OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.15/09
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar -Member
3) Md Jamatul Islam - Member
Mr.Nasim Ahmed, -Complainant
S/O- Late Takiuddin Ahmed
R/O- H.No.98, Lachit Nagar,
Main Road,Guwahati-07,
Kamrup, Assam.
-VS-
1) TATA AIG General Insurance Company Ltd. -opp. parties.
Ahura Centre,4th Floor,82 Mahakali Caves Road,
Andheri (East,) Mumbai-400093, Being
represented by its Senior Vic President,
Sri Shiney Prasad -
2) TATA AIG General Insurance Company Ltd.
Guwahati Branch 201, Orion Place, G.S.Road,
Guwahati-05 Being represented by its Asstt.
Manager, Claims, Sri Agniswar Mitra
3) Frostees Exporto (India) Pvt.Ltd.
Kushan Plaza, G.S.Road,Guwahati-781006.
4)Mukesh Hundai,
Kushan Plaza, G.S.Road, Guwahati-6,
Represented by its Director,
Smti Kavita Himmatsingka
5) The General Manager,
Mukesh Hundai, Kushan Plaza,
G.S.Road, Guwahati-6
Appearance:
Appearance: Ld davocate Mr Sunandan Khound for the complainant .
Ld advocate Ms.Gitumani Deka for Opp..Party No. 3, 4 & 6 . Case against Opp.Party No.1,2 is proceeding on exparte.
Date of argument - 24.07.2018
Date of judgment - 08.08.2018
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint against the opp.parties was admitted on 19.2.09 and notices was properly served upon the Opp.parties and Opp.Party No.1 &2 filed a joint written statement and Opp.Party No.3,4 &5 also filed joint written statement. The complainant , Mr.Nasim Ahmed filed his affidavit on 19.11.09 and he was also cross examined by all the opp.party side. Thereafter, one Mr. Kurush J.Daruala filed evidence for Opp.Party No.1 & 2 and Mr. Makhan Bezbaruah filed evidence for Opp.Party No. 3,4 & 5 , but the evidence of Mr. Makhan Bezbaruah was expunged allowing the Opp.Party No.3,4 & 5 to file fresh evidence and they also filed the evidence of one Sri Saurabh Modi on 20.5.16. The case against Opp.Party No.1 & 2 is proceeding on exparte vide our order dtd.11.8.16. O.P.W.,O.P.W.Sri Saurabh was cross examined by the complainant side on 4.4.17. Thereafter Ld.Advocate Mr.S.Khound filed written argument for the complainant and Ld.advocate Ms.Gitumoni Deka filed for Opp.Party No.3,4 & 5 and finally on 24.7.18 we heard oral argument of Ld.Advocate Mr.S.Khound for the complainant and of Ld.advocate Ms.Gitumoni Deka for Opp.Party No.3,4 & 5 and today we deliver the judgment which is as below.
2) The case of the complainant in brief is that he purchased one Hyundai Verna car (Chasis No. 040335) bearing Regn. No. AS-01 AF -7828 from Opp.Party No.4 (Mukesh Hyundai) at a consideration of Rs.8,04,852/- by exchange of his old vehicle on 24.1.08 and Rs.26,036/- shown paid to Opp.Party No.1 & 2 in the cover note issued on 25.1.2008 and the Auto Secured Private Car Package Policy was issued to him on being premium was paid by Opp.Party No.4 to Opp.Party No.1 & 2 through cheque No. 017815 dtd. 25.1.2008 on behalf of the complainant, and payment was acknowledged by Opp.Party No.1 & 2 vide receipt dtd. 21.2.08. His vehicle met with an accident on 14.3.08 and he handed over the vehicle to Opp.Party No.4 for repairing under the insurance claim and he informed Opp.Party No.1 & 2 about the matter and also filed the claim, before the opp.parties, but Opp.Party No.1 informed him that the Insurance coverage was cancelled with effect from 6.3.2008 citing reason that the cheque No.017815 dtd.25.1.2008 issued by Opp.Party No.4 as Insurance premium had been bounced and that was communicated to him through letter dtd. 6.3.2008 which he received on 24.3.2008. Then he, vide letter dtd. 8.4.08, informed Opp.Party No.1 that the said cheque was issued by Opp.Party No.4 but not by him and that he had paid full and final payment to Opp.Party No.4 being insurance charges against his vehicle on assurance given by Opp.Party No.4 to pay said amount to Opp.Party No.1 & 2 ; but after receiving his letter, the opp.parties did not replies back to him and then he submitted notice, dtd. 23.8.2008, to Opp.Party No.1,2 & 4, where in he categorically narrated the unfair trade practice and deficiency of service committed by the opp.parties, which caused mental and financial loss to him and which also caused him to run his vehicle in public road without any insurance coverage in great risk of loss of lives of numerous people . After receiving the said notice, Opp.Party No.4 filed reply on 5.9.08 washing off the allegation of deficiency of service and saying that it is unfair on the part of Opp.Party No.1 to cancel the Insurance coverage on the plea of non encashment of the said cheque as they had already issued insurance coverage in favour of the complainant and that dishonor of cheque was not brought to their notice by Opp.Party No.1 & 2, which they ought to have done. Opp.Party No.1 also, vide letter dtd. 28.1.09, denied that they have committed deficiency in service expressing regret for cancelling the Insurance coverage vide his letter dtd. 29.7.2008. Opp.Party No.1 also had, over phone offered a settlement which was totally unjustified . The act of Opp.Party No.1 & 2 is a case of unfair trade practice and deficiency of service towards him. Bouncing of cheque is a matter between Opp.Party No.1 & 2 and 4, where- in, he is not connected . Hence he is entitled to get compensation from the opp.parties for causing harassment, mental agony, loss of reputation and for putting him in danger to life by illegally cancelling the insurance coverage which had been granted vide Insurance Policy No.0100420071 and Cover- note No. 1035744 giving coverage to his vehicle.
2) By fiing written statement, Opp.Party No. 3,4 & 5 admits that, the complainant had purchased the concerned vehicle from them on 24.1.2008 and the vehicle was covered under the insurance policy issued by Opp.Party No.1 & 2, which was valid from 25.1.2008 and the complainant paid Rs.26,036/- to them as premium to be paid to Opp.Party No.1 & 2, and the policy was valid from 25.1.2008 and they paid the said amount to Opp.Party No.1 & 2 by way of cheque dtd. 25.1.2008. Thus, it is established that on the day of purchasing the vehicle Opp.Party No.4 received Rs.26,036/- as premium for purchasing a insurance policy giving coverage of the said vehicle and accordingly Opp.Party No.1 & 2 issued Policy No. 1000420071 and Cover- note No. 1035744 against the said Hyundai Verna Car bearing Regn No. AS-01 AF -7828 which the complainant had purchased from Opp.Party No.4, and thus, it is found that the complainant has not committed default in payment of premium of the said policy. It is also established that the Opp.Party No.4 was properly authorized by Opp.Party No.1 & 2 to receive premium from the purchasers of vehicles in case of new purchase on their behalf and accordingly, Opp.Party No.4 received the said amount from the complainant at the time of purchase of the said vehicle .So, it is the duty of the Opp.Party No.4 to send the said amount to Opp.Party No.1 & 2, and if Opp.Party No.4 defaults to send the said amount to Opp.Party No.1 & 2, then it is the responsibility of Opp.Party No.1 & 2 to realize the said amount from Opp.Party No.4, but they cannot shift that burden to the complainant, nor they could cancel the policy, which had already been issued in favour of the complainant on the ground of not paying the said amount by Opp.Party No.4. It is also found that Opp.Party No.1 & 2 did not take any step to realize the said amount from Opp.Party No.4, instead of it, they cancelled the policy issued in favour of the complainant . So, we hold that, the act of cancellation of the said insurance policy which had been issued in favour of the complainant covering his vehicle by Opp.Party No.1 & 2 is not lawful act and as such the said act is deficiency of service committed by them towards the complainant. Therefore, Opp.Party No. 1 & 2 side are liable to pay proper compensation to the complainant for sufferance he has faced as a result of cancellation of the policy. As once insurance policy is issued , the same cannot be withdrawn or cancelled due to failure of the agent of the insurance company to deposit the collected premium, the effective of the said policy would also stand in vogue and in such situation the complainant is entitled to get proper compensation from the insurer but not from the agent of insurer . Therefore, Opp.Party No.4 cannot be held liable to pay compensation to the complainant , but the insurer (Opp.Party No.1 & 2) themselves are solely responsible to pay proper compensation to the complainant.
3) Both sides admit that the Opp.Party No.1 & 2 side cancelled the said insurance policy of the vehicle of the complainant and that cancellation was intimated to the complainant by Opp.Party No.1 vide letter dtd. 6.3.08, which he received onlton 24.3.08. Thus, it is crystal clear that before 24.3.2008, the complainant has no knowledge about the cancellation of the policy. This fact denotes that from the date of purchase of the vehicle, 24.1.08 to 24.3.08 i.e. for about two months, the complainant was using his vehicle with great risk without knowing about said cancellation and if any accident would have taken place, then he has to pay the 3rd party claim as well as 1st party claim from his own pocket. So we are of opinion that for the fault of Opp.Party No.1 & 2, the complainant was driving/ using his vehicle with great risk , for putting the complainant in such great risk the Opp.Party No.1 & 2 are liable to pay proper compensation to the complainant, which, according to our opinion, Rs.1,00,000/- is a minimum .
4) Secondly, while the complainant deposited his vehicle to Opp.Party No.4 for repairing of damage suffered by his vehicle meeting with a minor accident under the insurance claim, Opp.Party No.4 refused to do the said repairing under the said insurance policy. It is found that for the fault on the part of Opp.Party No.1 & 2 which is illegal cancellation of insurance policy, Opp.Party No.4 had to refused to repair his vehicle under the said policy and that refusal amounts to causing harassment and mental agony to the complainant as well as causing dropping down his high status/ esteem as retired Joint Director of Health Services, Assam in the eye of public, and for such suffering, Opp.Party No.1 and 2 are also liable to pay at least another amount of Rs.30,000/- as compensation.
5) It is found that, for committing above said deficiency of service towards him by the opp.party No. 1 & 2 he became compelled to knock the door of this Forum for getting proper order passed directing Opp.Party No.1 & 2 to pay proper relief to him and in this pursuit he had to spent a good sum in paying fees to his counsel and meeting expenses in attending the Forum by him on dates during long period of 9 years. So , we hold that Opp.Party No.1 and 2 are liable to pay another amount of Rs.10,000/- as cost of proceeding.
6) Summing up our discussion as above, we hold that, the complainant has a prima facie case against Opp.Party No.1 & 2 (Tata AIG Gen.Insurance Co., Mumbai and its Guwahati branch) and he has also succeeded to prove the same, but he has no cause of action against Opp.Party No.3, 4 and 5. Accordingly, the complaint against Opp.Party No.1 & 2 is allowed on exparte , but against Opp.Party No.3,4 & 5 is dismissed on contest; and accordingly Opp.Party No.1 & 2 side is directed to pay the complainant Rs.1,00,000/- as compensation for compelling him to use his vehicle in great risk and also to pay him Rs.30,000/- as compensation for causing harassment and mental agony to him as well as for lowering his high esteem in the eye of public, and also to pay him Rs.10,000/- as cost of proceeding. They are directed to pay the said amount within 45 days , in default, the amount will carry interest @ 12% p.a. from this day.
Given under our hands and seals on this day of 8th August,2018.
(Smt.Archana.Deka.Lahkar) (Md.Jamatul.Islam) (Md.Sahadat.Hussain)
Member Member President
