Cheque of premium was received by Insurance Company agent, even than company is not liable to pay compensation

Consumer Protection Act, 1986 Section 2 Insurance Act, 1938 Section 64VB Contract Act, 1872 Section 226 Motor accident - Insurance claim - Vehicle in question allegedly insured with opponent-Insurance Company - Earlier policy expired on 24/04/2009 - Complainant switched over to another company i.e. opponent and issued cheque of premium to its agent on 25/4/2009 - Accident occurred on 30/4/2009 - No proposal form signed by complainant - Not a case of renewal of policy but what was to be sought was new policy - Hence, opponent not liable to compensate complainant under provisions of Section 226 of Contract Act - However, agent held liable to pay limited claim of Rs. 50,000/- to complainant

GeekUpd8 Doc Id # 707652

STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA

Before :- R.C. Chanvan, Presiding Member and Dhanraj Khamatakar, Member
First Appeal No. 823 of 2012 and First Appeal No. 12 of 2013. D/d. 23.12.2014.

Bajaj Alliance Gen Insurance Co. Ltd. - Petitioner
Versus
Balasaheb Kashinath Shinde and Ors. - Respondents

For the Original Complainant :- Shantaram Tarale, Advocate.
For the Respondents :- S.R. Singh, Advocate.
For the Respondent/Original Opponent No. 2 :- None present.

JUDGMENT

R.C. Chanvan, Presiding Member - These two appeals by the complainant and original opponent no.1 question order passed by the District Consumer Disputes Redressal Forum, Pune, partly allowing Consumer Complaint No.211/2010 and directing the opponents to pay a sum of L 50,000/- to the complainant with interest @9% per annum and costs quantified at L 1,000/-.
2. Facts which are material for deciding these appeals and about which there is no much serious dispute are as under:
    The complainant owned a Car which was insured for a period from 25.04.2008 to 24.04.2009 with I.C.I.C.I. Lombard General Insurance Co. On 23.04.2009 opponent no.2 represented to the complainant that he was Agent of opponent no.1 and sought to provide insurance for opponent no.1 for a period 24.04.2009 to 23.04.2010. According to the complainant a cheque for L 17,044/- drawn in favour of opponent no.1 was issued by the complainant and handed over to the opponent No.2. On 25.04.2009 the complainant claims to have enquired with the opponent no.2 about renewal of the policy and opponent no.2 assured that the policy had been renewed. On 30th April, 2009 when the Complainant's relations were travelling by the Car, the car met with an accident and complainant's relations expired in the Car. The complainant also suffered loss quantified at L 11,00,000/-. According to the complainant, on 07.05.2009 the opponent no.2 left the cheque issued by the complainant at Complainant's office and the complainant then came to know that policy had not been renewed. The Complainant, therefore, filed the complaint claiming compensation of L 11,00,000/- with costs quantified at L 15,000/- and further compensation for mental harassment, etc. quantified at L 2,00,000/- from the opponents.
3. The opponent no.1, appellant in Appeal No.823/2012 filed written version stating that the cheque of L 17,044/- had not at all been received by the opponent no.1 and therefore, there was no question of providing any cover note or insurance policy. It was denied that there was any deficiency in service and therefore, opponent no.1 sought dismissal of the complaint.
4. It seems that opponent no.2 remained absent in spite of service of notice and hearing of the complaint was proceeded ex-parte against opponent no.2.
5. After hearing the parties, the Forum came to hold in favour of the complainant and passed the impugned order. Aggrieved thereby, both, the complainant as well as opponent no.1, have preferred these appeals. Opponent no.1 is aggrieved because the opponent no.1 has been saddled with liability to pay a sum of L 50,000/- along with opponent no.2 and the complainant is aggrieved because his entire claim was not allowed by the Forum.
6. We have heard Ld.Counsel present for the parties. Respondent/Opponent no.2 was represented by Advocate Mr. Bhavsar but he did not appear at the time of hearing today.
7. The Forum seems to have held that opponent no.2 was agent of opponent no.1 and therefore, in view of provisions of Section 226 of the Contract Act opponent no.1 was liable for the acts of the Agent. The Ld.Counsel for the appellant insurance company submitted that the Forum failed to note sections 227 and 228 of the Contract Act which explain as to when the principal would not be liable for acts of the agent. He submitted that, if the act is beyond the scope of agent's authority his acts would not bind the principal. The Ld.Counsel pointed out that in view of provisions of Section 64 VB of the Insurance Act, when an Insurance Agent collects the premium of the policy on behalf of the Insurer he is obliged to dispatch premium so collected in full within 24 hours from the collection. The Ld.Counsel pointed out that, according to complainant's own averments cheque for the premium was not tendered by opponent no.2 with the appellant insurance company and had in fact been left much after the accident on 07.05.2009 at the Complainant's security office. Thus, Ld.Counsel submitted that opponent no.2 had obviously not acted in accordance with the responsibility casts on him u/sec. 64 VB of the Insurance Act. He submitted that Insurance Agents are not "Agents" but mere facilitators to enable persons seeking insurance to make proposals. In this case, it is not in dispute that no such proposal was ever made by the complainant. Therefore, there was no question of the proposal reaching the insurance company or the insurance company sitting over the premium and the proposal form.
8. We may add that, this is not a case of mere renewal of an Insurance policy. The policy for the previous year was with different company i.e. ICICI Lombard General Insurance Co. Therefore, what was to be sought was a new policy. Since no proposal was signed by the complainant and the premium which was allegedly received by opponent no.2 had not at all been deposited by opponent no.2 with the insurance company within 24 hours as required under the provisions of Section 64VB of the Insurance Act, there was no question of the opponent Insurance Company being made liable to compensate the complainant by resorting to provisions of Section 226 of the Contract Act. Therefore, the appeal of the Insurance Company would have to be allowed.
9. This takes us to the question as to whether order passed by the District Forum limiting compensation to L 50,000/- needs to be altered. In this case the Complainant should have seen that he was switching over from one Insurance company to another. He did not sign any proposal form before policy to expire. The complainant claims to have handed over cheque for L 17,044/- to the opponent no.2 just one day before the date of expiry of policy. The complainant must therefore blame himself for failing to take care to see that the vehicle was properly covered by policy of insurance before the earlier policy expired. Therefore, the claim of compensation of L 11,00,000/- or further compensation of L 2,00,000/- towards mental harassment could not at all have been granted. In our view, the Forum has rightly limited the claim of L 50,000/- for the negligence of opponent no.2 in failing to hand over the cheque to the opponent no.1 Insurance company. This amount would obviously have to be paid only by the opponent no.2 and not by the Insurance Company. In view of this, the complainant's appeal would have to be dismissed. Hence, the order:
ORDER
First Appeal No.823 of 2012 filed by Appellant/Bajaj Allianz General Insurance Company Ltd. is hereby allowed and the order dated 10/05/2012 passed by District Consumer Disputes Redressal Forum in Consumer Complaint No.211 of 2010 is hereby set aside insofar as it fastens liability on Appellant/Bajaj Allianz General Insurance Company Ltd. However, said order stands as it is so far it relates to Respondent/original Opponent No.2 - Mr. Rahul Bhosale.
Appeal No. 12 of 2013 filed by original Complainant - Mr. Balasaheb Kashinath Shinde stands dismissed.
Parties shall bear their own costs.
Ordered accordingly.
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