Delhi

StateCommission

FA/229/2014

KOTAK MAHINDRA OLD MUTUAL LIFE INSU. CO. LTD. - Complainant(s)

Versus

HARBANS LAL GHAI - Opp.Party(s)

25 May 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:25.05.2015

First Appeal- 229/2014

(Arising out of the order dated 12.02.2014 passed in Complainant Case No. 294/2010 by the District Consumer Disputes Redressal Forum-VI, New Delhi)

1. Kotak Mahindra,

Old Mutual Life Insurance Co. Ltd.,

9^th Floor, Godrej Coliseum,

Behind Everard Nagar Sion (East),

Mumbai-400 022.

 

2. Kotak Mahindra,

Old Mutual Life Insurance Co. Ltd.,

29/7, Ground Floor Nagar,

Park Shakti Nagar,

•  

 

3. Kotak Mahindra,

Tolstoy Marg, Connaught Place,

New Delhi-110 001.

 

                                                                             ….Appellants

Versus

Sh. Harbansh Lal Ghai,

S/o Late Shri Phami Shah Ghai,

R/o C-216, Vivek Vihar,

Delhi-110095.

….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1.      This appeal is preferred by appellant No. 1 to 3 i.e. Kotak Mahindra Old Mutual Life Insurance Ltd. (hereinafter referred to as “Appellant”) under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) against the ex-parte judgement dated 12.02.2014 passed by the District Consumer Disputes Redressal Forum-VI, New Delhi (in short, “the District Forum”) in Complaint Case No. 294/2010 whereby the appellant has been directed to pay compensation of Rs.5 lacs along with Rs.15,000/- towards litigation expenses to the respondent/complainant. The Ld. District Forum has further directed the Commissioner of Delhi Police to register FIR against the appellant and its officers named in the complaint for investigations for the offences committed by them in their official capacity. 
2.      The respondent herein i.e. complainant before the District Forum had filed a complaint under Section 12 of the Act alleging therein that the Sales Manager/agent of the appellant, namely, Shri Himanshu Chaddha visited his house and allured him for availing scheme of the appellant.  He had told him that on an investment of Rs.10 lacs and paying 3 premiums of Rs.30,000/- each annually with the appellant, he would get a guaranteed sum of Rs.89,70,048/- on maturity.  The respondent/complainant had asked the aforesaid representative to call the Senior Manager of the appellant.  Thereafter Sh. Amit Ahuja, Branch Manager; Sh. Manish Sharma, Sr. Branch Manager; Sh. Gurdeep Singh Kalsi, Asstt. Branch Manager along with Sh. Himanshu Chadha visited his house and they all assured him about the scheme and one time investment plan.  It was alleged that on 4.1.09, on their assurance, respondent/complainant had made an investment with the appellant in the scheme suggested by the aforesaid officials.  Thereafter the respondent/complainant received a letter from sales office of the appellant at Bombay wherein it was stated that the respondent/complainant had to pay Rs.1 crore till 10 years i.e. every year Rs.10 lacs.  The respondent/complainant sent a letter to the Bombay Head Office and also sent a notice to the appellant but did not get any satisfactory reply.  Ultimately, the respondent/complainant approached IRDA, New Delhi and got a case registered with it on 28.07.2009.  No monetary relief was given to the respondent/complainant.  The IRDA vide letter dated 20.11.2009 informed the appellant that it has no jurisdiction to give damages and compensation for mental harassment.
3.      The respondent/complainant had alleged that the officers of appellant had lured him for the scheme. The respondent/complainant had alleged having mortgaged his house and had raised loan from SBI for investing in the aforesaid scheme.  The respondent/complainant gave a legal notice to the appellant but of no avail.  Ultimately, he had filed the aforesaid complaint before District Forum and had prayed for compensation of Rs.5 lacs for causing mental agony and harassment.  He had also prayed for Rs.25,000/- towards cost of litigation.
4.      The appellant did not contest the case before the District Forum and remained ex-parte. 
5.      After considering the evidence of the respondent/complainant, the Ld. District Forum granted compensation of Rs.5 lacs to the complainant and Rs.15,000/- towards litigation expenses and also directed the Commissioner of Delhi Police to register FIR against the officials of the appellant named in the impugned order and also directed to carry out investigation for the offences alleged to have been committed by them in their official capacity.  The aforesaid order was passed on 12.02.2014.
6.      Aggrieved with the aforesaid ex-parte judgement, present appeal is filed.
7.      Ld. Counsel for appellant has contended that the appellant could not appear and contest the case on merits before the District Forum. It is alleged that sufficient opportunity was not given to the appellant.  It is contended that the appellant had engaged Shri Gaurav Sharma, Advocate to represent the appellant in the case.  However, the said Counsel did not appear on the dates fixed i.e. 29^th March, 2012 & 25^th May, 2012.  It is contended that the matter was heard on 19.09.2012 and reserved for orders.  It is further contended that as the earlier Counsel was not providing the status of the case, the appellant engaged M/s. Akhil Modi & Associates.  It is alleged that due to change of address of the District Forum, the file was misplaced.  The newly engaged Counsel of appellant moved a search application on 25.04.2013 before the District Forum and thereafter made regular visits there.  On enquiries, he was being informed that the file was not traceable.  It is stated that during the pendency of the search application, the Ld. District Forum had passed the impugned ex-parte judgement dated 12.02.2014.  It is contended that only one opportunity was granted to the appellant to file written statement.  However, in the order dated 25.05.12, it is recorded that several opportunities were given and appellant/OP had failed to file reply and on the same date, appellant was proceeded ex-parte. It is contended that the impugned judgement has serious consequences upon the appellant in as much as Commissioner of Police has been directed to register FIR against the appellant and its officers named in the complaint case for investigation for the offences allegedly committed by them in their official capacity.  It is alleged that the District Forum has no jurisdiction to pass such an order.  
8.      On the other hand, the respondent has contended that the appellant has not deliberately contested the matter.  It is contended that no action has been taken against Shri Gaurav Sharma, Advocate who as per the appellant did not appear nor informed status of the case to it.  It is contended that appellant did inform the office of Bar Council for taking action against Shri Gaurav Sharma, Advocate.  Thus stand of the appellant is not believable. It is further contended that appellant has not been able to show sufficient cause as such the impugned order is not liable to be set aside.
9.       We have considered the submissions made and perused the material on record.
10.  Perusal of District Forum record shows that the appellant was served for the first time for 29.03.2012.  Prior to the said date,  case was adjourned number of times on the ground that notice could not be issued to appellant.  On 29.3.12, no one had appeared for the appellant and the case was adjourned for 25.05.2012 for filing written statement.  On the said date, due to non-appearance of appellant, the Ld. District Forum had proceeded the appellant, ex-parte.  The Ld. District Forum in the aforesaid order has mentioned that several opportunities were given to the appellants/OPs to file reply whereas as per record only one opportunity was given i.e. 25.05.12 which was the date for filing written statement.  On 25.05.12, the case was adjourned to 18.07.12 for filing ex-parte evidence and written arguments.  On 18.07.12, respondent/complainant had filed ex-parte evidence and the case was adjourned to 19.09.12 for arguments.  On 19.09.12, the matter was heard and reserved for orders.  The impugned judgement has been passed on 12.02.14 i.e. after a gap of about one year and nine months.
11.   The stand of the appellant is that their Counsel, Shri Gaurav Sharma, Advocate did not appear before the Ld. District Forum nor had informed the status of the case to appellant company. On 09.03.13 the appellant bank engaged M/s. Akhil Modi & Associates.  The newly appointed Counsel communicated the appellant that due to the change of the District Forum’s address, the file had been misplaced.  Thereupon on 25.4.13, a search application was filed by the aforesaid Counsel before the Ld. District Forum.  A copy of the said application along with affidavit of the authorized signatory of the appellant is also placed on record wherein prayer was made to Ld. District Forum for search of the said file and for providing the consumer complaint to the appellant so that necessary steps could be taken in the matter.  However, that application remained pending and the file could not be traced before the District Forum and no documents were provided to appellant and ultimately ex-parte judgement was passed on 12.02.2014.  The only stand of respondent/complainant is that since no action was taken against the earlier Counsel, as such stand taken is not believable and non-appearance is deliberate. 
12.   Considering the record of District Forum, the affidavit filed by the appellant giving reasons for non-appearance as well as subsequent steps taken i.e. filing of search application and making enquiries from the District Forum, it cannot be said that non-appearance is deliberate.  Simply that no action is taken against the previous Counsel, the other material on record cannot be ignored.  Further the impugned judgement has serious consequences upon the appellant in as much as Commissioner of Police has been directed to register FIR against the officials of the appellant who have been named in the complaint.  Further as per appellant, the District Forum has no jurisdiction to pass such an order.  It has also come on record that in the freelook period of the policy in question, the bank had refunded the policy amount of Rs.10 lacs to the respondent bank.  In these circumstances, a great prejudice shall be caused to appellant if impugned order is not set aside whereas no prejudice shall be caused to respondent/complainant if the impugned order is set aside and the matter is decided on merits as the respondent/complainant will get full chance to substantiate his case.  The appellant has also been able to show the sufficient cause due to which appellant could not present itself before the District Forum and contest the case on merits. Accordingly we set aside the impugned judgement subject to costs of Rs.25,000/-.
13.   The parties shall appear before the District Forum on                  29.07.15.  On the said date, appellant shall file its written statement and pay the costs to the respondent.  Thereafter the District Forum shall proceed in the matter in accordance with law. 
14.     A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.  The file requisitioned from District Forum be also sent back forthwith.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

 Member

 

       

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