Present:- Hon’ble Mr. Shyamal Gupta, Presiding Member
The brief fact of the complainant case is that.....
(i) That the husband of the Complainant/Petitioner No. 1 Sri Dipak Kumar Choudhury expired on 14.02.2008 leaving behind him the Petitioner No. 1 as his wife and two sons namely Deepayan Choudhury and Rahul Choudhury, i.e. the Petitioner No. 2 and 3 herein. Both of them were dependants of the Petitioner No. 1. After the expiry of her husband the niece of the Petitioner No. 1, Smt. Koyel Mondal introduced and MDRT agent of LICI namely Joyanta Bhuniya (code 1025841N) of College Street Branch (code 41N), 64, Ganesh Chandra Avenue (3rd floor), Kolkata- 700013, i.e. the Opposite Party No. 4 for investing in LICI.
(ii) So on 28.03.2009 the Petitioner No. 1 took eight policies (policy no – 578002767, 578002768, 578002769, 578002770, 578002771, 578002772, 578002773, 578002774) in the name of her minor son Rahul Choudhury through Joyanta Bhuniya and paid the amount of the first prmium in cheque directly to LICI. In the year 2010, before the due date of the payment of premium those policies, said agent came to the residence of the Petitioner No. 1 and handed her over the premium payment receipts of those eight policies (policy no- 578002767 to 578002774) for the year 2010 and declared that he has paid all those premiums from his pocket before hand as he had a target to fulfil and he asked the Petitioner No. 1 to pay him the total value of those premium of Rs. 30,863/- in cash in lieu of those receipts. The petitioner No. 1 did not sense any foul play in it so she gave a cheque in his name amounting Rs. 30,863/-.
(iii) On 26.06.2009 the Petitioner No. 1 took two policies (policy No. 578006415 and 578006416) in the name of her son Deepayan Choudhury along with eight Market Plus policies each of Rs. 10,000/- and the yearly premium was Rs. 13,794/-. Again on 24.07.2009 the Petitioner No. 1 took two policies (policy No. 578007828 and 578007829) in the name of her son Rahul Choudhury along with eight Market Plus policies each of Rs. 10,000/- and the yearly premium was Rs. 13,632/-. On October 2009 Mr. Joyanta Bhuniya told the Petitioner No. 1 that if she pay the renewal premium of those four policies (policy No. 578006415, 578006416, 578007828 and 578007829) for the year 2010 and 2011 in advance then she shall get a huge rebate of approx 30% from the amount of total premium. As the petitioner No. 1 had fund, so she decided to pay the renewal premium of these four policies in advance and handed over a cheque of Rs. 20,000/- in place of Rs. 27,264/- in favour of LICI to Mr. Joyanta Bhuniya towards such advance premium and also Rs. 20,000/- in place of Rs. 27,588/- in cash against valid receipt.
(iv) In the year 2012 the said agent tried to repeat the same thing, but this year the Petitioner No. 1 handed him a cheque in favour of LlCI amounting Rs. 30,863/- (the exact amount for the renewal premiums of these eight policies) in the month of March which was duly encashed by LICI in due course.
(v) The Petitioner No. 1 took a policy (policy No. 495126850) on 22.08.2011 and paid the amount of the first premium in cheque directly to LICI. In the year 2012 the Petitioner No. 1gave Rs. 7000/- cash to the agent for the renewal premium of this policy and he delivered her the receipt.
(vi) In the year 2012 the OP No. 4 again suggested to the Petitioner No. 1 to pay the renewal premium of policy Nos. 578006415 & 578006416 of Deepayan Choudhury and policy Nos. 578007828 & 578007829 of Rahul Choudhury in advance for the next seven years to get a hefty rebate on premium and consequently the Petitioner No. 1 surrendered all the sixteen Market Plus policies mentioned earlier for payment of the renewal premiums of policy Nos. 578006415, 578006416, 578007828 & 578007829 for the next seven years.
(vii) In the month of June 2012 the OP No. 4 approached the Petitioner No. 1 and offered her to become an assignee of existing policy standing in the name of some other person and convinced her that there is a system in LICI that if any policy-holder becomes distressed and unable to continue the policy or urgently requires liquidation of the policy then such policy can be assigned on interested party who have to pay the assignment value and can enjoy the maturity value of the policy on maturity. The Petitioner No. 1, believing upon the statement of the said agent and being allured by him invested in some assignment polices.
(viii) In the year 2013 Joyanta Bhuniya first gave the Petitioner No. 1 the premium payment receipts (of Policy Nos. 578002767 to 578002774 except 578002769 which the Petitioner No. 1 did not notice till 21.08.2013) and then took Rs. 30,863/- cash from her.
(ix) That the Petitioner No. 1 wanted to pay the renewal premium of policy No. 495126850 for the year 2013. She was informed that the premium of that policy for the year 2012 was not paid by the agent though the Petitioner No. 1 gave Rs. 7000/- in cash towards such premium to the agent within due time against which the agent handed over valid receipt and even the Petitioner No. 1 was not permitted to revive the policy by LICI.
(x) On 21st the August 2013, the Petitioner No. 1 went to the College Street branch to enquire about a cheque she received from LICI for the maturity value of Policy No. 578022738. Finally the petitioner No. 1came to know from the Branch Manager, that most of her policies have become paid up for non-payment of renewal premiums though she was also informed (verbally) that out of eight the premium of policy No. 578002769 was not paid till 2011 and all the eight policies (policy No. 578002767 to 578002774) were not paid till 2013. The Petitioner No. 1 was confused and argued with the B.M. as in the year 2012 she gave a cheque in favour of LICI amounting Rs. 30,863/-, which was duly received by LICI. It was not until August 2013 that the Petitioner No. 1 came to know that the receipt of policy No. 578002769 was missing from the bundle of receipts of the year 2012 and 2013. Then in spite of the repeated enquiry by the Petitioner No. 1 as to how LICI could accept and encash the cheque amounting Rs. 30,863/- when one premium was not paid but the Branch Manager kept silent. At last on 22.01.2014 the Petitioner No. 1 came to know through RTI answer about the misconduct of the College Street Branch LICI.
Complainant No. 1 also learnt the following information about the functioning of OP No. 3 Insurance Company through R.T.I. Petition:-
(i) Out of cheques issued in favour of L.I.C.I. by complainant No. 1 towards advance renewal premiums of existing policies OP No. 4 obtained two new policies in the name complainant 2 and 3 while facts loom large that the OP No. 4 had not obtained any proposal form signed by the complainant Nos. 2 and 3 and the complainants came to know the existence of these policy bonds only through R.T.I.
(ii) Opposite Part L.I.C.I. without proper verification had changed the existing address of the complainant No. 3 in their record.
(iii) OP No. 3 had accepted the cheques drawn by OP No. 4 on different Banks towards renewal premium of Policies in the name of Complainant No. 3 which was subsequently dishonoured.
(iv)That instead of adjusting the renewal premiums of their existing policies six cheques issued by the complainant for Rs. 1,46,668/- was encashed by the Insurance Company and credited to the policies in the name of other Policy Holders.
(v) The OP No. 4, an agent of the Insurance Company also allured the complainant to assignee of five policies for future benefit but OP Insurance Company neither paid the amount nor returned the original policy bonds.
(vi) The Complainant No. 1 informed by the OP No. 3 about the misdeeds of their agent, OP No. 4.
(vii) The Complainant No. 1 gave written complaint to every higher authority of L.I.C.I. from Chairman to Zonal Mangager, Regional Manager, Zonal Vigilance Officer and also to C.B.I. and Bowbazar P.S.
Finally the Complainant No. 1 prayed for refund of investment amount of Rs. 18,73,478/- along with Rs. 10,00,000/- towards compensation etc.
In this particular case OP No. 1 to 3 filed W.V and contested the case and the case runs ex parte against OP No. 4.
Heard the submission of both sides at length and perused the record and documents therein. During the course of argument Ld. Advocate of the complainant raised the following points:-
(i) Opposite Party Insurance Company admitted that steps are being taken against the Opposite Party No. 4 i.e. their lawful agent under complaint case (C.B.I).
(ii) The Opposite Party Insurance Company has admitted that OP No. 4 is their agent appointed as per I.R.D.A. norms.
(iii)Opposite Party Insurance Company admitted in clear terms that signature of complainants had been forged by the OP No. 4.
In counter reply Ld. Advocate of OPs submitted that
(i) LICI had acted on the basis of the instructions given by the complainants through their agent/representatives and no decision was taken by LICI independently. It is denied by LICI that the agent is doing mischievous acts with active collusion and connivance with the employees of LICI.
(ii) The complainants have alleged fraud and forgery. The consumer Fora is not authorised to adjudicate fraud and forgery as it does not come under the purview of the C.P. Act, 1986.
(iii) The Opposite Party Nos. 1,2 and 3 never had the knowledge that the signature were forged as alleged. The burden of proof lies on the Complainants to prove their case.
On careful observation, the following irregularities become apparently visible.
First, sometimes in the 3rd week of August, 2013, Complainant No. 1 found one cheque worth Rs. 5,14,320/- lying in the letter box of her house. Purportedly the said cheque was issued by LICI. When the same was presented to the bank, it was dishonoured with the remark ‘No such Account’.
Second, although she paid due premium in respect of Policy No. 568002769 stood in the name of the Complainant No. 3 vide cheque No. 388456, part of the tendered amount was utilized for adjustment of premium of one Sri Narayan Ghosh.
Third, renewal cheques issued in favour of the OP Nos. 1 to 3 were utilized for issuance of fresh policies in the names of Complainant Nos. 2 and 3 although none of them signed any fresh proposal forms to that effect. Significantly, the OP Nos. 1 to 3 have not furnished the relevant proposal forms before this Commission.
Fourth, renewal cheques issued by the Complainants were also used for issuance of fresh insurance policies in the names of some unknown persons, viz., Sri Pradip Choudhury, Smt. Rupali Choudhury, Smt. Champa Choudhury, Smt. Purnima Singha.
Fifth, the OP Insurer, without proper verification, changed the existing address of the Complainant No. 3 in their record from C/o Krishna Choudhury, 121, Raja S.C. Mallick Road, P.O. Naktala, Kolkata- 700047 to 12, Subodh Mallick Square, Kolkata- 700012 behind the back of the policyholder.
Sixth, although the address in respect of Policy No. 578013050, was changed on 17.07.2013, the OPs could not furnished relevant documents, viz.. application and address proof documents.
Seventh, although a sum of Rs. 18,551/- was remitted to the OP Nos. 1 to 3 by the Complainant No. 2 through UBI, Garia Branch on 14.11.2013 and due receipt to that effect was initially issued by the them, subsequently, vide their letter dated 20.11.2012, they confirmed receipt of only the sum of Rs. 18,393/- towards full repayment of loan being taken against the Policy No. 578013050. How the difference amount was adjusted remains inexplicable.
Eight, according to RTI reply dated 21.04.2014, the OP Insurance Company changed the address in respect of Policy No. 578013050 on 17.07.2013. However, from the money receipt issued on 14.11.2013 in respect of this policy number, it transpires that the address of the policyholder was changed to C/o Krishna Choudhury, 3 No. Mahajati Nagar, P.O. Sodepur, Kolkata. Again while sending the policy bond on 20.11.2013, the OP Nos. 1 to 3 mentioned the original address of the policyholder, i.e. C/o Krishna Choudhury, 121, Raja S.C. Mallick Road, P.O. Naktala, Kolkata-700047. Significantly, the OP Nos. 1 to 3 have not furnished relevant applications for our evaluation.
Ninth, OP No. 3 accepted cheque being issued by the OP No. 4 towards premiums in respect of different policies stood in the names of the complainants (subsequently the said cheque was dishonoured). According to the complainants, acceptance of third party cheque was a clear violation of the Rules & Regulation of the LICI.
Tenth, from the photocopy of the purported letter dated NIL, the authenticity of which has been strongly disputed by the Complainants, it transpires that by such letter the LIC authority was asked to change the address in respect of only 5 policies; whereas, the LICI authority changed the address in respect of 7 policies on two different dates.
It may be pertinent to mention here that the OP Nos. 1 to 3 have not offered any satisfactory reply in respect of the afore mentioned irregularities being pointed out by the Ld. Advocate for the complainants.
It appears that the agency of the OP No. 4 has been terminated by the LICI and the matter has been referred to the CBI. However, the outcome of said investigation has not been disclosed to us by the OP Nos. 1 to 3.
Ld. Advocate for the Complainant referred the following citation during the course of argument.
(1) Sutlej Textile & Industries Ltd. –vs- P.N.B. FA 41/2008 of NCDRC.
“Merely because in complaint based on...... fraud, forgery ......jurisdiction of forum not ousted”
(2) 2018(2) CPR 305 (NC)
“Complainant cannot be made to suffer for fraud committed by LICI Agent.
(3)2018 (2) CPR 266 (NC).
“Insurance Company is liable for all acts and omissions of its Agent.”
(4) II (2006) CPJ 119 (NC)
(5) 2015 (1) CPR 784(NC)
“Insurance Company is liable for acts done by its agent”
(6) AIR 1994 SC 787
“C.P. Act is a social benefit oriented legislation Provision should therefore be considered in favour of Counsel”
In counter reply Ld. Senior Counsel of OP Nos. 1-3 referred the following rulings:-
(1) Mittal Education Society –vs- Indian Overseas Bank(NCDRC dated06.11.2017).
“The Complainant involves fraud & forgery, which are beyond the scope of the proceedings under C.P. Act.”
(2) FA 126 of 2009. LICI –vs- Radheyshyam Kheda (23/5/2013) read with Harshat J Shah & Anr –vs- LICI (AIR 1997 SC 2459)
“Agents are not authorised to collect any money or accept any risk on behalf of the LIC.”
(3) III (2014) CPJ 213 (NC)
“LIC has not induced complaint to believe that OP No. 2(Agent) was authorised to receive premium as agent.”
Considering the entire panorama and keeping an eye upon the different citation placed by the sides, the pertinent question raised in my mind.
Whether merely by framing certain Regulations the Insurance Company can abdicate all its liabilities for the misdeed of their authorized agents. I afraid, they cannot do so. It is the settled position of law that the principal cannot abdicate vicarious liability for the wrong being done by its agent. Vicarious liability in the context of the principal agent relationship means an imposition of responsibility on the principal on the acts of the agent. This form of liability finds its basis on the common agency law principle of respondent superior or “let the master answer,” imputing the actions of the servant (agent) on the master (principal). Above all, it was obligatory on the part of the OP Nos. 1 to 3 to duly caution the complainants against paying/depositing premiums through agents. Sadly, in none of the policy bonds or money receipts being issued to the Complainants, there was any mention of the so-called Regulation.
Further, there was great lapses on the part of the OP Insurance Company too as they literally danced to the tune of the OP No. 4. Had the Officials concerned properly cross-checked the signature contained in different letters submitted in the names of the complainants with their official record or minutely verify the address proof documents, the sinister design hatched by the OP No. 4 could be nipped in the bud.
General public reposes immense faith into the sincerity of purpose of the LICI. It is indeed sad that the LICI authority did not seek any explanation from persons like Pradip Choudhury, Rupali Chowdhury acting on the complaint of the complainants. All these certainly bring to fore gross deficiency in service on the part of the OPs. If they had the slightest wherewithal, the OP Nos. 1 to 3 could redress the genuine grievance of the complainants on their own, but they simply looked the other way. This is highly deplorable.
Considering all aspects, we direct the OP Nos. 1 to 3 to pay the entire amount being paid in respect of all the policies (including the disputed amount) along with simple interest @9% p.a. with effect from 26.11.2014 till full and final payment is made. In case the aforesaid sum is not paid within 40 days from this day, complainants shall be at liberty to execute this order in accordance with law.
The case, accordingly, stands allowed in part.
