This complaint coming up before us for hearing on 15-04-14 in the presence of Sri S.Kishore Babu, advocate for complainant and Sri G.Srinivasu, Advocate for opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Prabhakar Gupta, Member:-

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking insured amount of Rs.34,001/- towards loss of repair and Rs.25,000/- towards mental agony, to be paid with interest @ 18% p.a. from the date of accident till realisation besides costs of the complaint.

2.   In brief the averments of the complaint are these:

        The present complainant is the owner of the motor cycle bearing registration No.AP 07 AT 9681.  Further, the present complainant is the insurance policy holder belongs to the opposite party bearing No.015090936500, obtained on 15-07-10.  The period of insurance coverage is from 15-07-10 to 14-07-11.  Further, the present complainant obtained the said insurance coverage policy against the remitting of the premium of Rs.877/- .  While the policy is in force, on 06-07-11 the complainant met with an accident near Mourya Hotel Junction, Mangalagiri Road with a lorry bearing No. AP 16 TU 9917, driven the said lorry rashly and negligently by the driver and caused damages to the complainant’s vehicle and also caused some serious injuries to the complainant, at about 9 P.M.  After the said incident the complainant lodged a criminal complainant with Pedakakani police station and the same was registered by the police under F.I.R No.177/11 dated 08-07-11.  Subsequently, the complainant intimated about the accident to the opposite party.  To processes the claim he obtained the claim form No.489861 dated 09-07-11. After the intimation the opposite party appointed the surveyor by name Mr.Siva Sankar to investigate into the matter and to submit his report.  As per the instructions of the opposite party the Surveyor carriedout his investigation and during the course, the complainant submitted all facts, in turn given work order to the garage for the repair of the damaged vehicle.  Subsequently, the complainant submitted his claim form along with documents concerned like driving license, police records, R.C. book, FIR and cost estimation of repair.  Even inspite of submission of complainant claim, the opposite party kept deaf ear and not settled the claim of the complainant.  At last the complainant issued a legal notice on 28-03-10 and in turn the opposite party sent a reply letter stating that the premium amount of Rs.877/- has been paid by the complainant by way of cheque bearing No.764649 dated 14-07-10 drawn on Axis Bank, Guntur.  During the course of collection, the said cheque was bounced for the reasons “in sufficient funds”. The fact of cheque bounce has been intimated to the complainant by way of letter and mentioning the point as there was no subsisting contract as on date of accident since the cheque was bounced.  So, they denied to grant the claim of the complainant and thus repudiated the claim of the complainant.  Subsequently, the complainant approached the banker concerned and got information that the issued cheque bearing No.764649 dated 14-07-10 is not pertaining to present complaint, by way of letter.   Subsequently, the present complainant approached the opposite party and submitted their claim and requested to settle the claim. But all are in vain.  As there is no other go, the complainant got repaired the damaged vehicle with his own amount by spending to a tune of Rs.34,001/-.  Now the complainant filed the present complaint for grant of reliefs as the same is according to Law and there is no other go to recover the amount of Rs.34,001/-.

3.      Opposite party filed its version which is in brief as follows. 

          In reply to the complainant the opposite party filed his version. As per the version the opposite party admitted the issuance of policy, appointment of surveyor.  However, the opposite party made an allegation that issued cheque for Rs.877/- in connection with the policy has been bounced for the reasons of “insufficient funds”.  This fact also intimated to the complainant by way of letter dated 09-09-10.  As per the contents of the letter the opposite party cancelled the issued policy which pertains to the subject claim as ab-initio since there is no existing contract between the opposite party and complainant as on the date of accident.  Further, they mentioned that they were issued reply notice dated 05-04-12 with all material facts.  However, the opposite party admitted the fact of appointment of surveyor for investigation.  Except the cheque bounce fact, the opposite party admitted all the other material facts mentioned in the complaint.  Since, there is no subsisting contract in connection with the insurance policy, the claim of the complainant has been not processed and there is no deficiency or negligence on the part of their service in rendering the same on complainant.  Hence, the opposite party prayed to dismiss the present complaint.    

4.      The complainant and opposite party filed their respective affidavits and also documents.  Exs.A-1 to A -24 marked on behalf of the complainant.  Exs.B-1 to B-5 are marked on behalf of the opposite party.

5.   Now the points that arose for consideration in this complaint are:

1.     Whether there is insurance contract between complainant and opposite party as on date of accident?

2.     Whether the claim of the complainant is genuine and supported by the documents?

3.     To what relief?

6.  POINT No.1:-  Counsel for the complainant argued that the complainant is the owner of the vehicle and also insurance policy holder belongs to opposite party.  Further, the said policy is in force as on date of accident.  After the accident the complainant took all legal steps, processed his claim like registering a case with concerned police, obtaining of police records, submission of the same to the opposite party for the process of claim. After receiving only the opposite party appointed their surveyor by name Mr.Shivasankar for the investigation and to file his survey report.  Further, the counsel argued that the complainant obtained the said insurance policy against the payment of premium amount of Rs.877/- to the opposite parties which is also in force from 15-07-10 to 14-07-11, and so entitled for the claim as mentioned in his claim form. Further, he argued that the opposite party created allegation with regard to bounce of cheque said to have been issued by the complainant and after getting the information from the banker they issued a letter to the complainant on 09-09-10 stating that the policy of the complainant has been cancelled as ab-initio since the premium amount has not been received for the reason that the issued cheque has been bounced for “insufficient funds”.  In this connection, the counsel for the complainant argued that the complainant never issued any cheque for the payment of PREMIUM and the bounced cheque is not at all pertaining to the complainant and the same was issued by one B.Damodaram who is no way concerned to the present policy. So, the allegation of the opposite party is only invented to harass the present complainant, so as to escape from their liability.  As the complainant is a right policy holder and established each and every fact for deficiency of services, he prayed this Forum to grant reliefs as prayed for.

        The counsel for the opposite party argued that as Per the Insurance Act, 64 UV, the insurance company is having liability only on getting the consideration amount, i.e., premium amount either by way of cash or by way of cheque. In the absence of premium there is no subsisting contract between the parties of the policy.  Here in the present case the policy was issued by the opposite party against getting a cheque from the complainant for the payment of premium amount of Rs.877/-.  Subsequently, the cheque was presented for collection. The fact of cheque bounce for the reason “insufficient funds” has been came to the knowledge of opposite party and immediately they responded and sent a letter to the complainant stating that they are cancelled the issued insurance policy as ab-initio since the premium amount not received by the opposite party.  Further, they also requested the complainant to return the original policy certificate to them.  With the malafied intention and to get unlawful money from the opposite party the complainant filed the present complaint before this Forum with all false allegations.  There is no deficiency of service on the part of opposite party since they were repudiated the claim according to Law, and so he requested this Forum to dismiss the complaint.

        With the above arguments and on the strength of the documents filed by both parties, it is an admitted fact that the present complainant is the owner of the vehicle, policy holder of the insurance coverage, fact of accident, investigation of surveyor and submission of claim form along with concerned documents. There is no dispute with regard to these facts.  Now the discussing point is whether the premium amount of Rs.877/- paid either by way of cash or by way of cheque to the opposite party.

On observation of the Ex.B-3 filed by the opposite party which is cheque bearing No.764649 dated 14-07-10 stands in the name of TATA AIG General Insurance Company Limited.  The said cheque has been signed by one B.Damodaram, nowhere the name of the complainant has been mentioned in annexed Ex.B-4, which is having the nature of Cheque Returning Memo, the said cheque was bounced for the reason “funds insufficient” on 02-08-10 by the banker concerned.  The fact, i.e., bounce of cheque also confirmed with the memo of banker concerned, dated 02-04-14.  So, issued cheque for Rs.877/- has been bounced for the insufficient funds.  Since the said instrument or annexed document Ex.B-4 not containing the name of the complainant at any where, it seems to be the said Ex.B-4 is not pertaining to the present complainant and only issued by another person by name B.Damodaram.  The opposite party neither mentioned in their version nor filed any document to elicit the fact that the said instrument was though issued by B.Damodaram, concerned to the present policy of the complainant.  In the absence of such clarification, this Forum cannot believe the version of the opposite party that the premium was not paid since the issued cheque was bounced.  In the same time the complainant also not filed any receipt or any instrument which confirms that the complainant paid the premium amount as required for the issuance of policy.  However, the complainant filed the policy (Ex.A-4) stands in his name and which is not containing the mode of payment of premium.  The opposite party miserably filed to establish the fact that they were issued the present insurance policy on their receiving the cheque from the complainant.  In the absence, we have to believe the version of the complainant that he obtained the policy (Ex.A4) on the payment of premium amount irrespective of mode of payment.  So, as on date of accident the policy is in force               .

7.      POINT NO.2:- Coming to the claim of the complainant, the complainant filed some bills and photos which were concerned to the repairs of damaged vehicle, marked as Ex.A-8 to A-17.  As per the contents of the Exhibits, there are so many corrections with regard to the costs of the parts, service charges and other concerned facts.  The corrections of the exhibits created doubt on the genuineness of documents. The complainant failed to explain about the corrections. Hence, this Forum is not believing the version of the complainant in connection with quantum of damages.  As per the Ex.B-5 filed by the opposite party which is having the nature of surveyor report, it came to the knowledge of this Forum that the appointed surveyor made investigation and assessed the loss of damaged vehicle as Rs.18,401/-. After deducting depreciation amount of Rs.4,686/- the net loss amount is Rs.13,714/-. The said amount to be clubbed with labour charges of Rs.2,300/-.With a total claim amount of Rs.15,964/-. On verification of these exhibits this Forum feels surveyor has assessed the loss of the damaged vehicle according to Law and the surveyor report also supported by the lodged FIR which is marked as Ex.A-7.  So this Forum feels that the complainant is entitled for the amount of Rs.15,964/- only.

 8.     POINT NO.3:- As the claim of the complainant is excessive and not tallied with the surveyor report, this Forum cannot allow entire claim of the complainant as prayed in his complaint and allowed this complaint in part.

9.     In the result, the complaint is allowed in part in terms as indicated below:

        1.     The opposite party is directed to pay an amount of Rs.15,964/- (Rupees fifteen thousand nine hundred and sixty four only) with interest @ 9% p.a. from the date of filing of this complaint till the date of realisation.

        2.     The opposite party is further directed to pay an amount of Rs.2,000/- (Rupees two thousand only) towards mental agony and an amount of Rs.1,000/- (Rupees one thousand only) towards costs of the complaint.

        The above order shall be complied within a period of 30 days from the date of receipt of this copy of order.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 25^th day of April, 2014.

Sd/-XXX                     Sd/-XXX                     Sd/-XXX

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

                                                                                                     Sd/-XXX

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.