STATE CONSUMER DISPUTES REDRESSAL COMMISSION

UNION TERRITORY, CHANDIGARH

Appeal No.287 of 2009

M/s J.M. Legal and Investigation Bureau, SCO No. 169-170, 1^st Floor, Sector 8-C, Chandigarh, through its Prop. S.S. Malik.

….…Appellant

V E R S U S

1]      The New India Assurance Co. Ltd., through its Divisional Manager, Divisional Office, Sector 17, Chandigarh.

2]          Oriental Bank of Commerce, Sector 8-C, Chandigarh through its Manager.

..…Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

ARGUED BY: Sh. Mrigank Sharma, Advocate for the appellant.

                        Sh. V. Ram Swaroop, Advocate for respondent No.1.

                        None for respondent No.2.

MRS. NEENA SANDHU, MEMBER.

1.             This appeal has been filed by the complainants against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 13.3.2009 passed in complaint case No.1007 of 2008 vide which the learned District Forum has dismissed the complaint with costs of Rs.10,000/-.

2.                 Briefly stated the case of the complainant is that he had insured his Honda City car bearing Regn. No.CH-03-Z-3848 (Model 2007) from OP No.1. It was alleged that since, the car of the complainant was due for insurance on 25.1.2008, he paid premium on 23.1.2008 through Cheque bearing No.440946 amounting to Rs.13,774/- dated 24.1.2008, which was handed over to one Gulshan Sateeja, Collecting Agent of OP No.1 against Receipt (C-3) dated 24.1.2008. As per the complainant, OP No.1 issued Policy vide Annexure C-2 valid from 25.1.2008 to 24.1.2009. It was next averred that the car of the complainant met with an accident on 5.2.2008 and was extensively damaged, consequent to which, he had to spent approximately Rs.35,535/- on its repairs.   It was further averred by the complainant that OP presented the aforesaid cheque on 11.2.2008 i.e. after a gap of 19 days which was dishonoured by the Bank i.e. OP No.2 despite the fact that there was sufficient amount in his account on the date of clearing.  The case of the complainant was that OP illegally and arbitrarily canceled the above said Policy vide letter dated 12.2.2008 (C-4), whereupon, the complainant again made fresh payment of premium on 15.2.2008 and another policy was issued by the OP (C-5). Feeling aggrieved by the aforesaid acts of OPs, the Complainant has instituted the present complaint before this Forum.

3.                 The version of OP No.1 was that on receiving the intimation of accident of the vehicle of the complainant on, it appointed Sh. Pankaj Bajaj, as Surveyor and Loss Assessor for the assessment of the loss suffered by the Complainant, who vide his report dated 10.2.2008 (R-3) assessed the loss on repair basis to the tune of Rs.27,977.67, which was subject to the terms and condition of the Policy.  It was pleaded that since the cheque issued by the complainant against the premium of the policy was dishonoured, the policy stood cancelled and became void ab-initio, consequent to which, the claim of the Complainant was closed as “No Claim” and the same was duly informed to the complainant vide letter dated 12.2.2008 (R-4). Pleading no deficiency in service on its part, this OP prayed for dismissal of the complaint.

4.                 The version of OP No.2 was that Cheque issued by the complainant bearing No.440946, dated 24.1.2008 for Rs.13,774/- in the account of M/s J.M. Legal & Investigation Bureau was never presented for payment in their Branch. All other material averments were denied and pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint.

5.             The learned District Forum after minutely going through Annexure C-1, C-2 & C-3 has clearly recorded in the impugned order that these  were issued from Ambala Cantt. Branch of OP Insurance Company. As per learned District Forum, there were two notes appended on Annexure C-3, which reads (1) Receipt valid subject to realization of cheque & (2) Please quote Document NO., Collection No. and date in all correspondences.  From this it was clear that the cheque of premium amount at the time of taking the insurance policy would be valid as & when realized otherwise the policy or receipt issued shall not be valid.  Thus, the learned District Forum accepted the contention of OP No.1 as true and that of complainant as false.  It was next observed by the learned District Forum that the cheque issued by the complainant stood bounced and as such, both the cover notes and the receipt issued in lieu of that became void-ab-initio. Further, it was observed that Annexure C-4 dated 12.2.2008 was also issued from Ambala Cantt Branch of OP No.1 in favour of complainant and subject matter of the same was dishonoured premium cheque.  Subsequently, Annexure C-5 was also recorded to be issued from Ambala Cantt. Branch of OP Insurance Company. Thus, in the view of the learned District Forum, no cause of action had accrued at Chandigarh in favour of the complainant and the learned District Forum held the present complaint to be maintainable on account of its territorial jurisdiction.

6.                 The learned District Forum next recorded in the impugned order that in Annexure X, dated 8.10.2008 issued by OP No.2, it was clearly mentioned that cheque bearing No.440946, dated 24.1.2008 for Rs.13,774/- in the account No.11151011000148 of M/s J.M.legal &Investigation Bureau was never presented for payment in their branch, which clearly proved that the complainant had mislead the learned District Forum by creating different sort of evidence, which could otherwise favour him but the situation was quite different. Going by Annexure R-5, the learned District was of the view that cheque No.440946, dated 24.1.2008 drawn on OBC Bank was in favour of The New India Assurance Co. Ltd. issued by the complainant and the complainant had failed to mention the place or branch office or Head Office of The New India Assurance Co.Ltd. to which it was payable, whether at Chandigarh or Ambala.  As per the learned District Forum, on R-5, there were two photocopies of memos of two Banks i.e. one of Oriental Bank of Commerce and second of Central Bank of India and Item No.26 of this memo of OBC, SB Ambala Cantt., dated 11.2.2008 states Insufficient Funds.  It was next recorded in the impugned order that another receipt of Central Bank of India, Ambala Cantt. showed that an amount of Rs.112/- had been deducted from the account of OP No.1 for returned cheque bearing No.440946, dated 24.1.2008 received by them for clearance.  The learned District Forum referred to the law settled by the Hon’ble National Commission on the subject in the case of Hotel Southern (P) Ltd. Vs. National Insurance Co. Ltd. & Ors., III (1995) CPJ 54 (NC) wherein it had been categorically held that the policy o insurance was void ab initio in the absence of the consideration for the policy. Finally, as per the learned District Forum, the claim of complainant had been rightly closed/repudiated by the OP Insurance Company as the car of the complainant was not insured under the policy and no policy document was ever issued to him as the cheque of premium amount was dishonoured.  The learned District Forum next recorded that complainant had filed the complaint at Chandigarh, intentionally with a view to get it decided from this Forum for its convenience whereas no cause of action has ever accrued at Chandigarh in favour of complainant for filing the present complaint.  As per the learned District Forum, the cause of action had accrued to the complainant at Ambala and not within the jurisdiction of Chandigarh.  Moreover, in the view of learned District Forum, the complainant had intentionally not brought the true facts before it and concealed material information.  In this view of the matter, finding complaint to be false, frivolous, vexatious, the learned District Forum dismissed the same with costs, which was quantified as Rs.10,000/- to be paid by the complainant to the OPs within a period of 30 days from the date of receipt of copy of the order. 

7.             Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal seeking setting aside of the impugned order and awarding relief as prayed for in his complaint. Sh. Mrigank Sharma, Advocate appeared on behalf of the appellant/ complainant whereas Sh. V. Ram Swaroop, Advocate represented respondent No.1/OP No.1. Earlier on 29.7.2009, Ms. Nidhi, Clerk had appeared on behalf of respondent No.2/OP No.2 but on the date of final hearing i.e.17.8.2010, none appeared on behalf of respondent No.2/OP No.2.

8.             We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

9.             It is very much clear from perusal of Annexure C-1, copy of cover note, though the place of issue of the policy is mentioned as Chandigarh, yet the column below Clause No.7, the Address of Issuing office bears the seal of Branch Office of Ambala as under: -

                                “GULSHAN SATIJA

                                Divn. Manager,

                                Divisional Office,

                                New India Assurance Co.,

                                The Mall, Ambala Cantt..

                                Ph:0172-2555959.”

Thus, from this document it is proved that the policy (Annexure C-1) in question was issued at Ambala to the complainant and not at Chandigarh. As such, no cause of action had accrued to the complainant at Chandigarh for filing a consumer complaint before the Consumer Fora at Chandigarh. Therefore, we are in consonance with the view held by the learned District Forum that the complainant had no territorial jurisdiction to agitate the matter at Chandigarh and the cause of action, if any, had arisen at Ambala. In this view of the matter, the learned District Forum has rightly dismissed the complaint for want of territorial jurisdiction.

10.           On merits, admittedly, the cheque in question bearing No. No.440946 dated 24.1.2008 amounting to Rs.13,774/- was presented in the OBC Bank at Ambala Cantt and the OBC Bank Ambala Cantt issued a Memo (R-5) with the remarks ‘Insufficient Funds’. It has been denied by OP No.2 i.e. OBC Bank, Sector 8, Chandigarh that the above said cheque was ever presented for payment with the OP Bank, this was also corroborated by way of affidavit of Senior Manager of OP No.2. On perusal of Annexure C/A i.e. the Statement of Account of the complainant issued by OP No.2, wherein also against entry dated 11.2.2008, a balance of Rs.2,11,497.66 has been shown. It is pertinent to mention here that this amount of Rs.2 Lacs had been deposited by the complainant on 11.2.2009 by way of cheque. It is common knowledge that it takes two to three days for the transaction of encashment of the cheque from the day, it is presented. It means that the clear balance available on 11.2.2009 was not of Rs.2 Lacs as alleged by the complainant but it was actually Rs.11,497.66Ps as per previous entry dated 8.2.2009. it means that on 11.2.2009, there was no sufficient funds in the account of the complainant. It is pertinent to mention here that as now in the core banking, it is possible to check the balance amount of any account within the same Bank  from any where in India by feeding the account number respectively, so, it is not necessary to present the cheque for encashment to the issuing branch. Even in this case, OP No.1 has presented the cheque in the Oriental Bank of Commerce, Ambala Cantt  and the said Bank has after checking the account of the complainant on net has rightly issued a Memo (R-5) as ‘Insufficient Funds’. Thus, we endorse the view of learned District Forum that two photocopies of memos of two Banks i.e. one of OP No.2 Bank and second of Central Bank of India along with Item No.26 of this memo of OBC, Ambala Cantt., dated 11.2.2008 clearly proves that there were insufficient funds in the account of the complainant and thus the OP No.1 has rejected/ repudiated the claim of the complainant. In this view of the matter, we are also of the view that the complainant has failed to prove any deficiency in service on the part of OPs and accordingly, the learned District Forum has rightly dismissed the complaint.

11.               So far as the cost of Rs.10,000/- imposed upon the complainant by the learned District Forum while dismissing the complaint is concerned, in our view, the complainant had filed the complaint at Chandigarh under the apprehension that the OPs have their place of business at Chandigarh and OP No.1 will issue the insurance policy from Chandigarh only and that the complainant had given the cheque in question to the Agent of OP No.1 Insurance Company at Chandigarh only. In this view of the matter, we are of the clearly opinion that the complainant had filed the complaint before the learned District Forum without any malafide intention on his part. Since the Consumer Protection Act, 1986 is a welfare social legislation and has been enacted for better protection of the rights of the consumers, in our view, the impugned order imposing a costs of Rs.10,000/- on the complainant is not just and fair.

12.               Consequently, the appeal is dismissed being devoid of any merit and the impugned order is upheld with the modification that the costs of Rs.10,000/- imposed upon the complainant is set aside. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.

13.               Copies of this order be sent to the parties free of charge.

Pronounced.

24^th August, 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MRS. NEENA SANDHU]

MEMBER

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