The instant appeal has been directed against the final order/judgment being no-12 dated 08/08/2018 passed by ld DCDRC, Kolkata unit-1 (North) in connection with CC case no-339/2017 wherein the ld Trial Commission below while disposing of the said complaint case allowed the same ex-parte with cost against the opposite parties and being aggrieved and dissatisfied with such order, the present appeal has been preferred by the appellant/OP.

The brief fact of the case is that the complainant received a phone call from the opposite party no-2/insurance agent in respect of opening of an insurance policy. The op-2 explained the terms and conditions of the policy through mobile phone and requested the complainant to open a policy. Op 2 also stated that it was one time premium policy and the complainants had an opportunity to withdraw the amount at any time. The complainant believed the said statements of op no-2 and op no-2 visited the house of the complainant. Upon believing the statements advanced by the op-2, the complainant intended to get insurance policy from the op/insurance company. The complainant paid the amount of Rs. 14,91,300/- to the agent of the op/insurance company and the said payment was made through the demand draft as well as by cash. The relevant documents and papers were handed over to the op-2. The op-2 did not obtain any signatures of the complainants but after expiry of few days the complainants received some policy papers by post wherefrom it was found that all the policies were issued by obtaining the signatures of all complainants fraudulently. The complainants were very surprised to know that the aforesaid policies were not onetime premium policies. The matter was informed to the op/insurance company forthwith but the op/insurance company did not pay heed. Having no other alternatives the complainants knocked at the door of the Commission for getting proper reliefs as prayed for.     

Despite receiving the notices, the opposite parties did not contest their case by filing written version and as such the case was fixed for ex-parte hearing against them. 

In course of hearing ld. counsel appearing for the appellant/OP/insurance company drew our attention to the observations of ld Trial Commission below and pointed out that the ld Trial Commission below completely ignored and overlooked the materials on record while passing the impugned order mentioned above. Ld counsel submitted that the insured had an enough opportunity to cancel the policies within the period of 15 days from the date of receipt of the said policies. Even the insured made no request for cancellation of the same. The ld counsel also submitted that in case of surrender of the policies, the complainants would be entitled to get the fund value after deduction of the surrender charges but after the end of third policy period. There is no gross negligence and deficiency in service on the part of the appellant/OP. Accordingly the ld counsel prayed for setting aside the order impugned dated 08/08/2018 passed by the concerned DCDRC.

In course of hearing ld counsel appearing for the respondents/complainants submitted that the signatures of all complainants were forged by the opposite party no-2/agent/broker of the insurance company. The opposite party no-2 committed criminal offence and the act of the opposite party no-2/agent/broker is the act of the principal/op/insurance company. The policies issued by the op/insurance company were not one time premium policy. Cunningly the opno-2 insisted the complainants to open the aforementioned policies. Ld counsel also added that the complainants sought for appointment of handwriting expert for comparing the signatures of the complainants but the op/insurance company did not support the complainant. They kept mum. There is clear gross negligence and deficiency in service on the part of the opposite parties and accordingly the ld counsel for respondent/complainant prayed for dismissal of the instant appeal with exemplary cost.

In course of hearing neither the Respondent nor their Ld. Counsel appeared at the time of final hearing.

In course of hearing neither the Pro-forma Respondent nor their Ld. Counsel also appeared at the time of final hearing.

We have heard the ld. counsels for both sides at length and in full.

We have also perused all materials on record meticulously.

We have considered the submissions of the ld counsels.

Whether there is any gross negligence and deficiency in service on the part of opposite parties as per Consumer Protection Act 1986 or not that should be decided in order to meet the proper justice to the parties and in this respect we try to untie the following issues one by one:-

1. We have carefully perused Anx-B issued by Mr. Anber Kumar Chanda, Accounts Manager of Exide Life Insurance Company dated 19/08/2016 wherefrom it appears that the OP/Insurance Company received Rs.8,40,000/- in cash from one of the complainant viz. Mr. Subir Prasad Chattopadhyay and a PAID seal was affixed upon the said document.
2. Thereafter we have further carefully perused another payment receipt dated 12/07/2016 issued by OP/Insurance Company wherefrom it appears that the OP/Insurance company again received Rs.6,51,300/- in cash from one of the complainant viz. Subir Prasad Chattopadhyay. It is also found that the said document also bears a PAID seal.
3. So it is crystal clear to us that the complainant made total payment of Rs.14,91,300.00 (8,40,000.00 + 6,51,300.00) at the office of OP/Insurance Company.
4. Regarding cheating and practicing fraud upon the complainants, the separate two complaints were lodged (i) at the Electronics Complex Police Station and (ii) Nalhati Police Station against Sri Rahul Roy of AB Insurance Brokers Private Limited, opposite party no-2 herein and the said complaints were received by the concerned Police Station and registered as General Diary which is clearly revealed from the Anx-G. 
5. It is also admitted fact that the complainant no-1 knocked at the door of the Insurance Ombudsman, West Bengal wherein on 28/03/2017 the ld Ombudsman, after careful perusal of the record, decided the following award:-

“..................this also stinks of unwarranted/unethical business practice which requires through investigation under the provision of Criminal Law, which is beyond the purview of this Forum. In view of this, the complaint against the above insurance company is dismissed from this Forum. The complainant is free to approach any other Forum for redressal.”

6. From the four corners of the record it is clear to us that the instant CC case being no-339/2017 has been filed by the complainants before this Commission praying for certain reliefs as prayed for after passing of the aforesaid award passed by the ld Ombudsman.
7.  It also appears from the materials on record that the complainants sought for appointment of hand writing expert in order to compare the admitted signatures of the complainants along with the documents kept in the custody of the opposite party/insurance company. The complainants also for this purpose paid the requisite fees amounting to Rs. 5,420/ to the Questioned Document Examination Bureau, CID Govt of West Bengal and the complainants issued a notice upon the insurance company for production of the relevant documents and papers so that the said documents can be compared with the signatures of the complainants, but the insurance company did not appear and handover those documents for which the complainants did not press for examination of hand writing expert in spite of payment of aforementioned amount to the concerned department.
8. On previous occasions, it has already been observed that the no written version was filed by the opposite parties. So, it is clear fact that the petition of complaint filed by the complainants remains unchallenged. Despite receiving the notices, the opposite parties failed to file their written versions in order to contest the instant consumer case causing clear admissions of the allegations stated in the said petition of the complaint.
9. More over the evidence of the complainants remained unchallenged and there would be no wrong to hold that the silence on the part of opposite parties already admitted the allegations made in the consumer case filed by the complainants.
10. It  appears from the record that the main allegations have been brought  against the OPs  1 & 2 and to that effect for settlement  of disputes between the parties, the Branch Manager, Corporation Bank has been impleaded  in the  cause title of CC case as a proforma Opposite Party (proforma defendant) No. 3.
11.  From the evidence adduced by the complainants, it is also clear to us that the opposite party / insurance company adopted unfair trade practice and subsequently they received Rs.16,38,027/- from the end of complainants by falsely saying it was a case of one time insurance policy.
12.  After careful scrutiny of the four corners of the record that the grounds taken by the appellant/insurance company are totally manufactured, concocted, created and after thought and have no evidentiary value at all.
13.  It is further mentioned here that the Consumer Protection Act 1986 has been enacted exclusively for the benefit of the consumers/complainants and as such being the benevolent social legislation the proper protections should be given to the consumers from the hazardous goods and services. 
14.  It should be remembered that when a person engages another to act on his behalf it creates a relationship between the principal (Master) and the agent (Servant). Since the principal put the agent in a situation where a tort is committed, the principal is vicariously liable for the acts of the agent. A principal would be liable for the acts of an agent when it is expressly delegated to the agents by the principal.  
15.  At this juncture, we think that OP No. 2/ agent also caused unfair trade practice  in order to mislead  the complainants and as such the said OP No. 2/agent cannot escape   from their liability.
16.  Keeping in view of the above observations, there is no hesitation to hold that there is clear gross negligence and deficiency in service on the part of  the OP No. 1/appellant/insurance company and OP No. 2/agent of insurance company.
17.  No order should be passed against the Branch Manager, Corporation Bank as the  Corporation Bank has been impleaded as a  proforma OP No. 3 in CC case for settlement of dispute between the parties.  Thus, the  proforma  OP  No. 3(Corporation Bank) is hereby exonerated from the instant CC case.
18. There is no such error, mistake or illegality in passing the order impugned dated 08/08/2018 except the order passed against the   proforma OP No. 3. Hence the other part of the impugned order dated 08/08/2018  (except the order  passed against the proforma  OP No. 3) remains unaltered.
19.  We affirm the order impugned dated 08/08/2018 passed by the concerned Trial commission except the order passed against the proforma OP No. 3.
20.  Accordingly, the instant appeal brought by the appellant/op/insurance company stands dismissed on contest against the respondents without any order as to costs and the impugned  judgment passed by the Ld.  Trial Commission below  is,  therefore, modified in the above tune.
21.  Instant appeal stands disposed of as per above observations and views.
22. Note accordingly.  
23.  Let a copy of this order be transmitted to the Ld. Trial Commission for compliance and for necessary action.