DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No. 181 of 2015
Date of filing: 17.8.2015 Date of disposal: 18.02.2016
Complainant: Nirapada Ghosh, S/o. Late Bhupati Charan Ghosh, resident of Panchrakhi, Post Office: Akalpoush, District: Burdwan, PIN – 713 122.
-V E R S U S-
Opposite Party: 1.Bank of India, Nepakuli Branch, represented through its Branch Manager, having its office at Nepakuli, PO: Goda Annada, PS: Kalna, District: Burdwan, PIN – 713 122.
2.The National Insurance Co. Ltd., represented through its Branch Manager, having its office at Kundu Mansion, 548, G.T.Road, Bhangakuthi, Burdwan – 713 101.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Biswanath Das.
Appeared for the Opposite Party No. 2: Ld. Advocate, Shyamal Kr. Ganguli.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the op-1 as due to deficient service of it the insurance policy expired and the complainant had to face irreparable loss and injury.
The brief fact of the case of the complainant is that he obtained a mediclaim policy namely ‘National Swasthya Bimal Policy’ from the op-2 through their agent – op-1 in the year 2011. In the first year he paid the premium amount to the op-2 for Rs. 4,266=00 by depositing cheque in his bank account before the op-1 and the op-1 remitted the same to the op-2. Thereafter in the year 2012-13 in the same manner the complainant paid the premium amount and his policy was renewed for the said two years respectively. The policy coverage was to the tune of Rs. 3, 00,000=00. The said policy for the year 2013-14 was valid for the period from 01.11.2013 to 31.10.2014. The complainant on 22.10.2014 deposited Rs. 5,000=00 through cheque in his bank account before the op-1 towards premium amount with a view to renew his insurance policy. In the month of January 2015 the complainant became ill and got admission at Kalna Sadar Hospital, Kalna on 07.01.2015. Thereafter due to serious illness and for better management of his illness the complainant was shifted at Burdwan Medical College and Hospital. He was advised by the doctor of BMCH for heart operation and implantation of pace maker. The nearest relatives and the family members of the complainant came to know that for implantation of pace maker an amount of Rs. 3, 00,000=00 will be incurred. So for getting information about the treatment expenses the son of the complainant went to the office of the op-1 for bringing the certificate of the insurance policy, but the son of the complainant became so surprised when he came to know from the op-1 that the op-2 did not renew his policy. Thereafter being perplexed the son of the complainant updated the pass book of his father and came to know that the op-1 remitted the draft for Rs. 5,917=00 on 15.01.2015 as premium amount for renewal of the insurance policy to the op-2 after lapse of long period. He also came to know that the op-2 cancelled the draft as the same was remitted by the op-1 after lapse of about 75 days from the date of expiry of the policy and the op-1 credited the said amount in the account of the complainant on 20.01.2015. After gathering such knowledge the complainant again sent his son to the office of the op-1 for asking them regarding his policy but the op-1 could not able to give any satisfactory answer regarding the same. The complainant is a bonafide customer of the ops and he had not done any act detrimental to the interest of the ops. The complainant deposited the premium amount to the op-1 much before expiry date and kept sufficient amount in his bank account but the op-1 negligently and knowing fully well did not remit the draft to the op-2 in proper time and for this reason the policy has been lapsed due to deficient service of the op-1. According to the complainant such action of the op-1 can be termed as unfair, negligent, arbitrary and whimsical. Having no alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the op-1 for making payment to him of Rs. 3,00,000=00 along with interest due to deficiency in service and unfair trade practice, Rs. 50,000=00 due to mental pain, agony and sufferings and litigation cost of Rs. 50,000=00.
The petition of complaint has been contested by the op-1 by filing written version contending that Sudipta Ghosh, S/o. Nirapada Ghosh deposited cheque no. 5 on 13.01.2015 wherein he mentioned the policy number in his own hand writing and the premium amount was written by the op-1 amounting to Rs. 5,917=00. Sudipta Ghosh deposited another cheque amounting to Rs. 8,000=00 on the same day i.e. 13.01.2015 and op-1 had duly accepted the above-mentioned two cheques. It is mentioned by the op-1 that the cheque no. 5 was written on 22.10.2014, but the same was deposited before it on 13.01.2015 and as the said cheque was valid for three months, the op-1 accepted the same. The op-1 debited the amount on 15.01.2015 and sent the D/D to the Insurance Company for renewal of the insurance policy in favour of Mr. Nirapada Ghosh, but the Insurance Company had cancelled the D/D and sent the amount back to the op-1 on the ground that the policy had already been lapsed on 31.10.2015. As the op-1 is the TPA, the complainant did not deposit the copy of the policy along with the cheque and hence it was not possible for the op-1 to determine the date of lapse of the insurance policy as the policy copy does not lie under its custody. After cancellation of the D/D by the Insurance Company Mr. Sudipta Ghosh came and then only the op-1 intimated him orally that the policy lapsed and the renewal is not possible as his father Mr. Nirapada Ghosh had already attained the age 65 years. According to the op-1 it was not his intention to harass him and for this reason the complainant is not entitled to get any relief from this ld. Forum and accordingly prayer is made by the op-1 for dismissal of the complaint with exemplary cost.
The petition of complaint has also been contested by the op-2 by filing separate written version contending that as the premium amount was remitted by the op-1 after lapse of about 75 days from the date of expiry of the insurance policy, the op-2 did not accept the premium amount and returned the Demand Draft to the op-1 directly and in this respect there is no deficiency in service as well as unfair trade practice on behalf of this op. It is further submitted by the op-2 that due to non-receipt of the premium the op-2 was not in a position to renew the policy and the policy was automatically lapsed in terms of non-compliance of the Section 64 VB of the Insurance Act wherein it is clearly mentioned that ‘where an insurance agent collects a premium of the policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of collection excluding Bank and Postal holidays.’ In the case in hand as the op-1 has miserably failed to discharge its duty to forward the premium amount so collected from the SB account of the complainant, the op-2 had to cancel the insurance policy under obligation. It is further submitted by the op-2 that within the fourcorners of the complaint no allegation has been made out by the complainant in respect of op-2 regarding its deficiency in service and unfair trade practice. According to the op-2 the complaint is liable to be dismissed against it.
The complainant has filed evidence on affidavit along with some documents in favour of his contention. The op-2 has filed insurance law. We have carefully perused the record and heard argument at length advanced by the ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. the complainant obtained one mediclaim policy from the op-2 through the op-1 in the year 2011, premium amount was paid by depositing cheque in his bank account to the op-1, the op-1 used to reemit the said premium amount to the op-2 by issuing demand draft in favour of the complainant, the policy was renewed in the year 2012 & 2013 in a similar manner, the policy coverage was of Rs. 3,00,000=00, the policy was valid for the year 2013-14 from 01.11.2013 to 31.10.2014. The allegation of the complainant is that though he deposited one cheque for renewal of the said insurance policy to the tune of Rs. 5,000=00 on 22.10.2014 to the op-1, but the op-1 did not remit the same within the validity of the said insurance policy to the op-2 for its renewal. Further allegation of the complainant is that as the amount was remitted by the op-1 to the op-2 after lapse of about 75 days from the date of expiry of the said policy, the complainant had to face sufferings and due to such inaction on behalf of the op-1 he could not obtained medical treatment and facility from the hospital as for such treatment a huge amount was necessary i.e. approximately to the tune of Rs. 3, 00,000=00.
The rebuttal case of the op-1 is that the complainant deposited the cheque for making payment of the premium amount to renew the said policy after lapse of the earlier policy and within two days from the date of submitting the cheque amount the same was remitted to the op-2 but as the said premium amount was remitted and deposited after lapse of 75 days from the date of expiry of the earlier policy, the op-2 refused to renew the insurance policy of the complainant. Further case of the op-1 is that as the complainant has attained 65 years the policy could not be renewed as per terms and conditions of the policy concerned. The case of the op-2 is that as per insurance law i.e. 64 VB of the Insurance Act they cannot be liable to renew any insurance policy if the premium amount for necessary renewal is paid after lapse of the earlier policy. In the case in hand as the premium amount was despatched by the op-1 to it after lapse of 75 days from the date of expiry of the earlier policy, hence the op-2 is not in a position to renew the insurance policy of the complainant and in this respect there is no deficiency in service as well as unfair trade practice on its behalf as the op-2 had acted as per insurance law. Upon considering the averments of the complainant as well as the ops, we have noticed that though the op-1 has submitted that the complainant deposited the cheque towards the premium amount only on 13.01.2015 i.e. much later from the date of expiry of the earlier policy but in this respect no convincing documentary evidence has been adduced by the op-1 to corroborate his contention. By filing several papers and documents complainant has proved that much beforehand of the expiry of the earlier policy the complainant deposited the cheque towards the premium amount to the op-1, but the op-1 did not remit the said amount to the op-2 within due time. The op-1 remitted the said amount on 15.01.2015 i.e. after lapse of 75 days from the date of expiry of the earlier policy. Why the op-1 did not remit the said amount to the op-2 inspite of making payment of the premium amount well beforehand, no satisfactory reply is forthcoming on behalf of the op-1 in this regard. The complainant has filed photocopy of his passbook lying with the op-1 from where it is evident that the complainant deposited the cheque beforehand of the expiry and in that respect there is no negligence or laches on the part of the complainant. The op-2 has filed the insurance law from where it is enumerated that ‘where an insurance agent collects a premium of the policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of collection excluding Bank and Postal holidays.’ In view of the said Section 64 VB of the Insurance Act, in the case in hand the op-1 is the agent of the op-2 as it used to collect premium from the insured/intending insured and remit the same to the op-2 and op-2 used to issue policy certificate in favour of insured /intending insured. From the pleadings and argument it is clear that not only within 24 hours from the date of collection of the premium amount from the complainant, but after lapse of 75 days the op-1 remitted the premium amount to the op-2. Therefore in view of the above-mentioned Insurance Act the activity or action of the op-1 can easily be termed as deficient.
In the prayer portion the complainant has prayed for Rs. 3, 00,000=00 but in support of such claim the complainant did not file any cogent document and papers. As it is proved that the action of the op-1 suffers from deficiency in service, the op-1 is liable to make payment of compensation to the complainant and as the grievance of the complainant had not been redressed before coming to this ld. Forum by filing this complaint the complainant had to incur some litigation cost, the op-1 is also liable for making payment of litigation cost to the complainant.
Though in the petition of complaint complainant has stated that being seriously ill he got admission at the hospital wherein he was told that heart operation and implantation of pacemaker is necessary and for which the medical expenses may be incurred to the tune of Rs. 3,00,000=00 approximately, but due to inaction of the op-1 as the policy in question has been expired and the same was not renewed by the op-2 due to delay payment of the premium amount, for this reason the complainant has failed to avail of the medical treatment for his heart surgery. But in this respect we have noticed the complainant did not adduce any cogent document in support of such contention. So we are not in a position to direct the op-1 for making payment of Rs. 3, 00,000=00 as sought for by the complainant.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost against the op-1 and dismissed on contest without any cost against the op-2. The op-1 is directed for making payment of Rs. 10,000=00 as compensation for mental agony and harassment and litigation cost of Rs. 3,000=00 to the complainant within 45 days from the date of passing of this final order, failing which, the decreetal amount shall carry penal interest @10% per annum for the default period. The complainant is at liberty to put the order in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
