Complainant Mrs.Navjinder Kaur vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to pay the insurance claim of vehicle bearing registration No.PB-35-R-8008 for Rs.15,00,000/- alongwith interest @ 18% P.A. and pay Rs.2,00,000/- on account of mental harassment, agony, inconvenience, hardship and the opposite parties be further directed to pay Rs.10,000/- as litigation expenses to her, in the interest of justice.

2. The case of the complainant in brief is that she is registered owner of Mahindra XUV 500 bearing registration No.PB-35R-8008 and insured the same with the opposite party vide policy no.01522002892 dated 25.11.2014 and she made the payment through cheque no.252105 dated 25.11.2014 for Rs.28,783/- from her account no.6517832775 and the opposite parties have issued certificate of insurance policy and vehicle was under hypothecation with the State Bank of Patiala. Her son met with an accident on 29.11.2014 and died. The vehicle was completely damaged/total loss in the said accident. Her husband informed the opposite parties regarding the said accident telephonically. She suffered a loss of Rs.15,00,000/-. She has approached to the company of opposite parties for the claim of the said vehicle, but the opposite parties are not responding positively and has been lingering on the matter on one pretext or the other despite repeated requests by her. Due to the act and conduct on the part of opposite parties she has suffered great mental tension, harassment and agony which amount to business malpractice and deficiency in service on the part of the opposite party. She has also sought Rs.2,00,000/- on account of mental tension, harassment and agony suffered by her. A legal notice dated 9.12.2015 was issued to the opposite parties but of no use. Hence this complaint.

3. Upon notice, the opposite parties appeared through their counsel and filed their written version taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant has no locus standi to file the present complaint; there is no deficiency in service on the part of the opposite parties; the complainant has not approached this Hon’ble Forum with clean hands and this Ld.Fourm has no territorial jurisdiction to try the present complaint. On merits, it was submitted that the complainant had given the cheque for payment of premium vide cheque no.252105 dated 25.11.2014 drawn on State Bank of Patiala. However, the cheque has been dishonoured and no premium amount has ever been received by the complainant and due to which the policy and cover note was cancelled and as such the risk of vehicle no.PB 35R 8008 was never assumed by the opposite party. Since, there is no privity of contract between the parties, hence, there is no liability of insurance company. It was next submitted that the vehicle has been duly surveyed by Mr.Nishant Gupta, IRDA licensed independent Surveyor and Loss Assessor and he duly submitted his survey report who has assessed loss amount to be Rs.8,24,630/- but there is no privity of contract between the parties as policy is void ab initio due to premium cheque dishonour and as such there is no liability of the insurance company and the present complaint is liable to be dismissed. It was further submitted that the cheque provided by the complainant towards payment of premium was returned as the same was bounced. Intimation for the same sent to the complainant vide letter dated sent by registered AD 19.3.2015. Also letter dated 2.12.2015 was sent to the complainant informing about inability to pay the claim in view of above noted submissions. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4. Complainant tendered into evidence her own affidavit Ex.CW1/A along with the other documents exhibited as Ex. C1 to Ex.C6 and closed the evidence.

5. Counsel for the opposite parties tendered into evidence affidavit of Sh.Mohamad Azhar Wasi Authorized Signatory Tata AIG Gen. Ins. Co.Ltd. Ex.OP-2, alongwith the other documents Ex.OP1, Ex.OP-3 to Ex.OP11 and closed the evidence.

6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted on account of the impugned repudiation (Ex.OP7 to Ex.OP9) of the Total Loss Accident Claim of the complainant’s insured (Ex.C2) SUV Vehicle on account of alleged bouncing/ return-unpaid (Ex.OP4) of the insurance-premium (Ex.OP5) cheque by the drawee bank for recorded reason: ‘Cheque Irregularly drawn’(Ex.OP1).

7. We have intently examined complete records of the instant proceedings so as to subject the premium cheque and its return-memo etc to one judicial/ legal review-analysis in the light of its factum back-drop so as to determine the final but statutory reach. We find that the premium cheque dated 25.11.2014 for Rs. 28,783/- (Ex.C1) was duly handed over to the Agent Brokers (Mahindra Insurance Brokers Ltd.) of the OP insurers on 25.11.2014 so as to receive the vehicle’s insurance policy (Ex.C2) effective from 25.11.2014, itself; up to midnight of 24.11.2015. Further, we find (Ex.OP1) that the premium cheque (Ex.C1) was presented in clearing to the drawee/ paying bank on 09.12.2014 in local clearing [i.e., after full 13 (thirteen) days of its receipt and after full 09 (nine) days of the total loss-accident (i.e. on 29.11.2014) causing death to the complainant’s son] for the reason ‘Cheque Irregularly drawn’ and that surely establishes ‘deficiency’ in service on the part of OP insurers; firstly, on account of having held back the premium cheque for 13 days (instead of depositing it with the Bank) and secondly for having not-drawn the cheque in order. It was for the OP insurers’ agent brokers to have checked/filled in the premium cheque properly and in order. It is not even the case of the OP that the complainant was not having funds in his Bank Account. Moreover, we find that even the drawee bank has simply put forth the reason of return as: ‘Irregularly Drawn’ sans mention of the ‘irregularity’. The fate of the claim too have been informed to the complainant after a gap of four months vide letter dated 19.03.2015 Ex.OP6 . We have examined the cheque in question and find that the only apparent irregularity is in the name of the insurers i.e., TATA AIG General Insurance Co. Ltd. has been scribbled as: ‘Tata Aig general insurance co. Ltd.’ and objection if any should have been to the collecting Bank (ICICI Bank) who were to credit the insurers’ account with them and not to the paying/drawee Bank (SBOP) who were to pay the proceeds of the cheque at the certification of the collecting Bank, only. Under the given circumstances the possibility of an unholy ‘connivance’ of the insurers with the paying bank in returning the cheque shall not be ruled out. One shall not be allowed to derive benefit of its own folly/inefficiency (here deficiency in service and unfair trade practice). So, we are inclined to go by and follow the above legal proposition that carries the assent of the superior courts by virtue of a plethora of judgments on the subject matter under reference.

8. In the light of the all above, and under the prevailing circumstances we are of the considered opinion that the present complainant has been made to suffer an intentionally imposed harassment through arbitrariness and that lines up the titled opposite parties to an adverse statutory award under the applicable statute. Thus, we partly allow the present complaint and ORDER the opposite party (1 and 2) insurers to pay the impugned claim amount to its full IDV (in terms of the applicable policy) to the present complainant as compensation besides to pay her Rs. 5,000/- as cost of litigation within 30 days of the receipt of copy of the orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of filing of the complaint till actually paid.

9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

(Naveen Puri)

President

Announced: (Jagdeep Kaur)

September 04, 2017 Member

*MK*