Punjab

StateCommission

FA/13/338

Sukhdev Singh - Complainant(s)

Versus

Kotak Mahindra and another - Opp.Party(s)

Deepak Gupta

27 Sep 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                               

                    First Appeal No.338 of 2013

 

                                                          Date of Institution: 25.03.2013      

                                                          Date of Decision : 27.09.2016

 

Sukhdev Singh son of Basant Singh son of Hari Singh resident of House NO.148, Kamla Nehru Colony, Bathinda.

 

                                                                          Appellant/Complainant  

                     Versus

 

.

1.      Kotak Mahindra Old Mutual Life Insurance Ltd., Regd., Office:          9th Floor, Godrej Coliseum, Behind Everard Nagar, Sion       (East), Mumbai 400022 (India), through its           M.D/Chairman/Director.

 

2.      Kotak Mahindra Old Mutual Life Insurance Ltd., Bathinda,        through its Manager/Incharge/Authorized Signatory/Branch     Head.

 

                                                                Respondents/Opposite parties

                                                         

First Appeal against order dated 21.01.2013 passed by the District Consumer Disputes Redressal Forum,  Bathinda.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

            Shri. H.S. Guram, Member

Present:-

 

          For the appellant                 : Sh. Deepak Gupta, Advocate      

         For the respondents               : Sh. Sandeep Suri, Advocate

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

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against order dated 21.01.2013 of District Consumer Disputes Redressal Forum Bathinda dismissing the complaint of the complainant.  The respondent of this appeal is the opposite party before District Forum in the original complaint and appellant of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience. 

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he had purchased insurance policy bearing no.01663626 from OPs under 'Kotak Smart Advantage Plan' (UIN-107LO43VOI) at Bathinda. The OPs allured the complainant that said policy is not only an 'Insurance' but it is also an 'Investment Plan' and good returns to the tune of 25% to 30% p.a are expected in it. The agent of the OPs obtained the signatures of the complainant on the various blank papers, printed forms and also got some information about the name, date of birth, address etc from him. It was averred that, as per the terms of the said policy, the total sum assured was Rs.2,50,000/- with the date of commencement i.e. 27.07.2009 and term of the policy was 15 years with premium Rs.36,000/- per annum. Accordingly, the complainant has paid the first premium and next premium was payable on 27.07.2010. In the month of March 2010, the complainant received a telephonic call from the officials of OPs namely Ajay Malhotra and Mr. Varun Sood (Mobile nos. 78380-87870 and 99999-38574) to the effect that if he paid the premium of his policy in advance, then the OPs would pay Rs.50,000/- as bonus and rebate of Rs.1000/- on the premium and being allured by them, he paid the premium in advance through cheque bearing no.752953 for Rs.35,000/- and they again obtained his signatures on the various blank papers and printed forms without disclosing the contents thereof. It was further averred that again in the month of May, 2010, the complainant received a telephonic call from the OPs, whereby he was allured that in case, he deposited the next premium before 31.05.2010, then the  OPs would give him rebate to the tune of Rs.3000/- in the premium and further he would be given benefit of pension, for that he has to deposit the amount of Rs.1500/- per month. Accordingly, Mr. Shiv Raj Tiwari, a representative of OPs visited at Bathinda and apprised him about the proposal and had received a cheque for Rs.33,000/- plus Rs.1500/- in cash against the receipt no.1882089 dated 30.05.2010 in the presence of his close relative. Above representative again obtained his signatures on the various blank papers and printed forms without disclosing the contents thereof to complainant. Thereafter, the complainant has received two more policies bearing nos. 01955285, 02015672 (with date of commencement 16.06.2010 for 20 years, premium, Rs.33,000/- per annum as against the payment made by him on 30.05.2010). The complainant was not interested to purchase any other policy and he had paid the aforesaid amount of the premiums only against the previous policy bearing no.01663626 and even on the receipt itself, so he applied for cancellation of the aforesaid policies, but OPs had cancelled only one policy bearing no.01955285 and had not cancelled the another policy bearing no.02015672. The complainant also served a legal notice dated 10.05.2011 upon OPs to refund the premium of Rs.34500/- or to adjust the same against old policy, but all in vain. The complainant made various requests to OPs for cancellation of above policies, but of no use.  Therefore, he filed a complaint no.302 of 28.06.2011 and same has been accepted, vide order dated 26.12.2011, which order has been complied with by the Ops.

3.      It was further averred that the complainant has paid two subsequent premiums after the purchase of first policy under the impression that same are in lieu of 2nd and 3rd premium in advance against the first policy and shall be given the benefits after 3 years, as assured by the OPs as the policy purchased by him is Unit Linked Insurance Policy. The OPs have issued a cheque of Rs.3600/- only against the first premium of Rs.36,000/- and on the receipt of aforesaid cheque of Rs.3600/-, the complainant contacted them and enquired about the matter, then he was conveyed by them that since he has filed the earlier complaint and the amount has already been returned to him, so first policy stood lapsed due to non-payment of the subsequent premiums and the amount lying with them is Rs.3600/- which has now been returned to him.  The complainant has, thus, prayed that OPs be directed to refund the amount of Rs.36,000/- along with interest @ 18% p.a from the date of deposit till realization, besides Rs.50,000/- as compensation for mental harassment and Rs.10,000/- as costs of litigation.

4.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was pleaded by the OPs that  complainant has filled a proposal form and the policy was issued to him as per the following details :-

Policy No.	01663626
Date of Commencement	27.07.2009
Sum Assured	Rs.2,50,000/-
Plan	Kotak Smart Advantage Plan
Term	15 years
Premium	Rs.36,000/-
Mode of prem.payment	Annual

 

The OPs issued the said policy along with welcome letter dated 29.07.2009, which contained option of 'free look period'. As per the said provision, if the policyholder is not agreeable to any of the provisions stated in the policy, then he can have the option to return the policy to the OPs, stating the reasons thereof within 15 days from the date of the receipt of the policy, but the complainant has not exercised such option. The OPs further pleaded that complainant has given a declaration at para no.8 of the proposal form that he has signed the same having fully understanding of the contents thereof. The District Forum had passed order dated 26.12.2011 in respect of policy bearing no.02015672 and the same has been compiled by the OPs and they have paid an amount of Rs.42,109.69, vide receipt no.310869 dated 02.03.2012. The OPs further pleaded that amount of Rs.3600/- was refunded as the policy was in lapsed condition and was terminated, vide letter dated 06.08.2012. Rest of the averments have been denied by OPs and OPs prayed for dismissal of the complaint.

5.      The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-7, affidavit of complainant Sh. Sukhdev Singh Ex.C-8. As against it; OPs tendered in evidence affidavit of Priti Sawant Chief Manager Legal at Kotak Mahindra Old Mutual Life Insurance Limited Ex.R-1 along with copies of the documents Ex.R-2 to Ex.R-4.

On conclusion of evidence and arguments, the District Forum Bathinda dismissed the complaint of the complainant by virtue of order dated 21.01.2013. Dissatisfied with the order of the District Forum Bathinda dated 21.01.2013, the complainant now present appellant, carried this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the evidence on the record of the case.

6.      The District Forum dismissed the complaint of the complainant on the ground that it is hit by principle of res judicata. This is only point agitated before us in this appeal and falling for adjudication, as to whether the present case is hit by principle of constructive res judicata or not? The complainant filed complaint no.302 of 28.06.2011, which was decided by District Forum Bathinda on 26.12.2011. The District Forum in this order directed the OPs to refund the amount of Rs.34,500/- to complainant of policy no.01955285. The complainant filed subsequent complaint before District Forum, which has been dismissed on the point of 'constructive res judicata' by District Forum in this case. The complainant purchased three insurance policies and filed complaint no.302 of 28.06.2011, wherein all three policies were mentioned being cause of action. The refund was claimed only with regard to two polices and not with regard to policy in dispute. The District Forum already decided this matter on 26.12.2011. Now, the complainant has prayed for adjustment of premium paid against those two policies, as premium against policy in dispute. The premium of two policies has already been refunded by District Forum as is evident from previous order Ex.C-7. Ex.C-6 is complaint filed by the complainant, vide which Ex.C-7 order was pronounced. We find that complainant filed two complaints with regard to the same cause of action, which has already been adjudicated by District Forum. The complaint is barred by the principle of res judicata on the basis of Ex.C-7. We do not find any force in the arguments of counsel for the appellant that it is a different cause of action from the cause of action of previous complaint, which has already been decided by District Forum. The submission of counsel for the appellant on this [point is not accepted. We find that District Forum rightly dismissed this complaint as barred by principle of res judicata. We do not find any illegality or material infirmity in the order of the District Forum calling for any interference therein.

7.      As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed.

8.      Arguments in this appeal were heard on 26.09.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

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

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                                                                         

                                                                             (H.S.GURAM)

                                                                                 MEMBER

 

                                               

September 26,  2016                                                          

(ravi)