IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:  01.09.2014

First Appeal No.721/2010

(Arising out of the order dated 18.08.2010 passed by the District Consumer Dispute Redressal Forum, Convenient Shopping Centre; Saini Enclave, Delhi-92 in complaint case no. 990/09)

IN THE MATTER OF:

Sh. Narender Pal Singh

S/o Sh. M.G. Gupta

R/o D-113, Sangam Apartments

Sectpr-9, Rohini, Delhi-110085.

                                                                               …..Appellant

Versus

1.  Kotak Mahindra old Mutual

Life Insurance Ltd.

Through Its Assistant

Branch Manager Sh. Ankur Goel

1. Sh. Sandeep Kumar

Asstt. Manager Kotak Mahindra

Old Mutual Life Insurance Ltd.

Both having Office At 8^th Floor,

Roots Towers Laxmi Nagar District Centre,

Vikas Marg, Delhi-110092.

1. Ms. Jaya Sharma, Representative

Of Kotak Mahindra old Mutual

Life Insurance Ltd. B-9-10,

Pandav Nagar Complex,

Pandav Nagar, Delhi-110092.

                                                                  …Respondents

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

Judgment

1.         This is an appeal under section 15 of the Consumer Protection Act, 1986 (Hereinafter called the Act) against the order dated 18.08.2010 passed by the DCDRF (East) Saini Enclave, Delhi-92  in complaint case No. 990/09.
2.         Relevant facts of this appeal are that Complainant/Appellant on persuasion of OP-3/Respondent-3on the subscribed to OP-1/Respondent-1 ‘Kotak Smart Advantage Policy’. Necessary formalities of filling form were completed and Complainant issued a cheque dated 23.05.2008 for a sum of Rs. 50,000/-  in favour OP-1/Respondent-1 Kotak Mahindra Old Mutual Life Insurance Ltd. It has been alleged that receipts of the policy complainant/appellant noticed that his policy has been changed into “Retirement Income Plan without cover” and it was further noticed from the application for attached with a policy that was fabricated documents in as much as it was not a same form which was filled by the complainant and duly signed on that time of subscription of the policy. It was further alleged on the complainant by not issuing the demanded Insurance Policy. Complainant/OP took up the matter with the OPs. But no satisfactory answer was given and they rather abused the complainant. Policy complaint was also lodged by the Complainant/appellant. When nothing was done, the complainant was compelled to file consumer complaint.
3. OP-1 and OP-2 submitted their joint Written Statement. They denied the complaint allegation alleged that the Complainant/Appellant has not come with clean hands and has concealed material facts. As a matter of fact his proposal was rejected on medical grounds and thereafter at his own request, original complaint was switch over to “Kotak Retirement Income Plan”. The same policy was accepted by the complainant within 15 days of the receipt of the policy which is called free look period. Even thereafter, the complainant was requested to submit the original policy documents with a cancellation requested and get the money refunded. It was further maintained that initially the Complainant/Appellant opted for filled and proposal form for “Kotak Smart Advantage Policy” and made payment of Rs. 50,000/- through cheque. Receipt for the same was issued. Thereafter, the complainant was required to undergo medical examination. Medical Report wad adverse and the proposal was rejected and a sum of Rs.             50,000/- deposited was duly refunded. Meanwhile, they received letter from the complainant where he informed that he   wanted to change the plan from Kotak Smart Advantage Policy to Kotak Retirement Income Plan. Therefore the new proposal form was submitted along with letter dated 29.06.2008. The policy issued and the complainant was again 15 days free look period to reconsider his decision regarding the purchase of the policy. The amount of Rs. 50,000/- which was to be refunded was utilized for fresh proposal and issue of the new policy. If the complainant was not satisfied are felt that the signatures were forget on the proposal Forum, he could have cancel the policy and taken the money back. However, instead of utilization option given to him he wrote threatening mails to OPs. Complainant vides e.mail dated 18.07.2008 alleged forgery. The OPs on their part requested the complainant to cancel his policy and get the money refunded if he was no satisfied. Again the complainant was asked to surrender the original policy with cancellation letter. But he did not do so. The complainant continued threatening OP-1. Again OP-1 informed the complainant vide e.mail dated 21.07.2009 that the matter was posted for investigation and he should submit original policy documents for cancellation of the policy. Again complainant did not submit the original policy documents and approached IRDA and Insurance Regulatory and Developments Authority. OP was advised by the IRDA to resolve the matter with the complainant. Again complainant was requested to send original policy documents along with cancellation letter but the complainant did not take necessary action in the matter. In the meantime, the services of the OP-3 were   terminated and complainant was again provided option of cancelling the policy and get his money refunded. Thus, the complainant has no cause of action for filing the complaint and the complaint was liable to be dismissed.  OP-3/Respondent-3 did not contest the case and the complaint proceeded ex-parte against OP-3. The Complainant filed rejoinder refuting the allegations of the WS. Parties files evidence in support of their allegations. Upon consideration of facts, circumstances and evidence on record. The LD. DCDRF allowed the complaint through its impugned order dated 18.08.2010 allowed the complaint and directed the OP-1/Respondent-1to refund deposited amount of Rs. 50,000/- along with interest @ 6% per annum. Subject to complainant submitting the original policy documents with cancellation request within a period of 1 month from the received of the order. In view of the peculiar facts and circumstances of the case, no amount towards compensation and cost were allowed.
4. However, the complainant was not satisfied of the impugned order dated 18.08.2010 and filed present appeal on the main grounds that the Ld. District Forum passed an erroneous and illegal order without appreciating the material available on record. On the one hand the Ld. District Forum observed that there was deficiency of service on the part of the OPs/Respondents and that fraud was played by the respondents upon the appellant and only directed the respondent to refund deposited amount along with interest @ 6% per annum. But fail to allow any compensation and the costs.
5.        OP-1 & 2 filed reply. OP-3 again did not contest. In their reply OP-1 & 2/Respondents- 1 & 2 maintained that impugned order dated 18.08.2010 passed by Ld. DCDRF was complied with in as much as an amount of Rs. 50,000/- along with interest @ 6% was paid to the complainant/appellant Sh. Narender Pal Gupta through cheque No. 185837 dated 27.06.2011 drawn on Kotak Mahindra Bank. This amount has been duly accepted by the complainant/Appellant and the same has been cleared on 29.06.2011, the amount was accepted without any protest. In view of the aforesaid fact, present appeal is become anfractuous and is liable to be dismissed in this ground alone. Besides, the appellant also suppressed this fact in his appeal, since he did not come before this Commission with clean hands. The appeal deserves to be rejected on this ground also.
6.           We have heard Sh. Sanjeev Kumar, Ld. counsel for the respondent- 1 & 2, during the course of arguments the Ld. Counsel for the appellant conceded that in compliance of the impugned order 18.08.2010, the OP-1/Respondent-1 refunded an amount of Rs. 50,000/- through cheque along with 6% interest. He further admitted that the cheque has been accepted encashed. However, the impugned order was erroneous in adequate and unjust. Ld. Disitrict Forum came to the conclusion that there was deficiency of service on the part of the OP. The complainant/appellant had suffered lot of harassment mental pain and agony. He had to undertake litigation due to the wrong conduct of the OPs/Respondents. Therefore, the Ld. District Forum should have allowed adequate compensation and cost besides refunding the amount deposited. Therefore, this appeal was preferred. On the other hand the Ld. Since the impugned order dated 18.08.2010 passed by DCDRF was fully complied with and the complainant/appellant accepted the refund of Rs. 50,000/- without any protest encashed. The same appeal become anfractuous and deserved to be dismissed. we have broadly agree with the contention of the Ld. Counsel for the respondent that the entire amount of Rs. 50,000/- along with 6% interest as ordered by Ld. DCDRF through its impugned order stands  satisfied. The appeal has become anfractuous and is liable to be dismissed. Even otherwise we find no merit in the appeal. Accordingly, the               appeal is dismissed.
7.           Let a copy of the order be provided to the parties free of costs as per rules. File be consigned to record room.