BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 15^th day of March 2018

Filed on : 21-04-2015

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.247/2015

Between

1. K.J. Vincent Pious, : Complainants

S/o. Late Joseph, (By Adv. M.K. Robinraj, 5A, IInd

Kunnanattu house, Karthedom, floor, Jewel Arcade Layam road,

Malippuram P.O., Ernakulam. Ernakulam)

2. V.A. Rani,

W/o. K.J. Vincent Pious,

Kunnanattu house,

Karthedom, Malippuram P.O.,

Ernakulam.

3. V. Amal, S/o. K.J. Vincent

Pious, Kunnanattu house,

Karthedom, Malippuram P.O.,

Ernakulam.

And

1. M/s. Cholamandalam MS : Opposite parties

General Insurance Company Ltd., (1^st O.P. by Adv. Jacob Mathew P,

2^nd Floor, Dare House, Mathews Jacob & Associates,

2NSC Bose Road, 61-HB, Panampilly Nagar, Kochi-36)

Chennai-600 001,

rep. by its Managing Director.

2. The South Indian Bank Ltd., (2^nd and 3^rd O.P. By Adv. P.A.Augustine

Ernakulam North Branch, 91,DD Tex World, Market road,

Door No. 41/3611-A, Kochi-11)

Old Railway Station Road,

Ernakulam, Kochi-682 018,

rep. by its Branch Manager.

3. The South Indian Bank Ltd.,

Registered Office, Thrissur,

SIB house, Quarters, P.B. No. 28,

Thrissur-680 001.,

rep. by its Managing Director.

O R D E R

Cherian K. Kuriakose, President.

Complainant's case

2. The complainants are husband, wife and son. The 1^st complainant Shri. Vincent Pious had an account in M/s. South Indian bank, Ernakulam North Branch. The 1^st opposite party is M/s. Cholamandalam Insurance company. The 2^nd opposite party bank and the 1^st opposite party Insurance company had floated an Insurance scheme for the account holders of the 2^nd opposite party. The complainant also had joined in that group insurance scheme meant for the account holders of the 2^nd opposite party. The scheme is known as group health master policy. According to the complainant the group health Insurance scheme is continuing one, the facility to renew the policy every year through the 2^nd opposite party bank.

The complainant fascinated by the promises given in the scheme had proposed a policy with his wife and son as beneficiary. The policy was issued by the 1^st opposite party covering the 3 persons, who are the complainants herein, commencing from 05-04-2011 till 04-04-2014 for a continuous period of 3 years. The complainant was entitled to get insurance coverage of Rs. 2,00,000/-. The insurance certificate numbers given to the complainant for 2012, 2013 and 2014 were the same with an addition of the number of the year of continuity. The attracted part of the scheme was that there was many continuity benefit for the policy year after year. The complainant was very prompt in getting the policy renewed and he used to give instruction to the bank to remit the said amount to the insurance company for renewing the said continuing policy. Accordingly the bank used to remit the amount and the policy was renewed from year to year. In order to renew the policy from the year 2014 to 2015 the complainant had remitted Rs. 4,200/- on 27-03-2014 itself to his bank account and as before gave specific instruction to the manager of the 2^nd opposite party bank and its concerned staff to transfer the required premium amount to the 1^st opposite party Insurance company in order to renew the group Insurance Scheme. Despite repeated requests made by the complainant to the 2^nd opposite party bank to remit the premium for renewal of the policy, the amount was not remitted actually. The non-payment of the premium by the 2^nd opposite party to the 1^st opposite party and consequential failure on the part of the1st opposite party to renew the policy was with the cruel intention in order to deny the continuity benefit obtainable to the complainant for the 4^th consecutive renewal. The 1^st and 2^nd opposite parties have collusively and with malicious intention for cheating the complainants. The opposite parties 1 and 2 have also committed a criminal breath of trust. The complainant therefore had issued a lawyer notice to the opposite parties pointing out the deficiency of service and claiming out the compensation which did not yield any result. Hence the complainant pray for a direction to the opposite parties to renew the policy for the period from 2014 to 2015 as per 4^th consecutive year with all the continuity benefit and to permit the complainant to pay the premium for the 4^th consecutive year with continuity benefit. The complainant also prayed for awarding compensation for the deficiency in service.

3. Notices were issued to the opposite parties who appeared and contested the matter by filing the version contending inter-alia as follows:

4. The 1^st opposite party M/s. Cholamandalam Insurance Company in their version inter-alia contended that the continuation of the policy would depend on the payment of the premium continuously every year. The continuing benefit will be available to the complainant only if the premium paid on time and that was not done in this case. Even though the complainant alleged that he paid Rs. 4,200/- in his account as advised by the manager of the 2^nd opposite party. The complainant is not seen to have given any instruction to transfer the required premium to the 1^st opposite party. Therefore the policy was not issued in the year 2014. So far the 1^st opposite party is concerned, as there was no application for renewal and no payment of the premium, no policy could have been issued in favour of the complainant for the year 2014 -2015. The policy had expired on 04-04-2014 and in the absence of continued payment of premium the 1^st opposite party cannot be held liable for any deficiency in service or alleged unfair trade practice.

5. The 2^nd and 3^rd opposite parties filed a joint version contending inter-alia as follows:

6. The complainant has no cause of action against the 2^nd and 3^rd opposite parties. There is no relationship between the complainant and the opposite party as a consumer as service provider in the instant matter. It is not good to say that the 1^st opposite party is doing group Insurance Scheme for all the account holders of the 2^nd opposite party. Up to the year 2011 the 2^nd opposite party used to provide his services to those office customers who specifically requested for the assistance, in writing to enable them to join the group insurance scheme run by the 1^st opposite party. In order to renew the policy, the policy holder has submitted an application form for renewal of the insurance policy and the bank inturn sends the application signed to the Insurance Company and required amount remitted by the party in his SB account to the 1^st opposite party. It was not compulsory deposit so far as the complainant is concerned and it was only the sole discretion of the account holders of the bank whether to join the insurance scheme or not. The 2^nd opposite party bank has nothing to do with the contract of insurance between the complainant and opposite party No. 1. The 2^nd opposite party was only a facilitator who would act on the advice of the complainant. The complainant used to give instruction to the 1^st opposite party to remit the amount payable to the Insurance Company for renewing the continuing policy and as whether there were instruction, the 2^nd opposite party used to remit the amount to get the policy renewed from year to year when the annual premium is due, the policy holder has to submit an application for renewal of the insurance policy and the opposite party bank in turn sent the signed application given by the customer to the insurance company and transfer of the required amount of premium provided by the party. The complainant did not give any specific instruction to the manager of the 2^nd opposite party to transfer the required premium amounts to the 1^st opposite party for the year 2014 -2015. The allegation of criminal intention of bank and allegation of cheating and breach of trust aired by the complainant are denied and are untenable. The opposite party bank is not liable to pay any compensation as there were any deficiency in service on the part of the opposite party. The complaint is therefore sought to be dismissed.

7. On the above pleadings the following issues were settled for consideration.

i. Whether the complainant had proved that there was any deficiency in service, or unfair trade practice on the part of the opposite parties as alleged?

ii. Reliefs and costs

8. The evidence in this case consists of oral evidence of the 1^st complainant as PW1 and Exbts. A1 to A8 on the side of the complainant and Exbts. B1 to B11 on the side of the opposite party in addition to the oral evidence of DW1, the manager of the 2^nd opposite party.

9. The complainant produced Exbt. A1 photo copy of certificate of insurance issued by the 1^st opposite party in favour of the complainant during April 2011 to 2012 April. Exbt. A2 is the certificate of insurance (photo copy) covering the period 5^th April 2012 to 4^th April 2013. Exbt. A3 is again a certificate of insurance issued in favour of the complainant covering the period (5^th April 2013 to 4^th April 2014) So far, so good there is no dispute with regard to the payments of premium during these 3 years and the consequential issue of policy by the 1^st opposite party, has proved by Exbt. A1 to A3. The soul of contention is with regard to the payment in the 4th year. According to the opposite party who admitted that the complainant had made a payment of Rs. 4,200/- in the year 2014 March, denying any instruction by the complainant to informing the amount to the 1^st opposite party by way of insurance premium. It was also contended that the complainant did not give any application to the 2^nd opposite party to be forwarded to the 1^st opposite party for the renewal of the policy which had due to expire in the month of April 2014.

10. In order to substantiate the case of the opposite party bank, the opposite party had produced Exbt. B8 and B9 documents which were the instructions given by the complainant in writing the prescribed form to the 2^nd opposite party bank. During the course of argument the complainants who argued this case personally, had denied the executions of Exbts. B8 and B9 , produced by the opposite party bank. We have gone through Exbt. B8 and B9 wherein it is seen that the signature of the proposer is found at the appropriate place where the signature was required. The contention of the complainant that the signature allegedly seen in Exbt. B8 and B9 did not belong to him, cannot be accepted as the complainant had never raised such a contention in his complaint. The opposite party bank having produced Exbt. B8 and B9 documents, it is imperative that the complainant should have produced an application with request to transfer the fund to the 1^st opposite party for the payment of premium for the year 2014 -2015. It is the case of the complainant in his complaint that the complainant used to give instruction to the bank to remit the said amount to the Insurance Company for renewing the said continuing policy. During the course of argument the complainant argued that he had never given Exbts. B8 and B9 to the opposite party bank as it was not necessary, since the general instruction were already given at the time of joining the scheme to transmit the required premium every year from the account of the complainant. If such an argument is to be taken as its face value we have to ignore the statement given by the complainant in his pleadings that he used to give instruction to the bank to remit the premium or renewing the continuing policy. The documentary evidence in this case produced by the complainant as Exbts. B8 and B9 would prove that the complainant used to give specific instruction given year by year and during the year 2014 he failed to give any such specific instruction. In the absence of production of a copy of the alleged instruction so given by the complainant, the complainant ought to have been filed an application to direct the opposite parties to produce the alleged instructions given by him to the bank, specified date on which it was given to the bank, the inward register kept in the bank could have been best evidence to substantiate the contention that the complainant had given specific instruction to the 2^nd opposite party bank to make the payment. Having not taken any steps to get those documents before the Forum we find that the complainant cannot succeed in his case that there was deficiency in the part of the 2nd opposite party.

11. In the absence of any evidence to prove that the required premium was paid to the 1^st opposite party, insurance company, they can not be saddled with the responsibility or liability to renew the policy as continuing policy. In view of the fact that it is an admitted case of all parties concerned that there was no payment of premium, consequently we find that no deficiency in service on the part of the 1^st opposite party as well.

12. The complainant in his complaint had specifically alleged that the 1^st and 2^nd opposite parties have committed breach of trust and had cheated the complainant. In view of such serious allegations in the pleading, generally this complaint ought not have been filed before this Forum, as the Consumer Forum is not a place whether the question of cheating and the question of commission of breach of trust is to be evaluated or investigated, the complainant may, if he is still aggrieved, to approach the appropriate Forum designed to specifically for that purpose. So far this Forum is concerned we find that the complainant had failed to establish a case of deficiency in service or unfairness in the practice followed by the opposite parties as alleged. The issue is therefore found against the complainant.

13. Having found issue No. 1 in favour of the opposite parties we find that the complaint is liable to be dismissed and is without prejudice to the right of the complainant to have his grievances in respect of the allegation of cheating and commission of breach of trust in the appropriate Forum designed for the above purpose by the statutory on enactment.

14. In the result, complaint stands dismissed.

Pronounced in the open Forum on this the 15^th day of March 2018

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt.A1 : Copy of certificate of insurance from

05-04-2011 to 04-04-2012

A2 : “ “ from 05-04-2012 to 04-04-2013

A3 : “ “ from 05-04-2013 to 04-04-2014

A4 : copy of a page of bank pass book

A5 : Copy of legal notice dt. 24-07-2014

A6 : True copy of notice

A7 : True copy of SBI Chola Health Plan

A8 : True copy of brochure

Opposite party's exhibits:

Exbt. B1 : Application for group Health floater policy

B2 : Application for Group Health Floater

policy of Cholamandalam MS

General Insurance Company

B3 : Copy of I.D proof

B4 : True copy of Group Health

Insurance Policy

B5 : True copy of annexure

B6 : True copy of questionnaire

B7 : Copy of letter dt. 21-08-2014

B8 : Copy of letter dt. 19-03-2012

A9 : Copy of letter dt. 27-03-2013

A10 : Attested true copy of notification

dt. 16-02-2013

A11 : Attested true copy of certificate

dt. 05-04-2011

Depositions:

PW1 : Vincent Pious

DW1 : Ms. Karthika S

Copy of order despatched on : By Post: By Hand: