Date of Filing: 24/08/2018
Date of Judgment : 11/11/2024
Sri Manish Deb, Hon’ble Member
The Fact of the case is that one BMA wealth Creators Limited , having its registered office at 738/2 , Diamond Harbour Road , 3rd Floor , P.S. Thakurpukur , near Behala Chowrasta , Bandhan Bank Building , Kolkata , has offered a new Policy Bond from Exide Life Insurance and also promised that said if policy is not favorable for the complainant , the entire amount will be refund to the complainant within 15 days from date of policy That the complainant executed some vital documents for the purpose of new policy bond of Exide Life Insurance through BMA wealth Creators Limited , on 11.02.2018 and also paid the policy amount through Bank Cheque and ATM. That the complainant received the Policy Bond being No. 0372964 by speed post on 31.03.2018.
The EXIDE LIFE INSURANCE informed the complainant through E -mail the policy bond has been dispatched on 26.02.2018.
That after perusal of the policy bond of EXIDE LIFE INSURANCE several discrepancy are found in the written terms and conditions of the said policy bond, that on dissatisfaction about the terms and condition the said policy bond, the compliant on 05.04.2018 went to the office of said Opposite Party No. 1, BMA wealth Creators Limited , having its registered office at 738/2 , Diamond Harbour Road , 3rd Floor , P.S. Thakurpukur, near Behala Chowrasta , Bandhan Bank Building , Kolkata , and Opposite Party No. 2 & 3 Expressed his dissatisfaction about the said policy , its terms and condition and made the claim of return of entire policy amount after cancellation of the said policy bond.
The complainant also deposited a several documents like policy bond, cancelation cheque, Photo Copy of Voter ID, photo copy of PAN Card and one cancelation Form with signatures before the authority of of OP No.1 in presence of opposite party No. 2 & 3 i.e Sri Indranil Adhikary and Smt. Atashi Mondal but the complainant did not get any receipts from the opposite parties No. 1 to 3 . The Opposite parties No. 1 to 3 promised that the claim policy amount will be deposited in the complainant’s Bank Account within 25 or 26 days .
Whereas after lapse of 26 days i.e. on 05.04.2018 the complainant communicated through telephone to Sri Indranil Adhikary opposite Party No.2 and Smt. Atashi Mondal opposite Party No .3, and enquired about the return of policy bond amount or claim amount and he also questioned the opposite Party No 1, 2& 3 why his policy amount did not returned to the complainant’s account , there was no positive answer on the part of the opposite Party No 1, 2& 3
Subsequently on 23.05.2018 complainant compelled to report the matter to the local Tahakurpukur P.S and also reported it to the opposite Party No 1 BMA wealth Creators Limited , having its registered office at 738/2 , Diamond Harbour Road , 3rd Floor , P.S. Thakurpukur , near Behala Chowrasta , Bandhan Bank Building , Kolkata on 28.05.2018
When the complainant went to the office of the OP No. 1 for getting return back of the of the policy bond amount , the officials of the OP No. 1 , BMA wealth Creators Limited , having its registered office at 738/2 , Diamond Harbour Road , 3rd Floor , P.S. Thakurpukur , near Behala Chowrasta , Bandhan Bank Building , Kolkata , including opposite Party No 2& 3 have advised the complainant to go to the Party No .4 the Exide Life Insurance Corporation for redressal of all allegation as well as return of the amount of the policy Bond.
On 20.06.2018 the complainant went to the office of the opposite party No.4 at Mango Lane , Kolkata-1 for return back of the Insurance bond amount but opposite party No.4 the Exide Life Insurance did not pay the policy bond amount to the complainant. Being aggrieved by and on dissatisfaction activities of ops and on their deficiency of service and unfair trade practice towards complainant, the complainant approached to the Baruipur Consumer Affairs office for redessal.
That the Baruipur Consumer Affairs office has advised the complainant to filed a complainant Petition before Dist. Consumer Redressal Forum at Alipore, south 24 Parganas, as result this complaint petition is filed before this commission for adjudication .
The opposite party No. 1 are entered appearance in the case and filed written version and the opposite party denied the matter strongly that opposite party No. 1 has never sourced any policy of the OP No. 4 the Exide life insurance for the complainant. And the OP No. 1 never insisted to complainant by approaching him to avail any policy from the OP No. 4 the Exide life insurance.
Whereas it is contented that opposite party No. 1 is a registered of SEBI and engaged into the business of trading of equity shares and all other allied activities but it does not deal with any marketing of insurance product .
Whereas opposite party No. 2, 3 and 4 are not entered appearance in the case, did not filed any written version in the case against the allegation labelled against them even they did not take any defence against the complaint’s prayers filed by the complainant .
Whereas notices/summons were served upon all the opposite parties only OP No. 1 appeared in the case and contested the case, OP No. 1 has filed written version but in the said written version as well as in any documents OP No. 1 did not spared any line or words about representation of OP No. 2 & 3 even Opposite Party No. 1 did not denied that OP No. 2 & 3 are not it’s staff and representative of the opposite party No. 1.
The name of opposite party No. 4 was subsequently added as party in the complaint case, but it has not been appeared in the case or filed any objection or written statements against the allegation of the complainant, only on a telephone chat it has intimated to the complainant that the claim of the complainant was not in stipulated period, but it has failed to produced any evidence in support of its claim or contention , they had to clear it by filing affidavit and evidence .
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act,2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant is fall in the category of the “consumer” under C.P.Act,2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by not retuning the policy bond amount to the complainant.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged by the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
DISCUSSIONS AND FINDINGS
The complainant filed affidavit in chief and his evidence. The complainant also filed BNA and advanced verbal arguments.
We have meticulously gone through the materials on records with application of mind.
It is surprising to note that while the complainant was visited the office of theOpposite Party No. 1 , the BMA wealth Creators Limited ,having its registered office at 738/2 , DiamondHarbourRoad , 3rd Floor ,P.S. Thakurpukur, near Behala Chowrasta, Bandhan Bank Building , Kolkata and he wasofferedforpurchasingaPolicyBondfromtheOP No. 4 the EXIDE LIFE INSURANCEthrough office of the opposite party no. 1 and its men and agent and the complainant executed vital documents for the purchasing of a new policy bond from the EXIDE LIFE INSURANCEthe op No. 4 ,the complainant also paid the policy premium /amount through Bank Cheque at office of theopposite party No. 2 & 3,how it ispossible to avoid their liability and responsibility by the opposite party No. 1, 2 & 3, whereas all Opposite partiesNo. 1 to 3 have acted like and as agents of principal i.e OP No.4
That after lapse of several days the complainant communicate through telephone to opposite Party No. 2 and opposite Party No .3, and enquire about the return of policy bond amount or claim amount and also questioned them why the policy amount was not returned to the Bank account of the complainant, and in this aspect the opposite Party No. 2 and opposite Party No .3, did not denied there’re involvement with the OP No.1 & 4. It is needless to mention that without instigation indulgence and representation of the opposite party No. 1 to 3 , it could not be possible for a layman like complainant to take initiative for purchasing any policy bond like that , it is fact the OP No. I has denied all allegation labelled against them/it but the OP No. 1 does not hold the clean slate to show its non involvement with incidents, it has not produced any reliable and appropriate documentary evidence before this commission, above all after perusal of the contents in paragraph 4 to 11 of the affidavit of Evidence filed by the op No.1 on 9.01.2020 before this commission it is sufficient to make clear to us that the op No. 1 had full knowledge of the marketing and sale of the policy in question to the complainant , the OP No. 1 is technically trying to avoid the liability and it’s deficiency of service toward the complainant , even the op No. 1, did not anything cleared in the written version as well as in the evidence about the OP No. 2 to 3 whether they are connected or linked with marketing division/ Branch of the OP No.1 or not.
We are also noticed that during trial of case and argument, the complainant has failed to file by documentary evidence for that the OP No. 1 to 3 have insisted him to purchase the policy bond , but it also fact that OP No. 2 to 3 have not denied the allegation or anything on the contrary to complainant’s contention /submission regarding the said sale of policy bond as middle men or agent.
The complainant has agitated his dislike of the terms and condition of the policy to the op No.1 to 3 within a short period after issuance of policy , our view is that if any terms and condition of policy not inscribed in vernacular or local language for general people it is a common men inability to go through the any terms and condition of any policy or other documents.
Above all the OP No. 4 has not entered in the case to challenge the contention of the complainant , if they entered in the case it would be more clear who has actually offered or marketed to the complainant to avail the policy bond, In the affidavit in chief the op No1 has clearly disclosed the fact that the insurance agent is happened to be one M/s A.B brokers Private Ltd, but it is not a party in the case.
Further OP No. 1 by way of making submission that OP No.1 always provide consultancy service, man power services to the M/s A.B Brokers Private Ltd. and made it crystal clear that the opposite party No. 1 and it’s both employee or staffs were involved in the sale procedure of the policy bond they did not disclosed to the terms condition the policy to the complainant purchaser and the opposite party No.1 has also not disclosed the terms condition of the policy to the complainant even the opposite party has not returned the amount of the policy bond the complainant when the complainant appealed before the complainant to return back the policy bond amount or premium thus there was an established fact of deficiency in service by way of making breach of contract as per the agreement for sale.
By all means we are of the opinion that the opposite parties have jointly and severally failed to do their responsibility and provide service towards complainant, thus it is clear cut proof of deficiency in service on their part.
In our view deficiency in service on the part of OPs is established. As the all OPs do not contested the case, the evidence and arguments, adduced by the complainants almost remains unchallenged and in our opinion, the complainant has successfully established their case thereby, making themselves eligible for the relief(s), sought for.
Thus we are of the opinion that return of the amount of the policy bond which sought for by the complainant is justified.
Further an allegation advanced by the complainant in his BNA regarding non refund of the policy bond amount in his Bank account, we are of the view that such allegation does not defended by the OP No.4 who is the seller of the policy bond.
Thus the OP No.4 by way of non refunding the amount of policy has ethically admitted the deficiency in service and unfair trade practice.
Hence the complainant is entitled to get refund of the amount of policy bond from the OP No. 1 & 4 with the active intervention of the OPs No. 2 to 3 and compensation for harassment and mental agony and litigation cost from OP No. 1 & 4.
Hence it is
ORDERED
That the case is allowed on contest against the OPs.
The OP No. 1 & 4 is to refund the amount of Rs. 18,100/- with interest @ 9% from date of policy. OP No. 1 & 4 are also to pay Rs.20,000/- to the complainant as compensation for harassment and mental agony and litigation cost Rs. 10,000/-within 60 days of issuance of this order.
In case the OP No. 1 & 4 fails to comply the order within the period of 60 days, the complainant can take necessary action in accordance with law.
Dictated and corrected by
Member
