DOF.30.5.2008 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 8th day of April 2010 CC.133/2008 K.Pramodan, Mavullathil House, Pinarayi, Thalassery. Complainant Manger, ICICI Lombard, Pvt.Ltd. III Floor, Kannenkeri Estate, Marine Drive, Shankugam Road, Opposite party Kochi 31. (Rep. by Adv.K.A.Sajeevan) O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay a sum of Rs.1, 00,000/- towards compensation together with the cost of these proceedings. The facts giving rise to this complaint in brief are as follows: The complainant availed insurance facility from the opposite party for his brand new Ford Fiesta car KL.58/3763. The policy was an own damage policy. The vehicle met with accident and it was reported to the agent. The surveyor carried out inspection and allowed to commence repair. The total cost of repair was Rs.23, 714/-. Opposite party failed to indemnify the complaint. It was only at this moment the complainant came to know that there was no insurance coverage, irrespective of the fact that insurance certificate was issued in furtherance of the issue of insurance cover note. The opposite party concealed the insurance certificate on 3.11.06 stating the reason that the cheque was dishonored and under section 64 VB of the Insurance Act they have the right to cancel it. On the cover not contain such a clause. Once policy is issued they have no authority to cancel the policy unilaterally without notice. The cover note was issued on 19.10.06 against payment by cheque No.208516 drawn on ICICI Bank. Insurance certificate canceled on 3.11.06. there was sufficient amount to honour the cheuqe but they haven’t presented the cheuqe for encashment. The bank statement shows there was no dishonor of the cheque in question .It shows that the opposite party failed to en cash the cheque. Even at the commencement repair the opposite party had no case that there was no insurance. The insurance coverage is made mandatory by the state as it is a social necessity. It is the bounden duty of insurer to inform the assured of any change in their position, whatever is the reason. By issuing the insurance certificate, the opposite party made the complainant believes that there is insurance policy and he has acted on it. Hence opposite party is stopped from contending that thee was no insurance coverage. Complainant issued lawyer notice calling upon the opposite party to disburse the amount Rs.23, 714/-. They replied with false contentions. Hence this complaint. Pursuant to the notice the opposite party entered appearance and filed version. The contentions of opposite party in brief are as follows; No effective insurance policy was issued to complaint for his car. The opposite party had issued cover note vide PD.3117207 for the above said car against the cheque No.208516 dt.19.10.06 for an amount of rs.24128/- drawn on ICICI Bank. The cheque was dishonored and on the said ground the cover note was cancelled. No valid policy was issued to the complainant in view of the cancellation of the cover note. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite party? 2. Whether the complaint is entitled for the remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral evidence of PW1, DW1, and Exts.A1 to A7. Issues 1 to 3 The case of the complainant is that he has availed insurance facility from the opposite arty for his Ford Fiesta Car KL.58/3763. On 3.11.2006 the opposite party issued policy No.3001/50601407/00/000 in furtherance of cover note No.PD.311172071 DT. 19.10.06. And further case is that his vehicle was met with accident and intimated to opposite arty through their agent C.H Rajesh who canvassed to take policy. The surveyor conducted inspection and gave consent to the repairer TVS Ford, sales and service, Thazhe chovva to attend the damage. But they did not indemnify the complainant raising the contention that the policy was cancelled. Whereas the contention of the opposite party is that no effective insurance policy was issued to complainant for his car in view of the cancellation of cover note opposite party filed chief affidavit in tune with the pleadings and adduced evidence by stating that cover note was subsequently cancelled for want of sufficient Fund in the Bank account of the complainant. Opposite party also challenged the document photo copy of the policy Ext.A3 contending that such policy was not issued by the opposite arty. The specific case of the opposite party is that the cheque was dishonored and that they have not received any consideration and hence the said policy was cancelled and the fact was intimated to the complainant. It is an admitted fact that the cover note was issued against a cheque for Rs.24, 120/- EW1 deposed in cross examination that the cover note was cancelled. He has also deposed that “if the cover note is automatically cancelled on non receipt of payment or on cheque bounced it is not necessary for us to send separate communication to cover note holder, the insured. As per our cover note conditions we do not communicated. Ext.A2 is the” Motor Insurance cover note” which reads that “This cover note is valid for a period of sixty days from the date of its issue’. The date of issue of cover Note is 19-10-2006. It has also clearly shows on the face of cover note that “this covers notes valid subject to consideration being received in cheuqe/Demand Draft. It is also written that the event if dishonour of cheque, insurance cover provided under this document automatically stands cancelled from inception irrespective of whether a separate communication is sent or not. In the light of the above noted conditions on the face of the cover note the averment that the cover note issued for the period of 19.10.06 to 18.10.07 is absolutely wrong. The maximum validity to cover note is only sixty days. Question is that whether payment is made within that period or not. Even if there are sufficient amount in the account it could be ascertained by the complainant to make it assure that the payment has been effected. Complainant after issuing cheque did not make any enquiry with respect to the payment. In a way he must know what is going on in his account. Anyway Ext.A5 shows there was sufficient balance on the account on the date of issuance of cheque cover note shows the date, amount, cheque number and Bank name. Issuance of Ext.A2 cover note is admitted, though opposite party has the case that it was subsequently cancelled. Where there is sufficient amount in the account in the ordinary course the cheque will be encashed. If it is bounced the concerned bank will issue memo showing the reason why the cheque is returned. Opposite party did not produce any such memo. Hence the contention of opposite party that the cheque was bounced is not correct. If it is so opposite party can easily proves it merely producing the document from the bank. The return memo could have been produced by opposite party. This circumstances it cannot be believed that the cover note was cancelled since it was bounced by the bank for want of sufficient amount. Complainant pleaded that certificate of policy perfecting the insurance coverage form 19.10.06 to18.10.07 was issued by the opposite party. Complainant produced a photo copy of the same even without attesting it. It cannot even consider as a true copy. That document was challenged by opposite party. The specific case of the complaint is that no valid policy was issued to the complainant as alleged in view of the cancellation of the cover note. To prove that the opposite party has issued insurance policy in favour of the complainant, the original policy should have been produced. It is a relevant questions what prevented complainant from producing the original policy? Complainant has not given any convincing evidence for justifying the non production of original policy certificate. Complainant failed to prove that there are valid policy in favour of him since he failed to produce the original policy with him. There is no explanation for this on the side of the complainant. That certainly creates an impression that something is suppressed from the Forum. So also complainant has not mentioned the date of accident anywhere. That very relevant because the claim is on an accident. And the complainant has not mentioned when and where the accident took place. To determine the deficiency on the side of the opposite party the incident also has to be proved. The cause of action really arose on the date of accident. If there is no accident the question of claim does not exist at all. None disclosing of these facts the date of accident and the place of accident together with the non production of original policy spoiled the case of the complainant. In the light of the above discussion we hold that the complainant miserably failed to establish his case and thus he is not entitled for any relief. The issues 1 to 3 are found against the complainant. In the result, the complaint is dismissed. No order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of certificate of registration A2.Copy of cover note issued by OP A3.copy of policy certificate issued by OP A4.Copy of bill of PVS For sales & service A5.Copyof bank statement of OP in the name of complainant A6.copy of lawyer notice sent to OP A7.Replynotice Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: DW1.Pramodh.R /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
