STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 226 of 2013 |
Date of Institution | : | 30.5.2013 |
Date of Decision | : | 19.07.2013 |
Dr. Tirath Goyal s/o Sh. Mangal Chand, R/o H.No.272, Sector 4, Mansa Devi Complex, Panchkula 134109
……Appellant/Complainant.
Versus
1] The New India Assurance Company Ltd., through its Regional Manager, SCO No.36-37, Sector 17-A, Chandigarh.
2] Mr. D. D. Gandhi, Development Officer, The New India Assurance Company Ltd., SCO No.36-37, Sector 17-A, Chandigarh.
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Parveen Kataria, Advocate alongwith
Sh. Mukesh K. Sharma, Advocate for the appellant.
Sh. Sukhdarshan Singh, Advocate for the respondents.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 08.04.2013, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant got insured his Tata Indigo CS Car bearing Regd. No.HR-03-J-0818, from Opposite Party No.1, through Opposite Party No.2 for the year 2010-2011 vide Policy No.350100/31/10/4530 (Annexure C-1). It was stated that subsequently, the vehicle, in question, was got insured from Opposite Party No.1, for the year 2011-12 vide Policy No.3533 0131 1101 0000 3396 (Annexure C-2). It was further stated that the said vehicle met with an accident on 4.4.2012 during the currency of the Insurance Policy. The vehicle was got repaired from Jyoti Motors, Panchkula with prior intimation to the Opposite Party No.1. It was further stated that the complainant submitted a bill of Rs.13,637/- (Annexure C-3) to Opposite Party No.1 (New India Assurance Company). It was further stated that when the claim was not settled, the complainant requested Opposite Party No.1 to settle the same vide letter dated 08.05.2012 (Annexure C-4). It was further stated that the complainant received a letter dated 18.5.2012 (Annexure C-5) from Opposite Party No.1, to the effect, that the policy for the previous year i.e. 2010-11 was cancelled on 10.12.2010 as the premium cheque was dishonoured and the complainant was not entitled to 25% NCB on the policy for the year 2011-12. It was further stated that the complainant replied to the said letter, stating that the policy was issued on 13.12.2010 and, as such, the question of its cancellation on 10.12.2010 did not arise, which he (complainant) did not receive at all. It was further stated by the complainant, in the aforesaid reply, that the question of dishonour of cheque did not arise as the premium was paid, in cash, by him, to the concerned official/Opposite Party No.2. It was further stated that Opposite Party No.1, neither sent any reply nor settled the claim. It was further stated that the complainant served a legal notice upon Opposite Party No.1, vide Annexure C-7. It was further stated that Opposite Party No.1, sent a letter dated 17.8.2012 stating therein that the claim had been repudiated on the ground, that the previous policy was cancelled from the very inception, as the premium cheque was dishonoured, and the complainant was not entitled to 25% NCB, which was given to him.
3. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to pay Rs.13,637/- alongwith interest @12% per annum; Rs.50,000/- as compensation for mental agony and physical harassment and Rs.8,400/- as costs of litigation, was filed.
4. Opposite Party No.1, in its written version, denied the factum that the vehicle of the complainant was got insured from it vide Policy (Annexure C-1), as no premium was ever received by it from him in respect of the same. However, the issuance of Policy (Annexure C-2) by it, was admitted. It was stated that the claim of the complainant was rightly rejected vide letter dated 17.8.2012 (Annexure R-1), after having afforded a prior opportunity to him, to explain his position, It was further stated that the complainant got issued an insurance Cover Note (Annexure R-2) and cheque No.188380, dated 01.12.2010 for Rs.7,766/- drawn on Overseas Bank, was issued through his son Dr.Sameer Goyal towards the payment of premium in respect of the said cover note. It was further stated that the said cheque was returned by the drawer Bank, as unpaid and, as such, the insurance policy, issued in lieu thereof, stood cancelled, which was telephonically informed by Opposite Party No.2 to the complainant’s son Dr. Sameer Goyal. It was further stated that the complainant did not get fresh policy issued despite having knowledge regarding the cancellation of Annexure R-2 and also did not return the said cover note to the Opposite Parties. The copies of statement of Opposite Party No.1 and Reject Instrument Report generated by the computerized pre-set programme of Bank of Opposite Party No.1, were annexed as Annexures R-5 to R-7 respectively. It was further stated that the complainant was not entitled to any amount on any count. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, in its written version, stated that on 03.12.2012, the complainant gave a telephonic call to it (Opposite Party No.2), for renewal of the insurance policy pertaining to the vehicle, in question, which was earlier insured with United India Insurance Co. Ltd., which was going to expire on 4.12.2010. It was stated that on 3.12.2010, Opposite Party No.2 visited the residence of the complainant and issued Cover Note No.363737 dated 3.12.2010 to Dr. Sameer Goyal son of the complainant, as he (complainant) was not at home. It was further stated that cheque dated 3.12.2010 towards premium was issued by Dr. Sameer Goyal, but due to some cutting in the same, he again issued a fresh cheque of the same date for a sum of Rs.7,766/-. It was further stated that due to oversight the old cheque number mentioned in the cover note was not changed. It was further stated that the cheque, in question, was dishonoured, which fact was informed to the complainant’s son on 10.12.2010. It was further stated that Dr. Sameer Goyal (son of the complainant) assured Opposite Party No.2 that he would deposit the premium but he never contacted Opposite Party No.2. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
9. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
10. While the Counsel for the appellant/complainant submitted that there was sufficient balance, in the account of the complainant’s son (Annexure C-9) but the respondent/Opposite Party did not present the cheque, and, in fact, the amount of premium was obtained from him (complainant) in cash and that was the reason for non presentation of the cheque. It was further submitted that had the cheque been presented/dishonoured the respondents/Opposite Parties, would have produced memo of the Bank about dishonoring of the cheque but this was not done. It was further submitted that no evidence, in support of the contention of the respondents/Opposite Parties that intimation about dishonoring of the cheque and cancellation of the policy vide letter dated 10.12.2010 was given, was produced. The counsel for the appellant/complainant categorically asserted that there was no misrepresentation on his part. He further submitted that the alleged cancellation of Policy was done on 10.12.2010 whereas the date of issue of the same was 13.12.2010. It was also submitted that for cancellation of the Policy, 07 days prior notice was required to be given by the respondent/Opposite Party, but failed to give the same.
11. The Counsel for the respondents/Opposite Parties, on the other hand, submitted that the cheque was dishonored on 05.12.2010. The cancellation of the Policy was sent to the appellant/complainant on 10.12.2010. It was also submitted that the appellant/complainant claimed No Claim Bonus by misrepresentation.
12. It is evident that Policy (Annexure C-1) covering the period from 5.12.2010 to 4.12.2011 in respect of vehicle Tata Indigo CS bearing Registration No.HR03-J-0818, was issued on 13.12.2010. This document is Policy Schedule – cum- Certificate of Insurance and not the cover note, which was supposedly issued after satisfaction about receipt of Insurance premium. It also indicates Receipt No.35010081100000005199 dated 6.12.2010 and attached adjustment voucher clearly indicating payment/adjustment of Rs.7,766/- and under the column ‘Cheque No.’ ‘N.A.’ was mentioned. It implies that the payment was received, in cash. Subsequently, when the Policy Schedule – cum – Certificate of Insurance (Annexure C-2) for the period from 5.12.2011 to 4.12.2012 was issued, by no stretch of imagination, it could be believed that the policy for the period 5.12.2010 to 4.12.2011 did not exist. The question about the non existence of Policy (Annexure C-1) arose only when the appellant/complainant raised claim with Opposite Party No.1 (Insurance Company) on 12.4.2012 as is evident from complainant’s letter dated 8.5.2012 (Annexure C-4). In response, the respondent/Opposite Party No.1 informed that the previous policy was cancelled due to dishonoring of cheque and the fact had been brought to the notice of the complainant through registered letter dated 10.12.2010. The respondent/Opposite Party No.1 argued that the appellant/complainant was not entitled to No Claim Bonus, which the appellant/complainant had claimed. It asked the appellant/complainant to indicate, if his vehicle was subsequently insured under different Policy. The appellant/complainant in his letter dated 31.5.2012 (Annexure C-6) informed that the letter dated 10.12.2010 cancelling the policy allegedly sent was never received by him whereas the policy was, in fact, issued on 13.12.2010 and the policy for the period 5.12.2011 to 4.12.2012 was also issued by the respondent/Opposite Party No.1, and No Claim Bonus was also given after verifying all the details/previous policy. The question of presentation of cheque by the Opposite Parties did not arise as though initially the cheque was given, but on the next day, cash was paid and the concerned official did not return the cheque on the pretext that he had left the cheque in the office.
13. The contention of the respondents/Opposite Parties that the policy was cancelled from the very inception due to dishonoring of premium cheque is not acceptable as no memo of the Bank in support of such contention that the cheque was dishonored was brought in evidence. The plea of dishonoring of the cheque is also not acceptable as there were sufficient funds in the account of the complainant (Annexure C-9). Thus, there is force in the argument of the appellant/complainant that premium was paid in cash and that was why the Opposite Parties did not present the cheque. The policy schedule was issued on 13.12.2010 which clearly indicated receipt dated 6.12.2010, as discussed above, and, therefore, it was highly illogical and absurd that Policy was cancelled and sent to the appellant/complainant on 10.12.2010 and that too without giving any notice or affording opportunity to him as required under India Motor Tariff Regulations. Even no evidence that the letter of cancellation was sent to the appellant/complainant on 10.12.2010, was produced on record. Subsequent, Insurance Policy (Annexure C-2) could only be issued, if the earlier Policy was existing. When the Policy was issued on 13.12.2010, the alleged cancellation on 10.12.2010, which was without any supportive evidence, became redundant. The relevant provision of GR-24 of India Motor Tariff, is extracted below:-
“GR.24. Cancellation of Insurance and Double Insurance
A Cancellation of Insurance
(a) A policy may be cancelled by the insurer by sending to the insured seven days notice of cancellation by recorded delivery to the insured‟s last known address and the insurer will refund to the insured the pro-rata premium for the balance period of the policy.
(b) A policy may be cancelled at the option of the insured with seven days notice of cancellation and the insurer will be entitled to retain premium on short period scale of rates for the period for which the cover has been in existence prior to the cancellation of the policy. The balance premium, if any, will be refundable to the insured. Refund of premium will be subject to:
i) there being no claim under the policy, and
ii) the retention of minimum premium as specified in the Tariff.
(c) A policy can be cancelled only after ensuring that the vehicle is insured elsewhere, at least for Liability Only cover and after surrender of the original Certificate of Insurance for cancellation.
(d) Insurer should inform the Regional Transport Authority (RTA) concerned by recorded delivery about such cancellation of insurance.”
14. The respondents/Opposite Parties, violated the provisions of India Motor Tariff Regulations. Clearly the respondents/Opposite Parties, were duty bound to inform not only the appellant/complainant but also the Regional Transport Authority (RTA) concerned by recorded delivery about such cancellation of insurance, but this requirement does not seem to have been complied with. In this view of the matter, the act of the Opposite Parties, in not settling the claim of the complainant, pertaining to the repair of the vehicle, in question, on the ground that the earlier insurance policy, was cancelled, due to dishonoring of the premium cheque, being devoid of merit, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. In these circumstances, the appellant/complainant, was very much entitled to Rs.13,637/-, which he spent on the repair of his vehicle.
15. Apart from this, keeping in view the mental agony and physical harassment, as also financial loss, caused to the appellant/complainant, he was required to be granted compensation, but the District Forum, failed to do so. It is, no doubt true, that the compensation, must commensurate with the facts and circumstances of the case. In our considered opinion, if, composite compensation, in the sum of Rs.10,000/-, is awarded to the complainant, for mental agony and physical harassment , financial loss and deficiency in service that would be fair, reasonable and adequate. The appellant/ complainant, is, thus held entitled to compensation, in the sum of Rs.10,000/-, for mental agony and physical harassment, financial loss and deficiency in service.
16. Not only this, the complainant was forced to file the Consumer Complaint, for no fault of his. He is, thus, entitled to the cost of litigation, to the tune of Rs.5,000/-.
17. No other point, was urged, by the Counsel for the Parties.
18. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is set aside. The complaint is partly accepted, in the following manner and the respondents/Opposite Parties are held liable and directed as under:-
i. To pay a sum of Rs.13,637/- to the appellant/complainant, as depicted in Repair Bill dated 12.04.2012 (Annexure C-3);
ii. To pay compensation, in the sum of Rs.10,000/-, to the appellant/ complainant, as indicated in paragraph No.15, above.
iii. To pay cost of litigation, to the tune of Rs.5,000/-, to the appellant/ complainant, as indicated in paragraph No.16, above.
iv. The amounts mentioned at Clause (i) and (ii) i.e. Rs.13637/- and Rs.10,000/-, totaling Rs.23,637/-, shall be paid, by the respondents/Opposite Parties, within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, they shall be liable to pay the same, alongwith interest @9% P.A., from the date of filing the complaint, till realization, besides payment of cost of litigation, to the tune of Rs.5,000/-.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion
Pronounced.
19.7.2013
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.226 of 2013)
Argued by: Sh. Parveen Kataria, Advocate alongwith
Sh. Mukesh K. Sharma, Advocate for the appellant.
Sh. Sukhdarshan Singh, Advocate for the respondents.
Dated the 19th day of July 2013
ORDER
Vide our detailed order of the even date, recorded separately, this appeal has been accepted, with costs. The order of the District Forum has been set aside. The complaint has been partly accepted, as per the directions given in the main order.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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