D .o.F: 17/7/09 D.o.O:05/4/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.169/09 Dated this, the 05 day of April 2010. th PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Vishwanatha Bhat.K, S/o Late Krishna Bhat, R/at Kumara Kripa, Kangannar House, : Complainant Badiadka,Kasaragod Jasleen Kohli,Head Direct- Bajaj Allianz General Insurance Co.Ltd, : Opposite party Yerawuada, Pune-6 ORDER SRI.K.T.SIDHIQ : PRESIDENT The short but interesting question that is posed before us for consideration is whether Sec.64 VB of the Insurance Act could be made applicable in this particular case where the insurer failed to collect the premium made by way of cheque already issued by the insurer . The facts of the case is as follows: The complainant , who is the RC owner of the car bearing Reg.No.KL-14/E 3867 insured his vehicle with the Bajaj Allianz General Insurance Co.Ltd headed by the opposite party herein. A policy is issued by the opposite party relating to the period between 18/1/2008 and 17/1/2009 (Although in the complaint the insurance period is wrongly shown as 18/8/2008 to 17/1/2009) as per policy No. OG-08-1005-1801-66811378). The premium for the policy was Rs.3466/-. The complainant remitted the premium by way of cheque drawn on Perdala Service Co-op Bank Neerchal where he maintains an account in his name. Admittedly he also working as the Secretary of the concerned bank. That on 10/1/09 the vehicle underwent damage in a road accident. The surveyor assessed the damages to the tune of Rs.9904/-. This fact was timely intimated to the opposite party who rejected his claim on the ground that there is no valid insurance coverage at the time of the road accident. Hence the complaint seeking proper relief and compensation in the interest of justice.
2. According to opposite paty, the cheque issued by the complainant towards the remittance of premium was dishonoured by the banker due to insufficiency of fund in the account maintained by the complainant. The factum of dishonour of cheque and the cancellation of policy was already informed to the complainant and it is contended that policy issued to the complainant is void abinito due to the non receipt of consideration for entry in to the insurance contract . According to them this is seen as a clear violation of Sec.64 VB of the Insurance Act 1938. Opposite party even dispute the factum of damages caused to the vehicle and the amount spent by way of repair. According to opposite party hence the complainant is not entitled for any reliefs claimed in the complaint and the complaint is liable to be dismissed.
3. Complainant filed proof affidavit in support of his case and Exts.A1 to A9 marked on his side. He faced cross examination by the counsel for opposite party. The opposite party neither adduced oral or documentary evidence to substantiate their contentions.
4. As afore posed whether the opposite party can take shelter under Sec.64 of VB of the insurance Act to save themselves from the liability of payment of compensation due. Our answer is negative. The opposite party cannot take shelter under 64 VB of the Insurance Act Because opposite party failed to substantiate their contention by adducing cogent evidence in support of their contentions. It is the case of the opposite party that the cheque already issued by the complainant towards remittance of the premium bounced back as a result of insufficiency of funds in the account maintained by the complainant with the Bank where to the cheque is said to be drawn. Had the cheque bounced as alleged by them the opposite party would have produced relevant documents like dishonoured cheque, cheque return memo etc to substantiate their contentions. The non production of the said documents are fatal as far as the contentions of the opposite party is concerned. The Honble Supreme Court in the case of Gopal Krishnaji Kekkor vs. Mohammed Haji Latif and ors. Reported in AIR 1968 SC 1413 has held that If a party is possession of best evidence which would throw light on the issue in controversy withholding it, then the court ought to draw an adverse inference against him not with standing that onus of proof does not lie on him. Further the explanation clause to Sec.64 VB says where the premium is tendered by postal money order or , the risk may be assumed on the date on which thecheque sent by post money order is booked or t as the case may be. he cheque is posted
5. On a plain reading of the explanation of Sec.64VB itself it is clear that the risk would have been assumed on the date on which the cheque is posted or delivered. It is seen that accident occurred on 10/1/2009 which is approximately 11 months from the date of insurance coverage. Apart from that, there is another reason to strengthen the case of the complainant Ext.A9 is the extract of statement of account maintained by the complainant in Perdala Service Co-op Bank Ltd during the period between 1/12/07 to 2/12/2008 . It shows that at the relevant point of time the account had sufficient fund to honour the cheque issued by him towards the remittance of premium. No where it is shown that the cheque issued to the opposite party is brought for collection . Therefore the only possible inference is that the cheque issued by the complainant to opposite party towards the payment of premium was never at all been presented for collection in the account maintained by the complainant. Under the circumstances no fault can be attributed to the complainant.
6. For the above reasons we have no hesitation to hold that the opposite party has committed deficiency in service and therefore they are liable to compensate the complainant for the loss and hardships sustained by him.
7. Reliefs & Costs: The surveyor deputed to assess damages caused to the complainants vehicle figured the amount at Rs.9904/- More over the complainant is also entitled to the compensation on account of complacency amounting to deficiency in service on the part of opposite party for which we fix a sum of Rs.5000/-. Therefore, the complaint is allowed and opposite party is directed to pay Rs.9904/- to the complainant with a compensation of Rs.5000/- and a cost of Rs.2500/-. However, the opposite party is at liberty to deduct the premium amount of Rs.3466/- from the said amount since it is seen that the opposite party has not collected the premium as per the cheque issued to them. Time for compliance is 30 days from the date of receipt of copy of the order. Failing which the opposite party shall be liable to pay interest for Rs.9904/- @ 12 % per annum from the date of complaint till payment. MEMBER MEMBER PRESIDENT Exts; A1-,A3,A4- Cash memo A2-Gate pass A5- Badge A628/2/09- copy of lawyer notice A7- Postal acknowledgment PW1-Vishwanatha Bhat- complainant MEMBER MEMBER PRESIDENT ...................... K.T.Sidhiq ...................... P.P.Shymaladevi ...................... P.Ramadevi
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