:    J U D G M E N T    :

            The brief fact of the case is that the complainant, purchased one single premium policy (Samriddhi Plus) bearing No. 428780565 dtd.  31.03.2011 through OP 5, Sri Suresh Das, the licensed agent of LICI, Krishnagar Branch II, and to that effect the complainant handed over Rs. 30,000/- in cash to the OP No. 5, agent along with duly filled up proposal form and other necessary KYC requirements.  Thereafter OP 5 supplied deposit receipt being BOC No. 27990 and SL No. 1333994 to the complainant dtd.  31.03.2011.  After that the complainant was very much surprised to receive a letter dtd.  27.04.11 wherein the OP LICI informed the complainant that her alleged cheque was dishonoured.  The complainant never issued any cheque in favour of OP No. 2, rather the complainant paid Rs. 30,000/- to OP 5, agent for the opening of the said policy.  So the question of dishonour of cheque did not arise.   The complainant made several attempts to contact with OP 5, but he fled away from Krishnagar.  The complainant informed the said matter to the OP No. 2 by way of several letters but OP No. 2 did not pay any heed in the said matter.  OP No. 2 did not make any reply rather they called the complainant at their office and harassed the complainant.  Thereafter, the complainant approached before the office of CA & FBP, Krishnagar, Nadia for solving the dispute but OP 2 did not make any proper response.  So the matter was dropped and the said office advised the complainant to take shelter of the Forum.  OPs did not pay the assured sum to the complainant due to adopting unfair trade practice.  Hence, the case for claiming of Rs. 30,000/- towards payment of single premium and Rs. 70,000/-  towards compensation.  

            As per order No. 10, dtd.  30.01.14 the name of OP nos. 1 & 4 have been expunged.

            As per order No. 14, dtd.  07.05.14, the case proceeds exparte against OP No. 3. 

            As per order No. 21, dtd.  24.11.14 and order No. 23, dtd. 16.12.14 the case also proceeds ex parte against OP No. 5 and pro-OP No. 6 respectively.  However, the OP 2, LICI Krishnagar contested this case by filing written version stating, inter alia, that OP Nos. 1 to 4 are Corporation under the name and style of LICI and LICI is a statutory body.  But the OP No. 5 has got no status of LICI and he is not an employee of LICI.  OP 2 further stated that OP No. 5 is an agent of LICI deposited an A/C payee cheque being No. 686561 dtd.  31.03.2011amounting to Rs. 30,000/- along with other documents in the office of OP No. 2 on 31.03.2011 for purchasing a policy of Insurance in the name of complainant.  OP 2 issued receipt being BOC No. 27990 and SL No. 1333994 dtd.  31.03.11 in favour of complainant with a condition that the policy will remain force subject to realization of cash.  The said cheque was dishonoured and OP No 2 cancelled the said policy.  OP No. 2 also stated that OP LICI never received and amount from the complainant, so there is no question of payment of any amount to the complainant.   The transaction between OP No. 5 (agent) and complainant has being made in personal capacity.  So the OP nos. 1 to 4 are not responsible to pay the policy amount and other benefits to the complainant.  The OP No. 2 tried to contact with OP 5 but they have failed.  Thereafter, OP 2 sent a registered letter to OP 5, but it has been returned as undelivered.  There is no deficiency in service on the part of OPs 1 to 4, so the present complaint is liable to be rejected with cost.

Now the Forum is to consider the following points:-

1. Whether the complainant is to be treated as consumer or not as per 

Consumer Protection Act 1986.

2. Whether OPs are liable for payment to the complainant or not under Consumer Protection Act, 1986.
3. Whether the complainant is entitled to get any relief as prayed for.

            DECISION WITH REASONS

Point No. 1.

            It appears from the acknowledgement / receipt that the agent OP No. 5, herein, Suresh Das of Hemanta Sarkar Lane received Rs. 30,000/- from the complainant in the instant case for the purpose of opening LICI Unit Link policy.  It is the rule of law that the agent can act for and on behalf of the Principal.  When the agent received the consideration amount from the complainant, it would be the duty to provide service to the complainant properly as the agent is a reflected image of the Principal.  Moreover that OP 2 LICI issued a receipt being BOC No. 27990, SL No. 1333994 dtd.  31.03.2011 in favour of complainant and also issued insurance policy being No. 428780565 dtd.  31.03.11 in favour of complainant.   So the complainant is to treated as consumer as per Consumer Protection Act, 1986.  The point No. 1 is thus decided. 

 Point Nos. 2 & 3:-

            It is admitted that the complainant paid Rs. 30,000/- in cash to the agent OP No. 5 for the purpose of opening LICI unit link policy.  It is also admitted that the OP No. 5, Suresh Das issued a cheque of Rs. 30,000/- bearing No. 686561 dtd.  31.03.11 in favour of LICI in stead of depositing cash amount of Rs. 30,000/-.  It is fact that the OP No. 2 issued policy bearing No. 428780565 wherein sum assured has been fixed for Rs. 40,000/- against the premium of Rs. 30,000/- subject to realization of cheque on condition which is clearly revealed from the status report of the policy and proposal deposit receipt being SL No. 1333994.  But however, the said cheque was dishonoured.  So at this stage it is clear that for and on behalf of OP Insurance Company, agent OP No. 5 received the consideration amount from the complainant.  But he (agent) has failed to deposit the same for opening the LICI policy.  It is also clear from the said fact that agent OP 5 made cheating and practising fraud against the complainant. 

Now, at this point we try to explain the view of vicarious liability.  This is a form of liability incurred only when one who is liable has not done or acted by himself and is liable for the acts of another by virtue of sharing a distinct relations and hence, having a distinct position in the eyes of law.  It is based upon the general principal of law qui facit per aliumfacit per se which means that the act of an agent is the act of the principal.  The liability in this case would be joint and several.  So we come to the conclusion without any hesitation that the mere plea of personal capacity between the OP No. 5 and the complainant taken by OPs 1 to 4 Insurance Company has no basis at all in the light of vicarious liability and moreover, the OPs 1 to 4 Insurance Company cannot escape from their liability on the ground of termination of licence being No. 523093 of agent, Suresh Das OP No. 5 in the instant case as per letter reference No. LICI/KGR-II/Redressal/AAO dtd.  11.09.12.  No G.D. or  F.I.R. has been made by the OP Insurance Company against OP No. 5 for his cheating or fraud against the complainant.  Ld Counsel for complainant submits some case laws at the time of final hearing which are analyzed below:-

1. In General Insurance Company Ltd. & another vs. Abhijit Saini & Another II (2008) CPJ 483, wherein SCDRC, Delhi held that when the agent played fraud and not deposited the premium amount, insurer is directly liable for all acts of commission or omission of agents / sub-agents as well as the consumer’s claim cannot be denied due to wrongful / distrustful act of agent / sub-agents.  In such cases insurer is liable under the policy. 
2. In LICI vs. Phtangi Devi and Another, I (2005) CPJ 692, wherein SCDRC, Dehradun held that payment has been made to the Insurance Company well in time because any payment to the agent is the payment to the principal.
3. In Gujarat State Gram Vikash Parishad vs. Dineshbhai Ishwarbhai, Boghabjai Talpada III (2005) CPJ 228 wherein SCDRC Ahmedabad held that OP No. 2 & 3 acted as agents of OP No 1 and OP No. 1 principal would be vicarious liable for acts and omission of agent / employee.
4. In Kamala Devi Sagu vs. Metlife India Insurance Company Ltd. III (2014) CPJ 68 (NC), wherein Hon'ble National Commission held that non deposition of premium by agent causes vicarious liability and it constitutes deficiency in service.   OP No. 1, Insurance Company should have passed information through public notice or emails to all of his customers to avoid such cheating by their agents and hence, OP No. 1 Insurance Company is vicariously liable for acts of their agents.

            From the above discussion we hold that OP No. 2 LICI is vicariously liable for the act and omission of OP No. 5 agent.  The complainant is entitled to get single premium worth Rs. 30,000/- along with interest @ 10% pa from 31.03.2011 to 09.09.2013 (date of filing of the case) from OP No. 2.

Point Nos. 2 & 3 are thus, decided.  So the case succeeds. 

Hence,

Ordered,

            That the case CC/2013/91 be and the same is allowed on contest against OP No. 2, LICI with cost of Rs. 1,000/- and dismissed ex parte against OP No. 3 & Pro-OP No. 6 without cost though the OP No. 5 has fled away, the whole responsibility lies upon OP No. 2 and as such the instant case is dismissed ex parte against OP No. 5 without cost.

That the OP 2 LICI is hereby directed to pay single premium worth Rs. 30,000/- along with interest @ 10% pa from 31.03.11 to 09.09.13 plus cost of Rs. 1,000/- to the complainant within 30 days from the date of order, i.d., interest @ 10% pa shall be charged upon the awarded amount till full realization.  After expiry of said 30 days the OP 2, Insurance Company  is also bound to pay Rs. 50/- per day in Consumer Welfare Fund / Legal Aid Fund till full realization.  

Let the copy of this order be supplied to the parties free of cost.