BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th of December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.220/2010
(Admitted on 21.08.2010)
Smt. Zarina,
Wo. P.Mohammad Ashraf,
Aged about 35 years,
RA. Apoorva Mansion,
K.S. Rao Nagar, Karnada,
Mulki, Mangalore Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.K.B. Arasa).
VERSUS
1. Ms.Health India TPA Services Pvt. Ltd.,
Anand Commercial Complex,
103 B, LBS Marg, Gandhi Nagar,
Vikhroli W, Mumbai 400 083,
Rep. by its Branch Manager.
(Opposite Party No.1: Appeared in person).
2. The Asst. Director,
Ministry of Textiles,
Office of the Development Commissioner
(Handicrafts),
Handicraft Marketing and Service
Extension Centre,
Jeppu Market,
Mangalore – 575 003 ……. OPPOSITE PARTIES
(Opposite Party No.2: Appeared in person).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, the Opposite Party No.2 issued a Health Card in the name of the Complainant for the settlement of the mediclaim bill of Rs.2,735/-, the 2nd Opposite Party as per their letter dated 31.03.2010 forwarded a cheque dated 02.12.2009 issued by ICICI Lombard General Insurance Company Limited, Mumbai towards the settlement of the claim. The Opposite Party No.1 as per their letter dated 02.12.2009 on behalf of ICICI Lombard General Insurance Company drawn a cheque in the name of Complainant. The above said cheque, as per the letter of Opposite Party No.2 dated 31.03.2010 sent to the Complainant. On 02.04.2010 the Complainant received the above said letter and the cheque. On 05.04.2010 the Complainant presented the above said cheque but the same has been returned with ‘insufficient funds – outdated’ on 07.04.2010. Thereafter, the Complainant written a letter to the Opposite Party No.1 through telephone informed to Opposite Party No.2 but the Opposite Parties despite of receiving the letter as well as the information failed to send a fresh cheque. Thereafter, Complainant issued a Lawyer’s notice dated 05.06.2010 demanded for payment of the cheque but the same has not been complied by the Opposite Parties and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to issue a fresh cheque for Rs.2,735/- along with interest at 12% p.a. from 02.12.2009 and also claimed Rs.10,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 and 2 appeared in person and filed separate version.
Opposite Party No.1 stated that, they had issued the claim settlement cheque in the stipulated time and it was Complainant’s mistake not to deposit the cheque dated 02.12.2009 for Rs.2,735/- before it become stale and stated that, they are not responsible for not depositing the cheque with the bank in time. On her request they have re-issued a new cheque dated 28.06.2010 and this cheque was cleared in their bank on 08.07.2010 and stated that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.2 stated that, the mediclaim application was directly sent by the Complainant to ICICI Lombard General Insurance Company Bangalore and cheque for Rs.2,735/- sent by M/s. ICICI Lombard General Insurance Company on 25.03.2010 was received by this Opposite Party office on 31.03.2010. It was re-forwarded to the Complainant on the same day. It is sated that, on receipt of the Lawyer’s notice they have facilitated to issue a fresh cheque and the same has been received by the Complainant by speed post and stated that there is no negligence and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Smt.Zarina (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C8. One Sri.Mahendra J. Parekh (RW1) – Director and CFO of the Opposite Party No.1 filed counter affidavit and produced seven (7) documents as listed in the annexure. The Complainant filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
It is admitted that, the Opposite Party No.2 issued a Health Card in the name of the Complainant for the settlement of the mediclaim bill for Rs.2,735/-, the 2nd Opposite Party as per their letter dated 31.03.2010 forwarded a cheque No.712062 dated 02.12.2009 issued by M/s. ICICI Lombard General Insurance Company Mumbai towards the settlement of the Complainant’s claim. The Opposite Party No.1 as per their letter dated 02.12.2009 on behalf of M/s. ICICI Lombard General Insurance Company drawn a cheque dated 02.12.2009 for Rs.2,735/- in the name of the Complainant. The above said cheque, as per the letter of the Opposite Party No.2 dated 31.03.2010 sent to the Complainant. It is admitted that, on 2.4.2010 the Complainant received the above said letter and the cheque. On 05.04.2010 the Complainant presented the above said cheque but the same has been returned with an endorsement ‘insufficient – outdated’ on 07.04.2010. Thereafter, the Complainant written a letter dated 07.04.2010 to the Opposite Party No.1 about the dishonour of the cheque and requested to issue a fresh cheque.
Now the allegation of the Complainant is that, even though the Opposite Parties admitted the above fact, even after the written request made by the Complainant, the Opposite Parties failed to send a fresh cheque. Thereafter, no other option the Complainant issued a legal notice but the Opposite Parties not complied the demand made therein, hence came up with this complaint.
Both the Opposite Parties appeared through their representative and admitted the dishonour of the cheque but stated that, they have issued a claim settlement cheque in the stipulated time and it was the Complainant’s mistake not to deposit the cheque No.712062 dated 02.12.2009 before it become stale. On her request, the Opposite Parties re-issued the cheque dated 28.06.2010 for Rs.2,735/- and this cheque was cleared on 08.07.2010.
From the above admitted facts in para No.1 as discussed herein above, it is proved that, the Opposite Parties despite of receiving legal notice and request letter of the Complainant before filing the above consumer complaint, the Opposite Parties were not bothered to issue a fresh cheque. It could be seen on record that, the disputed cheque has been issued only on 28.06.2010 i.e., before registering the above consumer complaint. There is a delay on the part of the Opposite Parties while complying the above said cheque. It is pertinent to note that, on 07.04.2010 i.e., before filing the above consumer complaint the Complainant himself wrote a letter to the Opposite Parties to send a fresh cheque but the Opposite Parties failed to do the same and thereafter left with no other option the Complainant engaged the service of the legal practitioner in this case to get the cheque in question. It could be seen on record that, after receipt of the legal notice the Opposite Parties sent a fresh cheque dated 28.06.2010. Because of the deficiency on the part of the Opposite Parties, the Complainant was forced to engage an service of the legal practitioner to issue a legal notice by spending advocate fee in order to get a fresh cheque from the Opposite Parties. We observed that, the Opposite Parties ought to have issued a fresh cheque atleast after the receipt of the letter dated 07.04.2010 issued by the Complainant. Moreover, the Opposite Parties though appeared before this FORA in person but not bothered to contradict or controvert the evidence in chief filed by the Complainant. The entire oral/documentary evidence filed by the Complainant is not controverted by the Opposite Parties, which requires no further proof. By considering the material on record, there is a considerable delay on the part of the Opposite Parties while issuing a fresh cheque in this case. It shows their gross negligence towards the customers/insured which amounts to deficiency in service.
By considering the delay and the amount spent by the Complainant by engaging the service of the advocate the reasonable compensation is entitled by the Complainant in this case. By considering the above facts and circumstances, we direct the Opposite Parties to pay Rs.3,000/- as compensation and cost of the proceedings for the deficiency committed by the Opposite Parties. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are jointly and severely directed to pay Rs.2,000/- (Rupees two thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29th day of December 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Zarina – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 31.03.2010: The letter of the Opposite Party No.2 to the Complainant.
Ex C2 – 02.12.2009: Claim payment advice.
Ex C3 – 02.12.2009: Original cheque No.712062 for Rs.2,735/-.
Ex C4 – 07.06.2010: The endorsement of State Bank of India.
Ex C5 – 07.04.2010: Letter of the Complainant to the Opposite Party No.1.
Ex C6 – 05.06.2010: Copy of the Lawyer’s notice.
Ex C7 - : Postal acknowledgement.
Ex C8 – 18.06.2010: Reply of the Opposite Party No.1.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Mahendra J. Parekh – Director and CFO of the Opposite Party No.1.
Documents produced on behalf of the Opposite Parties:
Doc. No.1: 28.09.2010: Authorization letter.
Doc. No.2: 28.09.2010: Clarification letter by the Opposite Party.
Doc. No.3: 18.06.2010: Reply letter to Advocate Sri.K.B. Arasa.
Doc. No.4: 05.06.2010: Lawyer’s notice issued to the Opposite Parties.
Doc. No.5: : Postal receipt.
Doc. No.6: 20.10.2010: Bank statement copy dated 07.04.2010.
Doc. No.7: 22.10.2010: Bank statement copy dated 08.07.2010.
Dated:29.12.2010 PRESIDENT
