Date of Filing: 05/09/2014 Date of Final Order: 26/06/2015
The complainant, Chhabia Bibi, W/o. Maniruddin Sekh has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the O.P. No.1, The Branch Manager, Golden Trust Financial Service, The O.P. No.2, Astha Insurance Services Ltd., The O.P. No.3, Kotak Mahindra Old Mutual Life Insurance Ltd. and the O.P. No.4, Chhabia Bibi, W/o. Nurjamal Miah praying for issuing a direction upon the O.Ps to pay compensation for deficiency in service of the O.Ps with cost amounting to Rs.65,000/- in total and other relief(s) as the Forum may deem feet and proper.
The factual matrix of the case as can be gathered from the case record is that the complainant preferred a Kotak Life insurance Policy (Kotak Flexi Plan) plan description Unit-linked Endowment Assurance Plan in consultation with the O.P. No.1 & 2 being policy No.01039629 and the date of the commencement was 10/05/2008 and date of maturity of the said policy is 10/05/2023. The complainant continued the said policy for three years by depositing Rs.10,000/- per year and in this way the complainant deposited total premium of Rs. 30,000/-. During the continuation of the said policy the complainant wanted to withdraw/stop/close the said policy due to stiff financial hardship in her family. So the complainant intimated such fact to the O.P. No.1 & 2.
Thereafter, the complainant on several occasion demanded her deposited money from the O.P. No.1 & 2, but the O.Ps kept mum every times and after few days when the complainant along with her relatives came to the Branch Office of the O.P. No.1 & 2 at Cooch Behar for her demand, then surprisingly the O.P. No.1 & 2 showed some documents from where it revealed that the deposit money of the said policy of the complainant has already been withdrawn by the O.P. No.4 illegally.
It is pertinent to mention that complainant never withdrawn such amount and it is the O.P. No.1,2 & 3 who without verification negligently and unfairly disburse such money to a wrong person i.e. the O.P. No.4.
It is the case of the complainant that the complainant is the real claimant and inspite of legal demand the O.Ps did not pay any heed to make payment to the complainant of her deposited policy money. After making several contact with the O.Ps no fruitful result whatsoever could be noticed by the complainant.
By such willful act of omission & commission, negligence and deficiency in service on the part of the O.Ps the complainant has suffered a lot from mental agony, pain and huge monetary loss.
Hence, the complainant filed the instant Case No. DF/60/2014 with enclosed some original/Xerox copy of documents together with I.P.Os. of Rs.100/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Refund the deposited money of Rs.30,000/- with statutory interest thereof, (2) Rs.15,000/- towards unfair trade practice, deficiency in service and negligence, (3) Rs.10,000/- for compensation, (4) Rs.5,000/- for mental pain, agony and harassment and (5) Rs.5,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Golden Trust Financial Service has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the complainant has no cause of action to being this case and the case is not tenable in law. The main contention of the O.P. No.1 is that Golden Trust Financial Services (GTFS) has got nothing to do with the present case. There is no relation between Golden Trust Financial Services and Kotak Mahindra Old Mutual Life Insurance Ltd. The O.P. No.1 has been wrongly impleaded in the present case and as such this case suffers from mis-joinder of party and there was no latches or negligence of the GTFS. So, this answering O.P. No.1 is not liable to pay any amount.
Ultimately, the O.P. No.1 prayed for expunging the name of Golden Trust Financial Services from the present case.
The O.P. No.2, Astha Insurance Services Ltd. has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the complainant has no cause of action to bring this case and the case is not tenable in law. The main contention of the O.P. No.2 is that as one of the corporate Agents of the insurer Kotak Mahindra Old Mutual Life Insurance Ltd. the O.P. No.2 begs to clarify that their status and position, authority and power are guided by Insurance Regulatory and Development Authority (Licensing of Corporate agents) Regulations, 2002 and nothing beyond those regulations. The regulations do not confer any authority to the Corporate Agent about the settlement of the claim. Further, as per the Indian Contract Act, 1872 the relationship between the Principal and Agent is also limited to the basic consent that the authority of an Agent is in conformity with the authority granted by the Principal.
It is the case of the O.P. No.2 that as per the record a person named as Chhabia Bibi, the complainant was covered under Kotak Flexi Plan by Kotak Mahindra Old Mutual Life Insurance Ltd. under Policy No.01039629, starting from 10/05/2008 for the period of 15 years through the corporate agent named as Astha Insurance Services Ltd.
It is the further case of the O.P. No.2 that as per the record two renewal premiums were deposited on 07/07/2009 (for the due date 10/05/2009) and 06/07/2010 (for the due date 10/05/2010). After that it is on record that no renewal premiums were deposited till date. During the continuation of the said policy the complainant wanted to withdraw/stop/close the said policy due to stiff financial hardship in her family. So the policy of the complainant was surrendered and the surrender value of Rs.21,651/- was sent directly to the policy holder’s bank account through NEFT on 20/01/2014 by Kotak Mahindra Old Mutual Life Insurance Ltd.
Further more, the O.P. No.2 has no authority to disburse any amount since their authority and power are guided by Insurance Regulatory and Development Authority (Licensing of Corporate Agents) Regulations, 2002 and nothing beyond those regulations. Those regulations do not confer any authority to the Corporate Agent towards settlement o f the claim.
Ultimately, the O.P. No.2 prayed for expunged/struck down from the present case or dismissal of the case without any cost.
In the light of the contention of the complainant, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
Evidently the Complainant obtained a Kotak Life Insurance Policy on payment of yearly premium of Rs.10,000/- through the O.P. No.1 & 2. So the complainant is consumer under the O.P. No.1 & 2 U/S 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
Office of the O.P. No.1 is situated within Cooch Behar town within jurisdiction of this Forum and cause of action of the case has also arisen within jurisdiction of this Forum. Total valuation of this case is Rs.65,000/- which is far less than maximum pecuniary limit of this Forum i.e. Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
It is the case of the Complainant that she preferred a Kotak Life insurance Policy (Kotak Flexi Plan) plan description Unit-linked Endowment Assurance Plan in consultation with the O.P. No.1 & 2 being policy No.01039629 and the date of the commencement was 10/05/2008 and date of maturity of the said police is 10/05/2023.
The complainant has not filed said original policy but the O.P. No.2 has not denied the factum of issuance such policy to the complainant.
The complainant claimed that she has deposited Rs.30,000/- to the O.Ps by three yearly premium of Rs.10,000/- each.
Xerox copy of provisional receipt dated 09/04/2008 issued by the O.P. No.2, Astha Insurance Services Ltd. shows that the complainant deposited Rs.10,000/- for Kotak Flexi Plan for 15 years, contesting O.P. No.2 has not denied the said document.
The complainant has claimed that she has deposited further Rs.20,000/- as two years premium of the policy.
The O.P. No.2 in their W/V clearly admitted that on 07/07/2009 and 06/07/2010 the complainant has deposited the yearly premium of the said policy.
So, it is clear that the complainant has deposited Rs.30,000/- to the O.Ps as premium.
In their W/V the O.P. No.2 has claimed that as the complainant has surrender her policy, surrender value of Rs.21,651/- was sent directly to the policy holder’s bank account through NEFT on 20/01/2014. But no such explanation is coming out why only Rs.21,651/- was allegedly paid to the complainant, when she paid Rs.30,000/- as premium and she was also entitled to get interest.
In their W/V the O.P. No.2 has further claimed that Rs.21,651/- was paid to the complainant as surrender value to the policy holder’s bank account through NEFT on 20/01/2014 by Kotak Mahindra Old Mutual Life Insurance Ltd. But the O.P. No.2 has not mentioned any bank account number and name of the bank in which alleged Rs.21,651/- was deposited in the name of the complainant.
On the other hand by submitting the original Pass Book of Savings Bank Account No.2246909590 of the Central Bank of India, Chowdhurihat Branch, Cooch Behar stands in the name of the complainant, Chhabia Bibi and original Pass Book of Savings Bank Account No.435910110005637 of the Bank of India, Dinhata Branch stands in the name of the complainant along with one Rafikul Islam, the complainant has shown that no such amount of Rs.21,651/- has been deposited in her account.
So, we have no other alternative but to hold that the O.P. No.2 has failed to prove that Rs.21,651/- has been deposited in the account of the complainant by the O.Ps.
It is the case of the complainant that the O.P. No.1 to 3 without any proper verification, negligently and unfairly disburse such money to wrong person i.e. the O.P. No.4, another Chhabia Bibi of same village.
But there is nothing to show that actually the said money was disburse to the O.P. No.4 and we find nothing to tag the O.P. No.4 in this case in any way.
In their W/V and evidence the O.P. No.1, Golden Trust Financial Service has claimed that they have nothing to do with the present case. There is no relation between Golden Trust Financial Service and Kotak Mahindra Old Mutual Life Insurance Ltd. and they are wrongly impleaded in the present case.
On careful scrutiny of the record we do not find any scrap of paper which can show that the O.P. No.1 is involved in this case. So, the complainant is not entitled to get any relief against the O.P. No.1, Golden Trust Financial Service.
In the present case name of the O.P. No.3, Kotak Mahindra Old Mutual Life Insurance Ltd. was expunged on 06/02/2015 at the instance of the complainant as she was unable to serve any notice upon the O.P. No.3.
It appears from the Receipt dated 09/04/2008 that the O.P. No.2, Astha Insurance Services Ltd. has received Rs.10,000/- from the complainant as agent of the O.P. No.3, Kotak Mahindra Old Mutual Life Insurance Ltd.
Evidently the O.P. No.2 is agent of the O.P. No.3, Kotak Mahindra Old Mutual Life Insurance Ltd. and being agent of the principal Kotak Mahindra they have not tried to supply address of their principal and now they are taking plea that they are mere agent of Kotak Mahindra having no authority to disburse any amount since their authority and power are guided by Insurance Regulatory and Development Authority (Licensing of Corporate Agents) Regulations, 2002 and nothing beyond those regulations.
Considering over all matter into consideration and materials on record we are constrained to hold that the O.P. No.2, Astha Insurance Services Ltd. being agent of the expunged O.P. No.3, Kotak Mahindra Old Mutual Life Insurance Ltd. cannot deny liability to pay deposited amount with compensation and accordingly the case is to be allowed against the O.P. No.2 and dismissed against the O.P. No.1 & 4.
Thus, these points are decided in favour of the complainant and the case is allowed in part.
ORDER
Hence, it is ordered that,
The present Case No. DF/60/2014 be and the same is allowed on contest but in part with cost of Rs.3,000/- against the O.P. No.2 and dismissed on contest against the O.P. No.1 and an ex-parte against the O.P. No.4 without any costs.
The O.P. No.2, Astha Insurance Services Ltd. is also directed to pay Rs.30,000/- as deposited premium and Rs.15,000/- as compensation for mental agony, pain and suffering to the complainant. The ordered amount shall pay to the Complainant within 45 days failure of which the O.P shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
