STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 72 of 2013 |
Date of Institution | : | 19.02.2013 |
Date of Decision | : | 01.03.2013 |
H.D.F.C. Ergo General Insurance Company Limited, through its Authorized Signatory, 6th Leela Business Park, Andheri Kurla Road, Andheri East, Mumbai – 400 059, through S.C. Vats.
2nd Address: -
Ramon House, H.T. Parekh Marg, Backbay Reclamation, Mumbai – 400 020.
3rd Address: -
S.C.F. No. 36, 1st Floor, Phase-XI, Mohali, Punjab.
……Appellant/Opposite Party No.2
V e r s u s
1. Partap Singh son of Shri Paras Ram, resident of 1716, Phase-II, Ram Darbar, Chandigarh.
....Respondent no.1/complainant no.1
2. HDFC Bank Limited, Card Services Division, through its Deputy Manager, SCO No.178, Sector 38-B, Chandigarh.
….Respondent no.2/Opposite Party No.1
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Paras Money Goyal, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 01.10.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed Opposite Parties No.1 and 2, as under:-
“In the present circumstances, the present complaint deserves to succeed against both the Parties i.e. Opposite Party No. 1 and 2, for the reasons mentioned above. Hence, the present complaint is allowed, jointly and severally, qua Opposite Party No.1 and Opposite Party No.2 and the Opposite Parties are directed to: -
[a] To pay Rs.15,000/- as compensation on account of deficiency in service and causing mental harassment to the Complainant;
[b] To pay Rs.7,000/- as cost of litigation;
The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] of para 10 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of the present complaint i.e. 28.11.2011, till it is paid”.
2. The facts, in brief, are that the complainant was maintaining an account, with the HDFC Bank, Sector 38-B, Chandigarh. Opposite Party No.1 (now respondent no.2), on its own, issued a credit card, in the name of the complainant, and sent one Titanium International Credit Card, which he never used, for any purchase transaction. The complainant received a telephone call, from the office of Opposite Party No.1, informing him that the Bank was giving HDFC Ergo Insurance Policy, to its Credit Card holders and that its representative had all the data and information, regarding his financial position. The complainant claimed that he turned down the offer of the representative of Opposite Party No.1, on the ground, that he was not interested in any Policy. Despite turning down the Offer, representative of Opposite Party No.1, on its own, on 25.2.2011, sent an intimation, regarding the Policy, issued to the complainant, and demanded a premium of Rs.9,613/-. The Policy was effective from 23.3.2011 to 22.2.2011. Thereafter, Opposite Party No.1,issued Credit Card Statement dated 26.3.2011, for the first time, showing an amount of Rs.1,31,98/-, due towards the premium of the Policy issued. Later on, the complainant received another Credit Card Statement dated 6.4.2011, in which the Opposite Parties, had asked for a late fee, alongwith other charges, immediately. Thereafter, the complainant started receiving telephonic calls from the Opposite Parties, on his mobile phone, threatening him to pay the amount due, or face a legal action. The complainant tried to convince the Opposite Parties, that neither he had given any information nor any declaration for issuance of the HDFC Ergo Insurance Policy, as no documents were supplied to him, nor any consent was given by him. The complainant refused to pay any amount, as shown, in his credit card statements, on account of illegal dues, levied without his consent. The Opposite Parties served a legal notice on 12.7.2011, demanding a sum of Rs.12,362.57Ps, within a period of 07 days. The said legal notice was duly replied to by the Counsel of the complainant, on 26.8.2011, through which the illegal demand was asked to be withdrawn.
3. It was stated that the Opposite Parties issued a notice under Section 62 of the Arbitration and Conciliation Act 1996, dated 15.10.2011, for amicable settlement of the account. The complainant, on receipt of this notice, visited the office of Opposite Party No.1, where its representative, threatened him to face the criminal action of cheating, in case, he did not pay the amount, shown, in his credit card statements, aforesaid. The complainant, thereafter, also received notices dated 2.11.2011 and 10.11.2011 (Annexures C-7 and C-8), as also threatening calls, from different mobile numbers. It was further stated that three unidentified persons, claiming to be the recovery agents of the Opposite Parties, visited the house of the complainant, on 22.11.2011, and threatened his wife of dire consequences, if he (complainant) failed to pay the dues outstanding. It was further stated that the issuance of Insurance Policy, in the name of the complainant, without there being any request, and thereafter debiting the amount to his credit card account, tantamounted to unfair trade practice and deficiency in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to stop demanding Rs.15,304/-, on account of illegal issuance of the Insurance Policy, in question; pay compensation, in the sum of Rs.1 lac, for adopting unfair trade practice, deficiency, in rendering service and causing mental agony & physical harassment, to the complainant; and cost of litigation, to the tune of Rs.7,700/-.
4. Opposite Party No.1 (now respondent no.2), in its written version, pleaded that the complainant had not approached the District Forum, with clean hands. It was stated that the credit card was issued, in favour of the complainant, as he duly applied for the same. It was further stated that the dispute, if any, had arisen out of a contractual relationship, with the HDFC Ergo General Insurance Co. Limited, i.e. Opposite Party No.2 (now appellant) which is a separate entity, the Insurance Policy of which has been availed of by the complainant. It was further stated that the Master Card Gold Personal, issued in favour of the complainant was upgraded to Master Card Titanium. It was further stated that since, the complainant availed of Health Insurance Policy No.50614462 vide Loan No.2964785 from Opposite Party No.2, and Rs.9,613/-, were deducted, on 23.02.2011, from his credit card account. It was further stated that the Insurance Policy was issued with the consent of the complainant, obtained on the telephone. It was further stated that before issuing the said Policy, there was a telephonic conversation, between Opposite Party No.1, and the complainant, the CD whereof, was attached. It was further stated that this recorded conversation was sufficient, for the Bank or the Insurance Company, to treat the same, as consent of the customer. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, in its written version, took up the similar pleas/objections, as were taken up by Opposite Party No.1, in its written version. It was stated that the Policy was extended, in favour of the complainant, only after his name was transferred to the answering Opposite Party. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.2.
9. Alongwith the appeal, an application for condonation of delay of 94 days, in filing the same (appeal), has been moved. The grounds, set up in the application, are to the effect, that the applicant/appellant, for the first time came to know about the passing of the impugned order dated 01.10.2012, on 30.10.2012. It was stated that the information, with regard to the same was given to the Counsel for the applicant/appellant. It was further stated that, thereafter, instructions were sought by the Counsel, from the Offices of the Opposite Parties, located at various far off places, as a result whereof, the delay of 94 days, in filing the appeal occurred. It was further stated that due to the aforesaid reasons, the appeal could not be filed, in time. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
10. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the evidence, and record of the case, carefully.
11. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 94 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”
12. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-
“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.”
13. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.
14. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”
15. In Bikram Dass Vs. Financial Commissioner and others, AIR 1977, S.C. 1221, it was held as under:-
“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”
16. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”
17. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear that the material part of the language thereof is pari-materia to Section 5 of the Limitation Act, 1963. It has been admitted by the applicant/appellant, that copy of the order impugned was received by its office, on 30.10.2012. The version set up, by the applicant/appellant, in the application that, on receipt of copy of the order impugned, the Counsel was intimated and the instructions from various authorities of the Offices of the Opposite Parties, located at various far off places were sought, which took sufficient time, resulting into delay of 94 days, in filing the appeal, is not established, through any cogent material. The averments, contained in the application, are only vague and indefinite. If, after receiving the certified copy of the order impugned, the Officers/Officials of Opposite Party No.2, did not bother that the appeal has to be filed, within the period of limitation, as envisaged by Section 24-A of the Act, and, on the other hand, acted in a highly negligent and irresponsible manner, and woke up from their deep slumber, after 94 days, then no indulgence could be shown to the said party. The applicant/appellant did not act, with due diligence, resulting into delay of 94 days, in filing the appeal which is more than three times, beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it, from filing the appeal, in time. The mere fact that the concerned Officers/Officials of the Office of the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the period, prescribed under Section 15 of the Act, does not mean that it could be shown any undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 94 days, cannot be condoned. The principle, of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
18. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”
19. It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory on the applicant/appellant, to take immediate steps, to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officers/Officials of the applicant/ appellant, just slept over the matter and did not take timely steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
20. Now coming to the main appeal, the Counsel for the appellant, submitted that the Insurance Policy, was issued, after the consent of the complainant was received, as per the telephonic conversation, duly recorded, and, as such, he could not say that he was wrongly issued the same. He further submitted that since the Policy was issued with the consent of the complainant, Opposite Party No.1, was well within right, to deduct the premium from his credit card account and credit to the account of Opposite Party No.2. It may be stated here, that in the instant case, no proposal form was filled in, by the complainant/respondent no.1, nor the question of signing the same, did ever arise, before the issuance of the Insurance Policy. In our considered opinion, the question arises, as to whether, according to the Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations,2002, it was incumbent upon the Insurance Company, to get the proposal form, filled in and signed by the insured before the issuance of Insurance Policy or not. Regulation 4 of the Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations,2002, reads as under:-
4. Proposal for insurance
(1) Except in cases of a marine insurance cover, where current market practices do not insist on a written proposal form, in all cases, a proposal for grant of a cover, either for life business or for general business, must be evidenced by a written document. It is the duty of an insurer to furnish to the insured free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form.
(2) Forms and documents used in the grant of cover may, depending upon the circumstances of each case, be made available in languages recognised under the Constitution of India.
(3) In filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Act. Any proposal form seeking information for grant of life cover may prominently state therein the requirements of Section 45 of the Act.
(4) Where a proposal form is not used, the insurer shall record the information obtained orally or in writing, and confirm it within a period of 15 days thereof with the proposer and incorporate the information in its cover note or policy. The onus of proof shall rest with the insurer in respect of any information not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information on any matter material to the grant of a cover.
(5) Wherever the benefit of nomination is available to the proposer, in terms of the Act or the conditions of policy, the insurer shall draw the attention of the proposer to it and encourage the prospect to avail the facility.
(6) Proposals shall be processed by the insurer with speed and efficiency and all decisions thereof shall be communicated by it in writing within a reasonable period not exceeding 15 days from receipt of proposals by the insurer.
21. The afore-extracted Regulation, clearly reveals that except in the marine insurance cover, in all cases, a proposal for grant of a cover, either for life business or for general business, must be evidenced, by a written document. It is further evident, from the afore-extracted Regulation, that it was the duty of the insurer, to furnish to the insured, free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form. It is further evident, from the afore-extracted Regulation, that, in filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Insurance Act. Any proposal form, seeking information, for grant of life cover may prominently state therein, the requirements of Section 45 of the Act. It is further evident, from the afore-extracted Regulation, that where a proposal form is not used, the insurer shall record the information obtained, orally or in writing, and, confirm it, within a period of 15 days, thereof, with the proposer and incorporate the information, in its cover note or Policy. The onus of proof shall rest with the insurer, in respect of any information, not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information, on any matter, material to the grant of a cover. It is further evident, from the afore-extracted Regulation, that getting the proposal form filled in and signed from the proposer was a sine qua non, for the issuance of an Insurance Policy. Admittedly, in the instant case, no proposal form, was got filled in, from the complainant by the Opposite Parties. The Opposite Parties, were bound by the Regulation, afore-extracted. Regulation 4 of the Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations, 2002, referred to above, is mandatory in nature. By not getting the proposal form filled in, and signed from the complainant, before issuance of the Insurance Policy, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
22. No doubt, the sealed cover, was submitted by Opposite Party No.1, in which CD containing the alleged telephonic conversation, with the complainant, was claimed. The address mentioned on the envelop, shows that this CD was obtained by Opposite Party No.1, from Opposite Party No.2, as the airway bill was also found attached therein. Thus, from this document, it was not proved that the CD of conversation, containing recording, which allegedly took place between the complainant and Opposite Party No.2, was available with Opposite Party No.1. Thus, the District Forum was also right, in holding that Opposite Party No.1, had failed to prove, as to how, it had satisfied itself, in releasing the amount of premium, as it failed to produce any evidence, in its possession, or from its own records, that had empowered it, for the release of the premium, to Opposite Party No. 2. The findings of the District Forum, in this regard, being correct, are affirmed.
23. Since, no evidence was produced by the Opposite Parties, to prove that the Policy, in question, was issued, after obtaining the consent of the complainant, and the CD allegedly containing the telephonic conversation, if any, was only between the representative of Opposite Party No.1 and Opposite Party No.2 and he (complainant), did not come into picture, in any manner, under these circumstances, the District Forum was right, in holding that Opposite Parties No.1 and 2, acted in, hand-in-glove, with each other, to deprive the complainant, of his hard earned money, in respect of the alleged premium. It is, therefore, held that the District Forum was also right, in holding that the demand raised by Opposite Party No.1, in the sum of Rs.12,362.57Ps/-, in the legal notice was completely, illegal. The District Forum was also right, in holding that, as such, Opposite Parties No. 1 and 2, were not only deficient, in rendering service, to the complainant but also adopted unfair trade practice.
24. No other point, was urged, by the Counsel for the appellant.
25. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
26. For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal, being barred by time and devoid of merit, is also dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
27. Certified copies of this order, be sent to the parties, free of charge.
28. The file be consigned to Record Room, after completion
Pronounced.
01.03.2013
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
Rg
