DEBASIS BHATTACHARYA, PRESIDING MEMBER
Date : 18.5.2016
Both these appeals have emanated from the common order dated 22.08.2013 passed in Case No.91/2011 by the Ld District Consumer Disputes Redressal Forum, Unit-I, Kolkata (in short, District Forum).OP Nos.1 and 3 have preferred them, respectively, being aggrieved by the said order. By the impugned order, the Ld District Forum has allowed the case against all the OPs jointly/severally.
The case of Complainant, succinctly is that he purchased a Bolero vehicle being registration no.WB-06A-3542 from the OP No.2 at Rs.6,09,159/- and other ancillary expenses, namely, registration, audio tax, insurance and loan processing fee, totaling Rs.6,96,691/-, it being the sub-dealer of the OP No.1. It was insured with the OP No.3, being Insurance Policy No.OG-090-2401-1801-00034115 for the period from 05.03.2009 to 04.03.2010 of a sum insured of Rs.6,09,159/-. On or about 24.01.2010 the said vehicle was stolen, for which Bidhannagar P.S.(North) Case No.12 dated 24.01.2010, u/s 379 IPC was registered. On or about 24.01.2010, he duly lodged a claim with the OP No. 3, but it was not settled. But, in or about July, 2010, he was shocked and surprised on receiving a letter dated 27.07.2010 from the OP No.3 alleging that the said Insurance Policy was cancelled from the inception, since the cheque issued for the same was dishonored , for which the claim is not payable and repudiated. However, by a letter dated 08.09.2010, the OP No.2 admitted, inter alia, that the OP No.2 issued the cheque on 05.03.2009 of Rs.17,077/- in favour of the OP No.3 for insurance of the vehicle and OP No.3 issued the policy valid from 05.03.2009 to 04.03.2010. But, the said cheque has been dishonoured, for which the repudiation, and the OP No.2 shall compensate the said loss. At no point of time, the Complainant was informed that the Insurance Policy as rendered invalid due to non-receipt of the premium amount. Accordingly, the OPs owed a legal due to jointly and/severally compensate the Complainant for the loss, damage and injury suffered by him, as the services rendered by them in respect of insurance of the vehicle were totally faulty, imperfect, and inadequate. Specifically, the OP Nos. 1 and 2 failed and /or neglected to exercise any care or reasonable care to ascertain and to ensure that the cheque was duly encashed. Particularly, the OP No.3 failed and / or neglected to take any care or any sufficient care to inform the OP Nos.1 and 2 and / or the Complainant at the time of dishonour of the cheque for which the Insurance Policy stood cancelled. Accordingly, the case.
On the other, hand the case of the OP No.1 is that they are not involved in rendering any services in respect of insurance to the Complainant of the said vehicle. As such, the case is not sustainable against them. Further, the Complainant did not suffer any loss and injury due to any act of the OP No.1. So, the OP No is not at all liable for any such deficiency of service and / or breach and /or negligence on the part of the other OP. Accordingly, the complaint be dismissed.
The case of the OP No.2 is, mainly, that on the request of the Complainant and the OP No.1, it being a Commission Agent of the OP No.3, issued a cheque of Rs.17, 077/- to the OP No.3 for getting the vehicle insured, as it is mandatory according to the Motor Vehicles Act, 1988. The Cover Note and the Insurance Policy in name of the Complainant was duly issued by the OP No.3, which was delivered to him through OP No.1. The OP No.2 was not aware of the fact that the cheque was dishonoured by the Bank. Accordingly, the complaint being frivolous and vexatious be dismissed.
Case of the OP No.3 is that on being intimated of the theft of the vehicle, it at once deputed Surveyor Mr Debjit Chakraborty to testify the veracity of the claim, who conducted the survey in detail and gave an elaborate report on 23.07.2010 and opined that the theft was apparently a genuine one, but that the vehicle was parked on open road, which was not an authorised parking place. However, the claim of the Complainant was repudiated on 27.07.2010 on the ground that the cheque for the premium amount for inception of the policy was dishonoured by the banker and no premium amount has been deposited to the Insurance Company for the coverage. In absence of payment of any premium amount, no liability is cast upon the Insurance Company in terms of contract of insurance, which incepts only upon receiving the premium amount as a consideration amount for granting any insurance coverage and in case of non-payment of any premium, the question of any kind of liability does not arise at all. Hence, there exists no contract between the Complainant and Insurance Company by virtue of which the Complainant cannot be treated as an insured of the Insurance Company, and the contract is void ab initio. So, the complaint petition be dismissed.
It is to be considered if both the appeals are tenable as regards the facts and circumstance of the case by reversing the order assailed thereby.
Decision with reasons
Ld Advocate for the Complainant has submitted that there has been FRT by the Police in the matter and the incident was found to be true, so also by the Investigator appointed by the Insurance Company. It is admitted by the OP No.2 in their written version that they issued the cheque to the OP No.3, which got dishonoured.
Ld. Advocate for the OP No.1 /Appellant of FA/1077/2013 has submitted that there is no document in support of the contention of the Complainant against them as made out in the petition of complaint. There is no liability cast upon them to indemnify the loss to the Complainant. All the monetary transactions were made in between the Complainant and the OP No.2, and the OP No.1 had no concern in it. All the wrongs have been committed by the OP No.2, and the OP No.1 had no role in it. In this respect, he referred to a letter dated 08.09.2010 issued by the OP No.2 to the Complainant that if they were informed of the dishonour of the cheque, they would have sincerely rectified the fault.
Ld Advocate for the OP No.3/Appellant in FA/544/2014 has submitted that it was intimated to the Complainant by a letter dated 27.07.2010 that the cheque issued in respect of his policy was dishonoured and the policy stood cancelled from inception. So, there stands no liability of the OP No.3 to indemnify the loss to the Complainant.
Materials on record very much reflect that the instant dishonoured cheque was issued by the OP No.2 and the reason for it was insufficient funds. So, the whole burden lies on the shoulder of the OP No.2 only and not against any other OPs in respect of indemnification of the loss of the vehicle of the Complainant by way of theft, which is an admitted fact. Section 64 VB of The Insurance Act, 1938 is a pointer in this respect. The impugned order suffers in this respect. No liability can be cost or devolve on the shoulder of the other OPS being OP No.1 and 3 who have role to play in the matter. The whole deficiency in service is of the OP No.2 in this respect. While the OP No. 2 issued the cheque from their end, they should have been cautious in the matter of payment and no further direction given to the Insurance Company to produce the cheque to the Banker later on. The impugned order is thus not sustainable and is set aside to that extent.
Hence ordered that both the appeals being FA/1077/2013 and FA/544/2014 be and the same are allowed. The impugned order is modified. OP No.2 is directed to pay the insured value of the vehicle amounting to Rs.6,09,150/- ( Rupees Six lakhs nine thousand and one hundred and fifty) only to the Complainant along with compensation of Rs.50,000/- (Rupees fifty thousand) only for harassment and mental agony and litigation cost of Rs.5,000/- (Rupees five thousand) only within 30 days from this date, in default to pay an interest @ 10% p.a. till full realisation.
The original order be kept in the file of FA/1077/2013 and a photocopy of the same be kept in the file of FA/544/2014.
