First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1583 of 2012
Date of institution : 29.11.2012
Date of decision : 09.09.2015
- Bharti AXA Life Insurance Co. Ltd., Unit-601 & 602, 6th Floor, Raheja Titenium, off western Express Highway, Goregaon (E) Mumbai 400063 through its Managing Director.
- Bharti AXA Life Insurance Company Ltd., Hoshiarpur Branch, Chandigarh Road, District Hoshiarpur, through its Agent/Sales person Santokh Yadav. …..…Appellants/Opposite Parties
Versus
Sukhwinder Singh son of Shri Naranjan Singh, resident of H.No.20, Fategarh, Tehsil & District Hoshiarpur.
…….Respondent/Complainant
First Appeal against order dated 14.09.2012 passed by The District Consumer Disputes Redressal Forum, Hoshiarpur.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member.
Present:-
For the appellant(s) : Sh. Akhilesh Vyas, Advocate
For the respondent : Sh. Navjeewan Gupta, Advocate
H. S. GURAM, MEMBER:-
This appeal has been preferred by the appellants (OPs in the complaint) against the respondent of this appeal (complainant in the complaint), assailing order dated 14.09.2012 passed by the District Consumer Disputes Redressal Forum Hoshiarpur, (in short 'District Forum'), in CC No. 93 dated 03.05.2012, vide which, the complaint filed by the complainant was partly accepted by directing OPs to refund Rs.50,000/- with interest @9% per annum from the date of receipt 27.08.2012 till realization and further to pay Rs.2,000/- as litigation cost within 30 days from the date of receipt of copy of the order.
2. The brief facts of the case are that complainant Sukhwinder Singh filed a consumer complaint under Section 12 of the Consumer Protection Act, 1986, on the ground that OP No.2 proposed a policy to the complainant, which was duly accepted by him. OP No.2 issued the said policy on 28.08.2009, vide policy No. 500-4143193 w.e.f. 28.08.2009 to 28.08.2019 and the premium of Rs.50,000/- was paid on 27.08.2009. The basic sum assured under the policy was of Rs.2,50,000/-, and the annual premium payment term was for 5 years. The complainant paid a sum of Rs.50,000/- to OPs on 27.08.2009. The complainant contacted OP No.2 in the month of June 2010 to enquire the due date of payment of second premium amount and OP assured him that they would send the intimation letter to him before one month from the date of deposit of the premium amount. Even after the lapse of 3 months, the complainant did not receive any intimation or any letter from the OP No.2 in this regard. Even after passing of three months period, the complainant did not receive any information and he again contacted OP No.2, wherein, he was assured that the detailed information would be provided to him. On failure to receive any intimation from the OPs, he visited the office of the OPs in the month of June 2011 to enquire about his policy status. Instead of receiving any positive reply from them, the employees of OPs rather started abusing him and flatly refused to accede to his genuine request. The non-issuance of notice for payment of policy premium on due date by the OPs amounted to deficiency in service and complainant was having a legal right to recover the amount of Rs.50,000/- deposited by him with the OPs, which was invested by him at the instance of OP No.2. On failure to get any relief from the OPs, he filed the complaint in the District Forum Hoshiarpur and prayed that the OPs be directed to pay Rs.50,000/- @ 9% alongwith interest from the date of payment and be directed to pay Rs.20,000/- for causing inconvenience, harassment & frustration to him and further to pay Rs.15,000/- as cost of litigation.
3. Upon notice, OPs No.1 & 2 filed their joint written reply and contested the complaint of the complainant vehemently. The OPs denied all the allegations, averments and contentions raised in the complaint by the complainant. They also raised preliminary objections that complaint filed by the complainant is based on misrepresentation. It was further submitted by OPs that cheque bearing No. 012607, dated 24.08.2009 for Rs.50,000/- towards first premium amount was issued by the complainant in their favour, but the said cheque was dishonoured by the bankers of the complainant with remarks "Insufficient Funds". As such, no credit proceeds of this cheque was received by them in lieu to the policy issued to him. Due intimation was also given to the complainant by them, vide letter dated 09.09.2009. The complainant was also informed that on account of dishonouring of the cheque, he would not be eligible for benefits attached under the said policy and the policy issued by them in his favour stood cancelled. On merits, they reiterated their stand that the cheque issued by the complainant was dishonoured with remarks "Insufficient Funds" in his account and he was duly informed about dishonouring of his cheque, vide letter dated 09.09.2009. As such, the complainant was not their consumer even after issuance of letter dated 09.09.2009 on account of dishonouring of the cheque, which was issued by him against first premium amount and called upon the complainant to pay the amount in cash or by demand draft within 10 days from the receipt of the said letter. He had never turned up to deposit the first premium amount. As such, there was no possibility of giving intimation regarding payment of second premium of his cancelled policy to the complainant by OPs. It was further submitted that the complainant did not visit their office as alleged in his complaint. It was further submitted that prayer made by the complainant in his complaint for issuance of directions to them to refund amount of Rs.50,000/- alongwith interest @ 9% was not legally payable to him, as no amount was received by them, on account of first premium, vide which, the policy issued to him stood cancelled. The OPs prayed that the complaint filed by the complainant be dismissed with exemplary costs.
4. Complainant tendered in evidence his affidavit Ex.C-1 and Ex.C-5, first premium receipt Ex.C-2, key feature documentEx.C-3, proposal form Ex.C-4 and closed the evidence. OPs tendered the affidavit of Sh. C.L. Bhardwaj by way of Ex.R-1, proposal form Ex.R-2, premium receipt Ex.R-3, copy of letter dated 09.09.2009 Ex.R-4, copy of cheque Ex.R-5, intimation letter Ex.R-6 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint of the complainant, vide aforesaid order. Dissatisfied with the order of the District Forum, the OPs now appellant carried this appeal against the same.
5. We have heard the learned counsel for the parties in this appeal and also examined the record of the case. The counsel for the appellants argued that the District Forum has wrongly relied upon the document submitted by the complainant. During the arguments, it is contended that the complainant had not brought on record any letter from his banker nor his account statement, from where, it could be seen that the said cheque issued by him was paid from his account. Counsel for the respodent/complainant argued that the cheque was given to the appellants insurance company on 24.08.2009 and the proposal form was duly filled on 27.08.2009 and the order as passed the District Forum is correct and sustainable.
6. To settle this dispute, whether the policy issued by the appellants was right or the same was cancelled on account of non-receipt of the first premium cheque is the point of controversy. We have also gone through the order passed by the District Forum below. We have examined the contents of Ex.C-2 pertaining to issuance of first premium receipt dated 31.08.2009 and also the policy specifications issued by the appellants in favour of the complainant. From perusal of these documents, it is stated that the policy is dated August 28, 2009, maturity date is August 28.2019, application date is August 27, 2009 and issuance date of the policy is August 31,2009. The policy document was also sent to the complainant. From perusal of these two documents usually first premium receipt is issued only after receiving the premium amount and the policy document is issued thereafter. In order to evaluate the evidence on record, we have also perused Ex.R-4 i.e. letter written by the appellants to the complainant dated 09.09.2009. This letter is a computer generated letter in this case and we do not find any postal receipts in support of it, as to whether it was actually sent to the complainant or not.
7. From perusal of Ex.R-5, it is transpired that the cheque was issued by the complainant in favour of the insurance company. In order to get the payment of the said cheque, the insurance company usually lodge the cheque received by them with their banker for collecting the proceeds in their favour. Bankers who would accept the cheques for collection are usually affixing their seals in order to protect the cheque from falling into wrong hands by way of pilferage. From Ex.R-5, we do not find any endorsement on the face of the cheque as to whether this cheque was lodged by them with the banker or not. Moreover, we do not find any cheque return memo placed on the record issued by UTI Bank Ltd. Hoshiarpur Bank, to prove that the said cheque was actually dishonoured. In absence of the above, we are of the opinion that the first premium receipt which was issued by the appellants on 31.08.2009 was issued only after receipt of the premium to the complainant. It is their prime duty, that they should have approached the UTI Bank Ltd. during this complaint before District Forum to substantiate this point as to whether any such cheque was dishonoured or not. They had a right for moving an application in the District Forum to direct the complainant to furnish the statement to this effect whether the cheque issued by the complainant was dishonoured or passed in his account. The appellants did not choose any of the courses in this case
8. Thus, failure on their part to prove their averments that the cheque issued by the complainant was actually dishonoured is not proved. We do not find any merit in the present appeal and the same is hereby dismissed. The order passed by the District Forum is affirmed.
9. The appellants had deposited a sum of Rs.25,000/- with this Commission at the time of filing the appeal and this amount with interest accrued thereon, if any, be remitted by the registry to complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties. The OPs shall further pay the remaining amount in favour of the complainant as per the directions of the District Forum.
10. The arguments in this appeal were heard on 02.09.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar)
Presiding Judicial Member
(H.S. Guram)
Member
September 09,2015
RK 2
