STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 30.01.2018
Date of final hearing: 08.05.2023
Date of pronouncement: 21.06.2023
First Appeal No.132 of 2018
IN THE MATTER OF:-
Sunil (Now Deceased) through LR’s Smt. Manita widow of late Sunil, Age 32 years, resident of House No. 485, VPO Rai, Tehsil and District Sonepat. …..Appellant
Versus
Royal Sundaram General Insurance Co. Ltd., Eight Marla, Opp. Piza Bite, Model Town, Near Mittal Hospital, Sonepat through its Branch Manager. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Ajay Gupta, proxy counsel for Sh. Gaurav Verma, counsel for the appellant.
Sh. Sachin Ohri, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal has been invited to the legality of order dated 09.01.2018 passed by District Consumer Disputes Redressal Commission-Sonepat in complainant No. 232 of 2017, vide which complainant’s complaint has been dismissed.
2. In his complaint, complainant has asserted that he is registered owner of Car No. HR-10T-3098. It was insured with OP. Sum assured was Rs.3,23,000/-. On 14.01.2017 at about 04:00 pm; car was stolen by some unknown person from Meat Market, Jatheri Road. He informed police regarding theft and FIR No. 29 dated 17.01.2017 under section 379 IPC was registered. On same day, he intimated about theft of his vehicle to OP/insurer. He lodged claim and submitted required documents. OP’s surveyor: Sh. B.P. Mehta inspected the spot and he (complainant) also handed over relevant documents to surveyor. OP vide letter dated 27.01.2017 stated that claim is under process. It is pleaded that till date; OP has not settled the claim. Complainant obtained untraced report of vehicle from the Court of JMIC-Sonepat and submitted to OP. OP sent letter dated 23.03.2017 to him (complainant) stating that policy stand cancelled w.e.f. its inception, due to dishonor of cheque. It is pleaded that at the time of purchasing policy i.e. on 14.12.2017; premium amount Rs.10,709/-(approx) of policy was told by OP to him (complainant) and he issued blank signed cheque to OP and OP issued policy for the period w.e.f. 15.12.2016 to 14.12.2017. OP presented the cheque on 26.12.2016 after filling the amount of Rs.15,540/- in the cheque and due to this; it was dishonoured. It is pleaded that insurance premium amount was Rs.10,709/-. Till 21.12.2016, complainant had sufficient amount i.e. Rs. 13400/- in his bank account. OP did not inform complainant about dishonor of cheque, till 23.03.2017, and this wrongful act of OP has caused mental agony & harassment to him. It is pleaded that value of the vehicle was assessed by insurer’s official to the tune of Rs.3,23,000/- and he is entitled to this amount. On these facts, complaint has been filed for issuance of direction to OP to make payment of Rs. 3,20,000/- along with interest @ 24% p.a. from date of theft, till realization; to make payment of Rs.20,000/- on account of deficiency in service; to make payment of Rs.20,000/- suffering mental agony etc. and Rs.11,000/- as litigation expenses.
3. Upon notice, OP raised contest. In its defence; it is pleaded that complaint is misconceived and not tenable. Claimant’s claim was repudiated, as there was no valid contract of insurance on the alleged date of loss, as policy was cancelled for premium cheque bounce. There was gross violation of policy condition as to delayed intimation and not taking reasonable care. There is no bona-fide, cause of action in complaint. Risk was not under written on the day of alleged loss. Complainant approached OP for Private Car Package Policy, based on declaration and proposal and premium cheque was submitted; policy was issued, subject to express condition that risk is under subject to the realization of cheque. Subsequently, premium cheque was bounced for insufficient fund and policy was cancelled. Primarily, the claim was not entertainable, as there was no valid policy in force. Claim was intimated to OP on 25.01.2017 alleging theft of vehicle on 14.01.2017 i.e. after 11 days of alleged loss. On receipt of investigation report it was observed that insured vehicle was second hand vehicle and based on statement by insured; he had only received one (1) key from previous owner. It is an understood fact that vehicle come with multiple key. By leaving duplicate key; insured had compromised with the safety of vehicle. As a reasonable prudent man, he ought to have replaced the vehicle with another lock set, to safeguard the vehicle. Insured was duty bound to produce key in case of theft. In its absence, it is presumed that vehicle was left unattended with key which amounts to violation of policy condition. It is pleaded that since policy of insurance itself was not valid on the alleged date of loss; the claim was rightly denied by OP. Repudiation letter is dated 30.03.2017.
4. Parties to this lis led evidence; oral as well as documentary.
5. On critically analyzing the same; learned District Consumer Commission-Sonepat vide order dated 09.01.2018 has dismissed the complaint with no order as to costs.
6. Feeling aggrieved; complainant has filed this appeal.
7. Learned counsel for appellant and learned counsel appearing for respondent have been heard at length. With their able assistance; record too has been perused.
8. Learned counsel for the appellant has urged that learned District Consumer Commission-Sonepat has wrongly and illegally dismissed the complaint. There was delay on the part of OP to present the premium cheque for collection. Premium amount was Rs.10,709/-. OP/Insurer had wrongly filled the premium amount as Rs.15,540/- in the blank signed cheque issued by complainant which led to its dishonor. It is urged that complainant has sufficient balance (Rs. 13,400/-) as on 21.12.2016 in the bank account, which was enough to clear the premium amount of Rs.10,709/-. Insurer presented the cheque of premium, for clearance on 26.12.2016 i.e. after gap of about 12 days. Theft of vehicle took place on 14.01.2017. Further, it is urged that OP has failed to promptly inform complainant about dishonor of premium cheque and resultant cancellation of policy. Intimation in this regard, for the first time, was given to complainant on 23.03.2017. On these submissions learned counsel for appellant has pressed for acceptance of appeal by relying upon judgment of Hon’ble Apex Court in case titled as “United India Insurance Company Ltd. versus Laxmamma and others” 2012(2) RCR Civil 834.
9. Per Contra, learned counsel for insurer/OP has supported the impugned order dated 09.01.2018 by urging that it is outcome of proper appreciation of facts and evidence by learned District Consumer Commission, thereby warranting no interference.
10. There is no denial that OP/insurer issued policy in relation to Car No. HR-10T-3098. It has currency period of 15.12.2016 to 14.12.2017. Complainant-Sunil is insured in the policy. This policy is
Annexure D-1. The policy mentions: the net premium amount of Rs.10,709/-. In sheer contrast Annexure D-2 is the document which specifies that cheque amount towards premium is Rs.15,540/-. The learned counsel appearing for OP/insurer could not explain the ambiguity in this regard during arguments. Be that as it may, yet it will not stimulate any cause of complainant. Reason is obvious. Irrespective of above ambiguity, regarding in the premium amount; the fact remains that insured/complainant had no balance in his account, sufficient enough, for clearing the amount either mentioned, in cheque (Rs.15,540/-), or the amount(Rs.10,709/-) which policy depicts. He had only Rs.8,147.50 paisa which is reflected in his statement of account Ex.C-6 on the day (26.12.2016) when premium cheque was presented for clearance by OP/Insurer. Meaning thereby, the insurance policy has become dead. From its very inception. If the policy has become dead, due to non-payment of premium amount which has resulted because of dishonor of cheque, then as a legal corollary so flowing; the contract of insurance has become void ab-initio, from its very inception. Insurer/OP has no ensuing liability in relation to insurance policy Annexure D-1 to meet/satisfy any theft claim of insured concerning vehicle No. HR-10T-3098.
11. Learned counsel for the appellant/complainant has relied upon insurer’s investigator report Ex.D-5 dated 16.02.2017, by urging that it is very comprehensive and said investigator has concluded that insured’s claim is found genuine. This commission has critically analyzed this report of insurer’s investigator. It does not recite even a word, that cheque of the premium amount in relation to policy Ex.D-1 of vehicle has been dishonored due to inception funds. Thus, there are all reasons before this Commission to have a departure from surveyor’s report Ex.D-5 dated 16.02.2017. While observing, so this Commission relies upon recent pronouncement of Hon’ble Apex Court in case titled as “National Insurance Company Ltd. versus Vedic Resorts and Hotels Pvt. Ltd.” Civil Appeal No. 4979 of 2019 decided on 17.05.2023 wherein it has been held that: surveyor’s report is not the final one, nor it is so sacrosanct as to be incapable of being departed from. Hence, learned counsel for appellant stood repelled. Insurer/OP has rightly cancelled the policy. Rightly, the insurer has been held to be not liable in any manner. Reliance placed by learned counsel for complainant on Laxamma case (supra) will not stimulate any cause to complainant. Facts of the cited judgment are distinguishable to the facts of the case in hand.
12. As a sequel thereto, the only inescapable conclusion is that: complainant Sunil has been rightly non-suited. There is absolutely no illegality in the impugned order dated 09.01.2018. It is maintained and affirmed. Present appeal, being devoid of merits, is hereby dismissed.
13. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
14. Copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 21st June, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
