DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 290/2015
Date of Institution : 03.08.2015
Date of Decision : 23.02.2017
Rajbinder Singh aged about 58 years son of Shri Amarjit Singh resident of House No. 467, Ward No. 8, Janda Wala Road, Barnala, Tehsil and District Barnala (Punjab). …Complainant
Versus
1. Punjab and Sind Bank, Head Office at 21, Rajendra Palace, New Delhi-110088 through its Managing Director.
2. Punjab and Sind Bank, Branch Main, College Road, Barnala, Tehsil and District Barnala through its Branch Manager.
3. Aviva Life Insurance Co. India Limited, HO Aviva Tower, Sector Road, Opposite DLF Golf Coarse, DLF Phase 5, Sector 43, Gurgaon 122003 through its Managing Director.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. AK Jindal counsel for the complainant.
Sh. JK Kapil counsel for opposite parties No. 1 and 2.
Sh. Dhiraj Kumar counsel for opposite party No. 3.
Quorum.-
1. Shri S.K. Goel : President
2. Shri Karnail Singh : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Rajbinder Singh has filed the present complaint under Consumer Protection Act, 1986 (hereinafter referred as Act) against Punjab and Sind Bank and others.
2. The brief facts of the case are that the complainant availed an agricultural limit of Rs. 3,63,000/- from opposite party No. 2 and opposite party No. 2 opened a loan account of the complainant in his name vide Account No. 1612270. The opposite party No. 2 told the complainant that the bank tied up with the insurance company and they insured their clients. Thus, the complainant had given his consent to deduct amount of Rs. 15,232/- from his account. But the complainant has not received any insurance policy till the filing of the complaint. He requested many times to the opposite party No. 2 to deliver the policy or to refund his amount but opposite party No. 2 failed to supply the insurance policy or to refund the amount of Rs. 15,232/- which was deducted by them. So, the complainant served a legal notice upon the opposite party No. 2 on 21.7.2015 but to no effect. Thus it is alleged that the complainant suffered physical and mental harassment and it amounts to deficiency of service on the part of the opposite parties. Hence the present complaint is filed seeking the following reliefs.-
1) The opposite parties be directed to refund the amount of Rs. 15,232/- alongwith interest at the rate of 12% per annum from the date of deduction till realization.
2) To pay Rs. 50,000/- as compensation on account of mental agony, harassment and inconvenience.
3) To pay Rs. 20,000/- as litigation expenses.
3. Upon notice of this complaint, opposite parties No. 1 and 2 filed a joint written statement taking legal objections interalia on the grounds of locus standi, non joinder of necessary parties, not come to this Forum with clean hands, jurisdiction, estoppal, time barred and complaint being frivolous.
4. On merits, it is admitted that the complainant availed an agriculture limit and opened a loan account. It is denied that bank assured the complainant that as per bank policy they insured their clients. It is submitted that the complainant himself requested for issue of demand draft favouring Aviva Life Insurance Company which the opposite party No. 2 did. The complainant purchased the insurance policy at his own sweet will and free consent. The insurance policy was to be issued/supplied by the insurance company at the address of the complainant and not by the answering opposite parties. It is further submitted that once the draft was issued to the complainant as per his request, the opposite parties have no role in getting any insurance policy.
5. It is further alleged that the complainant mentioned in his complaint that opposite party deducted a sum of Rs. 15,232/- on 28.3.2012 from his account, so the complaint is a time barred as per his own admission from the date of cause of action. Further, complainant has not mentioned whether he paid any renewal premium or he ever contacted the insurance company. So, there is no deficiency of service or unfair trade practice on the part of the answering opposite parties. The opposite parties denied the other allegations of the complainants and finally prayed for the dismissal of the complaint with costs.
6. The opposite party No. 3 also filed a separate written statement taking legal objections on the grounds of maintainability, suppressing material facts, cause of action, frivolous, time barred, estoppal and intricate questions of law and facts are involved in the present complaint.
7. On merits, it is submitted that as the complainant failed to disclose any insurance contract and particulars of the same, so the answering opposite party failed to give any specific reply to the effect that whether the complainant had ever purchased any insurance policy from the answering opposite party. It is further submitted that the answering opposite party issued the policy against the proposal form submitted by the policyholders and immediately sent the same to the policyholders on given address. The complainant never approached the answering opposite party. It is further submitted that the insurance is a contract between the insured and insurer so the provisions of Insurance Act 1938, IRDA Act 1999 Rules and Regulations must applied in this case. But as the complainant failed to disclose any particulars of the policy so the opposite party not in a position to file a specific reply. Further, the complainant does not fall within the definition of consumer so this Forum has no jurisdiction to entertain and try the present complaint. The opposite party denied the other allegations of the complainants and finally prayed for the dismissal of the complaint with costs.
8. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of demand draft dated 28.3.2012 Ex.C-2, copy of voucher dated 28.3.2012 Ex.C-3, copy of account statement Ex.C-4, copy of pass book Ex.C-5, copy of legal notice Ex.C-6, postal receipt Ex.C-7 and closed the evidence. Written arguments also filed by the complainants.
9. To rebut the case of complainant, opposite parties No. 1 and 2 tendered in evidence affidavit of Gurinder Singh Grover Ex.OP-1.2/1, copy of postal receipt Ex.OP-1.2/2, copy of letter dated 7.12.2015 Ex.OP-1.2/3, copy of letter Ex.OP-1.2/4 and evidence of opposite parties No. 1 and 2 was closed by order of this Forum dated 12.7.2016. The opposite party No. 3 tendered in evidence affidavit of Sh. Bhuwan Bhashker Ex.OP-3/1 and closed the evidence. Written arguments were also filed by the opposite parties No. 1 and 2.
10. We have heard the learned counsel for the parties and have gone through the record.
11. At the outset the learned counsel for the insurance company opposite party No. 3 has contended that the intricate questions of law and facts are involved in this case and these can only be proved by adducing evidence by both the parties and cannot be disposed of in a summary manner and therefore, the matter could be relegated to the Civil Court.
12. The allegations of the complainant is that the bank have tied up with the insurance company and the bank insured their clients and in this case the bank deducted an amount of Rs. 15,232/- from the account of the complainant but till today the complainant have not received any insurance policy. However, the bank opposite party No. 2 has denied any such arrangement with the insurance company and further denied that they insured their clients and assured for purchase of any such insurance policy and further denied for the deduction of the premium at their own. The bank further submitted that they have no role in getting any insurance policy. The insurance company in their written version had denied any execution of the contract between them and they further submitted that the bank as well as the complainant failed to disclose the execution of any insurance contract and never disclosed any particulars of the insurance policy. The insurance company further submitted that without insurance policy the liability cannot be fastened upon them.
13. Keeping in view the allegations and the cross allegations, the first question is whether the bank and the insurance company has any such arrangement insuring its clients and deducting the premium from the account of the clients and to procure the policy from the insurance company by depositing the said premium in the account of the insurance company.
14. Secondly, the question whether the deduction made by the bank was credited to the insurance company so as to determine the responsibility/liability of the bank or the insurance company.
15. Thirdly, the question whether the bank has prepared the draft of the premium at the instance of the complainant from his account and it was the complainant who had deposited the draft of the premium with the insurance company and got the insurance policy.
16. The fourth question whether any insurance policy was issued by the insurance company in favour of the complainant, if it is so, whether the policy was a term plan or yearly premium based policy. If it is a yearly premium based policy then as to why the complainant failed to renew the same for the subsequent years.
17. The fifth allegation of the opposite party is that the alleged deduction of Rs. 15,232/- was made on 28.3.2012 and as to why the complainant remained silent for more than 3-1/2 years in filing the present complaint.
18. Now the question arises whether both the parties have led sufficient evidence to prove the above mentioned controversies.
19. Perusal of the record shows that the complainant has placed on record photocopy of demand draft dated 28.3.2012 Ex.C-2, voucher Ex.C-3, copy of account statement Ex.C-4 and copy of pass book Ex.C-5. These documents show that the draft of Rs. 15,232/- was prepared by the bank. However, there is nothing of record to indicate that the bank and the insurance company has some type of arrangement and the said draft was deposited with the insurance company. Apart from the said documents there is no evidence led by the complainant to prove the various controversies as referred to above.
20. In fact the ibid controversies are involved complicated questions of facts and law requiring detailed investigation, examination and cross examination of witnesses which cannot be done in a summary manner and the remedy lies in the appropriate court of law.
21. The Hon'ble Apex Court held in case titled Oriental Insurance Company Ltd. Versus Munimahesh Patel 2006 (IV) CPJ-1:-
“Proceedings before the Commission are essential summary in nature and adjudication of issues which involve disputed factual question should not be adjudicated........ The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.”
22. Further, the Hon'ble Apex Court held in case titled “SYNCO Industries Versus State Bank of Bikaner & Jaipur & Ors. 2002 (2) Supreme Court Cases-1.-
“It is obvious that very detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the court fees. This is that sense is an abuse of the process of the Consumer Forum.”
23. In the light of the ibid judgments of the Hon'ble Supreme Court of India and going through the nature of the controversies to be proved in the present case, we are of the opinion that this matter is required to be proved by leading evidence by both the parties and not in a summary manner. Therefore, it would be desirable that this case is not to be dealt with by this Forum and could be relegated to the Civil Court.
24. As a result of the above discussion, the present complaint is dismissed accordingly. However, the complainant is at liberty to approach to the Court of competent jurisdiction, if so advised. In the light of the judgment of the Hon'ble Apex Court titled Trai Foods Ltd. Versus National Insurance Company and others 2004 (13) SCC-656 it is observed that the time spent by the complainant from the date of filing of the present complaint till the date of this order will not be counted for the purpose of limitation. No order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
23rd Day of February 2017
(S.K. Goel)
President
(Karnail Singh)
Member
