West Bengal

Siliguri

52/S/2013

SILIGURI ASSOCIATION FOR CONSUMER ACTION - Complainant(s)

Versus

UNITED INDIA INSURANCE COMPANY LTD., - Opp.Party(s)

07 May 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 52/S/2013.            DATED : 07.05.2015.

                

BEFORE  PRESIDENT                  : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                     MEMBER              : SRI PABITRA MAJUMDER.

 

COMPLAINANTS     1.               : SILIGURI ASSOCIATION FOR

 CONSUMER ACTION,

 21, Girish Ghosh Sarani,

 Hakimpara, Siliguri.

 

                                         2.                :DR. BITHI DUTTA (DEB),

 Doctor’s Quarter No.4,

 Siliguri District Hospital,

 Siliguri.

                                                             

                                                           

O.P.                                        UNITED INDIA INSURANCE CO. LTD.,

                                                             142, Hill Cart Road, 

                                                             Siliguri.

                                                                                                                                                                                                        

FOR THE COMPLAINANT         : Sri Subrata Bhaduri, Advocate.

 

FOR THE OP                                    : Sri Kanak Lal Kundu, Advocate.

 

 

J U D G E M E N T

 

The case of the complainant is summarized as follows :-

The complainant had a policy since 16.02.2006.  The policy was renewed from 16.02.2011 to 15.02.2012, policy no.031901/48/10/97

/00002216.  The complainant issued a cheque bearing No.198449 dated 03.02.2011, drawn on State Bank of India, Siliguri Branch.  The complainant got the policy from OP.  The complainant was treated by admitting nursing home from 29.03.2011 to 07.04.2011.  On 07.05.2011 the second complainant furnished a claim for Rs.72144/-.  The OP refused to entertain the claim.  The ground was that premium cheque was returned dishonoured.  The complainant came to know regarding fact of dishonour after getting the letter from the OPs.  The first

 

Contd…..P/2

-:2:-

 

complainant and second complainant also approached the OP company regarding payment, but OP did not care to respond.  The complainant lodged claim before this Forum as per prayer. 

After getting the complaint, the OP company appeared before this Forum and filed written version denying inter-alia all the material allegations.  The positive version of the OP is that the complainant issued an account payee cheque bearing No.198449 dated 03.02.2011 for premium of Rs.2,869/-.  The OP sent the cheque to its banker.  The cheque was dishonoured by the State Bank of India.  The SBI returned that cheque bearing No.198449 dated 03.02.2011 stating reason “Drawer’s signature differs”.  The OP sent a letter dated 15.02.2011 to the complainant regarding dishonour of cheque for reason above.  The OP also requested the complainant to remit premium in cash to issue fresh policy, along with Rs.100/-.  It is also contended that the OP was unable to accept claim for Rs.72,144/- as per claim of complainant for treatment.  The OP repudiated the claim of the complainant solely on the ground that during the period of treatment of complainant, there was no valid insurance policy because the cheque was dishonoured by State Bank of India communicated to OP on 11.02.2011.  As such the complaint should be dismissed. 

The complainant has filed some documents.

OP has also filed some documents namely Annexure A, B, C, D, E, F & G.

The complainant also filed affidavit-in-chief. 

The OP has also filed affidavit-in-chief. 

 

Point for consideration

 

1)       Whether the complainant is entitled to get claim placed before the OP who have repudiated the claim of complainant?

 

 

Contd…..P/3

-:3:-

 

Decision with reason

 

There is no dispute between the status of both sides.  The OP does not refuse the fact of treatment of complainant no.2.  The OP repudiated the claim only on the ground that cheque issued by the complainant on 03.02.2011 has been dishonoured by State Bank of India on ground of “Drawer’s signature differs”.  Regarding receiving and status of cheque there is no dispute between the parties.  After receiving the cheque No.198449 dated 03.02.2011, the OP placed the cheque before the bank.  Bank informed the matter to the OP on 11.02.2011.  OP informed the matter regarding dishonour of cheque to the complainant on 15.02.2011.  The complainant was treated in the nursing home as per claim from 29.03.2011 to 07.04.2011.  But Anexure-E shows that the complainant received regarding dishonour of cheque only on 09.05.2011.  Annexure-F shows policy issued dated 16.02.2011.  Endorsement effected from 16.02.2011 to 15.02.2012.  Annexure-‘F’ is a document by which OP made endorsement regarding “Cancellation Due To Cheque Dishonour”.  Annexure-‘G’ is a letter informing the complainant that “policy has already been cancelled due to dishonour of cheque”.

Therefore, from the above documents it is percolated that complainant issued cheque for payment to OP on 03.02.2011, but the fact of dishonour of cheque was informed to the complainant on 18.05.2011 after submission of claim.  The document ‘G’ filed by the OP shows that the complainant made the claim before the OP.  OP repudiated the same on 18.05.2011, that too after getting the claim from the complainant. 

It is argued by the complainant’s advocate that the complainant with a good faith issued account payee cheque in favour of the OP.  The complainant was in need of urgent treatment.  So, she was treated.  The complainant was under good impression has filed the claim before the OP.  At this point, the OP expressed their inability to make payment on

Contd…..P/4

-:4:-

 

the ground that cheque has been dishonoured on 12.02.2011 by State Bank of India. 

Ld advocate of the OP submitted that at the time of treatment the policy was dead for non-payment of premium. 

From the record and documents filed by both sides, it appears that OP became known regarding dishonour of cheque on ground Sl. No.6 (Annexure-‘C’) on or after 11.02.2011.  But OP informed the fact of dishonour to the complainant after 3½ months from receipt of the cheque.  Question arises what prevented the OP not to inform the dishonour of cheque on the ground of “Drawer’s signature differs” to the complainant within the grace period and with continuancy of former policy. 

Of course the complainant comes within the purview of ‘Consumer” as per definition of Section 2(1)(d). 

“Consumer” means any person who –

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of

 

Contd…..P/5

-:5:-

 

 deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

 

The complainant consumer issued cheque as usual.  OP collected the cheque which was later dishonoured.  When the fact of dishonour of cheque came within the OP’s knowledge, it was OP’s duty to inform the complainant regarding the fact of dishonour of cheque.  Accordingly OP did not act with due care and attention and diligently to its consumer, who always entitled to get ‘service’ as per section 2(1)(o) from the OP.  OP cannot raise the plea that complainant had duty to see whether the cheque has been encashed or not.  The argument of the OP on this point is that complainant is an educated man doctor.  Complainant ought to have been informed regarding essence of signature in the cheque.  In putting signature, the complainant has done negligently.  This argument of OP is not acceptable to us. 

As per record, the complainant is a senior citizen, and she was treated in the nursing home.  She had filed her claim and such claim has been repudiated by the OP on the ground of non-encashment of cheque.  It is also argued by ld advocate of the complainant that OP has duty to inform the matter at once, but the OP did not act.  The OP informed the fact of dishonour of cheque after 3½ months and only after getting the claim from the complainant. 

Ld advocate of the complainant accordingly picked up facts laid down in document and renewal clause at 5.9.  He led emphasis of Cancellation Clause which runs as follows :-

“The Company may at any time cancel the Policy on grounds of misrepresentation, fraud, non-disclosure of material fact or non-cooperation by the insured by sending seven days notice in writing by Registered A/D to the insured at his last known address in which case the Company shall return to the insured a proportion of the last

 

Contd…..P/6

-:6:-

 

premium corresponding to the unexpired period of insurance if no claim has been paid under the policy.  The insured may at any time cancel this policy and in such event the Company shall allow refund of premium at Company’s short period rate table given below provided no claim has occurred upto the date of cancellation”.

In the instant case in our hand, the OP did not act for the benefit of the consumer by informing him taking the recourse of above rule. 

It is also argued that when cheque was issued by the complainant there was sufficient fund in the bank account of the complainant.  Signature of a person may or may not tally or may differ.  So, the complainant had no evil intention to make fraud upon the OP.  In this way ld advocate of the complainant advanced a short argument summing up that complainant’s case should be allowed with prayer laid down therein. 

We have heard the argument of both sides. 

We have also gone through the facts laid down in both sides case. 

Therefore, the documents (Annexure- A & G) show that the complainant is a consumer. 

Consumer paid the LIC premium for renewal well ahead the time of payment for renewal on 03.02.2011.  The bank returned the cheque on 12.02.2011.  The OP informed the consumer on 15.05.2011.  This is a fragrant deficiency in service and negligence on the part of the OP/Insurance Company because the consumer has a right to be informed regarding receipt of money by the OP/Insurance Company.     

The above materials inspire evidence in our mind, and to conclude that the case is succeeded.

Now, we have to calculate the quantum of compensation. 

It is not the case of the OP that above claimed sum has not been expensed by the complainant.  The treatment is not disputed.  In this case, the complainant is entitled to get cost of expenditure as per prayer in the complaint petition.

 

Contd…..P/7

-:7:-

 

The OP shall renew the Health Insurance Policy after receiving a fresh cheque from the complainant no.2 with interest @ 12% per annum since 16.02.2011.

The complainant no.2 is a doctor.  Such repudiation of claim has effected in her mind and she is entitled to get compensation to the tune of Rs.10,000/- for mental agony, and harassment. 

The complainant no.2 is also entitled to get litigation cost of Rs.10,000/-.

The OP shall also pay to the complainant no.2 interest @ 12% per annum from the date of filing of this complaint before this Forum. 

Hence, it is

                     O R D E R E D

that the Consumer Case No.52/S/2013 be, and the same is hereby allowed on contest with cost. 

The complainant No.2 is entitled to get cost of expenditure of Rs.72,144/- from the OP.

The complainant No.2 is further entitled to get compensation of Rs.10,000/- for mental agony, and harassment from the OP.

The complainant no.2 is further entitled to get litigation cost of Rs.10,000/- from the OP.

The complainant no.2 is also entitled to get interest @ 12% per annum from the date of filing of this complaint before this Forum.

The complainant no.2 is also entitled to get renewal the Health Insurance Policy after issuing a fresh cheque to the OP with interest @ 12% per annum since 16.02.2011.

The OP United India Insurance Company Limited is directed to pay Rs.72,144/- by issuing an account payee cheque in the name of the complainant no.2 for cost of expenditure, within 45 days of this order. 

The OP is further directed to pay Rs.10,000/- by issuing an account payee cheque in the name of the complainant no.2 towards

 

Contd…..P/8

-:8:-

 

 

compensation for mental agony and harassment, within 45 days of this order.

The OP is further directed to pay Rs.10,000/- by issuing an account payee cheque in the name of the complainant no.2 for litigation cost, within 45 days of this order.

The OP is further directed to pay interest @ 12% per annum from the date of filing of this complaint before this Forum, to the complainant no.2 by issuing an account payee cheque within 45 days of this order.

The OP is also directed to renew the Health Insurance Policy after receiving a fresh cheque from the complainant no.2 with interest @ 12% per annum since 16.02.2011 within 45 days of this order. 

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

                           -Member-                            -President-