KUNDAN KUMAR KUMAI

This is an appeal under Section 15 of the Consumer Protection Act 1986, preferred against the judgment and order dated 08/12/2017, passed by the Ld. DCDRF, Jalpaiguri, in Consumer Case No. 31/2014.

Brief facts of the appellant's case are that, the respondent no. 1/ complainant, a retired railway man became a customer of the appellant no. 2 bank, in the year 2005, by having an account being no. 01511000046735, with credit card facilities being credit card no. 4346781014277131. Being pestered by the respondent insurance company, the respondent no. 1 / complainant, purchased two insurance policies from the respondent insurance company, Kolkata office, when they sent a lady agent and staff, who to took two signatures on two agreements of the signature policy, being policy no. 14775494 and the date of commencement of the policy being 14/12/2011, against a premium amount Rs. 24,372/- (Twenty-four thousand three hundred seventy-two) only.

But the respondent no. 1/ complainant was surprised to find, that another HDFC Life Insurance Policy being no. 14889132, had been issued on 31/01/2012, without the consent of the respondent no. 1/ complainant and also without his signature. He also found, that the policy which had been sent to him did not bear his signature, as the one appearing on it was a forged one. The said policy had been made by forging the signature of the complainant for the purpose of fraudulent and ulterior motives and premium amounting to Rs. 18,000/- (eighteen thousand) only, had been deducted from the credit card account of the respondent no. 1/ complainant, by the bank of the appellant no. 2 on 30/01/2012. Immediately respondent no. 1/ complainant informed the appellant and the respondents insurance companies, who assured him that the same might have been an error and would be rectified and the deducted amount would be restored in his credit card account.

On 19/03/2012, the respondent no. 1/ complainant got another fraudulent HDFC Life Insurance Policy being no. 15033562, which also had been issued after forging the signature of the respondent no. 1/complainant and a premium amount of Rs. 30,000/- (Thirty thousand) only had been deducted on 20/03/2012, from the credit card account maintained in the appellant no. 2 bank.

On 28/04/2012, the respondent no. 1/ complainant got another fraudulent HDFC Life Insurance Policy being no. 15138438, which also had been issued after forging the signature of the respondent no. 1/complainant and a premium amount of Rs. 30,000/- (Thirty thousand) only had been deducted on 30/04/2012, from the credit card account maintained in the appellant no. 2 bank.

On 28/06/2012, the respondent no. 1/ complainant got another fraudulent HDFC Life Insurance Policy being no. 15260980, which also had been issued after forging the signature of the respondent no. 1/complainant and a premium amount of Rs. 15,001/- (fifteen thousand one) only had been deducted on 29/06/2012, from the credit card account maintained in the appellant no. 2 bank.

On 18/06/2012, the respondent no. 1/ complainant got another fraudulent HDFC Life Insurance Policy being no. 15300546, which also had been issued after forging the signature of the respondent no. 1/complainant and a premium amount of Rs. 50,000/- (Fifty thousand) only had been deducted on 17/07/2012, from the credit card account maintained in the appellant no. 2 bank.

Repeatedly the respondent no. 1/complainant, appealed to the appellant branch and respondent insurance company branch at Siliguri, for cancellation of the above policies and refund of the money, but inspite of assurance nothing came of it. Finding no other alternative and as per advice given by

the well-wishers and other professionals, lodged a written complaint at Grievance.Redressalcc@hdfcbank.com on 17/08/2012. Getting no response, he again lodged a complaint to aditya.puri@hdfcbank.com on 28/08/2012.

Thereafter, he issued a legal notice on 22/11/2013 by registered post demanding his cash. Finding no alternative, as there was no response and being a consumer, he lodged this instant case with prayers mentioned in this complaint. Hence this case.

The appellants contested the claim by filing written version, wherein they have denied the respondent no. 1/complainant’s case and that the insurance policy had been sanctioned by the other respondent insurance company and the appellants had no role to play and the appellant and the other respondent insurance company were different entities and prayed for the dismissal of the case.

The respondent insurance company did not appear to contest the claim and the case was heard and decided ex-parte against them.

The appellants and the respondent no. 1 /complainant did not adduce any evidence and prayed for treating the complaint and the written version as evidence.

After hearing the respondent no. 1 /complainant and the appellants and on perusal of the materials on the record, the Ld. DCDRF, Jalpaiguri, passed the impugned order wherein the appellants 1 and 2 were directed to pay Rs. 1,23,001(One lakh twenty-three thousand one) only, to the respondent no. 1/ complainant and deposit Rs. 20,000/- (Twenty thousand) in the bank account of State Consumer Welfare Fund, within one month from the date of order failing which the above amounts would attract interest @8% per annum, from the date of filing of the case i.e., 18/02/2014, till realization, however the appellants 1 and 2 were at liberty to realize 50% the entire amount from respondents 3 and 4.

Being aggrieved by the above order, the appellants 1 and 2 preferred this instant appeal on the ground, that the Ld. DCDRF, Jalpaiguri, erred in law and facts while passing the impugned order on the ground and the appellant no. 1 and 2 had no role to play and the main grievance of the respondent no. 1 /complainant was against the respondent 3 and 4 for practicing unfair trade practice.

Decision with reason

Ld. Advocate for the appellant, at the time of final hearing had stressed upon the fact, that the appellants were mere bankers to the respondent no. 1 /complainant and had been unnecessarily dragged in this dispute. The appellants had merely deducted as per the terms and condition and after verifying, all the necessary documents and signature of the respondent no. 1 /complainant. The appellant bank had also issued a notice dated 10/01/2013 to the respondent no. 1 /complainant stating that the appellant bank had placed a ‘Hold On Funds’ in his HDFC account by exercising ‘Bankers Lien and Right of Set Off ’ option at liberty to realize 50% of the amount from the respondent 3 and 4.

He had also assailed, the impugned judgment on the ground, that the Ld. DCDRF, Jalpaiguri had illegally arrived at the conclusion, that the signatures had been forged without resorting to the option of relegating the matter to the Civil Court in view of the principles percolating from the judgment passed by the Hon’ble NCDRC, in Bright Transport Company Vs. Sangli Sahakari Bank Ltd. (2012 2CPJ 151. He had further argued, that the Ld. DCDRF, Jalpaiguri, had wrongly held the appellants liable on the pretext, that the appellants did not verify and compare the signatures as it has been held in UCO Bank Vs. S.D Wadhawa (2013 3 CPJ 523, that a banker was not supposed to compare the signature of the account holder on the cheque with the same technique is adopted by CFSL. He had also relied on the judgment passed in O. Bharatan Vs. K. Sudhakaran and Another (1996 2 SCC 704, passed by the Hon’ble Supreme Court wherein it was held, that it was erroneous to decide by comparing the disputed signatures without the aid of an expert and the same principle was followed in Kothandapani Padayachi Vs. Rangantha Padayachi and Others (1997 1 MLJ 304, by the Hon’ble Madras High Court.

Ld. Advocate for the respondent no. 1 /complainant, had opposed the appellant contention on the ground, that he had not put any signatures on the proposal forms of the disputed Life Insurance Policy and as such the signatures had been forged and manufactured. He had also submitted that the appellant authorities had been intimated, by visiting the bank authorities at Siliguri and also by lodging online complaints on 17/08/2012 and 28/08/2012 and also by sending legal notice. Even after the complaint was lodged before the Ld. DCDRF, Jalpaiguri, the appellants never specifically denied, that the signature appearing on the proposal form were forged or not, as such the appellants had admitted the fact, that the signature had been forged.

Moreover, the photocopy of the proposal forms showed, that the signatures by the respondent no. 1/complainant had been made at Siliguri, whereas the employee of HDFC bank had put his signature on the selfsame proposal form at Kolkata, on the very date which was next to impossible and thereby indicating that the signatures appearing on the proposal form had been forged. That apart there is no evidence forthcoming from the appellant side that the respondent no. 1 /complainant had made any standing order to deduct any amount from his credit card and could be done without the consent of the respondent no. 1 /complainant. Thus, there was deficiency of service, as well as adoption of unfair trade and practices on the part of the appellants and the respondents 2, 3 and 4, for which reason the impugned judgment needed to be upheld. He had relied in the judgment passed in Gian Chand and Bros Vs. Rattan Lal alias Rattan Singh, passed by the Hon’ble Supreme Court on 08/01/2013 and reported in (2013) 2 WBLR (SC)725, wherein evasive denial in written statements has been termed as no denial.

Ld. Advocate on behalf of the respondents 2, 3 and 4 on the other hand had submitted, that the respondent no. 1 /complainant had ample opportunity to file an execution case to execute the impugned order, but did not file for reasons not disclosed and the respondent no. 1 /complainant had not approached the forum with clean hands as the policy numbers. 15260980 (Premium amount Rs. 15,001/-) And 15300546(premium amount Rs. 50,000/-) were withdrawn by the respondent insurance companies, as the above premium amounts had not been credited to the account of the respondent insurance companies, due to bouncing or reversal of the payments. But in the impugned order, the Ld. Forum below had allowed, the policy having premium amount of Rs. 15,001/-, as the respondent no. 1 /complainant had misled the Ld. Forum making the order of the Forum invalid and void. He had further stated, that the

appellant had also failed to raised that fact before Ld. Forum, but did not do so.

Moreover, the respondent no. 1 /complainants’ case was mainly relating to the deficiency of services by the appellant banks towards the respondent no. 1 /complainants, rather than against the respondent insurance companies, following which the respondent no. 1 /complainant lodged complaint against the appellant banks at their e-mails and not those of the respondent insurance companies. Furthermore, the insurance had not been sold by the respondent insurance companies, as, had the same been done, the respondent no. 1 /complainant would have been properly guided. Even in case of mis-sale the respondent no. 1 /complainant had been intimated by documents No. 49,53,56,58,62 and 79 sent by forwarding letter dated 30/04/2012, 22/03/2012,30/01/2012, 02/07/2012,19/07/2012 and 31/01/2012, which contained the ‘option to withdraw ‘which the respondent no. 1 /complainant never availed, as he had no grievance related to the insurance of those policies, he had relied in the judgment passed in D. Srinivas Vs. SBILI passed by the Hon’ble Supreme Court, wherein it was observed wherein the aforesaid judgments only laid down a flexible formula for the Court to see as to whether, there was clear indication of acceptance of the insurance, wherein the instant case, the respondent no. 1 /complainant had accepted all the policies and the complaint had been filed as an afterthought to gain monetary benefits. Moreover, the appellant bank, being the corporate agent of the respondent insurance company and the sale and receipts of the premium amount, which were disputed was between the respondent no. 1 /complainant and the appellants bank and did not involve the respondent insurance companies.

It is further argued, that the dispute involved complicated questions of fact and law and should not be dealt with in a summary manner and has relied in the judgment passed in Shri Patidar Timber Inds Vs. The bank reported in 1998(3) CPR 4 and the above dispute should have been relegated to the Civil Court for proper trial. It had also been argued, that the allegation of forgery or signature by the respondent no. 1 /Complainant, should be proved by him and therefore, the observation of the Ld. DCDRF, Jalpaiguri, in this regard appears to be an error and such cases should have been relegated to the Civil Court, in view of the principles percolating from the judgment passed by the Hon’ble NCDRC, in Bright Transport Company Vs. Sangli Sahakari Bank Ltd. (2012) 2CPJ 151. He therefore, prays for dismissal of the appeal.

At the very outset, it needs to be mentioned that the impugned judgment had been passed exparte against the respondent insurance companies 2, 3 and 4 and the appellants had been given the liberty to realize 50% of the decretal amount from the respondent 2, 3 and 4, thus effectively binding them by the impugned order. Under the circumstance, when the respondent insurance companies 2, 3 and 4 have appeared to contest this appeal by pointing out certain infirmities in the impugned judgment, by pointing out, that the policy having premium amount of Rs.15,001/- had not been accepted, whereas the said amount had been incorporated in the decretal amount of the impugned judgment, making it to be a new fact not agitated before the Ld. DCDRF, Jalpaiguri, and as such the same cannot be taken into contention at this appellate stage, affecting the validity of the impugned order. Therefore, on this ground itself, this appears to be a fit case to remand this case to the Ld. DCDRF, Jalpaiguri for hearing afresh. As regards the other factual aspects, as to the ascertainment of the deficiency in service, as well as the forgery alleged, the same maybe agitated before the Ld. DCDRF, Jalpaiguri, by filing fresh averments and evidences. Hence, this appeal be remanded to

the Ld. DCDRF, Jalpaiguri, for a fresh hearing and decision.

It is therefore

Ordered,

That the instant appeal be remanded to the ld. DCDRF, Jalpaiguri for fresh hearing and decision after providing opportunities to all the parties for filing averments and evidences, if necessary.

Copy of the judgment be handed over to the parties free of costs.

Copy of the judgment be also sent to the Ld. DCDRF, Jalpaiguri, for necessary compliance.