Tamil Nadu

StateCommission

FA/483/2012

ICICI BANK LIMITED, THE MANAGER - Complainant(s)

Versus

R. SETTIYAGOUNDER - Opp.Party(s)

V.V. GIRIDHAR

22 Sep 2015

ORDER

                                   BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,CHENNAI

BEFORE :   THIRU.A.K.ANNAMALAI                          PRESIDING JUDICIAL MEMBER

                                                      TMT.P.BAKIYAVATHI                               MEMBER                                                                                 

F.A.NO.483/2012

(Against the order in CC.No.101/2007, dated 08.04.2008 on the file of DCDRF, Salem)

DATED THIS THE 22^nd DAY OF SEPTEMBER 2015

ICICI Bank Limited,

40, Bazaar Street,                                                   M/s.V.V.Giridhar

Idappadi, Salem District 637101                      Counsel for appellant / 2^nd opp.party

Rep by its Manager.

-vs-

1. R.Settiyagounder,

    S/o.Ramasamy Gounder,

    No.72 D, Kattuvala Veerappan Palayam,             M/s.S.Kaithamalai Kumaran

    Pudur Post, Edapadi,                                   Counsel for 1^st Respondent /

    Salem 637 105.                                                                     Complainant

2. Royal Sundaram Alliance,

    Insurance Company Limited,

    TVS Co-operative Stores Buildings                      M/s.M.B.Gopalan

    37, Krishna Rao, Tank Street,                        Counsel for 2^nd Respondent /

    Madurai 625 001.                                                               2^nd Opp.party

    Rep by its Branch Manager.

          The 1^st Respondent is the complainant filed a complaint before the District Forum against the opposite parties praying certain relief.  The District Forum allowed the complaint.  Against the said order, the appellant /2^nd opposite party filed this appeal praying for to setaside the order of the District Forum in CC.No.101/2007, dated 08.04.2008.   

          This appeal coming before us for hearing finally on 04.08.2015, upon hearing the arguments on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

          The 2^nd opposite party is the appellant.

2.       The complainant obtained a comprehensive Insurance cover for his vehicle bearing Regn.No.TN.30 U 5970 on 14.5.2007 by issuing a cheque for Rs.34,839/- towards premium drawn on 2^nd opposite party / appellant to the 1^st opposite party and the complainant’s vehicle met with an accident on 6.6.2007 and he approached the 1^st opposite party on 8.6.2007 for the purpose of making claim of insurance for the accident.  On 9.6.2007 the complainant came to know that the policy not covered and the policy stand cancelled with effect from inception as the cheque given by him had been returned by the 2^nd opposite party for lack of sufficient funds.  Even though the complainant was having sufficiency funds on that date in his account and due to wrong denial of cheque amount the complainant was made to loss the insurance claim and the 1^st opposite party did not revealed the return of cheque immediately so as to make alternative arrangements for the payment of premium and the 2^nd opposite party also failed to inform that the cheque has been returned unpaid by them and thereby the complainant may likely to suffer payment of Rs.15,00,000/- towards vehicle accident death claim damages and thereby filed a consumer complaint claiming for a sum of Rs.1000/- towards expenditure incurred by the complainant for repair of the vehicle and to pay a sum of Rs.15,00,000/-towards compensation with interest at 12% per annum and to pay a sum of Rs.50,000/- towards compensation for loss of reputation and mental agony and to pay Rs.5000/- as costs.

3.       The opposite parties denied the allegations before the District Forum including by the appellant and the appellant contended that the cheque for Rs.34,839/-  was presented  for collection  which was returned for want of sufficient funds and the complainant ought to have verified the account before issuing the cheque and to watch the transactions and thereby the 2^nd opposite party only performed their duty and no deficiency on their part.

4.       Based on both sides materials and after an enquiry the District Forum allowed the complaint directing the opposite parties jointly and severally to pay a sum of Rs.1000/- towards expenditure incurred for the repair of the vehicle and to pay a sum of Rs.15,00,000/- towards compensation for deficiency of service and mental agony with 9% interest and to pay a sum of Rs.5000/- as costs.

5.       Aggrieved by the impugned order the 1^st opposite party already filed an appeal before this commission in F.A.No.491/2008 which was disposed of on 16.9.2011 allowing the appeal against the complainant / 1^st Respondent.

6.       Now, the 2^nd opposite party aggrieved by the impugned order filed this appeal separately contending that the District Forum erroneously allowed the appeal that the complainant has to verify his account before issuing any cheque having failed to his duty he cannot take undue advantage of his own wrong and put the blame on the appellant claiming exorbitant amount based on presumption and assumptions and thereby the appeal is to be allowed.

7.       We have heard both sides arguments and carefully perused the materials in this regard.  It is the admitted facts of both sides that the complainant having obtained an insurance policy / cover note for his vehicle by issuing cheque for Rs.34,839/- towards premium to  the 1^st opposite party drawn on 2^nd opposite party / appellant in this  regard and since  the cheque  was bounced due to insufficient funds the 1^st opposite party cancelled the policy including covering note for the insurance made against the vehicle and the vehicle during that period met with an accident which made the complainant to approach the 1^st opposite party for the claim towards accident benefits and for the claim of death benefits due to cause of accident came to know that there was no insurance claim could be made as the policy and cover note itself was cancelled for nonpayment of premium.  The complainant alleged that the 1^st opposite party and 2^nd opposite party ought to have informed the return of cheque and non collection of amount towards premium and if the opposite parties informed the same to the complainant he would have made alternative arrangements for the insurance policy to be in force and thereby alleged deficiency against them and claimed the amounts from both of them.  While considering both sides materials it is the case of the complainant that at that time issuance of cheque on 14.5.2007 towards insurance premium there was sufficient amounts in his SB account with the 2^nd opposite party during the accident which had happened on 6.6.2007 and the claim was made on 8.6.2007 and as per the letter Ex.A3 dated 13.6.2007 the policy with cover note was cancelled as per the return memo Ex.A7 dated 23.5.2007 which was came to know only after the letter Ex.A3 the cheque was unpaid for want of funds and the 1^st opposite party failed to inform the same and he had actual funds of Rs.41,402/- as on 8.6.2007 and there is lapse on the part of the 2^nd opposite party by returning the cheque for insufficiency funds and relied upon the bank  account details under Ex.A5.  On  perusal  of  Ex.A5 the statement of  account for  the period  from 3.3.2007  to 21.6.2007 on 18.5.2007 he had a sum of Rs.41,402.81 at his credit by depositing Rs.38,000/- on that day and on 21.5.2007 Rs.5000/- was withdrawn leaving balance of Rs.36,402.81 and on 8.6.2007 a sum of Rs.2500/- was deposited and on 19.6.207 a sum of Rs.3750/- was deposited by leaving a cash balance of Rs.42,652.81 and a sum of Rs.41,600/- was withdrawn on 21.6.2007 leaving balance of Rs.1052.81.  From these details it is clear that on the alleged date of issuance of cheque on 14.5.2007 and as per Ex.A7 bank memo return dated 23.5.2007 for the cheque Rs.34,839/- he was having sufficient balance in his account to honour the cheque.  The 2^nd opposite party as per Ex.A7 dishonoured the cheque as “funds insufficient” which would amount to deficiency of service even though in the grounds of appeal the 2^nd opposite party / appellant contended that it is the duty of the complainant to verify the balance amount before issuing cheque and to follow the transactions, in this case the appellant / 2^nd opposite party failed to prove that there was no insufficient funds in the complainant’s account and nothing contra against their own bank account statement under Ex.A5 proved and thereby certainly there was deficiency in service on the part of the 2^nd opposite party.  As far as the directions of the District Forum is concerned it had directed both the opposite parties 1 & 2 to pay a sum of Rs.1000/- towards repair of the vehicle and to pay Rs.15,00,000/- towards expected loss to be payable to the legal heirs of persons died due to accident involved the complainant’s vehicle for which the insurance coverage to be made on the basis of cheque issued by the complainant in this case  though there may be loss to the complainant, as far as the 2^nd opposite party / appellant  is  concerned since there was deficiency on their  part  by  dishonouring the cheque for payment at the relevant time when the complainant was having sufficient funds in his account for such deficiency a compensation could be awarded proportionate to the deficiency caused and not to the extent of expected loss for the complainant in this regard and by considering the hardship caused to the complainant due to lapse on the part of the 2^nd opposite party / appellant we are of the view that a sum of Rs.2,00,000/- could be granted as compensation and not to the extent of Rs.15,00,000/- as awarded by the District Forum which should be set aside as erroneous and accordingly,

          In the result, the appeal is allowed in part by modifying the order of the District Forum as follows:

          1. The order of the District Forum directing the 2^nd opposite party along with the 1^st opposite party to pay a sum of Rs.1000/- towards expenditure incurred by the complainant and to pay a sum of Rs.15,00,000/- as compensation towards deficiency of service and mental agony with 9% interest is alone hereby set aside

          Instead the appellant / 2^nd opposite party is directed to pay only a sum of Rs.2,00,000/- as compensation without any interest for mental agony due to deficiency in service and confirming the order of the District Forum directing to pay a sum of Rs.5000/- as costs.

          2.  No separate order as to costs in this appeal.

 

P.BAKIYAVATHI                                                         A.K.ANNAMALAI

     MEMBER                                                   PRESIDING JUDICIAL MEMBER

 

INDEX; YES/ NO

VL/D;/PJM BANK