Date of filing:25.02.2020

                                                                                                Date of Disposal:12.09.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 12^th Day of September 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 203/2020

The Manager,

Corporation Bank,

Sullia Branch,

Rajaram Building,

Main Road, Sullia,

Sullia Taluk,

Dakshina Kannada District.…….. Appellant

(By Mr.K Vishwanatha Shetty, Adv.)

-Versus-

1. Smt. Vahida Ismail,

W/o Ismail M,

Aged about 47 years,

H.No.2-88, Suhane Manzil,

Bellare Village,

Sullia Taluk,

Dakshina Kannada District.

2. The Manager,

National Insurance Co. Ltd.,

Shri Kshethra Dharmastala Building,

Main Road, Puttur,

Dakshina Kannada District. …….. Respondents

(By Mr.Janardhan Reddy, Adv.)

ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:

1. This is an appeal filed by OP2 in CC/147/2018 on the file of District Consumer Disputes Redressal Forum, Mangalore aggrieved by the order dated 20.12.2019. (The parties in this appeal will be referred to their rank assigned to them by the Forum below).

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.

3. One Smt.Vahida Ismail, W/o Ismail M is owner of Toyota Innova bearing Registration No.KA-21-N-6686 had proposed for the insurance coverage for the risk covering the period from 02.12.2016 to 01.12.2017 for Rs.7,40,000/-.  It is not in dispute that she is the owner of the said car.  It is also not in dispute that for IDV of Rs.7,40,000/- insurer fixed a premium of Rs.23,804/- and this premium amount was paid by one Ms.Suhana Ismail through cheque no.315822 dated 30.11.2016 drawn on Corporation Bank, Sullia.  However, the said cheque returned to the insurer on 05.12.2016 with an endorsement “Drawers signature differs”.  It is not in dispute that the cheque received by insurer from their insured by one Ms.Suhana Ismail was sent to banker for clearance was not honored as “Drawers signature differs”.  This was intimated by the banker to insurer on 12.12.2016.  Further it is found from enquiry; the banker requested insurer on 12.12.2016 to re-present the said cheque   for clearance and when the said cheque was re-presented on 14.12.2016 for clearance, was cleared on 27.12.2016.  In other words, the insurer OP1 never cancelled the policy issued in the name of Smt.Vahida Ismail in respect of Toyota vehicle bearing no.KA-21-N-6686.  In other words, the policy issued by insurer for the risk coverage for Rs.7,40,000/- for the period commencing from 02.12.2016 to 01.12.2017, was accepted and it was not cancelled. 

4. It is found from enquiry held by Forum below that the Motor Accident was occurred on 03.12.2016 at Devarakolli near Sampaje Police out post, Sullia Taluk resulted thereby insured vehicle received extensive damages, was towed to Sampaje Police Out post from the place of accident and towed to showroom, Mangalore on 06.12.2016. The authorized service station estimated for the repair of the said vehicle estimating at Rs.5,43,184/-.  But facts remained that Mr.M.K.Vazhunnavar, the licensed surveyor  and loss assessor has made loss to an extent of Rs.4,15,477/- on repair basis before adjusting the salvage value with reference to the estimation and consent given by the repairer, after deducting policy excess and nil depreciation excess as per the policy conditions. 

5. Thus on the above such  admitted facts the Forum below held OP Nos.1 and 2 liable and recorded affirmative findings on point no.1, while recorded findings partly in the affirmative, directed OP No.1 to pay a sum of Rs.3,06,330/- and OP No.2 to pay Rs.1,00,000/- and they are directed to pay such amount along with interest @ 06% p.a. from the date of complaint till realization and directed their liability to pay Rs.10,000/- towards rendering deficiency in service and Rs.5,000/- towards cost joint and several.  It is this order being assailed in this appeal by OP No.2 the banker contending that the findings of the Forum below in so far as appellant is concerned is contrary to facts and law,   is liable to be set aside.  Learned counsel submits the one Ms.Suhana Ismail on 03.12.2016, late in the evening furnished her latest specimen signature and as 04.12.2016 was Sunday and on 05.12.2016 due to server down OP No.1 could not upload the latest signature of the account holder in the system and immediately on 06.12.2016   the latest signature of Ms.Suhana Ismail was uploaded, hence there is no negligence or deliberate delay on the part of the banker. In such circumstances in our view learned counsel for the banker/appellant is right in contending that when the policy proposal was accepted by the insurer covering the risk for the period from 02.12.2016 to 01.12.2017 by receiving Rs.23,804/- is neither denied nor cancelled for not honoring the cheque issued by Ms.Suhana Ismail, was not considered by the Forum below, has some considerable force.  In other words, when insurer impliedly endorsed the action of OP No.2 banker and when not cancelled the insurance policy issued in the name of complainant for the period from 02.12.2016 to 01.12.2017 question of repudiation on such ground is not available for the insurer OP1. In fact, for the said period, in particular as on the date of RTA, namely on 03.12.2016 the policy obtained by complainant has to be held valid and it was in force, which of course was rightly perceived by the Forum below, but apportioning liability, has to be held incorrect. In so far as accepting the report of the surveyor of insurer has to be held right and the same has to be confirmed by the commission.   In our view if Forum below is of the   opinion, that the award to be passed should have to be apportioned requires some evidence as to their rendering deficiency of service. In fact the insurer has not preferred any appeal on the finding recorded by the forum below is again a compelling circumstance to hold that the finding recorded by the forum below holding banker and insurance liability as joint and several is incorrect.  OP No.1 is National Insurance Company Limited, which is one of the subsidiaries of Government of India, while OP No.2 is a Corporation Bank, is again one of the nationalized bank of Government of India.  It is therefore, for the reasons best known to them and in particular OP No.1 insurer impliedly concede the problem faced by the banker and did not proceed to cancel the policy issued in the name of complaint covering risk for Rs.7,40,000/- for the period from 02.12.2016 to 01.12.2017.

6. In view of the above discussion, since no appeal is filed seeking enhancement of compensation by complainant and even no appeal is filed by insurer, assailing the impugned order,   it would be appropriate to modify the impugned order, since the IDV is Rs.7,40,000/-, the licensed surveyor and loss assessor of insurer has assessed loss at Rs.4,15,477/- on repair basis, the Forum below arrived at loss at Rs.4,06,330/- and to arrive at such figure in para-09 of the impugned order recorded reasons is one to be accepted and in view of the mandate of Sec.64 V(b) of the Insurance Act, 1938, the liability assumed only after the premium is received in advance if neither denied nor dishonored or cancelled policy holding OP No.2 appellant/banker to pay Rs.1,00,000/- along with interest @ 06% p.a. and to pay a sum of Rs.10,000/- towards deficiency in service and Rs.5,000/- towards cost holding liability of OP No.1 and 2 joint and several is liable to be set aside.  Accordingly, proceed to allow the appeal in part in the following terms:

Complaint filed U/s 12 of Consumer Protection Act, 1986 is allowed in part.Consequently directed OP No.1 insurer to indemnify complainant for the damages caused to KA-21-N-6686 for Rs.4,06,330/- along with interest @ 06% p.a. from the date of repudiation till realization and do pay a sum of Rs.10,000/- towards rendering deficiency in service and Rs.5,000/- towards litigation cost.

The complaint in so far as OP No.2 is concerned is dismissed with no order as to cost.

7. The Amount in deposit is directed to be transfer to the Commission below for needful.

8. Send a copy of this Order to the District Commission and parties to the appeal.

  Lady Member                               Judicial Member             

*GGH*