Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that husband of the complainant was consumer of Opposite Party No.1 Bank having saving bank account No.85280100007375 and a limit account No.88-480. The complainant further alleges that Opposite Party No.1 Bank enrolled the husband of the complainant as member under the Grand Insurance Scheme Administer by Punjab Gramin Bank (Opposite Party No.1) under Group Master Policy No.011675666 of Sarve Shakti Suraksha Policy (U.I.N.116N60V02) issued by Opposite Party No.2. As per the policy terms, the instalment of Rs.5000/- was to be paid by the husband of the complainant namely Balvir Singh, as premium and the policy term was 5 years. The membership number of Balvir Singh husband of the complainant is 0310664447 with application No.5929116683. Further alleges that the premium was to be deducted by Opposite Party No.1 Bank themselves from the saving bank account and limit account of the husband of the complainant and accordingly, the premium amount of Rs.5000/- each was deducted by Opposite Party No.1 bank from the saving bank account and limit account of the husband of the complainant on 27.12.2013, 19.12.2014, 10.12.2015 and 14.03.2017. Unfortunately, on 01.05.2018, Balvir Singh insured died due to sudden heart attack and 5th instalment was neither deducted by Opposite Party No.1 nor issued any notice or information to the complainant in this regard. The complainant is the nominee of the insurance policy being widow of Balvir Singh insured. After the death of the husband of the complainant, the complainant approached the office of Opposite Parties and requested to make the claim amount, but initially, they ignored and at lastly orally refused the claim of the complainant. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Parties to pay the insured amount of Rs.1,25,000/- alongwith interest to the complainant and further the Opposite Parties may also be directed to pay Rs.25,000/- on account of deficiency in service and Rs.25,000/- on account of mental tension, agony and physical harassment and Rs.22,000/- as litigation expenses.
Hence, the present complaint.
2. On notice, Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is premature being false, frivolous, vague and baseless and the same is not maintainable; that the complainant is not a consumer of the Opposite Party No.1 bank in terms of the provisions of the Act as far as insurance policy in question is concerned, there is no privity of contract of Opposite Party No.1, either with the complainant or her late husband Balvir Singh qua the insurance policy in question. On merits, it is admitted that the husband of the complainant was the consumer of the Opposite Party No.1 vide saving bank account No.85280100007375 and a limit account No.8528800000480. It is further submitted that husband of the complainant voluntarily became the member of Group Insurance Scheme and had purchased an insurance policy from Opposite Party No.2 to 4, but there is no contract of Opposite Party No.1, either with the complainant or her late husband Balvir Singh qua the insurance policy in question. However, the premium was duly deducted of the husband of the complainant upon having instructions from him. It is further submitted that the Opposite Party No.1 was not bound either to deduct the premium instalment or to renew the insurance policy. The responsibility to make payment for renewal of insurance policy was lying upon the insured himself and he himself was negligent for non renewal of the policy. Moreover, at the time of obtaining loan from the Opposite Party No.1, late Balbir Singh had executed a hypothecation agreement dated 06.12.2013 wherein it has been specifically provided vide clause No.5 that the borrowers shall at all times, keep such items of security as are of insurable nature, insured against loss or damage by fire and other risks, as may be required by the bank and shall deliver to the bank all such policies. It shall be also lawful for the bank, but not obligatory upon the bank. Moreover, it was the duty of insured Balvir Singh to find out whether the premium amount has been paid or not and to see that premium stands paid every year and he had to be vigilant about such insurance as the contract of insurance was between the insured Balvir Singh and Opposite Party No.2 to 4. Moreover, there was no sufficient balance available in the saving bank account of said Balvir Singh to pay the instalment of insurance premium and hence there is no deficiency in service on the part of Opposite Party No.1
3. Opposite Party No.2 to 4-Insurance Company appeared separately through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint of the complainant is pre-mature being the same is not maintainable and liable to be dismissed because the Opposite Party No.2 to 4 till date no claim under the policy ever received from the complainant or from the Opposite Party No.1. Moreover, the intricate questions of law and facts are involved in this case. The parties have to lead its evidence by examining the witnesses and the said witnesses are to be cross examined by the other party. The procedure under the Act is summary in nature and applicant, if so advised, may file civil suit seeking the alleged relief. However, on the facts of the case, it is admitted that the Opposite Party No.2 to 4 received proposal/ application form duly filled and signed by the insured on his life under the “Sarb Shaki Suraksha Main Benefit” and on the basis of information and declarations provided in the said application, the Opposite Party No.2 to 4 issued the policy in question in favour of Balvir Singh. Moreover, the as per the policy documents, the policy holder and the company both are governed by the Terms and Conditions mentioned in the policy document and all the benefits are payable strictly as per the policy terms and conditions and in view of the above, the company is not liable to make any payment to the complainant. On merits, Opposite Party No.2 to 4 took up almost same and similar plea as taken up by them in the preliminary objections and hence, the complainant is liable to be dismissed.
4. In order to prove her case, the complainant has placed on record her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C5.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also placed on record the affidavit of Sh.Ramesh Kumar Ex.OP1/1 alongwith copies of documents Ex.OP1/2 and Ex.OP1/3 and affidavit of Rajiv Kumar Ex.OP2 to 4/1.
6. We have heard the ld.counsel for the parties, perused the written submissions of Opposite Party No.1 Bank and also gone through the documents placed on record.
7. Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Party No.2 to 4 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. On merits, it is contended that Balvir Singh husband of the complainant was consumer of Opposite Party No.1 Bank having saving bank account No.85280100007375 and a limit account No.88-480. Ld.counsel for the complainant further contended that Opposite Party No.1 Bank enrolled the husband of the complainant as member under the Grand Insurance Scheme Administer by Punjab Gramin Bank (Opposite Party No.1) under Group Master Policy No.011675666 of Sarve Shakti Suraksha Policy (U.I.N.116N60V02) issued by Opposite Party No.2. As per the policy terms, the instalment of Rs.5000/- was to be paid by the husband of the complainant namely Balvir Singh, as premium and the policy term was 5 years. The membership number of Balvir Singh husband of the complainant is 0310664447 with application No.5929116683. Further argued that the premium was to be deducted by Opposite Party No.1 Bank themselves from the saving bank account and limit account of the husband of the complainant and accordingly, the premium amount of Rs.5000/- each was deducted by Opposite Party No.1 bank from the saving bank account and limit account of the husband of the complainant on 27.12.2013, 19.12.2014, 10.12.2015 and 14.03.2017. Unfortunately, on 01.05.2018, Balvir Singh insured died due to sudden heart attack and 5th instalment was neither deducted by Opposite Party No.1 nor issued any notice or information to the complainant in this regard. The complainant is the nominee of the insurance policy being widow of Balvir Singh insured. After the death of the husband of the complainant, the complainant approached the office of Opposite Parties and requested to make the claim amount, but initially, they ignored and at lastly orally refused the claim of the complainant. As such, there is deficiency in service on the part of the Opposite Parties.
8. On the other hand, ld.counsel for Opposite Party No.1 Bank has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant is not a consumer of the Opposite Party No.1 bank in terms of the provisions of the Act as far as insurance policy in question is concerned, there is no privity of contract of Opposite Party No.1, either with the complainant or her late husband Balvir Singh qua the insurance policy in question. On merits, it is admitted that the husband of the complainant was the consumer of the Opposite Party No.1 vide saving bank account No.85280100007375 and a limit account No.8528800000480. It is further submitted that husband of the complainant voluntarily became the member of Group Insurance Scheme and had purchased an insurance policy from Opposite Party No.2 to 4, but there is no contract of Opposite Party No.1, either with the complainant or her late husband Balvir Singh qua the insurance policy in question. However, the premium was duly deducted of the husband of the complainant upon having instructions from him. It is further submitted that the Opposite Party No.1 was not bound either to deduct the premium instalment or to renew the insurance policy. The responsibility to make payment for renewal of insurance policy was lying upon the insured himself and he himself was negligent for non renewal of the policy. Moreover, at the time of obtaining loan from the Opposite Party No.1, late Balbir Singh had executed a hypothecation agreement dated 06.12.2013 wherein it has been specifically provided vide clause No.5 that the borrowers shall at all times, keep such items of security as are of insurable nature, insured against loss or damage by fire and other risks, as may be required by the bank and shall deliver to the bank all such policies. It shall be also lawful for the bank, but not obligatory upon the bank. Moreover, it was the duty of insured Balvir Singh to find out whether the premium amount has been paid or not and to see that premium stands paid every year and he had to be vigilant about such insurance as the contract of insurance was between the insured Balvir Singh and Opposite Party No.2 to 4. Moreover, there was no sufficient balance available in the saving bank account of said Balvir Singh to pay the instalment of insurance premium and hence there is no deficiency in service on the part of Opposite Party No.1. Ld.counsel for Opposite Party No.2 to 4 also repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complaint of the complainant is pre-mature being the same is not maintainable and liable to be dismissed because the Opposite Party No.2 to 4 till date no claim under the policy ever received from the complainant or from the Opposite Party No.1. Moreover, the intricate questions of law and facts are involved in this case. The parties have to lead its evidence by examining the witnesses and the said witnesses are to be cross examined by the other party. The procedure under the Act is summary in nature and applicant, if so advised, may file civil suit seeking the alleged relief. However, on the facts of the case, it is admitted that the Opposite Party No.2 to 4 received proposal/ application form duly filled and signed by the insured on his life under the “Sarb Shaki Suraksha Main Benefit” and on the basis of information and declarations provided in the said application, the Opposite Party No.2 to 4 issued the policy in question in favour of Balvir Singh. Moreover, the as per the policy documents, the policy holder and the company both are governed by the Terms and Conditions mentioned in the policy document and all the benefits are payable strictly as per the policy terms and conditions and in view of the above, the company is not liable to make any payment to the complainant.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No.2 to 4 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Party No.2 to 4 is presumed to be correct, the next plea raised by Opposite Party No.2 to 4 is that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so. Hence, this District Consumer Commission is not convinced with the aforesaid contention of the ld.counsel for the Opposite Parties.
11. It is not disputed that Balvir Singh husband of the complainant was consumer of Opposite Party No.1 Bank having saving bank account No.85280100007375 and a limit account No.8528800000480. It is also not disputed that said Balvir Singh has since expired on 01.05.2018, copy of the death certificate is placed on record as Ex.C4. it is also not disputed that Opposite Party No.1 Bank enrolled the husband of the complainant as member under the Grand Insurance Scheme Administer by Punjab Gramin Bank (Opposite Party No.1) under Group Master Policy No.011675666 of Sarve Shakti Suraksha Policy (U.I.N.116N60V02) issued by Opposite Party No.2, copy of document are Ex.C3. As per the policy terms, the instalment of Rs.5000/- was to be paid by the husband of the complainant namely Balvir Singh, as premium and the policy term was 5 years. The membership number of Balvir Singh husband of the complainant is 0310664447 with application No.5929116683. It was the case of the complainant that the premium was to be deducted by Opposite Party No.1 Bank themselves from the saving bank account and limit account of the husband of the complainant and accordingly, the premium amount of Rs.5000/- each was deducted by Opposite Party No.1 bank from the saving bank account and limit account of the husband of the complainant on 27.12.2013, 19.12.2014, 10.12.2015 and 14.03.2017. Unfortunately, on 01.05.2018, Balvir Singh insured died due to sudden heart attack and 5th instalment was neither deducted by Opposite Party No.1 nor issued any notice or information to the complainant in this regard. The complainant is the nominee of the insurance policy being widow of Balvir Singh insured. After the death of the husband of the complainant, the complainant approached the office of Opposite Parties and requested to make the claim amount, but initially, they ignored and at lastly orally refused the claim of the complainant. It is not disputed that the policy term was 5 years starting w.e.f. 27.12.2013 and on that date Rs.5000/- on account of first premium of Rs.5000/- was deducted by Opposite Party No.1 bank and was duly deposited with Opposite Party No.2 to 4 themselves and accordingly further annual premium amounts wroth Rs.5000/- each were automatically deducted by Opposite Party No.2 to 4 from the account of Balvir Singh on 19.12.2014, 10.12.2015 and 14.03.2017. At the time of last and final 5th year premium, before the payment of said premium amount, said Balvir Singh has expired on 01.05.2018 and due to the death of Balvir Singh insured the last premium amount which was automatically credited from the saving bank account of said Balvir Singh has not been credited in the account of Opposite Party No.2 to 4 on account of premium. The contention of Opposite Party No.2 to 4 is that the last 5th installment has not been paid and due to this reason, the policy has been lapsed and they are unable to make the insured amount to the complainant. The other stand of the Opposite Party No.1 bank was there was no sufficient balance available in the saving bank account of said Balvir Singh to pay the instalment of insurance premium, but perusal of the statement of account shows that there was sufficient balance in the account of Balvir Singh, insured.
12. The further contention of the Opposite Parties is that the complaint of the complainant is pre mature and the complainant has not filed the claim with the Opposite Parties, but it is very unbelievable plea because the instant complaint is pending since July, 2018 before this District Consumer Commission and the complainant is wandering here and there for her genuine claim and this matter is well within the knowledge of the Opposite Parties as the Opposite Parties are appearing before this District Consumer Commission and contesting the complaint and during that period, it was the duty of the Opposite Parties to get the documents completed from the complainant and hence we do not agree with the aforesaid contention of the ld.counsel for the Opposite Parties.
13. In such a situation the repudiation made by the Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the above discussion, we are of the opinion that all the Opposite Parties have wrongly and illegally retained the claim of the complainant. Consequently, we allow the complaint and all the Opposite Parties are jointly and severally directed to pay the insured claim of Rs.1,25,000/- (Rupees one lakh and twenty five thousands only) to the complainant (i.e.all the legal heirs of Balvir Singh son of Mukhtiar Singh, insured in accordance with law) within 45 days from the date of receipt of copy of this order, failing which the Opposite Parties shall be liable to pay the awarded amount alongwith interest @ 8% per annum from the date of filing the complaint i.e. 12.07.2018 till its actual realisation. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be supplied to the parties free of cost. File be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 29.11.2021.
