DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No: 753 of 2009]

                                                                Date of Institution  : 18.05.2009

                                                                                        Date of Decision    : 16.03.2012

                                                                                        --------------------------------------

Manjit Singh, aged about 42 years, s/o Late Sh. Joginder Singh, R/o Village Khera Dewan Singh Wala, Tehsil and District Fatehgarh Sahib, Punjab.

….Complainant.

(VERSUS)

[1]        Pace Marketing through its Authorized Signatory, Personal and Auto Credit Establishment, SCO No. 53-54, 2^nd Floor, Sector 8-C, Madhya Marg, U.T. Chandigarh.

[2]            I.C.I.C.I, through its Authorized Signatory, Lombard (Motor - Insurance), SCO No. 24-25, First Floor, Sector 8-C, Madhya Marg, Chandigarh.

---Opposite Parties.

BEFORE:            SHRI LAKSHMAN SHARMA                  PRESIDENT

                        MRS. MADHU MUTNEJA                             MEMBER

                        SHRI JASWINDER SINGH SIDHU            MEMBER

Argued By:            None for the Complainant.

                        Opposite Party No.1 ex-parte.

                        Sh. Sandeep Suri, Advocate for Opposite Party No.2.

PER JASWINDER SINGH SIDHU, MEMBER

                        The present case was initially assigned to the Hon’ble Lady Member for writing the judgment, on her refusal and reassignment; it is being disposed of in following terms.                                                                                                                                      [1]                    Complainant has filed the present complaint against the Opposite Parties on the grounds that the complainant who owned a Ford Fiesta 1.4 car (Model 2006) and on being approached by Opposite Party No.2 through their Agent/ Opposite Party No.1 subscribed for a comprehensive insurance policy by paying an amount of Rs.23,162/- on 1.2.2007 through a Cheque bearing No. 021416 dated 27.2.2007. The policy was effective from 27.2.2007 to 26.2.2008. Opposite Party No.2 issued a cover note bearing No. 4173417 for the same.  Complainant claims that the said Cheque was to be drawn at ICICI Bank, Phase-7 Branch, Mohali, Punjab.

                        Complainant further states that on having received intimation from Opposite Party No.1 he collected the policy document of the insurance from their office and the same is annexed at Pg. 14, 15 and 17 of this Complaint. The Complainant claims that his vehicle unfortunately met with an accident on 14.9.2007 and intimation was made to Opposite Party No.2 about the happening of the accident. Thereafter, the Complainant towed the vehicle to Bhagat Ford at Industrial Area, U.T. Chandigarh and entrusted them the work of repairs. The Opposite Party No.2 had deputed a surveyor to asses the loss and on the asking of the Surveyor Complainant handed over the insurance papers apart from signing the necessary documents for the settlement of the claim. 

                        The Complainant while pursuing his case of claim was informed that the premium paid by the Complainant through Cheque was not received/ credited in the account of Opposite Party No.2; therefore, his claim could not be processed. The Complainant claims that the Opposite Party No.2 had itself failed to present the Cheque at the Bank, thus, the insurance policy for which the Complainant had subscribed has not come into existence.    

                        The Complainant pursued the matter with Opposite Party No.1 and 2 but not having received any proper reply, served them a legal notice dated 11.10.2007 which was not answered by the Opposite Parties.  The Complainant also claims that an amount of Rs.77,286/- which he had incurred in the repair of the vehicle in question was paid back under compelling circumstances. Thus, alleging deficiency in service as well as unfair trade practice on the part of the Opposite Parties, has claimed the following reliefs:- 

[2]                    The Opposite Party No.1 though could not be served through post and process server, was duly served through a publication in daily newspaper ‘Desh Sewak’ dated 8^th September, 2011. Opposite Party No.1 having failed to appear in this Forum either itself or through its authorized agent was proceeded against ex-parte vide order dated 20.9.2011.

[3]        The Opposite Party No.2 has contested the claim of the complainant by filing their reply taking preliminary objections to the effect that the present complaint has been filed against an entity called “ICICI” through its authorized signatory Lombard (Motor Insurance). Opposite Party No.2 claims that the name of the answering Opposite Party which has been served with the notice is actually ICICI Lombard General Insurance Co. Ltd. and the complaint deserves to be dismissed on this score alone.

                        Further Opposite Party No.2 claims that the insurance policy issued by it was canceled as the Cheque No. 21416 of Rs.23,162/- bounced on presentation  and an intimation dated 8.3.2007 qua the cancellation of this policy as well as the concerned RTA was dispatched on 27.3.2007.  The claim demanded by the Complainant in respect of the loss caused on 14.9.2007 is not covered as the policy stood terminated/ cancelled. The Complainant not having paid the premium towards the insurance hence the same has not come into force as the contract of insurance does not create any binding liabilities on the insurance company in the absence of the payment of the premium.   Hence, the Opposite Party No. 2 claims that the present complaint does not deserve any merit and deserves dismissal on aforementioned grounds.

                        On merits, the Opposite Party No.2 has further contested the claim of the Complainant by giving a para-wise reply to all the averments of the present complaint. Though the allegations of the Complainant as mentioned in his complaint are denied however, all the contents that are related to the records are admitted to that extent only. Having taken strong objections to the present complaint, Opposite Party No. 2 has also denied its liability to pay on account of the loss suffered by the Complainant in order to set off his liabilities of the bill raised by the repairer of the vehicle. Thus, Opposite Party No. 2 prays for the dismissal of the present Complaint with heavy costs in its favour.    

[4]                    Parties led their respective evidences.

[5]                    As the Complainant failed to appear on the last date of hearing i.e. 12.03.2012, the arguments of the counsel for the OP No.2 were heard (Opposite Party No.1 being ex-parte). Hence, we have proceeded to dispose of the present complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), vide order dated 12.03.2012

[6]                    Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for Opposite Party No.2, we have come to the following conclusions.

[7]                    The present complaint has been preferred by the Complainant on the ground that having paid the premium to the insurance company, through a Cheque bearing No. 21416, dated 27.2.2007 of an amount of Rs.23,162/- has qualified to be a consumer of Opposite Party No.2.  In support of his claim, the Complainant has annexed the copy of registration of the vehicle, cover note no. 1367412, dated 27.2.2006, cover note no. 4173417 dated 1.2.2007, and insurance policy bearing no. 1367412 dated 3.2.2007, along with statement of account as Annexures from Pg. No. 12 to 20.

[8]                    The Opposite Party No. 2 has strongly contested the claim of the Complainant on the ground that the insurance policy issued to him has been cancelled in the absence of payment of the premium promised by the Complainant while handing over the Cheque bearing No. 21416 dated 27.2.2007.  The Opposite Party No. 2 has also stood its ground that it was very much within its power to cancel the policy as the Cheque dated 27.2.2007 had bounced due to insufficient funds in the account of the Complainant. The Opposite Party No. 2 has further stated that it had promptly informed the Complainant about the cancellation through its communication dated 8.3.2007 sent to the Complainant on 27.3.2007, along with intimation to the RTA, Chandigarh on the same date. Hence, having done its part of responsibility is not liable to entertain the claim of the Complainant that has arisen after the cancellation of the Policy. Though the Opposite Party No. 2 has failed to bring on record, the copy of the dishonoured Cheque or the certificate of the Banker issued in this regard, while submitting their reply. At the same time the Opposite Party No. 2 has neither returned the dishonoured Cheque in question while intimating the Complainant about the cancellation of the insurance, through its letter dated 8.3.2007.   

[9]                    The fact with regard to the insufficient funds in the account of the Complainant can be established from page 18, 19 and 20 i.e. the statement of account as tendered by the Complainant from which it can be ascertained that during the period starting 1.2.2007 till 21.3.2007 the no amount in excess of Rs.23,126/-  promised to the Opposite Party-2  is  available. Hence, the claim made by the Opposite Party No. 2 about the insufficient funds, while presenting the Cheque of Rs.23,126/- stands fortified. 

[10]                  It is also important to visit National Insurance Company Limited Versus Seema Malhotra and Others, Appeal (Civil) 1350 of 2001, decided by the Hon’ble Apex Court on 20.2.2001, wherein it is held that:-

“When the insured fails to pay the premium promised, or when the Cheque issued by him towards the premium is returned dishonoured by the bank concerned the insurer need not perform his part of the promise.”

[11]                  Hence, in the light of the above judgment we do not find any merit in the present complaint and the same is dismissed, without costs. The parties are left to bear their own costs.

[12]                  Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

16^th March, 2012.                                                                                      

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)