Sri Shyamal Gupta, Member

Both the Appeals being nos. FA/1385/2013 and FA/22/2014 arise out of the common Order dated 25-11-2013 passed by the Ld. District Forum, Kolkata-II (Central) in C.C. No. 250/2011.  Since the facts and circumstances of both these Appeals arise out of the same cause of action, both the Appeals are taken up together for the purpose of brevity of discussion.

Case of the Complainant, in a nutshell, is that he is a credit card holder of the OP No. 1 bank.  At the insistence of the OP No. 1, he took an insurance policy from the OP No. 2 with an understanding with the OP No. 1 that requisite premium in respect of the concerned insurance policy would be debited from the Complainant’s credit card account.  Allegedly, within eight months of taking the said credit card, the Complainant noticed several anomalies in the statements issued by the OP No. 1 from time to time.  On due enquiry, the Complainant came to know that the OPs, in connivance with each other, opened 16 nos. insurance policies in his name and debited the premium amounts of said policies to his credit card account.  It is also the case of the Complainant that save and except Policy No. CEE0019797000100 dated 23-12-2009, he did not give consent for issuance of any additional insurance policy to the OPs.  The Complainant though lodged strong protest with the OPs in this regard, instead of redressing his grievance, the OP No. 1 debited a further sum of Rs. 16,301/- to his credit card account.  As ill luck would have it, the misery of the Complainant did not end here.  The Complainant again received an email from the OP No. 1 stating that a sum of Rs. 64,829/- had been debited to his credit card account and so, the Complainant lodged complaint with the OP No. 1 through e-mail dated 30-10-2010.  The OP No. 1, allegedly, instead of complying with his instruction, kept on debiting his credit card account toward premiums of illegally issued policies.  Hence, the complaint.

OP No. 1 contested the case by filing WV.  It is stated by this OP that insurance policies were issued to the Complainant on the basis of his consent  and the matter of such telephonic nod was confirmed to the Complainant in writing subsequently.  According to this OP, since the insurance policies were issued by the OP No. 2, the authority to cancel the same vested with the OP No. 2.

By submitting WV, it is stated by the OP No. 2 that the OP No. 1, for the benefit of its customers, avails group insurance policies in respect of its credit card customers by remitting premiums in respect thereof to this OP.  In this case, this OP issued mediclaim and personal accident policies at the behest of the OP No. 1 upon getting remittance from it.  It is claimed by this OP that the Complainant himself voluntarily took the insurance policies.  It is submitted that the Complainant did not pay the credit card dues to the OP No. 1 and therefore, in order to evade the credit card dues, filed the complaint.  Wondering as to why the Complainant did not directly approach it for cancellation of the policies, this OP prayed for dismissal of the complaint.

Decision with reasons

Heard the Ld. Advocate of the parties and perused the material on record carefully.         

The dispute primarily revolves over issuance of unsolicited mediclaim/accidental insurance policies in the name of the Complainant.  On one hand, it is claimed by the OP No. 1 that based on the verbal telephonic consent of the Complainant, all the policies were issued; on the other, the Complainant vehemently denied such fact.

Whether or not the Complainant gave his consent towards issuance of the disputed policies is anybody’s guess.  It is though asserted by the OP No. 1 that acting bona fide, it issued all the policies; for some obscure reasons, the OP No. 1 has refrained from tendering affidavit from any of the concerned officials to whom the Complainant expressed his desire to have those policies. 

It seems, the OP No. 1 put all eggs in one basket to drive home its contention. Drawing notice to the Voice Consent Confirmation letters, it sought to establish that the policies were issued purely based on the telephonic consent of the Complainant.  However, in doing so, the OP No. 1 conveniently overlooked the fact that the Complainant lodged complaints with the OP No. 1 immediately after receiving those letters and asked it to cancel the disputed policies.  Such promptitude on the part of the Complainants, no doubt, put a strain on the veracity of the claim of the OP No. 1.

That apart, it appears from the petition of complaint that 16 nos. Accident Shield/Hospital Cash Insurance Policies were issued within a span of just 8 months.  It defies logic, why one would opt for so many policies instead of opting for just one or two such policies for better management.

While current market practice for medical/accidental insurance policies nowadays is to insist on filling up the proposal forms and more so, while the Complainant is a well educated person, it is unbelievable that despite being a person of reasonable prudence, he did not weigh the potential hazards of error/mistake while recording personal details over phone on account of miscommunication. 

Finally, in case the Complainant indeed eagerly opted for the disputed policies, he would certainly not turn so critical/vocal within few days of giving his consent to the same.  Significantly, he has not disowned the fact that he voluntarily opted for the Policy No. CEE0019797000100.  Therefore, why he would sing a different tune in respect of the disputed policies is not at all understandable.  

On a thoughtful consideration of the pros and cons, as noted hereinabove, we see no cogent ground to accept the rationale put forth by the OP No. 1 behind issuance of so many policies in the name of the Complainant.  Rather, on careful scrutiny of the material on record there seem plenty of reasons to suspect that the Complainant was made a scapegoat by the OP No. 1, who adopted unfair trade practice for the sake of achieving its business target. 

That being the emerging position, by directing to refund the premium amount, to our mind, the Ld. District Forum committed no jurisdictional error. As for other awards, it appears that the Ld. District Forum placed both the OPs on an equal footing while holding them liable to pay litigation cost and compensation.  However, it seems, the OP No. 2 merely acted at the behest of the OP No. 1.  Since whatever manipulation had been done in the matter of issuance of the disputed policies, the OP No. 1 was fully responsible for the same, we feel, gross injustice would be meted out towards the OP No. 2 if it is asked to bear the brunt of the misdeed of the OP No. 1. However, since the premium amounts have been remitted to the OP No. 2, we think that it would be just and proper to direct it to refund the same to the Complainant.  Further, it appears that the Ld. District Forum has also directed OPs to pay some other charges as well although the same appear  quite incompatible in the facts and circumstances of the case.  Accordingly, we are inclined to modify the impugned order to some extent as under.

The Appeals, thus, succeed in part.

Hence,

O R D E R E D

That the Appeals be and the same are allowed in part on contest.  The impugned order is modified as under:

OP No. 2 shall refund Rs. 1,80,425/- to the Complainant within 45 days from this day together with simple interest @ 9% p.a. over this amount w.e.f. 08-11-2011 till full and final payment is made.  OP No. 1 shall pay a sum of Rs. 50,000/- as compensation and another sum of Rs. 10,000/- as litigation cost to the Complainant within 45 days hence.  In case of non-compliance of this order by the OP No. 1 within the aforesaid stipulated time frame, this OP shall be liable to pay interest @ 9% p.a. over the sum of Rs. 50,000/- for the entire period of default.

The original copy of this order be kept in the case record of FA/1385/2013 and photocopy thereof in the case record of FA/22/2014.

Let the LCR be sent to the Ld. District Forum at once together with a copy of this order.