KUNDAN KUMAR KUMAI

This is an appeal preferred under Section 15 of the Consumer Protection Act 1986, against the final order and judgment passed by the Ld. DCDRF, Coochbehar, in CC/65/2017, on 26/09/2019.

Brief facts of the appellant case are that, the appellant had purchased a policy bearing no. 004928479 from respondent no. 2 insurance company, in June 2011, against the monthly premium of Rs. 4999.90 (Four thousand nine hundred ninety-nine and paisa ninety) only. The above amount used to be regularly deducted from his account no. 910010012155508, lying with the respondent no. 1 bank.  The last premium of the said policy had been due in May 2016, but no deduction by way of ECS was done inspite of sufficient balance of Rs. 31,005/- in the above account. The appellant came to know of such non- deduction, when a cheque bearing no. 789857 amounting to Rs. 359898/- (Three lakh fifty-nine thousand eight hundred ninety-eight) only had been delivered to him by post, after the policy had been terminated, arbitrarily. 

The matter had been informed to one Shri. Bhupen Chandra Roy, advisor of the respondent no. 2 Company (Advisor Code- AQ 9749) and also Shri. Jayanta Roy, Branch Development Manager, Coochbehar Branch, respondent no. 2 company, along with necessary documents and prayer petition, which had been sent via WhatsApp to mobile no. 9832060788 on 27/08/2016 and mobile no. 9475411931 on 25/08/2016 from mobile no. 8373082139. Even, after being assured of compensation by the respondent no. 2 company, no response was received by the appellant. When contacted repeatedly Shri. Jayanta Roy informed over Phone, that this had happened due to fault and negligence of the respondent no. 1 bank.  On 24/11/2016, the appellant raised the matter, to the Branch Manager of the respondent no. 1 bank, by sending a letter. But till date no response was received from the respondent no. 1 bank. Therefore, in view of such deficiency of service and unfair trade practices, the appellant filed the instant complaint with necessary prayers. Hence this case.

The respondent no.1 bank appeared before the Ld. Forum, by filing a written version, wherein it was denied, that there was any deficiency of service on its part. It was further mentioned, that the ECS mandate had expired on 13/05/2016 and no new mandate had been received, from the appellant and as such prayed for dismissal of the claim.

Respondent no. 2 insurance company, also entered appearance by filing written version, wherein it has denied, the material part of the appellant’s case and mentioned, that the appellant had filed this case with mala fide intent. It was also mentioned, that the policy in question was a ‘BSLI Classic Life Plan-Pay 5-ULIP’, which was a market linked policy and therefore, speculative in nature and made for investment purposes and therefore, the appellant was not a consumer, as per the definition of 2(1) (d) of the Consumer Protection act 1986, it was further stated that the law was now well settled and has laid reliance in the judgment passed in Ramlal Aggarwala Vs. Bajaj Allianz Life Insurance company passed by the Hon’ble NCDRC and in the matter of Satheesh lal Vs. HDFC Standard Life insurance Company Ltd. Passed by the Hon’ble SCDRC, Tiruvanathapuram in first appeal 712/2012. That apart even after the issuance of one lapsation notice, wherein it was claimed, that non payment of due premiums by 18/07/2016, the policy would be deemed to have been withdrawn, but as the appellant failed to respond, the policy was terminated and a cheque amounting to Rs. 359898/- (Three lakh fifty-nine thousand eight hundred ninety-eight) only, had been delivered by post. It was therefore, prayed, that the complaint be dismissed.    

All the parties had tendered evidence on affidavit and after hearing all the sides and on perusal of the material on record, the Ld. DCDRF, Coochbehar, had allowed the case, by directing only the respondent no. 1 to pay Rs. 40,000/- (Forty thousand) only, being compensation, as well as towards mental pain and agony and as cost to be paid within one month of the order.

Decision with reason

At the time of final hearing, the appellant in person had addressed this Commission, by submitting, that the Ld. DCDRF had erred in law and facts, while passing the impugned judgment on the ground that both the respondents had been guilty of deficiency of service and unfair trade practice, but the Ld. DCDRF, Coochbehar, had allowed the case only against respondent no. 1 bank and not against the respondent insurance company. He had further submitted that inspite having sufficient balance, the respondent bank failed to transfer the amount to be respondent insurance company, for which reason, the policy had lapsed. That apart without informing the appellant, the respondent insurance company had treated the policy as terminated and had issued the cheque for the deposited amount after necessary deductions i.e Rs. 3,59,898/- (Three lakh fifty-nine thousand eight hundred ninety-eight) only, without any intimation. He therefore, prayed for setting aside the impugned order and passing of necessary orders against both the respondents.

Though, the Ld. Advocate for the respondent no. 1 appeared during the initial period of the appeal, but finally did not appear to contest the appeal and as such the appeal was heard on merits against the respondent no. 1 bank.

Written notes of arguments had been filed on behalf of the respondent insurance, but finally no Advocate appeared to make submissions and as such the appeal was taken up for disposal on merit against the respondent insurance company.  The main reason made out in the written notes of argument is that, the last premium due date was on 14/05/2016, when the appellant had stopped paying the monthly premium of Rs. 4999.90 (Four thousand nine hundred ninety-nine and paisa ninety) only, from the month of May 2016 and consequently due to such non payment of premium, the policy had lapsed and lapsation notice dated 09/06/2016 had been issued asking the appellant to clear all due premiums by 18/07/2016 and non-payment beyond that date, resulted in the policy being terminated and the proceeds of the policy would be sent to the appellant and the same had been done. The OP insurance company had sent an ECS dishonour letter dated 04/06/2016 to the appellant. But the appellant had not taken any steps, following which the policy had been terminated and the policy proceeds had been sent to the appellant. Moreover, the respondent insurance company had assailed the appeal on the ground that the policy entered in to by the appellant was an investment and therefore, the appellant was not a consumer and has relied in the judgment passed in Ramlal Aggarwala Vs. Bajaj Allianz Life Insurance company passed by the Hon’ble NCDRC and in the matter of Satheesh lal Vs. HDFC Standard Life insurance Company Ltd. Passed by the Hon’ble SCDRC, Tiruvanathapuram in first appeal 712/2012.

Hence, from the above submissions and averments, it appears that the appellant’s main grievance against the impugned judgment is that the Ld. DCDRF, Coochbehar, had let off, the respondent insurance company, whereas, the respondent bank as well as the respondent insurance company had been equally at fault for such deficiency of service and unfair trade practice. On perusal of the impugned judgment, it becomes very clear that the lapsation notice had been issued the appellant and on the basis of such notice, the appellant ought to have revived the policy and no fault in this regard can be attributed to be respondent insurance company. Moreover, the appellant also did not raise any dispute with regard to the issuance of such lapsation notice, before the Ld. Lower Forum and therefore, the impugned judgment can not be held to be erroneous in arriving at the conclusion arrived at. That apart, the Ld. DCDRF, Coochbehar, has also rightly found, that the respondent bank had been responsible for the non-payment of the policy premiums, on the ground that, there had been no instructions from the appellant to discontinue with the ECS mandate and therefore, had rightly penalized the respondent bank, by the passing the impugned order. In addition, it can be stated that, the bank, being aware of such deductions towards payment of premium policy and knowing the consequences of such nonpayment of premiums, ought to have continued with the transferring of the premium amounts, when the account was well funded and there being no mandate to stop the ECS, acted in a clerical manner and depriving the appellant from enjoying the fruits of the policy.  Hence, the respondent bank had been mainly responsible for the sufferings under gone by the appellant and as such the awarded amount appears, to be a bit on the lower side, considering the magnitude of disservice done by the respondent bank towards the appellant. In this contest the awarded amount in the impugned judgment needs to be increased to Rs. 1,00,000/- (One lakh) only, so as to deter the respondent bank to be more vigilant and consumer friendly in future.

As a result, the instant appeal succeeds in part.

It is therefore

Ordered

That the instant appeal be and the same is allowed in part on contest but without costs.

The impugned judgment is modified to the extent, that the impugned bank is directed to pay the appellant Rs. 1,00,000/- (One lakh) only, within 30 days from the date of communication of this order.

Copy of the order be sent to the parties, free of costs.

Copy of the order be sent to the Ld. DCDRF, Coochbehar, for necessary compliance.