Chandigarh

DF-II

CC/312/2014

M/s Shanti Infrastructure & Colonizers (P) Ltd. - Complainant(s)

Versus

Tata AIG General Insurance Company Ltd. - Opp.Party(s)

Munish Kumar, Adv.

27 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	312 of 2014
Date  of  Institution	:	19.6.2014
Date   of   Decision	:	27.1.2016

 

 

 

 

 

M/s Shanti Infrastructure & Colonisers(P) Ltd. through its Director Sh. Yashpal R/o house No.1682, Sector 34D, Chandigarh.

             …..Complainant

Versus

 

1.  Tata AIG General Insurance Co. Ltd. having its registered office at 15^th floor, Tower A, Peninsula Business Park, Ganpatrao Kadam Marg, Off Senapati Bapat Marg, Lower Parel, Mumbai through its National Head-Operations and Systems.

 

2.  Joshi Automotives Pvt. Ltd.  Plot No.#67, Industrial Area, Phase II Chandigarh through its authorized signatory.

….. Opposite Parties

 

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

 

For complainant(s)      :     Sh. Munish Kumar, Advocate

 

For OP No.1             :     Sh. Rajneesh Malhotra,

For OP No.2             :     Sh. Devinder Kumar, Adv. Proxy for Sh.                            Rajesh Verma, Advocate 

 

 

 

PER PRITI MALHOTRA, MEMBER

 

 

 

          As per the case, the complainant got insured its vehicle make Honda Civic 1.8 MT model 2010 with Opposite Party No.1 after paying premium of Rs.21988/- by supplying banker cheque for the period from 23.4.2013 to 22.4.2014. Unfortunately the said vehicle met with an accident. The complainant duly intimated the same to the representative of the OPs immediately. As per his instructions complainant approached Opposite Party No.2 at their authorized service centre i.e. at Harmony Honda – Joshi Automotive  Pvt. Ltd. Chandigarh the dealer as well as company’s service centre for the vehicle in question. It Issued an estimate of Rs.62,672/-  to be occurred on the repair. Even the surveyor of the OPs duly visited the service centre and also received the re-estimated bill issued by the service centre. The officials of the Opposite Parties assured the complainant that the amount to be incurred on the repair of the vehicle will be disbursed after completion of certain formalities.  But to the utter surprise of the complainant Opposite Party No.1 did not disburse the estimated amount nor instructed the service centre to repair the vehicle at their expense and costs. The complainant raised the issue with Opposite Party No.1.  In response to that the complainant was surprisingly intimated by the Opposite Party that the policy in question was cancelled due to dishonour of cheque issued against the premium amount.   The complainant intimated the Opposite Party No.1 vide email  Annexure C-8 and subsequent email Annexure C-9 that payment of premium was made through banker’s cheque so the question of dishonour thereof does not arise at all.   Opposite Party No.1 vide Annexure C-10 in response to email  dated 6.3.2014 intimated that the cheque issued against the premium amount was returned by the bank due to CTS issue at Chandigarh and attached letter dated 26.9.2013, which was never communicated or sent to the complainant at any point of time.  The complainant to clear the picture sought status of the banker’s cheque issued against the premium amount, from its bank. The Bank vide Annexure C-12 intimated the complainant that the said banker’s cheque was never presented for clearing. It is alleged that the OPs themselves are at fault by not presenting the cheque for clearance and then concocted a false story and  illegally cancelled the policy, which is a gross deficiency in rendering service and unfair trade practice on their part  owing to which the complainant suffered lot mental agony and physical harassment. Alleging the said act of OPs as deficiency in service, this compliant has been filed.

 

2.     Opposite Party No.1 has filed reply and stated that the cheque given by the complainant was deposited with the Honkong and Shanghai Banking Corporation Ltd. under deposit Slip No. 417401 on 30.4.2013 and was returned uncleared to the answering Opposite Party under advice “due to CTS issue” at Chandigarh. Resultantly vide letter dated 26.9.2013 the policy issued to the complainant was cancelled. Even vide the said letter complainant was informed to produce the vehicle if it wanted to insure it for physical inspection  before  assumption of new risk and remittance of premium was to be made.  But the complainant did not respond to the same.  It is averred that since the policy stood cancelled, as such the answering Opposite Party is not liable to pay any alleged claim to the complainant.  It is denied that the complainant was informed for the first time vide email dated 7.3.2014 regarding dishonour of the cheque and cancellation of the policy. In fact the complainant was informed vide letter dated 26.9.2013 regarding dishonour of the cheque and cancellation of the policy.  Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3.     Opposite Party No.2 in its reply stated that the complaint is not maintainable against it as no cause of action has arisen to the complainant against it. The policy in question was issued by Opposite Party No.1 and it also received the premium from the complainant and thereafter said policy was also cancelled the by it. As such the Opposite Party No.2 has no role to play with the matter in dispute. Pleading no deficiency on its part it has been prayed by Opposite Party No.2 that the complaint be dismissed against it.

 

4.     The Complainant also filed rejoinder thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in their reply.

 

5.     Parties led evidence in support of their contentions.
6.     We have heard the ld. Counsel for the parties and have also perused the record.
7.     The contention of the Opposite Party No.1 is that banker cheque issued by the complainant  for the policy in question was not encashed as it did not carry the “CTS clearance”.  This sole reason for non encashment of such cheque has been submitted by the Opposite Party No.1. On the contrary the complainant alleged that it was not informed about the non-encashment of the cheque well in time. Further submitted that it sought clarification from its bank who intimated that  the said cheque was never presented to the bank for encashment.
8.     In view of the above circumstances, we have to see under whose negligence the cehque was not cleared. Whether the complainant is on the wrong footings or the Opposite Party No.1 by mistake failed to present the cheque to the bank of the complainant for clearance. The assertion of the Opposite Party No.1 is that it had also written a letter Annexure R-4 dated 26.9.2013 to the complainant regarding non-encashment of the cheque of premium. This letter was contradicted by the counsel for the complainant  stating that it was after thought as the said letter was never communicated to the complainant and was generated when the disputed claim was lodged by the complainant.  Further claimed that the letter in question was issued after long gap. Further it is gathered that only due to non-payment of premium  in time the Opposite Party No.1 cancelled the policy and refused to oblige the claim of the complainant.
9.     The earlier stand taken by the Opposite Party No.1 in regard to non-encashment of the banker’s cheque in question is that it failed to clear CTS issue at Chandigarh.  Thereafter, The Opposite Party No.1 filed contrary stand by filing affidavit of Mr. Azhar Wasi dated 9.10.2015, wherein submitted that as per  the letter dated 5.3.2014 issued by Hongkong and Shanghai Banking Corporation Ltd. (HSBC), cheque issued by the complainant towards the premium amount for obtaining the insurance policy in question has been lost in transit. As such the cheque in  question could not be encahsed. However, on receipt of the information regarding the accident the respondent appointed the surveyor who assessed the loss to the tune of Rs.46,830/- as the  respondent has already issued the insurance policy subject to encashment of the cheque issued towards the premium amount. During the course of arguments the counsel for the Opposite Party NO. 1 openly submitted before the Forum that the insurance company is ready to pay the assessed amount subject to payment of premium amount of Rs.21,349/-  and in case the complainant is not ready to pay the premium amount  then the policy shall be deemed to be cancelled and they are not liable to indemnify the complainant with regard to the loss, if any, suffered  by it. This submission of the counsel for Opposite Party No.1 has duly been mentioned in the affidavit dated 9.10.2015 of Sh. Azhar Wasi, Manager.
10.     In view of letter dated 5.3.2014 (Annexure R-5) issued by the bank of Opposite Party  No.1; i.e. HSBC that the cheque in question got ‘lost in transit’ proves that the Opposite Party No.1 acted with malafide intention by issuing ante dated letter dated 26.9.2013 (AnnexureR-4) disclosing that the policy in question stand cancelled ab-initio due to the non clearance of the cheque in question  due to ‘CTS issue’ at Chandigarh.  
11.         The contrary stand taken by the Opposite Party No.1 clearly proves that the non- clearance of cheque issued by the complainant is not disputed on the part of the complainant and it is fully entitled for the claim in question. Had the complainant been intimated about the non encashment/loss of the cheque in time it would have made arrangements for the re-issuance of the banker’s cheque, in question for the purpose of premium of the policy in question. Thus, the complainant is entitled for the amount assessed by the surveyor of Opposite Party No.1 and Opposite Party No.1 is liable to indeminify the same. As regards the payment of premium is concerned, since the disputed amount may still be lying with the bank  of the complainant who issued the banker’s cheque as such no amount has  actually been credited in the account of the Opposite Party No.1 for no fault of the complainant. Nothing has been brought forward by Opposite Party No.1 to show that the complainant had received back his money from the said bank. Thus, no question arise to order the complainant to deposit the premium again as claimed by Opposite Party No.1. So, for all intends and purposes the premium stands paid and so the validity of the policy issued by Opposite Party No.1 is presumed in favour of the complainant.  
12.     In view of the above discussion, we are of the opinion that the complaint deserves to be allowed against Opposite Party No.1 for their deficiency in service.  Accordingly, the complaint is allowed and the Opposite Party No.1 is directed as under:-

        

a]  To pay to the complainant Rs.46,830/- as assessed by the surveyor towards the repair of the vehicle in question.

 

b]  To pay Rs.15,000/- as compensation for causing mental agony and physical harassment to the complainant.

C]  To pay Rs.5000/- towards litigation expenses.

 

    The complaint against Opposite Party No.2 is dismissed.

 

         The above said order shall be complied with by the Opposite Party No.1 within 45 days of its receipt, failing which they shall be liable to pay interest on the above awarded amount at (a) and (b) at the rate of 18% p.a. from the date of this order till it is paid, besides paying litigation expenses.

 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

27.1.2016

                                                                                       Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER