Punjab

Hoshiarpur

CC/14/56

Kulwant Singh - Complainant(s)

Versus

Aviva Life Insurance Company Limited - Opp.Party(s)

Sh. Pardeep Kumar Julka

21 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM HOSHIARPUR

(3RD FLOOR, DISTRICT ADMINISTRATIVE COMPLEX, HOSHIARPUR)

 

 

C.C. No. 56/18.03.2014

Decided on : 21.01.2015

 

Kulwant Singh aged 56 years son of Chanan Singh, resident of VPO Muggowal, Tehsil Garhshankar, District Hoshiarpur, through his attorney Jaspal Singh son of Gian Singh r/o New Gurnam Nagar, Sultan Wind road, Amritsar.

Complainant

Vs.

1. Aviva Life Insurance Company Limited through its General Manager Head office Aviva Tower Sector Road, Opposite Golf Course, DLF-Phase-V, Sector-43, Gurgaon- 122003.

2. HDFC Bank through its Branch Manager, branch Chandigarh Hoshiarpur Road, Mahilpur, District Hoshiarpur.

Opposite parties

Complaint u/s 12 of the Consumer Protection Act, 1986.

 

Quorum: Sh. Ashok Kumar,President.

Mrs. Sushma Handoo,Member.

 

Present: Sh.Pardeep Kumar Julka , counsel for the complainant.

Sh. Rohit Joshi, counsel for the OP No.1.

Sh.Y.P.Piplani, counsel for OP No.2.

 

ORDER

PER ASHOK KUMAR, PRESIDENT

1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act,1986 against Aviva Life Insurance Company Limited through its General Manager and another (hereinafter referred to as OP No.1, OP No.2 respectively, for short) praying for a direction to the OPs to pay the matured sum/fund value of the insurance policy to the tune of Rs. 2,50,000/- along with interest on the said amount and another sum of Rs. 50,000/- as damages due to inconvenience, harassment and frustration suffered by the complainant besides costs of litigation .

2. Briefly stated, the case of the complainant is that he is resident of village Muggowal and is NRI. Now-a-days, he is residing in Switzerland and has appointed Shri Jaspal Singh as his attorney who is fully conversant with the facts of the complaint and is duly authorized to file the same. It is averred that the complainant is having his joint bank account with his wife bearing No. 14351060002320 with the OP No.2. The complainant came to India in the month of January 2009 and visited the branch of OP No.2 where the officials of the OP No.1 were present and they allured the complainant to get insurance policy in his name and in the name of his wife. Accordingly, the complainant purchased insurance policy of Rs. one lac in the name of his wife and another policy in his name for Rs. 50,000/- on 24-1-2009 . Thereafter, the complainant went to Switzerland. The policy was purchased by the complainant in his name and the amount of premium of Rs. 50,000/- was deducted from account No. 123201000016603 of his wife with OP No.2 . At the time of purchasing the policy, the officials of the OP obtained all the necessary documents from the complainant. Hence, the complainant is a consumer of the OP. At the time of purchasing the policy cross cheques of the account of the complainant were taken by OP No.1 and they used to deduct the amount of the premium regularly from the joint account of the complainant with OP No.2 bearing No. 14351060002320. It is further averred that the complainant visited India on 25th December, 2013 and after that he visited the office of OP No.2 and requested it to let him know the status and fund value of the policy . He however was stunned to know that the insurance policy of the complainant was shown to have been got withdrawn by him though he never withdrew or surrendered the insurance policy . On further enquiry, it was revealed that officials of the OPs in connivance with each other had got encashed the policy of complainant by impersonating some other person. The complainant requested the OPs many a times to give matured amount/ fund value of the insurance policy purchased by him but to no use. Thus, there is deficiency in service on the part of the OPs. The complainant is entitled to the relief claimed as stated at the outset of this order.

3. On notice, OP No.1 filed amended contested written statement taking routine preliminary objections besides stating that complainant is not its consumer . On merits, it is denied that the complainant was allured to purchase the policy. It is replied that as per the record of answering OP, Kulwant Singh s/o Joginder Singh proposed for the insurance policy and on the basis of proposal form, the OP issued policy with date of commencement as 30.12.2009 . It is denied for the want of knowledge that after purchasing the policy, the complainant went to Switzerland. It is further replied that as per the proposal form submitted by the insured, he disclosed his work detail as Army Ex-Serviceman and appointed his mother Smt. Charan Kaur as nominee under the policy. It is totally denied that the policy bearing ALS2850265 was purchased by complainant and against the said policy, Rs. 50,000/- were deducted from the account of the wife of complainant. As per the proposal form DD bearing number 715524 was deposited by Kulwant Singh s/o Joginder Singh at the time of proposing for Insurance Policy. It is replied that as per the record of the OP, Kulwant Singh s/o Joginder Singh paid four premiums under the policy. First premium was paid on 24.12.2009 and thereafter the policy was lapsed and the same was reinstated on 17.02.2011. The policy was again lapsed and was again reinstated on 21.03.2012. Thereafter, the cheque bearing number 63914 dated 01.04.2013 was given but the same was dishonored due to insufficient funds . Still thereafter, the said premium was paid through demand draft and as such there was no occasion for OP to collect the advance post dated cheque from the complainant or his wife. It is further replied that as per the record of OP, Kulwant Singh s/o Joginder Singh, Policy Holder made a request for surrender of his policy bearing ALS 2850265 and he submitted the cancelled cheque, latest account statement duly attested by Bank official, request form for pay-out policy and Pan Card. After getting the request to surrender the policy, an amount of Rs. 1,22,741/- was transferred in his bank account submitted to the OP. It is denied that the complainant visited the replying OP in the month of December, 2013. It is further denied that the surrendered amount was not transferred in the account of policy holder. It is replied that in this way, there is no deficiency in service on the part of answering OP. The complaint against it is liable to be dismissed with costs.

4. OP No.2 filed a separate written reply taking preliminary objections that allegations of impersonation and cheating have been made in the complaint so, the same is not maintainable and that the complainant is not the consumer of OP No.2. On merits, it is replied that the answering OP or its predecessor has nothing to do with the issuance of policies by OP No. 1 in favour of the complainant or his wife. It is admitted that the requisite forms were filled by the representatives of OP No. 1. It is replied that only the SB accounts of the complainant and his wife were debited/ credited as per their advice. The fact of maintenance of accounts by the complainant and his wife with replying OP is admitted. It is further replied that the claim, if any, of the complainant is against OP No. 1 and not against OP No. 2. The employees of OP No. 2 have nothing to do with the alleged encashment of the policies. Therefore, there is no deficiency in service on the part of OP No. 2. The complaint against replying OP deserves dismissal with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence affidavits of Jaspal Singh, attorney of complainant Ex. C-1,C-15 cheque Mark C-2, proposal letters Ex.C-3, Ex. C-4, Premium receipt Ex. C-5, policy account statement Ex. C-6, intimation letter Ex. C-7, premium receipt Ex. C-8, confirmation letter Ex. C-9, intimation of surrender of policy Ex. C-10, bank statements Ex. C-11 to Ex. C-13, photocopy of passport Mark C-14, copy of register Ex.C-16, copy of education proof Ex. C-17, special POA Ex.C-18 and copy of passport Mark C-19 and closed the evidence.

6. In order to rebut the evidence of the complainant , the OP No.1 tendered in evidence affidavit of Vivek Yadav Ex. OP-1/1, copies of - insurance policy Mark OP1/2, I-card of Ex-serviceman Ex.OP1/3, election voter card Ex.OP1/4, declaration Mark OP1/5, letter Mark OP1/6, proposal docket Mark OP1/7, para military questionnaire Mark OP1/8, letter Mark OP1/9, request form for payment Mark OP1/10, schedule Mark OP1/11, Pan Card Ex.OP1/12, cancelled cheque Mark OP1/13, bank statement Mark OP1/14, terms and conditions Mark OP1/15 and closed the evidence. OP No.2 tendered in evidence affidavit of Gurpreet Singh Ex. OP-2/1 and closed the evidence.

7. We have heard learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

8. Learned counsel for the complainant has vehemently argued that the complainant had purchased a policy No. ALS2850265 from the OP No.1 and a sum of Rs.50,000/- was deducted in this connection from the account of the wife of the complainant. Further premiums were realized through crossed cheques of the complainant from joint account of complainant with his wife with OP No.2. However, when the complainant visited India on 25th December, 2013 and approached office of OP No.2 and requested it to let him know the status and fund value of the policy, he was stunned to know that the surrender value under the insurance policy in question was shown to have been withdrawn by him though he never withdrew any amount or surrender value under the insurance policy . On further enquiry, it was revealed that officials of the OPs in connivance with each other had got encashed the policy of complainant by impersonating some other person. Therefore, the complainant is entitled to the relief claimed as set out at the outset of this order.

9. Learned counsel for the OP No.1 has however repelled the aforesaid contentions of the learned counsel for the complainant on the ground that as per the record of OP No.1, the insurance policy in question was issued in the name of Kulwant Singh s/o Joginder Singh on the basis of proposal form with date of commencement as 30.12.2009 and not in the name of the complainant. It is totally denied that against the said policy, Rs. 50,000/- were deducted from the account of the wife of complainant. On the contrary, as per the proposal form, DD bearing number 715524 was deposited by Kulwant Singh s/o Joginder Singh at the time of proposing for Insurance Policy in question. It was he who paid four premiums under the policy. First premium was paid on 24.12.2009 and thereafter the policy was lapsed and the same was reinstated on 17.02.2011. The policy was again lapsed and was again reinstated on 21.03.2012. Thereafter, the cheque bearing number 63914 dated 01.04.2013 was given but the same was dishonored due to insufficient funds . Still thereafter, the said premium was paid through demand draft and as such there was no occasion for OP to collect the advance post dated cheque from the complainant or his wife towards further premiums. It is further contended that as per the record of OP No.1, Kulwant Singh s/o Joginder Singh, Policy Holder made a request for surrender of his policy and he submitted the cancelled cheque, latest account statement duly attested by Bank official, request form for pay-out policy and Pan Card and thereafter, an amount of Rs. 1,22,741/- was transferred in his bank account submitted to the OP. Complainant is not a consumer of OP No.1. The complaint against it is liable to be dismissed with costs.

10. Ld. Counsel for the OP No.2 has argued that the complainant and his wife have joint bank account bearing No. 14351060002320 and his wife has account no. 123201000016603 with the replying OP .Only the SB accounts of the complainant and his wife were debited/ credited as per their advice . The employees of OP No. 2 have nothing to do with the alleged encashment of the policy. It is further contended that the claim, if any, of the complainant is against OP No. 1 and not against OP No. 2. The complaint against replying OP deserves dismissal with costs.

11. We have anxiously considered the rival contentions in the light of evidence on record.

12. A bare perusal of correspondence of OP No.1 with the complainant vide letters dated 4.1.2010 Ex.C-3, 21.3.2012 Ex.C-4, renewal premium receipt 21.3.2012 Ex.C-5, policy account statement Ex.C-6, intimation of return of instrument dated 8.1.2013 Ex.C-7, renewal premium receipt dated 28.1.2013 Ex.C-8, contact detail information dated 5.3.2013 Ex.C-9 and intimation regarding request for surrender of policy dated 3.7.2013 Ex.C-10 would show that company had been in touch with the complainant in respect of policy no. ALS2850265 in question. All the aforesaid documents have been produced by the complainant in original further to confirm the aforesaid position. The statement of account Ex.C-11 of joint account no. 14351060002320 of complainant also vouch payment of premiums to the OP No.1 by the complainant. On the contrary, OP No.1 failed to produce the record in respect of payment of premiums by alleged Kulwant Singh son of Joginder Singh as per their stand in para nos.2 and 3 of amended written statement on merits. From a copy of sale deed Mark C-16 identity of complainant from his photograph being son of Chanan Singh is established. However, OP No.1 failed to produce original documents in spite of a specific direction to it in this behalf vide jimni order dated 17.11.2014. Therefore, no value can be pinned with the photocopies produced by the OP No.1 . Such like evidence is of frail character possibility of which being manipulated cannot be ruled out. In Kuwait Airways Corporation vs. Rajagopal & Company & Others 2014(3) CLT 340, Hon'ble National Commission has held that due to lack of submission of original documents no benefit to the concerned party can be given. In our considered opinion, due to withholding of original record by the OP No.1, an adverse can be drawn that in case it had produced the original record more particularly proposal form, the same would have gone against it . Such position is further confirmed from the conduct of OP NO.1 as originally it failed to produce any evidence . It was only when the complaint was fixed for remaining arguments vide jimni order dated 29.10.2014 that it filed application for additional evidence and produced on record only photocopies of the documents . Thus, in view of the position as stated above , OP No.1 failed to establish and prove its stand that it has already paid surrender value to the policy holder of policy no. ALS2850265.

    As a sequel to our above discussion, complainant is found entitled to the fund value instead of assured amount of Rs.2,50,000/- asked for as the policy is yet to be matured . However, as per policy account statement of OP No.1 Ex.C-6, the fund value has been shown as Rs.1,77,012.16 as on 7.1.2013. So, the complainant is entitled to that amount with interest besides costs for avoidable litigation to which the complainant has been unnecessarily put by the OP No.1. However, no case against OP No.2 is made our or proved.

13. In view of our above observations and findings, the complaint filed by complainant is partly accepted with a direction to OP No.1 to pay Rs.1,77,012.16 with interest @ 9% per annum from 7.1.2013 till realization alongwith Rs.10,000/- as litigation costs within a period of 30 days from the receipt of copy of this order . Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Announced.

21.01.2015

 

(Mrs. Sushma Handoo) (Ashok Kumar )

Member President

SS