Orissa

Rayagada

CC/80/2016

Sri Basantha Kumar Patra - Complainant(s)

Versus

M/s Modrn Investment and Traders Pvt., - Opp.Party(s)

Self

17 Sep 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 80 / 2016.                                  Date.      17   .     9  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,              President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Basanta Kumar Patra,  S/O: Dhurba Charan Patra,  Native of Shalkota and presently residing at Rayagada,  Po/Dist: Rayagada,  State:  Odisha,    Pin No. 765 001.

                                                                                                …. Complainant.

Versus.

1.The  Manager, M/S. Modern Investment and Traders Pvt. Ltd.,  Po/Dist: Rayagada,  Pin No. 765 001. State:  Odisha .

 

2. The Manager, DLF Pramerica Insurance  Insurance Co. Ltd., 4^th. Floor, Building No. 9, Tower-B, Cyber city, DLF city phase-III, Gurgaon -122002.

                                                                                                … Opposite parties.

Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps No.1:- Set exparte.

For the O.P. No.2:- Sri K.Chakrapani, Advocate, Rayagada.

 

                                                            JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of deposited amount a sum Rs.21,500.00 vide  policy  No.00229887 with  accrued  interest  for which  the complainant  sought for redressal of the grievances raised by the complainant.

On being noticed the O.P No.1  neither entering in to appear before the forum nor filed their  written version inspite of more than  18 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.  Observing lapses of around 2 years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.1. The action of the O.P No.1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P.  No.1 set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

 

On being noticed the O.P No. 2   appeared through their learned counsels and filed written version refuting allegation made against them.  The O.P No.  2  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps No.  2 . Hence the O.P No. 2  prays the forum to dismiss the case against  them  to meet the ends of justice.

  Heard arguments from the learned counsels for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                         FINDINGS.

Undisputedly  the O.P No.2  had received  a sum  of Rs.21,300.00  from the complainant on  Dt.14.3.2013 and  issued  “Future Idols Gold” 20 years   pay  policy  in favour of the complainant  vide  policy  No. 229887. The policy was issued  to the complainant  having date of  commencement  from Dt. 19.3.2013. The said policy annual premium amounting to Rs. 21,300.00.   The said policy was due for premium on Dt. 19.3.2014 and the complainant failed to pay the renewal premium  even after expiry of grace period.  The  complainant made some payment  under the said policy in the month May, 2014 and since the policy was in the lapsed status, the premium was not adjusted in the policy of the complainant.  Therefore after the complainant requested to the O.P. to refund the renewal premium  amount paid by the complainant  in the year 2014 and the request of the complainant was successfully processed and the renewal premium was duly refunded to the complainant. But the O.P.  No.2 had not refunded  the first premium a sum of Rs. 21,300.00 which was deposited on   Dt. 19.3.2013. So the  complainant   requested  the O.P No.2   to return the first premium   deposited amount with interest. Due non  receipt  of any  response from the O.P No.2 the complainant  has  filed  C.C. case. Hence this complaint  petition.

The O.P. No. 2   (Insurance  Co.) in their written  version contended that  as required under the IRDA (Protection of policy holders interest) Regulations, 2002, the policy terms and conditions specifically   provides for a free look period  of 15 days  during which period the policy  owner is entitled to review the policy terms and conditions and request  for a cancellation if dissatisfied with the terms and condition of the policy.

The O.P. No. 2   (Insurance  Co.) in their written  version  contended that  the complainant had failed to pay the premium amount due on Dt. 19.3.2014   therefore status of said policy  was  changed  to lapse and  same was  also intimated  to the complainant vide  letter  Dt. 18.04.2014 .  In the case of  General   Assurance Society  Ltd. Vrs. Chandmull Join 1966  (3)  SCR 500 . It was observed as under “In interpreting  documents relating to a contract of insurance the duty of the forum is to interpret the words  in which the  contract is expressed by the  parties, because it is not for the forum to make a new contract, however reasonable, if the parties have  not  made it themselves” Similarly, in the case of  Oriental Insurance Co. Ltd.Vrs. Samavanalalur Primary Agricultural Co-op, Bank  AIR- 2000 SC-10 it was observed as under:- “The insurance policy has to be construed having reference only to the stipulations contained  in  it and no artificial farfetched meaning could be given  to the words appearing  in it.  In the case of Polymat India P.  Ltd and Anr. Vrs. National Insurance Co. Ltd. And Ors.  AIR 2005 SC 286   it was observed    as under:   “The  terms of the  contract  have to be construed  strictly without altering the nature of the contract as it may affect the interest of parties adversely.

The  O.P. No.2   relied citation  in their written version  it is held and reported in 2009(5) SCC-599 in the case of Vikram Greentech India Ltd.  Vrs. New India Assurance Co. Ltd where in the Hon’ble Supreme Court  observed   “An insurance contract  is a species of commercial transactions and must  be construed like any other contract to its own terms and by itself.  In a contract of insurance, there is requirement of uberrima fides i.e. good  faith on the part of the insured.  Except that,   other respects, there is no difference between a contract of insurance and pay other contract. The four essentials of a contract  of insurance are, (1) the definition of the risk, (ii) the  duration of the risk, (iii) the premium and (iv) the amount of insurance.  Since upon issuance of insurance  policy, the insurer  undertakes to indemnify the loss  suffered  by the insured on account of risks covered  by  the insurance  policy, its terms have to be strictly construed to determine the extent of  liability of the insurer. The endeavor of the court  must always be to interpret the words  in which the contract is expressed by the  parties.  The court while construing  the terms of policy is not expected to venture into extra  liberalism that  may result in re-writing  the contract or substituting  the terms which were not intended   the parties. The insured  can not claim anything  more than what is covered by the insurance policy”.   

The O.P. No. 2   (Insurance  Co.) in their written  version  contended   that the said policy stood lapsed as per the terms and conditions of the policy  and due to non payment of  renewal premium.  Hence complainant should have no grievance  against the O.P No.2(Insurance  Co.) and  no cause of action stands existing and the present complaint is liable to be dismissed due to lack of cause of action.

The  learned counsel  for the O.P.  No.2 (Insurance)  vehemently advanced arguments on the ground that the complainant after payment of first  premium  did not pay any renewal premium  and as such not entitled for any claim.

The Ist. Question whether the complainant qualifies to be a Consumer?   The contention that the complaint is not maintainable under the C.P. Act  is longer res integra  inview of the decisions of the Hon’ble National Commission, New Delhi  in case of Neelavasant  Raje  Vrs. Amagh Industries and Another  reported  in 1993 (3) CPR page No.343 where in  it has been held that where a company or firm  invites deposits promising attractive rate of interest, it amounts  to rendering  of financial  services as it receives deposits  from customers/consumers and pays interest  therein. The consideration for the  hiring of the service is the payment of deposit  amount  so as to enable the company to invest or utilize the money for  earning profits.  Therefore the deposit holder the complainant  would be a consumer within the meaning of the  Section 2(1)(d) of the C.P. Act. Further when a deposit has been accepted to be repaid with interest and admissible  benefits.   It is a service to be rendered and failure  to repay the amount, amounts to deficiency in service under the C.P. Act. The O.P No.2(Insurance) in the instant case accepted the deposit and agreed to render service by way of  returning the principal  with  interest and admissible benefits.  The consideration being the   deposit amount. Having regard to the aforesaid circumstances of the case we do not find much force in the contention of the  O.P.  as the complaint petition is not maintainable under the C.P. Act.

There is no dispute about the premium a sum of Rs.21,500.00 made by the complainant to the O.P. on Dt. 14.3.2013.  This forum perused the papers submitted by the  complainant marked as  Annexure-I. On perusal of the  Annexure-I  this forum found  that the complainant had deposited an amount of Rs. 21,500.00  on Dt. 14.3.2013  in the office of the  O.P. No.1. It is evident  from the Annexures filed and  pleadings put  forward that the  O.P No.2   had accepted  the deposits promising to  pay  interest and admissible benefits after completion of the tenure  of Twenty  years  fixing annual  installment of Rs. 21,500.00.  It is their duty to  refund deposited  amount  to the complainant along with interest and admissible benefits failing do so is  an act of  deficiency of service.  In the instant case the complainant  from the  very beginning  not interested to continue  to  invest his money.

As argued by the complainant  in the present case at the time of  proposal form sign the complainant was asked  by the agent  of the O.Ps to  sign on the doted lines without explaining  the benefits of the  scheme and  the entire proposal form was written by the agent in his own hand writing.  The agents responsibility is clearly explained in the IRDA instructions and also U/S- 182 and 212 of the contract act. Here the agents has failed to discharge the duty as an agent and in order to get his income as commission has falsely represented the rural folks to divert their money.  Hence the OPs had clearly violated the  norms  issued by the IRDA from time to time and as such the OP No.2(Insurance  Co.) is  liable to refund  the amount paid by the complainant. 

 In view of the discussion above it is found to be an  unfair  trade practice made by the agent of the  O.Ps.  The O.Ps have introduced the agent to do the unfair deal with the rural and urban people as seen from the Complaint petition and  argument advanced  by him,   as such the complainant is  entitled to get refund of the entire amount deposited by the complainant in the said scheme so as to enable them to invest the same with their choice.

Hence  to  meet the  ends of justice, the following order is passed.                                                                                    ORDER.

In  resultant  the complaint petition stands  allowed  in  part  on contest against the O.Ps.

The O.P  No.2 (Insurance Co.)  is  ordered to  refund the deposited amount  Rs.21,300/-  to  the complainant .

The O.P. No.1 is directed to refer the matter to the O.P. No.2  for early compliance of the  above order.

The O.P  No.2 (Insurance  Co. ) is ordered to comply the above directions within 60 days from the date of receipt of this order. 

Dictated and corrected by me

Pronounced on this        17^th.   . day  of      September, 2018.

 

Member.                                             Member.                                                         President