Hon'ble Mr. Haradhan Mukhopadhyay, President.
The Legal battle between the parties summarised through their respective pleadings are reproduced herein below to the effect that the Complainant Raj Kumar Barman is a driver and for his self employment he purchased a vehicle bearing No. WB 63A 0378(Maxi Cab) with the financial help of OP and the Complainant paid EMI regularly on 09.05.18. The OP without consent of the Complainant opened Shriram Life Insurance from the Complainant for a term of 10 years with further charge of Rs.9551/- having policy No. NN011805029002 along with EMI. The OP also issued vehicle insurance on 13.08.18 having policy No.10003/31/19/151551 for the said vehicle Maxi cab and received Rs.26,486/- but the Complainant is vehicle seating capacity was(7+1)= 8 person only whereas the OP illegally issued seating capacity for 9(8+1) and there by the OP collected extra premium of one person. During said finance, one staff of the OP namely Mr. Firoj Khan collected Rs.10,000/- from the Complainant as processing charge but gave money receipt for Rs.4546/- only. But the Complainant had to bear entire expenses for the final work at RTO, Cooch Behar. The Complainant therefore complained to the OP several times but the OP did not refund the extra money for which he lodged a written complaint to the OP on the basis of which he put a cut mark. Subsequently over the signature and seal given on the said complaint. Finally the Complainant had no alternative but to file present complaint via Assistant Director of Consumer Affairs, Cooch Behar on 19.06.19. The Complainant himself obtained the insurance of the vehicle through Oriental Insurance Company Limited for the period 22.06.19 to 21.06.20 with seating capacity of 7+1 for a premium of Rs.26,343/- under the PA cover of 15 Lakh but the OP issued insurance with high amount. The cause of action for the present case arose on 09.05.18, 13.08.18 and 19.06.19. The Complainant therefore prayed for directing the OP to refund the LIC premium of Rs. 9551/-, refund Rs.26,486/- for wrong vehicle insurance, Rs.5454/- for extra processing fee for loan, Rs.1 Lakh for mental pain and agony and deficiency in service and Rs.20,000/- for litigation cost.
The OP Shriram Transport Finance Company Ltd. Represented by Branch-in-charge, P.S. Kotwali, Dist- Cooch Behar filed written objection denying each and every allegation of the Complainant. The positive defence case of the OP in a few words is that as per guidelines of distance marketing of insurance IRDA/ADMN/GDL/MISC/059/04/2011 dated 05.04.2011 any insurance Company can approach a customer over telephone for issuance of the policy. The call centre executive of Shriram Life Insurance called the Complainant to ensure the consent of the Complainant of life insurance and thereafter taking consent the policy was issued to him. The voice recording of the Complainant was taken accordingly. When the Complainant came to the Branch of the OP after one month from the date of issuance of the said policy, he stated his unwillingness to take the policy, when he obtained knowledge that he has to pay policy amount yearly. The Branch Office of the OP intimated the customer to collect the said policy from their Cooch Behar Branch as it not subject to delivery through post due to mismatch of address or misplacement or lost postal consignment. Intimation was also given over telephone to the Complainant. The Complainant visited the Branch Office of the OP after one month of getting intimation. When he was informed about payment of premium he refused to take the Life Insurance policy. As per the policy condition and privileges, surrender of the policy for cash policy can be cancelled within 15 days from the issuance of the policy. The premium of the policy was delivered into 12 monthly instalments without any interest for easy payment of premium and the payment of the premium was clubbed with vehicle loan instalment for the convenience of the Complainant to pay life insurance premium alongwith vehicle loan EMI. The seating capacity of the vehicle as per RC is 8 but the OP have issued insurance policy with seating capacity 8+1 due to wrong selection seating capacity from the O.Ps end at the time of insurance policy creation. Rs. 950/- was refunded to the Complainant on 25.11.19 and penalty accrued upon it being charged for extra seating capacity. Only Mr. Firoj Khan could reply about the extra money of Rs.5454/- taken by him. The said Firoj Khan was an ex employee of OP. The complaint suffers from non-joinder of necessary party. Complainant handed over and undated application for cancelation of life insurance policy which ought to have been cancelled within 15 days. Rs.950/- is refunded to the customer account on 25.11.19 with penalty accrued upon it. Yearly premium of the vehicle insurance of OP Company as paid by the Complainant is Rs.26,486/- yearly premium Oriental Insurance is Rs.26,346/- of yearly premium Shriram Life Insurance is Rs.143/- higher due to wrong selection of seating capacity but the difference amount was refunded. Rs. 950/- was also refunded to the Complainant on 25.11.19 for charge extra seating capacity. The OP prayed for dismissal of the complaint.
The specific allegation of the Complainant and the respective denial thereof by the OP vis-à-vis this specific defence case of the OP persuaded this Commission to ascertain the following points in dispute.
POINTS FOR DETERMINATION
- Whether the Complainant is a consumer under the OP?
- Whether the activities between the parties and the transaction took place between them amounts to deficiency in service on the part of the OP?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No.1.
It is an admitted position that one transaction between the Complainant and the OP took place at the time of purchasing the vehicle by the Complainant and subsequently during the transaction relating to insurance policy by the Complainant with the OP in relation to said vehicle.
The OP did not deny that there was no transaction between the Complainant and the OP. The disputed transaction relates to some financial matter relating to insurance policy and accordingly after perusing the entire case record and the pleadings of the parties the Commission comes to the findings that the Complainant is a consumer under the C.P. Act.
Accordingly, issue No.1 is answered infavour of the Complainant.
Point Nos. 2,3 & 4.
All the three issues have a close nexus with one and other. Therefore these issues are taken up together for convenience and brevity of discussion. The Complainant in order to substantiate the case adduced evidence by filing evidence on affidavit and filing some documents. Annexure-A being the certificate of registration of the vehicle having registration No. WB 63A 0378(Maxi cab) which was registered on 04.03.14. As per the said registration certificate(RC) the seating capacity is wrongly written as 8.
The Complainant alleged that the OP wrongly recorded the seating capacity as 9 for which extra insurance premium charged upon him. The OP in their pleading stated that the said capacity was wrong for 8+1=9 which was a mistake and the difference amount was refunded to the customer. Therefore the harassment caused by the OP to the Complainant is no doubt deficiency in service.
The Complainant in order to further substantiate his claim also proved the Annexure- B being the repayment schedule, Annexure-C non-ulip policy schedule wherein the consignment of policy is shown as 09.05.18. Annexure-D being the certificate cum policy schedule also discloses that the said capacity against the disputed vehicle WB 63A/0378 was wrong as 8+1 for which the total value of the policy was wrong as Rs.19,816/- and the final premium was Rs.26,486/-. Annexure-E also depicts that the sum of Rs.2360/- was received from the Complainant by the OP Company towards processing charge. The Complainant categorically stated that a further sum of Rs.10,000/- was taken by one Firoj Khan being a staff of the OP against which only receipt for Rs.4546/- was given. Annexure- E1 and E2 are the receipts from which it is found that a sum of Rs.4546/- was actual charge and receipt given on that.
Although OP denied that said Firoj Khan did not take that extra money yet could not deny that Mr. Firoj Khan was their employee.
After perusing the case record it is found that the Complainant categorically affirmed the allegation of taking extra money by the staff of the OP through evidence on affidavit, the OP did not cross-examine the Complainant to that effect therefore the evidence of the Complainant could not be discarded by the OP.
Similarly the allegation with his prayer for cancellation of insurance also could not be controverted by cross-examining him.
On the contrary the evidence of the OP goes to show that the yearly premium of Shriram Life Insurance is Rs.143/- higher due to wrong selection of seating capacity from the OP.
Regard being also had to the previous observation that the said seating capacity was enhanced due to fault to the OP which should not be attributed to the Complainant. Since the OP admitted their fault and an amount of Rs.950/- is claimed to have been refunded to the Complainant on 25.11.19 so the said misdeed on the part of the OP should reasonably be considered to have been proved his deficiency in service.
The aforesaid misdeeds as proved by the Complainant reasonably compelled the Complainant to cancel the insurance policy. The averment made and the evidence led by the Complainant are duly proved to establish that he had sufficient ground to cancel the insurance policy with the OP Company.
The Ld. Defence Counsel argued with the help of the document as Annexure-A to show that the insurance can be entered into and accepted through voice mode with telephone calling.
The said clause does not come to the help of the OP to refute the claim of the Complainant in as much as the OP admitted pleading and evidence that their insurance policy is higher than the insurance of his insurance Company with which the Complainant subsequently ensured.
In this regard reliance is placed upon the complaint filed by the Complainant to the Branch Manager Op Company being Annexure-F wherein the signature on the receipt copy with seal has been interpolated by over writing. It established the allegation of the Complainant that he was forcibly compelled to take the said policy No.NN011805029002.
While deciding the point as to whether the said policy was decided to be cancelled within one year of its execution, regard being had to the plea of the Complainant and evidence thereto that he requested to cancel the policy forcibly again and again but the Manager refused to accept his complaint. So he decided not to pay the regular premium but Company continued the Policy for one year.
The OP Company claimed that the insurance Policy could be executed through voice mode or SMS. Similarly the voice call of the Complainant also ought to have been given as a mode of acceptance to cancel the insurance Policy.
These demeanours of the OP appears to have been done in order to depict the actual claim of the Complainant in order to refuse the plea of cancellation of the insurance by the Complainant. This short of acts on the part of the OP amounts to deficiency in service.
Thus after assessing the pleadings of both the parties as well as the evidence on record vis-à-vis the observation made herein above in foregoing paragraphs I am of the view that there was deficiency in service in regard to the disputed transaction between the parties.
Accordingly, the Complainant is entitled to get the relief as prayed for.
Issue Nos.2,3& 4 are therefore decided on behalf of the Complainant positively.
Consequently, the complaint case succeeds on contest without cost.
Hence, it is
Ordered
That the complaint case be and the same is allowed on contest without cost. The Complainant do get an award of Rs.9,551/- towards refund of Life Insurance premium, Rs.26,486/- towards wrong vehicle insurance and Rs.5454/- as towards extra processing fee. The OP Company is directed to refund a sum of Rs.41,491/- to the Complainant within one month from the date passing the Final Order failing which the entire awarded sum shall carry an interest of 6% per annum to be borne by the OP.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
