O R D E R<br /> M.R. DEVAPPA, PRESIDENT<br /> <br /> Briefly stated the case of the complainant is as follows;<br /> <br /> 1. That the complainant’s husband is a planter owning coffee estate situated at Arvathoklu village. <br /> <br /> 2. That the Bajaj Allianz Company Limited is doing business of Insurance and such other business, having its head office at Poone and branches among other places at Virajpet, represented by its Manager the 1st opposite party.<br /> <br /> 3. That the 3rd opposite party is the Divisional Office situated at Mysore.<br /> <br /> 4. That during the 1st week of June 2007 the 2nd opposite party namely H.C. Chandrashekar an employee of the 1st opposite party approached the complainant and explained about the different schemes and policies of Bajaj Allianz Life Insurance Company Limited.<br /> <br /> 5. That on 28-3-2007 she obtained a policy from the opposite party by paying yearly premium of Rs.1,00,000/- and the policy was issued in the name of the complainant vide policy number 0038290494 that the policy bond was issued to the complainant and the 2nd opposite party represented her and transacted with the 1st opposite party company on behalf of the complainant.<br /> <br /> 6. That during 2008 the complainant received a notice from the opposite party for the payment of annual renewal insurance premium obtained on the life of the complainant. <br /> <br /> 7. That during May 2008, the 2nd opposite party has approached the complainant and requested her to pay the amount to him and assured that he would directly credit the amount to the 1st opposite party, for which the complainant agreed and paid the premium through cheque No.245050 on Canara Bank Gonikoppal Branch towards the premium installment of the policy. <br /> <br /> 8. That the 2nd opposite party received the cheque and got two DD’s both dated 26-3-2008 drawn on Canara Bank one for a sum of Rs.70,000/- and another for a sum of Rs.30,000/- in the name of 1st opposite party.<br /> <br /> 9. That on 19-4-2008, the 2nd opposite party again approached the complainant and said that DD for Rs.70,000/- is returned for technical reasons and said that he has paid Rs.70,000/- to the 1st opposite party from his pocket. That he has confirmed that said Rs.1,00,000/- has been paid to the 1st opposite party and gave a revenue receipt signed by 1st opposite party which was believed to be true by the complainant.<br /> <br /> 10. That out of 70,000/- that was paid to the 1st opposite party a sum of Rs.5,000/- was deducted as she was due that amount and for balance amount of Rs.65,000/-, the 2nd party received a cheque dated 19-4-2008, bearing No.249835 from the husband of the complainant and the cheque was encashed subsequently.<br /> <br /> 11. That the complainant believed that installments of the policy has been paid to 1st opposite party by the 2nd opposite party but to her surprise on 9-6-2008, she received a telephone call from Mysore informing that the insurance policy amount on the life assured of her has not been paid by the 2nd opposite party. However the complainant asserted that the installments have been paid by her and subsequently she contacted the 1st opposite party and explained every thing. That her husband lodged a petition before the 1st opposite party, thereafter only the 1st opposite party has published the notice in Shakthi News Paper, Kodagu on 15-6-2008. In the said publication it was published that the 2nd opposite party has not been in service of the company with effect from 3-5-2007.<br /> <br /> 12. That the fact that the 2nd opposite party has signed the proposal form on behalf of the company and received the amount, disclose that he was acting on behalf of the company as such the 1st and 3rd opposite parties are liable for all the transactions, acknowledgement and such other commitments of its employee.<br /> <br /> 13. That the 1st opposite party has published that the 2nd opposite party is not in the service of the company with effect from 3-5-2007 which was notified to the general public only on 15-6-2008 and the same was published with inordinate delay of one year one month.<br /> <br /> 14. That the 1st and 3rd opposite party are vicariously liable for the act of 2nd opposite party as he is their employee when premium was received and policy was issued. <br /> <br /> 15. That on 30-6-2008 the 1st opposite party namely the branch Manager of Virajpet Branch has filed a complaint against the 2nd opposite party before the Sub Inspector of Police Virajpet and the police have registered a Criminal case against the 2nd opposite party under section 420 IPC in Crime no.85/2008. <br /> <br /> 16. That the husband of the complainant has paid the 2nd premium installment due for the June 2008 on 21-8-2008 to the 1st opposite party by a cheque on Canara Bank and valid receipt has been passed on. Such payment was made without prejudice to the right of the company to enforce the claim of the complainant. <br /> <br /> 17. That a sum of Rs.1,00,000/- has been paid by the complainant to the opposite parties in excess and they are liable to return the same. <br /> <br /> 18. That the opposite parties have committed deficiency in service and therefore, the complainant has prayed for the following relief;<br /> <br /> a) ordering the opposite parties to pay sum of Rs.1,00,000/- with interest at 12% p.a. from 2-6-2008 till realization along with notice charge of Rs.1,000/- costs of this complaint and such other relief deem fit.<br /> <br /> 19. Upon admitting the complaint notice was ordered to be issued to OP 1 to 3. O.P 1 and 3 appeared through their counsel but the notice sent to O.P 2 is returned with an endorsement “party left returned to sender”. Hence, the complainant was asked to take steps in the respect of O.P 2. Since O.P 2 could not be served with notice the complainant filed an application seeking permission to publish the notice for information to O.P 2 for his appearance before the Forum and the complainant was permitted accordingly appearance notice was published in the local news paper and the local paper copy was filed before the Forum and though the opposite party no.2 was supposed to appear on 18-12-2008 but remained absent and therefore he was placed exparte. <br /> <br /> 20. O.P 1 and 3 have not been attending the Forum as well as their advocate. No version and the affidavit of OP 1 and 3 is filed.<br /> <br /> 21. The complainant has filed his affidavit evidence in lieu of examination in chief apart from filing following documents;<br /> <br /> 1. Insurance policy of Bajaj Allianz<br /> 2. Declaration<br /> 3. Premium receipt 21-8-2008<br /> 4. Premium receipt 29-3-2008<br /> 5. Bank accounts<br /> 6. Details of sales Manager<br /> 7. Legal notice dated 12-7-2008 with receipts<br /> 8. Paper publication<br /> 9. FIR (Xerox copy)<br /> <br /> 22. The following issues arise for determination;<br /> <br /> 1. Whether the opposite party no.1 to 3 have committed deficiency in service ?<br /> <br /> 2. To what order?<br /> <br /> R E A S O N S<br /> <br /> 23. O.P 1 and 3 have been served with version notice but neither their advocate nor they have been attending the Forum. They have failed to file their version and their affidavit and no defence is taken by them. Contrarily the complainant has filed the policy issued by the opposite parties and the letter from branch Manger dated 23-6-2008, the legal notice dated 22-7-2008, the paper publication in support of her case and has filed her affidavit in support of her case in lieu of examination in chief. <br /> <br /> 24. As averred in the complaint, complainant believed the assurance given by opposite party no.2 who represented as the Sales Manager of O.P 1 and 3 and paid Rs.1,00,000/- through cheque and later the policy was sent to her bearing No.0038290494. The 2nd opposite party has represented the complainant and transacted with the 1st opposite party company on behalf of the complainant.<br /> <br /> 25. That during 2008 the complainant received a notice from the opposite party for the payment of annual renewal insurance premium obtained on the life of the complainant and further during May 2008 the 2nd opposite party has approached the complainant and requested her to pay the amount to him and assured that he would directly credit the amount to the 1st opposite party for which the complainant agreed and paid the premium through cheque no.245050 on Canara Bank Gonikoppal Branch towards the premium installment of the policy.<br /> <br /> 26. It is also disclosed from the available documents that the 2nd opposite party has received the cheque and got two DD’s both dated 26-3-2008 drawn on Canara Bank one for a sum of Rs.70,000/- and another for a sum of Rs,.30,000/- in the name of 1st opposite party. <br /> <br /> 27. It is also revealed from the available materials that on 19-4-2008 the 2nd opposite party has again approached the complainant and told the complainant that D.D. for Rs.70,000/- is returned for technical reasons and said that he has paid Rs.70,000/- to the 1st opposite party from his pocket and confirmed that said Rs.1,00,000/- has been paid to the 1st opposite party and gave a revenue receipt signed by 1st opposite party which was believed to be true by the complainant.<br /> <br /> 28. It is also contended by the complainant that out of Rs.70,000/- that was paid to the 1st opposite party a sum of Rs.5,000/- was deducted as she was due that amount and for balance amount of Rs.65,000/- the 2nd opposite party received a cheque dated 19-4-2008 bearing no.249835 from the husband of the complainant and the cheque was encashed subsequently. Thus the complainant believed that the installments of the policy have been paid to 1st opposite party by the 2nd opposite party but to her surprise on 9-6-2008 she received a telephone call from O.P 3 informing that the insurance policy amount on the life assured of her has not been paid by the 2nd opposite party. However the complainant is said to have asserted that the installments have been paid by her and subsequently she approached the 1st opposite party and explained everything and also her husband lodged a petition before the 1st opposite party, there after only the 1st opposite party has published the notice in Shakthi News Paper Kodagu on 15-6-2008 stating that the 2nd opposite party has not been in service of their company with effect from 3-5-2007.<br /> <br /> 29. That the 2nd opposite party has signed the proposal form on behalf of the company and received the amount acting on behalf of the company i.e., on behalf of 1st and 3rd opposite party and therefore 1st and 3rd opposite parties are liable for all the transactions carried out by O.P 2 as OP 2 is an employee of OP. 1 and 3.<br /> <br /> 30. It is also revealed from the available materials that on 30-6-2008 the 1st opposite party namely the Branch Manager of Virajpet Branch has filed complaint against 2nd opposite party with the Virajpet Town Police and later case came to be registered in Crime No.85/2008 under section 420 IPC.<br /> <br /> 31. As could be gathered from the papers made available the husband of the complainant has paid the 2nd premium installment due for the June 2008 on 21-8-2008 to the 1st opposite party by a cheque on a Canara Bank and later valid receipt has been passed on to the complainant. It is stated that such payment was made without prejudice to the right of the company to enforce the claim of the complainant. Therefore, a sum of Rs.1,00,000/- has been paid by the company to the opposite party in excess which opposite party no.1 to 3 are liable to return the same to the complainant. <br /> <br /> 32. As rightly urged by the complainant that the 1st and 3rd opposite party being the employers of the 2nd opposite party are vicariously liable for all the commitments and transactions made by his employee, namely opposite party no.2. Thus the opposite party no.1 and 3 cannot shirk the responsibility when they admit that Sri. B.C. Chandrashekar ( O.P 2) was working with them as Sales Manager at some point of time and for the act done by him they are to be made responsible and as prayed for the complainant the opposite parties are liable to pay a sum of Rs.1,00,000/- with interest at 12% per annum from 2-6-2008 till its full realization.<br /> <br /> 33. The available materials and in view of the fact that O.P 1 to 3 have not taken definite defence on the allegations made by the complainant and the fact that O.P 1 and 3 have kept quite for nearly one year without taking any action against O.P 2 clearly demonstrate that all the O.P’s have committed deficiency in service. Therefore O.P 1 and 3 are liable to make good the loss caused to the complainant by paying the amount of Rs.1,00,000/- in excess as she was insisted to do so by O.P 1 and 3. However if O.P 1 and 3 desires to recover the said amount of Rs.1,00,000/- from O.P 2 by initiating appropriate action against him they are at liberty to do so and accordingly we answer point no.1 affirmatively and proceed to pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed and the opposite party no.1 to 3 are jointly and severally liable to pay Rs.1,00,000/- with interest at 12% p.a. from 2-6-2008 till realization, which amount was paid in excess by the complainant to the opposite parties. Since the opposite parties are ordered to pay the interest there is no need to award compensation to the complainant, but O.P 1 to 3 are hereby directed to pay Rs.1,000/- towards the cost of this proceedings to the complainant.<br /> <br /> The above order shall be complied by the opposite party within sixty days from the date of the order.<br /> <br /> Communicate the order to the parties. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 09th day of January 2009.<br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br />