Punjab

StateCommission

FA/12/1347

Sardara Singh - Complainant(s)

Versus

HDFC Bank Ltd. - Opp.Party(s)

10 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.1347 of 2012

 

 

                                                          Date of Institution: 10.10.2012       

                                                          Date of Decision : 10.08.2015

 

1.       Sardara Singh son of Dalip Singh, VPO Benra, Tehsil Dhuri, District    Sangrur.

 

2.       Ram Singh son of Sardara Singh son of Dalip Singh, VPO Benra,  Tehsil Dhuri, District Sangrur.

 

                                                                                                                                                                             …..Appellant/Complainants

                                               

                                      Versus

 

1.       H.D.F.C Bank Ltd., through its Manager Dhuri Pind Road, Dhuri, Tehsil Dhuri, District Sangrur.

 

2.       H.D.F.C Standard Life Insurance Company Ltd., SCO 114-115, New Leela Bhawan, Market above, Domino Pizza, Patiala through          its Manager.

 

 

                                                                                                                                 …… Respondents/Opposite Parties

 

First Appeal against order dated 12.06.2012 passed by the District Consumer Disputes Redressal Forum, Sangrur.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

 

Present:-

 

          For the appellant              :         Sh.Aminder Singh, Advocate  

          For the respondent no.1   :         Sh. Sunil Narang, Advocate      

          For the respondent no.2   :         Sh.Nitin Thatai, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the complainants in the complaint) have directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 12.06.2012 of District Consumer Disputes Redressal Forum Sangrur, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainants now appellants in this appeal.

2.      The complainants have filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments complainants are illiterate agriculturists  and only used to thumb mark the documents and complainant no.1 has saving account no.14801930002420 with OP No.1. The complainant no.1 sold his land measuring 11 bighas 8 biswas situated within the revenue estate of village Bamal Tehsil Dhuri District Sangrur and complainant no.1 along with complainant no.2 went to OP No.1 to deposit the sale consideration in his saving account, but Branch Manager of OP No.1 advised them to deposit the amount of Rs.10 lac in FDRs, so as to earn higher rate of interest thereon. On the advice of Branch Manager of OP no.1, the complainant no.1 agreed to deposit the above-mentioned amount in FDRs in his name, as well as in the name of complainant no.2. The Branch Manager of OP No.1 obtained thumb impression of the complainants on blank printed forms and blank papers, which were never read over and explained to the complainants. The complainant no.1 agreed to purchase the plot measuring 10 bighas 8 biswas from Mohinder Pal son of Mangal Dass and he wanted to withdraw his above amount deposited with the OPs. The complainants then came to know that his amount has been actually invested in five life insurance policies of OPs  by OP No.2 instead of in fixed deposit receipts and policy details are as followed: policies No.13747338, 13747340 and 13747341 dated 25.06.2010 and annual premium of each policy was of Rs.1,99,999/- for the term of ten years and two policies in the name of complainant no.2 detailed, as policy no.13818338 dated 09.08.2010 and policy no.13819259 dated 31.07.2010 annual premium of each policy was of Rs.1,99,999/- for the term of 11 years. OP No.2 belonged to the same group of OP No.1. The complainant no.1 was astonished, when branch manager of OP No.1 apprised him that amount has been invested in life insurance policies instead of fixed deposit receipts, as desired by the complainants. The complainants have alleged that fraud has been played upon them by OPs due to their illiteracy. The complainants have, thus, filed the present complaint directing the OPs to refund the amount of Rs.10 lac along with interest @ 18% p.a till date of realization, besides compensation of Rs.1 lac for mental harassment and Rs.20,000/- as costs of litigation.

3.      Upon notice, OP no.1 appeared and filed its separate written reply by raising preliminary objections that complaint is not maintainable and complainants have no cause of action and complainants have not come to the court with clean hands. It was averred in the written reply that complainants approached OP No.1 for opening saving bank account and to deposit some amount therein. The OP explained all products/plans thoroughly to the complainants and complainants asked OP No.1 to invest the amount of Rs.10 lac in his insurance policies and remaining amount has been deposited in his account. Any fraud on the part of the OP was vehemently denied in the written reply by answering OP. It was vehemently denied that the thumb impression of the complainant was obtained on the blank printed forms and blank papers. It was further pleaded that all terms and conditions were duly explained to the complainants in simple Punjabi language and the complainants thumb marked the same after admitting the contents of all the documents and terms and conditions of the insurance policies. The complaint was contested by the OP no.1 on the above-refereed preliminary grounds and even on merits and, thus, OP no.1 prayed for the dismissal of the complaint.

4.      OP no.2 appeared and filed its separate written reply by raising preliminary objections that complaint is not maintainable and complainants have no cause of action and complainants have not come to the court with clean hands. It was averred that complainants have challenged the validity of the contract of insurance on the grounds of so-called fraud and such a relief was beyond the scope of relief, which could be granted by the Consumer Forum. It was further averred that the machinery under the Consumer Protection Act could not be effectively  utilized for determining complicated questions of fraud and cheating. It was further alleged that before taking the insurance policies, the complainants have submitted all required documents with OPs and thumb marked the proposal forms and declarations after understanding all the terms and conditions of the insurance policies in Punjabi language. If the complainants were not satisfied with the policies, as per policy clause, they could return the same within 15 days of free look period, but they did not exercised this option. OP no.2 controverted the other averments of the complainant, as contained in the complaint and, thus, prayed for the dismissal of the complaint.

5.      The complainant tendered in evidence, the affidavit of complainant Ex.C-1 along with copies of the documents Ex.C-2 to 11. As against it, OPs tendered in evidence affidavit of Harsimran Singh Zonal Legal Officer HDFC Standard Life Insurance Company Ex.R-5 along with copies of the documents Ex.R-1 to Ex.R-4. On conclusion of evidence and arguments, the District Forum, Sangrur, dismissed the complaint of the complainant, by leaving the parties to approach competent civil court for redressal of their grievances. Dissatisfied with the order of the District Forum Sangrur dated 12.06.2012, the complainants now appellants have preferred this appeal against the same.

6.      The District Forum dismissed the complaint of the complainants primarily on the ground that complex questions of facts and law are involved in the matter, which cannot be adjudicated in summary procedure by Consumer Forum. The reasoning, which swayed on the mind of District Forum in dismissing the complaint, is that the complainants have alleged fraud played upon him by the OPs and once fraud has been pleaded, then only civil court is competent to adjudicate upon such type of complex matter. We have heard counsel for the appellants at length, besides counsel for the respondents of the appeal. It was stressed during the arguments by counsel for the appellants that complainants sold the land and wanted to invest the amounts in Fixed Deposit Scheme with OPs. The complainants being illiterate and rustic persons could not understand the nature of the documents and the complainants were made to thumb mark the documents by the OPs only. On the other hand, the OPs clearly pleaded and led evidence that complainants' voluntarily took the policies and invested the amounts therein and, as such, he is estopped from backing out of it. The complainants have pleaded fraud upon them in obtaining their signatures on the blank documents by the OPs. The District Forum examined the matter on the record and then returned the finding, that since fraud has been pleaded by the complainants and, as such, this matter cannot be adjudicated in summary procedure by the Consumer Forum. We have also examined the evidence on the record, besides pleadings of the parties in this case. Ex.C-1 is affidavit of Sardara Singh S/o Dalip Sing and Ram Singh on the record. Instead of filing single affidavit, they have sworn above affidavits jointly. They have reiterated the averments on oath, as pleaded in complaint. It is stated in affidavit that the complainant is illiterate and after sale of his land, he wanted to invest the money in Fixed Deposit Receipts and he approached the OPs, but OPs misled him and obtained his signatures on blank printed forms without telling him about their contents. The complainant no.1 stated that his money was invested in five life insurance policies by Ops with oblique motive without his consent and, thus, fraud has been exercised upon complainants by OPs. The complainant relied upon letter Ex.C-2 written to him denying any element of fraud in this case. Ex.C-3 is application filed by the complainant to SSP Sangrur with regard to fraud practiced upon him by the OPs. It is alleged in this application that OPs managed to obtain the thumb impressions of the complainant and invested the money in the policies instead of investing it in the Fixed Deposit Receipt, as required by the complainant. It is evident from perusal of letter Ex.C-3 that complainant has also approached the Police Authorities to look into the matter of fraud. Ex.C-5 is complaint by the complainant to Banking Ombudsman Chandigarh in this case, as well. Again the elements of fraud, which consists of the ingredients of suppressio vari and suggestio falsi, have been set out in it. Copy of agreement is Ex.C-7. Copy of order of District Forum Barnala Ex.C-9 in some other complaint no.52/2011 which dehors any relevance on this point, as placed on the record. Ex.C-9 is not between the parties and facts of each case differ and hence we are unable to find any assistance from this judgment. Ex.C-10 and Ex.C-11 are the newspapers clippings only.

7.      The OPs tendered in evidence Ex.R-2 is copy of letter dated 26th June 2010 addressed to complainant that he could  opt out of the policy within Free Look Period, if not satisfied with it. Unit Indemnification number was allotted to the complainant. Similarly, other policies, as placed on the record have also been examined by us. The OPs tendered in evidence affidavit of Harsimran Singh, Zonal Legal Officer, HDFC Standard Life Insurance Company Limited Ex.R-5, denying any such fraudulent practice upon complainant by OPs.

8.      From appraisal of above evidence on the record and hearing respective submissions of counsel for the parties, we find that it is highly disputed fact in this case whether any fraud has been practiced upon the complainant by the OPs or not. Elaborate evidence is required to be examined on this point entailing the cross-examination, and re-examination of the witnesses and other voluminous type of evidence. Lengthy evidence has to be led to conclude the controversy pertaining to alleged fraud. The Consumer Forums have been constituted, primarily to give speedy adjudication of the consumer cases in a summary manner only. Where fraud has been alleged like fabrication and manipulation of the documents, then complainant should be relegated to Civil Court for redressal of the grievances. On this point, we seek fortification from law laid down by our State Commission in Santokh Singh Versus  Punjab Finance Corporation and another, reported in 2004(1) CLT Page 285 and law laid down by Hon'ble Supreme Court in Oriental Insurance Company Ltd  Versus Munimahesh Patel, reported in 2006(IV) CPJ 1 (SC)  that complex factual position requires matter to be examined by appropriate court of law and not by the Commission. The Commission is not justified to deal with matter in such manner. The Apex Court held that in the matter of wrong declaration of the nature of occupation of person insured, should not have granted relief in summary matter. The National Commission has also held in R.D Papers Ltd through its Managing Director Versus  New India Insurance Company Limited , through General Manager and others , reported in 2002(3) CLT Page 99-100  that in matter of complicated question of facts, where allegation of forgery is raised and denied by other side, complex question of facts cannot be adjudicated in the Consumer Forums in summary jurisdiction and complaint is liable to be dismissed and complainant is at liberty to approach Civil Court or any other appropriate Forum for the relief claimed. Fraud is such a matter, which requires elaborate evidence to prove it, which could be done by competent civil court only. The Consumer Forum in ordinary summary jurisdiction cannot venture to adjudicate upon such a matter, where fraud has been pleaded by one party and vehemently denied by the other party.

9.      In view of our above discussion, we are in agreement with the findings of the District Forum in dismissing the complaint of the complainants by relegating them to approach competent civil court to seek their remedy. We find no illegality or material infirmity in the order of the District Forum calling for any interference in this appeal.

10.    As a sequitur, of our above discussion, the appeal preferred by the appellants is hereby dismissed without any order as to costs.  

11.    Arguments in this appeal were heard on 05.08.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                            PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 10,  2015.                                                          

(ravi)