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 /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 360/09 DATED 23.11.2009<br /> ORDER<br /> <br /> Complainant Sri. D.R. Lakshmikantha S/o Sri. D.K. Raghavan, R/at LIG-742, 4th Main, 24th cross Srinivas Out House, Vidyaranyapuram, Mysore.<br /> <br /> (By Sri. M. Shivakumara Swamy, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Branch Manager, State Bank of Mysore, Krishnamurthypuram Branch, Mysore.<br /> ( By Sri. B.P. Yogamurthy, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 23.09.2009<br /> Date of appearance of O.P. : 15.10.2009<br /> Date of order : 23.11.2009<br /> Duration of Proceeding : 1 Month 8 Days<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite party Bank, seeking a direction to pay compensation of Rs.20,00,000/-, towards loss of Health Plus LIC Policy and mental agony, hardship and cost of the proceedings.<br /> <br /> 2. In the complaint, it is alleged that, the complainant is the consumer of the opposite party Bank, having S.B. Account No. 54036070634. The complainant has authorized LIC of India to collect the monthly premium of Rs. 1,000/- from the opposite party Bank. There is written agreement between the opposite party Bank and LIC of India. The policy is for Rs. 19,29,000/-. On 28.03.2009, thought there was sufficient amount in the S.B Account of the complainant, under ECS, the opposite party has dishonored the mandate, for payment of premium of the policy of the complainant referred to above. On 30.03.2009, the LIC informed the same to the complainant. The complainant took said policy to avail medical benefits of Rs.2,000/- per day, for treatment and also entitled for a sum of Rs.4,00,000/- for major surgery. After the opposite party dishonored the said cheque, the complainant gave requisition to opposite party on 10.04.2009, but no action has been taken. Due to dishonor of the mandate, for payment of the premium, complainant lost the said benefits under the policy and it has been cancelled, for non-payment of premium. In the mean-while, the complainant fell ill and failed to get the medical facility from the aforesaid Health Plus Policy, thereby the complainant suffered heavy loss. It was on account of negligence on the part of opposite party. On 04.05.2009, the LIC issued a notice to the complainant, intimating that, the policy has been lapsed on account of, non payment of premium and that fact was informed to the opposite party, which has not replied. Then legal notice was issued, but no reply. On these grounds, it is prayed to allow the complaint.<br /> 3. The opposite party has contended in the version, that complaint is bad for non-joinder of LIC and Punjab National Bank. It is contended that, on account of Bank strike on 28.03.2009, the mandate could not be complied by the opposite party Bank, the reason being that, the service branch could not send the data through electronic media to the opposite party. Under the circumstances clearing of the said amount of the LIC premium could not be effected on that day. Therefore, the opposite party could not credit premium to LIC. Further it is contended that, complaint is not maintainable, as the complainant has not exhausted his remedy before the appropriate Authorities. It is stated that, because of the Bank strike, the branches of the opposite party including service branch could not function and requested to advise all the members of clearing house not to present any cheques on the said date. Also it was request of service branch not to process any issues. Certain other allegations made in the complaint are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, manager of the opposite party Bank filed his affidavit and also additional affidavit and produced certain documents. For the complainant, written arguments filed. So also we have heard both the learned advocates for complainant and opposite party and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to any reliefs?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point No.1:- Grievance of the complaint is that, he is the account holder, customer of the opposite party Bank, Even though there was sufficient balance in the account to honor the mandate, for payment of insurance premium, it was dishonored. The opposite party in the version has contended that, the mandate could not be complied with for the reason being that, on 28.03.2009, strike was observed by the Associate Bank of State Banks of India. Hence, dishonor of the mandate, for payment of the LIC premium of the complainant is admitted. Whether on the ground of strike, the bank can dishonor the mandate or the cheques, no Rules and Regulations are brought to the notice of the Forum by the opposite party Bank.<br /> <br /> 8. Not only that on the particular date the mandate was dishonored, let it be for the reason that there was bank strike but, even thereafter the mandate was not honoured by the opposite party. The complainant in the month of April, wrote to the opposite party, copy of the letter, which is at serial No.13 of the list of the documents, calling upon on what ground the mandate was dishonored, though sufficient balance was on the ground, on the particular date and even till today. Hence, even if as contended by the opposite party because of strike on particular date, at least subsequently thereafter the opposite party could have honored the mandate but that has not been done. The opposite party did not reply to the said letter of the complainant. Further, even though the opposite party assigned reason as to why mandate was dishonored on the particular date, has not at all assigned any reason or given any explanation as to why at least on subsequent dates or days the mandate was not honored.<br /> <br /> 9. The learned advocate for the opposite party vehemently argued that, the complainant has falsely contended that, because of the dishonor of the mandate towards payment of premium by the opposite party, the policy was lapsed, but in fact policy has not been lapsed and even till date premium has been paid or collected. In this regard, a statement is produced. It is true, as on today as could be seen from the said statement, premium has been paid or recovered, but it is relevant to note that, in fact the LIC has issued letter to the complainant dated 30.03.2009, on page 10, which is lapse intimation letter dated 04.05.2009, wherein it is stated that, the policy has been lapsed on 30.04.2009, of account of non payment of installment premium of Rs.1,000/-, which fell due on 31.03.2009. Hence, in fact the policy was lapsed. It cannot be disputed that, on payment of the premium in addition to the penalty, if any, the LIC can revive the lapsed policy. Hence, because presently there is polity, does not mean that earlier it was not lapsed. <br /> <br /> 10. Learned advocate for the opposite party has produced a letter from the employer of the complainant stating that, during the month of April 2009, the complainant availed Casual Leave on 6th only and except that, during the month of April and May the complainant did not avail any other kind of leave. On the basis of this letter, the learned advocate submitted that, as per the terms and conditions of the policy, to claim medical reimbursement having policy of the nature in question shall have to be inpatient at least for two days. That appears to be true, but at the same time it is relevant to note that, firstly, on 06.04.2009, complainant availed leave and on 5th and 7th April were general holidays. Hence, for 3 days continuously the complainant might have taken treatment, even as inpatient, apart from that, at page 19, the complainant has produced medical certificate stating that, the complainant was under treatment for 3 days from 10.04.2009 to 12.04.2009. 10.04.2009, 11.04.2009 and 121.04.2009 were general holidays. Hence, the fact that, the complainant did not avail leave does not mean that, the complainant did not take any treatment as claimed.<br /> <br /> 11. The learned advocate for the opposite party strenuously argued, that action may be taken against by the complainant, for giving false evidence on oath. As noted here before, in fact the LIC had informed the complainant regarding lapse of the policy in question. Hence, the fact that, presently premium has been paid or recovered does not mean that, the policy was not at all lapsed. It might have been revived. Further, the claim of the complainant that, he took treatment cannot be disbelieved, because the complainant did not take leave. At the cost of repetition, as the complainant had availed Casual Leave on 6th April including that day on 5th and 7th he could have taken treatment and in addition to it, on 10.04.2009, 11.04.2009 and 12.04.2009 being general holidays, as mentioned in the medical certificate, taking metical treatment by the complainant cannot be branded as false. Hence, we found no substance in the contention of the learned advocate for the opposite party that, criminal action against the complainant shall have to be taken. In spite of all these circumstances, without substance, such submission is made for opposite party.<br /> <br /> 12. It is specifically submitted for the complainant that, in fact the complainant had written to the opposite party, calling upon to assign reason as to why, the mandate was dishonored in spite of, sufficient fund in the account. The opposite party did not reply. At least on receipt of the said letter, the opposite party could have replied and could have paid the premium with a request to revive or renew the policy. Thereafter, legal notice was sent by the complainant to the opposite party, which is also not replied. All these facts disclose the attitude of the opposite party Bank towards the customer.<br /> <br /> 13. It is contended by the opposite party that, the complaint is bad for non-joinder of LIC as well as Punjab National Bank. Allegation of the complainant is that, mandate regarding payment of insurance premium has been dishonored by the opposite party Bank. When the allegation of the complainant is against the opposite party, the LIC or Punjab National Bank are not a necessary parties.<br /> <br /> 14. Also it is contended by the opposite party that, under the scheme of electronic clearing certificates, if there is any dispute, shall have to be decided by the Authority provided therein. But the remedy under the Consumer Protection Act is an alternative remedy and being additional remedy, the complaint is maintainable irrespective of the fact that, there are other remedies.<br /> <br /> 15. It is also contended by the opposite party that, the complainant has filed vexatious complaint before the Forum. We fail to understand, how the complaint is vexatious. As considered here before the complainant being customer and account holder of the opposite party Bank, in spite of sufficient balance in the account to honor the cheque or the ECS mandate, the opposite party Bank has dishonored it.<br /> <br /> 16. In spite of such fact and negligence on the part of the opposite party Bank, it is contended that, the complaint is vexatious. That cannot be accepted.<br /> <br /> 17. Lastly, it is contended that, the opposite party has not received any consideration from the complainant, for the service rendered. The Hon’ble State Commission, National Commission, and Hon’ble Apex Court have repeatedly held that, the customer account holder of the Bank, is a consumer. Admittedly, the complainant had sufficient fund in the account and despite of it, the cheuqe or the mandate was dishonored. Hence, the complainant is consumer and the complaint is maintainable.<br /> <br /> 18. The complainant has claimed compensation of Rs.20,000,00/-, towards loss of policy, mental agony, hardship and litigation cost. However, as noted here before though LIC had informed the complainant regarding lapse of the policy through the letter, it appears later that has been revived or renewed and hence, as on today, there is policy. However, the claim of the complainant that, he fell ill and did not get amount towards medical facility cannot brushed aside. In this regard, medical certificate is produced. However, there is no cogent evidence regarding actual amount spent by the complainant and that the loss that he sustained. However, from the records, it is clear that, because of the negligent act of the opposite party in dishonoring the mandate regarding the payment of the premium, the complainant was to write to the opposite party and so also he might have approached the LIC for renewal and revival and in this regard, certainly he must have spent certain amount, in addition to cost of the proceedings. Under the circumstances, awarding of compensation of Rs.3,000/-, meet the ends of justice.<br /> <br /> 19. Point No. 2:- Accordingly, our finding on the point is partly in affirmative.<br /> <br /> 20. From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.3,000/- to the complainant within a month from the date of the order failing which, the amount will carry interest at the rate of 12% p.a.<br /> 3. Further the opposite party shall pay Rs.2,000/- to the complainant towards cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br />