The complainants have filed this complaint against the opposite party for getting a relief from the Forum.

                   2. The fact of the case in brief is as follows:  The complainants are husband and wife.  They have availed a loan of ` 5 lakhs from the first opposite party on 31.03.2007.  When the complainants approached the opposite party, the then Manager insisted them to deposit an amount of ` 1 lakh to their branch from the total loan amount as a condition for providing housing loan.  The complainants are in dire need for money, they accepted the condition.  On 17.04.2007 while sanctioning the loan, the first complainant deposited an amount of ` 1,50,000 to the opposite party’s bank.  Out of that amount, ` 50,000 was transferred in the second complainant’s account later.

                   3. At the time of granting the loan, the complainants put their signature in several papers as directed by the opposite party and also collected 2 signed blank cheques from the first complainant as the security for the loan.  The complainants repaid the loan instalments as directed the opposite party without any default.  After 2 months, opposite party sent some documents to the complainants.  When the second complainant enquired about the documents, the opposite party told that the documents are relating to the investment made on 17.04.2007. 

                   4. The first complainant was working at Dubai.  Recently he returned from there and approached the opposite party for taking some amount from his deposit.  But the opposite party was reluctant to release the amount as demanded by the complainant by saying one or other reason.  Later the complainants learnt that the deposit has been converted to HDFC Standard Life Insurance which functions under patronage of HDFC bank. The conversion of the investment was done without the consent of the complainants and by exploiting the documents executed by the complainants at the time of granting the above said housing loan.  The conversion of deposit to another scheme without the consent of the complainants is manifest fraud and is an unfair trade practice of the opposite party.  Hence this complaint for getting the deposited amount of Rs.1 lakh with interest, compensation and cost.

                   5. Opposite party neither appeared nor filed version, hence opposite party was declared as exparte.

                   6. Since opposite party was exparte, this Forum allowed the complainant on the basis of the proof affidavit of the complainant and Exts.A1 to A3.

                   7. Aggrieved by the order of this Forum, the opposite party filed an Appeal as Appeal No.270/2009 before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram and the Hon’ble CDRC allowed the Appeal and set aside the order of this Forum and remanded the matter back to this Forum for fresh disposal.

                   8. On getting the order of the Hon’ble CDRC, this Forum issued notices to both parties and both parties entered appearance and the opposite party filed their version.

                   9. The opposite party filed their version stating that the complaint is not maintainable either in law or on facts.  The complainants never approached them for any kind of loan and it never issued any kind of loan to them.  The opposite party is a scheduled commercial bank doing personal banking, NRI banking and other related banking business only.  They never collected any blank Cheque from the complainants or sent any documents by post.  The complainants obtained certain amount as housing loan from another company named ‘Housing Development Finance Corporation Ltd.’ and deposited in yet another company named as ‘HDFC Standard Life Insurance Company Ltd.’.  Both of them are totally different companies from HDFC Bank Ltd.

                   10. The opposite party never issued any kind of housing loan to the complainants, as it is not a business of that bank.  The complainants took housing loan from another different company named as ‘Housing Development Finance Corporation Ltd.’.  Therefore, the complainants are the customers of the said Corporation and not the customers of this opposite party.

                        11. The insurance policy taken by the complainants is from yet another distinct and separate company named as ‘HDFC Standard Life Insurance Company Ltd’. It is one of the leading private insurance companies, which offers a range of individual and group insurance solutions.  It is a joint venture between ‘Housing Development Finance Corporation and a group of company of the ‘Standard Life P/C of United Kingdom.  For the insurance purpose, the complainants are the customers of the above said company.  This opposite party is not at all responsible for any dealings between the complainants and the above said HDFC, Standard Life Insurance Company Ltd.  This opposite party is only a corporate agent of the other.

                   12. The opposite party admits that a complainant is an NRI account holder of their bank.  They had collected money in connection with a Housing Loan obtained from Housing Development and Finance Corporation Ltd. through the above said N.R.O.  The only transaction between the opposite party and the complainants is in connection with the said Housing Loan.  The opposite party never issued any Housing Loan to the complainants and as such there is no reason to sue against them.  Opposite party is only a stranger to the transaction.

                   13. There are three institutions namely HDFC Bank Ltd, Housing Development Finance Corporation Ltd. and HDFC Standard Life Insurance Company.  They are distinct, separate, and independent companies registered under the Indian Companies Act 1956.  The complainants have no legal capacity to sue against this opposite party or to recover any loss or damages from them.  This complaint is false, frivolous and vexatious and filed only to cause hardship to this opposite party.  Therefore they canvassed for the dismissal of the complaint with cost.

                   14. On the basis of the version of the opposite party, the complainant later impleaded second and third opposite parties as additional opposite parties 2 and 3 in the party array and they also entered appearance and filed their version separately. 

                   15. The additional 2^nd opposite party filed version stating that this complaint is frivolous and devoid of any merit.  The issue regarding fraud as alleged by complainant has to be adjudicated by a competent civil court and not by a Consumer Forum.  They admit that, they had provided financial assistance to the tune of ` 5,00,000 to the 1<sup>st</sup> complainant on 31.3.2007.  Out of the said amount ` 3,50,000 was sanctioned by this opposite party for purchasing land and house vide Sale Deed No.879/2007 of Pathanamthitta SRO. `1,50,000 was provided for improvement of the purchased house.  The first complainant availed 2 loans from this opposite party. The 1<sup>st</sup> complainant was abroad while availing the credit facilities.  All transactions on his behalf were made by his wife, the 2<sup>nd</sup> complainant.  The amount of ` 3,50,000 was disbursed by this opposite party on 31.3.2007 by issuing cheque No.158652 in the name of Sri. John Samuel from whom the complainants purchased land and house.  The amount of ` 1,50,000 was also disbursed by 2^nd opposite party on 31.3.2007 by issuing cheque No.551445 in the name of the 1^st complainant.  The said cheque was received by the 2^nd complainant.

                       16. This opposite party did not obtain any blank signed documents/instruments from the complainants while granting loans to the 1^st complainant.  This opposite party had obtained only such documents from the 2^nd complainant that are necessary for processing the loan application of the 1^st complainant and for sanctioning the loans to him.  The documents are loan applications, disbursement request forms, disbursement advices, post dated cheques as per the repayment schedule, promissory notes and documents relating to creation of equitable mortgage.  The 2^nd opposite party has nothing to do with the activities of the 1^st and 3^rd opposite parties.  The 2^nd opposite party is a separate legal entity. This opposite party is not privy to any of the alleged acts of the 1^st and 3^rd opposite parties.  They did not commit any fraud.  There is no deficiency of service on the part of this opposite party.  They did not made any misrepresentation to the complainants.  There is no privity of contract between the complainants and this opposite party in so far as the transaction complained of is concerned.  Therefore, additional 2^nd opposite party canvassed for the dismissal of the complaint with cost.

                    17. Additional 3^rd opposite party filed version stating that complaint is not maintainable before this Forum.  The complainant is not a consumer of this opposite party within the meaning of C.P.Act.  The complainant has to approach before the Insurance Ombudsman who is the proper authority to deal with the matter.

                   18. According to additional 3^rd opposite party, the Life Insurance contract is based on principle of utmost good faith.  In all instances the company agents or authorised officers shall thoroughly explain to the customer everything about the proposed policy and also believe that the life assured has disclosed all the known facts in the proposal form.  The complainant’s case was accepted at standard rates based on the information provided in the proposal form and the policy was issued.  The complainant’s plan was ‘UNIT LINKED ENDOWMENT SUVIDHA PLUS’ and the policy number was 11050797.  First premium was remitted by the complainant on 04.05.2007.  All the policy documents were sent to the complainant along with a covering letter on 10.05.2007, which was duly received, by the complainant on 11.05.2007.  But the complainant failed to continue the policy and no further premium was paid within the prescribed period and accordingly the policy was lapsed as per Rule 5(ii)(a) of standard policy provisions.

                   19. This opposite party has not done any fraud or any deficiency in service or unfair trade practice amounting to any such mental agony to the complainants, but on the other hand the complainant, a well educated and Gulf employed man having thorough knowledge about savings and investments, reacting to be negligent and unknown about taking an insurance policy and keeping all the documents with them, now coming with unsustainable arguments against a well reputed insurance company and unnecessarily dragging them into a litigation.  There is no deficiency of service or negligence from the part of them.  The grievance, if any, caused to the complainants was solely due to their own laches and negligence.  The reliefs claimed are unsustainable and not allowable.  Therefore, 3^rd opposite party canvassed for the dismissal of the complaint with their cost. 

                   20. From the above pleadings, following points are raised for consideration:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs and costs?

           21. Evidence of the complainants consists of the proof affidavit filed by the 1^st complainant and Ext.A1 to A3.

          22. Evidence of opposite parties consists of the deposition of DW1 and the proof affidavits of additional opposite parties 2 and 3 and Exts.B1 to B7.  After the closure of evidence, both parties were heard.

          23. Point Nos.1 to 3:-  In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents.  On the basis of proof affidavit, the documents produced were marked as Exts.A1 to A3.  Ext.A1 is the carbon copy of deposit receipt of ` 1,50,000 dated 17.04.2007 issued in favour of 1<sup>st</sup> complainant by 1<sup>st</sup> opposite party.  Ext.A2 is the carbon copy of deposit receipt of ` 50,000 dated 17.04.2007 issued in favour of 2^nd complainant by 1^st opposite party. Ext.A3 is the statement of account issued to 1^st complainant by 1^st opposite party.

          24. In order to prove the first opposite party’s contention, first opposite party filed proof affidavit along with certain documents.  1^st opposite party was examined as DW1 and the documents produced were marked as Exts.B1 to B4 and B7.  Ext.B1 is the computer print of working chart of HDFC Standard Life Insurance Co. Ltd.  Ext.B2 is the computer print of working chart of HDFC Bank Ltd.  Ext.B3 is the computer print of working chart of HDFC (Housing Finance) Ltd.  Ext.B4 is the computer print out of transaction of first complainant from 10.2.07 to 1.4.09.  Ext.B7 is the cheque for ` 1,00,000 by the complainant. 

          25. In order to prove the contentions of additional opposite parties 2 and 3, the additional opposite parties 2 and 3 filed separate proof affidavits.  On the basis of the proof affidavits of additional 3^rd opposite party, the documents produced were marked as Exts. B5 and B6. Ext.B5 is the copy of Standard Life Insurance Policy document.  Ext.B6 is the copy of Detailed Unit Statement for the period between 4.5.07 to 21.5.08 as per Unit Linked Endowment Plus Plan of HDFC Life. 

          26. On the basis of the contention and averment of the parties, we have perused the entire material on record.  Complainant’s case is that he availed a housing loan of ` 5 lakhs and deposited ` 1 lakh in the 1^st opposite party bank as fixed deposit.  At the time of granting loan, complainant put his signature in several papers and also given two signed blank cheques as security.  Complainant repaid the loan as per the direction of bank.  When complainant was in need of money, he approached the 1^st opposite party for the return of his deposit.  At that time he realised that his deposit was converted into HDFC Standard Life Insurance policy.  The said conversion is without his consent.  Hence this complaint for getting the deposit amount etc.

          27. According to 1^st opposite party, they never issued any kind of loan to complainant.  1^st opposite party is a scheduled commercial bank and they never collected any blank cheques from complainant.  The housing loan obtained by complainant is from additional 2^nd opposite party, the Housing Development Finance Corporation Ltd.  The insurance policy is taken by complainant from additional 3^rd opposite party, the HDFC Standard Life Insurance Company Ltd.   Complainants are the customers of additional 2^nd and 3^rd opposite parties.  The 2^nd and 3^rd additional opposite parties are distinct, separate and independent companies having separate entity like 1^st opposite party.  1^st opposite party admit that 1^st complainant is an NRI account holder of their bank.

                   28. The additional 2^nd opposite party admitted that they had provided loan of `5,00,000 to complainant, from which ` 3,50,000 was used for purchasing land and building and ` 1,50,000 was provided for improvement of the purchased building.  They obtained documents such as disbursement request form, post-dated cheques as per the repayment schedule, promissory notes etc. from 2^nd complainant.  They had not committed any fraud and nothing to do with the activities of the 1^st and 3^rd opposite parties.

                   29. 3^rd opposite party’s contention is that they had issued Unit l-Linked Endowment Suvidha Plus Policy to the complainant by accepting Rupees One Lakh as premium after complying all the requisite formalities.  All policy documents were sent to complainant.  But complainant failed to continue the policy and no further premium was paid and therefore the policy was lapsed.

                   30. On a perusal of Exts.A1 to A3, it is evident that complainant’s deposited an amount of ` 1,50,000 to 1<sup>st</sup> opposite party’s bank.  As per entry in Ext.A3, an amount of ` 1 lakh has withdrawn on 2.5.07.  The narration stated in Ext.A3 is Fund TRF-HDFC-BUC.

                   31. According to opposite parties, they are separate entity.  Ext.B1 and B2 shows that they are separate entity having the business of insurance, banking and housing finance.  Ext.B4 shows the complainant’s statement of account.  Ext.B5 is the policy details of 1^st complainant.  Ex.B6 is the detailed unit statement of policy.  Ext.B7 shows that complainant issued cheque of ` 1,00,000 to 3^rd opposite party.

                   32. There is no dispute regarding the loan of ` 5 lakhs received by the complainant.  According to complainant, he never visited other than 1<sup>st</sup> opposite party’s office for the said transaction.  According to 2<sup>nd</sup> opposite party they issued loan to 1<sup>st</sup> complainant and according to 3<sup>rd</sup> opposite party they issued Unit Linked Endowment Suvidha Plus to the complainant.  But opposite parties 2 and 3 had no contention that the said transactions were done in their respective office.  1<sup>st</sup> opposite party’s contention is that they had not issued any loan or policy as alleged by the complainant.  But during the examination, DW1 admitted that ` 1 lakh credited in HDFC Standard Life Insurance.  It is evident in DW1’s deposition, which is as follows: “Hcp e£w cq]m HDFC Standard Life te¡v transfer sNbvXXv F§s\bmWv?  HDFC Standard Life Customer cheque HDFC Bank þepÅ AhcpsS accountþte¡v deposit sNbvXp. Bank AXv Standard Life te¡v credit sNbvXp”.

                   33. According to the complainants, the Manager of the 1^st opposite party canvassed 1^st complainant for depositing ` 1,00,000 to their bank as a condition for providing the housing loan of ` 5,00,000.  Therefore, the 1^st complainant deposited ` 1,00,000 to 1^st opposite party.  After that he went to abroad.  He was not aware of the HDFC standard life.  1^st opposite party admitted that they are working as corporate agent of 3^rd opposite party.  Since the 1^st opposite party being a promoter and corporate agent, it is their business tactics to canvass persons for the sale of 3^rd opposite party’s insurance products.  Arranging housing loan from 2^nd opposite party and enrolling persons to HDFC standard life of 3^rd opposite party are the business activities of 1^st opposite party.  Even though opposite parties claims that they are separate entity, in actual day-to-day business dealing they are closely connected with each other.

                   34. It is noted that 1^st opposite party credited ` 1,00,000 to 3<sup>rd</sup> opposite party is not connected with any scheme of housing loan as a precondition for securing the life of loanee.  Normally before taking the policy the agent or the concerned insurance officials must enquire about the income and economic standard of the proposor to assess the capacity to pay the requisite premium.  The sum assured and the premium amount will depend upon the said capacity.  If a person is not having sufficient income he should not be imposed higher burden by issuing a high premium insurance policy.  As per Unit Linked Suvidha Proposal Forum attached with Ext.B5, there is a premium amount column and a total amount column.  In both the columns, it is first written ` 6,250 as premium amount.  But it is seen scratched and written as ` 1,00,000.  It is an indication of a fabrication, also in the light of any attestation made by the complainant.  This shows the opposite parties’ intention for extracting money from the complainant.

                   35. Exts.A3 and Ext.B4 shows the complainants deposits and withdrawals and the amounts show in Exts. A3 and B4 is very small. This figures clearly shows the financial capacity of the complainant.  How can such a poor person took policy by paying ` 1,00,000 as premium.  As a loanee of 2<sup>nd</sup> opposite party, complainant is duty bound to repay the loan amount of ` 5,00,000 with interest.  The premium amount of ` 1,00,000 is part of the total loan amount of ` 5,00,000.  It is not from complainant’s salary or other source of income.  Therefore, if he had sufficient surplus income why should he take loan from additional second opposite party.  On a perusal of Ext.B5, we cannot come to a conclusion that on what basis 1^st and additional 3^rd opposite parties enrolled the complainant in Unit Linked Endowment Suvidha Plus?  Is it for the benefit of the complainant or for the opposite parties 1 and 3?  The intention of the opposite parties behind this transaction is for making money by any means.  For achieving that aim, opposite parties 1 and additional opposite party 3 deliberately forgot the value of moral principles.  

                   36. According to 1^st complainant, he entrusted two signed blank cheques and put signatures as directed by the 1^st opposite party for obtaining loan.  Out of the loan amount, 1^st complainant deposited `1,00,000.  After that he went abroad.  When he came back for withdrawing the deposit, he came to know that deposited amount was converted into investment in HDFC Standard Life Insurance.  According to 1^st complainant this transfer was not with his consent.  But opposite parties failed to prove effectively the said allegation by not producing the blank cheque and other documents entrusted to them.  Moreover, opposite parties have not properly explained and identified the handwriting of entries recorded in Ext.B7.  It is evident in DW1’s deposition, which is as follows:- “HDFC bank sâ F{X cheque book þIÄ lÀPn I£n¡v \ÂInbn«ps­¶v F\n¡dnbnà Bank record IÄ ]cntim[n¨m a\ÊnemIpw.  AXnsâ tcJ c­v BgvN sIm­v lmPcm¡mw.  Cheque leaf IÄ am{Xambn \ÂImdnÔ. “Hcp e£w cq]sb kw_Ôn¨ Chequeþ XpIbpÄs¸Sp¶ ssI¸SIÄ lÀPn I£nbptSXsöpw ]dbp¶p?  AXns\¸än AdnbnÃ. Cu ]Ww Standard Life Insuranceþte¡v hI amäp¶Xn\mbn bmsXmcphn[ \nÀt±i§fpw 1þDw 2þDw lÀPn I£nIÄ \ÂInbncp¶nsöpw ]dbp¶p? AdnbnÔ.

                   37. From the available materials on record, it cannot be ruled out that the transfer of ` 1,00,000 from 1^st complainant’s deposit to 3^rd opposite party is done without his consent and collected by false and fraudulent ways.  The signature of 1^st complainant as seen in Ext.B5 and Ext.B7 does not mean that he had given free consent to join the standard life insurance.  Therefore, it is presumed that the consent obtained by opposite parties 1 and 3 are false and by deceptive ways.  As per Sec.16, 17 and 18 of Indian Contract Act 1872, Ext.B5 is viodable.

                   38. On going through the overall facts and circumstances of the case, we come to the conclusion that opposite parties failed their attempt to disprove the complainant’s case.  They also failed to convince their contention.  Absence of free consent with Ext.A1 and Ext.B5 are inoperative and viodable.  Opposite parties 1 and 3 made the complainants to believe that the deposited amount of ` 1,00,000 is used for investment fund.  The 1<sup>st</sup> opposite party had actually by false words cheated them by transferring the deposited amount of ` 1,00,000 to 3^rd opposite party.  Thereby the opposite parties 1 and 3 committed misrepresentation and concealment of fact in their business dealing, which is not only a clear deficiency of service but also an unfair trade practice.  Therefore, complaint is allowable by directing the 3^rd opposite party to return the amount of `1,00,000 with interest.  1^st opposite party is directed to pay the cost.  The 2^nd opposite party is exonerated from any liability.

                   39. In the result, complaint is allowed, thereby the 3^rd opposite party is directed to pay the premium amount of ` 1,00,000 (Rupees One Lakh only) with 9% interest from the date of filing of this complaint till this date to the complainants.  The 1<sup>st</sup> opposite party is directed to pay ` 2,000 (Rupees Two Thousand only) as cost to the complainants.  Since interest is allowed, no compensation is allowable.  The amount so awarded is to be paid within 30 days from the date of receipt of this order, failing which the whole amount will follow 10% interest from this date till the realisation of the whole amount.

                   Declared in the Open Forum on this the 27^th day of June, 2011.

                                                                                                      (Sd/-)

                                                                                            N. Premkumar,

                                                                                                   (Member)

Sri. Jacob Stephen (President)                  :         (Sd/-)

Appendix:

Witness examined on the side of the complainants:  Nil.

Exhibits marked on the side of the complainants:

A1     :         Carbon copy of deposit receipt of ` 1,50,000 dated 17.04.2007  

                     issued in favour of 1^st complainant by the 1^st opposite party.

A2     :         Carbon copy of deposit receipt of ` 50,000 dated 17.04.2007

                     issued in favour of 2^nd complainant by the 1^st opposite party.

A3     :         Statement of account issued to the 1^st complainant by the 1^st

                     opposite party.

Witness examined on the side of the opposite parties:

DW1 :         Praveen. P.

Exhibits marked on the side of the opposite parties:

B1     :         Computer print of working chart of HDFC Standard Life

                      Insurance Co. Ltd.

B2     :         Computer print of working chart of HDFC Bank Ltd.

B3     :         Computer print of working chart of HDFC (Housing Finance)

                      Ltd.

B4     :         Statement of account of first complainant from 10.02.2007 to

                     01.04.2009. 

B5     :         Copy of Standard Life Insurance Policy document.

B6     :         Copy of detailed Unit Statement for the period between

                     04.05.2007 to 21.05.2008 as per Unit Linked Endowment Plus  

                     Plan of HDFC Life.

B7     :         Cheque for ` 1 1akh issued by the complainant.

                                                                                                (By Order)

                                                                                         Senior Superintendent.

Copy to:- (1) Jacob George, Sharon Villa, Mathoor P.O.,

                       Pathanamthitta – 689 657.

       (2) Mercy Jacob, Sharon Villa, Mathoor P.O.,

                       Pathanamthitta – 689 657.         

       (3) Branch Manager, HDFC Bank, Pathanamthitta Branch, Aban  

   Tower, Pathanamthitta P.O.

                  (4) HDFC Ltd. (Home Loan), Ground Floor, Chempothara 

     Chambers, Ring Road, Pathanamthitta – 689 645.

                  (5) HDFC Standard Life Insurance Corporation Ltd.,

                       First Floor, Chempothara Chambers, Ring Road,

                       Pathanamthitta.

                  (6) The Stock File.