State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Arvinder Singh on 5 July, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.564 of 2015
Date of institution: 29.5.2015
Date of Decision: 5.7.2016
National Insurance Company Ltd., DO-1, Atam Park, Ludhiana through its
duly constituted attorney Smt. Nupur K. Nadda, Regional Manager.
Appellant/Op No. 1
Versus
1. Arvinder Singh son of Late Shri Charan Singh, Resident of 198-A,
Aggar Nagar Enclave, Ludhiana-141001.
Respondent No.1/Complainant
2. Swani Motors Services Pvt. Ltd., Feroze Gandhi Market, Ludhiana
through its Manager.
Respondent No.2/OP No. 2
First Appeal against the order dated 15.4.2015
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. Parminder Singh, Advocate
For respondent No.1 : None.
For respondent No.2 : Sh. Nimanyu Gautam, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No.1(hereinafter referred as Op No.1) has filed the present appeal against the order dated 15.4.2015 First Appeal No. 564 of 2015 2 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No. 441 dated 11.6.2014 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as complainant) was allowed with a direction to appellant/Op No. 1 to settle and pay the claim of the complainant on the basis of survey report. Op No. 1 was further directed to pay Rs. 25,000/- as compensation and Rs. 2,000/- as litigation expenses.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties(hereinafter referred as Ops) stating that he purchased one car make Swift Dzire from Op No. 2 bearing engine No. 1635614, chassis No. MA3FSEB1800382877 and got it insured from Op No. 1 through Op No. 2 vide certificate-cum-policy No. 35101031136133233275 dated 31.5.2013 valid w.e.f. 1.6.2013 to 31.5.2014. On 17.6.2013, the said car met with an accident and car was totally damaged. FIR No. 118 of 2013 under Section 304-A/279/337/338/427 IPC was got registered at P.S. Sadar, Khanna. The complainant time and again approached Ops to sanction his claim, however, vide letter dated 20.3.2014, Op No. 1 repudiated the genuine claim of complainant on flimsy grounds, whereas Op No. 2 started to demand parking charges. Abovesaid conduct of Ops amounted to deficiency in service. Hence, the complaint with the direction to Op No. 1 to pay the claim of Rs. 4,52,448/- alongwith interest @ 24%, compensation of Rs. 2 lacs and interest.
First Appeal No. 564 of 2015 3
3. The complaint was contested by Ops. Op No. 1 in its written reply took the preliminary objections that the District Forum had got no jurisdiction to try and decide this complaint as on receipt of the intimation of the accident M/s R.P. Gupta and Co. was deputed for preliminary survey and assessment of loss. They inspected the vehicle and then submitted their preliminary survey report dated 10.10.2013, subject to terms and conditions of the policy. Then Op No. 1 appointed Sh. Prem Singh, Investigator to inspect the matter, who submitted his report dated 6.12.2013 and 13.11.2013, which was scrutinized in terms of insurance policy and according to those terms, the claim of the complainant was repudiated vide letter dated 20.3.2014 under Section 64VB of the Insurance Act; the complaint was bad for mis-joinder and non-joinder of necessary parties. The vehicle was financed by Punjab National Bank, Model Town, Gole Market, Ludhiana, who was not impleaded as a party; complainant failed to supply the relevant documents; complicated questions of law and facts were involved, which required elaborate evidence and documents, therefore, the matter should be relegated to the Civil Court; complaint was barred under Section 26 of the Act and that the complainant was estopped by his own act and conduct to file this complaint as he had not approached the Forum with clean hands. On merits, issuance of the policy was admitted. However, the complainant failed to make compliance of Section 64VB of the Insurance Act. On accident, intimation was received but complainant failed to supply all the documents. Surveyor had assessed the loss to the tune of Rs. 2,27,298/-, therefore, the complainant had wrongly First Appeal No. 564 of 2015 4 claimed the amount of Rs. 4,52,448/-. The claim was not payable, therefore, it was rightly repudiated. Complaint was without merit, therefore, it be dismissed.
4. Op No. 2 in its written reply took the preliminary objections that the complaint was not maintainable; complaint was based on false allegations; complainant played fraud with this Op as he did not hand over the cheque No. 810453 for Rs. 10,906/- when the policy was issued on 31.5.2013 and that he did not disclose that the car had met with an accident on 17.6.2013. Whereas he handed over the cheque on 18.6.2013 and it was encahsed on 19.6.2013. In case they would have been in the knowledge of the accident of the car, they would not have accepted the cheque. The cheque was not given on 1.6.2013. The complainant had brought the car in the workshop of this Op from 1.7.2013 onwards without any instructions, therefore, they were entitled to car parking charges @ Rs. 200/- per day, which comes to Rs. 96,000/- approximately. On merits, averments as stated in the preliminary objections were reiterated. It was again reiterated that the policy was taken without payment and cheque was given after the accident, therefore, the claim was rightly repudiated, which was not payable. Complaint was without merit, it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CA, certificate Ex. C-1, A/c ledger inquiry Ex. C-2, RC copy Ex. C-3, repudiation letter Ex. C-4, First Appeal No. 564 of 2015 5 driving licence copy Ex. C-5, insurance copies Exs. C-6 to C-8, FIR Ex. C-9, complaint Ex. C-10, post mortem report Ex. C-11, policy schedule Ex. C-12, passbook Exs. C-12 & 13. On the other hand, Op No. 1 had tendered into evidence affidavit of Sunil Tuli, Relationship Manager Ex. RW-1/A, affidavit of Prem Singh EX. RW-2/A, affidavit of R.P. Gupta & Co. Ex. RW-3/A, letter dt. 20.3.14 Ex. R-1, affidavit Ex. R-2, DCC Note No. 22 Ex. R-3, letter dt. 24.1.14 Ex. R-4, survey report Ex. R-5, complaint Ex. R-6, claim form Ex. R-7, police complaint Ex. R-8 to 11, survey report Ex. R-12, complaint Ex. R-13, claim form Ex. R-14, photographs Ex. R-15 & 16, investigation report Ex. R-17 & 18, claim intimation report Ex. R-19, Court order of Superdari Ex. R-20, FIR Ex. R-21, RC copy Ex. R-22, car policy Ex. R-23. Op No. 2 had tendered affidavit of Gagandeep Singh Ex. RA, cheque copy Ex. R-1/A, reminder No. 1 Ex. R-2/B, deposit slip/instrument No. Ex. R-3/C.
7. After going through the allegations in the complaint, written versions filed by Ops, evidence and documents brought on the record, learned District Forum allowed the complaint against Op No. 1 as referred above.
8. Aggrieved with the order passed by the learned District Forum, appellant/OP No.1 has filed the present appeal.
9. We have heard the learned counsel for the appellant and counsel for respondent No. 2 and none had appeared on behalf of respondent No.1.
10. It has been argued by the counsel for the appellant that the claim was rightly repudiated under Section 64VB of the Act First Appeal No. 564 of 2015 6 whereas the learned District Forum has not properly appreciated this fact and has wrongly allowed the complaint as the cheque dated 17.6.2013 was received on 18.6.2013 and it was encashed on 19.6.2013. The cheque was given after the accident. No explanation was given by the complainant why it was not given on 1.6.2013 and why undated/blank cheque was given to respondent No. 2 by the complainant, therefore, the order so passed by the District Forum is liable to be set-aside.
11. In case we go through the pleadings and documents on the record, it is clear that complainant had purchased one Maruti Swift Dzire car from Op No. 2 on 31.5.2011. As per the version given by Op No. 2, the complainant was known to Op No. 2, therefore, on telephone he told that policy be issued w.e.f. 1.6.2013 and he will issue the cheque dated 1.6.2013 but the cheque was delivered to them on 18.6.2013. Complainant in his affidavit Ex. R-2 submitted to Op No. 1 has mentioned that he had handed over the premium cheque in blank form to the person at Dealership against the renewal of the policy as he was going out of station and the person had filled in the premium and date of the cheque of his own. It is a fact that new vehicle was purchased and Op No. 2 is authorised Agent of Op No. 1. In case he had issued the policy at the instructions of the complainant on telephone and normally no dealer will deliver the policy till the cheque is received. In case policy was prepared on oral instructions, the complainant might have come to collect the policy and at that time cheque must have been collected by Op No. 2. There is another document Ex. R-3/C, which is Sprint Collections(Network Mini Metro) First Appeal No. 564 of 2015 7 in which there is reference of cheque No. 810453 for a total premium of Rs. 10,906/-. The instrument was of Punjab National Bank, Aggar Nagar Branch, Ludhiana and date of instrument was 31.5.2013, therefore, there is every possibility of delivering the cheque on 31.5.2013/1.6.2013 and possibility cannot be ruled out that lateron the date of cheque was mentioned as 17.6.2013 as Op No. 2 had failed to transfer this amount to Op No. 1 and then he submitted this cheque to the bank, which was encashed on 19.6.2013. It has been contended by the Ops that the cheque was given by the complainant after the accident. The cheque is dated 17.6.2013. In case it is taken that the cheque was received on 17.6.2013 then normal working hours are 9 a.m. to 5 p.m. and time of accident as per FIR is Ex. R-21 is 19:00 hours i.e. 7.00 p.m., therefore, it cannot be said that the cheque was given after the accident. Op No. 2 has stated that cheque was received by him on 18.6.2013. It is only an oral statement. Op No. 2 is a big firm and number of vehicles are daily sold by it and number of cheques are received by this firm. They have not produced any cheque receipt register showing that the cheque No. 810453 dated 17.6.2013 was received by them on 18.6.2013, rather, Ex. R-3/C contradict the version of Op No. 2. The main plank of Op No. 1 is that complainant is not coming forth with clean hands and the person, who is not coming forth with clean hands, he is not entitled to the claim. But counsel for the Ops have failed to explain how the complainant is not coming to the Forum with clean hands. In case he has not mentioned the date of delivery of cheque to Op No. 2 in his complaint, he has given affidavit Ex. R-2 before Op No. 1 in First Appeal No. 564 of 2015 8 which he has specifically stated that the cheque was taken from him without date. Op No. 1 had also appointed Mr. Prem Singh as one of the Investigator and his report is Ex. R-17 and his report does not disclose that he had checked the record of Op No. 2 to verify on which date this cheque was received by them as per their record. He has mentioned only that the balance of Rs. 7,582/- on 3.6.2013 and insured deposited Rs. 40,000/- on 6.6.2013, therefore, neither the report of the investigator nor the evidence of Op No. 2 is coming forth to state that the cheque was delivered to Op No. 2 on 18.6.2013. Even if for the sake of arguments, it is taken that the cheque was delivered to Op No. 2 on 17.6.2013 and the cheque was encashed, then, the payment will be considered from the date of receipt of cheque. Only contention of Op No. 1 is that the policy will be applicable, subject to clearance of the cheque and once the cheque was encashed then its operational date will be as mentioned in the policy i.e. 1.6.2013. Therefore, we cannot say that the complainant had not come to the Forum with clean hands.
12. Counsel for the appellant/Op No. 1 has relied upon judgment 2008(4) RCR (Civil) 315 "National Insurance Co. Ltd. versus Yellamma & Anr." that before a contract of insurance comes into force, the premium will be received by the insurer in advance. Even if that judgment is taken, the cheque i.e. premium amount was received vide cheque dated 17.6.2013. Ops have failed to prove on the record that the cheque was received on 18.6.2013 and in case there was delay to got it encashed, it is not the concern of the complainant. Therefore, it cannot be said that no premium was paid First Appeal No. 564 of 2015 9 by the complainant to Ops after the accident and once the premium was made then the policy will come into force w.e.f. the date as mentioned in the policy/the date of receipt of the payment. The District Forum has relied upon the judgment "Oriental Insurance Co. Ltd. versus Dharam Chand and others", 2010 ACJ 02659 (SC) wherein it was observed by the Hon'ble Apex Court that premium of cheque was received by insurance company at 4.00 p.m. on 7.5.1998 and cover note was issued that insurance would commence from 8.5.1998 and vehicle met with an accident at 8.30 p.m. on 7.5.1998 and it was held that insurance company was liable to pay the claim because the insurance must be deemed to have commenced from the time when the cheque was received by the insurance company. This judgment has not been contracted by the counsel for Op No. 1. The policy dates are 1.6.2013 to 31.5.2014 and accident took place on 17.6.2013 i.e. within the subsistence of the policy, therefore, the claim was payable, which was wrongly repudiated by Ops. So far as the quantum of amount is concerned, already the District Forum has allowed the amount as determined by the Surveyor, therefore, there is no dispute with regard to the quantum of the amount to be paid to the complainant.
13. No other point has been argued.
14. In view of the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
15. The appellant/Op No.1 had deposited an amount of Rs. 25,000/- and Rs. 2,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by First Appeal No. 564 of 2015 10 the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
16. Remaining amount, if any due, shall be paid by appellant to respondent No. 1/complainant within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 4.7.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
July 5, 2016. (Harcharan Singh Guram)
as Member