Date of filing: 4/03/2013. Date of Final Order: 19/07/2017
Before: Hon’ble President, Biswanath De.
Hon’ble Member, Samaresh Kumar Mitra.
FINAL ORDER
This complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for an order upon the OP to deliver the HDFC policy without any condition and to pay a sum of Rs.2,000/- for litigation cost and other ancillary expenses and a sum of Rs.25,000/- compensation for physical harassment, mental agony and mental wound and to pass such other order or orders as the Forum would deem fit and proper.
The case of the complainant, in brief, is that the petitioner subscribed one policy under HDFC SL Pro growth Plan Super 11 on March 2011 in the name of his daughter Soumita Roy Chowdhury and paid first premium amounting to Rs15000/- during the period of submitting proposal form. The petitioner made all his correspondences through OP No.2 and received the payment receipt from the OP No.2.but did not get the policy bond. On enquiry the OP No.2 informed that the policy bond issued. When the next Premium was due he received the message of reminder for payment of premium them he informed the matter to the regional office at Kolkata who on their turn informed that the policy has delivered to B.Chkraborty through courier service. Then the complainant put the matter before the Grievance Redressal cell at Mumbai Head Office and he got the reply from different officials that the petitioners grievance has registered and to be dealt with officials. The OP company enquired the petitioner to file affidavit and indemnity bond against misuse and fraud for getting the policy bond but they are aware that the policy bond was delivered to one B.Chakraborty other than the complainant herein. Then the OP sent their official namely Subhra Banerjee to this complainant for negotiation. But the complainant was on the view that as he did not received the policy so there is no question to file indemnity bond for getting the bond as the same was not delivered to him. The OP could not fix responsibility upon the courier service but tried to fix responsibility upon the complainant herein. He put the matter before the Assistant Director CA&FBP Hooghly RO but of no result . The complainant in the meantime paid the second instalment amounting to Rs.15000/- and received the receipt from the end of the OP. The petitioner apprehend that the future of his daughter will be futile if the case in question is not received. So he demanded to get back the premium be returned with interest. He further assailed that on the pretext of further loss he preferred the Redressal of this Forum.
The OP appeared by its advocate and filed written version denying the allegations as leveled against them and averred that In or about March,2011 they received a proposal Form of one Soumita Roy Chowdhury alongwith a cheque of Rs.15000/- towards the first premium and upon receipt of written application and considering the information given by the policyholder they issued a policy bearing No.14284429 in her favour. In order to avail policy the policyholder also signed the illustration and policy document which clearly states the working benefits, term and type of policy for 10 years having annual premium of Rs.15000/-. The original policy was dispatched through Sri Chakra Transtech Courier and it was received by B. Chakraborty.
After passing of more than one year, the opposite party company for the first time received a complaint from the complainant by its letter dated 2.4.2012 alleging non receipt of policy. The opposite party bank by its reply dated 13.4.2012 duly informed the policyholder that the original policy documents were already sent and the same was received by one B.Chakraborty on 26.3.2011. In order to resolve the dispute, the policyholder was called upon to submit Indemnity Bond and Affidavit along with lost policy fee of Rs.30/- in order to get duplicate policy certificate. The opposite party company repeatedly called upon the policyholder to submit the indemnity Bond but the same was not furnished. Instead of furnishing the requisite documents the complainant filed this purported complaint petition. After a talk of settlement the duplicate policy was received by attorney of the complainant namely Uma Sankar Basu and by filing a petition intimated this forum regarding such receipt and intimated that he is not willing to proceed with the case. On the basis of settlement the complaint was disposed of vide order dated 25.6.2013. Thereafter the complainant filed an appeal before the Hon’ble State Commission being F.A. 1043 of 2013 and the Hon’ble state Commission remitted the complaint case before this Forum. According to the version of the complainant that ordinary prudent person would definitely lodge a complaint with the insurance company if the policy document is not received within the expected time. Moreover the client has paid renewal against the said policy which proves his intention to continue the policy. The answering OP denied that any officer of the opposite party company visited the complainant house and assured him to issue duplicate policy certificate without furnishing indemnity bond. He submitted that the complainant failed and neglected to pay the third premium in violation of the policy term and in order to cover up his own latches the complainant filed this instant complaint petition.
The complainant filed examination –in-chief in which he assailed that he paid the premium of the OP insurance company but the he did not receive the policy document in original but according to the version of the OP that the policy of the policy holder was received by one B. Chakraborty. When he telephonically complained in HDFC’s Kolkata regional office that the policy was not received and unless policy was sent he/she would not be able to pay next premium and rather claimed refund of the premium already paid. The complainant told that there is no one namely B.Chakraborty nearby him who received the original policy bond. The main contention of the complainant is that he did not accept the policy then why he furnish indemnity bond to indemnify the OP to misuse, fraud etc for loss of the policy. He further assailed that OP also sent one of their official Mr. Subhra Banerjee a resident of Chandannagar to his house for negotiation who assured the complainant that there is no necessity of furnishing indemnity bond. After getting notice from this Forum the OP appeared before this Forum and on the date of filing the written version the OP handed over the policy bond to the representative of the complainant and who in his turn filed a petition not to proceed with the case and on the basis of the petition as well as the submission of the agents the Forum disposed of the complaint petition on 25.6.2013. And being aggrieved the complainant preferred an appeal before the Hon’ble State Commission, WB, the said appellate authority remanded back to this Forum for fresh order after giving of opportunities to both the appellant and the respondent.
The OP filed evidence on affidavit in which he assailed that on the basis of a proposal Form of one Soumita Roy Chowdhury the OP issued one “HDFC SL Pro Growth Plan” in her favour and the said policy was sent to the complainant which was received by one B. Chakraborty and after a long time the complainant informed that the said policy was not received by him. And the Policy holder declined to furnish indemnity bond to get the duplicate bond as per advice of the OP but continued the said policy by paying 2nd premium. The complainant failed to pay third premium for his own cause and to cover up the same he filed instant complaint petition before this Forum. During the pendency of the complaint petition the OP supplied the duplicate policy bond to his representative who filed a petition not to proceed with the case and relying upon the petition this Forum disposed of the complaint petition on 25.6.2013. As the complainant got the policy bond so instant complaint petition has become infructutous.
The complainant and the OP filed written argument and they also advanced arguments.
Argument as advanced by the agent of the opposite parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Sunit Kumar Majumdar ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sunit Kumar Majumder‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein is the consumer of the OP, as complainant insured the life of his daughter before the OP insurance company and OP is the insurer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complaint valued Rs.27000/-, Rs.2000/- as litigation cost and other ancillary charges,Rs.25000/- compensation for physical harassment and mental agony ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
After perusing the complaint petition as well as documents on record it appears that the petitioner subscribed one policy under HDFC SL Pro Growth Plan Super 11 on March 2011 in the name of his daughter Soumita Roy Chowdhury and paid first premium amounting to Rs15000/- during the period of submitting proposal form. The petitioner made all his correspondences through OP No.2 and received the payment receipt from the OP No.2.but did not get the policy bond. On enquiry the OP No.2 informed that the policy bond issued. When the next Premium was due he received the message of reminder for payment of premium then he informed the matter to the regional office at Kolkata who on their turn informed that the policy has delivered to B.Chakraborty through courier service. Then the complainant put the matter before the Grievance Redressal Cell at Mumbai Head Office and he got the reply from different officials that the grievance of the petitioner has registered and to be dealt with officials. The OP company enquired the petitioner to file affidavit and indemnity bond against misuse and fraud for getting the policy bond but they are aware that the policy bond was delivered to one B.Chakraborty other than the complainant herein. Then the OP sent their official namely Subhra Banerjee to this complainant for negotiation. But the complainant was on the view that as he did not received the policy so there is no question to file indemnity bond for getting the bond as the same was not delivered to him. The OP could not fix responsibility upon the courier service but tried to fix responsibility upon the complainant..
The case of the OP No.1 is that he denied the allegations as leveled against him and averred that In or about March,2011 they received a proposal Form of one Soumita Roy Chowdhury alongwith a cheque of Rs.15000/- towards the first premium and upon receipt of written application and considering the information given by the policyholder they issued a policy bearing No.14284429 in her favour. In order to avail policy the policyholder also signed the illustration and policy document which clearly states the working benefits, term and type of policy for 10 years having annual premium of Rs.15000/-. The original policy was dispatched through Sri Chakra Transtech Courier and it was received by B. Chakraborty. And after passing of more than one year, the opposite party company for the first time received a complaint from the complainant by its letter dated 2.4.2012 alleging non receipt of policy. The opposite party by its reply dated 13.4.2012 duly informed the policyholder that the original policy documents were already sent and the same was received by one B.Chakraborty on 26.3.2011. In order to resolve the dispute, the policyholder was called upon to submit Indemnity Bond and Affidavit along with lost policy fee of Rs.30/- in order to get duplicate policy certificate. Instead of furnishing the requisite documents the complainant filed this purported complaint petition. After a talk of settlement the duplicate policy was received by attorney of the complainant namely Uma Sankar Basu and by filing a petition he intimated this forum regarding such receipt and intimated that he is not willing to proceed with the case. On the basis of settlement the complaint was disposed of vide order dated 25.6.2013. Thereafter the complainant filed an appeal before the Hon’ble State Commission being F.A. 1043 of 2013 and the Hon’ble state Commission remitted the complaint case before this Forum. According to the version of the complainant that ordinary prudent person would definitely lodge a complaint with the insurance company if the policy document is not received within the expected time. Moreover the client has paid renewal against the said policy which proves his intention to continue the policy. The answering OP denied that any officer of the opposite party insurance company visited the house of the complainant and assured him to issue duplicate policy certificate without furnishing indemnity bond. He submitted that the complainant failed and neglected to pay the third premium in violation of the policy term and in order to cover up his own latches the complainant filed this instant complaint petition.
After perusing the averments of the complainant and documents and the written version of the OP No.1 and the evidence on affidavit of the parties and hearing the arguments we are in the opinion that the complainant did not get the policy bond after a prolonged time and put the matter before the OP who on his turn informed the complainant that they issued the policy bond and that was received by one B. Chakraborty and advised the complainant to submit indemnity bond to get the duplicate policy bond. The complainant declined to submit the indemnity bond to indemnify the loss as he did not get the policy bond. Being aggrieved by the act or omission on the part of the OP he filed the instant complaint for redressal. The complainant knocked the door of the OP on several occasions but of no result. Getting no alternative the complainant preferred the recourse of this Forum for redressal as prayed in the prayer portion of the complaint petition. During the course of proceeding the OP Supplied the duplicate policy bond to the representative of the complainant in the Forum who on his turn filed a petition on behalf of the complainant that since the OP No.1 has given the duplicate policy to the complainant the complainant will not proceed further with this case and he has no other claim against the OP No.2. and claiming no compensation as a result the Ld. CDRF, Hooghly by its order dated 25.6.2013 disposed the complaint petition with direction to the OP to consider the renewal of lapsed policy but no order as to litigation cost and compensation. Being aggrieved by the order of this Forum the complainant preferred an appeal before Hon’ble State Commission , WB for redressal the Hon’ble State Commission by its order dated 16.07.2014 sent back the case on remand to the Ld. Forum below i.e. CDRF, Hooghly for fresh order after giving of opportunities to both the appellant and the respondent as early as possible. On the face of argument the complainant assailed that he is praying for policy bond without any condition which is not received by him till date and prayed for compensation and litigation cost.
From the above discussion we may safely conclude that the OP No.1 failed to prove by producing sufficient document that he delivered the policy document to the policyholder in time. So, he is deficient in providing service to its consumer for which he is liable to pay compensation along with litigation cost. This Forum is also on the opinion to make a direction to the OP No.1 to deliver policy bond within the time framed.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove his case and the Opposite Party No.1 is liable to pay compensation for physical harassment, ,mental agony and pain to this complainant.
ORDER
Hence, it is ordered that the complaint case being No.32/2013 be and the same is allowed on contest against the Opposite Party No.1 with a litigation cost of Rs.2000 payable to this complainant.
The Opposite Party No.1 is directed to deliver the policy bond to this complainant within 30 days from the date of receiving the final order.
The OP No.2 is exonerated from this proceeding.
The OP No.1 is directed to pay a sum of Rs.10,000/- as compensation to this complainant within 30 days from the date of receiving this order.
At the event of failure to comply with the order the Opposite Party No.1 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 30 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
Dictated and corrected by me.Samaresh Kr. Mitra., Member.
