KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL Nos. 546/2015 & 656/2015
COMMON JUDGMENT DATED: 26.07.2023
(Against the Order in C.C. 316/2009 of CDRC, Kottayam)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPEAL No. 546/2015
APPELLANT:
M/s ICICI Lombard GIC Ltd., represented by its Manager, Room No. 1, 4th Floor, Muthoot Crown Plaza, TB Road, Kottayam.
(By Adv. Prasanna Kumar Nair)
Vs.
RESPONDENTS:
- Sijimon George, Idayeth House, Kurianadu Kara, Kottayam.
- ICICI Bank, represented by its Branch Manager, Palai.
(By Advs. Lal K. Joseph & R. Suja Madhav for R2)
APPEAL No. 656/2015
APPELLANT:
ICICI Bank, represented by its Branch Manager, Palai.
(By Advs. Lal K. Joseph & R. Suja Madhav)
Vs.
RESPONDENTS:
- Sijimon George, Idayeth House, Kurianadu Kara, Kottayam.
- M/s ICICI Lombard GIC Ltd., represented by its Manager, Room No. 1, 4th Floor, Muthoot Crown Plaza, TB Road, Kottayam.
(By Adv. Prasanna Kumar Nair for R2)
COMMON JUDGMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
These two appeals arise from the Order in C. C. No. 316/2009 dated 12.05.2015 on the file of the District Consumer Disputes Redressal Commission, Kottayam (will be referred as District Commission as short). The appellant in Appeal No. 546/2015 was the second opposite party and the appellant in Appeal No. 656/2015 was the first opposite party. For the sake of convenience and to avoid conflicting decisions these two appeals are being disposed of vide this common judgement.
2. The case in the complaint is that the complainant was the owner of the motorcycle bearing Reg. No.KL-35/1396 which was insured with ICICI, Palai Branch, Kottayam during 2007-2008. Due to spinal problems the policy could not be renewed during 2008-09. When the complainant contacted the insurance company for renewal, they insisted to bring the vehicle to the office of the ICICI Bank Palai Branch. Accordingly, the brother of the complainant took the vehicle to the bank on 10.02.2009. The staff attached to the bank had inspected the vehicle and told the brother of the complainant to remit Rs. 1,052/- and the said sum was paid to the bank to which a receipt was also obtained. But even after the prescribed period the insurance policy certificate was not issued. On 28.03.2009 the policy certificate was issued with insurance coverage commencing from 28.03.2009 till 27.03.2010. In between 11.02.2009 to 28.03.2009 there was no insurance coverage for the vehicle. The delay was caused on account of the laches on the part of the opposite party resulting in absence of insurance coverage in respect of the intervening period. The complainant had caused issuance of a notice to the opposite parties to which no reply was received. In between 11.02.2009 to 28.03.2009 the vehicle got involved in an accident and a lady by name Jolly had sustained injuries and she filed a claim petition before the Motor Accidents Claims Tribunal and an award was passed for a sum of Rs. 99,000/-. The insurance company denied the eligible insurance coverage. Otherwise, the claim could have been indemnified by the company. The complainant would allege deficiency of service against the opposite party.
3. At a later stage the second opposite party was impleaded as per the order in I.A. No. 251/2010 dated 11.05.2010. The complaint was also amended as per I.A. No. 818/2010 and incorporated a plea that the petitioner had contacted the second opposite party and they informed him that Rs. 940/- has to be remitted as premium which was remitted directly to the office of the first opposite party and the complainant was told by the bank officials that the insurance DD charges will be collected by the opposite parties every day and hence the brother of the complainant left the DD at the bank. The premium for 2006-07 was renewed for a sum of Rs. 991/-. But the second opposite party had received excess amount than the previous year which is clear violation of the agreement. The complainant claimed Rs.2,50,000/- as compensation towards deficiency of service and Rs. 50,000/- as compensation for the mental agony.
4. The first opposite party filed a version with the following contentions:-The first opposite party is not doing the business of automobile insurance. On 10.02.2009 one Ciby George had come to the bank for DD in favour of ICICI LOMBARD GIC Ltd. payable at Kottayam and paid Rs.1,052/- inclusive of DD charges Rs. 112/-. The opposite party issued the DD for Rs. 940/- in favour of Ciby George. The complainant had suppressed material facts. He was fully aware that the insurance policy was issued by ICICI LOMBARD GIC LTD and not by the opposite party. Both are different entities. The petitioner had to approach the Insurance company and apply for renewal of the policy. The petitioner was negligent and to cover up his laches a contention has been raised that ICICI Bank and ICICI LOMBARD GIC are one and the same. No premium amount was paid by the complainant. No mental agony was caused to the complainant on account of the act of the opposite party. There is no cause of action against the opposite party and hence the complaint may be dismissed with costs.
5. The second opposite party filed a version that the complaint is not maintainable. The liability of the Insurance Company is only as per the terms and conditions. There is no allegation against this opposite party. The contract of Insurance is between the insured and the insurance company. The period of insurance is specified in the policy. The second opposite party and the Bank are separate entities and hence the second opposite party has no legal obligation in respect of the act of the bank. The complainant was negligent in taking the vehicle to the public road without ensuring that the vehicle has insurance coverage. There is no deficiency of service on the part of the second opposite party.
6. The evidence consists of the affidavits filed by the complainant and the first opposite party. Exts. A1 to A3 were marked for the complainant. Ext. B1 was marked for the first opposite party.
7. The District Commission found that there was deficiency in service on the part of the opposite parties and hence the complainant was constrained to compensate a third party in a road traffic accident even while he was holding a valid policy for the vehicle. So the opposite parties were found jointly and severally liable to compensate the complainant.
8. In the appeal memorandum in Appeal No. 546/2015 the second opposite party raised the contention that the finding of the District Commission is based on feeble suspicion and presumptions. The District Commission was not judicious in directing the appellant to pay the amount under the policy which was not in force on the date of accident. The District Commission ought to have found that the second opposite party was not liable for non-availing of the policy by the complainant. Identical contentions are seen raised by the first opposite party in the appeal memorandum. According to the first opposite party the District Commission ought to have found that the complainant was not present when his brother had applied for a DD and payment was made by him. The application for DD and issuance of DD are purely banking transactions and the District Commission had failed to appreciate the fact that the first opposite party is a banking institution who has no connection with the work performed by the second opposite party.
9. Heard the counsel for the appellants and the complainant. Ext A1 is the copy of the application filed by the complainant to the first opposite party for purchase of the DD in favour of ICICI Lombard Insurance. Exhibit A2 is the copy of the certificate cum policy schedule in respect of the vehicle owned by the complainant. The total premium amount paid for purchasing the policy is Rs. 1,052/-. As per exhibit A2 the coverage starts from 28.03.2009 to 27.03.2010. According to the complainant though his brother had remitted the whole amount towards premium on 10.02.2009 the policy coverage had commenced only on 28.03.2009. The case of the complainant is that the second opposite party ought to have compensated the third party who had sustained injuries in a motor accident. He filed the copy of the award passed by the Motor Accidents Claims Tribunal, Palai by which the complainant was directed to pay Rs. 99,000/- to the third party. Exhibit B1 is a crucial document, which is the application form filed before the first opposite party by one Ciby George which shows that that he had paid Rs. 940/- for the Demand Draft and Rs. 112/- as charges for DD and on the back side of Ext. B1 the signature of the recipient is also seen. So it is evident that the person who had applied for DD had received the DD from the bank. It is significant to note that the first opposite party is a banking institution to whom no liability could be fastened with regard to the issuance of the insurance policy. It is also significant that the complainant never caused production of Ext. A2 before the Motor Accidents Claims Tribunal to seek for an adjudication by bringing the insurance company as a party to the proceedings. This circumstance creates doubts with respect to the genuineness of the contentions advanced by the complainant. According to the complainant the insurance coverage of the vehicle had expired long back and he has no case that he had filed an application for renewal of policy before the second opposite party. The case of the complainant is that the insurance policy was availed through his brother. But the said person is not examined. Admittedly, the complainant had deployed his brother to avail the policy. If that be so, he ought to have examined his brother to prove the same. There is no evidence on record that the complainant had remitted the requisite amount to the insurance company. The complainant had furnished a distorted version in the complaint that the second opposite party had collected an amount in excess over the premium amount collected during the previous years for renewal of the policy, but the details of the coverage and the requisite amount does find a place in Ext. A2 which would prove that only the exact amount was charged by the second opposite party. Vague pleadings are seen incorporated that the renewal of the policy was done by the first opposite party. Admittedly the first opposite party is a banking institution. There is total absence of evidence that the policy was renewed on 10.02.2009. So, no deficiency of service could be attributed to them. Therefore, it is found that the complainant is not entitled to get any relief. The District Commission has failed to understand the real facts transpired and entered into a finding on presumptions though the facts are otherwise. So, the order of the District Commission is ordered to be reversed.
In the result, the appeals are allowed. The order of the District Commission is set aside. The complaint shall stand dismissed. Parties shall bear their respective costs.
The statutory deposit made by the appellants is ordered to be refunded on proper acknowledgement.
AJITH KUMAR D. : JUDICIAL MEMBER
jb BEENA KUMARY. A : MEMBER
