This is an appeal filed by the appellants/Opposite Parties  against the order, dated 23.11.2011 passed by District Consumer Disputes Redressal Forum-II UT, Chandigarh (hereinafter to be called as District Forum only) vide which, it allowed the complaint in the following manner:-

            In the light of  above observations, we find a definite deficiency in service as well as unfair trade practice on the part of the OPs. Hence, we allow the present complaint and direct the OPs to refund the 90% of the premium charged by them from the complainant alongwith Rs.7,000/- as litigation costs.

            The above said order shall be complied within 30 days of its receipt; thereafter, OPs shall be liable for an interest @18% per annum on the aforesaid amount of refund, except for litigation expenses.  

2                                Briefly stated, the facts of the case, are that the complainant was running a business establishment in the name and style of M/s Malik Jewellers in  Chandigarh and got his shop insured with the Opposite Party in the month of May, 2010 after completion of all the requirements and answering the queries of  Opposite Parties, as mentioned in para 2(a)  of the complaint. Thereafter, Opposite Party No.2, on the basis of proposal form, forwarded computerized printed premium rate-with no terms and conditions shown thereon The complainant, accordingly paid premium of Rs.68,187/-, through cheque dated 12.5.2010 to the   Opposite Parties. Receipt thereof was issued by the   Opposite Parties on 13.5.2010. Thereafter, the complainant received the policy, and, on going through the said policy document, the complainant came to know of its being wrongly worded and with many omissions and errors.  It was stated that the complainant brought the same to the notice of the Opposite Parties, vide letter dated 22.5.2010, for rectification of the said policy. It was further stated that the complainant also objected to the inclusion of clause, wherein a condition of compulsory deduction of 25% of each and every claim was also incorporated.  It was alleged that the said clause was included in the policy, by the  Opposite Parties, arbitrarily, without his consent, knowledge or discussion.  Even they did not apprise the complainant of the same at the time of submission of proposal form. Thus they negated the basic principles of contract. It was further stated that he visited the office of the Opposite Parties frequently for the issuance of correct policy, as his bankers were pressing hard for the policy documents, for their record. The complainant sent letters dated 5.7.2010, 26.7.2010 and 6.8.2010 to the opposite parties.  The complainant even sent a letter to the Chairman of the  Opposite Parties, at New Delhi, with endorsement to the IRDA, but to no effect. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3                    In the joint reply the Opposite Parties, while admitting the factual matrix of the case stated that correct policy was issued to the complainant, as per the proposal form. However, as the complainant was dissatisfied with the description given in the proposal form, in order to satisfy him endorsement schedule forming part of the policy bearing No. 231102/48/2011/243 was issued vide endorsement dated 1.12.2010. As per the endorsement the condition of compulsory deductible 25% of each and every claim was deleted, from the inception of the policy. Thus the Opposite Parties redressed the grievances of the complainant in a most efficient and effective manner.   All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OPs nor they indulged into unfair trade practice.

4                    The parties led evidence, in support of their case.

5                    After hearing  Sh. B.K. Malik, Prop. of the complainant, and Counsel for the   Opposite Parties, and, on going through the evidence, on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order.

6                    Aggrieved by the order, passed by the learned District Forum, the appellants/  Opposite Parties, have filed the instant appeal. 

7                    We have heard the Counsel for the appellants and authorized representative of the respondent, and, have perused the record, carefully.

8                    The learned Counsel for the appellants/ Opposite Parties, submitted that the appellants/  Opposite Parties, have never denied the coverage and proposal submitted by the complainant. He further submitted that had any loss been caused to the complainant, during the subsistence of the policy, the   Opposite Parties would have indemnified it for the same.  He further submitted that no loss was caused to the complainant during the subsistence of the policy.  He further submitted that the District Forum totally ignored this fact, and directed the   Opposite Parties, to refund 90% of the premium charged for the insurance. He further submitted that, thus, the order of the District Forum is legally unsustainable.  He further submitted that moreover, the complainant, nowhere, in the complaint sought refund of 90% premium. It was further submitted that the Opposite Parties, vide letter dated 1.12.2010 conveyed the complainant regarding correction in the policy. He further submitted that the District Forum did not take into consideration this fact.

9                                On the contrary, the authorized representative of the respondent/complainant, submitted that the   Opposite Parties issued the policy by ignoring the proposal form filled by the complainant, and the necessary corrections in the same were made after the lapse of almost 7 months. Hence, there was deficiency on the part of the   Opposite Parties.

10                Admittedly, correction as per the proposal form, was made by the   Opposite Parties, by deleting the clause of compulsory deductible 25% of each and every claim, from the inception of the policy but the same was made after a lapse of approximately 7 months. Moreover, they did not completely rectify the other anomalies, pointed out by the complainant, in the policy, through its letter dated 22.5.2010.  Thus, there is, no doubt, that the Opposite Parties, were deficient, in rendering service, which caused a lot of mental agony and physical harassment to the complainant. For this deficient act of the   Opposite Parties the complainant was liable to be compensated.

11                             In order to ascertain, whether the complainant had been fairly compensated by the District Forum, while going through the prayer clause, made in the complaint, it was noticed by us, that no prayer regarding the refund of premium amount had been made, by the complainant. Rather the complainant prayed for the issuance of a direction to the opposite parties, to correct the policy documents, on the basis of proposal form and compensation for mental agony and physical harassment. Thus, it is clear that the complainant wanted to continue with the policy, subject to correction therein, as per the proposal form, and, as such, he did not pray for the refund of Premium because he was fully aware that a policy could not exist without premium. The District Forum granted the relief to the complainant, which was not claimed by it.  The Consumer Foras could not grant the relief, which was not claimed.  Had the District Forum gone through the prayer  clause of the complaint, it would not have fallen into an error in granting the relief, completely contrary to the one, claimed by the complainant, in the complaint. The order of the District Forum, thus, being illegal, is liable to be set aside. 

12                            For the reasons stated above, the appeal is accepted with no order as to costs. The order impugned is set aside.  The case is remanded back to the concerned District Forum, for deciding it afresh, on merits, on the basis of evidence already led, and after hearing the parties/their Counsel keeping view the relief claimed by the complainant in the complaint.

13                        The parties are directed to appear before the District Forum, on 4.5.2012 at 10.30 A.M.

14                             The record of the District Forum, alongwith certified copy of the order passed by this Commission, shall  be sent  to it , immediately.

15                            Copies of this order be sent to the parties, free of charge.