BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.63/2009 Order dated this the 8th day of September 2009 COMPLAINANT/S Smt.Bhagyamma W/o Late R.Jayakumar, R/o V.V.Nagar, Kallahalli, Mandya. (By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S The Branch Manager, Syndicate Bank, Ashok Nagar, Mandya. (By Sri.B.K.Ganapathi., Advocate) Date of complaint 29.05.2009 Date of service of notice to Opposite party 13.06.2009 Date of order 08.09.2009 Total Period 2 Months 25 Days Result The complaint is partly allowed, directing the Opposite party to refund Rs.17,548/- with interest at 10.25% p.a. compounded monthly from 28.04.2007 up to the date of payment with cost of Rs.1,000/- to the Complainant. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party claiming Rs.23,245/- with interest at 18% and compensation of Rs.50,000/-. 2. The case of the complainant is that the complainant has obtained Housing Loan from the Opposite party Bank to the extent of Rs.8,50,000/- and the Opposite party obtained insurance for the said loan from Bajaj Allianz under Loan Protractor Scheme and obtained policy No.0031134282 commencing from 28.04.2007. The Opposite party has debited Rs.69,787/- totally, but actually the insurance premium is only Rs.46,542/-, the remaining amount of Rs.23,245/- was not paid to the Complainant. In spite of several requests to refund the said amount and in spite of letter dated 03.01.2009 the Opposite party was not repaid and hence the Opposite party has committed deficiency in service. 3. The Opposite party has filed version admitting the Housing Loan and obtaining the policy. According to the Opposite party, towards the policy, a sum of Rs.47,598/- was paid on 21.11.2006 and further a sum of Rs.22,080/- was paid on 25.04.2007, totally Rs.69,678/- to the Insurance Company. Out of the said amount, Insurance Company has taken Rs.46,542/- towards the premium Rs.5,585/- towards service tax and Rs.111.70 paise towards Education Cess and totally Rs.52,238.74 paise and the balance amount of Rs.17,439.26 paise was paid to the Complainant by the Insurance Company through cheque bearing No.172112 dated 11.10.2007 drawn on Axis Bank, Bangalore, which as per the letter of the Insurance Company dated 22.06.2009 still not encashed and lying in Stale Cheque Account and the Insurance Company has replied about this fact by letter dated 22.06.2009. The Complainant suppressing the said fact has filed the complaint against the Opposite party making untenable allegations. The Opposite party has not committed any deficiency in service. The complaint is also not maintainable for non-joinder of the necessary parties and the Complainant ought to have filed the complaint against the Bajaj Allianz Insurance Company. Therefore, the complaint is to be dismissed with costs. 4. During trial, the complainant has filed affidavit and documents Ex.C.1 to C.3. The Opposite party Manager has filed affidavit and the documents Ex.R.1 and R.2 and also affidavit of Senior Relationship Officer of Insurance Company. 5. We have heard both the sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party has committed deficiency in service in making excess payment to the Insurance Company? 2. Whether the Complaint is not maintainable? 3. Whether the Complainant is entitled to the relief sought for? 7. Our findings and reasons are as here under:- 8. The undisputed facts borne out from the materials on record are that the Complainant has obtained Housing Loan to the extent of Rs.8,50,000/- from the Opposite party and under the Loan Protractor Scheme, the Opposite party got insured the loan under a policy issued by Bajaj Allianz Insurance Company, debiting Rs.47,598/- on 21.11.2006 and further a sum of Rs.22,080/- on 25.04.2007 and totally Rs.69,678/-. According to the Complainant, the policy premium is only Rs.46,542/- and the excess amount of Rs.23,245/- was not refunded in spite of request letter dated 03.01.2009. But, according to the Opposite party, the Insurance Company has deducted totally Rs.52,238/- and the balance amount of Rs.17,439/- was paid to the Complainant through cheque dated 11.10.2007 by the Insurance Company, which is still not encashed and lying in Stale Cheque Account as per the letter dated 22.06.2009 of the Insurance Company. The Complainant has produced Ex.C.1 Account Extract and this is undisputed. According to this loan account extract, on 17.11.2006 totally Rs.47,708/- was paid to the Insurance Company, debiting the said amount to the loan account. Further, on 19.04.2007 Rs.22,080/- is debited to the loan account showing the payment to the Bajaj Allianz Insurance Company, so it comes to Rs.69,787/-. As per Ex.C.3 a copy of the first premium receipt, the total amount is Rs.52,238.74 paise, so the balance amount would be Rs.17,548/-. But, the Opposite party has stated incorrectly that the excess amount is only Rs.17,439.26 paise, so the calculation is incorrect. Further, according to the Opposite party the Insurance Company has sent the cheque for the said amount of Rs.17,439/- to the Complainant and it was not encashed by the Complainant. Though, the Opposite party has produced the copy of the letter of the Insurance Company as per Ex.R.2 and also the affidavit of Relationship Officer of the Insurance Company, but they are not at all supported by any documents. There is no proof for having sent the cheque to the Complainant address and receipt of the postal cover by the Complainant. In the absence of these materials, we cannot accept the version of the Opposite party that the Insurance Company has sent the cheque for the remaining amount and the Complainant has not encashed the cheque, since the Complainant has denied the fact of receipt of the cheque by post. It is very clear that amount is still lying in the account of the Insurance Company. 9. Admittedly, the Opposite party has obtained the insurance for the loan by sending the amount to the Insurance Company. There is no evidence by the Opposite party on what basis the Opposite party sent Rs.69,787/- as per the account extract, without ascertaining the premium amount and even after receipt of the insurance policy, the Opposite party has not cared to see what is the premium paid for the policy and compared with the amount sent to the Insurance Company. Admittedly, the insurance policy is with the Opposite party and according to the Complainant evidence, the Complainant came to know the excess amount paid by the Opposite party towards the insurance after obtaining the account extract. The account extract is obtained on 18.11.2008 with the copy of the first premium receipt Ex.C.3. Thereafter, the Complainant has given petition on 03.01.2009 claiming refund of the excess amount. Though actually Rs.69,787/- was sent to the Insurance Company by the Opposite party Bank from the loan account of the Complainant, but in the version, it is stated that Rs.69,678/- was paid to the Insurance Company totally which is contrary to the account extract. Therefore, if the Complainant had not obtained the account extract and compared with the premium receipt copy obtaining from the bank, the excess payment made by the Opposite party for obtaining the insurance policy would have continued in the loan account and the bank naturally charges monthly interest on the said amount, for which the Complainant would be unnecessarily burdened without any fault or negligence. The Opposite party has committed negligence in sending the excess amount without ascertaining the actual premium and further without verifying the amount sent and it is his duty when it obtained the policy as a security for the loan drawn by the Complainant and the Opposite party has committed utmost negligence in sending excess amount without ascertaining the actual premium and without verifying the premium receipt and the amount paid to the Insurance Company to the determent of the Complainant. Therefore, the Opposite party has committed deficiency in service. 10. The Opposite party has taken the contention that the complaint is not maintainable and complaint should have been filed against the Insurance Company on the ground that the insurance is obtained for the Complainant and the Opposite party is not a service provider. But as observed above for the security of the loan, the Opposite party Bank has obtained the insurance. Admittedly, taking the amount from the loan account of the Complainant without ascertaining the actual premium amount, when Opposite party received the insurance policy and the premium receipt it should have verified the amount sent and the premium amount mentioned in the insurance premium receipt, but it kept quiet with utmost negligence and played mischief with the account of the Complainant. There is no evidence that after obtaining the policy, the Complainant was informed by the Opposite party about sending the premium amount to the Insurance Company by sending the policy copy, to know actually the amount deducted for the insurance and the actual premium of the insurance. Only nearly after 2 years Complainant voluntarily came to know about the excess amount deduct from the account towards the insurance, after obtaining the account extract and premium receipt copy. Therefore, when the Complainant gave a petition Ex.C.2 to the Opposite party it should have taken steps to recover this said amount from the insurance company, because it has paid the amount and there is no direct privity of contract between the Complainant and the Insurance Company. Even the Opposite party has not cared to reply to the letter Ex.C.3. Therefore, it is the Opposite party which has committed deficiency in service to the Complainant without bringing to the notice of the complaint about the payment of insurance premium from her account and not sending the insurance copy with premium receipt to the Complainant. Therefore, it is the Opposite party which is service provider as per the transaction between the Complainant and Opposite party as per the account extract and admitted facts for obtaining the policy by the Opposite party by sending the 3 cheques towards the premium amount of the insurance policy. Therefore, the complaint is maintainable against the Opposite party. 11. The Complainant has sought for Rs.23,245/- with interest at 18% and compensation of Rs.50,000/-. But as observed point no.1, the excess amount paid by the Opposite party towards insurance premium is Rs.17,548/-. Therefore, the Complainant is entitled to refund of this amount with interest, because the Opposite party has calculated interest on the said amount monthly in the loan account of the Complainant at 10.25%. Therefore, the Complainant is entitled to refund of Rs.17,548/- with interest at 10.25% p.a. compounded monthly from 28.04.2007. 12. When the Complainant has sought for interest for the excess amount paid to the Insurance Company by the Opposite party, she is not entitled to other compensation. 13. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite party to refund Rs.17,548/- with interest at 10.25% p.a. compounded monthly from 28.04.2007 up to the date of payment with cost of Rs.1,000/- to the Complainant. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 8th day of September 2009). (PRESIDENT) (MEMBER) (MEMBER)
