Date: 25-05-2015

Sri Debasis Bhattacharya

            Case of the Complainant, in short, is that on being persuaded by the OP No. 6, an employee of the OP No. 1, he took a policy, namely, ‘BA New Unit Gain – Easy Pension Plus SP” bearing no. 0115385207 of Bajaj Allainz Life Insurance Company Ltd. with an initial investment of Rs. 99,500/- on 10-12-2008.  The date of commencement of the said policy was 17-12-2008.  The Complainant was then showed the ‘Top-up’ facility in the said policy and attracted by the same, he invested another sum of Rs. 3,00,000/- in the said policy as top-up.  Subsequently, he invested diverse amounts for a total sum of Rs. 48 lakhs on different dates as per the advice of the OP No. 6.  He was advised by the OP No. 6 to pay the top-up value in cash for quick processing and since the OP No. 6 was the Additional Branch Manager of the OP No. 1, taking such advice in good faith, he paid most of such top-ups either by cash or by self cheques.  In August, 2009, while checking the details of the investments made by him on the official website of Bajaj Allainz Life Insurance Company, he found that only a sum of Rs. 99,500/- was shown against his name, which was initially invested by him in respect of the said policy.  Taken aback, he immediately made contact with the Tollygunj branch of the OP Insurance Company, but the officials of said office could not give any satisfactory reply and declared the receipts shown by him as forged.  So, he met the OP No. 6, who told him that the OP No. 1 did not reveal the actual state of affairs to him and assured that the Complainant would get back all his money.  He also executed an undertaking to the effect that Rs. 48 lakhs would be refunded by the Bajaj Allainz Life Insurance Company through an account payee cheque.  Thereafter, when the Complainant again went to the concerned branch of the OP No. 1 for further steps, he was informed that the OP No. 6 had resigned. He lodged an FIR on 15/16-09-2009 with the Lake Police Station and a formal FIR was registered u/s 420/1208/467/468/471/471A, IPC, against the OP No. 6 being the employee of the OP No. 1.  He also wrote a letter to the OP No. 4 on  18-09-2009 demanding immediate refund of Rs. 48,99,500/- from the OP No. 1 company.  Since no reply was accorded, another letter was sent to the OP No. 5 on 12-10-2009.  As any reply to his repeated letters were still hard by, he sent a legal notice to the OPs on 04-01-2010, but to no avail.  Hence, the instant case.

            OP Nos. 1 to 5 have contested the case by filing W.V. stating inter alia that the Complainant is not a ‘consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.  For fraud and other penal provisions, the Complainant has already approached the Investigating Authorities by way of an FIR which is still pending before the Court and is sub-judice.  The entire contention of the Complainant is with regard to the presumption of the receipt of money by the Company.  The issue is already sub-judice as the FIR has already been filed against the OP No. 6.  Therefore, there cannot be any deficiency in service by the other OPs.  The OP No. 6, in collusion with certain other persons, had purported to defraud the OP No. 1 and some of its customers.  The Complainant obtained a Bajaj Allianz New Unit Gain Easy Pension Plus SP Policy of a value of Rs 99,500/-.  In view of the fact that a premium was already paid by the Complainant at the time of initiation of the policy, a first premium receipt dated 17-12-2008 was forwarded to the Complainant by the OP No. 1.  The policy is in the nature of a single premium and a policyholder is entitled to enhance the value of the policy and the benefits accruing therein at any time by investing further sums as top-up.  The Complainant, based on certain forged, fabricated documents, claimed that he has enhanced the top-up under the said policy. The letterhead used for printing such documents as a receipt is not of the OP No. 1 and the stamp used is also not of the OP No. 1.  Such top up/enhancement has never been received by the OP No. 1 and it is not accounted for in the records of the OP No. 1.  The Complainant is also incorrectly relying upon an affidavit purported to have been signed by the OP No. 6.  This affidavit is apparently obtained by the Complainant in collusion with the OP No. 6 for the purpose of prejudicing the OP No. 1.  Even from the bare perusal of the contents of the complaint made by the Complainant to the police, it can be prima facie clear that all allegations and statements have been directly made against the Respondent No. 6.  The Police are still investigating the issue.  It is only after detailed investigation of serious nature that the actual situation shall come to light.  At no point of time has the Complainant raised any grievance with the Company prior to the filing of the FIR by the Complainant.  The purported payments which have been relied upon are made directly to the OP No. 6 and not to the OP No. 1.  The Complainant is an educated and experienced person.  No prudent man or reasonable person would make payment in favour of the OP No.1 by banking instrument drawn personally in the name of the employee of the OP No. 1.  The Complainant has at no point of time made any top-up request to the OP No. 1.  It is very clear that to make any kind of transaction under the policy or change in the policy, the customers are required to make a specific request to the Insurer.  The Branch Manager does not have the duty of collecting or issuing cash receipts.  This is not his duty as per the guidelines of the OP No. 1.  The Branch Manager cannot issue any receipt as evident from the receipts issued by the Company, which are computer generated and the Complainant was well aware of the same, as he had been issued a receipt when he had taken a policy from the Company. 

            Both sides adduced evidence under affidavit and submitted reply to the questionnaire put forth by the other side.   However, none of the parties has placed on record any original document. 

Points for consideration

            On the basis of oral pleadings of Ld. Advocates and perusal of documents on record, the following points are framed for proper adjudication of the dispute.

1.   Whether the instant petition of complaint is maintainable under the Consumer Protection Act, 1986?

2.   Whether there is any deficiency in service on the part of the OPs?

3.   Whether the Complainant is entitled to any relief?

Decision with reasons

Point No. 1:

            Ld. Advocate for the OP Nos. 1 to 5 has submitted that when the stratum of the entire complaint is based upon the presumption of receipt of money by the Company, but there is nothing to prove otherwise and the issue being sub-judice before the Criminal Courts, there is and cannot be a ground for deficiency in service by the OP No. 1 and hence the present complaint is not maintainable in law as well as in facts.  Consumer Forum is not the right place to agitate dispute related to fraud.  The Complainant has to seek redress for such offences and consequential damage before the appropriate Court of Law under the appropriate law.  Cheating cases cannot be adjudicated by a Consumer Forum and as such, the instant case be dismissed being not maintainable.  In support of his contention, the Ld. Advocate has referred to two decisions of the Hon’ble National Commission reported in I (1992) CPJ 41 (NC), and II (2002) CPJ 62 (NC), a decision of Karnataka State Commission reported in I (1996) CPJ 283 and another decision of Bihar State Commission reported in III (1996) CPJ 328.

            Ld. Advocate for the Complainant vehemently opposed such contention of the OP Nos. 1 to 5 stating that pendency of criminal case is no bar to file a consumer case since the nature of relief sought for under such cases are completely different from each other.  Undisputedly, he is a bona fide consumer under the OP Insurance Company.  Therefore, in case of any deficiency in service on the part of the service provider, as  has happened in this case, he is well within his right to seek redressal of his grievance before a Consumer Forum and as such, no legal infirmity has been committed in filing of the present case before this Commission.

            Undisputedly, the Complainant took a policy under the name and style, ‘Bajaj Allianz New Unit Gain Easy Pension Plus SP Policy’ floated by the OP No. 1 by paying a sum of Rs. 99,500/-.  Therefore, in terms of Sec. 2(1)(d), he is a bona fide ‘consumer’ under the Consumer Protection Act, 1986. 

            The instant case has been filed by the Complainant over non-refund of alleged deposited money as per demand notice issued by him to the OP No. 1.  While it is the undisputed position of this case that the policy conditions do give liberty to the Insured for premature withdrawal of deposited money against such policy, Consumer Forum is fully empowered to adjudicate a dispute arising over non-refund of alleged deposited money.  Thus, there is no infirmity with the instant petition of complaint being moved by the Complainant.

            This point is, thus, decided in favour of the Complainant.

Point Nos. 2 & 3:  

            Both these points are taken up together for the purpose of brevity of discussion.

            Ld. Advocate for the Complainant has contended that when the Complainant got positive feedback about the OP No. 6, who was working as an Additional Chief Branch Manager of the OP Insurance Company, from other employees of the said Company during his visit to branch office of  the Insurance Company, he did not find any reason to suspect his sincerity of purpose.  Therefore, on being approached by the OP No. 6 to invest money with the Company, he took the instant policy with a down payment of Rs. 99,500/-.  Thereafter, he continued to add top-ups as per the advice of the OP No. 6 for a total sum of Rs. 48,00,000/-.  Subsequently, while checking his investment details from the website of the OP No. 1 Company, he found that it was showing only the meagre balance of Rs. 99,500/- that was initially deposited by him, but there was no trace of rest of the amount.  So, he immediately rushed to the Tollygunj Branch of the OP Insurance Company along with the money receipts.  There he was told by the officials of the Insurance Company that no further amount was credited in his name since the Company did not receive any amount after the initial payment and declared all but the first money receipt, as fake and fabricated.  Out of his wits end, he met the OP No. 6, but the latter tried to act smart and asked him not to worry about the money.  As he was not convinced, the OP No. 6 executed an undertaking to the effect that Rs. 48,00,000/- would be refunded by the Insurance Company by account payee cheque.  Thereafter, when he went to the concerned branch of the OP No. 1 for further steps, he was informed by one official that the said employee, i.e., the OP No. 6 resigned from service.  The Complainant, having no other alternative, lodged an FIR.  Although the OP No. 6 has been taken to jail custody and trial is in progress, but that does not relieve the OP Insurance Company of their duty towards the Complainant, they are fully liable and responsible for the illegality committed by the OP No. 6.  Although the Complainant shot several letters to the OP Insurance Company seeking refund of money, till date the latter has not taken any positive action.  In support of his contention, the Ld. Advocate has referred to a decision of the Hon’ble Supreme Court reported in CDJ 1993 SC 1066 and another decision of the Hon’ble National Commission reported in 3 (2006) CPJ 140 NC.

            Ld. Advocate for the OP Nos. 1 to 5, on the other hand, has submitted that the Complainant is fully responsible for the present situation.  It is further stated by the Ld. Advocate that no money has been received by the OP No. 1 from the Complainant as top-up in respect of the policy concerned.  So, there is no question of refunding any money to the Complainant.  The first premium receipt reflects what a premium receipt looks like.  If a reasonable person of ordinary prudence compares the first premium receipt with the purported documents, the difference would be so apparent that such person would understand that the so-called receipts, those were issued by the OP No. 6 against alleged deposit of money by the Complainant are not genuine ones and have not been issued by the OP No. 1.  Any person of reasonable prudence would know that an officer of a multinational company would not issue typed written undertakings on stamp paper on behalf of his employer.  The OP No. 6, even if he had acted in the manner as narrated by the Complainant, was evidently acting beyond the scope of his authority and the Complainant has not and/or ought not to have and/or could not have believed, as a reasonable and prudent person, that the OP No. 6 was acting within the scope of authority.  Even going by the case of the Complainant, the OP No. 1 cannot be held vicariously liable for acts of the OP No. 6, which were evidently his personal acts and not in the course of his duty.  No proof is disclosed by the Complainant that there has been any payment made by the Complainant to the OP No. 1.  When the Complainant instituted criminal proceedings against the OP No. 6 by lodging an FIR dated 16-09-2009, the latter was arrested and the entire situation was revealed.  It is for this reason that the OP No. 1 has not instituted a separate criminal proceeding.  The OP No. 6 has deposited the DD bearing no. 116034 in the account of another policyholder, Mr. Bhabesh Kumar Mandal.  Why should the Complainant, suddenly, decide to look up the internet? Even if he did look up the internet and he did discover what has happened, there is no contemporaneous document before the FIR dated 16-09-2009.  If any wrongdoing, as alleged, did occur, it is most unnatural that the Complainant would not visit any other office of the OP No. 1.  All the payments alleged to have been made by the Complainant to the OP No. 1, apart from the first two payments of Rs. 99,500/- and Rs. 3,00,000/- were not made by cheques favouring the OP No. 1.  Those other payments were either paid by self cheques or cash or payment made to the OP No. 6, which shows collusion between the Complainant and the OP No. 6.  The best evidence withheld by the Complainant is proof of transfer of funds from his own account to that of the OP No. 6 which he could have been established very easily from the bank account statement.  As such, the instant case be dismissed.  He has referred to a decision of the Hon’ble Supreme Court in Civil Appeal No. 2476/1968 in support of his defence.

            It is common knowledge that each and every employee of an organization has to perform specific tasks as set out by the management of the Company.  Differently put, one is required to act according to one’s job profile.  Anyone found doing something that does not fall within the domain of his terms of reference overlapping one’s job profile, no matter whatever rank/position, one is holding in the Company, has got no official sanctity and one would do so at one’s own risks and for peril for such unauthorized act, the management cannot be held responsible in any manner.

            In the instant case, undisputedly, the OP No. 1 Company has earmarked a specified area in all its branch offices, namely, the Cash Counter where depositors are supposed to deposit cash/cheques /demand drafts etc.  Also, the management of the Company has authorized certain persons to accept deposits from depositors and issue official receipts thereof as a token of acknowledgement of such deposits.  If any depositor contravenes proper official procedure, for whatever reason and handover the cash/cheque/DD to an unauthorized person, irrespective of whether he/she is an employee of the Company or not, he would do so at his own peril. The Company has got no liability to compensate such a depositor.  It is always wise to look before you leap.

            There is no reason to believe that the Complainant was not aware of the proper procedure of depositing money with the OP Insurance Company  Therefore, it was his first and foremost responsibility, for the sake of his own interest, to follow suit, which he honoured in its breaches.  It may well be that the OP No. 6 was holding a key position in the concerned Branch Office of the OP No. 1, but, that in no way justify putting immaculate trust in such a person, particularly when indulgence of senior officials in corporate fraud is not an unusual phenomenon and above all, when the concerned official was not personally not known to the Complainant and he had no inclination about the personal credentials of the OP No. 6. 

            By no stretch of imagination, the Additional Chief Branch Manager of a Branch Office can be expected to do the job of a cashier, particularly when, it is not even the case of the Complainant that the concerned cashier was not present on the particular dates when the Complainant visited the Branch Office for the purpose of depositing money.  In such a situation, the act of the OP No. 6 which caused the loss to the Complainant cannot be said to have been committed by him in due course of his employment with the Insurance Company.   Furthermore, no convincing explanation has been put forth by the Complainant behind issuing cheques in favour of the OP No. 6 instead of the Insurance Company.  Clearly, the Complainant continued making one blunder after another till he realises his follies. 

            For better illustration, we would like to quote relevant portion of a judgment of the Hon’ble Apex Court, being referred to by the OP Nos. 1 to 5, in Civil Appeal No. 2476 of 1968.

“23. Before dealing with the contentions canvassed, it would be useful to notice the settled legal principles which govern the vicarious liability of an employer for the loss caused to a customer through the misdemeanor or negligence of an employee.

24. The first of these principles is that the employer is not liable for the act of the servant if the cause of the loss or damages arose without his actual fault or privity and without the fault or neglect of his agents of servants in the course of their employment.  This principle is best illustrated by the decision of the House of Lords in Leesh River Tea Co. Ltd. and Ors. V. British India Steam Navigation Co. Ltd. (supra).  The facts of that case were that during her vouage a ship called at an intermediate port to discharge part of her original cargo and load some fresh cargo.  The shipowners engaged a stevedore company to discharge and load.  A servant of the stevedore company stole a brass plate, which was a cover that could be removed to give access to storm valve.  Its removal rendered the ship unseaworthy as sea water could enter when the ship rolled.  The resulting hole in the ship was concealed by part of the fresh cargo loaded.  On her vouage after leaving the port the ship encountered heavy weather.  Water entered through the hole and damaged part of the original cargo.  In an action for damages by the owners of the damaged cargo, the shipowners contended that they were escaped from liability by Article IV.Rule 2(q) of the Hague Rules, because the cause of the damage arose without their actual fault or privity and “without the fault or neglect of the agents or servants” of the shipowners.

25. Dealing with this argument, Danckwerts L.J. observed (at page 597):

It seems to me that the vital point in the case is whether the theft of the brass plate was made by the stevedore, at Port Sudan, in the course of his employment by the shipowners.  He was to be regarded as the agent of the shipowners for the purpose of unloading and loading cargo.  There is no doubt that this gave him the opportunity to effect the theft of the plate, but the stevedore was concerned with cargo and not with the ship or parts of the ship.  When he deliberately stole the plate he was acting in a way which was completely outside the scope of his employment on behalf of the shipowners.  The theft could not have been prevented by any reasonable diligence of the shipowners through the officers and crew of the ship.

26. Salmon L.J., speaking in a similar strain (at page 599) emphasised that the fact that the thief’s employment on board presented him with the opportunity to steal does not suffice to make the shipowners liable.  The conclusion drawn was:

For an employee to be liable, however, it is not enough that the employment merely afforded the servant or agent an opportunity of committing the crime.

It must be shown that the damage complained of was caused by any wrongful act of his servant or agent done within the scope or course of the servant’s or agent’s employment, even if the wrongful act amounted to a crime…..”

            However, there is no dispute as regards deposit of Rs. 99,500/- by the Complainant being the initial deposit against the policy in question.  Also, documents on record sufficiently prove that a sum of Rs. 3,00,000/- has been deposited to the account of the Company by means of a Demand Draft, the amount of which has been debited from the account of the Complainant.  It is another matter that thanks to the alleged malpractice of the OP No. 6, the amount was credited in the name of another person, namely, Mr. Bhabesh Kumar Mandal. However, fact remains that whenever such wrong entry was detected, it is incumbent upon the Company concerned to cause due enquiry into such matter and set the record in order.  In the instant case, however, nothing of that sort has been done for the reasons best known to the OP Nos. 1 to 5.  This clearly goes to show gross deficiency in service on the part of the OP Insurance Company.

            It may also be a matter of perspective that services of employees are requisitioned/hired by companies to cater to the need of intended beneficiaries, i.e., their customers.  As a part and parcel of the OP No. 1 Insurance Company, the OP No. 6 was duty bound to render due assistance/wholehearted cooperation to the Complainant.  However, as it turns out, the OP No. 6 instead acted to the detriment of the interest of the Complainant.  Such malpractice on the part of the OP No. 6 not only exposes gross deficiency in service on his part, it also manifests his involvement in unfair trade practice.  From the photocopy of declaration, executed by the OP No. 6 on a non-judicial stamp paper, it transpires that he has admitted the fact of receiving Rs. 48,00,000/- from the Complainant.  The money that he received from the Complainant was meant for the OP No. 1 Insurance Company for crediting the same against the policy of the Complainant.  Insofar as the same has not been deposited against the policy of the Complainant, the OP No. 6 cannot escape his liability to make good the loss suffered by the Complainant in this regard.   The Insurance Company is also liable for keeping such bogus and illustrious personnel on its rolls, being competent/efficient enough to cheat/rob others confidently; the innocent Insureds of their hard-earned money.

            Both these points are, decided partly in favour of the Complainant.

Hence,

ORDERED

            that the complaint case be and the same is allowed on contest against the OP Nos. 1 to 5 and ex parte against the OP No. 6.  OP Nos. 1 to 5 are directed to pay, within 40 days from the date of this order, a sum of Rs. 3,99,500/- together with a compensation and litigation cost of Rs. 50,000/- and Rs. 5,000/-, respectively, to the Complainant, i. d., the OP Nos. 1 to 5 shall be liable to pay interest @ 10% p.a. over Rs. 3,99,500/- from this date till full and final payment is made.  OP No. 6 is directed to refund to the Complainant, within 40 days from the date of this order, the balance amount out of Rs. 48,99,500/- which he received from the Complainant, i.e. (Rs. 48,99,500 – Rs. 3,99,500) Rs. 45,00,000/-, i. d., the OP No. 6 shall be liable to pay interest @ 10% p.a. over Rs. 45,00,000/- from this date till full and final payment.