Samaresh Kumar Mitra, Hon’ble Member:

The brief fact of the case is that the complainant took an insurance policy from the office of the OP No. 1 named as Wealth Plus Policy on 31.03.2010 being policy no. 496283782 of sum assured Rs. 250000/- for 3 years and yearly premium was Rs. 50,000/- through OP No. 3. Complainant deposited a cheque in the name of the office of OP No.1 issued the cheque in favour of the complainant by his father Siharan Banerjee being cheque no. 63430 amounting to Rs. 50000/- dated 18.03.2010 drawn from UBI Pandua Branch. Accordingly the office of the OP No. 2 issued a policy certificate being no. 496283782 dated  15.04.2010. Complainant deposited second premium of Rs. 50000/- through a cheque being no. 96751 dated 18.03.2010 in the name of the office of OP no. 1 issued by his father drawn by OP No. 4 which was also deposited by OP No. 3 on 26.03.2010. The complainant again deposited third premium of Rs. 50000 through a cheque being no. 330166 in the name of the office of OP No. 1 through OP No. 3 issued by his father on 21.03.2010 and completed the premium course of the said policy and the said pass book was not updated by the father of the complainant and whether the said cheque was encashed or not, was not revealed. The complainant went to the office of the OP No. 1 to know the present position of the said policy and the fund value of the said policy. But the office of the OP No. 1 informed this complainant that the said policy had been foreclosed being nonpayment of consecutive two premiums. In the said situation this complainant was very much astonished and puzzled that though all the premiums were deposited through the OP No. 3 and why the said policy had been foreclosed. On being enquired in the office of the OP No. 1 on 22.05.2014 this complainant got first knowledge that the second cheque being no. 96751 of Rs. 50000/- drawn in favour of Life Insurance Corporation of India issued by the father of the complainant was not deposited in the complainant’s account and also got information that in a clandestine manner, in collusion with the staff of OP No. 1, the said OP No. 3, Samar Kr. Dutta managed to deposit the said cheque in the name of Smt. Niva Karmakar, W/o. Manoj Karmakar of vill. Vivekananda Nagar P.O. & P.S. Pandua., Dist. Hooghly, who is a policy holder of OP No. 3. The third premium deposited by a cheque being no. 330166 on 21.03.2012 before the office of the OP No. 1 through the agent OP No. 3. But the said cheque was shown as dishonoured on 24.03.2012 due to insufficiency of fund as in the said account of the father of the complainant. But no knowledge of the insufficiency of fund by the father of the complainant and on good faith it was paid knowing fully well that there was sufficient fund. But the information of insufficiency of fund had not been informed by the office of OP No. 1 or United Bank of India, Pandua Branch i.e. OP No. 4 to the father of the complainant. On the contrary, the office of the OP No. 1 had also not demanded asking to pay the said premium amount of Rs. 50000/- within one month from the information received of the insufficient of fund from the banker authority. The factual aspect was firstly gathered knowledge of receipt of dishonoured on 22.05.2014 from the record of OP No. 1 and then your complainant wrote a letter on the said date on 28.05.2014 to the office of OP No. 1 to continue the said policy by taking the said dishonoured amount of Rs. 50000/-. Otherwise this complainant will suffer irreparable loss and substantial injuries. But the office did not pay any heed. Then this complainant sent a lawyer’s letter to the office of the OP No. 1 on 22.10.2014 requesting the said O.Ps for revival of the said policy by receiving the third premium of Rs. 50000/- which was dishonored as because there was no intentional latches on the part of the complainant. But still the OP No. 1 did not pay any heed to that matter nor revived the said policy by taking such amount of Rs. 50000/-. The cause of action arose on 22.05.2014 and the complainant got knowledge of foreclosed of his policy. The OP No. 1 in collusion with OP No. 3 had not been paid in the complainant’s account or insufficiency of fund which was not demanded by letter to this complainant asking to pay is sheer deficiency of service on the part of OP No. 1 & 2 and vicarious liability of the agent that is OP No. 3. So, the complainant filed the instant suit prayed to pass an order for reviving the said wealth plus policy by receiving of Rs. 50,000/- by cash or by cheque from the complainant.

OP No. 1 & 2 filed written version denying the allegations leveled against them. They averred that the complainant filed the case beyond 2 years from the date of issuance of cheque dated 21.03.2012 which was subsequently returned by the Bank as dishonoured. So, the complaint petition is barred by limitation. The dishonour advice along with the cheque was sent to the complainant as per usual procedure by post. The complainant cleverly mentioned that he was not aware of the dishonour of the cheque as he had not updated his pass book. And it is highly incredible story that a person does not update his bank pass book for about 3 years or that anyone can be in the habit of issuing cheque without knowing the existence of sufficient balance in his bank account to honour the cheque.  The complainant now cannot take shelter of his own fault by shifting the blame on the answering OPs alleging non-receipt or dishonour advice. That took after two and half years. According to the version of the OP the fact is that the complainant took a wealth plus policy being no. 496283782 on 31.03.2010 under table no. 801 for a sum assured of Rs. 250,000/- with a premium paying term for 3 years. The said policy was procured by the agent Samar Kumar Dutta under his agency code 00633475. The cheque being no. 6343 dated 18.03.2010 was issued by the father of the complainant namely, Siharan Banerjee for the first time premium of the said policy. Father of the complainant again issued another cheque on 26.03.2011 bearing no. 96751 for Rs. 50000/- to pay the second installment of premium of the aforesaid policy due on 31.03.2011. It is found from the records of answering OPs that the said cheque was used to fund the policy of one Nibha Karmakar for her policy being no. 496607655. It is highly impossible to identify signatures in the cash counter at times. Answering OP further submitted that the complainant was himself lethargic to collect the premium receipt from the agent after issuance of cheque for his premium by his father. Complainant’s statement of issue of the cheque on 21.3.12 for Rs. 50000/- for payment of the premium due 31.03.2011 it appears that the said cheque was returned dishonoured by the bank for insufficiency of fund. The dishonor advice was duly served on the complainant as per usual procedure after taking dishonor action in their computer system on 24.03.2012 in spite of that the complainant did not take any further steps to deposit the said due. As a result, the said policy was foreclosed. As per policy condition pertaining to wealth plus policy, if a policy is not revived within 2 years from the date of first unpaid premium then after completion of 2 years from the date of said FUP, the policy will be compulsorily surrendered. The answering OP also submitted that it is not practicable to verify the signature when any cheque is produced before the counter at pick hours as such there is no question of any connivance of any sort with the agent by these answering OPs. Immediately after receiving the complaint the answering OP issued a letter to the agent Samar Kumar Dutta on 01.08.2014 calling for his explanation in that matter. So after a lapse of more than 2 years there is no scope now for revival of a policy once foreclosed. The foreclosed amount is, however, payable to the complainant approximately Rs. 40763/-. The answering OP also submitted that under the existing rules of this corporate body if the learned forum is convinced that indeed there was a misappropriation by the agent then necessary order/orders may be passed directing all authorizing these OPs to realize the premium amounts that may be found to have actually been paid by or on behalf of the complainant from the commission of the agent that is the OP No. 3.

OP No. 3 also filed written version denying the allegations leveled against him and averred that complainant took a policy of OP No. 1 named as wealth plus policy on 31.03.2010 and first premium amount was paid by a cheque being no. 63430 amounting to Rs. 50000/- dated 18.03.2010 drawn on UBI Pandua Branch and paid to OP No. 1 by its agent OP No. 3 and accordingly OP No. 2 issued a policy certificate being no. 496283782 dated 15.04.2010. The answering OP denied the deposition of cheque being no. 96751 dated 18.03.2010 or any other date in the office of the OP No. 1 issued by father of the complainant, Shiharan Banerjee from the account lying before OP No. 4. He also denied that the said cheque was handed over to the OP No. 3 by the complainant and his father to deposit in the office of the OP No. 1 and it is also not true that OP No. 3 even received the said cheque and deposit the said cheque and it is also unknown to this answering OP whether the receipt was collected or not. In respect of 3^rd premium the complainant deposited a cheque being no. 330166 amounting to Rs. 50,000/- in the name of OP No. 1 through OP No. 3 on 21.03.2012 and completed the premium course of the said policy. But the complainant failed to update the pass book of his father. So, he could not get information regarding the encashment of cheque. The answering OP is not aware whether the complainant went to the office of OP No. 1 to know the present position of the said policy and fund value of the said policy had been foreclosed being non-payment of consecutively two premiums. He denied that the OP No. 3 in collusion with the staff of OP No. 1 managed to deposit the cheque of the complainant being no. 96751 of Rs. 50000/- in the name of Smt. Niva Karmakar who is a policy holder under the code of the OP No. 3. The OP No. 3 also denied the contents of the paragraph 7 & 8 of the complaint petition.  

Complainant files evidence-on-affidavit which is nothing but replica of complaint petition and supports the averment of the complaint petition. He also stated that the complainant first knew the incident of foreclosed on 22.05.2014 and then by a letter dated 28.05.2014 requested the OP No.1, Office to revive the policy by taking the premium of Rs. 50,000/- which had been dishonored and also sent a lawyer’s letter dated 22.10.2014 for requesting the OP No. 1 Office to revive the policy. But the OP No. 1 did not pay any heed to that matter. So, the complainant filed this case for appropriate measure of law for reviving the policy taking the dishonored amount of Rs. 50,000/-.

OP No. 1 & 2 filed a petition dated 15.07.2015 stating to accept the written version as written evidence on behalf of OP No. 1 & 2.

OP No. 3 filed evidence on affidavit which is replica of written version. So it is needless to discuss.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Subrata Banerjee is a ‘Consumer’ of the Opposite Party?

 2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions hereinabove we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant Subrata Banerjee is a ‘Consumer’ of the Opposite Party?

     From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant is a policy holder of OP No.1&2and OP No.3 is the agent of OP No.1 by whom the complainant used to deposit the premiums and the OP No.4 is the bank branch by whom the complainant paid the premiums through cheque so they are responsible to provide service to this complainant.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents and/or carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.           

(3).Whether the Opposite Parties carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

 The  case of the complainant is that he   took an insurance from OP No. 1 named as wealth plus policy on 31.03.2010 being policy no. 496283782 of sum assured of Rs. 2,50,000/- for 3 years and yearly premium was Rs. 50,000/- through the agent of OP No. 1 i.e. OP No. 3. Complainant deposited a cheque in the name of OP No. 1 being cheque no. 63430 amounting to Rs. 50,000/- of OP No. 4, Bank. Accordingly OP No. 2 issued a policy certificate in favour of complainant being no. 496283782 dated 15.04.2010. Similarly, complainant deposited second premium through a cheque being no. 96751 dated 26.03.2011 of OP No. 4, Bank in the name of OP No. 1 issued by the father of the complainant and deposited the said cheque by OP No. 3. But he did not collect the receipt in respect of depositing the said cheque. Subsequently the petitioner deposited his 3^rd premium through a cheque being no. 330166 of OP No. 4, bank in the name of the office of OP No.1 through OP No. 3, agent. All the cheques were given by the father of the complainant and 3^rd cheque which was given as premium amount for paying 3^rd premium of the impugned policy has been dishonoured due to insufficient fund. As a result, the policy of the complainant became foreclosed due to non-payment of 2^nd and 3^rd premium in accordance with the policy condition. Dispute cropped up in between the parties when the complainant came to know that his 2^nd premium has not been deposited before the OP No. 1, Office although he paid the cheque to OP No. 3 to deposit the same. But the complainant failed to take any receipt from the OP No.3, Agent. The written version of OP No. 1 & 2 and the complaint petition speaks that the specified cheque being no.  96751 of OP No. 4, Bank dated 26.03.2011 issued by the father of this complainant and the said cheque has been utilized to discharge the liability of one Niva Karmakar who is also a policy holder of OP No. 1 of same agent code. So, from the bare reading it is crystal clear that the cheque being no. 96751 being utilized by OP No. 3 scrupulously to meet the liability of other policy holder. But the whole episode has been revealed when the OP No. 1 & 2 foreclosed the policy of the complainant and the complainant came to know that his 2^nd premium has not been deposited by OP No. 3, Agent and the 3^rd cheque being no. 330166 of OP No. 4, Bank has been dishonored due to insufficient fund. The complainant took the plea that his father was totally unaware about the balance in the account; as a result the impugned cheque has been dishonored due to ignorance. The father of the complainant being well acquainted regarding the banking transactions but he came to know after a prolonged period that his cheque has been dishonored due to insufficient fund. The complainant suffered at the negligence or deficiency of service of the OP No.3. The OP No.3 tried to evade his responsibility but could not answer satisfactorily regarding the utilization of cheque of the complainant’s father in the policy of the other policyholder of same agent code. But in respect of third premium the complainant suffered at his own cause.  As the complainant failed to approach the OP No.1&2 immediately after the nonpayment so there was no chance to revive the policy so the prayer for revival the policy is not tenable as it is highly belated one.

The OP No.1&2 by referring the case decisions of National Commission & Hon’ble Supreme court put questions regarding the payment of premiums through agent of LICI. He stated that Sec.8 subsection 4 of the Agents Regulations 1972 that an LICI agent is not authorized to collect premiums on behalf of the Insurance Company. It is thus well established that the agent has not been given the authority by the appellants/ insurance company to receive any premium on its behalf from the policyholder. In Life Insurance Corporation of India Vs. Girdharilal P. Kesarwarni & Anr.[ I(2009) CPJ 228 (NC)] as also by the Hon’ble Supreme court in the case of Harsad J. shah & Anr. Vs. LIC of India & ors.[AIR 1997 Supreme Court 2459] wherein the Hon’ble Apex court had concluded that as per the rules framed by LIC agents have been prohibited from collecting money premium on behalf of the LIC and when he collects premium from the policyholder to deposit the same with the Insurance Company he acts as an agent of the policyholder.

 So from the above discussion we may come into this conclusion that the complainant suffered at the behest of negligence on the part of the OP No.3. If the OP No.3 deposited the cheque of the father of the complainant in the account of the complainant then the policy of the complainant may not be surrendered

 after the payment of 1^st premium. As such the OP No.3 cannot evade his responsibility of paying the 2nd premium amount including interest since the issuing of the cheque to this complainant. 

From the above discussion we are in the opinion that the complainant  proved his case by producing sufficient documents and argued on the point whether the OP No.3 is deficient in providing service and he is under liability to pay compensation along with other reliefs prayed in the prayer portion of the complaint.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?   

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case and the Opposite Party No.3 is liable to pay decreetal amount to this complainant.

ORDER

Hence, it is ordered that the complaint case being No.256 of 2014 be and the same is allowed in part on contest against the Opposite Party with a litigation cost of Rs.5000/- to be paid to this complainant by the OP No.3.

The OP No.1&2 are directed to pay jointly and or severally the 1st premium proceed of the complainant along with interest since the date of foreclose of the policy.

OP No.3 is directed to pay Rs.50,000/- along with interest@10% since the date of issuance of 2^nd cheque being no.96751 dated 26.3.2011 of OP no.4 bank to this complainant.

All the payments are to be made within 45 days from the date of this order.

OP No.4 is exonerated from this proceeding.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me.