Punjab

StateCommission

FA/12/1581

Kotak Mahindra Bank Ltd. - Complainant(s)

Versus

Sher Singh - Opp.Party(s)

Dr. Puneet Sekhon

05 Mar 2015

ORDER

 

PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1581 of 2012

                                                           

                                                Date of institution:   27.11.2012

                                                Date of decision    :   05.03.2015

 

1. Kotak Mahindra Bank Ltd, having Branch Office at SCF 108, Phase 3 B2, SAS Nagar, Mohali, through its authorized signatory.

…..Appellant/Opposite Party

                                                                                          Versus

 

1. Sher Singh son of Sh. Sant Ram resident of House No. 84, Chilla, Village Mauli Baidwan Tehsil and District SAS Nagar Mohali.

                                                                                                  Respondent/complainant

2. Kotak Mahindra Old Matual Life Insurance Limited, through its Manager having registered office at 9^th floor, Godrej Coliseum, being Everard Nagar, Sion East Mumbai-400022.
3. Kotak Life Insurance Limited, its Manager having branch office, SCO 313, Sector 9 Panchkula

 

First Appeal against the order dated 18.09.2012 passed by the District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali.

 

Before:-

 

          Sh. Gurcharan Singh Saran, Presiding Judicial Member

          Sh. Jasbir Singh Gill, Member

          Sh. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant      :                Sh. Mrigank Sharma, Advocate for

                                                            Mrs. P.K. Sekhon, Advocate

          For respondent No. 1       :        None

          For respondents No 2&3:            Proforma respondents.

 

 

 

 

GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER)

 

                                     

          This appeal has been preferred by appellant/opposite party No. 3 (hereinafter referred as ‘OP’) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against the order dated 18.09.2012 in C.C. No. 271 of 06.06.2012 passed by the learned District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali (in short the ‘District Forum’) vide which the complaint filed by the respondent/complainant (hereinafter referred as “complainant) was allowed with the directions to the OP No. 1 & 2 jointly and severally to refund the premium amount of Rs. 4,00,000/- with interest thereon @ 9% per annum with effect from 09.06.2007 till the date of actual payment and also to pay Rs. 50,000/- as compensation.  It was further ordered that OP No. 3 shall also pay compensation for deficiency in service and unfair trade practice to the tune of Rs. 50,000/- and each set of the OPs should also pay to the complainant cost of litigation to the tune of Rs. 5,000/-.

2.       The complaint was filed by the complainant against the OPs on the allegations that he is an illiterate and a simpleton old man and was having a saving bank account with OP No. 3.  In June, 2007, the complainant was approached by one Mohit Singh, an employee of OP No. 2 and persuaded him to make some investment in the insurance plans floated by OP No. 2 named as Kotak Retirement Income Plan.  He told the complainant that he will opt for one time premium amount and its lock in period was stated to be 3 years.  Upon the representation of the employee of OP No. 3, the complainant had agreed to make investment of Rs. 4 lac.  The proposal form was filled in by said Mohit Singh and got his thumb mark, then he went to Branch Manager, Jaswinder Singh Sra who got prepared draft No. 005728 dated 09.06.2007 issued in the name of OP No. 2 amounting to Rs. 4 lac as one time premium from the account of the complainant and it was intimated that its receipt will be issued by their Mumbai office.  Thereafter, the complainant kept on requesting for the issuance of the policy against the payment made by him and after repeated requests, he had received the premium certificate dated 21.05.2008 and it was intimated to him that this document is sufficient to get withdrawal of the amount after expiry of the lock in period.  The complainant was in need of money and he approached OP No. 3 in the month of February 2012, alongwith the said premium receipt certificate, when he was told that the he was supposed to pay the premium regularly for the period of 3 years.  Since he had failed to pay 2 premiums, therefore, his policy had lapsed and he was not entitled to receive any amount.  The OPs had connived with each other to deprive the complainant to get the premium money back which amounts to deficiency in service on their part.  Hence, the complaint with the directions to the OPs to refund a sum of Rs. 4 lac made by him alongwith interest since 09.06.2010 till date, also to pay the compensation to tune of Rs. 1 lac and Rs. 22,000/- as litigation expenses.

3.       The complaint was contested by the OPs.  OPs No. 1 & 2 filed their written reply by taking preliminary objections that the complaint was not maintainable in the present form as the complainant was not covered under the definition of consumer.  There was no deficiency in service on the part of the OPs.  The complaint has been filed on the basis of totally false, frivolous and concocted facts. The complaint is nothing but an abuse process of law.  The complainant had concealed the true and material facts.  The insurance plan was discussed with the complainant and then he signed the proposal form on 09.06.2007.  The proposal dispatch receipt was issued on 09.06.2007 after the acceptance of the proposal form.  The policy bond bearing No. 00670707 dated 15.06.2007 was issued in the name of the complainant by OPs alongwith first premium receipt on the given address.  But he did not make any grouse against the said policy within free look period of 15 days.  Under the Kotak Retirement Income Plan, the complainant had agreed to pay regular premium for a term of 10 years.  He did not pay the regular premium, therefore, the policy had lapsed.  Even the revival period was ended on 12.06.2010 and vide letter dated 13.06.2010 he was intimated regarding termination of his policy.  The allegations regarding non receipt of all the policy documents are totally false and based upon concoction.  These documents were sent by courier No. B43923802 and now the parties are covered by contract of insurance.  The complaint was also time barred as the policy in question was purchased in the month of June 2007 whereas the complaint has filed in the year 2012.  The OPs had been put into unnecessary litigation, therefore, the complaint be dismissed with special costs.  On merits, these averments were reiterated and ultimately it was submitted that the complaint was without merit and it be dismissed.

4.       OP No. 3 in his reply had taken the preliminary objections that the complaint is time barred as the policy was purchased in the year 2007 and complaint is filed in the year 2012. The complaint was based on totally false, frivolous and concocted facts, the complainant had miserably failed to show any deficiency on the part of the OPs. The complaint was nothing but an abuse of process of law. The OP was merely corporate agent of Kotak Mahindra Old Mutual Life Insurance Limited and had assisted the complainant in availing the insurance services provided by OP No. 1 and 2. The complainant  had duly availed the policy Kotak Retirement Income Plan vide cover bearing No. 50733607 after completing all the necessary formalities and submission of required documents. The terms and conditions of the policy were duly explained to the complainant at the time of purchase of policy and accordingly, declaration was duly signed by the complainant. There was no cause of action against this OP. On merits, it was denied that in the month of June, 2007, the complainant was approached by its employee Mr. Mohit Singh. Although, it was admitted the complainant purchased Kotak Retirement Income Plan. The complainant was duly apprised that in case yearly premium was not paid before the expiry of grace period, then policy will be automatically terminated,  in case, the premium was not paid for the first three policy years.  It was admitted that the proposal form was filled at the instance of the complainant. It was further explained to the complainant that in case the complainant had any enquiry, then he can keep in touch with official of OP No. 1 and 2. It was denied that this OP had connived OP No. 1 and 2 or committed any fraud with the complainant. It was admitted that a sum of Rs. 4 lac was paid by the complainant to OP No. 1 and 2 as premium. It was denied that the complainant had suffered any harassment of financial loss by not getting back his money. The complaint was without merit and it be dismissed.

5.       Parties were given opportunity to adduce evidence in support of their contentions.

6.       The complainant has tendered in evidence his affidavit Ex. CW1/1 and copies of receipts dated 11.06.2007 and 21.05.2008 Ex. C-1 and Ex.C-2.

7.       On the other hand the OPs have tendered in evidence the affidavits of their Chief Financial Officers Cedric Fernandes Ex. RW1/1 and Manager Jyotirman Chaudhary Ex.RW3/1; copies of proposal form Ex. R-1; income plan Ex.R-2; premium receipt dated 15.06.2007 Ex.R-3; policy details Ex.R-4; letter dated 13.06.2010 Ex.R-5 and courier receipts dated 26.02.2012 Ex.R-6.

 8.      After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated  18.09.2012 accepted the complaint in terms stated above.

9.       In the appeal, it has been stated by the counsel for the appellant/OP No. 3 that the appellant is an independent and corporate agent of OP No. 1 and 2 and assisted the complainant for availing the insurance services. Once the policy was purchased by the complaint, then the contract was with the OP No. 1 and 2. In case, the complaint alleges that some fraud was played with the complainant at the instance of Mohit Singh, an employee of the OP which fact was denied by OP in their written reply. Moreover, Mohit Singh was not made a party to give a chance to the other parties whether any fraud or cheating was committed by the said official of the bank with the complainant. With regard to the claim against OP No. 1 and 2 which was allowed by District Forum, but unnecessarily a sum of               Rs. 50,000/- and Rs. 5,000/- as litigation costs has been imposed upon this OP on account of deficiency in service and unfair trade practice on their part, whereas there was no evidence on this point with the District Forum, therefore, this order is liable to be set aside.

10.     None had appeared on behalf of the respondent No. 1, therefore we have heard the arguments of the counsel for the appellant and have perused the record.

11.     In case we go through the order passed by Ld. District Forum, the Ld. District Forum had observed that OP No. 1 and 2 have not filed the affidavit of Mohit Singh. It was admitted by OP No. 3 in their written reply that the proposal form of the complainant was got filled by them as per his instructions, otherwise the plea of any fraud or cheating with the complainant was denied by OP No. 3. In case, the complainant is alleging that any cheating was done with him by Mohit Singh, it was for him to prove that fact and apart from his simple statement, no other evidence has been produced on record by the complainant. That version has been denied OPs and in the absence of Mohit Singh being a party to it, the preposition whether Mohit Singh had played fraud cannot be decided. Otherwise, this appellant is just an agent. The Policy was purchased by the complainant which has not been denied and in case, the nature of policy was different, then he could more against OP No. 1 & 2 to cancel it within free look period.

12.              We are of the opinion that the orders passed by the Ld. District Forum to penalize OP No. 3, who was just an agent, is not correct and is liable to be set aside. Therefore, we accept the appeal and set-aside the order of the District Forum qua OP No. 3. 

13.              The appellant had deposited an amount of Rs. 25000/- with this Commission at the time of filing of the appeal. The amount of Rs. 25000/- alongwith interest be remitted to the appellant/OP No. 3 by way of a crossed cheque/demand draft after the expiry of 45 days subject to stay, if any, by the Higher Fora/Court.

14.               The arguments in this appeal were heard on 27.02.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

 

                                                                                                                                               (GURCHARAN SINGH SARAN)

                                                                                                                                              PRESIDING JUDICIAL MEMBER

 

 

                                                                                 (JASBIR SINGH GILL)

                                                           MEMBER

 

 

                                                                    (HARCHARAN SINGH GURAM)

March 5, 2015.                                                                                                                             MEMBER          

Rupinder