COMPLAINT FILED: 26/06/2009 <br /> DISPOSED ON: 16/11/2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 16TH NOVEMBER 2009<br /> <br /> PRESENT :- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> COMPLAINT NO.1494/2009<br /> <br /> <br /> COMPLAINANT <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> A.Sridhara<br /> Aged about 60 years,<br /> S/o.Prof. N.Anantha char,<br /> Residing at 90/3, 401, <br /> 10th ‘C’ Main Road,<br /> Jayanagar 1st Block,<br /> Bangalore – 560 011.<br /> <br /> Advocate–Sri.Gautamaditya.S<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1)ING Life Insurance (B 29)<br /> Suraj Ganga Arcade,<br /> 332/7, 14th Cross, II Block,<br /> Jayanagar,<br /> Bangalore – 560 011.<br /> <br /> 2)ING Vysya Life Insurance Ltd., ING Vysya House,<br /> 5th Floor, #22, M.G. Road,<br /> Bangalore-560 011.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> SHRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint u/s. 12 of the C.P.Act of 1986 seeking direction to Opposite Party (herein after called as OP) to return the amount of Rs.12,000/- with interest at 12% p.a. and to pay amount of Rs.10,000/- as compensation for mental agony on an allegation of deficiency in service. <br /> <br /> The case of the complainant stated to be in brief is as under:-<br /> <br /> 2. The complainant subscribed to an “ING Vysya Best Years Retirement Policy” bearing No: 00108356 on 01-03-2004 and paid annual premium of Rs.12,000/- for four years. OP issued a letter dated 11-02-2009 stating that policy was nearing its vesting date i.e., on 01-03-2009. In response to ING Vysya Life Insurance letter dated 11-02-2009 the complainant submitted duly signed policy surrender form and original policy on 06-03-2009. In response to the surrender form submitted, the letter dated 12-03-2009 was received from the ING Vysya Life Insurance acknowledging the surrender request and requiring the surrender of specimen signature. The complainant complied the request and submitted on 18-03-2009. The surrender was accepted and same was confirmed in the letter dated 09-04-2009 and a cheque for an amount of Rs.77,547-02 was drawn out indicating the closure and termination of the policy. <br /> <br /> 3. Despite the date of vesting of the policy on 01-03-2009 and the request for surrender, an amount of Rs.12,000/- was drawn via ECS from the complainant’s Bank account. Aggrieved by the said unauthorized withdrawal the complainant submitted application to OP 2 on 10-04-2009 requesting to refund the amount unauthorized withdrawal with interest. The OP did not respond to the same. The complainant wrote another letter dated 13-05-2009 for refunding the amount with interest, for that letter of complainant OPs have not responded. The complainant got issued a legal notice on 13-06-2009. The OPS have not responded to the said notice. OPs continued to hold that amount of Rs.12,000/-. The same has caused more mental agony and difficult to the complainant who is a Senior Citizen. Hence, he is seeking for refund of that amount with interest and for compensation. The complaint produced in all 21 documents along with the complainant.<br /> <br /> 4. The OPs after appearance filed their version contending that the complaint is filed on mistaken notion or willful suppression of material fact it is admitted that the complainant has subscribed to a “ING Vysya Best Years Retirement Policy” and contributed annually Rs.12,000/-. As per the policy schedule the policy vest on 01-03-2009, the complainant had also given a standing instruction mandate to his Banker for deducting only of Rs.12,000/- from his Bank account on the specified policy due date. It is said that the complainant issued a letter dated 01-03-2009 requesting for increasing (deferring) for one more year. The complainant submitted application for surrender of the policy on 06-03-2009 to the OP Company, which was received on the Head Office on 10-03-2009. Since the signature of the complainant in the surrender form was not matching with the specimen signature, some more specimen signatures were taken for further process. Eventually, the policy of the complainant was surrendered with effect from 29-03-2009. In the meanwhile, the standing instruction mandate given by the complainant to his Banker was triggered and an amount of Rs.12,000/- was credited to the account of the OP Company on 04-03-2009. Since the amount was received after the date of vesting the same was parked in the suspense account of the OP Company and was refunded to the complainant along with surrender value on 09-04-2009. As per clause 3.10 of the terms and conditions of the policy the surrender charges are payable at such rates as may be stipulated from the company from time to time. The balance in the IPA (Individual Pension Account) on the date of vesting was only Rs.72136-10. The policy was surrendered with effect from 29-03-2009 and the Fund Value of the policy holder’s account had increased to Rs.72,678-61 as on 29-03-2009. As per clause 3.10 the complainant is entitled to only to a guaranteed surrender value equal to 60% of the accumulated balance in IPA which in this works out to be 60% of Rs.72,678-61. OP furnishing the detailed calculation showing how the surrender value of 77,547-02 was arrived at:<br /> <br /> Balance in the IPA as on 01.03.2009: Rs.72,136-10<br /> Balance in the IPA as on 29.03.2009: Rs.72,678-61<br /> Surrender value (after deducting surrender charges): Rs.65,547-02<br /> (An amount was Rs.7131.59 was deducted towards<br /> Surrender charges. However, the surrender value<br /> Of Rs.65547-02 works out to be approximately 90%<br /> Of the Fund Value, even though as per the terms &<br /> Conditions the complainant was entitled only for a<br /> Minimum of 60% of the Fund Value).<br /> <br /> Along with surrender value of Rs.65547-02 the OP Company had refunded an amount of Rs.12,000/- which was received by them after the dated of vesting thereby making the refund of total amount of Rs.77,547-02 (Rs.65,547-02 + 12,000-00). This being the fact, OP does not owe any money to the complainant and there is no any deficient service to the complainant. Further it is stated that surrender application dated 06-03-2009 was received at the Head Office of the OP on 10-03-2009. It is admitted that an amount of Rs.12,000/-was received by the OP Company on 04-03-2009 after the date of vesting. It is denied that the amount was received after the request for surrender. The credit of the money in to the account of the OP was purely automatic as the complainant had given standing instruction to this banker for crediting account to the OP Company. The said amount of Rs.12,000/- was parked in the suspense account and was refunded to the complainant along with surrender value. It is admitted that OP received the letters but it is false that OP did not response to the letters of the complainant. The officers of OP had spoken to the complainant and his son on several occasions explaining that the surrender value which was paid was inclusive of the refund of Rs.12,000/-. The complainant has purposefully refusing to accept the explanation of the OP and is pretending as if he is unable to understand the facts. The allegation that the conduct of the OP had caused great mental agony and difficulty to the complainant and had deprived him of a large amount of his savings is absolutely false and denied. The complainant is not entitled to receive Rs.12,000/- as the sum is already paid. OP has not caused any mental agony and hence not liable to pay Rs.10,000/- or any other sum towards compensation. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> <br /> 5. The complainant filed affidavit to substantiate the complaint allegations. The legal council and Company secretary of OP filed affidavit in support of defence version. Both the parties filed written arguments.<br /> <br /> 6. After perusing the pleadings, the documents produced and affidavits filed by way of evidence and hearing on both the sides the following points arise for our consideration:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 7. We record our findings on above points as under:-<br /> <br /> Point No.1:- Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N <br /> <br /> 8. It is not in dispute that the complainant subscribed to an “ING Vysya Best Years Retirement Policy” bearing No: 00108356 on 01-03-2004 and paid annual premium of Rs.12,000/- for four years. As per the letter dated 11-02-2009 issued by the OP to the complainant the vesting date of the policy is shown as 01-03-2009. The complainant submitted surrender form to surrender the policy on 06-03-2009. In pursuance of that OP issued letter dated 12-03-2009 acknowledging the surrender request and seeking some clarifications. The complainant complied with those clarifications through its letter dated 18-03-2009. The surrender was accepted and a cheque for Rs.77,547-02 was sent to the complainant along with covering letter dated 09-04-2009 indicating the closure and termination of the policy. <br /> <br /> 9. The main grievances of the complainant is despite the date of vesting of policy on 01-03-2009 and the request for surrender, an amount of Rs.12,000/- was drawn from his account unauthorized by OP and the said amount has not been refunded inspite of issue of letters dated 13-05-2009, 18-05-2009 and legal notice dated 13-06-2009. Thus the complainant claims that OP unauthorizedly drawn that amount of Rs.12,000/- from his account and with held the same without any justifiable cause. <br /> <br /> 10. The defence version is the amount of Rs.12,000/- drawn after the vesting date was refunded to the complainant along with the surrender value of the policy. It is contended that surrender value of the policy after deducting surrender charges was Rs.65,547-02 by adding the amount of Rs.12,000/- the same worked out at Rs.77,547-02, that amount has been received by the complainant as such the OP is not liable to pay the said amount. Mainly the complainant relied on the letter dated 09-03-2009 addressed by OP stating that the company has declared bonus interest for the financial year 2007-2008 at 12.46% which has been added to fund balance. Based on this letter it is contended for the complainant that as per letter dated 11-02-2009 marked as Annexure R3 the fund balance declared by the OP is Rs.72,136-10 by adding bonus interest at 12.46% to the said amount, the net amount works out at Rs.81,124/-. Out of the same the OP has paid only Rs.77,547-02 after deducting Rs.3,577/- as charges. Thus it is contended that an amount of Rs.12,000/- excess drawn unauthorizedly by OP was not included in the amount of Rs.77,547-02. <br /> <br /> 11. In our view the bonus interest at 12.46% mentioned in the letter dated 09-03-2009 was already included in the fund value of Rs.72,136-10 shown in the letter dated 11-02-2009. As per the annual statement issued by OP for the period 01-04-2007 to 31-03-2008, the bonus interest shown is Rs.6,233-13; after adding that the total amount shown is at Rs.65,980-23. Therefore there is no merit in the contention of the complainant that 12.46% bonus interest shown in the letter dated 09-03-2009 was included while making payment of Rs.77,547-02, but the disputed amount of Rs.12,000/- was not included in that amount. The bonus interest declared for the year 2007and 2008 was already added for the amount shown as fund balance in the letter dated 11-02-2009. By deducting the surrender charges of Rs.7,131-59 is shown in the defence version, the surrender value was Rs.65,547-02 by adding the disputed amount of Rs.12,000/- the total refund amount was worked out at Rs.77,547-02. Thus we are of the view that the amount at Rs.12,000/- drawn from the account of the complainant has been refunded with the surrender value of the policy. <br /> <br /> 12. It is contended for the complainant that for the letters 10-04-2009, 31-05-2009 and legal notice dated 13-06-2009 OP has replied stating that an amount of Rs.12,000/- is already refunded while paying surrender value of the policy. Further in the surrender discharge form that amount of Rs.12,000/- is not separately shown as the amount excess drawn. Only on 23-07-2009 e-mail was sent to the complainant stating that amount of Rs.77,547-02 paid is inclusive of surrender value of Rs.65,547-02+12,000/- . The very fact of not replying the letters and legal notice clearly goes to show that the defence version that disputed amount of Rs.12,000/- is already included in the amount paid to the complainant is only after thought. It is also contended that since the vesting date of the policy was 01-03-2009 the surrender charges could not have been deducted in the fund value; clause 3.10 of the policy is applicable only when the policy is surrendered before the vesting date. <br /> <br /> 13. In our view merely because the OP failed to reply the letters and legal notice; it cannot be taken that the defence version the amount of Rs.12,000/- is refunded to the complainant along with the surrender value of the policy cannot be accepted. OP in the defence version and affidavit filed it is clearly stated that they tried to convince the complainant orally that the disputed amount of Rs.12,000/- is refunded along with surrender value of the policy but the complainant was not prepared to accept the same. In case the amount of Rs.12,000/- was not included in the surrender value of the policy only the surrender value could have been Rs,65,547-02 after deducting the surrender charges for the total fund value of Rs.70,678-61 as shown in the defence version. <br /> <br /> 14. The complainant has issued the letter dated 01-03-2009 requesting the OP to increase vesting period on the policy by one more year. The Xerox copy of the same is marked as annexure R4. In the complaint, it is not pleaded by the complainant the circumstances under which he has requested the OP to extend the vesting period by one more year. In the written arguments filed by the complainant it is stated that after receipt of the letter dated 11-02-2009 issued by OP, the complainant approached the branch office of the OP to close the account and the branch office of the OP informed him that his money would not be released unless and until he signed a letter requesting that the vesting date will be extended. The complainant complied with that demand and scribbled a rough note dated 01-03-2009. In case the complainant was forced to issue such a letter there is no reason for him in not pleading the said material fact in his complaint. Though complainant has issued a letter requesting the vesting date extended by one more year but the OP has not sent any communication for having accepted the request of the complainant. Clause 3.10 of the police Provides that :<br /> “The policy can be surrendered by the annuitant for cash at any time before the vesting date, subject to payment of applicable surrender charges to the company, provided the policy is completed at least 3 full policy years. The surrender charges shall be payable at such rates as may be stipulated by the company, from time to time. The amount payble on surrender of the policy shall be the accumulated balance in the IPA, less the applicable surrender charges. The minimum guaranteed surrender value shall be equal to 60% of the accumulated balance in the IPA at the time of surrender.” <br /> From the above provision it becomes clear that if he surrender of the policy is before the vesting date, then the company is entitled to deduct the surrender charges. The vesting date of the policy was 01-03-2009. The policy was already vested, the surrender application was filed on 06-03-2009, after the vesting date, as such the company was not justified in deducting the surrender charges in the accumulated balance in the IPA. Therefore the amount of Rs.7,131-59 deducted towards the surrender charges is to be refunded to the complainant. <br /> <br /> 15. After the vesting date the amount of Rs.12,000/- was withdrawn from the account of the complainant by the OP on 03-03-2009. In the e-mail dated 23-07-2009 OP has admitted that the amount of Rs.12,000/- was withdrawn by ECS mode from the account of the customer by mistake. In view of that there is no merit in the contention that the credit of that amount for the account by OP was purely automatic as complainant has given standing instruction to his banker for crediting the amount in the account of the OP Company. In Laxmandas Agrawal Vs. Senior Branch Manager, Life Insurance of India – (2003) CPJ 531) It was held that deduction of premium by mistake or in inadvertently, also amounts to negligence as defined in Consumer Protection Act and it is a case of deficiency in service, which certainly caused inconvenience and put the appellant to a long correspondence and thereafter filing of the complaint. In Lalchand Vs. Punjab National Bank (1993) CPJ 1347 it was held that inadvertence also amounts to negligence as defined in the Consumer Protection Act and therefore the Bank is clearly liable to pay damages to the complainant. The principles laid down in the above cases are clearly applicable to the facts of this case. OP company has admitted the fact that by mistake the amount of Rs.12,000/- was drawn from the account of the complainant and taken to the OP’s account, in our view the same amounts to deficiency in service. The complainant was made to write letters and issue notice for claiming that amount. OP Bank has not replied for those letters and legal notice. In view of the same the complainant has to approach this forum claiming refund of that amount. Only in the e-mail dated 23-07-2009 the OP has clarified that amount was refunded to the complainant along with the surrender value of the policy. OP has appeared in this proceeding on 24-07-2009, a date earlier only that e-mail was sent clarifying the position. Under these circumstances we are of the view that ends of justice would be met by awarding compensation of Rs.5,000/- to the complainant on account of mental agony. The complainant is entitled for an amount of Rs.7,131-59 make it to round figure as Rs.7,200/- which was deducted towards the surrender charges and compensation of Rs.5,000/-. OP is liable to pay total amount of Rs.12,000/-. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant allowed in part.<br /> <br /> OPs are directed to refund an amount of Rs.7,200/- and pay compensation of Rs.5,000/- and litigation expenses of Rs.2,000/- to the complainant. <br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 16th day of November 2009.) <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> NRS<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />