KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NOS. A 492/13 & A 558/13

COMMON JUDGMENT DTD:18/12/14

 (Appeal filed against the order in CC No. 474/2009 on the file of CDRF, Thrissur, dated 04/04/13)

PRESENT

SHRI.K.CHANDRADAS NADAR: JUDICIAL MEMBER

SHRI.V.V.JOSE                          : MEMBER

APPEAL NO. 492/13

APPELLANTS

1. Dhanalaxmi Bank Ltd.,

(erstwhile the Dhanalakshmi Bank Ltd.)

Puthur Branch, Thrissur

R/by its Branch Manager,

Mani.K.H., S/o. A.K. Hariharan

1. Chairman, Dhanlaxmi Bank Ltd.,

(erstwhile the Dhanalakshmi Bank Ltd.)

Naickanal, Thrissur.

(By Adv. Sri. Anithas Jacob)

V/s.

RESPONDENTS

1.  Sathyan P.A., Puthoor House,

Puthoor PO, Thrissur

1. Branch Manager, Met Life India Insurance Co. Ltd.,

Palace Road, Thrissur

1. Managing Director Met Life India Insurance Co. Ltd.,

Bragideseshamahal, 5 Vanivilas Road,

Rasvanagudi, Bangalore

(By Adv. Sri. V.K. Stephenson for R1)

APPEAL NO. 558/13

APPELLANT

PNB Metlife India Insurance Co. Ltd.,

Brigade Seshamahal, 5Vani Vilas Road,

Basavanagudi, Bangalore-560004, Karnataka

RESPONDENTS

1. Sathyan P.A., R/o. Puthoor House,

Puthur PO, Thrissur

1. Branch Manager,

The Dhanalakshmi Bank Ltd.,

Puthur, Thrissur

1. The Chairman,

The Dhanalakshmi Bank Ltd.,

Naikanal, Thrissur

COMMON JUDGMENT

SHRI.V.V.JOSE  : MEMBER

          The above two appeals were filed by the opposite parties in CC 474/09 in the file of CDRF, Thrissur.

                    2.      A.558-13 is filed by the 3^rd and 4^th opposite parties and A.492-13 is filed by the 1^st and 2^nd opposite parties in CC.474/04.  As the appeals are directed against the order in same case CC 474/09, appeals were considered and disposed together.

          3.      The case of the complainant narrated in the complaint and testified as PW1 is as follows:

          Complainant is a customer of 1^st opposite party from 1988 onwards.  He was not having sufficient education and doing iron works for his livelihood from his childhood.  He was helped by the staff of the first opposite party for filling his cheques and other dealings.  While so the complainant deposited Rs.50,000/- for six months.  It was the proceeds of the partition of his family property and was intended to construct his new house.  When he approached to renew the deposit the manager and staff of the 1^st opposite party induced him for a new deposit scheme of the bank in some other name, which has got more interest and free medical insurance.  The staff of the first opposite party made him believe the more benefits of the scheme and compelled him to join in it.  This was done by him because of his belief in the opposite party bank and its staff.  The opposite party officers obtained many forms and slips from the complainant blank.  For free medical insurance he was compelled to undergo a medical check up and the report was also kept by the opposite party’s staff.  He was assured that the receipt of the deposit will be sent by post.  He received a letter from the fourth opposite party for the subsequent installment of deposit.   Then only he understood that the staff and manager of the 1^st and 2^nd opposite parties made him deposit the amount in a scheme of 3^rd and 4^th opposite party to get good amount of Commission.  Actually he was unaware of the 3^rd and 4^th opposite party and their scheme also.

          4.      He approached all the opposite parties for refund of the deposit money.  But the response was negative with their reply that it should be clarified at the time of deposit itself and nothing can be done in this stage.

          5.      When complainant gave complaint to the 2^nd opposite party regarding the cheating of the 1^st opposite party and their deficiency of service, the staff of the 1^st opposite party approached him and asked with threatening to give a statement to the effected that the amount was deposited at his will only.  Again he gave a complaint to the 2^nd opposite party regarding the incident; nothing was happened to redress his complaint.  Hence this complaint in the Forum for a direction to refund of the amount with a compensation of Rs.25,000/- and with a cost of Rs.2,500/-

          6.      The counter averments of the first and second opposite party contented that the complainant is a customer and he knows to read and write in English.  He operates his account as per his desire and requirements.  They are not aware of his education and the alleged deposit is done voluntarily in the scheme of 3^rd and 4^th opposite party.  They claimed that the entire detail of the policy was explained to him and he took keen interest in depositing in it.  The policy was a product of the 3^rd and 4^th opposite party only.  He himself prepared the withdrawal form and application for draft and voluntarily subjected for medical examination, as medical report is a part of the procedure.  The policy would have received by the complainant much before; he got the communication for subsequent installments.  He is well aware that to conduct banking transaction, no need of medical examination as he was a long standing customer.  He voluntarily approached to invest in the policy for better returns and prayed for a dismissal.

          7.      The counter averments of the 3^rd and 4^th opposite parties in brief are as follows:

          Complainant, after understanding and deliberating on the terms and conditions of the insurance policy only submitted a duly filled in and signed application for insurance dated 27/3/2008.  He produced the required medical examination report also.  The terms and conditions of the policy provide a free look period of fifteen days for review and cancellation if dissatisfied.  As he didn’t done it the contract attained finality.  Illiteracy of the complainant is denied.  Policy was issued on 18/04/2008 and documents were also delivered to the complainant including the application of the policy.  The complainant raised only after lapse of over an year of issuance and delivery of the policy is not genuine. Hence prayed for a dismissal of the complaint.

          8.      Evidence adduced consists of oral testimony of complainant as PW1 and marked Exbt.P1 to P7 on complainant side and Exbt.R1 to R3 through complainant by opposite parties.

          9.      The definite case of the complainant is that the manager and staff of the 1^st opposite party insisted him to joins in a new insurance scheme and he was also forced to enter into such a scheme, which they claimed with more interest and free medical insurance for which he was insisted for a medical checkup.  The opposite party officials obtained several forms signed blank from the complainant.

10.    The contention of the 1^st and 2^nd opposite party is that the complainant prepared the forms by himself only.  They produced that document also.  One of their main contentions is that for doing banking transaction, no need of medical examination.  But this contention of opposite party was seriously denied by complainant that he was taken for medical examination by one of the staff of 1^st opposite party, which is part of misrepresentation.

11.    According to the forum the act of the opposite parties, definitely is a deficiency of service and complainant is entitled to get back the amount paid along, with compensation.  Hence directed to return Rs.50,000/- along with a compensation of Rs.20,000/- within two months.

          12.    Aggrieved by the above order the 1^st and 2^nd opposite party preferred A.492/13 and third and fourth opposite party preferred A.558/13 with various contentions.

13.    The main contention in appeal No.492/13 is that the order of the forum below is against facts and without appreciation of the evidence.  The complainant had voluntarily withdrawn money towards the transaction and filled the demand draft application himself. The transaction was out of his anxiety for more return and without any compulsion.   The policy subscribed was of another company and not of the appellants.  The forum didn’t considered the case of the appellant that any ordinary layman is aware that medical check up is not necessary for bank account.  No privity of contract between the complainant and appellants.

14.    The other appeal filed by the 3^rd and 4^th opposite party alleged that the lower Forum failed to appreciate the facts and circumstances of the present case.  The proposal form mentioned that the complainant engaged in engineering works.  He is the owner of the unit and it has got an annual income of Rs.3,00,000/-.  Complainant didn’t raised any complaint after getting the policy documents.  The contract attained finality as the complainant didn’t responded in the free look period.  Complainant has no right to challenge the concluded contract in a belated stage.  According to the appellants the Forum didn’t considered the fact the complainant undergone for medical examination, which shows that it was for the joining of insurance scheme.  The policy was issued by the appellants on the basis of proposal form.   No documents were produced to show the negligence, unfair trade practice or deficiency of service on the part of the appellants.  As the instant complaint is false, malicious, incorrect and malafide and is nothing but an abuse of the process of the law and lacks cause of action, which is liable to be dismissed. 

15.    We have anxiously gone through the complaint, version, depositions, Exhibits, Lower court records and the grounds urged in appeals and the rival contentions of parties concerned.  The contentions can be converged into two three points.  The complainant would argue that he is illiterate, ignorant and incapable of understanding things and hence he was induced by the I and II opposite parties to put his hard savings which were lying initially with the bank into in a lucrative and profitable scheme of III and IV opposite parties to have huge profit.  The opposite parties on the other had would content that the complainant is literate and capable to understand things and made to believe the entire aspects of the induction into the scheme, to substantiate this the bank has alleged that he is signing in English and all the relevant materials’ were signed by him to join in the scheme muted by III and IV opposite parties.  Similarly III and IV opposite parties say the relevant forms were signed by the complainant and he was given even a free look period of 15 days within which if he had any fear in the scheme, he can get out of the scheme without any loss of money.  On close perusal of the records we found that the I and II opposite   parties were the promoters, marketing agents and advisers of the scheme.  This is clear from the records produced before the Commission by the 3rd and 4^th opposite parties.  The 1^st and 2^nd opp. Party bank is described as their financial advisers for the said scheme.  The name is shown as DLB Puthur, which de notes that Dhanalakshmy Bank, Puthur is the marketing agents of III and IV opposite parties for value of consideration.  Needless to presume that agents of 3^rd and 4^th opp. Party, the bank, would have induced the complainant to join in the scheme for their benefit.  In this case the pleadings of the complainant is more probable than that of opposite parties.  The complainant would have swallowed the entire advice of the bank in totto, while taking the policy of 3^rd and 4^th opp. parties would have completed the formalities in a haste manner as part of their business promotion.

16.    It has come in evidence, the complainant is not capable to understand things in the real perspective and no negligence can be attributed against him.  The case of the complainant is more probable and we believe that he got induced in the scheme without proper understanding.  Even though the complainant has filed the complaint against the bank and its chairman without whispering the name of the persons concerned who indulged him in the scheme, we think it is not relevant to probe as the bank has not taken any such contentions.  The bank cannot shirk their responsibilities and wriggle out of the responsibility especially when the complainant was their long standing customer, who was depending for all his financial matters.  3^rd and 4^th opp. parties not disputed that the money was not deposited by complainant.  The prayer of the complainant to get back his money and to come out of the scheme is natural without raising the purely technical grounds.  The money is to be returned to the complainant without interest but with a megre compensation.  The money is lying with the 3^rd and 4^th opposite parties for last several years.  Hence the order of the lower Forum does not have any legal infirmity and hence we accordingly upheld the order.

In the result, the appeals fail and order of the lower Forum in CC No.474/09 sustained and upheld by this Commission.  The opposite parties are directed to return Rs.50,000/- along with a compensation of Rs.20,000/- within two months from the date of receipt of this order.  If the amount is not paid within the stipulated period the complainant would be entitled to get 18% interest for the deposit amount from the date of deposit till realization.  However in the circumstances of the case no cost is ordered in appeal.

V.V. JOSE: MEMBER

K.CHANDRADAS NADAR: JUDICIAL MEMBER

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