M/S. The New India Assurance Co. Ltd vs Kamlesh Chandra Tiwari & Anr

The present revision petition has been filed against the order dated 21st May, 2019 by the State Commission in appeal No.155/2015 of the petitioner. The petitioner filed the said appeal against the order dated 2.6.2015 of the District Forum in CC/19/2014 of the respondent.

The present revision petition has been filed challenging the impugned order of the State Commission.

The brief facts of the case are that the respondent owned a vehicle which was duly insured with the petitioner for the period from 31.1.2013 to 30.1.2014. A cheque of Rs.11,478/- was issued by the complainant for renewal of the policy. The vehicle met with an accident on 23.2.2014 and intimation was sent to the petitioner. A surveyor was appointed. The complainant incurred Rs.1,30,000/- towards repair. On 5th March, 2014 he received a letter whereby he was informed that his policy was cancelled on account of dishonour of the premium cheque due to insufficient f und. He filed a complaint alleging that the petitioner did not inform the complainant in time about dishonouring of the cheque and that cheque could not have been dishonoured due to that reason since he had sufficient money in his account. He has also raised the contention that the petitioner had manipulated its papers as to the intimation of dishonouring of the cheque in order to avoid its liability. The petitioner filed the written version in which the only plea taken was that since the cheque had bounced on the ground of insufficient fund hence policy was not renewed since no premium was paid and since there was no policy in existence, the repudiation was valid. The parties led their evidences.

After hearing the learned counsels of the parties and perusing the relevant record, the District Forum on the basis of evidences reached to the conclusion that after relying on the findings in the case of Civil Appeal No.1350/2001 National Insurance Co. Ltd. vs. Seema Malhotra Ors. that there was deficiency on the part of the petitioner since it did not inform the insured about the dishonouring of the cheque within time and had it been done, the insured would have paid the same since it was only for renewal of the policy and hence passed the following order: -

"The present complaint is allowed. It is hereby ordered to the opposite party No.2 New India Assurance Company Limited that it pay Rs.1,30,000/- to the complainant within one month. By not paying the amount within the stipulated time, the complainant shall also be entitled for interest @ 6% per annum from the date of filing of this complaint on 03.09.2014 till realization."

In the appeal the same contention has been raised that since the cheque had bounced, the petitioner was justified in cancelling the policy. The State Commission has held as under: -

"7. As admitted to the parties, the cheque for the payment of premium was issued on 25.01.2014, for Rs.11,478/- only. The validity of policy from 31.01.2013 to 30.01.2014 is also not in dispute. The cheque was dishonoured on 01.02.2014 for insufficiency of funds. The record also certifies that the complainant deposited Rs.16,000/- in his account on 01.02.2014 and as such, 'sufficient amount' remained intact in that account for the whole month. The insurance company placed emphasis on Paper No.18, highlighting the intimation of the dishonour of cheque allegedly sent to the complainant on21.02.2014 is specifically worded on the head of this letter, but we cannot lose sight of the fact that no postal receipt pertaining to this date, has been filed. The available record speaks that the limitation was sent to the complainant on 26.02.2014 by way of speed post. The affidavit furnished by the complainant establishes that the letter was delivered to him on 05.03.2014. This piece of evidence is uncontroverted. The complainant also deposed on oath that in order to escape from the liability, the insurance company mentioned the date as 21.02.2014, prior to the date of the accident in the said letter and thus, intimation was not sent in time. The insurance company has not rebutted all the facts, in the manner prescribed by law. By way of affidavit, the complainant deposed all what is stated in the consumer complaint.

The insurance company furnished the affidavit of Sh. M.C. Sati, Divisional Manager (Paper No.20Ka; Forum's File) wherein, no independent fact has been testified on oath. It entails that para 1 to 17 of 'PARIVAAD PATRA' is trued to the personal knowledge and legal advice and all documents filed by the company are also true. It is quite possible that instead of 'PRATIVAD PATRA' words 'PARIVAAD PATRA' got typed. So it may be treated as the typing mistake. But the fact remains that this affidavit which runs only in four or five lines and is not testifying even a single fact independently and referring the documents in vague manner, cannot be relied upon, in view of the la w depicted as under:..."

The facts proved on record clearly show that the complainant had deposited a sum of Rs.16,000/- in his account on 1.2.2014 and therefore there was no occasion for bouncing of the cheque for insufficient f und. There is no evidence as noted by the State Commission as well to falsify this piece of evidence. Moreover, it was the duty of the petitioner to inform the insured within time to make good of the premium in case the cheque had bounced. They did not even inform the complainant about the bouncing of the cheque. Learned counsel for the petitioner has failed to point any document indicating a receipt from their banker i.e. ICICI Bank showing bouncing of cheque on account of inssuficnet fund. Petitioner has therefore failed to prove even on record that the cheque had bounced due to insufficient fund. In view of the concurrent finding, we find no illegality or infirmity in the impugned order. The impugned order is based on the evidences on record. The revision petition has no merit and is dismissed in limine alongwtih all the pending applications.