IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/ 77/13.
Date of Filing: 04.06.2013. . Date of Final Order: 21.09.2017.
Complainants: (1) Sri Debdas Roy, S/O Late Aswini Kr. Roy, Kandi Natunpara, P.O.& P.S. Kandi, Dist. Murshidabad. (2) Smt. Juntala Roy , W/O Sri Debdas Roy, Kandi Natunpara, P.O. & P.S. Kandi, Dist. Murshidabad.
-Vs-
Opposite Parties: (1) Branch Manager, United Bank of India, Kandi Branch (Near Chhayapath Cinema House), O.O.& P.S. Kandi, Dist. Murshidabad.
(2) United Bank of India, 16, Old Court House Street, Kolkata-700001.
(3). Sri Amit Sinha , Deputy Manager, United bank of India, Kandi Branch,
P.O.& P.S. Kandi, Dist. Murshidabad.
(4) Prosenjit Bhaskar, the then Officer of Tata AIG Life Insurance Co. Ltd. Holding office at U.B.I, Kandi and residing at 49/2, Nimai Chhay Bhai Lane, Khagra, P.S. Berhampore, Dist. Murshidabad.
(5) Managing Director, Tata AIG Life Insurance Company Ltd, Delphi-B Wing, 2nd Floor, Orchard Avenue, Hiraanandani Business Park, Powai, Mumbai-400076.
Present: Sri Anupam Bhattacharyya ………………….President.
Smt. Chandrima Chakraborty.……………. Member.
Sri Manas Kumar Mukherjee ………………….. Member
FINAL ORDER
Sri Anupam Bhattacharyy Presiding Member.
This complaint has been filed by the complainants U/S 12 of C. P. Act, 1986 praying for refund of deposited amount of Rs.1,00,000/- to the complainant No. 2 and also an order to pay compensation of Rs.10,000/- and cost of Rs.10,000/- along with admissible interest .
The complainant’s case, in brief, is that the complainants being fraudulently induced by the OP Nos. 1,3 and 4 invested in two polices vide No. U-176506603 and U176507738 dt. 26.6.11 and 04.07.2011 by initial deposit of Rs.50,000/- each i.e total deposit of Rs.1,00.000/- with the false assurance that after deposit of Rs.50,000/- per year for five years total matured value after five year will be Rs .4,37,000/- for each policy. Subsequently, they came to know that the said policy is for 15 years and the deposit is to be made for 15 years. The complainant No.2 policy holder is a Senior Citizen House-wife and her husband complainant No.1 is a senior Citizen aged 73 years pension-holder. They had no such financial capacity to continue such deposit for 15 years and for that they wrote to OP-Insurance Co. for refund of the said deposit. Being refused straight way the complainants have no other alternative but to file this complainant before this forum praying for refund of Rs.1,00,000/- the initial deposit money and with interest and compensation of Rs.10,000/- and cost of Rs.10,1000/- . Hence, the instant complaint case.
The OP Nos. 1 to 3 Banks’ case, in brief, is that OP Nos. 1 to 3 have no nexus with the impugned policies in between the complainant No.2 and OP Nos. 4 &5. These OPs have denied the allegation of fraud against them. They are not liable in case of fraud against them. They are not liable in this case in any way. Hence, the instant OP nos. 1 to 3’s case.
The written version filed by OP Nos. 5 TATA AIG LiC, in brief, is that the original policy was dispatched on 07.07.11 and 09.07.11 and were duly received by the complainants along with a letter enclosing extract copy of regulation of Cl.6(2) with clear intimation of the provisions of “Free Look Period” for withdrawal or return of policy within 15 days if not satisfied with the policy. This OP for the first time received a letter dt. 29.8.11 on 30.08.11 and replied on 15.9.11 stating the policies are unit linked policies and fund value depends on a market performance. The complainant in that letter did not write anything about their dissatisfaction or for cancellation of policies. Thereafter, , on 10.01.12 OPNo.5 received a letter dt. 30.12.11 much beyond free look period for refund of premiums and for cancellation of the policies. The complainant has failed to pay subsequent premiums and for that the policies have automatically become surrendered. This OP has denied the allegation of fraud and inducement. The complainants are not entitled to get any relief. The complainants policy-holder is entitled to get the deposit amount of Rs.1, 00,000/- along with interest @3.5 after end of locking period of five years only. Hence, the instant written version filed by OP No.5.
Considering the pleadings of both sides, the following points have been raised for the disposal of the case.
Points for decision.
- Whether the complaint is maintainable in its present form and law?
- Whether the complainant has any locus-standi to file the present case?
- Whether the petition is barred by principle of estoppels, waiver and acquiescence?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 4.
All the points are taken up together for the sake of convenience.
The instant complaint is for an order directing upon all the OPs jointly and severally to pay Rs.1, 00,000/- to the complainant No. 2 and also an order to pay compensation of Rs.10,000/- and cost of Rs.10,000/- along with admissible interest .
The complainant’s main case is that the OP No.3 Sri Amit Sinha, Dy Manager, UBI, Kandi Branch in collusion with OP No.4 Prosanjit Bhaskar induced the complainant fraudulently and compelled him to interest in the impugned policy representing to get of Rs.4, 37,000/- after 5 years against investment by two policies by annual premium of Rs.50, 000/- each where the policy was actually for 15 years. The complainant disconnected the policy, claimed for return but refused. Then, filed the instant complaint.
On the other hand, the OP-Bank has categorically denied the allegations of the complainant entirely. The OP-Bank is not liable to pay any compensation. The Op No.4 has not induced the complainant fraudulently to invest in the impugned policy and this forum has no jurisdiction to decide the allegation as to fraud.
The OP No.5-Insurance Company’s case is that the complainant is an educated person reading and understanding the terms and conditions invested in the impugned policy and has failed to avail free look period and being discontinued the complainant is entitled to get refund after competition of lock-in period of 5 years.
To prove the case the respective parties –the complainant, the Op Nos. 1 to 3-Bank and Op Nos. 4&5 TATA AIG –Insurance Company have separately adduced evidence-on-affidavit along with relevant documents in support of their respective cases.
The complainant No.1 and Op No.3 have deposed on dock and they have been duly cross-examined by their respective other sides.
Also, all the respective parties have separately filed their respective written argument and they have also advanced argument before this Forum.
Admittedly, the impugned two policies are in the name of complainant No.2 who is wife of complainant No.1and the said money was paid by the complainant No.1 husband.
In the written argument the complainant has argued stating that the OP No.4 Prosenjit Bhaskar representative of OP-Insurance sitting in the premises of OP no.3 Bank proposed complainant No. 2 to invest 1 lakh in two installments to fetch maximum benefit of Rs. 437000/- who never disclosed that policy was for 15 days.
In the complaint dt. 14.06.12 to the OP, the complainant narrated how the representative induced her to sign in the blank form. In the form date of birth was written as 01.01.1952 where her actual date of birth is 22.08.1952. Where , her annual income has been shown as 3.25 lakh, where total pension of the complainant No.1-husband is shown as Rs.1,71,100/-.
It is not possible by the complainant No.1 to continue the said policy at this present age of 73 years by paying Rs.1 lakh every year for 15 years.
In the written argument the complainants have advanced argument as under:-
The OP Nos. 1 to 3-Bank and OP No.4 are the root of all evils.
The complainant has denied about their prior knowledge about
terms and condition of the policy. No brochure or literature was
provided to the complainant. So called policy documents main
parts were illegible. The Op Nos. 1&3 being directly involved
in the fraud committed from their bank premises have certainly
defrauded the complainant. The statements of Op Nso.1&3 in
their Written Version to the effect that Ops have no liability in
the matter of mischief done by the representative of TATA AIG
implies the truth about fraud committed.
The main case of the complainant is that the instant two policies in the name of complainant No.2 wife of the complainant No.1 are actually for 15 years whose annual premium is Rs.50,000/- each where it was fraudulently represented as for 5 years.
Admittedly, these policies have been discontinued after payment of initial premium of Rs.50, 000/- each and in total Rs.1 lakh.
It is also admitted that during pendency of this case after completion of locking period of 5 years as per terms and conditions the OP-Insurance Co has paid the dues by disbursement of Cheques on 24.08.2016 amounting to Rs.49, 839.17 and Rs.49, 697.77 against policy Nos. U176507738 and U176506603 respectively and the total amount paid is Rs.99536.94 out of Rs.1 lakh the initial premium paid by the policy holder; complainant No.2. Thus, the OP-Insurance Co. has paid Rs.463.06 less in total than the actual premium paid.
The OP-Insurance Co. has filed the relevant documents against the aforesaid payment.
In this case the complainants have prayed for passing an order upon all the OPs jointly and severally to pay Rs.1,00,000/- to the complainant No. 2 and also an order to pay compensation of Rs.10,000/- and cost of Rs.10,000/- along with admissible interest .
In this case there is allegation of fraud against both the Ops.
And the same has been challenged by the Ops on the ground that this Forum has no jurisdiction to decide fraud and also there is no specific allegation as to specific act against particular person as well as there is no such materials to that effect.
In this regard the Ld. Lawyer for the complainant has advanced argument that the complaint petition has actually been drafted by the complainant himself who was not aware about the legal technicalities. He submits that he is not pressing now for the allegation of fraud against the Ops.
He has also argued referring the settled principle that technicalities are to be avoided.
At the concluding stage of argument after receiving the almost actual amount paid the complainant NO.1 himself has advanced argument particularly against the OP Bank for the wrong representation as to the period of policy and its lucrative return is a matter of unfair trade practice and prays for adequate compensation against bank holding their responsibility. In this particular transaction where the bank has put his signature in the policy as corporate Agent.
Where, the ld. Lawyer for the complainant has advanced argument making both OP-Insurance Co and OP-Bank responsible for the alleged unfair trade practice by false representation as to the policy period for 5 years with lucrative return of Rs.4.37 lakh against annual premium of Rs.50,000/- for 5 years.
In this case both the complainant and OP-Bank have deposed on dock when both the witnesses have been cross-examined by the respective parties, the complainant No.1-Debdas Roy.
PW-1 has deposed on dock in his examination-in-chief in addition to the examination-in-chief by way of affidavit filed by him that he got the Original Policy in the month of July, 2011.
He has deposed during his cross-examination by OP-Insurance Co that he is a graduate and a retired service holder; he has deposed that after getting the Original Policy he read the policy and understood that it was for 15 years and during free-look period he made all conversations with the Bank only.
He has also deposed during his cross-examination by OP-Bank categorically that after getting policy certificate he came to know that the policy was a market linked policy.
On the other hand Sri Amit Kr. Sinha, the then Dy. Manager , OP No.3 Bank has deposed on dock in his examination-in-chief categorically that they have never insisted the complainant to purchase the policy and have nothing to say about duration of the policy.
He has deposed in his cross-examination by the complainant that they have corporate tie-up with the OP-Insurance Co and cannot identify the initial signature in the middle of the seal.
Where, he has categorically deposed in his cross that UBI is a corporate agent of TATA AIG and for that his failure to identify the signature of the Bank official as agent is not fatal in any manner to prove that the Op Bank acted as agent of the OP-Insurance Co in the instant policies of the complainant No.2.
Original Illustration of Policy Document page No.29 out of 40 was shown to the OPW-1 during his cross-examination when he has deposed that the figures noted in the table are not visible.
From this piece of evidence it is clear that the terms and conditions mentioned in the policy document is not visible.
But, from the deposition of PW-1 during his cross-examination by both the OP-Insurance Co and Bank regarding the vital points as to the period of the policy and free-look period it is clear that after getting the Original policy he read the policy and understood that it was for 15 years and then first went to the Bank for clarification and during free look period he made all conversation with the Bank only.
Even if, the terms and conditions in the policy document is not visible from the evidence of PW-1 it is clear that after getting original policy certificate the complainant No.2 first went to Bank for clarification and during the free look period he made all conversations with the OP-Bank only.
It is clear from the first letter dt. 29.8.11 written to the OP Insurance Co that the complainant asked for clarification as he was not satisfied with the reply of the agent as to the return of policy amount referring page 29 of the policy document which was illegible and asked for information for minimum illegible guaranteed return on expiry of locking period of 5 years including all benefits and also asked for supply of legible copy of page 29 of each of the policy.
From the above contention it is clear in the letter dt. 29.8.11 that the complainant did not ask for cancellation of the policy or for dis-continuation of the policy.
It is clear that the complainant simply discontinued the policy after giving the first installment.
The complainant No.2, wife of complainant No.1 is the policy holder of the impugned two policies.
The complainant No.2 is a graduate retired Govt. Servant and his net pension deducting CVP Rs. 1940/- for the month of January 2012 is Rs.14, 254/- and that being so his annual income from pension will be Rs.14254x12 =Rs. 1,71,048/- where the income of the complainant No.2 –the policy holder wife of the complainant No.1 has been mentioned in the claim application form as Rs.325,000/-..
Further, the age of policy holder-complainant 2 at the relevant time was 60 yrs (approx) and the age of her husband was 69 yrs (approx) at that time.
This is a case for civil remedy and for that the settled principle is that the principle of pre ponderance of probability is to be considered.
It is true that the complainant No.1-husband of the policy holder was educated and retired Govt. employee and getting the original policy he came to know about period of the policy for 15 years and without taking proper steps for cancellation of the policy he asked for clarification as to non-reflection of the result of the policy given at the time of initiation of policy.
The technicality as to nature of steps cannot deprive the right of the claimant. Here the complainant raised objection to the OP-Bank verbally who is the Corporate Agent of the OP-Insurance Co and the OP No.3 Bank allowed the agent of OP-Insurance Co. to sit in the premises and as such both OP-Bank and OP-Insurance co are very well involved in the matter of this particular policy and for that we are of view that the reasonability of the circumstance is to be considered. Actually, the financial liability of the instant policy would have to be taken by the complainant No.1 husband whose age is 73 years at the relevant time and his annual income is Rs.1, 71,048/- proved by document and he is to be paid Rs.1, 00,000/- every year for 15 years in a market linked policy is quite impossible, if it was not induced by wrong representation.
To our mind in this particular case the circumstance of inducement is not required to be proved by any cogent evidence by strict proof.
The complainant has only paid Rs.1 lakh and has almost got the same for Rs. 99536.94 till the date of encashment of two cheques dt. 24.08.2016. Thus, the complainant No.2 has suffered loss of interest only.
Considering the above discussions as a whole we find that the complainant No.2 is entitled to get interest @7% pa from the d ate of deposit of initial premium till the date of realization.
In this case the OP-Insurance Company has received the premium amount and the OP Nos. 1 to 3 Bank are involved in this case as a Corporate Agent and for that both the OP-Insurance Co. and OP Bank are jointly and severally liable for payment of the awarded interest. The OP-Insurance Company being directly involved in this transaction the OP-Insurance Co is to pay the same to the complainant No.2 in default both the OP-Insurance Co. and OP-Bank will be jointly severally liable.
Hence,
Ordered
That the Consumer Complaint No. 77/2013 be and the same is allowed in part on contest.
The complainant No.2 is entitled to get interest @7% p.a on Rs. 1, 00,000/- from 04.07.2011 till the date of encashment of two cheques dt. 24.08.2016 within two months from the date of this order and in default she will get further interest @7% p.a. on the amount payable till realization.
The Op Nos.1,2 and 3 Banks and OP Nos. 4&5 Insurance Company are jointly and /or severally liable to pay the same.
The OP No.5 -Insurance Co is directed to pay interest @7% p.a on Rs. 1, 00,000/- from 04.07.2011 till the date of encashment of two cheques dt. 24.08.2016 within two months from the date of this order and in default she will get further interest @7% p.a. on the amount payable till realization to the complainant No.2 with two months from the date of this order, in default both the OP-Insurance Co. and OP-Bank will be jointly severally liable to pay further interest @7% p.a on the principal from 04.07.11 till realization and also to pay fine @Rs.50/- per day’s delay by Demand Draft and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under registered post with A/D to the concerned parties as per rules, for information and necessary action.
