DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 34 of 2014
Date of filing: 07.3.2014 Date of disposal: 31.8.2015
Complainant: 1. Debabrata Hazra Chowdhury, S/o. Late Kshtragopal Hazra Chowdhury, resident of Mehidibagan, PS. & District: Burdwan, PIN – 713 101, WB.
2. Mrs. Chandana Hazra Chowdhury, W/o. Debabrata Hazra Chowdhury, resident of Mehidibagan, PS. & District: Burdwan, PIN – 713 101, WB.
-V E R S U S-
Opposite Party: 1. Birla Sun Life Insurance Company Limited, branch office at Burdwan, PO., PS. & Dist: Burdwan, PIN – 713 101, service through its Branch Manager.
2. Birla Sun Life Insurance Company Limited, Registered office at One Indiabulls Centre, Tower-1, 15th & 16th Floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai – 400 013, service through its Chairman.
3. Bajaj Capital Insurance Broking Limited, branch office at 1022 Bhanga Kuthi, G.T. Road, Burdwan – 713 104, service through its agent Suman Gangully.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant (s): Ld. Advocate, Subrata Ghosh
Appeared for the Opposite Party Nos. 1&2: Ld. Advocate, Subhajit Mondal.
Appeared for the Opposite Party No. 3: None.
J U D G E M E N T
This complaint has been initiated by the complainants u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as inspite of making of third premium amount to the OP-3, as the OP-3 did not remit the same to the OP-1&2 the insurance policy of the complainants had lapsed.
The brief fact of the case of the complainants is that the complainant-1 was insured under a policy issued by the OP-1. The OP-3 is the corporate agent of the OP-1. The policy was commenced on and from 22.9.2009 and the mode of premium to be payable was yearly. As per the norms of the policy the complainants used to pay premium amount each and every year within due date to the Ops. The first premium of Rs. 9,994=00 was paid on 15.9.2009 and the OP-1 received the said amount by issuing receipt. Second premium of Rs. 9,994=00 was paid by the complainant-1 on 23.9.2010 and he got receipt accordingly. The complainants have also deposited the third yearly premium of Rs. 10,000=00 to the office of the OP-3 on 19.9.2011 in cash and the OP-3 upon receipt of the said amount issued an acknowledgement receipt in favour of the complainants. Very surprisingly the complainants came to know that the policy became lapsed due to non-receipt of third yearly premium as per record of Birla Sun Life Insurance Co. Ltd. Thereafter without any delay the complainant-1 sent a letter dated 08.8.2014 to the OP-1 stating that he had already paid the third renewal premium against the policy to the OP-3 on 19.9.2011 and one Mr. Suman Ganguly of OP-3 received the said amount and issued an acknowledgement slip. Request was made by the complainants to the OP-1& 2 for taking necessary action against the OP-3 being the corporate agent of OP-1&2 but no fruitful reply/response has yet been come from the part of the Ops, which clearly indicates deficiency in service as well as unfair trade practice on the part of the Ops. Though the complainants have fulfilled all the terms and the conditions of the policy and there was no fault at any point of time on their part but unfortunately the OP-1&2 did not dispose of the said dispute of the complainants till filing of this complaint which indicates their deficiency in service and unfair trade practice. Due to such inaction on the parts of the Ops the complainants have to suffer irreparable loss, injury and mental agony. Thereafter the complainants sent an advocates letter on 25.3.2013 requesting to take proper steps for proper ventilation of the grievances of the complainants by way of refunding the total amount paid by them towards premium with accrued interest along with other benefits as stated in the policy certificate, but not a single response came from their end. All on sudden the OP- Birla Sun Life Insurance Co. Ltd. sent a letter dated 12.8.2013 to the complainant-1 stating that the said policy was not in force and however the Ops had an opportunity to reinstate the said policy if the complainants would have fulfilled the requirements stated in the said letter i.e. the complainants would have to pay net amount of Rs. 19,988.56 paisa to the Ops for revival of the said policy. It is the fact that the complainants have already paid three yearly premium amount within due date but till date the Ops did not take any proper step to refund the total amount of Rs. 29,988 with accrued interest to the complainants. It is noteworthy to mention that thereafter the OP-3 handed over a demand draft being no. 0001100, dated 22.8.2013 for Rs. 10,000=00 in the name of Birla Sun Life Insurance Co. Ltd. to the complainant-1 wherefrom it is amply clear that the OP-2 has committed deficiency in service as well as unfair trade practice by not depositing the renewal premium amounting to Rs. 10,000=00 within due time to the OP-1. The OP-1&2 being the principal OP of the OP-3 cannot avoid their liability. Thereafter finding no other alternative to get relief the complainants have filed this complaint before this ld. Forum praying for direction upon the Ops to refund the total premium amount of Rs. 29,988=00 along with accrued interest @8% per annum to them, Rs. 40,000=00 towards compensation due to mental pain and harassment and litigation cost of Rs. 10,000=00.
The petition of complaint have been contested by the OP-1&2 by filing conjoint written version wherein it is stated that the Ops have received only two premiums amounting to Rs. 19.988.56 paisa in total from the complainants and no further premium was paid by the complainants and received by these Ops. Therefore, the instant policy lapsed due to non-payment of third premium amount for renewal. The complainants were sent a notice by these Ops with reinstatement quotation whereby they were asked to make payment of Rs. 19,988.56 paisa for revival of the policy but the complainants have failed to pay the said amount for which the policy could not be revived and it is lying as terminated status. It is further submitted by the Ops that the complainants have allegedly submitted that third premium was paid by them to the OP-3 in cash but the Op-3 did not remit the said amount to the Op-1&2. Therefore, the dispute is lying by and between the complainant and the Op-3. Not only that it is also the duty of the complainants to collect the premium receipt from the company so that they can be sure that their premium have been deposited within due time. They obtained two premium receipts from these Ops for initial two premiums but as they did not pay the third renewal premium to the answering Ops directly, no receipt was generated. Moreover the complainants were not entitled to deposit any amount in cash to any agent and there is no such provision exists in the policy bond. If the complainants paid the premium amount in cash to the agent and choose not to accept any premium receipt, under this circumstances these Ops cannot be held liable for such action. The Op-3 is not a direct employee of the Op-1&2 to collect premium/payment from the complainant/insured/consumer. If the complainants without any expressed contract paid the premium amount in cash to the agent, they have done the same at his own risk and for this reason these Ops cannot be held liable. Hence as there was no negligence, deficiency in service as well as unfair trade practice on behalf of the Op-1&2 according to the Op-1&2 this complaint is liable to be dismissed with exemplary cost.
Initially this complaint was filed by the complainants incorporating the address of the OP-3 but while after admission notice was sent at the given address of the Op-3, the same was returned as ‘not known’. Thereafter, further notice was sent and the same was returned with the endorsement as ‘left without address’. As the service could not be effected inspite of due diligence on behalf of the complainants the complainants prayed for incorporation of some words in the address of the OP-3 and in this connection one Misc. Application was filed being no. 01/2015 and the same was allowed by this ld. Forum. Thereafter the complainants have filed amended complaint incorporating the new address in the cause title at the address of the Op-3 and fresh notice was issued upon the Op-3. It is evident from the order no. 21, dated 05.5.2015 that the Op-3 has duly received the notice issued by this ld. Forum but choose not to turn before this ld. Forum. For this reason this ld. Forum was pleased to fix the complaint for argument ex parte against the OP-3. It is also evident from the record that till 25.8.2015 the Op-3 did not turn up to contest the complaint either orally or by filing written version. So we took up the hearing of this complaint on 25.8.2015 ex parte against the OP-3.
Complainants have filed evidence on affidavit along with several papers and documents in support of his contention. The OP-1&2 have also filed papers and documents to corroborate their case. We have carefully perused the record as well as several documents filed by the parties and heard argument at length from the ld. Counsel for the complainants and OP-1&2. It is seen by us that admittedly complainant -1 was insured under a policy obtained from the OP-1, the Op-3 is the corporate agent of the Op-1&2 - Birla Sun Life Insurance Co. Ltd., the policy was commenced on and from 22.9.2009, the mode of premium to be payable was yearly mode, the complainants used to pay yearly premium amount within due date, first premium as paid on 15.9.2009 to the OP-1 for Rs. 9,994=00, second premium was paid on 23.9.2010 for Rs. 9,994=00. The allegation of the complainants is that though they have paid third year renewal premium of Rs. 10,000=00 to the office of the OP-3 being the corporate agent of the OP-1&2 in cash on 19.9.2011 and the OP-3 also issued an acknowledgement receipt in favour of the complainants, but the questioned policy has lapsed according to the OP-1&2 due to non-payment of third renewal premium. According to the complainants as the policy got lapsed condition due to deficiency in service of the OP-1&2 and OP-3, the complainants prayed for refund the three premium amounts for Rs. 29,988=00 along with interest, but as the OP-1&2 did not take any step in this respect till filing of this complaint, the complainants had to approach before the court of law for redressal of his genuine grievance. The rebuttal case of the Op-1&2 is that as they did not receive the third premium amount from the complainants within due period, the policy has been lapsed and thereafter though request was made on their behalf to the complainants for revival of the policy subject to payment of due premium amount along with interest and penalty no step was taken on behalf of the complainants. So for such lapse there is no role of the OP-1&2 because it is the primary duty of the insured to make payment of due premium within due time and if any insured fails to comply with the said terms and conditions the policy will be lapsed and nothing can be done on behalf of the Insurance Company. It is further stated by the Op-1&2 that there is no provision in the terms and the condition for making payment of any amount along with premium amount in cash and the Op-3 in no way is authorized to accept premium amount on behalf of the OP-1&2 from the purchaser/insured. Therefore, as the complainants did not pay the premium amount directly to the OP-1&2 hence these Ops have no liability to make any payment towards any relief as sought for. Therefore, as per the petition of complaint dispute lies by and between the complainants and the OP-3 and there is no grievance by the complainants against the OP-1&2. For this reason the OP-1&2 have prayed for dismissal of the complaint.
Upon hearing such argument from the ld. counsel for the OP-1&2 directions was given for production of the record narrating the relationship by and between the OP-1&2 and the OP-3. The ld. Counsel for the complainant has argued that certainly a MoU was prepared by and between the OP-1&2 and the OP-3 narrating the authority of the OP-3 as to whether the OP-3 is at all authorized to collect premium from the purchaser/insured and remit the same to the Insurance Company thereafter. But the ld. Counsel for the OP-1&2 submits that the Ops are unable to produce the said record before this ld. Forum. Thereafter as the Ops have failed to show us as to whether the OP-3 was authorized to collect the premium from these complainants or not, hence the averment of the complainants as made out in the complaint will stand. As per settled law adverse presumption can be drawn against any contesting parties if the party/parties have failed to produce any cogent document before the Court/Forum for proper adjudication of the case. The acknowledgement receipt issued by the OP-3 reveals that the complainants deposited Rs. 10,000=00 towards third renewal premium on 19.9.2011. Therefore it was the bounden duty of the OP-3 to remit the said amount to the OP-1&2 for renewal of the policy as the OP-3 is the corporate agent of the OP-1&2 who is duly authorized to collect any amount on premium from the purchaser/insured on behalf of the OP-1&2. It is also settled legal proposition that due to fault of the agent liability should be cast upon the shoulder of the principal. In the case in hand OP-1&2 are the principal and being the agent OP-3 had acted and for this reason due to fault of the Op-3 as inspite of receipt of the third renewal premium amount from the complainants did not remit the same to the principal for renewal of the policy, the consequence shall be faced by the principal - OP-1&2. During hearing the ld. counsel for the complainants has attracted our notice to a demand draft amounting to Rs. 10,000=00 which has been sent at the address of the complainants. But upon perusal of the same it is seen by us that the said demand draft was not issued in favour of the complainants rather it was issued in favour of Birla Sun Life Insurance Company Ltd. Therefore, such demand draft amounting to Rs. 10,000=00 bears no such value to the complainants rather it is merely a piece of paper. The complainants have filed the same before this ld. Forum by way of ‘firisti’ and it is also seen by us that the draft became invalid. Therefore the complainants are at liberty to send down the said draft at the address of the Birla Sun Life Insurance Co. Ltd.
During hearing it is also argued that the complainants are not at all interested to continue with the said policy and they are not willing to revive the said policy by making payment of due premium amount. They are inclined to get refund of the three premiums amount paid by them to the OP-1&2. It has been held earlier that admittedly the complainants paid the third renewal premium to the OP-1&2 through the OP-3. Therefore, the complainants paid three premium amounts to the OP-1&2 in respect of the policy. As due to deficiency in service of all the Ops the questioned policy got lapse, hence in our view the complainants are entitled to get refund of the total premium amount of Rs. 29,988=00 as paid by him. The complainants have also prayed for compensation and litigation cost in the prayer portion. Upon perusal of the same and hearing from the parties in our view the complainants are entitled to get compensation because the OP-1&2 have unnecessarily lapsed the policy of the complainants and the same was done due to deficiency in service of the OP-3 being the corporate agent of them. As the liability casts upon the Op-1&2 hence we may draw the conclusion that there was deficiency in service on behalf of the Op-1&2 and due to such action the complainants have to suffer unnecessary harassment and metal agony for a prolonged period and thereafter as the complainants have approached before the court of law for redressal of their grievance wherein they have to incur some legal expenses, we are of the considered view that the complainants are also entitled to get litigation cost from the OP-1&2.
Going by that the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost against the Opposite Party Nos. 1&2 and dismissed ex parte against the Opposite Party No. 3. The Opposite Party Nos. 1&2 are directed either jointly or severally to refund the total premium amount of Rs. 29,988=00 (Rs. Twenty nine thousand nine hundred and eighty eight) only along with interest @8% per annum for the period from 19.9.2011 i.e. the date of depositing the third premium amount till the date of realization, in default, the entire decreetal amount shall carry penal interest @9% per annum for the default period. The Opposite Party Nos. 1&2 are further directed to pay Rs. 2,000=00 (Rs. Two thousand) only as compensation to the complainant due to pronounced harassment, mental agony and pain and Rs. 1,000=00 (Rs. One thousand) only as litigation cost within 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to put the entire decree in execution as per provisions of law.
Let a plain copy of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
