Date:- 12.11.14

Sri J. Bag, Ld. Member,

       The present appeal , though dismissed for default vide this Commission’s Order No. 7 dated 21.11.13, has been revived and put on proceedings in terms of the Order of the Hon’ble National Consumer Disputes Redressal Commission,  dated 06.03.2014, in Revision Petition No. 675 of 2014.

          The appeal is directed against the Order dated 18.12.2012 of the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in CC Case No. 341/2012 whereby the complaint was allowed exparte with cost and such reliefs as were considered to be fit.

          The complaint case, in brief, was as follows:

          The Complainant took 2 Life Insurance Policies under Kotak Super Advantage Plan , bearing  Nos. 02054622 and 02054661 dated 15.07.2010 and 10.08.2010 respectively by paying first premium of Rs. 50,000/- by an account payee cheque bearing No.718000 dated 25.06.2010 for Rs. 25,000/- each  drawn on SBI . Subsequently, the Complainant on 26. 09 2011  handed over 2 other account payee  cheques bearing Nos.718010  of the SBI and another No. 978735 of UBI  both dated 26.09.2011 worth Rs.25,000/- each to a representative of the OP / Insurance Company. Such payment was received by the OPs vide acknowledgement No. SU261792 . Surprisingly, the Complainant was informed that due to some problems relating to paper work , the last  two cheques would not be honoured upon presentation at the Bank inspite of sufficient balance in the account of the Complainant. Immediately thereafter, the Complainant  issued a legal notice dated 07.01.2012 with instruction upon his bankers for ‘stop payment’. The Complainant received a notice dated 10.12.11 from the OP/ Insurance Company stating that owing to non- receipt of renewal premium due on 10.08.2011 , the Insurance Policy No. 02054661 moved into lapse mode with effect from 14.09.2011 . The Complainant issued a letter dated 10.08.2012  to both the OPs, but to no effect. The Complainant suffered a huge loss amounting to Rs. 50,000/- , apart from mental harassment . Accordingly, the Complainant preferred a consumer complaint before the Ld. Forum below praying for direction upon the OPs to pay compensation of Rs.5,00,000/- for their illegal, arbitrary and mala-fide acts.

          None of the OPs appeared to contest the case before the Ld. Forum below

          Ld. Forum below observed that inspite of sufficient balance at the Complainant’s account , the cheques were said to have not been honoured for payment of premium of the policy in question . It was further observed  that the OPs ‘never intended to complete their part of performance by continuing the said Policy’ . The act of the OP Insurance Company appeared to be an unfair trade practice and as there was no reason to disbelieve the unchallenged testimony of the Complainant , the complaint was allowed ex parte against the OP Nos. 1 and 2 .  who were directed jointly and severally to renew the said policy being No. 0205466 within one month from the date of the Order , treating the Policy of the Complainant as continued from the date of 14.09.2011 on receipt of the premium amount and thereafter , the OP No. 1 and 2 shall receive premium required. The Complainant was also directed to deposit the back year’s premium to OP No.1 within one month from the date of the order , failing which the Complainant shall not get the benefit of the order and the policy shall remain lapsed. In that case , the Complainant shall be entitled to get back the already deposited amount along with the simple bank interest @ 8% p.a. from the OPs. The OPs were also directed to pay litigation cost of Rs. 4,000/- to the Complainant and Rs. 30,000/- to the head of the State Consumer Welfare Fund. In the event of non-compliance of any portion of the order by the OPs within a period of one month from the date of the order , the OPs should pay a sum of Rs. 300/- per day till its realization , as interest , from which 50% shall be paid to the Complainant and the rest 50% shall be deposited by the OPs in the State Consumer Welfare Fund.

          Being aggrieved by and dissatisfied with the Order of the Ld. Forum below, the OP Insurance Company has come up before this Commission with prayer for direction to set aside the impugned order dated 18.12.2012 dismissing the complaint or sending the case on remand to the trial Forum for deciding the matter de novo after giving the Appellant opportunity to defend the case by filing written statement and leading evidence.

          Ld. Advocate appearing for the Appellant submitted that the Appellant after considering the proposal forms issued the policy No. 02054622 in the name of the Respondent’s wife , Smt. Krishna Chakrabarty and another policy bearing No.02054661 in the name of the Respondent Sri Chittaranjan Chakrabarty. The Appellant did not receive renewal premium as due on 15.07.2011 and 10.08.2011 in respect of the said policies . The policy lapsed as no premium was received after the payment of first premium only. A complaint Case being filed, Appellant received the summons . Mr. S.K. Banerjee Advocate was engaged to prosecute the case but failed to appear as a result of which Ld. District Forum decided the case exparte. The order of the Ld. Forum below is, however, illegal as the policy has been lapsed for non-payment of renewal premium. Further , though the Complainant in his petition prayed for compensation only from the Appellant for the alleged deficiency in service , Ld. Forum below passed orders erroneously awarding such reliefs as were not prayed for . The contention of the Complainant / Respondent that he allegedly handed over the cheque, though belatedly, for renewal premium has not been proved with any evidence. As per terms of the policy, the policy holder has to ensure that the premiums are duly and properly discharged . As the Respondent failed to pay the premium, the policies were lapsed . There is no communication from the Insurance Company to show, as stated by the Complainant, that due to some problems relating to paper work , last two cheques would not be honoured upon presentation at Bank inspite of sufficient balance in the account of the Complainant. The Order has been passed without taking into consideration relevant documents and evidence. The Order may be dismissed.

          Ld. Advocate appearing for the Respondent submitted that the Respondent / Complainant duly handed over two cheques to the representative of OP Insurance Company for renewal of his policies in time. It was a lapse on the part of the OPs themselves that the cheques were said to be  dishonoured without proper reason. The Insurance Company never issued any notice in the form of reminder to the Respondent for payment of renewal premium which was definitely a lapse on their part. Ld. Forum below has rightly adjudicated the matter and awarded such reliefs as were considered to be fit in the facts and circumstances of the case. The impugned order deserves to be upheld.

                             Decision with Reasons

          We have gone through the memorandum of appeal together with copies of the impugned order dated 18.12.2012 , the petition of complaint , policy papers and correspondences between the Complainant and the OPs. We have also gone through the LCR and heard Ld. Advocates appearing for both the Appellant and the Respondent . The moot question is whether the Complainant is entitled to the reliefs as awarded by the Ld. Forum below .

          It has been pointed out in their appeal by the Appellant (Paragraph –G Page -7 ) that the Respondent sought for compensation of Rs. 5,00,000/- from the Appellant for the alleged deficiency in service, while the Ld. Forum below passed an order contrary to the prayer awarding such reliefs as were not prayed for.

          The fact goes that the Respondent / Complainant after having purchased the two policies upon payment of premium due , did not arrange to pay renewal premiums in time , though two separate cheques are said to have been issued on SBI and UBI for Rs. 25,000/- each  on 25.09.2011 . Ld. Forum below appears to have taken for granted that the cheques were issued and it was the fault on the part of the OP Insurance Company in not accepting payment against the said cheques towards renewal premium. Ld. Advocate appearing for the Appellant emphatically stated that no proof in support of issue of such cheques was produced by the Ld. Forum below. It is indeed difficult to accept the fact  , as stated by the Complainant in his petition of complaint , that he was informed  that due to some problems relating to paper work , last two cheques would not be honoured upon presentation at the Bank inspite of sufficient balance in the account of the Complainant / Respondent. If such cheques were really issued and not presented before the Bank it would be appropriate on the part of the Complainant to produce the said cheques before the Ld. Forum below as part of evidence to establish that the cheques were issued in the name of the Insurance Company towards payment of renewal premium . As per the statement of the Complainant cheques were issued on 26.09.2011. Even in such case payment of renewal premium was overdue in respect of both the policies as in respect of policy No. 02054622, the due date was 15.07.2011 (15.08.2011 with grace period of 30 days as per policy condition ) and in respect of policy No. 02054661 such due date was 10.08.2011 ( 10.09.2011 with grace period of 30 days ) . In any case that the payment of premium towards renewal of policy was not made in time is clear . In the given position, the Order of the Ld. Forum below suffers from material irregularity and legal infirmity, in so far as the Order was passed without consideration of material facts and evidence regarding payment of renewal premium. We are inclined to set aide the impugned order as there is sufficient merit in the appeal. The Appellant should be given an opportunity to submit their written statement and evidence  and, at the same time, opportunity of hearing for fresh order by the Ld. Forum below.       Hence,

                                                Ordered

that the appeal be and the same is allowed. The impugned order is set aside and the matter is sent back on remand to the trial Forum below for fresh order after giving of opportunities of hearing to both parties as expeditiously as possible. There shall be no order as to costs.

          Let a copy of this order be sent to the Ld. Forum below along with the LCR .