State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd.. vs Shri Ulas Prabhu Dessai, on 5 December, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Appeal No. 16/2012 The Oriental Insurance Co. Ltd.. Gouveia Chambers, 3rd Floor, Panaji - Goa Appellant/ O.P.No.2 v/s Shri Ulas Prabhu Dessai, Aged 57 years, Retired Chandreswar Niwas, Takki, Xeldem, Quepem, Goa. Respondent No.1/ Complainant Infinity Health Management Pvt. Ltd., Through its Manager, Regd. Office at Felicinta Complex, Gogal, Margao, Goa. Respondent No.2/ O.P.1 Appellant/O.P. 2 represented by Adv. Shri E. Afonso Respondent No.1/ Complainant represented by Adv. Shri V. G. Naik. Respondent No.2/ O.P-1 exparte. Coram: Shri Justice N.A. Britto, President Shri Jagdish Prabhudesai, Member Dated: 05/12/2012 ORDER
[Per Shri Justice N.A. Britto, President] O.P. No.2 in C.C. No. 68 of 2005 has filed this appeal and it is directed against order dated 29/06/2012 of the Lr. District Forum, South Goa, Margao. The operative part of the said order reads as follows:
The complaint is hereby allowed. The Opposite Parties are directed to jointly and severally pay to the Complainant the sum of Rs.36,756/- with interest at the rate of 9% p.a. from the date of filing the present complaint till its realization. The Complainant is also entitled to a sum of Rs.5,000/- towards inconvenience caused to him and a sum of Rs.5,000/- towards the cost of the present complaint.
2. The parties hereto, shall hereinafter be referred to, in the names as they appear in the cause title of the complaint.
3. The Complainant became a member of O.P. No.1 which is a financial investment company, and which invites and accepts deposits from the public for the purpose of insuring the health of its members on certain terms and conditions. O.P. No.2 is an insurance company which insures the members of O.P. No.1 on payment of premium. The Complainant paid a sum of Rs.5,900/- and got himself enrolled as a member of O.P. No.1. The Complainant through O.P. No.1 obtained medical insurance policy issued by O.P. No.2. The first of such policy was obtained for the period from 29/08/2000 to 28/08/2001.
4. The last of such policy was to expire on 28/08/03 and the Complainant was issued renewal notice by O.P. No.1 demanding a sum of Rs.1,288/-, which included a sum of Rs.115/- payable to O.P. No.1, as infinity health charges. The Complainant issued a cheque on 19/08/2003 in the said sum of Rs.1,288/- drawn on Quepem Branch of Bank of India. O.P. No.1 deposited the said cheque in Andhra Bank Branch at Margao on 23/08/2003. Complainants bank at Quepem debited the sum of Rs.1,288/- on 26/08/03 but the O.P. No.1s bank at Margao credited the said sum to O.P. No.1s account on 02/09/2003.
However, the fact remains that O.P. No.1 did not pass on the said amount or any part thereof to O.P. No.2 nor refund the sum to the Complainant until the Complainant had an accidental fall on 25/08/04 and suffered a fracture of his right leg as a result of which the Complainant had to be hospitalized at Apollo Nusi Hospital in Cuncolim and had to incur an expenditure of Rs. 35,756/-.
5. The Complainant therefore filed the complaint to recover from both the O.Ps. a sum of Rs.36,756/- plus compensation of Rs.10,000/- and costs, etc. The complaint has been allowed by the impugned order and O.P. No.2 has filed this appeal against the same.
6. Shri E. Afonso the lr. adv. of O.P. No.2, would contend that O.P. No.1 procures insurance business proposals from people and places the insurance business with any of the authorized insurance companies. Shri Afonso would submit that after the expiry of Complainants policy on 28/08/03 the Complainant was not issued any policy by O.P. No.2 through O.P. No.1, as O.P. No.2 had not received any premium which was paid by the Complainant to O.P. No.1.
Shri Afonso submits that O.P. No.2, in the absence of a policy issued by it to the Complainant, had nothing to do with the loss suffered by the Complainant on account of his fall, and therefore the Lr. District Forum could not have held O.P. No.2 liable to satisfy the claim made by the Complainant. Shri E. Afonso further submits that there was no privity of contract between the Complainant and O.P. No.2 as no premium was paid to O.P. No.2 and if at all there was any deficiency of service, it is on the part of O.P. No.1.
7. On the other hand, Shri V. G. Naik, the lr.
adv. of the Complainant, would submit that the Complainant had paid the premium for the renewal of the policy to O.P. No.1 who is the agent of O.P. No.2. Lr. Adv. would submit that previously the Complainant had paid the premium to O.P. No.2 through O.P. No.1. Contending that the payment made to O.P. No.1 as the agent of O.P. No.2 is valid payment, Shri V. G. Naik has placed reliance on the case of Smt. Usha Kiran Bhagwat and another vs. The Divisional Manager, Life Insurance Corporation of India and 2 others decided by Maharashtra State Commission on 04/02/2008.
8. We are unable to accept the submissions made by Shri V. G. Naik, the lr. adv. of the Complainant.
It was not the case of the Complainant at any time that he had made the payment to O.P. No.1 as the agent of O.P. No.2.
On the contrary the Complainant had stated that O.P. No.2 is an insurance company and is an associate of O.P. No.1. As already stated, O.P. No.1 accepted the cheque dated 19/08/2003 and deposited the same into their account only on 23/08/2003. If at all there was a delay in collection of the amount of the cheque, O.P. No.1 is partly responsible for the same. The amount of premium due was deducted from the account of the Complainant on 26/08/2003 before the policy was to expire on 28/08/03. The Complainant therefore could not have been blamed for late collection of the cheque which was issued in time by the Complainant, by O.P. No.1s Bank at Margao. The Lr. District Forum has tried to paint both the O.Ps. in the same brush when admittedly the Complainant had paid the premium due to O.P. No.1 whose member he was, and O.P. No.1 had not passed on the said premium to O.P. No.2. As rightly pointed out, as there was no premium paid by the Complainant through O.P. No.1 to O.P. No.2 there was no policy issued by the O.P. No.2 to the Complainant through O.P. No.1. In other words, there was no contract between the Complainant and O.P. No.2 for want of payment of premium and as such O.P. No.2 could not be held liable to pay the amount claimed by the Complainant along with O.P. No.1. The liability therefore would have been of O.P. No.1 alone.
9. The case of Smt. Usha Kiran Bhagwat was decided on the basis of two cases decided by the Apex Court one of them being the case of Delhi Electric Supply Undertaking vs. Basanti Devi and another, AIR 2000 Supreme Court 43, and the other being the case of Chairman LIC and others vs. Rajkumar Bhaskar, (2005) AIR SCW Supreme Court 3636. Both the cases were based on entirely different facts. In both cases premium was being deducted by the employer and it is in these circumstances that the Apex Court held that it could be inferred that the employer had implied authority to act as an agent of LIC in view of section 186 of the Contract Act. It was held that failure on the part of the employer to make payment of premium to the LIC would be the liability of LIC itself, because its agent had failed to deduct monthly premiums and transmit them to the LIC under Salary Saving Scheme of LIC. It was further held that in Salary Saving Scheme of LIC, when premiums payable by employer to LIC were agreed to be deducted every month from the salary of employee and agreed to be transmitted to LIC, the employer in any case had ostensible authority to collect the premium on behalf of LIC and as such, the employer would be the agent of LIC for the employees under section 182 of Contract Act and the general principles of law of agent as contained in Contract Act would be applicable and LIC would be held liable even if some monthly premiums were not sent by the employer to LIC pertaining to a particular employee.
10. It is well settled, as reiterated by the Apex Court in Bihar School Examination Board vs. Suresh Prasad Sinha, 2009 CTJ 1057 that:
a little difference in facts or additional facts make a lot of difference in the precedential value of a decision.
Quoting Lord Denning the Apex Court said:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases. One should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
11. On the facts of the case, therefore, the case of Smt. Usha Kiran Bhagwat is inapplicable to the facts of the case at hand.
12. In the case at hand, the Complainant was a member of OP No.1, which according to the Complainant himself, as pleaded by him, was an associate of OP No.2 and not its agent. Complainant had paid Rs. 115/- to O.P. No. 1 as their health charges. If that be so, if O.P. No. 1 was at all an agent, it was an agent of the Complainant and not O.P. No. 2. O.P. No. 2 would have issued a policy only in case it had received the premium from the Complainant through OP No.1 which was not received by OP No.2 in as much as OP No.2 had also not issued a policy in favour of the Complainant as it had issued previously for 3 years. OP No.2 therefore could not have been held liable along with OP No.1 to pay the amount claimed by the Complainant. When there are more than one parties to a complaint, it is the duty of the Fora to indicate as how each of them is liable. Parties cannot be painted by the same brush. In the circumstances, therefore we have no other option but to allow the appeal partly and set aside the impugned order only in relation to OP No.2.
It shall remain in force against OP No.1 alone.
[Shri. Jagdish Prabhudesai] [Shri Justice N.A. Britto] MEMBER PRESIDENT