Haryana

StateCommission

A/1113/2018

BHARTI AXA LIFE INSURANCE CO. LTD. - Complainant(s)

Versus

KANWAR SINGH - Opp.Party(s)

KARANDEEP SINGH CHEEMA

06 Dec 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

First Appeal No.1113 of 2018

Date of Institution:21.09.2018

                                                           Date of Decision:06.12.2021

 

Bharti Axa Life Insurance Company Ltd. regd. Address: 6^th Floor, Unit-601 & 602, Raheja Titanium, Off Western Express Highway, Goregaon (East), Mumbai-400063 through its Managing Director/CEO, through its Branch Manager at Sanpera Branch. (Address in the complaint).

The present address of the registered office is at Unit No. 1904, 19^th Floor, “Parinee Crescenzo”, G-Block, Bandra Kurla Complex, BKC Road, Opp. MCA Club, Bandra East, Mumbai-400051.

….Appellant/Opposite party No.1

Versus

 

1.      Kanwar Singh S/o Shri Mange Ram, R/o House No.36, Sector-14, Sonepat Haryana.

                                                   ……Respondent No.1/complainant

2.      Dewan Housing Finance Corp. Ltd. 2^nd Floor Warden House, Sir PM Road, Fort, Mumbai through its MD/CEO through its Branch manager at Sonepat Branch.

3.      DHFL Pramerica Life Insurance Co. Ltd. 4^th Floor, Building No.9, Tower-B, Cyber City, DLF City, Phase-III, Gurgaon-122002, Haryana.

….Respondents/Opposite parties No.2 & 3.

CORAM:-  Shri Ram Singh Chaudhary, Judicial Member.

 

Present:-   Shri Hitender Kansal, counsel for the appellant.

                    Shri Sikander Bakshi, counsel for respondent No.1.

                    Shri Tushar Arora, counsel for respondent No.2.

                    None for respondent No.3.

 

O R D E R

 

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

                  

                   As per order dated 27.09.2021 contained in letter No.1578, I am conducting these proceedings singly.

 2.               Alongwith the present appeal, the appellant has filed an application under section 5 of the Limitation Act (in short “Act”) for condonation of delay of 120 days wherein,  it was alleged that the appellant maintaining its centralized legal department from Mumbai office only and all the decisions regarding legal cases were taken by the Mumbai office and certified copy of the impugned order was not received by the appellant company. It was further alleged that the appellant had engaged a local counsel at Sonepat and were regularly following up with the counsel for the order copy but the same was not received by the company. The appellant received the copy of order from local counsel with the remarks received by hand on 24^th April, 2018 and thereafter the matter was sent to Mumbai office. The whole process takes a lot of time, but the delay in filing of present appeal is inadvertently not intentionally. Thus, delay of 120 days in filing of the present appeal be condoned.

3.                   Arguments Heard. File perused.

4.                   Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional, so, the delay may be condoned. 

5.                   This argument is not avail.  A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

6.                   The inordinate delay of 120 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

7.                Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 120 days in filing of the present appeal. Hence, the application filed for condonation of delay in filing of the present appeal is dismissed.  

8.                Bharti Axa Life Insurance Co. Ltd. (Respondent No.1) is in appeal against the impugned order dated 20.04.2018, passed by learned District Consumer Disputes Redressal Forum, Sonepat (for short ‘learned District Forum’), whereby opposite parties No.1 to 3 were directed as under:-

“        Accordingly, we hereby direct the opposite parties No.1 to 3 to refund the mount of Rs.610998/- to the complainant alongwith interest at the rate of 09% p.a. from the date of its deposit till realization. Since, the complainant has been able to prove that the opposite parties No.1 and 3 have cheated him by alluring sweat and colourful dreams and they have also rendered deficient services to the complainant which has resulted into unnecessary harassment & humiliation, we further direct the opposite parties No.1 to 3 to compensate the complainant to the tune of Rs.25,000/- (Rs. Twenty five thousand) for cheating the complainant, for rendering deficient services, for causing unnecessary mental agony, harassment under the head of litigation expenses.

          With these observations, findings and directions, the present complaint stands allowed qua opposite party No.1 and 3 since we find no deficiency in service on the part of opposite party No.2.”

9.                The brief facts of the complaint emerges as under that in the month of July, 2015, the authorized officer of opposite party No.1 namely Shri Rajesh Aggarwal contacted the complainant on the ground that his company can provide a loan at the interest of 6.5% p.a. without mortgaging any property or guarantee against the life insurance policy. Thereafter, on 18.07.2015, one Shri Vivek Bhatnagar contacted him telephonically and told that in case, if, he would take a life insurance policy of Rs.50 Lakhs with a premium of Rs.5 Lakhs per month for 12 years with a maturity period of 20 years from opposite party No.1 then opposite party No.1 shall disburse a loan of Rs.50 Lakhs against that policy on the interest @ 6.5% p.a. for which the complainant need not to pay any installment than the premium amount for 12 years. He further informed him that in case the complainant pays the premium for 12 years then from 13^th year onwards he shall get an amount of Rs.4,50,000/- annually till 20^th year and on maturity the complainant shall receive about Rs.30 Lakhs after deducting the loan amount and its interest.  Thereafter, opposite party No.1 has issued policy No.501-3223081 with Life Elite Advantage Plan for a premium of Rs.1,10,999/- and policy No.501-3432165 for a premium of Rs.3,99,999.16 paise. The amount of premium was collected by the agent namely Mandeep Singh, Arun and Varun, employees of opposite party No.1. On 13.10.2015, he contacted Vivek Bhatnagar and told him that a loan of Rs.72 Lakhs has been sanctioned in his favour by opposite party No.2 instead of opposite party No.1. He further asked him to take another policy and paid premium of Rs.2,20,000/- to opposite party No.2 in order to cover the loan of Rs.72 Lakhs, however, the complainant refused to take any such policy. However, as per directions of High Officials of opposite party No.2, the complainant has to issue post dated cheque of Rs.2,20,000/- and the amount shall be deducted after the loan was deposited in the account of complainant. The complainant gave post dated cheque of Rs.2,20,000/- to Vikas Pandey and Vivek Bhatnagar officials of the opposite parties, who assured him that cheque issued by him shall not be presented till the loan amount was deposited in his account. However, after few days he came to know that the cheque of Rs.2,20,000/- was  presented by opposite party No.2 in his account and the same was dishonoured. Under the misrepresentation of the agents/officials of the opposite parties, the complainant again made a payment of Rs. One lakh which was collected by Arun Tiwari agent/official of opposite party No.2 and remaining amount of Rs.1,20,000/- (Rs. One lakh twenty thousand only) shall be deducted from the loan amount, which was not deducted and complainant again paid Rs.1,00,000/- (Rs. One lakh only) to Arun Tiwari, agent of opposite party No.2. Thereafter one more policy No.000390686 dated 24.11.2015 issued by opposite party No.2. On 09.01.2016, the complainant received an e-mail from opposite party No.2, wherein a scanned copy of cheque No.139649 dated 08.01.2016 of Rs. 72 Lakhs drawn on HSBC Bank in his name was attached and the complainant was asked to pay an amount of Rs.16,000/- towards registration fees and Rs.1,20,000/- for balance premium. The act and conduct of the agents, officials of the opposite parties and the opposite parties as well amounts to deficiency in service and unfair trade practice. The complainant has taken policies from the opposite parties and paid Rs.6,10,988/- under misrepresentation of the agent and officials of the opposite parties. The complainant has agreed to take the policies of the opposite parties after paying the premium to obtain the loan from the opposite parties which has not been fulfilled by the opposite parties and that amounts to a grave deficiency in service on the part of the opposite parties. Thus, there was deficiency in service on the part of opposite parties.

10.              Upon notice, opposite parties appeared before learned District Forum and submitted their written versions. Opposite party No.1 in its written version submitted that the complainant has mentioned about three insurance policies, but the opposite party No.1 has issued only one policy i.e. insurance policy No.5013432165 and opposite party No.1 was a life insurance company and was not dealing with giving loans to any individual or entity. Opposite party No.1 was not dealing with opposite party No.2 and was not a banking institution. It was further submitted that in case the complainant was not satisfied with the features or terms & conditions of the policy, then he can withdraw/cancel the policy under free look period i.e. within 15 days from the date of receipt of policy documents. The policy bond was dispatched to him on 02.09.2015 through Airway bill, which was duly received by him on 07.09.2015. Complainant has failed to deposit the premium amount and accordingly the policy acquired lapsed status due to non-payment premium as per the terms and conditions of the policy and all the allegations were against some individual agent/brokers i.e. opposite party No.2 & 3. Thus, there was no deficiency in service on the part of opposite party No.1 and prayed for dismissal of the complaint against opposite party No.1.

11.              Similarly, opposite party No.2 in its written version submitted that no loan was sanctioned in the name of complainant. Opposite party No.2 did not provide any policy to anyone, rather they were providing housing loan only. Opposite party No.2 did not sent any e-mail to him and never issued any alleged sanctioned letter of Rs.72 Lakhs in his name. Opposite party No.2 never issued the alleged policy No.000390686 dated 24.11.2015 in the name of complainant. Further submitted that opposite party No.2 never issued any alleged cheque No.139649 dated 08.01.2015 of Rs.72 Lakhs to him. Thus, there was no deficiency in service on the part of opposite party No.2 and prayed for dismissal of the complaint.

12.              Opposite party No.3 in its written version submitted that the complainant after completely understanding the terms and conditions of the policy contracted voluntarily applied for the policy by filing proposal form No.AF002387365 dated 02.11.2015. The complainant offered to pay a model premium of Rs.2,20,000/- annually against a sum assured of Rs.17,89,523/-. Thereafter, complainant vide letter dated 19.11.2015 requested the opposite party No.3 to reduce the premium amount to Rs. One lakh and accordingly the sum assured was reduced to Rs.8,12,735/-. A policy No.000390686 was issued on 24.11.2015 for the premium payment tenure of 12 years and policy terms of 16 years. All the policy terms and conditions were sent to the complainant on 26.11.2015. Thus, there was no deficiency in service on the part of opposite party No.3 and prayed for dismissal of the complaint.

13.              After hearing the counsel for parties, learned District Forum, sonepat allowed the complaint of complainant and directed the opposite parties as mentioned earlier of this judgment.

14.              Feeling aggrieved therefrom, opposite party No.1-appellant has preferred this appeal.

15.              Arguments have been advanced by Shri Hitender Kansal, counsel for the appellant and Shri Sikander Bakshi, counsel for respondent No.1 as well as Shri Tushar Arora, counsel for respondent No.2, none has put in appearance on behalf of respondent No.3. With their kind assistance entire records as well as the original record of learned District Forum, including whatever the evidence has been led on behalf of parties had also been properly perused and examined.

16.              As per the contentions raised by learned counsel for the parties, the basic and foremost question which requires adjudication before this Commission is as to whether the complainant is entitled to get the premium amount deposited with the opposite parties or not?

17.              While unfolding the arguments, it has been vehemently argued by Shri Hitender Kansal, counsel for the appellant that the complainant-respondent No.1 herein, has mentioned about three insurance policies in his complaint, but the appellant has issued only two policies i.e. insurance policy No.5013432165 & 5013423081 and is not dealing with giving loans to any individual or entity. The appellant is not dealing with respondent No.2 and is not a banking institution. Further, in case the respondent No.1-complainant was not satisfied with the terms & conditions of the policy, then he can withdraw/cancel the policy under free look period i.e. within 15 days from the date of receipt of policy documents. The policy bond was dispatched to the complainant on 02.09.2015 through Airway bill and the same was duly received by complainant on 07.09.2015. Respondent No.1-complainant has failed to deposit the premium amount and accordingly the policy acquired lapsed status due to non-payment premium as per the terms and conditions of the policy and all the allegations were against some individual agent/brokers i.e. respondents No.2 & 3.

18.              On the other hand it has been strenuously argued by Shri Sikander Bakshi, learned counsel for respondent No.1-complainant that in the month of July, 2015, an authorized officer of appellant-opposite party No.1 namely Shri Rajesh Aggarwal contacted the complainant-respondent No.1 on the ground that his company can provide the loan at the interest of 6.5% p.a. without mortgaging any property or guarantee against the life insurance policy. Thereafter, on 18.07.2015, one Shri Vivek Bhatnagar contacted the complainant-respondent No.1 and told that in case the complainant-respondent No.1 took a life insurance policy of Rs.50 Lakhs with a premium of Rs.5 lakhs as per month for 12 years with a maturity period of 20 years from appellant, then the appellant shall disburse a loan of Rs.50 lakhs against that policy on the interest @ 6.5% p.a. for which the respondent No.1 need not to pay any installment than the premium amount  for 12 years. It was further submitted that in case the complainant-respondent No.1 pays the premium for 12 years then from 13^th year onwards he shall get an amount of Rs.4,50,000/- annually till 20^th year and on maturity the complainant-respondent No.1 shall receive about Rs.30 lakhs after deducting the loan amount and its interest.  Thereafter, appellant has issued policy No.501-3223081 with the Life Elite Advantage Plan for a premium of Rs.110999/- and policy No.501-343165 for a premium of Rs.3,99,999.16 paise respectively. The amount of premium was collected by the agent namely Mandeep Singh, Arun and Varun of appellant from the respondent No.1-complainant. On 13.10.2015 the respondent No.1 contacted Vivek Bhatnagar and told him that a loan of Rs.72 Lakhs has been sanctioned in your favour by respondent No.2. He further asked the complainant-respondent No.1 to take another policy and paid a premium of Rs.2,20,000/- to respondent No.2 in order to cover the loan of Rs.72 Lakhs from respondent No.2 to which, the complainant refused. However, as per directions of High Officials of opposite party No.2, the respondent No.1 has to issue post dated cheque of Rs.2,20,000/- and the amount shall be deducted after the loan was deposited in the account of respondent No.1. Respondent No.1 gave post dated cheque of Rs.2,20,000/- to Vikas Pandey and Vivek Bhatnagar officials of the appellants, who assured the respondent No.1 that the cheque issued by the respondent No.1 shall not be presented till the loan amount was deposited in the respondent No.1 account. However, few days the complainant came to know that the cheque of Rs.2,20,000/- was  presented by respondent No.2 in the account of complainant and the same was dishonoured. Under the misrepresentation of the agents/officials of the appellant, the respondent No.1 again made a payment of Rs. One lakh, which was collected by Arun Tiwari agent/official of opposite party No.2 and thereafter one more policy No.000390686 dated 24.11.2015 was issued by respondent No.2. On 09.01.2016, the respondent No.1 received an e-mail wherein a scanned copy of cheque No.139649 dated 08.01.2016 of Rs. 72 Lakhs drawn on HSBC Bank in favour of the respondent No.1 was attached and the respondent No.1 was asked to pay an amount of Rs.16,000/- towards registration fee and Rs.1,20,000/- for balance premium. The act and conduct of the agents, officials of the appellant and the respondents No.2 & 3 as well amounts to deficiency in service and unfair trade practice. The respondent No.1 has taken three policies from the opposite parties and paid Rs.6,10,988/- as premium under misrepresentation of the agent and officials of the opposite parties. The respondent No.1 has agreed to take the policies of the appellant and respondents No.2 & 3 after paying the premiums to obtain the loan from the opposite parties which has not been fulfilled and that amounts to a grave deficiency in service on the part of opposite parties.

19.              Shri Tushar Arora, counsel for respondent No.2 has also argued at length that no loan was sanctioned in the name of respondent No.1. Respondent No.2 did not provide any policy to anyone rather they were providing housing loan only. Respondent No.2 did not sent any e-mail to respondent No.1 and never issued any alleged sanctioned letter of Rs.72 Lakhs in the name of complainant-respondent No.1. Respondent No.2 never issued the alleged policy No.000390686 dated 24.11.2015 in the name of respondent No.1-complainant. Further submitted that respondent No.2 never issued any alleged cheque No.139649 dated 08.01.2015 of Rs.72 Lakhs to the respondent No.1-complainant.

20.              However, Opposite party No.3 has not contested the appeal against the impugned order. It has been argued on behalf of the appellant as well as contesting opposite parties herein that admittedly, learned District Commission has not bifurcated each and every amount of three policies whether it was incumbent for the learned District Commission to bifurcate the amount alongwith interest of each and every three insurance policies. It is also not in dispute that there are three insurance policies and Ex.C-4 and Ex.C-5 were issued by the present appellant and the 3^rd insurance policy was issued by opposite party No.3, who is not herein to contest the present appeal.

21.              Presuming that the present appellant had issued two insurance policies (Ex.C-4 and Ex.C-5) and total amount paid as premium of both the insurance policies was Rs.5,03,000.64P (Rs. Five lakhs three thousand and sixty four paisa) and on this amount the interest allowed by learned District Commission would also be applicable from the date of respective deposits.

22.              Hence, in this scenario, the present appeal stands disposed off with the directions that the present appellant would make the payment of Rs.5,03,000.64P (Rs. Five lakhs three thousand and sixty four paisa)  for paid premium of two insurance policies issued by it alongwith interest as allowed by learned District Commission. However, the complainant, who is respondent No.1 herein is at liberty to execute the order of learned District Commission for recovering the remaining amount of third insurance policy, which is Ex.C-6 from opposite party No.3-respondent No.3, who is not herein to contest the present appeal before this Commission. With these directions, present appeal stands disposed off. However, appellant is directed to make the payment of Rs.5,03,000.64P (Rs. Five lakhs three thousand and sixty four paisa)  as paid premium of two insurance policies as referred above within the period of 45 days from the date of passing of this order. However, since an amount of Rs.25,000/- (Rs. Twenty five thousand only) has also been allowed as compensation by learned District Commission for causing mental and physical agony, it would be shared by the opposite party No.1 & 3. It is further clarified that if, the compliance is not made within the stipulated period of 45 days then the rate of interest would be @ 09% p.a. from the date of deposit till realization.

23.              Resultantly, the contentions raised by learned counsel for the appellant stands rejected as rendered no assistance and found to be untenable and the order passed by learned District Commission does not suffer any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes. In view of the above discussion, the present appeal stands dismissed on both counts i.e. on delay as well as on merits.

24.              Statutory amount of Rs.25,000/- deposited by the appellant at the time of filing of present appeal be refunded to the complainant-respondent No.1 as per rules, against proper receipt and identification.

 

 

December 06^th, 2021                                                             Ram Singh Chaudhary

                                                                                                Judicial Member                                                                                                       Addl. Bench  

R.K.