Punjab

Nawanshahr

CC/49/2015

Manjit Bursha - Complainant(s)

Versus

HDFC Bank Ltd. - Opp.Party(s)

Nipun Bhalla

16 Oct 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR

 

                     Consumer Complaint No.  49 of 12.05.2015

                      Date of Decision             :   16.10.2017

 

 

1. Manjit Bursha aged 49 years S/o Balbir Singh Bursha S/o Hari Singh R/o Village Rurke Khass, Tehsil Garhshankar, District Hoshiarpur.
2. Balbir Singh Bursha aged 75 years S/o Hari Singh S/o Gopi Singh R/o Village Rurke Khass, Tehsil Garhshankar, District Hoshiarpur.

Both through their attorney Gurmukh Singh S/o Puran Singh S/o Amar Singh R/o Village Pathlawa Tehsil Nawanshahr, District Shaheed Bhagat Singh Nagar.                                                                                                               ….Complainants

Versus

1. HDFC Bank Limited, M.R. Manila Tower, Banga Road, Nawanshahr, District Shaheed Bhagat Singh through its Branch Manager.
2. HDFC Life, Above ICICI Bank, Banga Road, Nawanshahr, District Shaheed Bhagat Singh Nagar, through its Branch Manager.
3. Club Value Services, 308 – Chabra Complex, 8, V.S. Block Shakarpur Delhi – 110092, through its authorized representative.

                                                                    ….Opposite Parties

                   Complaint under Section 12 of the

Consumer Protection Act, 1986

cOUNSEL FOR THE PARTIES:

For complainants :         Sh.Nipun Bhalla, Advocate

For OP No.1        :         Sh.S.K. Dewan, Advocate.

For Op No.2        :         Sh.M.P. Nayyar, Advocate

For OP No.3.       :         Ex parte.

 

QUORUM:

S.KARNAIL SINGH, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

 

ORDER

S.KARNAIL SINGH, PRESIDENT

1. This complaint has been presented by complainants wherein they alleged that the instant complaint is being filed by the complainants through their attorney Gurmukh Singh S/o Puran Singh. The complainant No.1 is settled in Germany and is thus a Non Resident Indian.  The complainant No.2 is an old man of 75 years of age, uneducated, simpleton and from rustic background.  The complainant No.1 maintains a Saving Bank Account bearing No.02661000195161 with OP-1.  The complainant No.1 came to India on 13.10.2012 and left India on 15.11.2012 and while going back complainant No.1 gave a signed blank cheque of Rs.5,00,000/- to complainant No.2, his father to deposit premium of some other insurance policies.  The complainant No.2 went to branch of OP-1 to pay the said other premium but due to some irregularity in filling of that cheque, the same was not accepted by the representative of the OP-bank, “however the complainant No.2 paid the premium of the other said policies from his own sources”.  Then after one day the representatives of OP No.1 came to the house of the complainants at their village with an offer that since funds are lying the said account of complainant No.1, therefore to earn a higher rate of interest a FDR/FD, should be made and the cheque, which was left behind by the complainant No.1 for paying premium of some other insurance policy, can be used.  The representative of the OP No.1 contacted the complainant No.1 over phone.  The complainants, being reluctant at first, agreed after lot of persuasions from the representative of OP-1 to open FDR/FD to the tune of Rs.5,00,000/- in the name of complainant No.1 for a period of two years using the said cheque left by complainant No.1 before leaving India.  The said representative took the said cheque from complainant No.2 assuring him that a FDR/Fixed Deposit will be opened in name of complainant No.1 for Rs.5,00,000/- and the same will be matured in November 2014.
2. That in the month of November, 2014, the complainant No.2 went to the branch of OP No.1 to know about the status of FDR/FD, but complainant No.2 was astonished to know that instead of opening a FDR/FD, the OP-1 has allegedly invested the amount of Rs.5,00,000/- in two alleged insurance policies bearing No.15635531 & 15663107 of OP-2.  On further probing, it was also revealed to complainant No.2, that another sum of Rs.2,50,000/- was got transferred illegally and without any authority, moreover when the complainant No.1 was not even in India was allegedly transferred from the said account of complainant No.1 on 20.12.2013 and it was further invested into one alleged policy bearing No.15663107.  It is pertinent to mention here that complainant No.1 was never in India when Rs.5,00,000/- was allegedly invested in the above said alleged Insurance Policies on 17.11.2012 and also at the time when Rs.2,50,000/- was further allegedly invested in one said policy on 20.12.2013.  It is worth mentioning that due to the paucity of funds in the saving bank account, the complainant was unable to further utilize the money to pay the alleged premium/installment in other policy.  Complainant No.1 was issued fresh passport.  Complainant No.1 never agreed or consented to the purchase of said alleged insurance policies neither he signed any proposal forms nor any other document related to the alleged policies and if any signatures are allegedly found to be there of complainant No.1, then the same are totally denied and the same are apparently result of manipulation.  No verification regarding the said insurance policies was ever done and neither the complainant No.1 was ever informed regarding the alleged insurance policies.  Till today, the complainants have not received any documents relating to the alleged insurance policies. Complainant No.2 on getting to know regarding the said unfair trade practice & deficiency in service by the OP No.1&2 raised a lot of hue & cry in the Branch, to which the Branch Manager of OP No.1 assured him that the matter will be resolved and money will be refunded at the earliest.  Thereafter, the complainant No.2 started receiving number of phone calls from the representatives of OP-1 &2 stating that their issue regarding refund of money is under process and then in the last week of December, 2014, one representative of OP No.1&2, namely,  Ms.Deepti started calling from different phone numbers stated that money allegedly invested in the above said insurance policies will be refunded to them but for that they will need to deposit another amount of Rs.2,60,037/- as surety at this stage and then amount of Rs.7,50,000/- already allegedly invested in the insurance policies will be refunded alongwith this amount of Rs.2,60,037/- after a week’s time.  The complainant No.2 being old & simple person of 75 years of age fell to the false promises of representatives of OP No.1&2 and through his own saving account bearing No.55038266153 of State Bank of Patiala transferred an amount of Rs.2,60,037/- to the account as stated by the representative of OP No.1&2 on the assurance that the amount of Rs.2,60,037/- alongwith Rs.7,50,000/- will be sent through cheque through post but to his astonishment instead of receiving the cheque the complainant No.2 received some documents showing him that he has become member of some services given by OP No.3 to which the complainant No.2 never consented nor agreed for.  Moreover, complainant No.2 is 75 years of age and resident of Village Rurke Khass, Tehsil Garhshankar, District Hoshiarpur and on the face of it, it seems quite unreasonable that he will be buying club value services related to some holiday package and MedHealth Clinic which are specifically limited to Delhi – NCR region.  It is worth mentioning that to achieve targets and to make wrongful gains, the representative of the OPs uses these type of mal-practices and thereby causing wrongful loss to the customers.  On receiving of the alleged documents, the complainant No.2 number of times visited the office of OPs and contacted them over phone to refund the money allegedly invested and the subsequent paid money but they have been putting off the matter on one pretext or the other.  Then finally complainant No.1 came to India on 27.04.2015 and went to the office of OPs to get the said amounts refunded but inspite of repeated demands they have lastly a week ago refused to pay the said amounts.  Thus, providing cause of action to the complainants against the OPs as they have committed unfair trade practices and their conduct is highly irresponsible which tantamount to negligence and deficiency of services and accordingly the instant complaint filed with prayer that complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.10,10,037/- alongwith interest @18% P.A. from 17.11.2012 and also directed to pay damages to the tune of Rs.2,00,000/- and litigation expenses for unfair trade practice and deficiency in consumer services.     
3. Notice of the complaint was given to the OPs but despite service OP-3 failed to appear and ultimately OP-3 was proceeded against ex parte.  The OP-1 appeared and filed written statement and contested the complaint of the complainants, taking preliminary objections that instant complaint is not maintainable in the present Form and further alleged that present complaint has been filed on the basis of wrong, distorted and concealed facts and complainants have intentionally not disclosed the true and real facts to this Forum and further averred that complainants have no locus standi to file the present complaint, as per terms and conditions of the policy and even this Forum has no jurisdiction to try and decide the matter in dispute.  On merits, all the averments made in the complaint are categorically denied.  Lastly prayer that the complaint of the complainants is without merits and same is liable to be dismissed. 
4. OP No.2 filed a separate written reply whereby contested the complaint of the complainant by taking preliminary objections that at the very outset, the OP No.2 denied all the allegations, facts and averments stated in the complaint filed by the complainants except to the extent which they are expressly admitted therein.  It is further alleged that the complaint under reply is not maintainable and is liable to be dismissed as the complainants have attempted to misguide and mislead this Forum and as such complaint is liable to be dismissed on this ground alone and further alleged that the complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favour of the complainants and further submitted that present complaint is not maintainable in the present form as no compliance under Section 12(1)(c) of the Consumer Protection Act has been made by the complainants by taking permission from this Forum to file a joint complaint and further submitted that two proposal forms in the present case were signed by the complainants on 03.12.2012 and 15.12.2012 for purchase of HDFC SL Progrowth Super-II with life option and HDFC Life Pension Super Plus, consequently two policies were issued by OPs bearing policy Nos.15635531 dated 26.12.2012 and policy bearing No.15663107 dated 20.12.2012.  It is pertinent to mention that aforesaid policies are Unit Linked Policies whereby the investment is made through share market/speculative transaction and main motive for investment is for profit and gains.  It has been held by Hon’ble National Commission in Revision Petition No.658 of 2012 titled as Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co. Ltd decided on 23.04.2013 that complaint in respect of the claim under Unit Linked Insurance Policy is not maintainable under the Act and further alleged that the complainant No.1 – Manjit Bursha “Life Assured” had submitted to the answering OP-2 two proposal/applications dated 03.12.2012 and 15.12.2012 for the purchase of HDFC SL Progrowth Super-II with life option and HDFC Life Pension Super Plus, the proposals were accepted on the standard rates based on the information provided by LA and consequently two policies were issued on 26.12.2012 and 20.12.2012.  Before acceptance of the proposals by the answering OP-2, the contents of the proposal/applications, illustrations and the addendum forms were read and explained to the LA in the language best known to him.  Accordingly, after understanding all the terms and conditions of the proposal forms were signed by the LA/complainant No.1 to that effect.  On the basis of the information furnished in the applications/proposal forms, the proposals were processed by the answering OP-2 and thereafter the said policies were issued to the LA/complainant.  However, it is most respectfully submitted that before acceptance of the proposal by the OP-2, adequate information with regard to the product, nature and its significance was given to the complainants.  In addition to the above the sales literatures and the necessary guidance was also provided by the concerned financial consultant/agent and explained to the complainants.  In view of the above submissions, the present complaint deserves to be dismissed because it is not only motivated but has been made to blackmail the OP-2 with an ulterior motive.  It is further submitted that complainant No.1 also signed the mandate form for direct debit for debiting the premium amount from his bank accounts  maintained in HDFC Bank – OP-1 wherein it was clearly mentioned that respective premiums to the tune of Rs.2,50,000/- was to be deducted from their bank account.  The complainants have filed the present complaint before this Forum when the policies have already been lapsed and the complainants have already taken all the benefits of the policies for the period for which they had paid the premium. When once the complainants have utilized the policies for which they had given the premium, they have no legal right to claim the refund & damages.  Hence, the present complaint deserves to be dismissed and further alleged that when once insurance policies have already been lapsed due to non-payment of premium for the subsequent year within the stipulated period, the complainants are no more a consumer within the meaning of the Consumer Protection Act.  Hence, the present complaint is not maintainable against the OP-2.  It is further alleged that since disputed questions of facts are involved in the present complaint which can only be decided by the Civil Court after leading cogent evidence, therefore, the present complaint is not maintainable and this Forum does not have the jurisdiction to try and decide the present complaint.  On merits, the saving bank account of the complainant in the bank of OP-1 is admitted but remaining allegations as made in the complaint are categorically denied and lastly submitted that complaint of the complainants is without merits and same may be dismissed. 
5. In order to prove the case, Sh.Nipun Bhalla, Advocate, counsel for complainants, has tendered affidavit of Gurmukh Singh attorney of complainants Ex.CW1/A alongwith other documents Ex.C-1 to Ex.C-6 and closed the evidence.  Then counsel for OP-1 – Sh.S.K. Dewan, advocate, has tendered affidavit of Sh.Amit Sehgal, Branch Manager Ex.OP1/A and closed the evidence.  Then, the counsel for OP-2 – Sh.M.P. Nayyar, Advocate, has tendered affidavit of Amit Khanna, Associate Manager Legal Ex.OP2/A alongwith some documents Ex.OP2/1 to Ex.OP2/17 and closed the evidence.
6. We have heard the learned counsel for respective parties and also gone through complaint file alongwith documents very minutely.
7. After hearing of both the parties we find that the plea taken by Op No.2 in the preliminary objections that the instant complaint is not maintainable being reason policy so purchased by the complainant is Unit Linked Insurance Policy and as per settled law by the Hon’ble National Commission in Revision Petition No.658 of 2012 titled as Ram Lal Aggarwala Vs Bajaj Allianz Life Insurance Company Limited decided on 23.04.2013 that the complaint in respect of the claim under Unit Linked Insurance Policy is not maintainable under the Consumer Protection Act because the money having been invested in a speculative business and further this judgment of the Hon’ble National Commission is followed by our Hon’ble State Commission in Consumer Complaint No.96/2011 titled as Paramjit Kaur Vs Aviva Life Insurance Company India Limited decided on 04.07.2014.
8. If the above plea of the OP is to be considered then it is clear that the instant complaint is not maintainable, in view of the aforesaid two judgment. The learned counsel for the complainant took different plea that when the complainant has never purchased the insurance policy in question as alleged in the complaint, then the case of the complainant is not covered by the aforesaid judgment of the Hon’ble National Commission and Hon’ble State Commission.  In order to give strength to the version, the learned counsel for the complainant categorically  argued that the complainant – Balbir Singh Bursha was permanently settled in abroad and he has having saving bank account in the bank of OP-1 and complainant came to India on 13.10.2012 and left India on 15.11.2012, while going back, he gave signed blank cheque of Rs.5,00,000/- to complainant No.2 to deposit the premium of some other policy, but the OP No.1 by misrepresentation got issued another insurance policy in the name of complainant after getting the amount of aforesaid said cheque and as such the complainant never purchased the policy in question then he is not liable to deposit any amount for that policy and even thereafter any premium, and as such the case of the complainant is not covered under the factum of Unit Linked Insurance Policy. 
9. We do not agree with the contention of the learned counsel for complainant because the cheque issued by the complainant for an amount of Rs.5,00,000/- is also of dated 15.11.2012 and moreover, the complainant is not denied the signatures on the said cheque whereby the policy in question has been purchased, rather the complainant alleged that the said blank cheque was given for deposit of premium in other policy but this version of the complainant is not trust worthy or acceptable because if the cheque is given in blank then there should not be signatures on the cutting, but the cheque has overwriting which is attested by the complainant by putting his signatures, so it is established the cheque was not given a blank cheque nor the cheque was given for deposit the premium of some other policy, rather, the cheque was given for purchasing of insurance policy from HDFC Standard Life – OP-2, this observation is further fortify from the endorsement made on the backside of the cheque that “Please issue a DD in favour of HDFC Life”, this endorsement is also signed by the Manjit Bursha, so it means complainants voluntarily purchased insurance policy from OP-2 but thereafter failed to deposit the premium and ultimately filed the present complaint just to harass the OPs and under these circumstances, we are of the considered opinion that the plea took by the OP-2 is apparently correct that the policy so purchased by the complainant is Unit Linked Insurance Policy, admittedly original insurance policy was handed over to the insured at the time of issuance of policy but deliberately and for the best known reason, the complainant has not brought on record the original policy or copy of the insurance policy, whereas OP-2 having only copy of proposal and accordingly, the OP-2 has brought on the file proposal form as Ex.OP2/2, wherefrom it is clearly established that the policy so purchased by the complainant was Unit Linked Insurance Policy, so in view of the aforesaid judgment of the Hon’ble National Commission and as well as of Hon’ble State Commission, the instant complaint is not maintainable, therefore, the same is dismissed, with no orders as to costs.    
10. Complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be sent to the parties, as permissible, under the rules.

Dated 16.10.2017                                                         

 

                                     

(Kanwaljeet Singh)                (Karnail Singh)

Member                                   President