BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Tuesday the 17th day of March, 2009
C.C.No. 14/08
Between:
Mirza Basheer Ismail,
S/o. Mirza Rassol Baig,
D.No.45/121-A, Narasimha Reddy Nagar,
Kurnool. … Complainant
Versus
- M. Jameel Ahmed,
S/o. Not Know,
Bajaj Allianz ,
Teja Apartments,
Near Rythu Bazar,
N.R.Peta,
Kurnool.
2. Bajaj Allianj Life Insurance Company Limited,
GE Plaza Airport Road, Head Office at
Pune – 411 006.
3. Bajaj Allianz Life Insurance Company Limited,
Branch Office,2nd Floor,
S.V.Complex, Station Road,
Kurnool – 518 004. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri. Md.Ishaq , Advocate, for the complainant, and Sri. T.Chandra Sekhar, Advocate, for the opposite party No. 1 and M. Syam Kumar Reddy , Advocate for opposite party No. 3 and opposite party No. 2 is called absent set-exparte and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.14/08
1. This case of the complainant is filed U/S 12 of C.P.Act seeking direction on the opposite parties 1 to 3 to revive the policy No.0013916835 accepting the amount of Rs.5,500/- paid in September, 2006 as one paid within time , to pay to the complainant Rs.20,000/- as compensation and cost of the case alleging the payment of Rs.5,500/- by the complainant to the opposite party No. 1 towards the subsequent year premium and the receipt of lapse intimation thereafter and the said lapse of the policy , obtained by him , at the lapsive conduct of the opposite party No. 1 who is the agent of the opposite parties 2 and 3, and to whom he paid the premium amount of Rs.5,500/- and the opposite parties not responding to his legal notice dated 04-10-2008 .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant while the opposite party No. 2 remained ex-parte to the case proceedings by his absence , the opposite parties 1 and 3 contested the case filling their written version denying any of their liability to the complainants claim.
3. The written version of the opposite party No.1 besides denying every allegation of the complaint submits that as agent of opposite party No. 2 and 3 to promote their business he forwarded the application of the complainant with latter’s specimen signatures on 15-12-2005 to the insurance company for fetching policy and instructed the complainant to pay the subsequent periodical annual premiums of the policy to the opposite party No. 3 and thereafter any approach of the complainant to him for payment of premium or any receipt of premium by him from complainant and so not aware of the conduct of the complainant at continuation of said policy and so had any further role to play in that regard as it is for the complainant to pay regularly the periodical premiums to survive the interest of the policy he obtained and so he had any further role to play in that regard and there by any deficiency on its part towards the complainant and so the case of the complainant is aimed at to have a wrongful gain . It further submits that the case of the complainant is
barred by limitation as the case of the complainant is filed on 27-12-2007 i..e, two years after to the alleged cause of action date of 15-12-2005 and so seeks dismissal of the complaint with cost.
4. The written version of the opposite party No. 3 even though admit itself as branch office at Kurnool to opposite party NO. 2 and the opposite party No. 1 as its agent it submits that it has neither in the knowledge or any thing to do with the affairs that was alleged as lasted between the opposite party No. 1 and the complainant and its sending of dishonor intimation of cheque No. 260581 dated 10-08-2007 was in good faith as it cannot verify the authenticity of cheques to the determent of customer’s sentiments . It lastly questions the liability of its for complainants claim as the complainant revived the said policy on 04-01-2008 by paying Rs.11,500/- towards the policy dues for the year 2006 , 2007 and the said fact is evident in policy account in enquiry report dated 24-06-2008 and so seeks dismissal of the case with exemplary cost.
5. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A10 and Ex.X1 to X5 besides to the evidence of PW.1 and 2 and his sworn affidavit in reiteration of its case, the opposite parties side has taken reliance on documentary record in Ex.B1 to B3 besides to its sworn affidavit in reiteration of its defence .
6. Hence the point for consideration is whether the complainant has made out any deficiency of the opposite parties as alleged and there by any of their liability to the claim made in the complaint.
7. The ExA3 is the insurance policy of Bajaj Alliaj bearing No. 0013916835 issued in favour of the complainant for an assured sum of Rs.50,000/- is envisaging the periodical payment there under is Rs.5,413/- p.a and the premium paid for issual of said policy as Rs.5,829/- vide particulars of Ex.A4 – first premium receipt by cash. The issual of said policy being not in dispute , the contends of said policy remained proved as alleged by the complainant .
8. The complaint and his sworn affidavit alleges that he paid to the opposite party No. 1 Rs.5,500/- in the month of September, 2006 on being represented that it will be for the next annual premium and expenses and the opposite party No. 1 did not issue any receipt in token of it representing that the complainant will get soon a receipt from the insurance company . Thereafter instead of receipt , the complainant received an intimation of lapse of policy . The opposite party No. 1 pleadings does neither take any mention of it nor any concern to him as alleged by the complainant . The opposite party No. 3 alleges as a customary business practice it has issued in good faith the intimation of dishonored cheque No.260581 dated 10-08-2007 . When the complaint alleges the said payment of Rs.5,500/- in cash to opposite party No. 1 in September, 2006 ,the opposite party No. 1 does not take any mention as to the said factum alleged by the complainant nor takes any mention of issual of a cheque either by himself or by the complainant towards the premium amount that to on 10-08-2007 itself the said factum of dishonor of said cheque bears any relevancy to the case especially when the Ex.A10 – was issued by the said insurance company in token of the receipt of amount of premium mentioned therein without any mention to the effect that the said amount was received under any cheque and the said receipt was issued subject to realization and as the said dishonor of cheque in Ex.A1 which was said to have been dishonored vide reasons in Ex.A2 does neither mentions on reverse of Ex.A1 that the said amount mentioned there in was for the premium amount of complainants policy number and when the account number mentioned in Ex.A1 i.e, 9682 as per Ex.X1 pertains to the opposite party No.1 himself and not to the complainant and there is any similarity in signature of the executant of Ex.A1 with the admitted signature of complainant appearing in Ex.A3 and complaint and the opposite party No. 1 is completely silent as to any of his concern to said Ex.A1 .
9. Further the Ex.A1 inconsistently envisages inwords the amount payable to its barer as rupees five hundred and fourty one only as the against figures mentioned therein as Rs.5,411/- . The Ex.A2 endorses the reason for dishonor of Ex.A1 as “ funds insufficient “ instead of pointing out said material inconsistency as to the amount in words and figures which envisages the quality of the said scrutiny . Hence there appears any valid force in the reasons mentioned in Ex.A2 .
10. The Ex.A10 was issued in receipt of the premium amount mentioned therein but no where it says the said amount was received under a cheque nor does it mention the said Ex.A10 was issued subject to realization of cheque mentioned in Ex.A1 and so there appears more probability to the complainant version as to payment of premium by cash to the opposite party No . 1 rather than by any cheque .
11. As the Ex.A10 envisage the payment of premium due under said policy of the complainant there appears any bonafiedes in policy lapse intimation given in Ex.A6 and A7 .
12. When the Ex.A1 is neither issued by the complainant nor the Ex.A10 anywhere taking the mention of Ex.A1 cheque number and the issual of Ex.A10 was mentioned as issued subject to realization of any cheque nonetheless the cheque in Ex.A1 , there appears any bonafidees in the issual of Ex.A8 reversing the ExA10 and requiring the complainant to make fresh payment as mentioned therein .
13. If there is any truth in the contentions of the opposite parties it would have certainly taken the opportunity of ventilating them in response to the Ex.A9 which was acknowledged by opposite parties 2 and 3 vide postal acknowledgement therein . The notice of the opposite party No. 1 was returned on flimsy ground of want of door number . When there is any genuineness in said return the notice of this forum as to this case of the complainant would not have been served on the opposite party No. 1 when sent on same address mentioned in returned cover notice of Ex.A9 . The above indicates the evasive conduct of the opposite party No. 1 for the notice in Ex.A9 .
14. The evidence of PW.1 VSR Murthy – Manager Corporation Bank , Kurnool with reference to Ex.X1 – attested Xerox copy of account opening form , and Ex.X2 – computer extract of account statement , identifies the cheque in Ex.A1 as pertaining to account No.9682 and it is of opposite party No. 1 and the signature of its executant not similar to that of the opposite party No. 1 appearing in account opening form. When , from the above circumstances the cheque in Ex.A1 is of opposite party No. 1 account and the opposite party No. 1 being custodian holder of the cheque book issued for operation of his account it is for him to explain how the Ex.A1 cheque of his cheque book was issue inconsistently by someone else other than himself. When there is any such explanation there appears every malafied conduct on the part of the opposite party No. 1 towards the complainant for the probable amount of premium he received from the complainant towards the further periodical annual premium payable for 2006 -2007 .
15. The evidence of PW.2 Rajesh Kumar Singh – Manager of Oriental Bank of Commerce says in reference to the Ex.X5 – computer generated account No. 09922011000385 , the Ex.X3 – cheque return memo and Ex.X4 cheque return register – says the said joint account as of their bank pertaining to opposite party No. 1 with one M.L.A. Catherin and the return of cheque bearing NO. 937758 dated 15-12-2005 issued for Rs.23,405/- infavour of Bajaj Allianz received from Syndicate Bank , Kurnool for its encashment was returned for want of sufficient funds . Even though there is any relevancy of the said cheque to the complainants case and his grievances , what appears from this is that the opposite party No. 1 is in the habit of abusing the cheques issued for their operation of his account with bank and the complainant was one of the scape boat to his said malafied activities for accounting the amount received from people like complainant .
16. The Ex.A4 first premium receipt dated 16-12-2005 takes any mention of the receipt of premium amount there under by way of cheque number mentioned in Ex.B2 . Hence there appears any bonafidess in Ex.B2 - policy accounting enquiry dated 21-07-2008 said to have been filed in reply to the interrogatory No. 1as to the payment of first premium receipt dated 16-12-2005 .
17. The opposite party No. 3 contends that the policy of the complainant was revived on 04-01-2008 consequent to the receipt of Rs.11,500/- from the complainant and the Ex.B1 - certified copy of policy accounting enquiry report dated 26-04-2008 reflecting the same . The case of the complainant as has been submitted into the forum on 27-12-2007 the said act of revial policy on 4-01-2008 remains as one subsequent filling of the case in the forum and there by it is certain that the said policy of the complainant was not in vogue for want of revival on the date of filling of this complaint and so there remains every justification in the complaint seeking relief of revival by the opposite party of the policy of the complainant . But the complainant in reply to interrogatories of opposite party No. 3 admits the revival of the policy by opposite party No. 3 on account of his paying regularly the premium amounts . But the Ex.B1 policy accounting enquiry report dated 26-04-2008 shows the payment of Rs.11,500/- on 04-01-2008 , there appears more probability in the contentions of the opposite party No. 3 as to revival of the policy of the complainant consequent to his payment of Rs.11,500/- on 04-01-2008 rather than to the contentions of the complainant .
18. In the above state of circumstances as now the policy of the complaint revived consequent to the payment noted in Ex.B1 the relief sought by the complainant as to revival of the policy remains infructious and so the said request is dismissed as infructious .
19. The Ex.B1 is envisaging periodical payments of earlier premiums of Rs.5,889/- and Rs.5,541/- on 15-12-2005 and 10-08-07 respectively and not reflecting any payment of RS.5,500/- in September, 2006 as alleged by the complainant .Neither any cogent material being filed in support of said contentions of the complainant there appears any relevancy in the request of the complainant for holding the alleged payment of premium of Rs.5,500/- said to have been made in September, 2006 as a premium paid within time .
20. But however each of the opposite parties by throwing the ball into others court as to the grievances of the complainant and not even responding suitably to the Ex.A9 legal notice of the complainant in justification of its stand and there by leaving the complainant in utter dismay and confusion driven him to the forum for redressal of his grievances the liability of the opposite parties for said deficiency remains to reimburse the cost of the case and compensation for mental agony suffered by the complainant at the said deficient and irresponsible conduct of the opposite parties .
21. Consequently , in the result of the above discussion , the case of the complainant is allowed directing the opposite parties 1 to 3 in their joint and several liability to pay to the complainant Rs.5,000/- and Rs.2,000/- as compensation and cost of the case respectively within a month of receipt of this order. In default the supra stated award shall be payable at the joint and several liability of the opposite parties with an interest at 12% interest p.a from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced
by us in the open bench on this the 17th day of March, 2009.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :Nil
PW.1. Deposition of PW.1 dated
02-07-2008 ( V.S.R. Murthy)
PW..2 Deposition of PW-2 dated
24-10-2008 (Rajesh Kumar Singh)
List of exhibits marked for the complainant:-
Ex.A1. Cheque account No.9682 dated 10-08-2007 for Rs.5,411/-.
Ex.A2. List of objections of corporation bank, kurnool.
Ex.A3. Policy No.0013916835.
Ex.A4. First premium receipt dated 16-12-2005.
Ex.A5. Letter dated 02-01-2006 of OP.No.3 to complainant.
Ex.A6. Lapse intimation dated 02-07-2007.
Ex.A7. Letter of OP.No. 3 to complainant .
Ex.A8. Cheque dishonor letter dated 16-08-2007.
Ex.A9. Office copy of legal notice dated 04-10-2007 along with 3 postal
receipts , two acknowledgements and one returned postal cover.
Ex.A10. Premium payment receipt dated 10-08-2007.
Ex.X1. Attested xerox copy of account opening form.
Ex.X2. Computer extract of the account statement covering the period
from 01-04-2007 to 31-03-2008 .
Ex.X3. Oriental bank of commerce, kurnool return cheque No. 937758,
for Rs.23,405/- dated 15-12-2005 of Syndicate Bank, Kurnool.
Ex.X4. Cheque return registers dated 17-12-2005.
Ex.X5. Computer generated account statement of A/cNo.09922011000385
Pertaining to MLA M.Jameel Ahmed.
List of exhibits marked for the opposite parties:
Ex.B1. Policy accounting enquiry dated 26-04-2008.
Ex.B2. Policy accounting enquiry dated 21-07-2008.
Ex.B3. Attested xerox copy of cheque dishonor letter dated 16-08-2007
Of opposite party to complainant.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on
