 for the period of from 06.03.2014 to 05.03.2014 was issued.  The said cheque was presented by the 1^st opposite party; at that time, there was no instruction from the complainant not to present the cheque received.  So, the policy has been issued on the basis of the said cheque as per Ex.B2.  The cheque was also dishonored for the reason that there was no sufficient fund in the complainant’s account.  But no such written memo filed in this Forum.  The 1^st opposite party has not received any other payment from the complainant.   Hence, the policy issued on the basis of cheque No.000080 was cancelled as per Ex.B7.  Further the contention of the 1^st opposite party is that the complainant has not produced any evidence before this Forum as any other payment was received by the 1^st opposite party after dishonor of cheque No.000080.   But as per Ex.B9, a cheque issued to the 3^rd opposite was duly honored.  Further the contention of the 1^st opposite party is that since the complainant has not paid the amount to the 1^st opposite party, the opposite parties cannot be blamed for the contact of opposite parties 2 & 3 who are the motor vehicle dealer.  On a careful perusal of Ex.A7 & Ex.A8, Ex.A9 & Ex.B2, the 1^st opposite party issued a policy certificate to the complainant through the 2^nd opposite party.   The 3^rd opposite party also received a cheque and was duly encashed “This policy is sourced and serviced through”; MARUTHI IINSURANCE BROKING PRIVATE LIMITED proves that the 2^nd opposite party is an agent of the 1^st opposite party.  Therefore, the act of commission / omission of the opposite parties 1 to 4 are jointly and severally liable.  Moreover the 1^st opposite party admitted the cheque No.00080 dated:25.02.2014 for Rs.4,914/-through the 4^th opposite party by the complainant for renewal of policy as per Ex.B1 proves that the 4^th opposite party is the agent of the 2^nd opposite party.  According to the Indian Contract Act, 1872 under Law of Agency, the opposite parties 2 & 4 becomes Agent and Sub-Agent of the 1^st opposite party.

20.    The contention of the 2^nd opposite party is that the complaint do not contains any allegations or averments against the 2^nd opposite party and no cause of action  against the 2^nd opposite party and furthermore, no specific relief has been claimed against the 2^nd opposite party and on plain reading of the complaint and documents filed in support of the complainant’s claim against the 2^nd opposite party has not been made out.   It is therefore contended that the 2^nd opposite party is neither a necessary party nor proper party to the complainant’s case and the same is not maintainable as against the 2^nd opposite party not acceptable because the policy has been issued to the complainant through the 2^nd opposite party as per Ex.B2 and the premium received from the complainant by the 1^st opposite party for the issuance of policy through the opposite party 4 & 2  as per Ex.B1 proves both are necessary parties to the complainant.   Further on a careful reading of written version para 5 and in para 4 of written arguments proves that the 2^nd opposite party is an Insurance Broking Agent of the 1^st opposite party.  Further the contention of the 2^nd opposite party is that no privity of contract with the complainant.  It is not acceptable either on facts or law, because the payment of premium through the 4^th opposite party and policy issued through the 2^nd opposite party as per Ex.B1, Ex.B2, Ex.B5 & Ex.B6 proves that the 2^nd opposite party also jointly liable whatever the act or omission committed by the 4^th opposite party.  Further the contention of the 2^nd opposite party is that has not replied to the legal notice issued by the complainant itself prove the deficiency of service by the 2^nd opposite party.

21.    The 4^th opposite party clearly admits in his written version & written arguments that the role of the 4^th opposite party is “nothing but an agent as to co-ordinator between the 1^st opposite party and the complainant, whoever is availing Insurance facility from the 1^st opposite party.   Further the contention of the 4^th opposite party is that no personal knowledge about visit of the 3^rd opposite party with the complainant; is not acceptable, because the 4^th opposite party had pleaded and contended in its written version and written arguments that “It is relevant to note that the 3^rd opposite party should not have blocked the policy well in advance on 25.02.2014, even without receiving the cheque from the vehicle’s owner the complainant herein, it is nothing but unilateral action on the part of the 3^rd opposite party for no insurance company will be held responsible” proves that the 4^th opposite party has knowledge about every transaction between the complainant and 3^rd opposite party in receiving the cheque and encashing the cheque by the 1^st opposite party.   Further the contention of 4^th opposite party is that the 3^rd opposite party locked insurance already in favour of the complainant without even issuing the cheque and such act of the 3^rd opposite party would squarely constitute a deceitful practice, which is unethical and unfair trade practice proves that the 4^th opposite party had knowledge about the transaction between the complainant and the 3^rd opposite party.  Further the contention of the 4^th opposite party is that the policy has been issued with a clear note by indicating that “If the premium is paid by cheque, the issue of policy is subject to the realization of cheque” as per Ex.B2.  

22.     The contention of the 5^th opposite party is that the 5^th opposite party was impleaded at a very later stage and no cause of action against the 5^th opposite party.  This opposite party has not committed any deficiency in service or unfair trade practice.   Further the contention of the 5^th opposite party is that the 5^th opposite party has occupied the same premises which was previously occupied by the 3^rd opposite party M/s. Indus Motors.   The 5^th opposite party has started functioning from the said premises at the capacity of independent dealership of Maruti by executing a new rental agreement with landlord of the said premises Ex.B8, Ex.B9 & Ex.B10 proves no “privity of contract” neither with the complainant nor with the 1^st opposite party.   Therefore, there is no question of deficiency in service or unfair trade practice as against this 5^th opposite party.  Hence, the present complaint is liable to be dismissed as against the 5^th opposite party. Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 to 4 are jointly and severally liable to refund a sum of Rs.4,423/- being the premium amount paid to the 3^rd opposite party and to pay a sum of Rs.20,000/- towards compensation for mental agony, deficiency in service and unfair trade practice with cost of Rs.10,000/- to the complainant.  The complaint as against the 5^th opposite party is liable to be dismissed.

In the result, this complaint is allowed in part.  The opposite parties 1 to 4 are jointly and severally liable to refund a sum of Rs.4,423/- (Rupees Four thousand four hundred and twenty three only) being the premium amount paid to the 3^rd opposite party and to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards compensation for mental agony, deficiency in service and unfair trade practice with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.   The complaint as against the 5^th opposite party is hereby dismissed.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 05^th day of March 2020. 

 

MEMBER                                                                                                                                                                                           PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	25.02.2014	Copy of receipt issued by the 4th opposite party
Ex.A2	28.02.2014	Copy of print out of the email sent by the complainant to the 3rd opposite party
Ex.A3	12.03.2014	Copy of letter issued by the 1st opposite party to the complainant with copy to the 3rd opposite party
Ex.A4	02.04.2014	Copy of reply issued by the complainant to the opposite parties
Ex.A5		Copy of postal receipts for sending the reply dated:02.04.2014
Ex.A6		Copy of postal acknowledgment cards
Ex.A7		Copy of policy copy given by the 3rd opposite party
Ex.A8		Copy of print out of the policy copy sent through email by the 4th opposite party
Ex.A9		Copy of the bank pass book of the complainant
Ex.A10		Copy of letter sent by the 2nd opposite party to the complainant after filing of this complaint
Ex.A11		Copy of the cover in which the above letter was sent by the 2nd opposite party after filing of this complaint

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-  NIL

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-  NIL

4^TH OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1	25.02.2014	Copy of temporary receipt voucher viz S.No.25775 issued to the complainant
Ex.B2	25.02.2014	Copy of Certificate Cum Policy Schedule with the 1st opposite party
Ex.B3	27.02.2014	Copy of email from the 4th opposite party
Ex.B4	28.02.2014	Copy of email from the complainant
Ex.B5	28.02.2014	Copy of email to the complainant with policy copy
Ex.B6	28.02.2014	Copy of email to the complainant for information
Ex.B7	12.03.2014	Copy of letter from the 1st opposite party to the complainant

 

5^TH  OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B8	11.02.2015	Copy of Rental Agreement
Ex.B9	09.01.2015	Copy of Memorandum of Understanding
Ex.B10	05.03.2015	Copy of Commercial Tax Department Registration

 

 

MEMBER                                                                                                                                                                                         PRESIDENT