BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 8 of 2018
1. Shri Partha Ranjan Chakraborty
Ramkrishna Lane (Kunapatty), Tarapur, P.O & P.S- Silchar, District- Cachar, Assam ……………………………………………….... Complainants.
-V/S-
1. The Branch Manager, Bharti AXA Life Insurance Co. Ltd.
Rangirkhari, Silchar- 788005………….………………………. O.P.No.1.
2. Airtel
C-394, 5 Central Road, Indira Nagar, Phase-4
MIDC, Navi Mumbai-400705 ………………………………… O.P.No.2.
3. Bharti Axa Life Insurance Co. Ltd.
Regd. Office Unit-601 & 602. ………………………………… O.P.No.3
4. NET AMBIT, C/O- Bharti AXA Life Insurance Co.Ltd.
Guwahati ANG- 781022, Broker Code- 20022604142644 …. O.P.No.4
5. Sri Rakesh Kumar Mandal
Area Sales Manager, C/O- Bharti AXA Life Insurance Co.Ltd.
2nd Floor Milestone Building, Guwahati-781022……………….. O.P.No.5
Present: - Sri BishnuDebnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared: - Mr. Joydeep Biswas, Advocate for the complainant.
Mr. Rahul Nath, Advocate for the O.P.No.1, 3 & 5.
None for O.P.No.2 & 4.
Date of Evidence 26-02-2019
Date of written argument 02-05-2019
Date of oral argument 29-05-2019, 26-06-2019, 04-09-2019,
19-09-2019
Date of judgment 30-09-2019
JUDGMENT AND ORDER
Sri Bishnu Debnath
1. Sri Partha Ranjan Chakraborty brought the Compliant under the provision of the Consumer Protection Act.1986 against Airtel and the Bharati AXA Life Insurance Co. Ltd. for refund of amount of Rs.60,500/- and compensation including cost of proceeding.
2. Brief facts:-
The Complainant made correspondence through phone call and email to the Operational Manager Airtel (North East India) Mr. Abhijit Dutta regarding installation of 4G Network Tower in his land. The correspondence was initiated on receiving a phone call same time in the month of September 2016. Accordingly he was made hopeful that for installation of Tower of Airtel, he will get Rs.5,00,000/- for 5 (five) years and also receive Rs.15,000/- per month. As he showed interest he was adviced to execute agreement form. As per advice of Mr. Abhijit Dutta, and introduce as operational manager of Airtel. The complainant downloaded application form for agreement vide application number AT4G17434. He filled up the form to give details of his address, location of property on which tower to be installed, his Bank particular etc. Not only that but also as per advice of that operational manager Mr. Abhijit Dutta he paid Rs.30,500 in the account of Bharati AXA Life Insurance Co. Ltd. and Rs.30,000/- in the account of Smti. Priyanka Roy. The payment made from his bank account of UBI, Silchar branch on 18/10/2016.
3. But subsequently, nothing progressed toward installation of Tower on his land,rather received an Insurance Policy dated 30/11/2016 of Bharati AXA Life Insurance Co. Ltd. In that insurance Policy the sum insured was mentioned Rs.6,61,070/- and premium was mentioned as Rs.60,500/-.
4. As he is not interest for insurance policy, he wrote a letter to the Branch Manager, Bharati AXA Life Insurance Co.Ltd. on 14/09/2017 for refund of his amount of Rs.60,500/-. But the Bharati AXA Life Insurance Co. Ltd. did not refund the amount. Hence, on being aggrieved the Complainant brought this case against both the Bharati AXA Life Insurance Co. Ltd. and Airtel.
5. The Airtel did not constest the case on receipt of the Notice. So, this case is proceeding exparte against the Airtel, vide order dated 02/06/2018. During pendency of the Case the Net Ambit, Guwahati, a broker and Sri. Rakesh Kumar Mondal, Area Sales Manager of Bharati AXA Life Insurance Co. Ltd. were added as O.P. No.4 & 5 respectively. But O.P.No.4 did not contest the case. So, this case is proceeding exparte against O.P.No.4 vide order dated 31/12/2018.
6. The Bharati AXA Life Insurance Co. Ltd. being O.P.No. 3 and its Branch Manager, Silchar being O.P.No.1 submitted their joint W/S. The O.P.No.5 Rakesh Kumar Modal did not submit any W/S by putting his signature, rather, the Branch Manager of Bharati AXA i.e O.P. No.1 submitted W/S on behalf of Rakesh Kumar Mondal.
7. The contested O.P No.1,3 and 5 denied any connection with Airtel for installation of Mobile Tower to the property of the Complainant. They stated that the Complainant went to the office of the Bharati AXA Life Insurance Co. Ltd. to purchase insurance policy. Accordingly, a proposal form was executed and then premium of Rs.60,500/- paid and thereafter he was medically examined. They said after completion of all the above formalities, observation and verification etc. The proposal was accepted and Insurance policy was issued in the name of the Complainant. So, the contesting O.Ps stated that the Complainant brought this instant case on false story and as such no relief can be entitled by the complainant as per law and equity.
8. During hearing, the Complainant submitted his deposition supporting an affidavit and also exhibited as many as 10 (ten) documents including the questioned Insurance Policy, bank statement regarding transaction of Rs.30,500/- in favour Bharati AXA Life Insurance Co. Ltd., Rs.30,000/- in favour of Priyanka Roy, application form for agreement paper. The O.P. No.1,3 & 5 submitted deposition of K. Sanjib Singha the sales Manager of Bharati AXA Life Insurance Co. Ltd. Silchar Branch. The said witness exhibited not only proposal Form vide Ext. B but also exhibited Medical examination reports and other relevant documents.
9. After closing evidence, both sides counsels submitted their written argument. I have also heard oral argument of the Ld. Advocate of the Complainant and the Ld. Advocate of the contesting O.Ps.
10. So, far as instruction of the operational manager Mr. Abhijit Dutta regarding deposit of Rs. 30,500/- in the account of Bharati AXA Life Insurance Co. Ltd. and Rs.30,000/- in the account of Priyanka Roy is concern except the oral statement on supporting affidavit of the Complainant nothing available in the record. Moreover, no reliable scrap of email is available in the evidence on record regarding correspondence of the Complainant with genuine official of Airtel regarding installation of Mobile Phone Tower on his property except the statement of the Complainant supporting affidavit. So, nothing establish to conclude that correspondence was there of Complainant with genuine official of Airtel regarding installation of Mobile Phone Tower to the property of the Complainant or assurance of the Airtel Company to the Complainant that he will get Rs.5,00,000/- for 5(five) year as consideration for allowing the Airtel Company to install Mobile Tower or to pay Rs.15,000/- per month as alleged. But at the same time when the Complainant on oath stated that there was telephonic talk regarding installation of Tower and offer for receiving Rs.5,00,000/- for 5 (five) year and Rs.15,000/- per month, the said alleged fact cannot be ruled out without consulting and appreciation the evidence on record because it is not impossible to think that in the name of Airtel company somebody may impersonal the Airtel for wrongful gain. In this case it is also not established beyond doubt that Mr. Abhijit Dutta and Priyanka Roy area two authorize official representative of Airtel regarding installation of mobile tower.
11. In view of evidence on record, the complainant received an Insurance policy of Bharati AXA Life Insurance Co.Ltd. admittedly issued on 30/11/2016. It is also admitted by the contesting O.Ps that the Bharati AXA issued the Insurance Policy vide Ext.1 after accepting the proposal vide Ext.B and on receipt of premium amount of Rs.60,500/-. Thus, it is very relevant to know as when the proposal was executed by the Complainant. The contesting O.Ps adduced evidence to establish the fact that the Complainant filled up the proposal form and furnished all particulars regarding his income, profession etc. in the proposal form, vide Ext.B. If that is the real fact, than it can be presumed that proposal form was executed not prior to the date on 26/10/2016 because below the signature of the Complainant in the Ext.B, the date 26/10/2016 is written. Thus view of plea of the contesting O.Ps the premium of Rs.60,500/- for insurance of policy vide Ext.1 paid by the complainant some time in between 26/10/2016 and 30/11/2016 i.e. on the date of issuing of insurance policy because on which date, the complainant paid the premium amount of Rs.60,500/- to the Bharati AXA Life Insurance is not disclosed by the contesting O.Ps. except to say that after verifying the proposal, the premium was paid and then medical test was done. The relevant portion of deposition of D.W Sri. K. Sanjib Singha is reproduced below:-
“7. I say and submit that the complainant visited the branch of the opposite party and expressed his desired to get his life insured. Subsequently, he filled up the proposal form himself after understanding all the terms and conditions of the contact of the Insurance and paid the premium. For getting the insurance contract completed, he was required to undergo certain medical tests and for which he went to a clinic and got himself medically examined”
12. Thus, from the above portion of deposition of the DW it is understandable that at first the complainant executed proposal form on 26/10/2016 and thereafter paid premium amount and/or medical examination was done. But the contesting O.Ps exhibited medical test report and ECG Report of the complainant vide Ext.C & Ext.D. As per those report Medical test was done on 08/11/2016.The said facts bears normal sequence because Insurance Policy admittedly issued on 30/11/2016. But when the premium paid? Whether premium paid prior to the execution of the proposal form and prior to the medical examination of the complainant for obtaining insurance policy. The evidence of the contesting O.Ps. side indicated that the premium paid after execution of proposal form i.e any subsequent date to the date on 26/10/2016.
13. Nothing produced by the contesting O.Ps to establish the actual date of receiving the premium from the Complainant. But the Complainant adduced evidence that he was instructed to pay Rs.30,500/- in the account of Bharati AXA Life Insurance Co. Ltd. and Rs. 30,000/- in the account of Smti. Priyanka Roy and accordingly he deposited the said amount on 18/10/2016 i.e prior to the date of alleged execution of proposal form vide Ext.B.
14. To prove that said payment the Complainant exhibited Bank Pass Book vide Ext.4, relevant page for transaction of Rs.30,500/- and Rs.30,000/- vide Ext. 4(I) and counter foil of deposit slip dated 18/10/2016 vide Ext.5. All those documents are sufficient to establish the fact that the Complainant paid Rs.30,500/- in the account of Bharati AXA Life Insurance Co.Ltd. on 18/10/2016 and also established the fact that Rs.30,000/- paid to the account of Smti. Priyanka Roy.
15. Who is that Priyanka Roy is not clear in view of evidence on record. But, the contesting O.Ps did not deny the receipt of Rs.30,500/- in view of Bank Transaction dated 18/10/2016, rather admitted that they receive Rs.60,500/- from the Complainant as premium. As nothing clarified by the contesting O.Ps. regarding mode of receiving of the premium and dated of receipt of premium, so, it is concluded that the amount of Rs.60,500/- which has been paid by the Complainant on 18/10/2016 in two numbers of accounts is the amount which the O.Ps are admitting as premium. Thus, it is clear that the O.P. received the amount of Rs.60,500/- on 18/10/2016 and issued Ext.I insurance policy on 30/11/2016 in view of so called alleged proposal vide Ext.B dated 26/10/2016.
16. Why, the contesting O.Ps. receive Rs.60,500/- as premium of Insurance policy prior to the execution of Insurance proposal is not clear from the defense plea. The Contesting O.sP. also did not clarify the matter of advance receipt of premium. Hence, taking into consideration the principle of preponderance of probability of evidence, I have relied on the evidence of the complainant to conclude that by misleading the complainant Bharati AXA Life Insurance Co. Ltd. received Rs.60,500/- on 18/10/2016 and subsequently issued an Insurance policy dated 30/11/2016 to adjust the aforesaid amount of Rs.60,500/- for the reason best know to it.
17. Of course, the contesting O.Ps. stated that the Complainant after understanding the terms & conditions of the Insurance Policy executed the proposal Form, vide Ext.B and Insurance Policy was issued after receiving medical examination report of the Complainant. If I presume the above facts are true and the Complainant really co-operated the contesting O.Ps to obtain insurance policy then, it is the burden of the contesting O.Ps. to produce the original proposal Form in which the Complainant put signature and filled the portion by his own hand.
18. To establish the said fact the original proposal form is required to produce before this District Forum as primary evidence. The Complainant from the beginning of this case, approaching this District Forum to direct the Contesting O.Ps to produce original proposal form but the contesting O.Ps did not produce the original proposal. The contesting O.Ps rather tried to convince this District Forum that original proposal has been handed over to the Complainant along with the Insurance policy. The said fact is not admitted by the Complainant. The Ld. Advocate of the Complainant during argument tried to convince this District Forum that the contesting O.Ps delivered a scan copy of alleged proposal form with insurance policy and also stated that the Complainant never put signature on any proposal form and never furnished particular in the proposal form. The Ld. Advocate of the Complainant further stated that the contesting O.Ps has made a proposal form by using scan photo, documents and signature of the Complainant, which he send as per instruction of so call operational manager of Airtel for installation of mobile tower in his property.
19. In that matter, I have meticulously gone through the case record and evidence and believe the facts stated by the Complainant in view of preponderance of probability because the contesting O.Ps failed to furnish any documentary proof or otherwise proved and fact that the original proposal form has been delivered to the Complainant. If original has been delivered to the complainant, then it is burden of the contesting O.Ps to establish that fact beyond doubt. But noting adduced in this case.
20. As such in this case, I have found foul play of the Bharati AXA Life Insurance Co. Ltd. regarding receiving of Rs.60,500/- from the Complainant and issuing of Insurance Policy vide Ext.I. So, the contesting O.Ps. i.e Bharati AXA Life Insurance Co. Ltd. is liable to refund the entire amount of Rs.60,500/- to the Complainant with interest at the rate of 10% per annum from the date of receipt of the amount i.e from 18/10/2016. The Bharati AXA Life Insurance Co. Ltd. is also liable to pay compensation for unfair trade practice of Rs.50,000/- (Rupees Fifty Thousand) only and to pay cost of the proceeding of Rs.5,000/- (Rupees Five Thousand) only. Due to aforesaid unfair trade practice, the complainant suffered from mantel agony for long period and as such to give proper relief to the complainant to get rid of mantel agony, the contesting O.Ps are further directed to pay an amount of Rs.50,000/- (Rupees Fifty Thousand) only as compensation for mantel agony.
21. The above awarded amount to be paid within 45 days from today. In default interest at rate of 10% per annum to be added to the awarded amount from the date of defaulter.However, if the complainant feel that Mr. Abhijit Dutta impersonate as stated above, he may bring criminal case against Mr. Abhijit Dutta before a competent criminal court subject to limitation U/S 468 Cr. PC. and also made bring case against Priyanka Roy to competent court.
22. With the above this case is disposed of on contest. Supply free certified copy of judgment to the parties of this litigation. Given under my hand and seal of this District Forum on this the 30th day of September, 2019.
