Counsel for the Appellants: Mr.Sai Kumar Chundi

Counsel for the Respondents:Smt.Jayanthi S.C.Sekhar-R1.

                                         R2-served.

                                         R3-M/s J.Sivanesan

QUORUM: SRI S.BHUJANGA RAO, HON’BLE MEMBER.

AND

SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.

                                                                            MONDAY, THE NINTEENTH DAY OF JANUARY,

TWO THOUSAND FIFTEEN

 Oral Order ( Per Sri S.Bhujanga Rao, Hon’ble Member.)

                                                                                                           ***

This appeal is directed against the order dated 05-11-2012 made in C.C.No.123/2012 on the file of District Forum-I, Visakhapatnam.

The appellants are the opposite parties 2 and 3 and the respondent No.1 herein is the complainant and the  respondents 2 and 3 herein are opposite parties 1 and 4 respectively.

For the sake of convenience the parties are described as they are arrayed in the complaint.

The  respondent No.1/complainant  filed  the  consumer      complaint

seeking directions to the opposite parties  to refund an amount of Rs.2,00,000/- paid by the complainant towards  the premium amounts for the policy No.04772135 vide cheque Nos.039862 dated 15-3-2007 and cheque No.820520 dated 24-12-2007, along with interest  at 24% p.a. to pay Rs.1,00,000/- towards damages suffered by the complainant and to pay  Rs.1,00,000/- towards compensation for causing mental agony and to pay costs.

The brief case of the complainant as set out in the complaint is as follows:

The complainant approached opposite party No.1 to open a savings bank account on 08.03.2007 and she was told about the Life Insurance Policies of opposite party No.2 and she was also informed that if she takes a Life Insurance Policy belonging to opposite party No.2, then only a savings bank account will be opened, for which, she agreed and she opened a savings bank account with opposite party vide account No:861010110000547 and thereafter a Policy was issued  in her name on 15.03.2007.  The complainant paid  1^st premium of Rs.1,00,000/- to the opposite parties 2 and 4 for the period 2007-2008 through cheque bearing No:039862 dated 15.03.2007  which belongs to 4^th Opposite party.  The complainant received the Premium paid Certificate for the year 2007-2008 along with the policy from opposite parties 2 and 3 and the policy Number is 04772135.  The complainant stated that she paid 2^nd premium for the year 2008-2009 to opposite parties 2 and 3 for an amount of Rs.1,00,000/- through crossed cheque bearing No:820520 dated 24.12.2007, which also belongs to 4^th Opposite party i.e., HSBC bank, in favour of opposite parties 2 and 3.  The cheque was handed over to Mr. Dattu, who is the agent of opposite parties 2 and 3 and he handed over a Premium paid Certificate for the year 2008-2009 dated 16.12.2008.  The complainant received so many phone calls from opposite parties 2 and 3 regarding the payment of 2^nd premium and she told the opposite parties that she paid the 2^nd premium through cheque and asked them to clarify and also stated that she received premium paid certificate for the year 2008-2009 on 16.12.2008 from opposite parties 2 and 3.  The complainant approached the opposite party No.3 several times and enquired about the status of her policy and also addressed several letters to opposite party No.3 regarding the status of policy but there was no response from opposite party No.3.  Finally, the complainant got issued notice to all the opposite parties on 03.08.2010 requesting them to inform the status of her policy and about the future premium payments of the policy but there was no response.  Alleging deficiency in service, she approached the District Forum and filed the complaint.

Opposite parties 1, 2 and 3  called absent and they were set exparte.

Opposite party No.4 filed counter and admitted about the account of the complainant in its bank bearing No:061-220042-006 and also admitted about the issuance of cheque by the complainant in favour of the opposite parties 2 and 3 and stated that the entire grievance of the complainant is against only opposite parties 2 and 3 and that  there is no deficiency in service on its behalf.

During the course of enquiry before the District Forum, in order to prove her case,  the complainant filed evidence affidavit and got marked Ex.A1 to A11.  The opposite parties 1 to 3 did not contest the proceedings and they remained exparte.  Though, opposite party No.4 filed its evidence affidavit, no documents were marked on its behalf.

Upon hearing the counsel for both the contesting parties and on consideration of the material on record, the District Forum allowed the complaint, in part, directing the opposite parties 2 and 3 to pay the fund value without deducting the surrender charge, to the complainant, within one week, on receipt of policy and necessary documents from the complainant and to pay Rs.25,000/- towards compensation besides costs of Rs.2,500/-.  The complaint against opposite parties 1 and 4 was dismissed without costs.

Aggrieved by the said order, the opposite parties 2 and 3 preferred the above appeal urging that the impugned order is an exparte order and therefore the appellants be heard on merits in order to advance complete justice to the appellants, that the District Forum has no jurisdiction to go beyond the agreed terms  of the policy contract and therefore the impugned order is liable to be set aside, that the District Forum has not considered the fact that the complainant has not filed any documentary proof to show that the appellants have received the second premium amount of Rs.1 lakh  and that the receipt allegedly issued in proof of the second payment for the year 2008-09 is false, that the cheque towards the second premium was alleged to have been given on 24-12-2007 and was cleared on 28-2-2008 by the respondent No.1 bank and thus the cause of action has arisen finally on 28-2-2008, however the respondent/complainant had preferred the present complaint in April, 2012 after expiry of limitation provided U/s.24 A of the Consumer Protection Act, 1986.  The appellants finally prayed to set aside the impugned order and dismiss the complaint or remand the matter back to the District Forum.

We heard the counsel for appellants and respondent No.1 and perused the evidence placed on record. 

Now the point for consideration is whether the impugned order of the District Forum is liable to be set aside or whether the matter be remanded back to the District Forum for fresh disposal after setting aside the impugned order  as contended by the appellants?

It is an admitted fact that the impugned order is an exparte order passed against the appellants herein.  In view of the contentions of both parties, it is evident that the whole case of the complainant as set out in the complaint is based on allegations that she had handed over a cheque bearing No.82520 dated 24-12-2007 for Rs. 1 lakh as second premium to Mr.Dattu and also placed on record, a bank statement to show that the said cheque was cleared by her banker on 28-2-2008 and also received premium paid certificate for the year 2008-2009 on 16-12-2008.  The complainant in support of her case has also placed on record the letter dated 20-10-2009 alleged to have written by her to the appellant/complainant and letter dated 13-3-2010 alleged to have written by her to the Bank of India, the respondent No.2 herein.  The contention of the appellants is that no payment towards the second premium, under the subject policy, was made by the complainant and the documents filed in support of the said alleged payment are false and that the documents themselves show that the complainant did not pay the second premium under the subject policy.  The appellants have also contended that the complaint was barred by limitation and was not maintainable U/s.24A of the Consumer Protection Act, 1986.

In view of the contentions of both parties and as the impugned order passed was an exparte order, we consider that to meet the ends of justice, the matter has to be remanded to the District Forum for disposal afresh, after giving opportunity to both parties, to adduce evidence, if any.  However, we are inclined to impose some terms on the appellants for not contesting the complaint before the District Forum, even after they received notices in the complaint.

In the result this appeal is allowed and the impugned order of the District Forum, so far as it relates to the appellants herein is set aside and the matter is remanded to the District Forum for consideration afresh after giving opportunity to both sides and the appellants/opposite parties 2 and 3 are directed to pay a sum of Rs.10,000/- to the complainant towards costs.  After ascertaining the fact that the costs are paid, the District Forum is directed to proceed with the enquiry of the case and dispose of the case as early as possible.  The parties to this appeal are directed to appear before the District Forum on 16-2-2015 without insisting for fresh notice.  To save time the appellants/opposite parties 2 and 3 and directed to file their written version in the complaint on or before that date.

    sd/-MEMBER.

                                                                                                    sd/-MEMBER.

JM                                                                                               Dt.19-1-2015.