DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __124_ _ OF ___2017
DATE OF FILING :_22.9.2017 DATE OF PASSING JUDGEMENT:21.1.2019
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Ananda Halder, son of late Jitendranath Halder, Village-Shibpur, P.O Tajpur, P.S Mathurapur, Dist. South 24-Parganas, Pin-743331.
O.P/O.Ps : The Branch Manager, Diamond Harbour Branch, Reliance Life Insurance Co. Ltd. (at present Reliance Nippon Life Insurance Company Limited), P.O Diamond Harbour, Dist. South 24-Parganas, Pin-743331.
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J U D G M E N T
Refusal to pay the surrendered value of the policy of the complainant by the O.P has galvanized the complainant to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service on the part of the O.P Bank.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant is a policy holder of Reliance Life Insurance Co. Ltd. of the O.P , vide his policy no. 15625418 and Client ID no. 72361065 . The complainant submitted all relevant documents along with the policy before the O.P and prayed for surrendered value of his policy , but no payment was made by the O.P to the complainant. Persuasions after persuasions have also ended in smoke and,therefore, the complainant has filed the instant case ,praying for issuing an order directing the O.P to refund the amount paid by the complainant to the tune of Rs.15000/-for mental agony and harassment caused to him by the O.P. Hence, the case.
The O.P has been contesting the case by filing written statement ,wherein it is contended inter alia that the complainant only paid three yearly premiums of Rs.5000/- each and thereafter he defaulted in payment of premiums and, therefore, the policy was terminated when the policy was not revived by the complainant within the revival period. It is further submitted by the O.P that the cheqe amounting to Rs.11,919.42 bearing cheque no.726449 has been sent to the complainant for payment of the surrendered value of the policy of the complainant and that the said amount has been credited to the account of the complainant. There is no cause of action and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is there any deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of the complainant. The contesting O.P has also filed evidence on affidavit and the same is kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
The allegation of the complainant is that the surrender value of his policy has not been paid to him by the O.P bank and, therefore, he has filed the instant case, alleging deficiency in service on the part of the O.P bank. On the other hand, the version of the O.P Bank is that a sum of Rs.11,919.42 has been paid to the complainant by way of cheque bearing no.726449 and that the said amount has also been credited to the account of the complainant. To prove the version , the O.P bank has filed a copy of the said cheque and also a copy of the certificate issued by the presenting Bank of the complainant.
The complainant has also filed a copy of his bank passbook bearing account no.0295010117852 to prove that no money has been credited to his account as the surrendered value of the alleged cheque issued by the O.P.
A perusal of the copy of the cheque bearing no.817765 reveals that the cheque of Rs.11,919.42 dated 27.3.2015 was issued in favour of one Ananda Halder by the O.P Bank. HDFC Bank is the banker of the O.P. This HDFC Bank has issued a payment confirmation certificate and by this certificate it stands proved that the cheque no. 817765 worth Rs.11,919.42 was presented before HDFC Bank by United Bank of India, Mathurapur Branch, which is the banker of the present complainant. The complainant does not deny that United Bank of India , Mathurapur Branch is his banker. Complainant has filed a copy of his passbook bearing account no.0295010117852 and by filing the copy of this account book, he wants to prove that the said cheque has not been credited to this account of him. A transaction enquiry report ( Xerox ) has also been filed on record by the complainant and from it, it is found that the cheque amount of Rs.11,919.42 has been deposited in account no. 02950107488 of a person in the name of the complainant. It has been argued on behalf of the complainant that the cheque has never been received by the complainant from the O.P Bank and, therefore, the question of the cheque being encashed by the complainant does never arise. The version of the O.P Bank in this regard is that the complainant received the cheque of Rs.11,919.42 from the O.P Bank and deposited the same with his banker i.e the U.B.I , Mathurapur Branch. So, to them, the complainant has encashed the said cheque and the said cheque amount has been credited to the account of the complainant. To prove it, the O.P Bank has relied upon a copy of transaction enquiry report (Xerox ) of account no.02950107488 , from which, it is seen that the cheque amount has been deposited in that account.
The complainant has been harping on the same thing abinitio that he has not received either any cheque or any money from the O.P Bank to the credit of his account maintained in UBI, Mathurapur Branch. The passbook copy of the complainant, which has been filed on record by the complainant, also goes to establish that no such amount of Rs.11,919.42 has been deposited to that account of the complainant. In the facts and circumstances of the case, we are of the opinion that the burden of proof lies on the O.P Bank and the O.P Bank will have to prove that the cheque which they issued in the name of one Ananda Halder was handed over to Ananda Halder i.e the complainant of this case. But, no evidence whatsoever has been produced by the O.P Bank on record to prove that such cheque was made over to none but the instant complainant.
It is normal human conduct that the bank must get the signature of the complainant while making over the cheque to him. That document of acknowledgement would have served the purpose of the O.P Bank and would have been regarded as the best evidence to prove that the cheque was actually dispatched to the complainant by the O.P Bank. In absence of such a vital document to be produced by the O.P Bank, we feel constrained to say that the O.P Bank has hopelessly failed to discharge the burden of proof. They have not also been able to prove that the cheque was ever delivered to the complainant ,nor have they been able to prove that the cheque was dispatched to the complainant by post. Had they been able to produce such document before the Forum, our consideration would have been otherwise. There might be many namesakes of the complainant and mere issue of a cheque in the name of complainant does not prove that the cheque issued in his name was handed over to him. If the cheque is handed over to a person bearing the identical name of the complainant and having bank account in the bank of the instant complainant, the complainant cannot be held in blame for negligence on the part of the O.P Bank.
Regards being had to all these facts and circumstances of the case, we do feel to say that the cheque was never delivered to the complainant by the O.P Bank and, therefore, the O.P Bank is still liable for payment of the cheque amount to the complainant.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P Bank with a cost of Rs.5000/-.
The O.P Bank is directed to make payment of Rs.11,919.42 to the instant complainant with an interest @ 5% p.a from 27.3.2015 i.e the date of issue of the earlier cheque dt. 27.3.2015 till full realization thereof, within a month of this order, failing which, the cheque amount i.e Rs.11,919.42 and also the cost amount as referred to above will bear interest @8% p.a from 27.3.2015 till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
