STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.35 of 2010)

                                                                   Date of Institution: 27.01.2010

                                                                   Date of Decision  : 03.11.2010.

Sh. Ashuthosh Sharma son of Sh. Narinder Kumar Sharma resident of House No.1509, Sector 4, Panchkula.

……Appellant

V e r s u s

1.      National Insurance Company Limited, Divisional Office 1, 2^nd Floor, SCO No.133-135, Sector 17-C, Chandigarh through its Branch Manager.

2.      ICICI Lombard General Insurance, Quite Office, Sector 41, Chandigarh through its Branch Manager.

3.      Sh. Sanjeev Kapoor, Agent, ICICI Lombard General Insurance, Quite Office, Sector 41, Chandigarh.

4.      Hind Motors (India) Limited, H.Q.15, Industrial Area, Phase I, Chandigarh through its Branch Manager.

              ....Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER

                        SH. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. Ashutosh Sharma, appellant in person.

                        Sh. B. S. Taunque, Advocate for respondent No.1.

                        Sh. Sandeep Suri, Advocate for respondent No.2.

                        None for respondent No.3.

                        Sh. Gagan Aggarwal, Advocate for respondent No.4.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     This is complainant’s appeal under section 15 of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act) against the order dated 16.12.2009, passed by Learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be referred as District Forum), vide which the complaint filed by him was dismissed finding no deficiency in service on the part of OPs.

2.                     The complainant owns a car, which was insured by him with OP No.2 for the period from 26.12.2006 to 25.12.2007. In this respect, a cover note dated 26.12.2006 was issued to him. The said policy expired on 25.12.2007 and therefore, he got the vehicle insured with OP No.1 w.e.f. 26.12.2007 to 25.12.2008. He met with an accident on 5.1.2008 in which his car was damaged. Sh. Rajneesh Bhardwaj was appointed as a Surveyor who submitted his report (Annexure C-2). The vehicle was repaired by Hind Motors (OP No.4) and it was delivered to the complainant on 12.1.2008 after receiving the amount of Rs.5870/- against bill of Rs.19,073/-. The balance amount was to be charged by them from OP No.1 who was the insurer of the vehicle. Subsequently, OP No.1 refused to make the payment upon which the vehicle was called to the workshop by OP No.4, it was forcibly impounded and they refused to release the same unless the balance payment was made. The complainant, therefore, paid sum of Rs.13,200/- on 25.3.2008 and got the vehicle released. When the complainant approached OP No.1 for getting the claim amount, they refused to entertain the claim alleging that he had got no insurance policy of the vehicle for the period from 26.12.2006 to 25.12.2007 who had claimed no claim bonus from OP No.1. He then approached OP No.2, as the policy was valid up to 30.1.2008. This fact he came to know subsequently because he had paid the insurance amount in cash to OP No.3 who was the agent of OP No.2 and he was required to deposit the said amount with OP No.2, which was paid by him through his own cheuqe, which subsequently bounced and consequently, the insurance was delayed by a month. This fact was not brought to his notice by OP No.2 or OP No.3 and therefore, presuming that his policy was valid up to 25.12.2007, he got it renewed from OP No.1 on 26.12.2007. It was alleged that all the four were deficient in rendering service to him and therefore, OPs No.1 to 3 should make the payment of R.19,073/- plus interest @18% per annum till realization of the amount. He also prayed for Rs.1 Lac as compensation for harassment, deficiency in service and humiliation and Rs.22,000/- as cost of litigation.

3.                     The contention of OP No.1 is that the vehicle was insured at the relevant time with them as well as with OP No.2, that the complainant had submitted the claim with them, a surveyor was appointed who submitted his report. The complainant then requested them to forward his claim to OP No.2 and the same was therefore, sent to OP No.2 for payment. It was alleged that since the claim had been transferred to OP No.2 at the request of the complainant, they had, therefore, no liability to pay the amount.

4.                     According to OP No.2, no claim was lodged with them by the complainant and therefore, no amount is payable under the policy. It was admitted that the policy was issued from 26.12.2006 to 25.12.2007. They were not aware by whom the cheque for insurance premium was issued and that they do not accept cash payments. It was alleged that the premium for Annexure C-1 was not received by them and therefore, the policy was cancelled. However, subsequently a fresh policy was issued, which is Annexure C-5 on receipt of payment from the complainant. It was denied if Sanjeev Kapoor (OP No.3) was their employee.

5.                     It was alleged by Hind Motors (OP No.4) that serious allegations leveled by the complainant could not be adjudicated and decided by the District Forum in a summary procedure and therefore, the complaint should be dismissed. According to them, they were entitled to a sum of Rs.19,073/-  for the repair of the vehicle. It was denied if they called the vehicle on fraudulent grounds or impounded the same and released it only after payment of Rs.13,200/- was made by the complainant. It was denied that if there was any deficiency in service on their part.

6.                     Sh. Sanjeev Kapoor (OP No.3) was served for 17.11.2008 but he did not appear and was proceeded against exparte.

7.                     Both the parties were given opportunity to lead evidence in support of their contentions.

8.                     After hearing the learned counsel for the parties and perusing the record, the learned District Forum vide its order dated 16.12.2009 held that since the complainant did not lodge the claim with OP No.2 after he withdrew the claim from OP No.1, there was no deficiency on the part of any of the OPs. The complaint was accordingly dismissed vide the impugned order, which has been challenged by the complainant through this appeal.

9.                     We have heard the learned counsel for the parties and have perused the record.

10.                   Annexure C-1 is the Certificate-cum-Policy Schedule issued by OP No.2 insuring the vehicle from 26.12.2006 to 25.12.2007. They subsequently issued another Certificate-cum-Policy Schedule (Annexure C-5) in which the same vehicle is shown to have been insured from 3.12.2007 to 30.1.2008. The earlier certificate (Annexure C-1) was issued on 30.12.2006 and the subsequent certificate (Annexure C-5) was issued about a month later on 2.2.2007. OP No.2 did not produce any evidence to suggest as to why the two policies were issued by it for the said period from 30.1.2007 to 25.12.2007. The contention of the complainant is that in fact the cover note (C-1) was issued to him on 26.12.2006 when he made the cash payment to OP No.3 who was the agent of OP No.2. OP No.3 has not come forward to deny this fact. It is argued by the complainant/ appellant that after obtaining the said premium amount, OP No.3 may have issued his own cheque in favour of OP No.2 towards the premium amount but the said cheque bounced and therefore, OP No.2 treated as if no premium has been paid. OP No.2 did not deny this fact though there could be sufficient evidence with them to prove as to who had issued the said cheque. In Para No.14 of the reply filed by OP No.2, it is mentioned that “the company is not aware as to by whom the cheque for payment of insurance premium was issued.” It is very strange on the part of ICICI Lombard General Insurance (OP No.2) which had not only received the cheque but also got it encashed and got the money but even then they contended that it is not known as to who had issued the cheque or from whose Bank Account the said cheque was encashed. They did not produce any document to suggest if OP No.3 was not their agent. They further did not produce any document to suggest as to through whom the Insurance Cover (Annexure C-1) was initially issued to the complainant. These facts, therefore, sufficiently prove that OP No.3 was the agent of OP No.2 and an adverse inference has to be drawn against them and against OP No.3 to the effect that he had received the premium amount from the complainant and had issued Cover Note (Annexure C-1) but submitted his own cheque in lieu of the cash received by him from the complainant. It was his cheque, which bounced and it cannot be said that there was any nonpayment of the premium amount on the part of the complainant. If the agent had been directed not to accept cash payment, it was again the deficiency on the part of their agent who received cash from the complainant. OP No.2, therefore, cannot escape its liability, which resulted in loss of insurance cover to the car of the complainant from 26.12.2006 to 30.1.2007. It is precisely this episode, which created problems for the complainant. The Insurance Cover issued to the complainant vide Annexure C-1 was cancelled by OP No.2 and subsequently when OP No.3 paid the amount received by him from the complainant, a new policy (Annexure C-5) was issued from 31.1.2007 to 30.1.2008. However, the complainant did not know about it and when the Insurance Cover under Annexure C-1 expired on 25.12.2007, he got the vehicle further insured from OP No.1 vide Insurance Cover (Annexure A-1). This policy was issued on 26.12.2007 and was valid up to 25.12.2008. There was, therefore, no fault on the part of the complainant and his complaint could not have been dismissed by the learned District Forum.

11.                   Since, the subsequent policy (Annexure C-5) covers the vehicle up to 30.1.2008, before that date, the complainant presuming that his earlier policy (Annexure C-1) had expired on 25.12.2007, had taken the Insurance Cover (Annexure A-1) from OP No.1 w.e.f. 26.12.2007. There were two policies covering the vehicle of the complainant. Unfortunately, even  inspite of two insurance covers, he has not been paid any compensation by any of the companies.

12.                   There is sufficient merit in the contention of the complainant that presuming that the Insurance Cover given by OP No.1 had started w.e.f. 26.12.2007 and the accident took place on 5.1.2008, he therefore submitted the claim with OP No.1. However, when he came to know of hanky panky done by OPs No.2 and 3, he requested OP No.1 to forward his claim to OP No.2. The complainant moved an application (Annexure A-3) for forwarding the claim application to OP No.2 on the basis of which, the claim papers along with the surveyor’s report were forwarded by OP No.1 to OP No.2 vide letter dated 9.4.2008. OP No.1 has produced the copy of the said letter, which was duly received by OP No.2 on 10.4.2008. Interestingly, OP No.2 did not inform the complainant, though his car was insured by them, to submit any documents or to submit any claim with them. This was gross negligence in service on the part of OP No.2.

13.                   According to the surveyor’s report (Annexure C-3), a sum of Rs.15,487/- was payable to the complainant. The report of the surveyor carries sufficient weight and therefore, we are of the opinion that OP No.2 was liable to pay the said amount to the complainant, which it has failed to pay.

14.                   The claim papers had been forwarded by OP No.1 to OP No.2 on 9.4.2008 and were received by OP No.2 on 10.4.2008. However, no payment was made by OP No.2 to the complainant till date. The contention of OP No.2 is that since, no claim was lodged with them, they were not liable to pay though the claim lodged by the complainant with OP No.1 had already been forwarded to them by OP No.1 promptly. This argument of OP No.2 is, therefore, devoid of merit and cannot sustain. It appears to have been coined now to cover the delay in the payment of compensation to the complainant.

15.                   As discussed above, the entire controversy was created due to the conduct of Sh. Sanjeev Kapoor (OP No.3). He firstly received cash payment from the complainant though according to OP No.2, the agents were not entitled to receive cash. Then he issued his own cheque, which was dishonored. It was due to his deficiency in service that the earlier policy (Annexure C-1) initially issued in his favour by OP No.2 was cancelled. He took about one month in making the payment of the said amount to OP No.2 and the policy was subsequently started w.e.f. 31.1.2007. He, therefore, cannot go scot-free for the deficiency in service.

16.                   In view of the above discussion, we are of the opinion that the complaint could not have been dismissed by the learned District Forum as there was deficiency in service on the part of OPs No.2 and 3. The appeal filed by the complainant is accordingly allowed with costs and the complaint is allowed. OP No.2 is directed to pay to the complainant Rs.15,485/- as mentioned by the surveyor in his report dated 12.1.2008 along with interest @9% per annum since 12.2.2008 (i.e. one month after the report of the surveyor) till the amount is paid to the complainant. Sh. Sanjeev Kapoor (OP No.3) shall pay to the complainant Rs.10,000/- as compensation for deficiency in service  on his part as referred to above. If the amount is not paid by them within 30 days from the date of receipt of copy of the order, OPs would be liable to pay the amount along with interest @12% per annum since the date of filing of the complaint till its payment. OPs would jointly and severally pay the litigation costs of Rs.5,000/- of this appeal.

17.                   Copies of this order be sent to the parties free of charge.

Pronounced.

3^rd November 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(F.A. NO. 35 OF 2010)

Argued by:          Sh. Ashutosh Sharma, appellant in person.

                        Sh. B. S. Taunque, Advocate for respondent No.1.

                        Sh. Sandeep Suri, Advocate for respondent No.2.

                        None for respondent No.3.

                        Sh. Gagan Aggarwal, Advocate for respondent No.4.

Dated the 3^rd day of November, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal filed by the OPs has been allowed.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER