Orissa

Rayagada

CC/132/2017

Mrs Hemalata Mishra - Complainant(s)

Versus

Sri Ashish Kumar Sinha - Opp.Party(s)

Self

22 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   132/ 2017.                                      Date.    20    .  5     . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri Gadadhara   Sahu,                                                                     Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Mrs.  Hemalata  Mishra, W/O: Sri Banamali Mishra, At: Paik Street, Old Gunupur,   Po: Gunupur,Dist:    Rayagada, State:  Odisha. 765 022.                                                                                                                                     …….Complainant

Vrs.

1.Sri  Ashish Kumar Sinha, Superintendent of  Dist Jail, At/Po:Koraput.

2.The Branch Manager, Axis Bank, Gunupur Branch, Po: Gunupur,Dist:    Rayagada, State:  Odisha. 765 022.          

3.The General Manager,  Axis Bank, Central office,At: Market tower ‘F’, 13^th. Floor, Cufe Parade, Colaba, At/Po:Mumbai- 400005.

4.The Manger, Max life insurance Co. Ltd., Max New York life insurance Co. Ltd., Operation centre, 90-A, Udyog vihar, Sector- 18, Po: Gurgaon- 122015(India).                                                                                     

.…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri  P.K.Das , Advocate,  Rayagada

For the O.Ps No.1   :- Sri Sitaram Panda, Advocate, Rayagada.

For the O.P. No.2 & 3 :- Sri S.Ganapati Rao and Sri V.R.M.Patnaik, Advocates

For the O.P. No.4:- Sri Chinmoy Patra, Advocate and associates.

                                                          J u d g e m e n t.

          The present dispute arises out of the complaint petition filed by the above named complainant  alleging deficiency in service  against the afore said O.Ps non deposit   of premium  amount a sum of Rs.20,000/-  by the O.P. No.1 in the policy No.564602944 inter alia non refund of deposited all the amounts with bonus and accrued interest  for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps    put in their appearance and filed written version through their learned counsels in which  they refuting allegation made against them.  The O.Ps   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P.s . Hence the   prays the forum to dismiss the case against  them  to meet the ends of justice.

We have heard the submissions made across by and on behalf of   both the parties by their respective  Learned  counsels, as also  perused the pleadings filed there on.

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                        FINDINGS.

There  is no dispute that   the complainant has  availed a policy bearing No.564602944 with having sum insured value of Rs. 1,41,854/- and policy name is “Life Gain plus 20 participating plan” with  policy enforced date as  26.11.2010(copies of the policy document is in the file which is marked as Annexure-I). The First premium of Rs.19,999.63 was paid and subsequent  premium amount was at Rs.20,101/- which was payable for  next five years as the premium paying term is for 6(six) years and  policy coverage during term is for 20 years.   The premium paying mode was  annual as per option selection done by the complainant in the proposal form. The policy was done by the  complainant through the O.P. No.2 “The Axis Bank” who is the channel partner of the Max life  insurance  Co. Ltd.   Undisputedly  the complainant had paid annually only 5 (five) years premium for having total  premium amount as paid till date is Rs.1,01,406.00 and had failed to pay one year annual premium in the year 2014 (copies of the  premium receipt  is in the file which are marked as Annexure-2 to 6). 

The main grievance of the complainant is that  direct the O.P No.4 (Insurance company) to refund the original  deposited all  the amounts with bonus  from 2010 with  accrued interest  inter  alia  non deposit   of premium  amount a sum of Rs.20,000/-  by the O.P. No.1 in the policy No.564602944.

The O.P. No.4 (Insurance company)  in their written version contended that  the complainant had paid annually only 5 (five) years premium @ Rs.20,101/- per premium for having total  premium amount as paid till date is Rs.1,01,406.00 and had failed to pay one year annual premium in the year 2014. Hence his policy though active as  being under the clause of Non-Forfeiture benefits as per the policy contract terms and conditions which are binding between the parties.  The insurance company  has followed all the terms and conditions and the complainant   now in order to harass and victimize the O.P, has come up with false and frivolous allegation only by way this complaint.

The O.P. No.4(Insurance company) has relied citations in their written version  which are  mentioned here:-

It is held and reported  in   SCR 1996 (3) page No.500 in the case of General Assurance Society Ltd., Vrs. Chandmull Jain where in the Hon’ble Supreme Court observed “ In interpreting documents   relating to  a contract of insurance, the duty of the  Court is to interpret the words in which  the contract  is expressed  by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.”

Again it is held and reported in AIR- 2000 SC page No. 10 in the case of Oriental  Insurance  Co. Ltd. Vrs. Samayanallur Primary Agricultural Co. Operative Bank  where in  the Hon’ble  Supreme Court  observed “The insurance policy has to be construed  having reference only to the stipulations contained  in it and no artificial farfetched  meaning could be given to the words appearing in it”. 

Further it is held and reported in AIR-2005 page No. 286 where in the Hon’ble Apex court  observed “ The terms of the contract have to be construed  strictly without altering the  nature of the contract as it may  affect the  interest of parties adversely”.

For better appreciation  this forum relied citations which are mentioned here.

It is held and reported  in  C.P.R. 2011 (1) page No. 191  in the case of  in the case of  New India Assurance Co. Ltd., Versus M/s Sukhadham India Pvt. Ltd. Where in the Hon’ble National  Commission observed  “ Insurance Company must settle claim without delay”.

Again  It is held and reported in C.P.R. 2014(3) page No. 553 in the case of Sahara India Life Insurance Vrs. Rayani Ramanjaneyulu the hon’ble  National Commission in para-3 wherein observed “This appears to be a mistake committed by the agent.  Agent is the  villain and for his omissions and commissions, the complainant should  not suffer. On the contrary,  the  repudiation on this ground alone smacks of malafide intention   on the part of the  O.P.   By no stretch of imagination  it can held  to be a material fact.  It rather puts the complainant in a solid and impregnable position.  The Insurance company  has no bone to pluck with the complainant and as such the  Revision petition filed by the  Insurance company  stands dismissed”.

 

The O.P. No.1 Superintendent  of Jail in their written  version contended that  the complainant has  not paid any amount to the O.P. No.1 and the O.P. No.1 has never  received any  premium amount from the   complainant and the O.P. No.1 never  issued any money receipt to the complainant  for which the complainant has not filed any money receipt  for the reference of the forum. Further the  O.P. No.1 vehemently argued  that when in the above policy  there  is  agent name   which are clearly   mentioned agent name as  Sri Bimalendu Pariza in the  policy schedule  which  is  available in the file, hence the complainant  made the   O.P. No.1  as necessary  party  for  bad intention  to harass the O.P. No.1.

In the complaint petition  the complainant  submitted that  the O.P. No.1 has received the  premium amount for the period  of 2014 but had  not deposited  in the policy No. 564602944  till date.

On perusal of the record  this forum found  the complainant has not filed  any documentary evidence to substantiate  the payment of money  paid to the  O.P. No.1.   With out documentary evidence this forum  could  not  fixed  responsibility  on the    O.P. No.1

Further on  perusal  of the record  this forum observed  the  case involves complicated  question of facts  between  the complainant and O.P. No.1.

            While considering the grievances of the complainant  we rely  the decision, It is held and reported  in CPR  1991  (1) page -2  the Hon’ble  National Commission  where in   observed  “Section 2(i) ©- complaint petition- complicated  issues of fact involving    taking of oral and documentary evidence – cannot   be determined under this act- Civil  suit proper remedy- the procedure for disposal of  complaints   under the act  has been laid down in  the  Section – 13   of act sub-section –II,  III of the section shows  beyond doubt  that the statute does not  contemplated the determination  of complicated issues of  fact involving   taking of elaborate oral evidence and  adducing voluminous  documents  evidence  and detailed  scrutiny and assessment of such evidence. The Hon’ble  Commission   further observed   It is true that  the forums  constituted under the  act are vested with the  power to  examine witness on oath and to  order discovery and production of documents.  But  such power is to be exercised  in case  where the   issues involve are simple, such  as the  defective quality  of any goods  purchased or any short coming  are inadequacy in the   quality  nature of manner of performance  of service  which the respondent  as contracted to perform for consideration.  The  present case  can not be determined without   taking elaborate oral and documentary evidence. 

            The subject matter  of the complaint against the O.P.No.1 in the present case   however, has not been decided on merit and the complainant will be at liberty to bring any other proceedings on the subject matter before appropriate forum if it so chooses.

During the course of hearing the  complainant vehemently argued that  in the present case at the time of  filled up   proposal form the complainant was asked  by the agent  of the O.Ps to  sign on the doted lines without explaining  the benefits of the  scheme and  the entire proposal form was written by the agent in his own hand writing.  The agents responsibility is clearly explained in the IRDA instructions and also U/S- 182 and 212 of the contract act. Here the agents has failed to discharge the duty as an agent and in order to get his income as commission has falsely represented the rural folks to divert their money.  Hence the OPs had clearly violated the  norms  issued by the IRDA from time to time and as such the OPs  are  liable to refund  the amount paid by the complainant.

 In view of the discussion above it is found to be an  unfair  trade practice made by the agent of the  O.Ps.  The O.Ps have introduced the agent to do the unfair deal with the rural and urban people as seen from the Complaint petition and  argument advanced  by him,   as such the complainant  is  entitled to get  amount deposited by him in the said scheme so as to enable them to invest the same with their choice.

In view of the above discussion relating to the above case and  In Res-IPSA- Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Alliance Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.

 

ORDER.

            In resultant the complaint petition stands  allowed  in part  against  the O.P No.4( Max life insurance) and dismissed  against the O.Ps 1 to 3 on contest.

 

The O.P. No.4 (Insurance Company) is ordered to refund total deposited  premium a sum of Rs.1,01,406.00 with  bonus from the  date of respective deposit till  realization. No cost.

However  the complainant shall be free to avail  any other remedy, if   available  under law  against the O.P. No.1

 Parties are left to bear their own cost.  Accordingly the case  is disposed off.

Certified copy  of the order be served on the parties as per rule free of cost.

The above order is to  be  complied by the  O.P No.4(Insurance Company)  within  60 days from the date of receipt of this order.

Dictated and corrected by me

Pronounced on this                20 th. Day of    May,  2019.

 

 

Member.                                             Member.                                              President