THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM Present: Sri. Santhosh Kesavanath P., President Smt. Bindhu M. Thomas, Member Sri. K.N. Radhakrishnan, Member CC. No. 161/2008 Tuesday, the 30th day of March, 2010. Petitioner : P. John Kurian Poovakulam House, Thazhathangadi P.O Kottayam. (By Adv. Jittu George Mathew) Vs. Opposite parties : 1) The Manager, ICICI Prudential Life Insurance Co. Ltd., ICICI Pru Life Towers, 089, Appasaheb Marathe Marg Prabhadevi, Mumbai -400025. (By Adv. D. Zaibo) 2) The Manager, ICICI Prudential Life Insurance Co., Ltd., Ground Floor, Vetteel Estate, Kanjikuzhi, Kottayam. (By Adv. D. Zaibo) 3) The Manager, Muthoot Wealth Management Services Pvt. Ltd., P.B No. 251, Near Anjali Hotel, KK Road, Kottayam. O R D E R Sri. Santhosh Kesavanath P., President. The complainant’s case is as follows: Petitioner availed 2 policies issued by the first opposite party. First policy issued from the branch office of the first opposite party and second policy was issued by the 3rd opposite party by transferring the funds from the first policy. When the policy was issued opposite parties assured the petitioner that the policy plan can be changed by using the password to protector plan, maximiser plan and balance plan. As per the instructions -2- from the opposite parties petitioner kept the policy in maximiser plan. On 3rd December 2007 when the petitioner tried to login the system with the password provided by the opposite parties. Complainant found that the password is invalid and the system got locked. The complainant approached the second opposite party and informed the same and he took a statement of accounts. In the account the complaint noticed to that on 19th October, 2007 the plan had been switched from maximiser to protector by the opposite parties without the knowledge of the complainant. On 10..12..2007 complainant switched the plan back to maximiser growth by personally visited the second opposite party by filling up the printed switch form at NAV of Rs. 67.98. According to the complainant due to the back and forth switching action of the opposite party the complainant suffered a total loss of Rs. 781.27 units worth Rs. 53,107.13. Complainant informed this matter to the opposite parties through E-mail and telephone. Complainant issued a letter to Mr. Shabin Joseph an Executive of the 3rd opposite party and through whom the complainant took the second policy. He gave a reply in writing that the unauthorized switching was done by the staff of the 3rd opposite party. The petitioner on 20..2..2008 issued a lawyer’s notice to the opposite parties. Opposite parties acknowledged the notice and gave reply stating false averments and denying the liability. According to the petitioner act of the opposite party amounts to unfair trade practice and there is clear deficiency in service. So, petitioner prays for a direction to the opposite parties to pay an amount of Rs. 53107.13 with 18% interest. He claim as Rs. 20,000/- as compensation and Rs. 5,000/- as cost of the proceedings. . -3- First and second opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the first and second opposite party due to alleged switching of funds opposite party one and two does not gain monetarily . Petitioner himself realized that what has allegedly happened was a cyber crime opposite party I & 2 admitted that they have issued two policies ie. policy Nos. 01024441 and 05908664 (issued on August 2/2004 and August 17/07 respectively) in non medical category. The allegation of premium switching of funds can be executed by a policy holder either through an on line request or through a written request. For this purpose each policy holder is provided with a unique transaction ID and password for the transactions. The transaction ID and the password are confidential codes and the policy holder is not to share the same with anyone else. In the instant case the policy holder petitioner breached in the confidentiality of the codes by sharing them with others or letting others in the information on the codes. Under the first policy petitioner opted to invest in 100% of the funds in the balancer fund. Subsequently on the first policy petitioner had effected several transactions, including switching of funds in the policy. Petitioner regularly carryout switching of funds under such policy either on line or through written request. In accordance with the established practice of carrying out on line switches of funds. On 2007 October 19 opposite party received an on line request from the complainant for switching of funds from maximizer to protector funds under the first policy. As per the on line request, first opposite party effected switch as requested and confirm the same by the complainant.. On 10..2..2007 petitioner given a request to switch 100% of the funds. Under first policy from protector to the maximizer. -4- The user I D and password are confidential information and should not be shared with a 3rd party. Petitioner requested for a new user ID and password via E-mail on 2008 January 17 for which the same has been complied . Petitioner on 20..2..2008 issued lawyers notice to the opposite party. Opposite party acknowledged the notice and gave reply denying the liability. According to 1st and 2nd opposite party there is no deficiency in service on their part and they pray for dismissal of the petition with their costs. 3rd opposite party filed version contenting that the petition is not maintainable according to him petition is bad for non jointer of necessary parties. 3rd opposite party is a company registered under the Indian Companies Act 1956. Petitioner has no cause of action against the 3rd opposite party . The relationship of the petitioner and company is with regard to a business transaction . So, the complaint is not a ‘Consumer’ as per the provisions of Consumer Protection Act and petition is to be dismissed in limine. The 3rd opposite party admitted that petitioner had applied for a policy through Muthoot Wealth Management Services in August 2007. Premium amount had been remitted along with application by transferring fund from already existing policy of the petitioner. On the basis of the said application first opposite party issued the policy bearing No. 05908664 and policy bearing No. 01024441 Out sourced through 3rd opposite party. Petitioner had obtained password for his account directly from the first and second opposite party. 3rd opposite party had no direct access to the account of the petitioner. 3rd opposite party had not done any of the said acts as alleged by the petitioner in his petition. In fact there were 3 options to the investors to the first opposite party like maximiser, balance and protector. The investor alone can change one plan to another by using the password -5- provided by the first and second opposite party. 3rd opposite party has no role in the said matter. Mr. Shabin Jose was the Executive of the company and he had submitted his registration on 17..9..2007 and relieved from the company on 30..9..2007. Mr. Shabin Jose was a friend of the petitioner and by using the relationship he canvassed the business of the petitioner. Letter alleged to be issued to the Shabin Jose and its reply Dtd: 20..1..2008 were collusively created by the petitioner only for the purpose of the complaint. . 3rd opposite party company had not switched over the policy from maximiser to the protector. The complaint alone was liable for the alleged switching over from one to another. According to the 3rd opposite party there is no deficiency in service on their part and they pray for dismissal of the petition with their costs. Points for determinations are: i) Whether there is deficiency in service on the part of the opposite party? ii) Relief and costs. Evidence in this case consists of affidavit filed by both parties. Ext. A1 to A11 documents on the side of the petitioner and Ext. B1 to B5 documents on the side of the opposite parties. Point No. 1 The crux of the case of the petitioner is that on 3rd December 2007 while petitioner tried to login the system with the Password provided by the opposite parties, the petitioner found the password invalid and the system got locked. Further more petitioner noticed that on 19th October 2007 the plan had been switched from Maximizer @ 58.67 to protector @ 15.80 by the opposite parties without the knowledge -6- of the petitioner and thus he sustained a loss of Rs. 53107.13. Petitioner produced a letter issued by one Shabin Jose who according to the petitioner is an employee of the 3rd opposite party, said letter is marked subject to its evidentiary value as Ext. A4. In Ext. A4 Shabin Jose stated that he never switched the plan and is done by the Muthoot Wealth Management, who is the corporate agent of first and second opposite party and staff involved is Mr. John P. John, Mr. Sippin and Miss. Shyama. Ext. A4 is Dtd: 20..1..2008. According to the 3rd opposite party Shabin Jose was resigned from 7..9..2007 and the resignation letter is produced and the same is marked as Ext. B2. From Ext. B2 it can be seen that the Shabin Jose was resigned his service of the 3rd opposite party before the issuance of Ext. A4 letter. The user ID and password is a confidential information and should not be with a 3rd party. In our view the switches were processed on receipt of online request. Even though the petitioner has a definite case that the switching of funds was done by the 3rd opposite party unauthorizedly and for that purpose petitioner is relying Ext. A4 documents. But petitioner has not taken any steps to examine the Shabin Jose. Petitioner has not adduced any evidence to prove that the password and user ID of the petitioner was mis used by the opposite party for switching and transfering the funds of the petitioner from one fund to another. So in our view petitioner failed to prove the deficiency in service committed by the opposite parties. So, point No. 1 is found accordingly. Point No. 2 In view of finding in point No. 1, petition is dismissed. Dictated by me transcribed by the Confidential Assistant corrected by me and -7- pronounced in the Open Forum on this the 30th day of March 2010. Sri. Santhosh Kesavanath P. President Sd/- Smt. Bindhu M. Thomas, Member Sd/- Sri. K.N. Radhakrishnan, Member Sd/- APPENDIX Documents for the petitioner Ext. A1: Copy of the policy Dtd: 30..7..2004 with vide No. 01024441. Ext. A2: Copy of policy Dtd: 11..8..2002 with vide No. 0590866 Ext. A3: Copy of the acknowledgement Dtd: 10..12..2000 Ext. A4: Copy of the letter Dtd: 20..1..2008 issued by Shabin Jose to the petitioner. Ext. A5 Lawyers notice Dtd: 20..2..2008 Ext. A6: Postal receipt Dtd: 23..2..2008 Ext. A7 Postal receipt Dtd: 23..2..2008 Ext. A8: Postal receipt Dtd: 23..2..2008 Ext. A9: Postal AD Card receipt of the notice by the Manager ICICI Ext. A10: A/D Card receipt of the notice by the Manager Muthoot Wealth Management Pvt. Ltd. Documents for the Opposite parties: Ext. B1 Copy of the liable notice Dtd: 4..3..2008 Ext. B2: Resignation letter Dtd: 17..9..2007 Ext. B3: Copy of the proposal Dtd: Ext:B4: Copy of the application for funds switch Ext. B5: Copy of letter Dt: 20..1..2008 issued by Shobin Jose to John Kurian. By Order, Senior Superintendent amp/ 6 cs.
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
