Karnataka

Mysore

CC/1035/2016

Somegowda.C.S. - Complainant(s)

Versus

SBI General Insurance Co.Ltd., - Opp.Party(s)

Prithviraj B.N.

06 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSURU
No.1542 F, Anikethana Road, C and D Block, J.C.S.T. Layout, Kuvempunagara,
Kuvempunagara, (Behind Jagadamba Petrol Bunk), Mysuru-570023
 
Complaint Case No. CC/1035/2016
 
1. Somegowda.C.S.
S/o Swamygowda, 37 years, No.667, 1st Phase, Devaraja Mohalla, Vijayanagara 4th Stage, Mysuru-570001.
...........Complainant(s)
Versus
1. SBI General Insurance Co.Ltd.,
1st Floor, Rukmini Plaza, 1A, Srirampura Main Road, 80 Ft. Road, Madhuvana Layout, Sriramapura, Mysuru-23.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. M S RAMACHANDRA PRESIDING MEMBER
 HON'BLE MR. Y S THAMMANNA MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 06 Dec 2016
Final Order / Judgement

BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

 

Consumer Complaint (C.C.)No. 1035/2016

Complaint filed on 13.01.2016

Date of Judgement.06.12.2016

 

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                     PRESIDENT

 

                                2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                   MEMBER

 

 

 

Complainant/s               :       Somegowda.C.S.,

S/o Swamygowda,

No. 667,1st phase , Devaraja Mohalla, Vijayanagara 4th Stage, Mysuru-570001.

 

 

 

     (Sri Prithviraj. B.N., Advocate)

 

 

 

V/s

 

 

Opponent        /s                     :       SBI General Insurance co.Ltd., 

1st floor, Rukmini Plaza , IA, Srirampura main road, Vivekananda circle, 80ft road, Madhuvana Layout, Sriramapura, Mysore-23.

 

 

 

 

(Sri.  Kenchegowda Patel  Advocate)

 

 

 

Nature of complaint

:

Deficiency in service

Date of filing of complainant

:

13.01.2016

Date of Issue notice

:

24.02.2016

Date of Order

:

06.12.2016

Duration of proceeding

:

9  Months  13 days

 

 

 

 

 

 

 

 

 

 

SHRI RAMACHANDRA . M.S., PRESIDENT

 

             

 

 

 

 

 

 

JUDGEMENT

 

The complainant filed the complaint Under Section 12 of Consumer Protection Act, 1986 against the opposite party.

 

2. The brief facts of the complaint is that the complainant is the owner of a Heavy goods vehicle bearing Registration no KA-09 B 8865. It is a commercial vehicle with yellow board and the complainant is earning his livelihood out of the that by employing a driver as he does not have the license to drive heavy vehicles. He has taken the insurance policy from opposite party under the insurance police no 0000000002996452. The policy was renewed on 19.06.2015. The complainant gave a cheque bearing no 068383 drawn on Canara Bank for Rs. 71,627/- towards the renewal of the policy to one of the intermediaries of the opposite party by name J. Vasuki . As per the policy issued to the complainant, the period of validity of insurance was from 19.06.2015 to 18.06.2016.

 

3. On 25.09.2015, the complainant’s aforesaid vehicle met with an accident on the Bangalore-Mysore highway near Channapatna , The vehicle was badly damaged in the accident. The fact of accident was reported to the local police station and FIR has also been registered in that regard. The said fact of accident was also reported to the opposite party.

 

4. The complainant took his vehicle for repair. The estimate for the cost of repair was given at Rs 14, 20,291. He took the estimate and lodged a formal claim with the opposite party by filling up some forms for which no acknowledgement was given.

 

5. The opposite party has issued a letter on 18.11.2015 stating that they have repudiated the claim of the complainant as inadmissible since the cheque issued by the complainant towards the renewal of policy was dishonoured.

 

6. The complainant came to know about the dishonour of the cheque for the first time only on receipt of the aforesaid letter dated 18.11.2015. Along with the aforesaid letter, the opposite party had annexed a copy of the letter dated 08.07.2015, which purports to inform the complainant about the dishonour of the cheque, but it has never been dispatched to the complainant .The complainant has not at all received the aforesaid letter dated 08.07.2015. The said letter seems to have been prepared subsequent to the lodging of claim. The complainant was all along under the impression that the cheque given by him has been on cashed and the insurance policy taken by him is valid. It is only on receipt of the letter dated 18.11.2015 that the complainant became aware for the first time that the cheque has been dishonoured. Since both the letters are purported to have been sent through registered post acknowledgement due. As indicated in the top of the letters, the opposite party must be having the acknowledgment card for having delivered the letter dated 08.07.2015 to intimate the fact of dishonour of the cheque to the complainant. Hence, the opposite party is put to strict proof to show that the letter dated 08.07.2015 was delivered to the complainant. If the fact of dishonour of cheques was really brought to the knowledge of the complainant, he would have made the payment immediately in cash.

 

7. It is submitted that the opposite party has repudiated the claim of the complainant under the aforesaid insurance policy taken by him in their letter dated 18.11.2015. They have failed to intimate the fact of dishonour of cheque to the complainant. They have failed to honour their liability under the insurance policy ,  thereby they have committed deficiency of service.

 

8. The complainant’s vehicle is in the garage awaiting repair form October 2015 onwards. He was earning his livelihood from his vehicle. Now, he is facing enormous financial difficulty as the source of his livelihood is awaiting repair due to lack of amount. Hence, the complainant is also entitled for compensation amount for loss of earning due to deficiency in service caused by the opposite party seeking relief of amount of Rs.

14, 20, 291 towards the cost of repair and award the sum of Rs. 2,00,000/- compensation , hence this complaint.

 

9. The opposite party has filed the version by contending that he had issued policy to vehicle bearing no KA-09 B-8865 and policy number is 0000000002996452 valid from 19.06.2015 to 18.06.2016 it is also admitted by him that complainant had issued cheque bearing number 68383  for amount of Rs 71,627 drawn on Canara bank when the same was presented for clearance cheque was returned with memo “Fund in sufficient “on 08.07.2015 through RPAD the same was intimated to complainant and above policy issued becomes void ab initio and also the opposite party denies that at the complainant has met with accident on 25.09.2015. The opposite party contends that dishonour of cheque of the complainant was intimated to the complainant on 08.07.2015 the issuance of the policy was subject to a pre condition that it is subject to realization of cheque which was issued by complainant for a sum of Rs. 71,627/- when the same was dishonoured and returned to the opposite party for lack of funds in complainant account. Here after return of cheque when the opposite party has intimated to complainant and to other concerned parties through registered post. It is also intimated that due to the dishonour of premium payment cheque which was issued by the complainant. The issuance of the policy becomes void ab inition and policy becomes in-fractious it has no validity in the eye of law.  As per the IRDA rules and regulation when such being the case, opposite party pleads when there is no contractual obligation between insurer and insured when there is no valid policy exists in respect of the above said vehicle he has no liability to pay the damages and compensation as prayed in the complaint.

 

10. The complainant in support of his case has filed chief affidavit of complainant and also filed some documents and written arguments along with the citations of Hon’ble High court of Karnataka and also judgment rendered by the supreme court of India. In support of his case. The opposite party also filed version and chief affidavit along with written arguments in support of defence

 

11. Heard arguments.

 

12. The points that arise for our consideration are;

 

  1. Whether the complainant has proved deficiency in service on the part of OP by not considering the claim of complainant?
  2. What order?

 

 

13. Our answer to the above points is as follows;

 

  1. Point No.1: In the Negative.

 

  1. Point No.2: As per final order for the following;

 

 

 

 

 

REASONS

 

 

14 . Point No.1:- It is not disputed fact that the complainant has  availed and opposite party issued insurance policy to vehicle bearing no KA-09 B-8865 and policy number is 0000000002996452 valid from 19.06.2015 to 18.06.2016 it is also admitted by him that complainant had issued cheque bearing number 68383  for amount of Rs 71,627 drawn on Canara bank when the same was presented for clearance cheque was returned with memo “Fund in sufficient “on 08.07.2015 and on the same day  through RPAD it was intimated to complainant and above policy issued becomes void ab initio on 25.09.2015 when complainant met with accident and the same was reported to the police and came to the knowledge of this opposite party through complainant only.

 

15. The facts that the complainant came to know above dishonour of cheque for the first cheque on 18.11.2015 and the complainant denies that the dishonour of cheque was intimated to him on 08.07.2015 by RPAD from opposite party. Further complainant also denies the very dispatch of a letter dated 08.07.2015 from the opposite party. Further the complainant contends that at the first instance the policy was issued by the opposite party by receiving the cheque towards the payment of premium amount, in respect of the above said vehicle, subsequently  he has no knowledge regarding that opposite party has intimated the dishonour of premium payment cheque which was paid by complainant. The complainant also contends that when his vehicle met with accident on 25.09.2015 when he gave a estimation for repair of vehicle and when claim was raised to settle the insurance amount the opposite party gave a reply that due to the dishonour of complainant cheque the policy becomes void ab initio due to that reason and there is no valid policy in respect of said vehicle this facts is  already  brought to the knowledge of complainant through register post on 08.07.2015. This fact is clearly denied by the complainant that he has not received any letter or cancellation of insurance policy from the opposite party. Further it is also contended that in order to escape the liability the opposite party has narrated the story at no point of time the complainant has not received any letter from the opposite party regarding intimation of cancellation of the policy. Further if at all even if such letter is dispatch regarding cancellation of policy through RPAD it is bounded duty of opposite party that he has to produce the postal receipt and acknowledgment to prove such letter is sent to complainant and fact of dishonour of cheque and cancellation of policy is brought to the knowledge of complainant. In the absence of any such proof the complainant contends that no such letter or , cancellation letter is received by complainant when such being the case complainant pleads, for the settlement of insured amount towards the damages of insured vehicle, by the opposite party.

 

16. The opposite party by contending that he had issued policy to vehicle bearing no KA-09 B-8865 and policy number is 0000000002996452 valid from 19.06.2015 to 18.06.2016 it is also admitted by him that complainant had issued cheque bearing number 68383  for amount of  Rs 71,627 drawn on Canara bank when the same was presented for clearance cheque was returned with memo “Fund in sufficient “ on 08.07.2015 through RAPD the same was intimated to complainant and above policy issued becomes void ab initio and also the opposite party denies that when complainant vehicle  has met with accident on 25.09.2015. The opposite party contends that when dishonour of cheque of the complainant was already intimated to the complainant on i08.07.2015 the issuance of the policy was a pre condition that is subject to realization of cheque which was issued by complainant for a sum premium of Rs. 71,627/-   when the same was dishonoured and returned to the opposite party for lack of funds in complainant account.  Here after return of cheque when the opposite party has intimated the same to complainant and to other concerned parties through registered post. It is also intimated that due to dishonour of the premium payment cheque which was paid by the complainant. The issuance of the policy becomes void ab inition and policy becomes in-fructuous it has no validity in the eye of law. When such being the case opposite party pleads when there is no contractual obligation between insurer and insured when there is no valid policy in respect of the above said vehicle he has no liability to pay the damages and compensation as prayed in the complaint.

 

17. The complainant has relied upon the judgments rendered by Hon’ble High Court of Karnataka and Hon’ble Supreme Court of India with due respect to the judgements produced the principals of these rulings is not applicable to the complaint for a simple reason that these ruling is regarding the third party claims is concerned . Here the claim is between the owner of the vehicle and insurer. When such being the case these principals cannot be apply to the case on hand. Here the complainant has miserably failed to prove deficiency of service by the opposite party by not settling the claim raised by him. He also failed to prove his case beyond reasonable doubt in so for as his claim and validity of policy is concerned

 

18. The opposite party on other hand by producing number of documents dated 08.07.2015 intimation letter which is sent to the complainant regarding dishonour of premium payment cheque and consequently cancellation of policy when it is sent to the very same address where complainant is residing through RPAD it is deemed that the said intimation letter has reached the complainant. When he has full knowledge regarding the above facts. Thereby the opposite party has proved beyond reasonable doubt that the said intimation letter sent to complainant when the same is well within the knowledge of complainant the opposite party has discharged his duty as a prudent insurer regarding the cancellation of complainant insurance policy. An important fact is that when intimation letter dated  08.07.2015 is sent to complainant the same is also sent to  concerned RTO and to the Financier of the vehicle  these facts goes to prove the opposite party has acted in accordance with the regulation of insurance act . When there is no contractual obligation between insurer and insured due to bounce of premium cheque. This leads to cancellation of insurance policy of complainant on 08.07.2015 when the same was intimated to complainant through RPAD when there is no valid policy to settle the claim of complainant, the question of entertaining the claim of complainant for an accident which is occurred. Subsequent to cancellation of policy. When there is no valid policy stands in the name of complainant in respect of alleged vehicle the question of settlement of claim of complainant does not arise opposite party has rightly repudiated claim of complainant.

 

19. In view of the above observation the point no 1 we answered in the negative.

 

20. From the above discussion we hereby proceed to pass the following :-

 

 

ORDER

 

1. The complaint is hereby dismissed

2.Give copies of this order to the parties as per rules.

 

 

 

(Dictated to the stenographer transcribed , typed by her, transcript corrected by us and then pronounced in open court on the 06st  December 2016)  

 

 

 

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,      

          Member.                                                    President.                                         

 

 

LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF COMPLAINANT

 

Evidence by way of affidavit on behalf of complainant:

 

CW-1           :   Some gowda    

 

                            

Documents marked on behalf of complainant:

 

Annexure.1 :         True copy of claim application

Annexure.2 :         True copy of estimate

Annexure.3 :         True copy of postal receipt

Annexure.4 :         True copy of registration certificate 

Annexure.5 :         True copy of permit

Annexure.6:          True copy of FC receipts

Annexure.7:           True copy of Insurance policy

Annexure.8:          True copy of letter dated 18.11.2015 issued by the

                             opposite party

Annexure.9:          True copy letter dated 08.07.2015

 

 

LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF OP.

 

 

Evidence by way of affidavit on behalf of OP :

 

OP .1 :         Manish lakshman kerkar

 

Documents marked on behalf of OP :

 

Annexure.1 :         Letter dated  18.11.2015

Annexure.2 :         Letter dated 08.07.2015

Annexure.3 :         Cheque bearing no 68363

Annexure.4:           Return memo Canara bank  dated 24.06.2015.

                            

 

 

 

 

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,      

          Member.                                                    President.   

Endorsement return  dated 24.06.2015

 

 

 
 
[HON'BLE MR. M S RAMACHANDRA]
PRESIDING MEMBER
 
[HON'BLE MR. Y S THAMMANNA]
MEMBER

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