Tripura

StateCommission

F.A 28/2014

The Oriental Insurance Co.Ltd - Complainant(s)

Versus

Smt. Anima Chakma - Opp.Party(s)

Mr. K.Bhattacharjee

02 Mar 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.F.A-28/2014

 

The Oriental Insurance Co.Ltd.

Having its Divisional Office

Situated at 44/2 Central Road,

P.O-Agartala, P.S-East Agartala,

District-West Tripura.

                    ….    ….    ….    ….    Appellant.

                   Vs

Smt. Anima Chakma

W/O. Shri Kishore Chakma,

Resident of Village-Ledacherra,

Jatanbari, Amarpur, P.O-Gomati Project,

District Gomati, Tripura.

               ….    ….    ….    ….    Respondent.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellant    : Mr.K.Bhattacharjee,Adv.

          For the respondent : Shri Kishore Chakma, the husband of the respondent

                                         

Date of Hearing      :     09.02.2015.

Date of delivery of Judgment:02.03.2015.

             

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 22.09.2014 by the appellant-Oriental Insurance Co.Ltd. under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and award dated 02.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), South Tripura, Udaipur in connection with the case No.C.C-06 of 2013 whereby the Ld. District Forum allowed the complaint directing the O.P.-Insurance Company, the appellant herein to refund the excess amount paid by the petitioner and also a sum of Rs.5,000/- in addition for the deficiency in service.     

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the respondent-complainant namely Smt. Anima Chakma made a complaint before the Ld. District Forum alleging inter alia that she purchased one vehicle Tata Star Bus from Rajarshi Motors Private Ltd.,Agartala who obtained insurance policy from the Oriental Insurance Co.Ltd., Agartala Branch i.e. the appellant herein, but on misunderstanding premium was paid by both Tata Motors Ltd. and also by the present respondent for the same bus and therefore, the respondent as petitioner prayed for refund the premium amount from the Insurance Company Ltd. who refused to return the premium amount paid for two times in the year 2008-2009 and 2009-2010. It has also been stated that the respondent as complainant filed the complaint petition after expiry of two years i.e. only on 11.04.2013 claiming refund of the paid premium amount for the year 2008-2009 and also 2009-2010 which was beyond the period of limitation as prescribed under Section 24A of the C.P.Act, 1986.                                                   
3. It has also been alleged in the memo of appeal that the appellant-Insurance Company received package policy for which the vehicle was hypothecated with the Tata Motors Ltd. and also received another policy for 17 passengers package capacity policy from Udaipur branch of the Insurance Company in the name of Smt. Anima Chakma i.e. present respondent herein. It has also been alleged that since Tata Motors Ltd. was the hire purchaser of the vehicle which was hypothecated as per norms and as such, they obtained own damage policy on O.D. basis and on the other hand, the respondent, the owner of the said vehicle obtained 17 passengers capacity policy for getting benefit of third party liabilities. It has also been alleged that the appellant-Insurance Company is not liable for returning the alleged premium after the expiry of one year of each of the two policies which were issued only on yearly basis, but the claimant-respondent filed the complaint only to illegal gain by suppressing the facts and also without making the Tata Motors Ltd. as party to the complaint. It has also been alleged that since policy condition and also the C.P.Act, 1986  do not permit the filing of the complaint after the expiry of limitation period, the appellant has preferred the instant appeal assailing the judgment passed by the Ld. District Forum on the grounds that the Ld. Forum passed the impugned judgment in violation of the Section 24A of the C.P.Act, 1986, that the Ld. Forum failed to peruse both the policies obtained for different purposes and erroneously passed the impugned judgment directing the present appellant to refund the excess premium amounts along with a compensation of Rs.5,000/- which is not sustainable in law, that the judgment passed by the Ld. Forum is arbitrary, mechanical and without any application of judicious mind and as such, it is not sustainable in law and also is liable to be set aside and hence, the instant appeal has been preferred.             

Points for consideration.

4.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and (2) whether the judgment under challenge is liable to be set aside or otherwise as prayed for.      

                         Decision with Reasons.

5.  Both the points are taken up together for the sake of convenience and brevity.
6. The learned counsel for the appellant-Insurance Company submitted that the respondent as complainant filed the complaint on 11.04.2013 before the Ld. District Forum claiming refund of the premiums paid by herself for the year 2008-2009 and 2009-2010 which were of yearly basis in respect of the bus bearing registration No.TR-03-1322 (Tata  Star Bus). He also submitted that according to Section 24A of the C.P.Act, 1986, the period of limitation for filing the complaint before the Consumer Fora is two years from the date of accrual of the cause of action. He also submitted that the respondent paid the premium amount of Rs. 23,862/- on 29.01.2008 for the premium year 2008-2009 and also paid Rs.21,176/- on 27.01.2009 for the premium year 2009-2010. He also submitted that the period of two years in respect of claim for refund of the premium amount for the year 2008-2009 expired on 29.01.2010 and the claim for refund of the premium amount for the premiums year 2009-2010 expired with the expiry of 27.01.2011, but the complainant filed the complaint before the Ld. District Forum only on 11.04.2013 and therefore, the claim of the complainant-respondent for refund of premium amounts of both the years is barred by law of limitation as provided under Section 24A of the C.P.Act, 1986. He also submitted that of course, Section 24A allows a party to lodge the complaint even after the expiry of two years, if the party lodging the complaint is able to show sufficient cause for not filing the complaint within such period of two years. He also submitted that the respondent-complainant in the Ld. District Forum simply filed a complaint for refund of the said premium amount without making any prayer for condonation of delay showing sufficient cause for not filing the complaint within the period of two years from the date of accrual of the cause of action. He also submitted that the present appellant in the Ld. Forum by filing a written objection has raised this point of limitation, but the Ld. Forum uttered not a single word regarding the point of law of limitation as provided under Section 24A of the C.P.Act, 1986. He also submitted that the point of law of limitation is a question of law and it can be raised even in the appeal and accordingly, the present appellant in the memo of appeal again raised the said question of law of limitation.   
7. The learned counsel for the appellant also submitted that according to the respondent-complainant,Tata Motors Pvt. Ltd. and the respondent paid insurance premium for the said bus for the year 2008-2009 and 2009-2010. He also submitted that the respondent for her bus insured her vehicle with the Oriental Insurance Co.Ltd. and after the expiry of the premium year, any claim for refund of the money is not legally tenable. He also submitted that admittedly, the bus in question was hypothecated with the Tata Motors Pvt. Ltd. and as per the respondent-complainant, Tata Motors Pvt. Ltd. has paid the premium amount for the said two years, but the complainant did not make the said Tata Motors Pvt. Ltd. as party to the complaint case. He also submitted who can say that the complainant did not realize the premium amounts of said two years from the Tata Motors Pvt. Ltd. He further submitted that in the absence of the said Tata Motors Pvt. Ltd., the said fact cannot be established. He also submitted that the appellant in the memo of appeal has raised the plea of defect of parties and as such for want of Tata Motors Pvt. Ltd., the complaint lodged by the complainant-respondent before the Ld. District Forum is bound to be dismissed, but the Ld. District Forum did not consider this aspect of the case and wrongly passed the impugned judgment which cannot be sustained in the eye of law.
8. The learned counsel for the appellant also submitted that the Tata Motors Pvt. Ltd. secured the comprehensive package policy in respect of the said bus in favour of the respondent-complainant, Anima Chakma for Zone-B along with P.A. cover for owner-driver of an amount of Rs.2,00,000/-, but the complainant only secured a package policy for Zone-C in respect of that bus for 17 passengers having no P.A. cover for owner-driver. He also submitted that both the policies are altogether different from each other and as such both the policies, although in respect of the same bus covered different field and therefore, as the premiums period have already been expired covering the risk period, the question of refund of the premium amounts paid by the respondent-complainant for those two premiums year does not arise at all, but the Ld. District Forum overlooked this aspect of the case and not only so, but also overlooking the applicability of the question of law of limitation as provided under Section 24A of the C.P.Act, 1986, passed the impugned judgment which is not sustainable in the eye of law and is liable to be set aside and the appeal should be allowed.   
9. The learned counsel for the Insurance Company lastly submitted that as the claim of the complainant, so lodged is barred under Section 24A of the C.P.Act, 1986, the remedy of the complainant practically lies in the Civil Court by way of filing the suit after making Tata Motors Pvt. Ltd. as one of the parties to the said suit and as such, no remedy is available to the respondent-complainant before the Consumer Fora and therefore, the impugned judgment is also liable to be set aside from this standpoint.
10. Mr.K.Chakma, the husband of the respondent-complainant appearing for his wife-respondent submitted that Tata Motors Pvt. Ltd. with whom the bus was hypothecated paid the insurance premium amounts to the Oriental Insurance Co.Ltd. for the first year, but the said Tata Motors Pvt. Ltd. did not disclose to the complainant that they calculated the premium amounts for three years i.e. hypothecated years with the loan amount and accordingly, it paid the premium amount for the premium years 2008-2009 and 2009-2010 also. He also submitted that the Tata Motors Pvt. Ltd. did not hand over to the complainant-respondent, the paper showing the payment of insurance premium for her bus to the Oriental Insurance Co.Ltd. for the said two premium years. He also submitted that with a view to protect the interest, the complainant without knowing that fact of making payment of premium by Tata Motors Pvt. Ltd. again paid the premium by her concerning her said vehicle to the Oriental Insurance Co.Ltd. for the said two premium years and as such, it has become double payment of premium concerning the same bus for the same premium years i.e. 2008-2009 and 2009-2010.  
11. Mr.Chakma for the respondent also submitted that when Tata Motors Pvt. Ltd. obtained the insurance policy in favour of the complainant on making payment of premium from the Oriental Insurance Co.Ltd., it was not proper for the same Insurance Company to receive any premium further from the complainant for the same year concerning her said bus. He also submitted that the appellant-Insurance Company did so to defraud the complainant taking advantage of her ignorance regarding making payment of premium by her financier, Tata Motors Pvt. Ltd.. He also submitted that Tata Motors Pvt. Ltd. paid premium amounts for both the premium years at least 28 days and 26 days respectively before making payment of the premium amounts by the complainant to the Oriental Insurance Co.Ltd. and as such, the premium amount, so paid by the complainant being the excess amount as premium for the same bus for the same years should be refunded to the complainant, but in spite of making prayer before the Oriental Insurance Co.Ltd. on 21.01.2013 i.e. before filing of the complaint in the District Forum, it did nothing. He also submitted that it is no doubt a deficiency in service on the part of the appellant-Insurance Company and accordingly, the Ld. District Forum finding the justifiability of the claim of the complainant allowed the complaint and passed the impugned judgment which being proper and legal should be affirmed and the appeal should be dismissed.  
12. Mr.K.Chakma also submitted that the complainant is not claiming the refund of the premium amounts paid by the financier Tata Motors Pvt. Ltd. from the Oriental Insurance Co.Ltd. who in spite of having an insurance for the said car in the name of the complainant on payment of premium amount by Tata Motors Pvt. Ltd. , again received the premium amounts from the complainant. He also submitted that in that view of the matter, the Tata Motors Pvt. Ltd. cannot be a necessary party to the complaint case and that is why, the complainant did not make Tata Motors Pvt. Ltd. as party to that case. He then submitted that the plea of the learned counsel for the Insurance Company to the effect that for want of said Tata Motors Pvt. Ltd. the complaint case is bad for non-joinder of necessary party, has no basis at all and therefore, is untenable in law. Lastly, he submitted for dismissal of the appeal and also for confirmation of the impugned judgment.
13. Going through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the memo of appeal, we find certain admitted facts. Admittedly, the complainant-respondent-Anima Chakma purchased the Tata Star Bus from Rajarshi Motors Pvt. Ltd. financed by Tata Motors Pvt. Ltd.. It is also admitted position that Tata Motors Pvt. Ltd. paid the insurance premium for the said car for three consecutive years. It is also found admitted position that the complainant also paid insurance premium for the same car for the same year i.e. for the premium years 2008-2009 and 2009-2010. It is also admitted fact that the insurance policy issued on the basis of the premium paid by Tata Motors Pvt. Ltd. has P.A. cover for owner-driver, but the insurance policy issued on payment of premium by the complainant has no P.A. coverage. It is also admitted fact that the insurance policy whose premium was paid by Tata Motors Pvt. Ltd. is a comprehensive package policy covering all for Zone-B, but the insurance policy whose premium was paid by the complainant does not cover all, it was only for Zone-C. It cannot be justified from any standpoint that two policies should be for the same vehicle for the same year. Admittedly, the complainant did not file any paper concerning the loan secured by her from Tata Motors Pvt. Ltd. for purchasing the said bus. It cannot be ascertained if the loan amount so granted by Tata Motors Pvt. Ltd. also includes the insurance premium at least for three years. Be that as it may, it is admitted position that the Tata Motors Pvt. Ltd. paid insurance premium for the said vehicle under comprehensive package policy for three consecutive years and the last two premium years were 2008-2009 and 2009-2010.
14. We have gone through the deposition of O.P.W.1 R.K.Krishnendu Sinha who stated in his deposition that the petitioner came to them after expiry of the policy and as it expired, they did not return the excess premium paid by the complainant. From this deposition of O.P.W.1, it is palpable that as the petitioner claimed refund of the premium amount to them after the expiry of the premium years i.e. 2008-2009 and 2009-2010, they did not return the premiums paid by her. According to us, the expiry of premium years is no bar to return the premiums paid in excess on the ground that acceptance of the double payment of premium for the same vehicle for the same year is not permissible and justifiable in law, but that claim must be made within the period of limitation as provided under Section 24A of the Consumer Protection Act, 1986. At the same time, we are also of the opinion that as the matter is in between the appellant Insurance Company and the complainant Anima Chakma regarding refund of the premium paid in excess for the premium years 2008-2009 and 2009 to 2010, the Tata Motors Pvt. Ltd. is not at all a necessary party to this case.
15. Admittedly, the complainant paid premium of Rs.23,862/- on 29.01.2008 for the premium year 2008-2009 and Rs.21,176/- on 27.01.2009 for the premium year 2009-2010. So, it is found that the cause of action arose for the premium year 2008-2009 on and from 29.01.2009 and for the premium year 2009-2010 on and from 28.01.2010. According to Section 24A of the C.P.Act, the period of limitation is two years from the date of accrual of the cause of action for filing a complaint before the Consumer Fora, but the complainant lodged the complaint before the Ld. District Forum, South Tripura, Udaipur on 11.04.2013. It means that the complaint has been lodged by the complainant after three years two months and some days from the date of accrual of the last cause of action i.e. on and from 28.01.2010. Admittedly, the complainant at the time of lodging the complaint before the Ld. District Forum did not file any application under Section 24A(2) of the C.P.Act mentioning therein any sufficient cause for not filing the complaint within the period of limitation. It appears that in spite of raising a plea of law of limitation in the written statement filed by the appellant-O.P.-Insurance Company, the Ld. District Forum uttered no single word about the question of applicability of law of limitation. According to us, the Ld. District Forum totally overlooked this question of law of limitation as provided under Section 24A of the C.P.Act while deciding the complaint case.
16. Expiry of the premium years, according to us, is no ground for refusal of excess premium amount paid by the complainant for the year 2008-2009 and 2009-2010, but such claim is found barred by law of limitation as provided under Section 24A of the C.P.Act, 1986. In this regard, we are also in agreement with the submission of the learned counsel for the Insurance Company that the remedy of the complainant lies in the Civil Court for getting the said premium amounts refunded from the Insurance Company, if the complainant files proper application before any Civil Court. However, as the claim of the complainant is found barred under Section 24A of the C.P.Act, 1986, the impugned judgment cannot be upheld and therefore, the complaint lodged by the respondent-complainant before the Ld. District Forum is found not legally maintainable and it is liable to be dismissed and as such, the instant appeal is liable to be allowed.      
17. In the result, the appeal succeeds. The impugned judgment dated 02.05.2014 passed by the Ld. District Forum, South Tripura, Udaipur passed in case No.C.C.06/13 is hereby set aside and the complaint lodged by the complainant-respondent under Section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum being barred by Section 24A of the C.P.Act is dismissed not being maintainable in law. There is no order as to costs.

 

 

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura