BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR



Appeal No.130/06


United India Insurance Co.Ltd.,Regional Office,Tonk Road,Jaipur

Appellant

V.

Beni Sankhala,Proprietor of M/s Jai Shree Shyam Baba Trannsports,

Sawai Madhopur. Respondent



Date of judgement : 06.05.2009


Before:


Mr.Justice Sunil Kumar Garg-President

Mr.G.S.Hora-Member


Shri Kapil Totla,counsel for the appellant

Shri Vinod Sharma,counsel for the respondent


JUDGEMENT


BY THE STATE COMMISSION,(PER HON'BLE MR.JUSTICE SUNIL KUMAR GARG,PRESIDENT)



This appeal has been filed by the appellant insurance company against the order dated 22.12.05 passed by the District Forum,Sawai Madhopur in complaint case no.76/05,by which the complaint of the complainant respondent was allowed against the appellant insurance company in the manner that the appellant insurance company was

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directed to pay a sum of Rs.20088/- to the complainant respondent within two months failing which the appellant insurance company would further pay interest @ 12% p.a on the above amount and further to pay Rs.1000/- as amount of cost of litigation.


2. It arises in the following circumstances:


That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum,Sawai Madhopur on 5.5.05 interalia stating that he had purchased a tata tanker after taking the loan from Matsya Auto Finance Ltd and that tanker was got insured by him for the period 1.8.03 to 31.7.04 and the said tanker was also got insured by Matsya Auto Finance Ltd for the same period i.e 1.8.03 to 31.7.04. It was further stated in the complaint that he had paid the premium to the tune of Rs.20088/- and the Matsya Auto Finance Ltd had also paid the premium for the same period to the tune of Rs.19450/-,but both polices were taken by the complainant respondent as well as by the Financer from different places and that is why two policies have been taken for the same period. It was further stated in the complaint that since for the same vehicle, Matsya Auto Finance Ltd had got the vehicle insured from the appellant insurance company,therefore,the amount of premium paid by him to the tune of Rs.20088/- be returned to him.


A reply was filed by the appellant insurance company before the District Forum,Sawai Madhopur on 23.6.05 admitting the fact that the tanker in question was got insured by the complainant respondent as well as Matsya Auto Finance Ltd for the same period and the policies were issued in favour of both of them and further if the vehicle in question was got insured by the Financer,the complainant respondent was free to get the amount refunded from the Financer and not from the insurance company and further it was stated that since the information for claiming the refund of the premium to the tune of Rs.20088/- was given by the

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complainant respondent for the first time on 19.1.05 after the expiry of the period of the insurance,therefore,that amount was not payable at all and it was prayed that the complaint be dismissed.


The District Forum after hearing both the parties,through the impugned order dated 22.12.05 had allowed the complaint interalia holding that the insurance company could not be allowed to take the double premium for the same period.


Aggrieved from that order,this appeal has been filed by the appellant insurance company.


3. In this appeal,the main contention of the learned counsel for the appellant insurance company is that the impugned order dated 22.12.05 passed by the District Forum could not be sustained at all, as in case of double insurance if the insured applies after expiry of the policy,the claim for refund of the premium could not be maintainable at all and since in this case the complainant had applied for refund of the premium for a sum of Rs.20088/- through letter dated 19.1.05 and prior to that the second policy in question had expired on 31.7.04,therefore,there was no justification to return the amount of premium as ordered by the District Forum and thus the findings recorded by the District Forum are illegal,preverse and erroneous and the impugned order could not be sustained and is liable to be quashed and set aside and this appeal deserves to be allowed.


4. On the other hand the learned counsel appearing for the respondent has supported the impugned order passed by the District Forum,Sawai Madhopur.


5. We have heard the learned counsel appearing for the parties and gone through the entire materials available on record.

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6. There is no dispute on the point that the financer had got insured the vehicle for the period 1.8.03 to 31.7.04 after paying Rs. Rs.19450/- to the appellant insurance company.


7. There is also no dispute on the point that the complainant respondent had further got the vehicle insured with the appellant insurance company for the period 1.8.03 to 31.7.04 after paying Rs.20088/- to the appellant insurance company.


8. There is no dispute on the point that while getting the second policy, the complainant respondent had paid a sum of Rs.20088/- as premium to the appellant insurance company.


9. There is also no dispute on the point that for refund of that amount of premium i.e Rs.20088/-,the complainant respondent had applied for the first time on 19.1.05 as is evident from the letter on file.


10. Thus,in the facts and circumstances just narrated above,the question for consideration is whether the findings recorded by the District Forum could be sustained or not and whether the case as put forward by the appellant insurance company could be accepted or not;


11. In our considered opinion,if the period of policy has expired in case of double insurance,the complainant or the insured is not entitled to refund of the premium that was paid by him. Since in the present case,the policy was taken by the financer for the period 1.8.03 to 31.7.04 and since the second policy which was taken by the complainant respondent himself was also for the same period i.e 18.03 to 31.7.04 and since the application for refund of the premium was made on 19.1.05 on ground of double policy,therefore,on the date when the application in question was made on 19.1.05 the policy had already expired and thus,the complainant respondent was not entitled to refund of the amount of premium in respect

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of second policy.


12. Thus,we are of the opinion,that in such a case the complainant respondent is not entitled to refund of the premium which he had paid at the time of taking the second policy and for that this Commission is also in agreement with the views taken by the Bihar State Commission in the case of Oriental Insurance Co. Ltd. V. Suresh Kumar Maskhara (I (1997) CPJ 230) where the truck in question was insured by the financer bank and further by the complainant and if the complainant had informed the insurance company for refund of the premium after the policy had expired,the claim was not payable. Similar view was taken by the Haryana State Commission,Chandigarh in the case of New India Assurance Co.Ltd. V. Krishan Kumar reported in 1994 (1) CPR 731.


13. It may further be stated here that there might be communication gap between the financer and the complainant respondent in getting the double insurance, but for that if claim was sought for refund of the premium after expiry of the policy,the insurance company could not be penalised and thus,this Commission is of the view that the District Forum had misdirected itself in passing the impugned order as no deficiency in service on the part of the appellant insurance company could be attributed.


14. Had the application for refund of the premium paid by the complainant respondent at the time of taking the second policy would have been made by the complainant respondent during the continuance of the second policy,the position would have been different one.


15. For the reasons as stated above,the findings of the District Forum decreeing the claim of the complainant respondent could not be sustained as they suffer from basic infirmity,illegality and perversity. Hence,this appeal deserves to be allowed.

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16. Accordingly,this appeal filed by the appellant insurance company is allowed and the impugned order dated 22.12.05 passed by the District Forum,Sawai Madhopur is quashed and set aside and the complaint filed by the complainant respondent is dismissed.





Member President