Heard learned counsel for both sides.
2. Here is an appeal filedu/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.
3. It is revealed from the pleadings of both the parties that the complainant being the registered owner of truck bearing Registration No. OR-15K-0310 has purchased policy for the vehicle covering the period from 30.10.2007 to 29.10.2008. The complainant alleged that on 19.11.2007 at 3 PM the vehicle met accident and the matter was reported to the insurer. The claim of the complainant was registered but they have not settled the matter for which the complaint was filed.
4. On the other hand, OPs filed written version stating that complaint is not maintainable. One of the two cheques dated 30.11.2007 was bounced and due to non-payment of the premium in toto policy was not issued and the claim was repudiated. It is also alleged in the written version that the complainant did not deposit the balance premium amount. Therefore, they have no deficiency in service on their part.
5. After hearing both the parties, the learned District Forum passed the following order:-
“xxx xxxxxx
We direct the OPs to pay Rs.54,955/- (Rupees fifty four thousand nine hundred fifty five) only to the complainant towards repairing cost of the truck bearing Registration No. 15 K-0310. The OP are also directed to pay Rs.10,000/- (Rupees Ten thousand) only for harassment and mental agony given to the complainant which include the cost of the case. The payment is to be mad within 30 days from the receipt of this order, failing which the OPs are liable to pay @5% interest per annum till the entire payment is made.
Accordingly, the case is disposed off.”
6. Learned counsel for the appellants submitted that the learned District Forum has committed error in law by not considering the written version of the appellants with proper perspectives. He also submitted with regard to bounce of cheque that the OPs informed the complainant but complainant did not take action. This fact was not properly appreciated by the learned District Forum. According to him since the payment of complainant premium has not been made, the risk is not covered under the policy. Further, he submitted that the surveyor has computed the loss at Rs.7,500/- and in the event of finding the liability of the OPs, the said amount may be payable to the complainant only but not the amount as ordered by the learned District Forum. Therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that so far bounce of cheque is concerned, he has not received any letter from the OPs. He submitted that since payment was made, policy is a valid one. He submitted that the amount computed by the surveyor is very low although estimate is in higher side. Therefore, he supports the impugned order.
8. Considered the submission of learned counsel for the respective parties and perused the impugned order including the DFR.
9. It is admitted fact that the complainant has purchased the insurance policy from the OPs with regard to his vehicle. It is also not in dispute that two cheques were submitted by the complainant to the OPs towards payment of premium. The complainant submitted that both the cheques are valid because he has got that amount of money in his account whereas the OPs dispute one cheque stating that the chequeswhich havenot been encashed was bounced.
10. The OPs were asked to submit the bounce of cheque and advocate for the appellants could not show the letter themselves but the DFR shows that letter dated 28.12.2007 was despatched to the OPs showing that the cheque amount Rs.4,536/- has been bounced due to insufficient fund but the said letter does not disclose when this letter was issued to the complainant. The learned counsel for the appellants has undertaken to prove the letter and it was brought to the knowledge of the complainant. Since the letter concerned or the observation of the Bank with regard to insufficient of fund has not communicated to the complainant, we are not able to observethat the OPs have performed their duty with regard to the non-payment of the premium concerned. On the other hand,as per section 64 VB of Insurance Act once the cheque is submitted to the insurer by the insurer, without any further intimation that amounts to payment of concerned amount towards the premium. As such, the risk is commenced as per section 64 VB of the Insurance Act.
10. In view of aforesaid discussion and the fact that the policy being not renewed inspite of money being deposited, there is deficiency in service on the part of the OPs.
11. With regard to the computation of loss concerned, we herebyperused the surveyor’s report available in the DFR. It appears that the surveyor has computed the loss at Rs.7,500/-. We are really painful to observe that the surveyor while making assessmentdeducted maximum amount without any reason. Therefore, we are not able to accept the assessment made by the surveyor. It is true that the surveyor’s report should be the final say in the computation of loss provided it has got credibility. When there is no reason for the amount it is decided, we are bound to observethat the entire cost of spare parts and cost of labourer charge as estimated should be combined together to give relief to the complainant.The complainant is entitled to get Rs.37,675/-.
12. In view of aforesaid discussion while confirming the impugned order, we modify the impugned order and direct the OPs to pay Rs.37,675/- to the complainantwithin a period of 45 days from today failing which it would carryinterest at the rate of 9% per annum from the date of impugned order till payment is made. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
