F.A.156 OF 2015 with
F.A.211 OF 2015
Heard learned counsel for both the parties. F.A.156 of 2015 has been filed by OP No.1-Bank where as F.A.211 of 2015 has been preferred to by OP No.2-Insurance Company. Both appeals being assailed against impugned order are hereby disposed of by this common order.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant and his deceased wife Uma Jhunjhunwala have obtained loan of Rs.16,00,000/- jointly from OP No.1 bearing joint loan account no.1403306714196. At the time of taking loan under the instruction of OP No.1 the complainant purchased the surrender policy from Op No.2 to secure the payment of loan jointly they held. Therefore, it is alleged inter-alia that complainant has deposited Rs.61,270/- which was debited to their account but Rs.29,065/- was only credited as insurance premium in respect of deceased wife of the complainant against sum assured of Rs.10,29,235/- for nine years. However, the wife of complainant died during currency of policy. The complainant alleged that while filing the claim he came to know that the policy has remained on the life of the complainant and wife has become nominee for the said amount although premium for both of them has been paid by them. The complainant made complaint before the OP No.1 but denied to have received any response. So, the complaint was filed.
4. Per contra, the OP no.1 filed written version stating that they have received the premium amount of Rs.61,270/- from the account of the complainant and same was sent to OP No.2 and later found that name of Uma Jhunjhunwalla has been omitted for which there is gross negligence of OP No.2. It is averred that OP No.2 is still in possession of the balance amount of Rs.32,135/- . Therefore, the OP No.2 is responsible but not OP No.1.
5. OP No.2 filed the written version stating that they have received the premium and issued the master policy 0255260951 in favour of OP No.1 for nine years. Accordingly they have calculated and issued one policy. They have not received as Rs.61,270/- as premium for complainant and his wife from complainant as no proposal form for deceased wife of complainant was received. However, they submit to reject the same.
6. After hearing both the parties, learned District Forum passed the following order:-
“ 1. The OP No.2 is hereby directed to credit the sum assured amount of Rs.10,29,235/-(Rupees ten lakh twenty nine thousand two hundred thirty five) only in the joint loan account No.1403306714196 by entering the premium amount of Rs.32,205/-(Rupees thirty two thousand two hundred and five)only towards not mentioning the life of Uma Jhunjhunwala in the Master Policy along with pay a sum of Rs.25,000/-(Rupees twentyfive thousand)only towards mental agony and harassment to the complainant.
2. The Op No.1 is hereby directed to waive out the interest charged in the loan account on said Rs.10,29,235/-(Rupees ten lakh twenty nine thousand two hundred thirty five) only from the date of death of Uma Jhunjhunwala i.e. 30.04.2013 till the date of realization of the said sum assured of Rs.10,29,235/-( Rupees ten lakh twenty nine thousand two hundred thirty five)only from the OP No.2 alongwith pay a sum of Rs.5,000/-(Rupees five thousand) only towards cost of the case to the complainant.
3. The above mentioned order4s shall be carried out within 02(two) months from the date of receipt of this order, failing which the Ops shall be liable for interest @ 10% per annum on their respective awarded amounts till realization.
Accordingly the case is disposed of “
7. Learned counsel for the appellant –bank has clearly submitted that learned District Forum has passed the impugned order illegally by not considering the fact that OP No.1 has already debited Rs.61,270/- as insurance premium and sent it to OP No.2 who is actually responsible for not submitting the claim of deceased Uma Jhunjhunwalla. According to her the amount when had been sent to OP No.2, it is the responsibility of Op No.2 to get insurance claim settled for the death of Uma Jhunjhunwalla.
8. Learned counsel for appellant-bank further submitted that Learned District Forum has failed to apply judicial mind to the fact of the case properly because it is for the OP No.2 to settle the claim not by OP No.1. Apart from this the order passed by learned District Forum is not in consonance with Section -14 of the Act. So, he submitted to set-aside the impugned order by allowing the appeal.
9. Learned counsel for the appellant- insurance company submitted that learned District Forum has committed error in law by not considering the written version filed by OP No.2 with proper perspectives. According to him although Rs.61,270/- was received by OP No.2 from OP No.1 but that account was only opened for accepting Rs.29,065/- in favour of the complainant but not in favour of his wife. He further submitted that they have paid back rest of the amount when no request was received from OP No.1 or proposal received from OP No.1 to sell one more policy to Uma Jhunjhunwalla. He submitted that even if assuming rest of the money is retained by the OP No.2 but without policy being opened the benefit would not accrue to Uma Jhunjhunwalla. He further submitted that even if the money is retained by him without any proposal form being submitted by the concerned party, OP No.2 can not be held liable. He cited the decision reported in AIR 1984 Supreme Court 1014 LIC of India-Vrs- Raja Vasireddy Kunala valli Kamha in his favour.
10. Considered the submission of both the parties, perused the DFR and impugned order.
11. It is admitted fact that the complainant has opened the loan account with OP No.1 by incurring loan of Rs.16,00,000/- and the loan account is in favour of the complainant and deceased wife Uma Jhunjhunwalla. It is not in dispute that the complainant has deposited Rs.61,270/- towards premium as per the agreement executed between OP No.1 & 2. It is not in dispute that the policy has been issued in the name of Rajkumar Jhunjhunwalla and the nominee is Uma Jhunjhunwalla and the premium amount is Rs.29,065/-. It is not in dispute that Uma Jhunjhunwalla died on 30.04.2013. It appears from the materials produced before the learned District Forum that the policy stands in the name of Rajkumar Jhunjhunwalla and the same is retained by OP No.1 and the statement of account shows that on 03.08.2010, Rs.61,270/- was debited to the joint loan account of Rajkumar Jhunjhunwalla and his wife.
12. It is stated submitted by learned counsel for the OP No.1 that he has sent the insured money to OP No.2 who admitted to have received same. The OP No.2 has averred that they have refunded rest of the amount of Rs.32,135/- but OP No.1 stated in written version that they have not received said amount. OP No.2 failed to produce the documents towards refund of said amount. At the same time the OP No.1 has not made any investigation why the policy was issued in favour of Rajkumar Jhunjhunwalla and why the another policy was not issued in favour of Uma Jhunjhunwalla when both are the joint loan account holder and the premium has been also paid by them. In this regard no satisfactory proof is filed by OP No.1. When OP No.2 is not in receipt of any proposal form, obviously the policy could not be issued without any proposal form filled up by Uma Jhunjhunwalla.
13. It may not be out of place to mention here that OP No.1 has introduced to OP No.2 the loan account holders because of memorandum of understanding between them. So, mere debiting the premium without any proposal form sent by the OP No.1 for wife of Rajkumar Jhunjhunwalla is also gross negligence on the part of the OP No.1. Besides, the OP No.2 should not have retained the money without asking for the proposal form of Uma Jhunjhunwalla from OP No.1. So, OP No.1 is negligent and deficiency of service and the complainant being consumer is the worst sufferer of lack of understanding between OP No.1 & 2.
14. The retention of the premium amount by the OP No.2 without issuing policy or making querry thereof is a deficiency in service on the part of OP No.2. May be that mere retention of premium money by OP No.2 in absence of proposal form can not saddle him with liability but remaining silent without further query or asking for proposal form would attribute deficiency of service with OP No.2.
15. Learned counsel for the appellant cited the decision of Hon’ble Supreme Court in LIC-Raja Vasireddy Komalavalli Kamba and others reported in AIR 1984 SC 1014 where Their Lordship observed “ A contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer.”
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“ Similarly the mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance.”
16. There is no any doubt over this principle of law being enunciated by Hon’ble Apex Court but here in this case OP No.2 stated to have refunded the money but failed to prove same. Therefore, the facts of this case being not similar to the fact of the decision cited, with due regard to this decision of Hon’ble Supreme Court, same can not be applicable to this case.
17. In view of above discussion this Commission is in full agreement with the finding of the learned District Forum but U/S-14 of the Act the order seems to have not been passed by learned District Forum and hereby it is modified to the extent that OP No.2 would remove the deficiency of service by opening a policy in favour of Uma Jhunjhunwalla from the date they received the entire money Rs.61,270/- and settle the amount of sum assured Rs.10,29,235/- in her favour since she died during policy in force and pay same to OP No.1 under proper receipt. Similarly, OP No.1 is directed to waive out interest on that loan amount for the period commencing from her death till today as she was beneficiary of policy. OP No.1 is also directed to remove the deficiency of service as such and to adjust the sum assured received from OP No.2 and Rs.6,00,000/- deposited by complainant with OP No.1 during period of appeal. against loan amount of Rs.16,00,000/- received by the complainant and his deceased wife. Further, OP No.1 and OP No.2 are directed to pay Rs.10,000/- each as compensation to complainant for mental agony and harassment meted out to the complainant. All above direction be complied by Ops within a period of 45 days from the date of receipt of this order, failing which they will carry interest @ 9 % per annum from the date of impugned order till payment is made. Rest part of the order will remain unaltered.
Appeals are disposed of accordingly. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
