FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that on a day in the last week of December of 2016 OP no.2 represented himself as financial advisor of OP no.1 & 3 called the complainant over telephone and informed that his policy which was purchased during the year 2006-07 at the premium Rs.50  000/- p.a since matured due to complete of term.  As only a single premium was paid the terminate value now stands approximately Rs.98  000/- and he added that the complainant could get this fund at the end of January 2017 against a deposit of Rs.50  000/- for which the complainant would get interest till that was with the company and the complaint could get back that any time.  On the request of OP no.1 the complainant issued a cheque vide no.009334 dated 28.12.16 paid on 16.1.17 for Rs.50  000/- in favour of OP no.1 and got a policy bond bearing no.C 252115853 dated.10.01.2017.  OP no.2 adviced the complainant as the company is not eligible for banking transactions   policy bend since issued in place of deposit certificate which is equivalent to deposit certificate and one can take payment at any time.  Further   the complainant got a telephonic call in the 1^st week of February 2017 from the head office   at Bangalore which is definitely within the knowledge of OP no.2.  The complainant was informed time to time from different sources of Tata AIA i.e. from Head Office   Zonal Office   Audit Cell etc that company sanctioned all the financial facilities like mediclaim   sum assured value   bonus   interest etc which was admissible in the old policy bond issued during the year 2006-2007.  To get the payment of all these facilities complainant had to invest some additional amount now and they also added for details the complainant may contact with OP no.2 and on the advice of OP no.2 the complainant issued five cheques aggregating amounting Rs.5.89 lacs (amount of each cheque Rs.40 lacs   Rs.2.04 lacs   Rs.2.05 lacs   Rs.0.08 lacs & Rs.0.60 lacs).  Against this amount the complainant received the following bonds Rs. 0.04 lacs issued by TATA AIA Life Insurance Co. Ltd   Rs.1.75 lacs issued by India Fast Life Insurance Co. Ltd.   and remaining three bonds issued by DHFL Promerica Life Insurance Co. Ltd   in the month of July 2017 when the complainant was in urgent need of money he requested to OP no.2   on 12.7.2017 over telephone to arrange for refund the money.  The complainant was instructed by the OP no.2 to visit his office to get payment on 15.7.17 complainant tried to contact with OP no2 to over telephone but his cell phone had been responding as switched off.  The OP no.2 also provided some other telephone numbers 631855838   9836530804 with an instruction that the complainant may contact with these numbers in urgency.  But these numbers were also switched off.  Under such circumstances the complainant was compelled to presume that he was cheated by OP no.1 & OP no.2.  The complainant visited the nearest branch of Tata AIA Life insurance co. situated at Khadinamore   Chinsurah for obtaining suggestion and to know further course of action.  They advised to lodge complain to appropriate authority as recorded in the bonds.  During discussion with the branch staff the complaint came to know that all the branch office of Tata AIA can book the business but only issuing branch   Kolkata can issue the bond.  Then the complainant started corresponding directly to individual all the companies as mentioned above who had issued the bonds.  After several correspondences India Fast & DHFL Pramerica Life insurance CO. Refunded the amount treated as payment within free look period considering the entire episode as fraudulent activities on the basis of the evidences submitted by the complainant. But the TATA AIA  Life Insurance Co. did not make payment as the request for payment was not submitted within free look period i.e. within 15 days from the date of receipt of the documents  and the complainant submits that the opposite parties are jointly and severally responsible and guilty for the deficiency in service required to be served in favour of this complainant. The Opposite party No. 2 represented himself as financial advisor of Opposite Party No. 1 & 3 which also affirmed by the Opposite Party No. 1 by email on 29/7/17 from his email I.d. as mentioned to the addressee i.e. to this complainant. The opposite party No. 2 with an ill motive to defraud the complainant convinced the complainant to issue two cheques in favour of TATA AIA Life Insurance company Limited for Rs.50000/- (fifty thousand only)   vide Cheque No. 009334 dated 11/4/17 S.B.I paid on 28/4/17 to issue one time deposit certificate in favour of this complainant wherein the son of this complainant Mr. Ankush Hazra was nominee only. The complainant only signed the proposal form as per instruction of above said O.P No. 2 and KYC document of complainant and his son were handed over to him at complainant  s house as per his requirement. The entire form was filled up by the representative agent of O.P No. 1 in his own hand writing   but to the surprise of this complainant its appeared that the signature of his son is present in the customer declaration form (photo copy annexed herein) which is quite absurd because at the time of putting signature in question herein (as the time suggested in the document) he (son) was present at his place of job at Hyderabad. Under such circumstance it shall be presumed that the signature of complainant  s son is forged one and done within the knowledge of Opposite Party No. 2 which bears serious criminal liability. All the documents were executed in complainant  s own residence at Bandel in front of representative/agent sent by O.P. No. 1. On 28/12/12 & 11/4/2017 and cheques were handed over simultaneously. But the date of execution as recorded in customer declaration form is 09/01/2017 & 24/4/2017. Further the cheques were paid by the bank on 16/1/2017 & 28/4/2017 respectively but the bonds were issued on 10/1/2017 & 25/4/17 before receiving the funds. Moreover the agent (O.P. No. 4) who had verified the signature of the complainant in the bond neither visited the residence of the complainant at the time of execution normade any conversation over telephone. Simply put the name of the place & date according to his choice.

Complainant filed the complaint petition praying direction upon the opposite party return back the investment by cancellation of policies   vide policies nos. C 252115853 & C 265517273 and to pay a sum of Rs. 50  000/-as compensation for harassment to make good financial loss.

Defense Case:-The opposite party Nos.1 and 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them. As per case of the contesting ops the op   company carries on business of providing insurance service in accordance with relevant and applicable laws. It is stated by the contesting ops that on or about 9^th January   2017 and 24^th April   2017 the op received two duly filled up and signed proposal form from the complainant through their agent for issuance of the policy in which the complainant  s son Akash Hazra was the insured. It is alleged that the terms and conditions of the policy was duly explained by the men and agent of op and thereafter issued policy being no. C 252115853 dated.10.01.2017 and as per terms and conditions of the policy modal annual premium is of Rs. 38  000/- apart from service tax and surcharges and the policy term was for 15 years. It is submitted that as per IRDA regulation 6(2) every policy document provides an option to the policy holder to return the policy document within free look period i.e. within 15 days from the received of the policy   if the policy holder is dissatisfied with any terms and conditions of the policy. It is alleged that in the month of January   2017 the op   company received a further duly signed proposal form from the complainant thorough their broker along with premium payment cheque for issuance of a TATA AIA life insurance Gold Income Plan in which complainant  s son Akash Hazra was the insured and upon received of the proposal for and premium cheque the op company also issued a policy and as per terms and conditions the premium was payable for a period of 12 years and annual premium was Rs. 48  000/-. It is further alleged that the complainant through paid the initial premium in respect of both the policies   however failed and neglected to pay subsequent premiums for which the policy reached to lapse status. It is further submitted that the insurance policy is a contract of indemnity under which insurer undertakes to indemnify the insured from future risk and as such terms and conditions are binding. It is alleged that in the event of any breach of terms and conditions of the policy the same absolves liability of the insurer. According to the case of the op nos. 1 and 3 as the complainant has failed to comply the terms and conditions of the policy   he is not entitled to get any relief in this case. For all these reasons the op nos. 1 and 3 has prayed before this District Forum/ Commission for dismissing this case with heavy cost.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

           The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

           Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

     Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the place of business of op is at Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon  ble State Commission   Delhi and it is reported in 2022 (2) CPR 13 (Del).

     All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

           The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

           For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

           On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that op nos. 1 and 3 are the insurance company and they have contested this case by filing W/V and also by filing evidence on affidavit and Brief notes of argument.
2. It is also admitted fact that the complainant had taken the policy under op nos. 1 and 3 by making payment of premium.
3. There is no controversy over the issue that the complainant had deposited premium of Rs. 50  000/- at the end of the month of January   2017 by paying cheque vide no. 009334 dt. 28.12.2016.
4. There is no dispute over the issue that the said policy no./ bond is bearing no. C 252115853 dated.10.01.2017.
5. It is admitted fact that the op nos. 1 and 3 after payment of the policy premium had issued deposit certificate.
6. It is also admitted fact that the complainant had also taken another policy under op nos. 1 and 3 by making payment of premium.
7. There is no controversy over the issue that the complainant issued five cheques in favour of the op company.
8. There is no dispute over the issue that Mr. Ankush Hazra son of the complainant was the nominee in respect of the above noted policies purchased by the complainant under op nos. 1 and 3.    
9. It is admitted fact that complainant executed all the documents by sitting at his residence at Bandel   Hooghly in front of agent of op no. 1.
10. It is also admitted fact that the complainant had filled up all the columns of the form of op nos. 1 and 3 in respect of the above noted policies and op no. 4 verified the signature of the complainant.
11. There is no controversy over the issue that the complainant had not continued the said policy.
12. There is no dispute over the issue that the op nos. 1 and 3 has not made any payment to the complainant in respect of the above noted policies.
13. It is admitted fact that the complainant thereafter had come across with the ops but failed to get any response.
14. It is also admitted fact that when the complainant had not received any amount from the op nos. 1 and 3   the complainant has instituted this case.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that he has not received any money from op nos. 1 and 3 inspite of making payment of the premium and after getting policy bond C 252115853 dated.10.01.2017 and C 265517273 dt. 24.4.2017 but on the other hand the ops have taken the defence alibi that the complainant has availed the policies after reading   understanding and being satisfied with the terms and conditions of the policy and if the policy holder fails to read   understand and satisfied with the terms and conditions of the policy it is his personal liability and for that reason the ops are not responsible. In this regard the op has referred the decision of Hon  ble National Commission passed in the case of Kishor Chandrakant Rathod –vs- ICICI Prudential Life Insurance &Anr. III (2014) CPJ 154 (NC).

For the purpose of arriving at just and proper decision over the above noted points of differences and/ or apple of discords it is very important to note that insurance policy is a contract of indemnity under which the insurer undertakes to indemnify the insured from future risk and as such terms and conditions are binding upon both. In view of this position the op nos. 1 and 3 are bound to indemnify the complainant who is the insured of this case. Moreso   over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act   1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon  ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus it is crystal clear that the service provided by the opposite party   Insurance authority is not at all proper and it clearly indicates that there is deficiency in service and so the complainant is entitled to get the relief which has been described in points of consideration nos. 4 and 5 of this case.

A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration and so he is entitled to get relief in this case.

In the result it is accordingly

ordered

that the complaint case being no. 131 of 2018 be and the same is allowed on contest but in part against op nos. 1 and 3 but it is dismissed on contest against op nos. 2 and 4.

It is held that the complainant is entitled to get direction upon the op nos. 1 and 3 in the matter of refunding the invested amount by cancelling the policies vide policy nos. C 252115853 & C 265517273 and the complainant is entitled to get back Rs. 1  00  000/- from the op nos. 1 and 3 along with interest @ Rs. 9% per annum from the date of filing of this case.

Opposite party nos. 1 and 3 are directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

           In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 3 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

           The Final Order will be available in the following website www.confonet.nic.in.