BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 19th of December 2011
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.271/2010
(Admitted on 08.10.2010)
Mrs.Mallika,
Wo. Vijaya Kumar J Gatty,
Aged about 28 years,
RA. Door No.3 11 9937,
Mogarnad, Shivappa Compound,
Bikkernakatte, Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M.R. Kudva).
VERSUS
1. Mrs.Josephine DSouza,
Advisor of Reliance Life Insurance Co. Ltd.,
Customer Service Centre,
Maximus Commercial Complex,
3rd Floor, L.H.H.Road,
Opp KMC, Mangalore 575 001.
(Opposite Party No.1: Exparte).
2. Reliance Life Insurance Company Ltd.,
Reg. No.121, Reg. Office H Block,
1st Floor, Dhirubai Ambani Knowledge City,
Navi Mumbai, Maharashtra – 400 710. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.J.Puthabba).
***************
ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, on 31.03.2007 the Complainant obtained a Reliance Market Return Plan Regular policy bearing policy No.10613409 for a coverage of Rs.2,00,000/- for the term fixed under the said plan is for fifteen years. It is stated that, the Complainant opted for yearly premium of Rs.25,000/-. To obtain the above said policy, on 31.03.2007 paid Rs.25,000/- in cash and the Opposite Party has issued a receipt bearing No.P6004417.
The allegation of the Complainant is that, after paying the installment in the year 2007, Opposite Party No.1 assured the Complainant that she will receive the policy and other relevant documents for payment. After lapse of one year i.e., in the year 2008, when the Complainant approached the Opposite Party No.1 to pay the premium amount, the Opposite Party No.1 stated that, she will receive the letter from the Opposite Party No.2 and after receiving the said letter she can pay the premium amount. It is stated that, in all these days the Complainant honestly waited for the letter suggested by the Opposite Party No.1 but neither the Complainant received any letter nor any guidelines was given by the Opposite Parties. Thereafter, the Complainant tried to contact the Opposite Parties, the Opposite Parties were evading by giving flimsy reasons. It is stated that, the Opposite Parties have misappropriated the amount paid by the Complainant. It is further stated that, the Complainant made to run post to pillar for no fault of her. Neither the Opposite Parties are returning the premium amount nor making the Complainant to pay the premium amount covered under the aforesaid policy in yearly installments. Feeling aggrieved by the aforesaid act, the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.25,000/- with interest at 18% p.a. from 31.03.2007 or allow the Complainant to pay the next premium amount stated supra by providing full benefit and also claimed Rs.10,000/- as compensation and other reliefs.
2. Version notice issued to the Opposite Party No.1 and 2 by RPAD.
The version notice issued to Opposite Party No.1 was returned unserved with the postal endorsement “left”. Thereafter the Complainant taken substituted service by way of paper publication in Kannada Daily Newspaper “Hosa Diganta” against the Opposite Party No.1. Even after the above paper publication, the Opposite Party No.1 not appeared nor contested the case till this date. Hence we have proceeded exparte. The unserved postal cover and the acknowledgement and the paper publication dated 01.01.2011 placed before the FORA marked as court document No.1 and 2.
Opposite Party No.2 appeared through their counsel filed version, wherein, it is stated that the Complainant had applied for a Reliance Market Return Plan (Regular) Policy on March 20, 2007 bearing policy No.10613409 for a coverage of Rs.2,00,000/- with the risk commencement date as March 31, 2007. It is stated that, the Complainant had paid Rs.25,000/- vide cheque bearing No.51476 dated February 22, 2007 drawn on Indusind Bank in favour of the Reliance Life Insurance Company Limited towards the first premium of the said policy. The said cheque was deposited vide receipt No.PC0000069226 dated March 20, 2007. It is further stated that, the Complainant had mentioned the mode of payment as cheque in the proposal form and the same was duly signed by the Complainant. The cheque deposited by the Complainant towards the said premium amount was dishonoured on presentation and consequently the said policy was withdrawn and stated that there is no deficiency of service on the part of this Opposite Party and the complaint is vague and the Opposite Party No.2 is not responsible for any loss suffered by the Complainant and prayed for dismissal of the complaint.
3. In support of the complaint, Mrs.Mallika (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C8 were marked for the Complainant as listed in the annexure in detail. One Mr.Anil Roshan D’Silva (RW1), Branch Service Manager of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. The Complainant as well as Opposite Party No.2 filed notes of arguments along with citations.
4. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute is that, the Complainant had applied for Reliance Market Return Plan (Regular) Policy on 20.03.2007 bearing policy No.10613409 for a coverage of Rs.2,00,000/- with the risk commencement date as March 31, 2007.
Now the facts which are in dispute between the parties before this FORA is that, according to the Complainant, she had paid Rs.25,000/- by cash and not by cheque and the Opposite Party No.1 issued a receipt for receiving Rs.25,000/- but even after the lapse of one year i.e., in the year 2008, when the Complainant approached the Opposite Party No.1 to pay the premium amount, the Opposite Party No.1 not responded and made the Complainant to run post to pillar for no fault of her. Neither the Opposite Parties are returning the Complainant’s premium amount nor making the Complainant to pay the premium amount covered under the aforesaid policy in yearly installments. Hence came up with this complaint.
The Opposite Party No.1 exparte but the Opposite Party No.2 interalia contended that, the Complainant submitted the proposal form, wherein, she had mentioned the mode of payment as cheque. Towards the above policy premium the Complainant had paid Rs.25,000/- vide cheque bearing No.51476 dated February 22, 2007 drawn on Indusind Bank in favour of the Reliance Life Insurance Company Limited and the said cheque was dishonoured, consequently the policy was withdrawn and contended that there is no deficiency on their part.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C8. Opposite Party No.2 also filed oral evidence by way of affidavit but not produced any documents.
On perusing the admitted as well as oral and documentary evidence available on record, we find that, the Complainant no doubt applied for a Reliance Market Return Plan (Regular) Policy on March 20, 2007 by submitting the proposal form and the Opposite Party issued a policy No.10613409 for a coverage of Rs.2,00,000/- with the risk commencement date as March 31, 2007. It is also seen that, the Opposite Party issued a receipt for having been received Rs.25,000/- from the Complainant bearing receipt No.P6004417 i.e., Ex C4.
However, the documentary evidence available on record before this FORA, we find that, the Complainant admittedly paid Rs.25,000/- in order to obtain the Reliance Market Return Plan Policy for a sum of Rs.2,00,000/- to the Opposite Parties. After acknowledging the premium amount, the Opposite Party issued a original policy i.e., Ex C1 in the name of the Complainant along with benefit illustration for Reliance Market Return Plan in the name of the Complainant. Under the above said Life Insurance Policy, the Opposite Party No.2 insured the life of the Complainant and the premium fixed is yearly premium of Rs.25,000/- and the sum assured is Rs.2,00,000/- and the policy duration is for fifteen years. The Ex C4 is the receipt issued by the Opposite Party No.2, shows that, the Complainant paid Rs.25,000/-.
Now the definite case of the Complainant is that, she entered into a Life Insurance contract upon the assurance of the Opposite Party No.1 with Opposite Party No.2 on 31.03.2007 paid Rs.25,000/- in cash and the Opposite Party issued the receipt. But after paying the yearly installment in the year 2007 Opposite Party No.1 assured the Complainant that the Complainant will receive the policy and other relevant documents for payment. Accordingly, the Complainant received the documents from the Opposite Party No.2. But after one year i.e., in the year 2008 when the Complainant approached the Opposite Party No.1 to pay the premium amount the Opposite Party No.1 represented the Complainant that she will receive a letter from Opposite Party No.2 but till date Complainant not received any letter and made the Complainant to run post to pillar for no fault of her. Neither the Opposite Parties are returning the premium amount nor making the Complainant to pay the premium amount covered under the aforesaid policy.
But on the other hand, the Opposite Party No.2 by appearing before this FORA filed a version, wherein, specifically stated that the Complainant had mentioned the mode of payment as cheque in the proposal form and issued a cheque bearing No.51476 the same has been signed by the Complainant and the cheque issued by the Complainant was dishonoured and consequently the policy was withdrawn. Except the oral averments nothing has been placed on record to show that the Complainant issued a cheque bearing No.51476 dated 22.02.2007 drawn on Indusind Bank in favour of Reliance Life Insurance Company Limited towards the first premium of the said policy and the same has been dishonoured. When the Complainant specifically contended that, she had not issued a cheque bearing No.51476 dated 22.02.2007 drawn on Indusind Bank in favour of the Reliance Life Insurance Company Limited and also denied the dishonour of the cheque, it is the bounden duty of the Opposite Party No.2 to prove beyond doubt that, the Complainant issued an alleged cheque in favour of the Opposite Party No.2 and the same has been dishonoured. No such material documents produced before this FORA to prove the same by the Opposite Party No.2. It is a settled position of law that, when the parties are having documents in their possession and not produced when the matter in dispute between the parties before the Court of Law, the adverse inference can be drawn against the parties that the contention raised by them is false. Even in the instant case, the Opposite Party No.2 by filing a version in bold letter it has written “as per annexure ‘C’” but there is no annexure produced before this FORA along with their version to show that the cheque issued by the Complainant was dishonoured. If at all, the cheque issued by the Complainant was dishonoured, the Opposite Party could have produced before this Forum to show that the cheque issued by the Complainant was dishonoured and consequently the policy was withdrawn. The dishonoured cheque and the memo issued by the banker is a primary piece of evidence to substantiate the contentions raised by the Opposite Party No.2. When the primary evidence available but not produced, one cannot base the case on heresy evidence. On the other hand, the Opposite Party No.2 in their notes of arguments stated that, there is no provision of payment of premium amount by way of cash. This argument cannot be accepted because we have perused the content of the Ex C4 i.e., the printed receipt issued by the Opposite Party No.2, wherein, the footnote mentioned as follows:-
“This receipt is issued subject to the clearance of the cheque if payment is made by cheque. Insurance protection shall only be provided effective from the date of acceptance of the risk”.
The above endorsement on the Ex C4 never says that the premium amount shall be paid in cheque only. Instead of throwing light on the above endorsement, the Opposite Party should have produced the dishonour of cheque along with the memo issued by the banker, then the matter would have been ended but no such attempt was made by the Opposite Party No.2 is fatal to their case.
Apart from the above, the Opposite Party No.1 despite of serving notice by paper publication remained absent and placed exparte. The entire allegations made by the Complainant is not controverted/challenged by the Opposite Party No.1. In the instant case, something is fishy because the Opposite Party No.2 not produced the material evidence as stated in their version. If a matter is contested by way of version then parties have to prove their respective case by producing evidence. But in the instant case, the version of the Opposite Party No.2 appears to be false and not acceptable without there being any tangible evidence. If at all, the Opposite Party No.2’s statement is genuine or truthful, he ought to have produced the cheque which got dishonoured. The question arises why the Opposite Party No.2 is hiding the dishonoured cheque with them if at all the same has been issued by the Complainant. It is the definite case of the Complainant that, she had not issued any cheque and the payment was made by cash and produced the receipt as per Ex C4. But the Opposite Party No.2 who filed a version denied the allegations made by the Complainant and stated that the Complainant paid the premium amount by way of cheque and not by cash when that being the case, the entire burden lies upon the Opposite Party No.2 to prove the same. The Opposite Parties miserably failed to show before this FORA that the Complainant paid the premium by way of cheque and not by cash. In the absence of the same, we hold that the Opposite Party No.2 inspite of receiving the premium amount of Rs.25,000/- from the Complainant by cash and also by issuing a policy bearing No.10613409 for a sum of Rs.2,00,000/- but not allowed to pay the premium for the 2nd year by withdrawing her policy without there being any fault on the part of the Complainant amounts to deficiency in service and unfair trade practice.
In view of the above discussion, we hereby direct the Opposite Party No.2 to allow the Complainant to pay the next premium amount by providing full benefit under the policy without charging any interest. Apart from that, the Opposite Party No.1 and 2 are jointly and severally directed to pay compensation of Rs.10,000/- for the deficiency of service and mental agony caused to the Complainant and also pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.2 is hereby directed to allow the Complainant to pay the next premium amount by providing full benefit under the policy without charging any interest. Opposite Party No.1 and 2 are jointly and severally directed to pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses to the Complainant. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Parties are directed to pay interest at the rate of 10% p.a. on the compensation and cost of Rs.11,000/- from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 13 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 19th day of December 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Mallika – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Original Policy document.
Ex C2 – 15.07.2010: Legal notice issued to the Complainant and her advocate by Opposite Party No.2.
Ex C3 – : Benefit Illustration for Reliance – Market Return Plan (Regular).
Ex C4 – : Receipt of Reliance Life Insurance.
Ex C5 - : Policy schedule.
Ex C6 – 12.08.2010: Reply to the legal notice dated 26.06.2010.
Ex C7 – 26.06.2010: Lawyer’s notice issued to the Opposite Parties on behalf of the Complainant along with receipts.
Ex C8 - : Unserved postal cover along with postal acknowledgement.
Witnesses examined on behalf of the Opposite Party No.2:
RW1 – Mr.Anil Roshan D’Silva, Branch Service Manager of the Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
Dated:19.12.2011 PRESIDENT
