State Consumer Disputes Redressal Commission
Ujjagar Singh vs Icici Lombard General Insurance on 22 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.13 of 2009
Date of institution : 06.01.2009
Date of decision : 22.08.2013
Ujjagar Singh son of Gajjan Singh, resident of Village Changal, Tehsil
and District Sangrur.
.......Appellant-Complainant
Versus
1. ICICI Lombard General Insurance Company Limited, Patiala
through its Manager.
2. ICICI Lombard General Insurance Company Limited, Sangrur
through its Manager.
3. ICICI Lombard General Insurance Company Limited, Zenith
House, Keshavrao Khadye Marg, Opp. Race Course,
'Mahalaxmi', Mumbai 400 034 through its General Manager.
......Respondents-Opposite Parties
First Appeal against the order dated
28.11.2008 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Jatinderpal Singh, Advocate for Shri G.S. Nahel, Advocate.
For the respondents : Shri Sandeep Suri, Advocate.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Ujjagar Singh, has preferred this appeal against the order dated 28.11.2008 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), for directing the respondents/opposite parties to pay him a compensation amount of Rs.1,50,707/-, along with interest and another sum of Rs.10,000/- on First Appeal No.13 of 2009. 2 account of mental torture, agony and inconvenience, was dismissed. He averred in the complaint that he is the owner of the car bearing registration No.PB-13Q-1852 (in short, "the vehicle"), which was got insured by him with the opposite parties through their authorized agent. The insurance policy was issued, which was valid from 10.10.2006 to 9.10.2007. The vehicle was damaged accidently on 11.3.2007 and was got repaired by him from Pioneer Hyundai MRG Auto Ltd., Ludhiana by spending a sum of Rs.1,50,707/- and that amount was paid by him from his own pocket. He gave information to opposite party No.1 and the officials thereof inspected the vehicle and gave assurance that the claim would be made good within very short time. The photostat copies of the documents/bills were handed over to those opposite parties as demanded by them and still the claim was not decided. The opposite parties orally refused to pay the compensation amount of the vehicle in spite of repeated requests made by him. This amounts to deficiency in service on their part.
2. Joint reply was filed by the opposite parties, in which they admitted that the insurance cover No.PD3064410 was issued in favour of the complainant in respect of the vehicle. While denying the other averments made in the complaint, they pleaded that the cover note was issued against cheque No.581114 dated 10.10.2006 for Rs.17,789/- drawn on The Sangrur Central Cooperative Bank Limited, which was dishonourned and, as such, the cover note stood cancelled. It was mentioned in the cover note itself that the same was subject to the consideration being received and the same automatically stood First Appeal No.13 of 2009. 3 cancelled on account of dishonouring of the cheque. The intimation regarding the cancellation of the insurance cover was duly sent to the complainant through post, vide letter dated 26.12.2006, much prior to the date of alleged accident. Therefore, it was justified in repudiating the claim of the complainant, vide letter dated 1.4.2007. Intricate questions of law and fact are involved, which require voluminous evidence for determination and the same is not possible in summary proceedings under the Act. The remedy of the complainant lies before the Civil Court. They prayed for the dismissal of the complaint with costs under Section 26 of the Act; being false, frivolous and vexatious to the knowledge of the complainant and having been filed to injure their reputation and goodwill.
3. The parties produced their evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
4. We have heard learned counsel for the opposite parties as only proxy counsel appeared for the counsel on behalf of the appellant/complainant and have carefully gone through the records of the case.
5. It was submitted by the learned counsel for the opposite parties that correct findings were recorded by the District Forum in view of the evidence produced by the opposite parties for proving that the cover note issued by opposite party No.1 stood automatically cancelled on account of the dishonouring of the cheque given by the complainant First Appeal No.13 of 2009. 4 at the time of obtaining that cover. It was mentioned in that insurance cover itself that the insurance was being done subject to the honouring of the cheque. As per the letter dated 25.10.2007 issued by the ICICI Bank Ex.R-1, the cheque was dishonoured when the same was presented for payment and intimation regarding the cancellation of the insurance policy/cover note was duly given to the complainant on 26.12.2006, vide letter Ex.R-2. Therefore, there is no ground for upsetting the well reasoned findings recorded by the District Forum.
6. The complainant proved the cover note on the record as Ex.C-1 and the same has also been proved by the opposite parties as Ex.R-4. It is very much clear from that cover note that the premium of Rs.17,789/- was paid by means of cheque No.581114 dated 10.10.206 drawn on the Sangrur Central Cooperative Bank Ltd. It is mentioned in that cover note that in the event of dishonor of cheque, insurance cover provided under this document automatically stands cancelled from inception irrespective of whether a separate communication is sent or not. The opposite parties tried to produce evidence before the District Forum that on presentment the cheque was dishonoured. Reliance has been placed on the letter dated 25.10.2007 Ex.R-1. As per that letter, firstly the cheque was returned by The Sangrur Central Cooperative Bank on 17.11.2006 with the report that the same was not drawn on it. The second time the same was sent back on 1.12.2006 with the report "Refer to Drawer". The complainant proved on record the passbook Ex.C-18 in respect of the account on which that cheque was drawn. As per the entries of this passbook, there were sufficient First Appeal No.13 of 2009. 5 funds in his account on the date the cheque was issued. It was only on 11.12.2006 that there were only Rs.1878/- in his account. On 31.10.2008 and 20.11.2006, a sum of Rs.39,877/- was outstanding in his account. As per entry dated 20.11.2006 a sum of Rs.20,000/- was withdrawn by him on that day leaving a balance of Rs.19,877/-. The next withdrawal was on 11.12.2006 of Rs.18,000/- and a balance of Rs.1877/- was left. Thus, on 17.11.2006 and 1.12.2006 there were sufficient funds in his account to honour the cheque. Therefore, the same could not have been dishonoured on the grounds mentioned in the letter Ex.R-1. In order to make out a true picture and to arrive at a correct conclusion the opposite parties were directed to place on record the memos of dishonor of the Sangrur Central Cooperative Bank Ltd. No such memo was placed on the record. However, original cheque itself was produced. As per the endorsements made on the back thereof, this cheque was presented for payment on 10.10.2006. It cannot be made from the endorsements made on the back of the said cheque that this cheque was ever dishonoured. Thus, the opposite parties concocted the evidence in the form of the letter dated 25.12.2007 Ex.R-1 regarding the dishonouring of the cheque. The complainant as a customer issued the cheque for obtaining the cover note and on that day he had sufficient funds in his account for honouring of the cheque and those continued to be so for successive months. It was unfair trade practice on the part of the opposite parties not to present the cheque for payment and thereafter to make a lame and false excuse that the same was dishonoured.
First Appeal No.13 of 2009. 6
7. It is also the case of the opposite parties and so submitted by their counsel that intimation regarding the cancellation of the policy was conveyed to the complainant on 26.12.2006, vide letter Ex.R-2. For inspiring confidence that this letter was sent through post the certificate of posting has been proved on the record as Ex.R-3. As per this letter, the cover note was cancelled on account of non-payment of the amount of the cheque by the banker of the complainant. Even if from the certificate of posting Ex.R-3, a presumption is drawn that the letter Ex.R-2 was sent to the complainant through post, even then it cannot be concluded that the cover note stood cancelled by the opposite parties before the vehicle met with an accident. This cancellation of the cover note cannot be justified in view of the fact that there is no reliable evidence on the record for coming to the conclusion that the cheque issued by the complainant for obtaining the cover note was dishonoured by his banker. It appears that the opposite parties kept the cheque with them and one fine morning issued the said letter to the complainant by saying that on account of non-payment of the cheque, the insurance cover stands cancelled.
8. If it was so, why the opposite parties appointed the surveyor for making his report in respect of the vehicle? They themselves proved on the record the report of the surveyor Ex.R-5, which is dated 25.4.2007. There was no fun in appointing such a surveyor when there was no insurance in existence on the date of the accident. The complainant as a consumer is not to suffer for the lapses on the part of the opposite parties in not getting the cheque encashed. The First Appeal No.13 of 2009. 7 repudiation of the claim of the complainant, vide letter dated 1.4.2007 Ex.R-7 is liable to be set aside.
9. Now, the question arises, to how much amount the complainant is entitled to? He has claimed Rs.1,50,707/- as insurance amount and according to him that amount was spent by him from his own pocket for getting the vehicle repaired. He proved on record the repair orders Ex.C-2 and Ex.C-3, the estimates Ex.C-6 to Ex.C-8, the Invoices/Cash Memos Ex.C-10 to Ex.C-13 in support of that fact. All these invoices were produced before the surveyor and that fact finds mention in his report Ex.R-5. He made the assessment of the loss by taking into consideration the depreciation etc. as per the terms and conditions of the insurance policy. To our mind, this report is the best evidence for concluding as to how much amount is to be allowed to the complainant as the insurance amount. The surveyor had come to the conclusion that the final assessed amount of the vehicle is Rs.80,528/-. The complainant is entitled to that amount on the basis of the insurance claim made by him minus the amount of premium of Rs.17,789/-. Thus, he is entitled to Rs.62,739/- as insurance amount.
10. In addition to that he is entitled to compensation for the harassment and mental agony, which he suffered on account of deficiency in service on the part of the opposite parties in cancelling the insurance cover on account of their own lapses and then repudiating his claim. That compensation, as claimed in the complaint, is allowed at Rs.10,000/-. The litigation expenses are assessed at Rs.5,500/-.
First Appeal No.13 of 2009. 8
11. Accordingly the appeal is allowed, the order of the District Forum is set aside and the opposite parties are directed to pay the sum of Rs.62,739/- along with interest at the rate of 9% per annum from the date of repudiation of the claim i.e. 1.4.2007 till the date of payment on that amount, Rs.10,000/- as compensation and Rs.5,500/- as litigation expenses within 30 days of the date of the receipt of the copy of this order.
12. The arguments in this case were heard on 19.8.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) August 22, 2013 MEMBER Bansal