DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT
C. C. CASE NO-225/2016
Date of Filing: Date of Admission: Date of Disposal:
08.04.2016 25.04.2016 14.03.2018
Complainant = Vs. = Opposite Parties
Amit Khadolia, 1. M/s. Birla Sun Life Insurance Co. Ltd
S/o. Late Bajrang Lal Khodolia, One Indiabulls Centre Tower 1,
127, B.T. Road, 16th floor, Jupiter Mill Compound,
Saket nagar, 841, Senapati Bapat Marg,
1A, Yamuna (BL), Elphinstone Road, Mumbai-400013.
Kolkata- 700108. 2. M/s. Birla Sun Life Insurance Co. Ltd,
Kolkata Zonal Office,
39A, Harish Mukherjee Road, 1st floor,
Malik Court, Kolkata- 700025.
P R E S E N T :- Bankim Chandra Chattopadhyay……President.
:- Siddhartha Ganguli……………….Member.
:- Silpi Majumder………………………Member.
J U D G E M E N T
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not refund the principal amount along with interest to him till filing of this complaint.
The brief fact of the case of the Complainant is that he obtained one policy from the OPs on 28.03.2009 under monthly payment plan. After purchasing the same he started to pay monthly installments and till 10.11.2014 he paid a sum of Rs. 3,18,014/- in total to the OPs on different dates. The OPs issued premium payment receipt and certificate on 10.11.2014 confirming the payment. In the meantime the representative of the OPs namely Suman Das, Chandan Pakrasi and Prasenjit Seal came to his house who advised to give them the original policy certificate so that they can invest the accumulated fund of the Complainant in another attractive policy. On good faith the Complainant handed over the original policy copy to the said agent of the OPs. But they did not collect any signature of the Complainant on any paper for purchasing any other policy. After collecting the original policy certificate the said agent did not contact with the Complainant for a long period, rather they did not bother to attend the phone calls of the Complainant, therefore on 10.11.2014 the Complainant went at the Kolkata office of the OPs and asked the on-duty Officer about the status of the policy. After checking the said officer informed the Complainant that his policy had already been terminated and surrendered and a new policy having No-006371575 was purchased in the name of the Complainant for Rs.90,000/-. Upon hearing the same the Complainant got mental shock and wanted to know about the balance fund because till date he paid a sum of Rs.3,18,014/- towards the policy. The Complainant was informed by the officer that his balance fund is retained in another account, but did not disclose the actual position of the Complainant’s balance fund. The Complainant did not authorize or permit to the OPs’ agents for surrender of his policy and also did not put any signature on any paper/surrender form. Therefore, it is very much clear that the Complainant was cheated by the OPs and such action of the OPs suffers from deficiency in service. After knowing the facts of new policy and entire incident the Complainant immediately made written application to the Kolkata office of the OPs on 11.11.2014. Though the Complainant did not put his signature on any form, so he mentioned the fact of forged signature in the concerned application, the Complainant was asked by the OPs to submit necessary forms and accordingly the Complainant submitted a letter of undertaking along with consent form for cancellation of the policy on 02.12.2014. When the Complainant asked the OPs to return back the balance amount of the policy along with interest, the officer of the OPs refused to pay the balance amount of Rs.2,18,014/- along with interest and replied to ask the Superior Authority of the OPs. On several occasions the Complainant went to the office of the OPs and requested to release the balance amount of Rs.2,18,014/- with accumulated interest and benefits but the concerned officer always refused and neglected deliberately to help the Complainant or to refund back the amount as sought for. Finding no other alternative the Complainant served legal notice upon the OPs on 17.08.2015 instructing to pay the balance accumulated amount with upto date interest, but no effect in spite of receipt of the notice. As the OPs have refused and neglected to refund the said amount, due to this reason the Complainant is facing financial loss and damage day by day. Having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to refund a sum of Rs.2,18,014/- with upto date accumulated interest, to pay compensation to the tune of Rs. 1,00,000/- due to harassment, mental agony and pain and litigation cost to him.
The petition of complaint have been contested by the OPs by filing written version stating that as it is not a consumer dispute, hence the complaint does not fall within the meaning of consumer dispute under the C.P. Act. According to the OPs, the allegations as made out by the Complainant are baseless, misconceived and motivated one. In the petition of complaint the Complainant has mentioned that he was cheated by the OPs, hence in view of the settled law where fraud, forgery and cheating are involved, the said disputed factual questions cannot be adjudicated upon by the Ld. Forum as it is required elaborate evidence and examination. It is not mentioned by the Complainant that he had voluntarily applied for the policies for the purpose of investment and insurance after fully knowing well about the terms and conditions of the policy. Though there is provision of ‘Free Look Period’ based on which the Complainant was at liberty to reject the policy within 15 days from the date of receipt of the policy document, but the Complainant did not bother to intimate the same to the OPs within the stipulated period, rather he did not deny and raise any objection to accept the policy during the ‘Free Look Period’. After expiry of the ‘Free Look Period’ as the Complainant did not contact with the OPs, it was presumed that contract with the complainant was legally concluded. After knowing the terms and conditions of the policy the Complainant paid initial premium for the said policy. It is also submitted by the OPs that the contents of the proposal form were explained to the Complainant and he was furnished the information and after fully agreed with the contents and the terms and the conditions of the plan the Complainant purchased the same. Being satisfied with the terms and conditions the Complainant filled up the said form along with payment of initial annual premium. The proposal form was evaluated by the OPs and on the basis of the information provided by the Complainant. After processing proposal form of the Complainant the OPs issued the insurance policy in his failure. Thereafter, the policy documents were dispatched to the Complainant’s address, from which it is evident that the Complainant received the same. It was written by the OPs that in case of dis- satisfaction with the terms and conditions of the policy the Complainant should have return the policy within 15 days from the date of receipt of the same and the Complainant was entitled for cancellation pursuant to the terms and conditions of the policy. After taking consent from the Complainant subsequent step was taken by the OPs, hence the Complainant is estopped challenging the terms and conditions of the concluded contract. As the Complainant has accepted the entire terms and conditions of the policy, the same is binding upon the both parties and the Complainant cannot travel beyond the said terms and conditions. According to the OPs, having no merit this complaint is liable to be dismissed with cost.
The Complainant has adduced evidence on affidavit along with some papers and documents in support of his contention. The Complainant and the OPs have filed brief notes of argument.
We have carefully perused the record; documents and papers filed by the contesting parties and heard argument at length advanced by the Ld. Counsel for the Complainant. Be it mentioned that we have also gone through the written version, rulings on which the OPs have placed reliance and the BNA by the OPs. It is seen by us that admittedly the Complainant purchased a policy from the OPs under monthly payment plan on 28.03.09. But the neither the original policy copy nor the photo copy of the same has been filed by the Complainant in this regard. Therefore, it is very difficult for us to hold that the Complainant purchased the same. Though the OPs have admitted the same, hence it can be said that purchase of the policy is admitted. It is stated by the Complainant that being assured with the verbal assurance of the so-called unknown agents of the OPs the original policy copy was handed over to them, but in this respect no evidence is adduced by the Complainant. There is no fruitful answer is forthcoming as to why the Complainant handed over the same to the agents of the OPs without taking any receipt from them, no corroborative evidence is adduce in this regard. Surprisingly without keeping a photo copy of the said policy why the Complainant handed over the original policy copy to the said agents, such action cannot be supported in the eye of law because the Complainant/purchaser of the policy should be well aware i.e. a ‘buyer beware’. As the Complainant has failed to keep/ preserve any photocopy of the original policy copy before handing over the original policy to the agents, hence the Complainant is under obligation to face the adverse consequence due to such in action. Moreover, by filing this complaint the Complainant did not take any step by filing a separate application praying for direction upon the OPs for production of the said original policy in spite of existence of specific provisions in the C.P. Act. Next, the Complainant has alleged that the OPs have forged his signature in the policy copy. To prove the forged signature the Complainant did not take any step by filing a petition seeking an opinion from the hand writing expert. Until and unless expert opinion is forthcoming we cannot say that the signature of the Complainant was forged by the OPs. For this reason, as the Complainant has miserably failed to prove his complaint by adducing corroborative evidence as well as taking proper steps in accordance with law, hence the complaint fails.
It is the settled legal position that onus lies upon the Complainant to prove his case at first as he is asserted the same and if he is succeeded to prove the same then only the onus shifts upon the OPs. But in the instant complaint, the Complainant has failed to prove his case.
Going by the foregoing discussion hence it is ordered, that the Consumer Complaint No- 225/2016 is hereby dismissed on contest without any cost.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member Member President
Dictated & Corrected by me.
