KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOs.507/2006 & 600/2006
COMMON JUDGMENT DATED:28-09-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPEAL NO.507/2006
1. Citi Bank NA,
Near City Hospital,
M.G.Road, Ernakulam.
R/by its Branch Manager,
Anoj Koshy.
: APPELLANTS
2. Ms. Karuna Menon,
Madhavam, Kannanthodathu Lane,
Kochi-16.
(By Adv. M/s. Sheriff Associates)
Vs
1. Robinson John
Residing at Nilavarayath House,
16/894, Indira Road,
Thoppumpady, Kochi – 682 005.
: RESPONDENTS
2. M/s Birla Sunlife Insurance Co. Ltd.
Sona Towers, M.G. Road,
Kochi – 16
APPEAL NO. 600/2006
1. M/s. Birla Sun Life Insurance -
Company Ltd.,
Sona Towers, M.G. Road, : APPELLANT
Cochin – 16.
(By Adv. C.S. Manu & others)
Vs
1. Robinson John
S/o N.A. John, aged 38 years
Nilavareyath House,
16/894, Indira Road,
Thoppumpady, Cochin – 5.
(R1 By Adv. George Cherian Karippaparambil)
2. City Bank, N.A.,
Near City Hospital, M.G. Road, : RESPONDENTS
Ernakulam.
3. Karuna Menon,
‘Madhavom’, Kannamthodathu Lane,
Cochin – 16.
(R2 & R3 By Adv. Lal K. Joseph)
COMMON JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeals are preferred from the order dated:29.5.2006 of the CDRF, Ernakulam in CC.614/05. The complaint therein was filed alleging deficiency of service on the side of the opposite parties in getting deposit of Rs.4,41,012/- by making the complainant to believe that the said deposit is towards the one time investment having the added benefits of insurance coverage, loan facility etc; that the complainant received a renewal premium notice dated:28.4.2005 from M/s Birla Sun Life Insurance Company Ltd for effecting deposit of insurance premium; that the complainant came to understand that the deposit of Rs.4,41,012/- effected was not as one time investment. Hence the complainant filed the complaint in CC.614/05 to refund of the said sum of Rs.4,41,012/- with interest and cost of Rs.5000/-.
2. The 1st opposite party filed written version denying the alleged deficiency in service. It was contended that the payment of Rs.4,41,012/- was made towards the annual insurance premium and that the said payment was received from the complainant through the 2nd opposite party, Citi Bank NA, the corporate agent of the 1st opposite party. Thus, the 1st opposite party prayed for dismissal of the complaint filed against them.
3. The opposite parties 2 and 3 filed joint written version denying the alleged deficiency in service. They contended that the 2nd opposite party acted only as the agent of the 1st opposite party by introducing the scheme of the 1st opposite party to the customers of the 2nd opposite party; that the opposite parties 2 and 3 have no direct business transaction with the complainant; that the 3rd opposite party on request of the complainant handed over the relevant brochures of the 1st opposite party and that the complainant expressed his willingness to adopt flexi cash flow money back plan and that the 3rd opposite party had not given any advise to the complainant as alleged.
4. The complainant filed proof affidavit and he was examined before the Forum below as PW1. The Branch Manager of the 2nd opposite party filed proof affidavit and he was examined as DW1. The 3rd opposite party also filed proof affidavit before the Forum below and she was examined as DW2. Ext.A1 renewal premium notice received by the complainant was marked as Ext.A1. B1 to B3 documents were also produced and marked on the side of the opposite parties.
5. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:29th May 2006 allowing the complaint and directing the opposite parties to pay the complainant Rs.4,41,012/- with interest at the rate of 9% per annum from 12.2.2005 till payment and cost of Rs.1000/-. Aggrieved by the said order, the 1st opposite party therein filed Appeal-600/06 and that the opposite parties 2 and 3 jointly preferred the Appeal-507/06.
6. These two appeals were heard together, as these appeals are preferred from one and the same order passed by CDRF, Ernakulam in CC.614/05. For the sake of convenience, the parties to these appeals will be referred to according to their rank and status before the Forum below in CC.614/05.
7. This State Commission was pleased to hear the appellants/opposite parties and the respondent/complainant. The learned counsel for the appellants submitted their respective arguments based on the grounds urged in the present appeal memorandums. They relied on B1 application Form for Insurance on Own Life and B2 policy illustrations and B3 statements prepared by the 2nd opposite party for the 1st opposite party M/s Birla Sun Life Insurance. They vehemently argued for the position that the respondent/complainant joined the life insurance scheme introduced by the 1st opposite party, M/s Birla Sun Life Insurance Company Ltd after fully understanding the pros and corns of the said scheme and that the complainant joined the life insurance scheme with his free will and consent. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below and also for dismissal of the complaint in CC.614/05. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He disputed the correctness of B3 financial statement and submitted that the complainant had no financial ability to make yearly payment of Rs.4,41,012/- for a period of 15 years. It is further submitted that there is no acceptable evidence to show the monthly income and the financial stability of the complainant to make such annual payments towards the insurance scheme. He also relied on the testimony of the complainant as PW1 and the evidence tendered by DWs 1 and 2 in their
cross-examination. Thus, the respondent/complainant prayed for dismissal of these appeals.
8. There is no dispute that the complainant, Mr.Robinson John deposited Rs.4,41,012/- with 1st opposite party, M/s Birla Sunlife Insurance Company Ltd and that the said payment was effected through the 2nd opposite party Citi Bank NA, Ernakulam. It is the definite case of the complainant that 3rd opposite party Karuna Menon and one Narayanan employees of Citi Bank NA, Ernakulam made the complainant to believe that on deposit of Rs.4,41,012/- he will be benefited of having one time investment with the 1st opposite party, M/s Birla Sun Life Insurance Company Ltd and that the aforesaid investment will be having the benefit of life insurance coverage, loan facilities, high return etc and by believing the words of opposite parties 2 and 3 viz. one Narayanan and Karuna Menon, the complainant deposited Rs.4,41,012/- with the 1st opposite party through opposite parties 2 and 3. It is also averred by the complainant that he is an evacuee from Kuwait during the Kuwait war; that he received a compensation of Rs.8,76,000/- through the intervention of United Nations Organizations and he deposited a sum of Rs.7,35,000/- in his SB account with 2nd opposite party, City Bank NA, M.G.Road, Ernakulam Branch and that it is from the said amount he deposited Rs.4,41,012/- by way of one time investment by believing the words of opposite parties 2 and 3. The complainant has also got a case that he is the proprietor of a Beauty Parlour by name M/s Sleek Gents Beauty Care, Indira Road, Thoppumpady, Kochi-5 and he is earning an average monthly income of Rs.4000/-. It is the definite case of the complainant that he is not having the financial ability and stability to pay yearly premium of Rs.4,41,012/- for a total period of 15 years as contended by the opposite parties. Thus, the complainant prayed for refund of the amount which he deposited with the opposite parties with interest and costs.
9. It is an admitted fact that 2nd opposite party, Ciiti Bank NA, Ernakulam is the corporate agent of 1st opposite party, M/s Birla Sun Life Insurance Company Ltd and that 3rd opposite party is working under 2nd opposite party. It is also come out in evidence that 3rd opposite party has been working as an advisor for the corporate agency section of 2nd opposite party Citi Bank NA, Ernakulam Branch. The 3rd opposite party as DW2 admitted the fact that the complainant approached 2nd opposite party, Citi Bank and that the complainant is a customer of the bank. The 3rd opposite party has also filed proof affidavit before the Forum below. The averments in her proof affidavit and her admission during her cross-examination would make the case of the complainant more probable and acceptable. It is come out in evidence that the complainant was prompted to make the deposit under the scheme of 1st opposite party, M/s Birla Sun Life Insurance Company Ltd. The available circumstances would also show that the complainant deposited the aforesaid sum of Rs.4,41,012/- by way of one time investment by believing the words of opposite parties 2 and 3 especially, 3rd opposite party that the said investment will give the complainant more benefits than keeping the said amount in the SB account of the 2nd opposite party bank. It is also believable that opposite parties 2 and 3 induced the complainant to pay the aforesaid sum of Rs.4,41,012/- by way of one time investment.
10. A close study of the testimony of DWs 1 and 2 and the proof affidavits filed by them would make it clear that opposite parties 2 and 3 have no consistent case. The manner in which they have deposed before the Forum below would create genuine doubt about the case put forward by them. A comparison of the oral versions of DWs 1 and 2 with that of the testimony of PW1 would make it clear that what is deposed by PW1 is more acceptable and believable than that of the testimonies of DWs1 and 2. So, the Forum below can be justified in placing reliance on the testimony of PW1.
11. An important aspect to be considered in the present case on hand is the financial ability and stability of the complainant to make such payments towards the premium for a life insurance policy. It is deposed by PW1 that he has studied only up to SSLC and he is not so fluent and conversant to understand a document printed or written in English. The opposite parties placed reliance on Exts.B1 to B3 documents. B1 is the application for insurance on Own Life/Another Life. The aforesaid application is in English. The declaration appended to B1 application form is also written in English. It is the case of the complainant that he affixed his signature in B1 application form without understanding the details given in that application form. It is the case of the complainant that he put his signature in B1 application form as directed by the 3rd opposite party and one Narayanan of 2nd opposite party bank. He has also got a definite case that his signature was obtained in a blank application form. So, it is hard to believe that the complainant put his signature by fully knowing the contents of that document.
12. Ext.B2 is the policy illustration issued by 1st opposite party, Birla Sun Life Insurance Company Ltd. This document is also printed in English. The signature of the complainant is also obtained in B2 illustration. It can also be seen that the 2nd opposite party Citi Bank’s Insurance Advisor has also affixed his signature in B2 policy illustration. It can also be inferred that the complainant put his signature in B2 policy illustration without knowing the contents of that document.
13. Ext.B3 is the financial statement prepared by 2nd opposite party/Citi Bank. The aforesaid financial statement was prepared by the officers of Citi Bank on behalf of 1st opposite party, M/s Birla Sun Life Insurance Company Ltd. The details or the data incorporated in B3 financial statement cannot be accepted as such. No document is forthcoming to uphold the correctness of the details given in B3 financial statement prepared by the officers of 2nd opposite party with respect to the financial position of the complainant. It is to be noted that the annual income of the complainant is shown as Rs.25.lakhs, in B2 financial statement. It is also stated that the complainant is having the assets worth Rs.70.lakhs. It is further stated that the complainant is having investments worth Rs.20.lakhs and cash deposit/certificates worth Rs.10.lakhs. But the aforesaid data given in B3 financial statement are not supported by any documentary evidence. In other words, the details in B3 financial statement are not supported by any document. So, no reliance can be placed on B3 financial statement. On the other hand, evidence of PW1 and also the facts and circumstances would make it clear that B3 financial statement prepared by the 2nd opposite party for and on behalf of the 1st opposite party cannot be relied on. No reliance can be placed on B3 document.
14. The opposite parties have got a definite case that the complainant is having the yearly income and the financial ability and stability to pay an annual insurance premium of Rs.4,41,012/-. It is contended by the opposite parties that the complainant is having an annual income of Rs.25.lakhs. But no piece of evidence is available on record to substantiate the said case of the opposite parties. It is also to be noted that the opposite parties have no case that the complainant is an income tax assessee. They have no case that the complainant filed income tax return at any point of time. Had the case of the opposite parties that the complainant is having an annual income of Rs.25 lakhs is true and correct, there would be documents evidencing the said annual income of Rs.25 lakhs. But the opposite parties could not produce any piece of paper to show that the complainant is having such an income. It can be concluded that the opposite parties assessed the annual income of the complainant at Rs.25 lakhs without any basis and the same is stated to support their case in the written versions filed in CC.614/05.
15. The complainant is definite on his stand that he is running a beauty parlour and getting monthly income of Rs.4000/-. The case of the opposite parties that the complainant is having the professional status as a man power supply agent and other avocations has been denied by the complainant. The available evidence would only show that the complainant is having an annual income of Rs.48,000/-. Of course he was having a total of Rs.7,35,000/- in his SB account with 2nd opposite party, Citi Bank NA, MG Road, Ernakulam Branch. It can be seen that the complainant was not having the financial capacity to pay Rs.4,41,012/- each for the coming 14 years regularly. This circumstance would make it crystal clear that the complainant ought not have paid the said sum of Rs.4,41,012/- by way of life insurance premium. This is a strong circumstance to accept the case of the complainant that he effected payment of Rs.4,41,102/- during the year 2004 only by way of one time investment for getting higher benefits than keeping the said amount in the SB account. So, the Forum below has rightly allowed the complaint and directed the opposite parties to refund the said amount of Rs.4,41,012/- with interest and cost. Therefore this State Commission is of the view that there is no merit in the present appeals and the same are liable to be dismissed. Hence we do so.
In the result these two appeals are dismissed. The impugned order dated:29th May 2006 passed by CDRF, Ernakulam in CC.614/05 is confirmed. As far as the present appeals are concerned, the parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
