BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 25^th DAY OF MARCH 2021

CONSUMER COMPLAINT NO.08/2018

PRESENT:                                                          

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.             ….        MEMBER

Andrew Joseph,

S/o Joseph Andrews,

Christian Aged about 64 Years,

No.40, 5^th Cross,

(Complainant is Rep by Sri.S.Krishnaswamy, Adv)

V/s

OPPOSITE PARTIES:

1. Canara Bank,
2.  
3.  

Represented by the Chief Manager,

Sponsor Canara Bank HSBC Oriental Bank

of Commerce Life Insurance Company Limited.

(Opposite Party No.1 is Rep by Sri.M.S.Vinayak, Adv)

2. Canara Bank HSBC Oriental Bank of

Commerce Life Insurance Company Limited,

Sec-48, Sohana Road,

Gurugram-122 018,

Haryana, Represented by its Manager.

(Opposite Party No.2 is Rep by Sri.S.Rajesh, Adv)

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

                                                    ******                  

//ORDER ON APPLICATION U/S 151 OF CPC OF OPPOSITE PARTY NO.2 AND ON MAIN MATTER //

1. The Opposite Party No.2 by filing the application u/s 151 of CPC requests this Commission to dismiss the complaint, as Opposite Party No.2 has already refunded amount of Rs.1,81,353.15/- on 10.09.2018.  In view of refund, the Opposite Party No.2 is not parties.  Therefore, the Opposite Party No.2 requests to allow the application and dismiss the complaint. 

2. After taking notice, the Complainant files affidavit as an objection.  He admits remittance of Rs.1,81,353.15/- to his account with Canara Bank and on 24.09.2018 he filed a letter that one of the executives of 2^nd Opposite Party Sri.Anshu Singh called upon the Advocate for Complainant to settle the matter.  The Complainant and his Advocate informed Mr.Anshu Singh that an amount of Rs.1,20,000/- shall be paid.  After deducting Rs.1,81,353.15/- out of the claim amount of Rs.2,53,873/- and amount of Rs.72,250/- remains and after adding interest of Rs.66,000/-, the amount payable is Rs.1,38,520/-.  Hence, he requests this Commission to dismiss the application. 

3. The Complainant by invoking Section-12 of the Consumer Protection Act, 1986 seeks direction against the Opposite Parties to pay Rs.2,53,873/- towards payment of amount as per letter dt.29.05.2015, interest thereon damages of Rs.50,000/- and Advocate fees of Rs.5,000/-.

4. The case of the Complainant in brief is as under:

The Complainant is a customer of Opposite Party No.1 Bank and he had invested Rs.1,00,000/- on the assurance that he would get good amount.On 23.04.2015 and by means of subsequent letters, he had requested the Opposite Parties to refund his amount with profits.On 29.05.2015 he received an application that they would cancel the policy and refund the money with accruals i.e., Rs.1,50,0161.67/-.He got issued legal notice dt.01.09.2017 to the Opposite Parties, but Opposite Parties have failed to repay the money with profits.There is a deficiency of service on the part of the Opposite Parties.Hence this complaint.

5. After receipt of notice, both parties appear through their counsel and file separate version. 
6. The Opposite Party No.1 contends that the complaint is not maintainable either in law or on facts.  The Opposite Party No.1 was only a mediator and Complainant had invested the amount with Opposite Party No.2.  In response to the letters of the Complainant dt.23.04.2015, letter date 29.05.2015 was sent to the Complainant that they would cancel the policy and amount of Rs.1,50,0161.67/- will be refunded, but the Complainant failed to comply the terms.  Hence, there is no deficiency of service.  The Complainant is not entitled to any amount.  The Opposite Party No.1 requests this Commission to dismiss the complaint.

7. The Opposite Party No.2 denies the allegations made by the Complainant except admitting the deposit amount for a period of 5 years and correspondence.  The policy bearing No.0013670314 dt.05.04.2010 was issued to the Complainant.  A letter dt.31.03.2015 had been sent to the Complainant about expiry of 5 years period and submission of the records.  Despite subsequent letter, the Complainant failed to comply the request made in letter dt.29.05.2015, there is no deficiency of service.  The Opposite Party No.2 requests this Commission to dismiss the complaint.

8. The Complainant files affidavit evidence and relies on documents. The affidavit evidence of official of Opposite Party No.1 and Opposite Party No.2 have been filed.  Perused five documents produced by the Opposite Party No.2. 
9. Heard the arguments of counsel for the Complainant only.  No argument is advanced on behalf of the Opposite Parties. Perused the written argument of Opposite Party No.2. 

10.  The points that arise for our consideration are;

1. Whether the Complainant proves deficiency of service on the part of the Opposite Parties ?

2. Whether the complainant is entitle to reliefs claimed in the complaint ?

3. What order? 

11. Our findings on the above points are as under:-

1. POINT NO.1 & 2    : Negative
2. POINT NO.3           : As per the final order for

                                the following;

:REASONS:

12. POINT NO.1 & 2:- The Opposite Party No.2 has filed application to dismiss the complaint, as sum of Rs.1,81,353.15/- paid to the Complainant during pendency of this case.  Whereas, the Complainant opposed this application admitting receipt of the said amount, but according to him a sum of Rs.1,50,0161.67/- is due from the Opposite Parties.             
13. Both parties have filed their affidavit evidence representing the averments made in the complaint and version.

14. At the first instance, we would like to refer documents produced by the Complainant.  The Complainant has produced six documents along with complaint and three documents on 02.01.2019.  The document No.1 is the Policy Schedule bearing Policy No.0013670314, dtd.05.04.2010, Risk Commencement dtd.05.04.2010 and Vesting dtd.05.04.2015.  The payment of Rs.1,00,000/- by the Complainant to Opposite Party No.2 on 05.04.2010 is not in dispute.  Under document No.2 dt.23.04.2015, the Complainant called upon the Opposite Party No.1 to pay his amount.  The document No.3 is the reply of Opposite Party No.2 dt.29.05.2015 calling the Complainant to send request letter for cancellation duly signed by the Policy Holder with original policy document.  The same letter has been produced by the Opposite Party No.2 as document No.5.  In response to this letter, within 15 days from the date of this letter dt.29.05.2015 the Complainant neither submitted a letter for cancellation duly signed by him and original policy document.  However, the Complainant issued legal notice only on 1^st September 2017, as per document No.4 to Opposite Party No.2 request payment of his amount with compensation and cost of the notice.  This notice remains unserved on Opposite Party No.2.  After lapse of two years from 29.05.2015, the Complainant has issued legal notice                           dt.1^st September 2017, the cause of action to the Complainant for refund of his deposited amount with interest if any arose on 29.05.2015 or at least from the date of receipt of this letter.  According to the Complainant, the Opposite Parties accepted to repay an amount of Rs.1,50,0161.67/- on 29.05.2015, but complaint came to be filed on 02.01.2018 after expiry of two years from 29.05.2015.  The Complainant has not filed any application u/s 24(A) of Consumer Protection Act, 1986 to condone the delay.  Mere issuance of a legal notice, on 1^st September 2017 does not save the limitation.  The Opposite Parties more particularly, Opposite Party No.1 specifically contends that the complaint is not maintainable either in law or on facts.  The complaint has not been filed within two years from 29.05.2015.

15. The Complainant has produced three documents on 02.01.2019.  The first document is dt.14.09.2018 from Opposite Party No.2 about processed the unclaimed amount of Rs.1,81,353.15/- and transferring of said amount to the account of the Complainant bearing No.1370101009319.  The Complainant also admits receipt of this amount during pendency of this case.  This payment during pendency of this complaint does not save the limitation.  The Complainant has produced copy of letter dt.24.09.2018 addressed to Opposite Party No.1 about deposit of Rs.1,81,353.15/- to his account.  He has also produced the copy of his passbook which indicates that a sum of Rs.1,81,353.15/- has been credited to the Bank Account of the Complainant on 10.09.2018 through NEFT of Opposite Party No.2.  It is true that this payment is less than amount clamed in this case. 

16. The Complainant himself has not complied the request made by the Opposite Party No.2, in the letter dt.29.05.2015 and he has not filed any complaint within 2 years from that date.  Moreover, they not denied payment of amount.  The Complainant failed to comply the request of Opposite Party No.2 i.e., return of policy and duly signed letter for cancellation of policy.  Therefore, the Opposite Parties were not in fault.  There was no deficiency of service on the part of the Opposite Parties. 

17. The Opposite Party No.2 has produced 5 documents.  These documents are not in dispute.  Document No.1 is Proposal Form signed by the Complainant including the terms and conditions.  Document No.2 is the letter of Opposite Party No.2 to the Complainant dt.31.03.2015 wherein the Opposite Parties informed the Complainant i.e., policy came to be matured and sum of Rs.1,50,0161.67/- was payable, but the Complainant has not complied request made in this letter. However, the Complainant had addressed letter on 23.04.2015 to Opposite Party No.1 for refund of his insurance amount.  Infact, after completion of the policy period, the Opposite Party No.2 was only liable to pay the amount to the Complainant.  However on 08.04.2015, the Opposite Party No.2 by addressing a letter to the Complainant informed the Complainant that on 05.04.2015 the policy cannot be surrendered.  However, as admitted by the Complainant that the Opposite Party No.2 sent annexue-5 dt.29.05.2015 calling the Complainant to subsequent request letter for cancellation duly signed by him with original policy document.  It is not the case of the Complainant that in response to this letter, he had forwarded required letter with policy to the Opposite Party.  In the absence of compliance, the Complainant cannot blame the Opposite Parties. Infact, the Complainant himself has not complied and remained silent for more than two years.  However, the Opposite Parties has chosen to transmit Rs.1,81,353.15/- during pendency of this complaint.  The Complainant has received invested amount with accrued interest.  Despite receipt of this amount, the Complainant claims more amount without any deficiency of service on the part of the Opposite Parties.  The Complainant himself is responsible for noncompliance request made by the Opposite Parties by letter dt.29.05.2015.  On the date of filing this complaint a sum of Rs.1,50,0161.67/- was due from the Opposite Parties to the Complainant.  It is true that during pendency of this complaint, the Opposite Party No.2 has transmitted Rs.1,81,353.15/-.  Mere transfer of this amount, the complaint cannot be dismissed on the basis of I.A.  However due to the failure on the part of the Complainant to prove deficiency of service on the part of the Opposite Parties, the Complainant is not entitled to any relief.  Therefore, we answer these points against Complainant.

18. POINT NO.3:  Having regard to the discussion made in the preceding paragraphs, the complaint requires to be dismissed.  Accordingly, IA No.1 requires to be disposed-off.  We proceed to pass the following;
6698606.  

The complaint is dismissed without cost.  I.A i.e., application u/s 151 of CPC of Opposite Party No.2 is disposed-off. 

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to both the parties.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 25^th day of March 2021)

• M.B. SEENA )      (L.MAMATHA)      (K.S.BILAGI)    
•  

Witness examined for the complainants side:

Sri.Andrew Joseph, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Policy schedule.
2. Letter dt.23.04.2015 by the Complainant to the 1^st Opposite Party.
3. Reply letter dt.29.05.2015 by 2^nd Opposite Party.
4. Advocate’s notice dt.01.09.2017 with acknowledgment by                    1^st Opposite Party.
5. Returned (Refused) Registered letter (unopened cover).
6. Photocopy of the above with Acknowledgment by the                         1^st Opposite Party.
7. Letter by the Opposite Party dt.14.09.2018.
8. Letter by the Complainant dt.24.09.2018.
9. Copy of Statement of Account of the Complainant.

Witness examined for the opposite party side:                  

 Sri.Nataraja Kora Narasimhaiah, Senior Manager of the Opposite Party No.1 has filed his affidavit.

Sri.Gurvinder Singh Talwar, Manager-Legal of the Opposite Party No.2 has filed his affidavit.

Documents marked for the opposite parties side:

1. Copy of the Proposal Form and Policy Documents.
2. Copy of the letter of Opposite Party dt.31.03.2015, dt.23.04.2015, 08.05.2015 & 29.05.2015.

• M.B. SEENA )         (L.MAMATHA)          (K.S.BILAGI)    
•