FINAL ORDER / JUDGEMENT

            Sri. Apurba Kr. Ghosh ……...................President

The Complainant has filed this case against the OP’s and praying for the following relief / orders:-

1. Direction against the O.P’s No. 3 & 4 to reimburse Rs. 3,79,923.16 to the complainant along with interest with effect from 01.07.2010 till making payment.
2. Direction against the OP’s No. 1 & 2 to pay a sum of Rs. 1,00,000//- to the complainant for causing mental pain, agony and harassment.
3. Direction against the OP’s to pay a sum of Rs. 50,000/- to the complainant on account of punitive damages.
4. Direction against the OP’s No. 5 to pay a sum of Rs. 50,000/- to the complainant for misleading him which creates mental pain & agony to the complainant.
5. Direction against the OP’s to pay a sum of Rs. 20,000/- to the complainant towards cost of legal proceedings.
6. Any other relief or reliefs to which the Complainant is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. That the Complainant is a peace loving and law abiding citizen of India.
2. That, the OP no. 1 is a Banking company and OP no. 2 is the Manager of OP no. 1 and  he is liable & responsible for the day to day business and affairs of the OP no. 1.
3. That, the OP no. 3 is the insurance company P no. 4 is the Branch Manager of OP no. 3 and thereby liable & responsible for the day to day works & affairs of the OP no. 3/ OP no. 5 is an employee of the OP no. 1 and he is working in the office of the OP no. 2.
4. That the complainant had availed one car loan from the OP no. 1/ he started making payment of monthly EMI to the OP no. 1 through his account No. 01511000081001 on regular basis without defaulting any EMI and due to the payment of that EMI a cordial relationship was grown up between the complainant and the OP No. 2 & 5.
5. That, after completion of EMI for car loan the OP no. 2 & 5 requested the complainant to open an recurring account with the OP no. 1 bank and after believing & relying upon the OP no. 2 & 5 the complainant put his signature on the form produced by the OP no. 2 & 5 without going through the contents of that form.
6. That, on 01.07.2010 the OP no. 1 deducted a sum of Rs. 20,000/-  from the account of the complainant and then the complainant asked the OP no. 5 about such deduction of Rs. 20,000/- and the OP no. 5 disclosed that, the said sum was deducted for opening the monthly recurring account.
7. That, on 01.09.2010 another sum of Rs. 20,000/- was deducted from the account of the complainant and thereafter deducted a sum of Rs. 4998.87 from the account of the complainant on regular basis and the complainant did not raise any objection under the impression that, the OP no. 1 has deducted the said sum of money for the purpose of recurring account.
8. That, subsequently the complainant had received on notice issued by the OP no. 3 which was written in English and the complainant being an illiterate person he took help from the senior officials of his company and after understanding that, he immediately made contact with the OP no. 2 & 5 and subsequently he came to know that, in collusion with each other they have opened an insurance policy in the name of the complainant/ complainant also contacted with the OP no. 4 asking him to provide the original policy certificate, original money receipt, original policy bond which the complainant never got the same from the OP’s.
9. That, after consulting with the OP no. 3 the complainant came to know that, the original documents are already handed over and no original documents are lying with them and subsequently the complainant came to know that the OP no. 2 & 5 might have retained those documents with them and they have not opened the recurring account in the name of the complainant but they have opened an insurance policy in the name of the complainant in a fraudulent manner.
10. That, there after the complainant visited the OP No. 1 & 2 on several occasions with a request to reimburse his entire deducted amount/ there after the OP no. 1, 2 & 5 started avoiding the complainant/ subsequently the complainant requested the OP No. 4 to provide all the original documents but the OP no. 4 flatly refused to provide any original documents.
11. That, the complainant then was compelled to file this case.
12. That, the OP no. 1 & 2 have deducted a sum of Rs. 3,79,923.16 from the account of the complainant and the acts and conducts of the OP’s it is proves that, there was deficiency of service on the part of the OP’s.
13. That, the cause of action for this case arose on and from 01.07.2010 when the OP’s has deducted a sum of Rs. 20,000/- from the account of the complainant and on 02.09.2011 when the complainant has received notice from the OP no. 3 and first time came to know about the insurance policy and there after each & every day within the jurisdiction of this Commission.

In support of the complaint the complainant has filed the following documents:-

1. Photocopy of statements of Account being No. 01511000081001 from 01.04.2009 to 08.07.2011 of HDFC Bank Ltd. Siliguri standing in the name of the complainant.
2. Photocopy of statements of Account being No. 01511000081001 from 01.04.2010 to 31.05.2013 of HDFC Bank Ltd. Siliguri standing in the name of the complainant.
3. Photocopy of letter dated 02.09.2011 issued by the concerned authority of the OP No. 3 to the complainant.
4. Original copy of policy account statements of being policy No. 004398177 from 01.04.2010 to 04.01.2011 of HDFC  Bank Ltd., Siliguri standing in the name of the complainant.
5. Original copy of policy statement being policy No. 004400283 from 01.04.2010 to 04.01.2011 of HDFC Bank Ltd., Siliguri standing in the name of the complainant.
6. Original copy of policy account statements of being policy No. 004227872 from 28.06.2010 to 28.06.2011 of HDFC Bank Ltd., Siliguri standing in the name of the complainant.
7. Original copy of statements of account being No. 01511000081001 from 08.09.2007 to 28.07.2011 of HDFC Bank Ltd. Siliguri standing in the name of the complainant.
8. Original copy of Termination Notice_3 dated 14.08.2014.
9. Original copy of letter dated 26.08.2014.

Notice was issued from this Commission for serving the same upon the OP’s. On receipt of notice the OP’s No. 1 & 2 appears before this Commission through Vokalatnama files written version, denied all the material allegations of the complainant. In the written version the OP’s No. 1 & 2 have stated that, they are the Financial institution Banking company and the manager of the branch office/ the complainant is not a consumer/ the instant proceeding is not maintainable either in fact or in law/ the complainant has no cause of action to file this case/ the complaint is barred by law of limitation/ the complainant is a consumer in respect to savings bank account being in No. 01511000081001 but he is not a consumer in respect to insurance policy/ the main grievance of the complainant is against the insurance company and thereby the present OP’s No. 1 & 2 are not responsible and thereby case is bad against them/ the complainant has no locus standi to file this case. The OP’s No. 1 & 2 have further stated that, they are merely Banker of the complainant who never received any insurance premium nor issued any insurance policy to the complainant and also stated that, the investment done by the complainant wasa market based investment.

In the written version the OP’s No. 1 & 2 have also stated that, they received ECS mandate from the complainant to pay premium of Rs. 59,987/- during the period August 2008 to July 2030 and accordingly said money was debited. They further stated that, the statements of Para No. 1 they have noknowledge and the OP No. 5is not working with the OP no. 1 and they ( OP no. 1 & 2) have no knowledge whether any cordial relationship between the complainant and OP no. 5 had at all grown up/ it is also stated that the statements of Para No. 5 & 6 are inconsistent as well as contrary to the facts and the OP no. 2 never made request or tried to convince the complainant to open any account or the OP no. 2 never asked the complainant to put signature and the complainant on 13.09.2010 & 14.09.2010 submitted duly filled two mandate forms being Nos. 004200283 & 004398177 for ECS where it was instructed to the OP no. 1 to pay Rs. 59,987/- annually to the OP no. 3/ they also stated that, they have no tie up with the OP no. 3 & 4. The OP’s No. 1 & 2have also stated in the W/V that regarding Para No. 7 of the complaint they have no knowledge and regarding Para no. 8 to 15 which are not matter of record are contrary/ inconsistent and denied by them. By filing written version the OP’s No. 1 & 2 praying for dismissal of this case.

On receipt of notice both the OP’s No. 3 & 4 have appears through vokalatnama, filed their written version and denied all the material allegations of the complainant. In their written version they stated that, the OP no. 4 is the Branch office of the OP No. 3 and the complaint is not maintainable in facts and law/ no cause of action arose against the OP’s/ there was no deficiency in service on the part of the OP’s/ the complainant being an educated person have gone through the terms and conditions of the application form and he also knew that there was mention of 15 days free look period which the complainant could avail but the complainant did not stated anything in this regard. It is also stated in the written version of the OP No. 3 & 4 that, the complainant applied for three insurance policies from them and they issued three policy certificate being in Nos. i) 004227872, ii) 004400283 and iii) 004398177 and they admits that they have received premium of Rs. 40,018.62 + Rs. 1,24,972.23 + Rs. 1,19,973.36 and also disclosed that, the premium paying term was for 20 years of each policy, mode of payment was annually. The OP’s No. 3 & 4 have further stated that, based on the declaration of the complainant and as per his information policies were issued to him having date of commencement 28.06.2010, 13.09.2010 and 14.09.2010, documents were dispatched to the complainant’s mailing address and the complainant paid premium regularly for the first two years and thereafter did not pay the same and due to non payment of premium the policy got lapsed as per terms & conditions / regarding Para no. 1 & 2 o the complaint it is stated by the OP no. 3 & 4 that, the statements do not have merit & comments, the Para No. 3 is matter of record, Para No. 4 to 6 are denied, Para No. 7 & 8 are also denied. The OP’s No. 3 & 4 have also denied the statements made in Para No. 9 to 16 of the complaint. By filing written version the OP’s No. 3 & 4 praying for dismissal of this case.

In support of the written version the OP’s No. 3 & 4 have filed the following documents:-

1. Copy of proposal forms – Annexure- OP-1 (Collectively).
2. Copy of terms and conditions of the policy – Annexure- OP-2.
3. Copy of premium paid certificate – Annexure- OP-3.
4. Copy of letter dated 02.09.2011- Annexure – OP-4.
5. Copy of letters dated 14.09.2012 & 12.10.2012 are Annexure – OP-5.

Despite receiving notice the OP no. 5 did not appeared before this Commission to contest this case. Accordingly the case is proceedings ex-parte against the OP no. 5.

Having heard the Ld. Advocate of all the parties and on perusal of the Complaint, Written version, documents filed by the parties the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1. Whether the Complainant is a Consumer as per the provision of C.P. Act.?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the Complainant?
4. Whether there was deficiency in service on the part of the OP’s  as alleged by the Complainant?
5. Is the Complainant has able to prove this case and entitled to get any relief as prayed for?

                   DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

          In order to prove the case the complainant has adduced written evidence in the form of an affidavit. In the written evidence the complainant has stated & corroborated the statements made in his written complaint. In the written evidence the complainant has stated that in conspiracy with the OP no. 3 & 4 the OP’s No. 2 & 5 opened insurance policy in the name of the complainant though on several requests the OP no. 4 did not had over the original policy documents, money receipts to the complainant. The complainant has further stated that, the OP’s No. 1 & 2 have deducted a sum of Rs. 3,79,923/- from the bank account of the complainant and the OP No. 1 & 2 have not reimburse the said deducted amount on request of the complainant.

          At the time of hearing of argument Ld. Advocate of the complainant submits that, the complainant has been able to prove the case against the OP’s to the effect that, there was deficiency of service on the part of the OP’s who keeping the complainant in dark opened insurance policies instead of opening recurring deposit account. Ld. Advocate of the complainant has further argued that, they have already filed written notes of argument along with the documents to substantiate/prove the case of the complainant. In the written argument as well as during hearing of argument Ld. Advocate of the complainant has stated that, from the written version of the OP No. 1 & 2 it is proved that there was nexus between the OP’s No. 1 & 2 with the OP’s No. 3 & 4. It is further argued that in Para 6 of the W/V of the OP’s No. 1 & 2 they have stated/ admitted that, the entire premium amount was/were directly paid by the OP’s No. 1 & 2 to the OP’s No. 3 & 4. Ld. Advocate of the complainant has also argued that, the OP No. 1 & 2 admits in their W/V Para No. 11 that immediately after getting knowledge about the insurance policies the complainant contacted with them and the OP’s No. 1 & 2 without taking any written consent from the complainant credited huge amount of money, month by month and the same has proved the deficiency of service on the part of the OP’s No. 1 & 2. Further argument of the complainant is that, the OP’s No. 3 & 4 in their W/V has claimed that, they dispatched the policy documents to the complainant in his address but the complainant has specifically stated that, he got no such policy document and the OP’s No. 3 & 4 have not filed any postal receipt or any A/D Card towards conforming of sending the policies to the complainant.

          At the time of argument Ld. Advocate of the complainant referred decisions of

1. II(2008)CPJ 483
2. CPJ 2006, Vol-IV, Page-213
3. III(2008)CPJ63(SC).

The OP’s No. 1 & 2 have not adduced evidence on their behalf though opportunity was given to them to file evidence.

The OP’s No. 3 & 4 have adduced evidence before this Commission. In the written evidence the OP’s No. 3 & 4 have specifically corroborated the statements made in their written version. In the written evidence the OP’s No. 3 & 4 have stated that, the complainant has filed this case by suppressing the actual facts and there was no cause of action for filing this case against them. The OP’s No. 3 & 4 have also stated that, the complainant has voluntarily applied for the insurance policies after considering the terms and conditions of the policies. It is also stated in their evidence that, there was option of free look period of 15 days but within the said free book period the complainant made no application for cancellation of the policies. In the written evidence the OP’s No. 3 & 4 have stated that, they received total premium of Rs. 40,018.62 + Rs. 1,24,972.23 + Rs. 1,19,973.36 in respect of three policies and they further stated that, there was no deficiency of service on their part towards the complainant.

During argument and in the written notes of argument Ld. Advocate of the OP’s No. 3 & 4 they have stated that the complainant has failed to prove the case against them and the complainant has failed this case by suppressing the actual fact and there was no cause of action in favour of the complainant to file the case against them/ they also argued that the complainant has voluntarily filled up the proposal form and applied to them for supply of the insurance policy and thereby the policy certificate were issued in the name of the complainant. It is further argument of the OP’s No. 3 & 4 that within the 15 days free look period the complainant made no application for return of the policies by assigning reasons. OP’s No. 3 & 4 have further argued that, policies were issued to the complainant having date of commencement as 28.06.2010, 13.09.2010 & 14.09.2010 and the policy documents were duly dispatched to the complainant and the OP’s have not received any application or complainant form the complaint from the date of issuance of the policies till the date of filing of this case and the complainant has paid the premium for those policies for two years but after that he did not paid the same. It is also the argument of the OP’s No. 3 & 4 that, the complainant has failed to make out prima facie case against them and he has failed to prove the fact there was any deficiency of service on the part of the OP’s No. 3 & 4. Ld. Advocate of the OP’s No. 3 & 4 during argument referred decisions of oriental insurance company ltd – versus- Mumimahesh Patel, 2006 (iv) CPJ I and by referring that decision he submits that in a case of a complex nature should be examined by an appropriate court of law and not by the commission. He also referred another decision of (1994) CPJ 476.

Ld. Advocate of the OP’s No. 1 & 2 have not filed their written notes of argument.

Having heard the Ld. Advocate of both the parties and on perusal of the record it is admitted fact that, the complainant was an account holder of the OP no. 1. It is also admitted fact that, the complainant took loan from the OP No. 1 for purchasing a car. It is further admitted fact that during making payment for the car loan by the complainant a cordial relations was grown up with the OP’s No. 2 & 5. It is also admitted fact that, the OP no. 1 deducted a sum of Rs. 20,000/- on 01.07.2010 & Rs. 20,000/- on 01.09.2010 from the account of the complainant. It further admitted fact that, the OP’s No. 1 & 2 deducted sum of money from the account of the complainant and directly paid the said deducted amount of money to the OP’s no. 3 & 4.

In this case only dispute is whether the complainant asked the OP’s No. 1 & 2 for deducting sum of money from his account for the purpose of opening/maintaining recurring deposit account or whether the complainant of his own will applied to the OP’s No. 3 & 4 for opening three insurance policies or not?

From perusal of the written version of the OP’s No. 1 & 2 it reveals that the OP’s No. 1 & 2 have specifically stated that, they deducted sum of money from the account of the complainant and credited the same in  favour of the OP’s No. 3 & 4.

But in the written version the OP’s No. 1 & 2 have not stated on which day the complainant submitted ECS mandate to them to debit amount of money as per ECS during the period since August 2008 to 2030. More over the Ops No. 1 & 2 in Para No. 10 of their written version claims that, they received ECS mandate from the complainant for debiting his account during the period of August 2008 to July 2030. But the OP’s No. 3 & 4 in their written version, evidence and written notes of argument claims that, the complainant submitted proposal form to them on 30.06.2010, 31.08.2010 & on 14.09.2010 and thereby they received premium from the OP no. 1 bank.  Accordingly the claim of the OP’s No. 1 & 2 as well as the claim of the OP’s No. 3 & 4 both are contradictory with the other and all of them have failed to prove/explain as to whether the complainant either issued ECS mandate in the year 2008 or 2010? That the said contradictory claim of the OP’s No. 1 & 2 and claim of the OP’s No. 3 & 4 has strengthened the case of the complainant to the effect that he never issued any ECS mandate to the OP’s No. 1 & 2 for  deducting money from his account for making payment of premium to the OP’s for three insurance policies.

In the case in hand it is also pertinent to mention here that, the OP’s No. 3 & 4 in their written version, evidence and in their written notes of argument have stated that, they dispatched three insurance policies in the address of the complainant. But from the four corner of the record it reveals that, the OP’s No. 3 & 4 have not filed any such document to prove the fact that they sent/dispatched the insurance policy certificate or other insurance related documents to the complainant. On the other hand the OP’s No. 3 & 4 have admits that the sum of money was deducted from the account of the complainant which is lying with the OP no. 1 & 2 and neither the OP’s No. 1 & 2 nor the OP’s No. 3 & 4 filed any ECS mandate of the complainant regarding direction given by him to deduct money for making payment towards premium of the insurance policies.

In this case the OP’s No. 3 & 4 admits that they have received a sum of Rs. 40,018.62 + Rs. 1,24,972.23 + Rs. 1,19,973.36 totaling of Rs. 2,84,964.21 on the other hand from the Bank statement of the complainant it clearly proves that, a sum of Rs. 3,79,923.16 was deducted from the bank account of the complainant. Regarding the said difference of amount the OP’s No. 3 & 4 made no cross-examination of the complainant either through putting questionnaires or through filing counter affidavit in this regard.

Considering all we are of the view that, the complainant has been able to prove the fact that on several occasion he requested the OP No. 1 & 2 to reimburse his entire deducted amount with interest but they took no initiative for the same which is nothing but the deficiency of service on the part of the OP’s.

Considering the admission of the OP’s No. 3 & 4 regarding the receipt of money from the account of the complainant but they did not reimburse or refund the same to the complainant  on demand is also deficiency of service as well as unfair trade practice on the part of the OP’s No. 3 & 4.

Considering all we are also of the view that/the complainant has been able to prove the case against the OP’s and he is entitled to get the following award.

Hence, it is therefore,

O R D E R E D

That the instant Consumer case being in No. 122/2013 is hereby allowed on contest against the OP’s No. 1 to 4 and ex-parte against the OP no. 5.

The OP’s No. 3 & 4 are directed to refund a sum of Rs. 3,79,923.16 to the complainant towards reimbursement of the same which they received from the complainant. The OP’s No. 1 & 2 are also directed to pay a sum of Rs. 30,000/- to the complainant for deficiency of service as well as unfair trade practice and for causing mental pain and agony.

The OP’s No. 3 & 4 are directed to pay a sum of Rs. 20,000/- to the complainant towards cost of legal proceedings. The OP’s No. 1 to 4 are directed to pay a sum of Rs. 3,000/- each in the Consumer Legal Aid account of this Commission.

The OP’s No. 1 to 4 are directed to pay interest @ 4%  per annum to the complainant on the awarded amount with effect from the date of filing of this case till realization of the entire amount.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which the complainant is at liberty to take steps against them as per law.

Let a copy of this order be given to the parties free of cost.