IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 46/10 DATED 23.06.2010<br /> ORDER<br /> <br /> Complainant B. Puttaswamy, Ganadalu Village and post, Dudda Hobli, Mandya Taluk, Mandya District.<br /> <br /> (By Sri. K.N.N., Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. Bajaj Allianz Life Insurance Co., Ltd., Registed office, G.E. Plaza, Airport Road, Yashawada, Pune-411006.<br /> 2. The Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Mythri Arcade 1st Floor, Kantharaja Urs Road, Saraswathipuram, Mysore-570009. <br /> (By Sri. A.K.J., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 10.02.2010<br /> Date of appearance of O.P. : 25.02.2010<br /> Date of order : 23.06.2010<br /> Duration of Proceeding : 3 Month 29 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. The complainant has filed the complaint Under Section 12 of the Consumer Protection Act, alleging deficiency in Insurance Service on the part of the opposite parties seeking direction to pay compensation of Rs.5,00,000/- and cost of the proceedings.<br /> <br /> 2. Opposite parties in the version have contended that, the cheque which the complainant had issued towards one time premium, returned un-encashed. Hence, the policy has been cancelled.<br /> <br /> 3. In support of his claim, the complainant has filed his affidavit and produced certain documents. On the other hand, the Branch Manager has filed his affidavit and produced certain documents. We have heard the arguments and perused the records.<br /> <br /> 4. The point for our consideration is that, whether the complainant has proved any deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought.<br /> <br /> 5. Our finding on the point is partly in affirmative for the following reasons.<br /> <br /> REASONS<br /> 6. According to the complainant, on 23.12.2006, he took Insurance Policy of the opposite party in the name of his daughter J.P. Nandhini. It was one time premium payment policy. Through a cheque premium of Rs.25,000/- was paid. Policy along with all necessary documents were sent to the complainant. On 25.05.2009, after about 2 years, opposite party informed the complainant that, the cheque has not been encashed. Cheque was not returned. On 17.06.2009, complainant received one more letter stating that, on account of non payment of the premium, policy has been cancelled.<br /> <br /> 7. Certain facts noted in the above paragraph are admitted by the opposite parties in the version. The opposite parties have contended that, the cheque was sent for clearance through the banker of the opposite parties and they received an endorsement on 25.05.2009 to the effect that, the cheque has not been encashed and that was informed to the complainant stating that, for the said reason policy has been cancelled.<br /> <br /> 8. At the cost of the repetition, contentions of the opposite parties is that, the cheque has not been encashed. It is true, it is not the case of the complainant that, the cheque has been encashed and opposite parties have received the amount of the cheque towards the one time premium of the policy. But, it is relevant and important to consider that at whose fault it has happened. <br /> <br /> 9. Admittedly, in the year 2006 itself, complainant took the policy of the opposite parties in the name of his daughter and towards one time premium, cheque, for Rs.25,000/- was issued. Accordingly, the opposite parties sent the policy along with necessary documents to the complainant. In the year 2009, the opposite parties raised objections that the cheque has not been encashed and ultimately, policy has been cancelled. From 2006 to 2009, the opposite parties kept quite despite the fact that, they had issued policy along with necessary documents. Hence, at the out set, there is quite silence on the part of the opposite parties for such a long period. It is but natural that, the complainant having given the cheque towards the premium and also having received the policy with necessary documents, may not go on making enquiry as to whether the cheque has been encashed or otherwise.<br /> <br /> 10. In the version, opposite parties have contended that, the amount covered by the cheque has not been encashed and issuance of cheque without taking sufficient funds in the account is an offence. Firstly, that is not correct and further more, Section 138 of the Negotiable Instrument Act, would be attracted only after complying certain conditions including dishonour of the cheque. It is not at all the case of the opposite parties that, the cheque that the complainant had given has been dishonored for want of funds in the account. On the other hand, the complainant has produced his statement of account of the Bank and it is submitted that, through out, there was balance in the account to honour the cheque<br /> <br /> 11. For the opposite parties, it was argued with reference to the receipt, that it has been received subject to realization of the amount of the cheque. But, it is to be noted that for non-realization of the cheque amount, who is at fault. From the material on record, no fault on the part of the complainant has been established. Though vaguely opposite parties contended in the version that, issuance of cheque without sufficient fund in the account is an offence, absolutely there is no material on record to show that, said cheque has been bounced for funds insufficient in the account.<br /> <br /> 12. On the other hand, from the letter of the opposite parties addressed to the Manager, Mandya branch, copy of which is on record, it can be seen that, there is an endorsement of the Bank to the effect that “The cheque was not yet presented to the Bank”. Said endorsement is done by the officer of the Bank on 15.06.2009. Hence, from that document, it is clear that, till 15.06.2009, the cheque that the complainant had given towards the premium was not presented by the opposite parties for encashment. When opposite parties did not present the cheque to the Bank, for encashment, it is their negligence and absolutely no fault with the complainant could be found.<br /> <br /> 13. By the letter dated 18.06.20029, opposite parties informed the complainant that, the cheque has been dishonoured by the bankers due to the reason loss in transit. Firstly as stated in the said letter, to prove that the cheque has been lost in transit, there is no cogent evidence on record and secondly, loss of cheque in transit cannot be termed as dishonour of the cheque. If at all, as contended by the opposite parties the cheque was lost in transit, the opposite parties could have very well informed the complainant of the loss of the cheque requesting either to issue fresh cheque or to pay the amount of the cheque. That has not been done by the opposite parties. By the said letter, it is stated, the receipt issued in favour of the complainant has been reversed. By that letter, the opposite parties requested the complainant to make fresh payment. As noted above, in the letter addressed by the opposite parties to the Bank the cheque was not presented to the Bank, for realization till 15.06.2009. There is one more endorsement of the Bank with the seal stating “received” and the date is mentioned as 25.08.2009. It appears, said endorsement is in respect of the receipt of the letter from the opposite parties by the Bank. In spite of these facts and the circumstances, the opposite parties have cancelled the policy, for no fault of the complainant, but for their negligence.<br /> <br /> 14. It is claimed by the complainant that, he is an agent of the opposite party Insurance Company and since the policy has been cancelled, for future life of his daughter there is not security. Coming to know the cancellation of the policy, general public are not approaching him to get the policy. Hence, the complainant has claimed compensation of Rs.5,00,000/-, towards mental agony etc.,. It is fact that, the cheque amount has not been received or realized by the opposite parties. However, as noted above, it is not on account of fault or mistake on the part of the complainant, but on account of negligence on the part of the opposite parties. The circumstances establish negligence on the part of the opposite parties. Taking into consideration the facts and the material on record, though the complainant is not entitled for policy amount avoiding of awarding compensation, is just and necessary. Accordingly, following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. Both the opposite parties jointly and severally are hereby directed to pay a sum of Rs.10,000/- to the complainant as compensation towards mental agony and inconvenience caused, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% p.a.<br /> 3. Further, opposite parties to pay a sum of Rs.1,000/- to the complainant towards, cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd June 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />