(Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member)
(1) This appeal takes an exception to an order dated 26/04/2004 passed in Consumer Complaint 457/1999, Shri Deviprasad Surjeeprasad Mishra Vs. The New India Assurance Co.Ltd. & ors., passed by South Mumbai District Consumer Disputes Redressal Froum, Mumbai.
(2) It is a case of alleged deficiency in service on the part of the appellant/original opponent No.1, The New India Assurance Co.Ltd. (hereinafter to be referred to as Insurance Company) for not sanctioning the claim upon accident of insured vehicle bearing registration No.MCV 2865. It is further contended on behalf of the complainant that seeing settlement of claim was delayed by the insurance company and his creditors started pressing for their money, he was left with no other alternative but to sell the truck to one Mohammed Salim. The intimation of the transfer was given to the insurance company was alleged to be given on 29/01/1997. Opponent insurance company transferred the insurance policy for the rest period after selling of truck in the name of purchaser. Thereafter, complainant/respondent No.1 filed consumer complaint on about 06/08/1999 impleding the insurance company as well as Jan Kalyan Sahakari Bank ltd. respectively as opponent No.1 and 2. The consumer complaint was allowed against the insurance company directing to pay 1,08,722/- along with an interest @10% p.a.. Feeling aggrieved thereby, the insurance company preferred this appeal. No order is passed against the respondent No.2, Jan Kalyan Sahakari Bank Ltd.
(3) It is the contention of the insurance company that since the cheque by which premium was tendered, was dishounoured and as such the policy stood cancelled. Therefore, the insurance claim stood repudiated. Further, it is submitted that on the date of complaint, he ceased to be a consumer since he had already sold the truck. In a rejoinder filed by the complainant, he tried to blame the bank and thus admitted the fact that the cheque of premium was dishonoured.
(4) At the time of hearing of the appeal, the respondent/complainant preferred to remain absent, even though, the date of fixing the appeal was notified on the notice board and on internet as well as by way of abundant precaution an intimation was sent by post on 31/01/2012. In fact, the intimation sent to him on his registered address mentioned returned unserved since he was not found there. No other address is known from the record. Under the circumstances, we prefer to hear the appeal on its own merit in his absence. Heard learned counsel for the insurance company as well as official present for the respondent No.2, Jan Kalyan Sahakari Bank Ltd. Perused the record.
(5) As earlier recounted, the complainant himself admitted that the cheque towards premium issued by him got dishonoured. Though, he came with a case that the respondent No.2, bank wrongly dishonoured it, the fact remains that no premium is paid to the insurance company. Therefore, since the policy was issued subject to realization of the cheque amount by which the premium was tendered, on the date of accident, in effect, there was no insurance of the said vehicle, whether Bank informed about wrong or erroneous dishonour is not relevant. The insurance company was also not under obligation to resubmit the cheque which was once dishonoured.
(6) The complainant himself admitted having sold the truck and fled the complaint. On the date of filing the complaint, there was no privity of contract between the appellant and the respondent No.1/complainant. For this reason also, the complaint ought not to have been entertained. We hold accordingly and pass the following order.
ORDER
(1) Appeal is allowed.
(2) Impugned order dated 26/04/2004 is set aside and in the result the consumer complaint No.457/99 stands dismissed.
(3) In the given circumstances, parties to bear their own costs.
Pronounced on 21st February, 2012.
