West Bengal

Birbhum

CC/26/2016

Golam Mohabub - Complainant(s)

Versus

The M.D, A.B. INS Brokers Pvt Ltd - Opp.Party(s)

Sanjit Kr Acharya

27 Mar 2018

ORDER

Order No.24// dt. 27.03.2018//.

            Both parties file hazira.

            The petition dated 16.05.2017 filed by the O.P No. 4 and 5 for dismissal of the case on the ground that the case is not maintainable along with written objection filed by the complainant with other materials on record is taken up for passing order.

            The complainant Golam Mohabub has filed the present case against the O.Ps Reliance Life Ins. Co. Ltd. alleging that one Riya informed him that the Reliance Co. giving a policy with medical facility worth of Rs. 3,00,000/-, a Gold Coin of 2 grams and Rs. 10000/- instant cash back as soon as he become a policy holder and asked him to keep a cheque of Rs. 30000/- ready which was subsequently collected by the executive of the O.Ps. He made payment of Rs. 30000/- by cheque dated 23.09.2014 against said policy.

            It is the further case of the complainant that Executive of O.P No. 1 and 2 were giving wrong information to him and told him not to disclose about the said offer to anybody else, which may cause delay in process of reimbursement. On 27.12.14 he got a call from one Rajdeep Dutta from the O.P No. 1 and 2, who asked him to meet at IBM Tower office, Salt Lake, Sector II. But on reaching there he did not stress out him, rather few people there informed him that his policies were nothing but just a saving plan and there was also no mention of Mediclaim in the said policy.

            It is the further case of the complainant that the act of the O.Ps amount to deficiency in service and illegal practice and hence this case.

            The O.P No. 4 and 5 by filing the instant petition submitted that the complainant by filing the present complaint alleging that on giving false information and assurance to him, the O.P Ins. Co. issued the policy in question to the complainant, which is nothing but deficiency in service and illegal trade practice by practicing fraud upon him.

            But summary procedure are adopted by the consumer Forum,  where complex factual matter is not to be decided, such case should by tried by competent Civil Court and this Forum has no jurisdiction to try this case and the case is liable to be dismissed for want of jurisdiction.

            By filing written objection the complainant has contested the case alleging that mere allegation of fraud in the complaint does not oust the jurisdiction of the Consumer Forum and this Forum has every jurisdiction to try this case.

            We find that in his complaint complainant claimed that one Riya of the O.P No. 1 and 2 gave false information to him that the Reliance Co. giving a policy with medical facility worth of Rs. 3,00,000/-, a Gold Coin of 2 grams and Rs. 10000/- instant cash back as soon as he become a policy holder and asked him to keep a cheque of Rs. 30000/- ready which was subsequently collected by the executive of the O.Ps. He made payment of Rs. 30000/- by cheque dated 23.09.2014 against said policy.

            He also claimed that one Rajdeep Dutta asked him to come to Kolkata office but on reaching there he did not tress him and came to know from few people that his policies were not nothing but just a saving plan and there was no mention of any Mediclaim there. 

            According to the complainant the act of the O.P No. 1 and 2 is nothing but deficiency in service and illegal trade practice, which amounts to practice of fraud upon O.P No. 1 and 2 upon the complainant.

             During hearing of the argument Ld. Advocate/Agent of the O.P Ins. Co. submitted that this Forum has no jurisdiction to try this case and in support of his contention he cited a ruling reported in 1994(2)CPJ456(NC) where in a case against SBI instead of taking up the matter with opening bank the O.P Bank debited the amount of the complainant without any permission from the firm and thereby caused heavy loss to the complainant and deficiency in service. The O.P/Bank raised several objection. Hon’ble National Commission pleased to observe that evidently the complainant’s case is not a simple case of deficiency in service rendered by the O.P Bank. It involves determination of complex question of facts and law, which cannot be satisfactorily determined by the Commission in the time frame provided under the Act. It would be better for the complainant to seek redressed of his grievance in a Civil Court, if so, advised. With this observation the complaint is dismissed with no order as to cost. The complainant is free to seek redressed in Civil Court, if he so choose. Complaint dismissed.

            He cited another ruling reported in 1994(3)CPJ 64(NC) wherein  a case of allegation of fraud Hon’ble National Commission pleased to hold that as fraud is alleged, it is desirable that complainant should be directed to Civil ‘court as investigation of such fraud is required to be done. For that reason the complainant should be directed to the Civil Court. The complaint is dismissed. The complainant, if advised may file Civil Court for ascertain right, if any, against the O.P.

            He cited another ruling reported in 2006(7)SCC655(Supreme Court) where it was the case of the O.P Ins. Co. that there was mis-declaration in the proposal form and false claim that wife of the claimant/complainant was a teacher but she was not a teacher. The complainant raised dispute about the witness of the document (i.e. Proposal Forum) produced by the Ins. Co.  Hon’ble Apex Court pleased to observe that the nature of the proceedings before the Commission are essentially in summary nature. The factual position are required to be established by documents. Commission was required to be examined whether in view of the disputed facts it would excise the jurisdiction. The State Commission was right in view that the complex factual position requires that the matter should be examine by an appropriate Court of Law and not by the Commission.

            In his reply Ld. Advocate/Agent of the complainant submitted a ruling reported in 2007(2)CPC129(NC) where in a case Dist. Forum ordered that disputed document might be examined by handwriting export. Other side raised objection that the District Forum is not competent to go into evaluating expert evidence.

            But Hon’ble National Commission pleased hold that the Consumer Forum is headed by Sr. Judicial Officer, such question could be duly dealt with by the Consumer Forum.

            He submitted another ruling reported in IV(2013)CPJ128(UT Chandigarh). In the said case insured/complainant surrendered his policy after completion of 3years but O.P/Ins. Co. deducted more than 50% from the amount deposited by the complainant, Hon’ble State Commission pleased to hold that the complainant is entitled to surrender value as per Regulation 7 of IRDA Regulation, 2010 with compensation.

We find that in comparison with three rulings submitted by the O.P. i.e. 1994(2)CPJ456(NC); 1994(3) CPJ64(NC) and 2006(7) SCC655(SC) and two rulings submitted by the complainant i.e. 2007(2)CPC129(NC), IV(2013)CPJ128(UT Chandigarh), in view of Hon’ble Apex Court 2006(7) SCC655(SC) proceeding before the Consumer Forum/Commission are in summary nature. So, complex factual position requires that the matter should be examined by an appropriate court of law and not by Commission.

In view of Article 141 of Constitution of India law declared by Supreme Court is binding upon all Court, Tribunal and Quasi-Judicial tribunal of India.

We find that in the present case, during hearing Ld. Advocate/Agent of the complainant, cited a judgement passed in Civil Appeal No. 7975/2001 (Dr. JJ Merchant and others =Vs.= Shrinath Chaturvedi) where Hon’ble Apex Court pleased to hold that evidence of expert like doctors can be taken on affidavit by Consumer Forum/Commission and said expert witness may be cross-examined by putting written question which could be relied by an affidavit, cross-examination could be arranged by video/telephonic conference, even by Commission.

But we find that the said ruling is not directly related to the present case where question comes whether Consumer Forum can decide complex questions of law and facts or not.

Considering over all matter into consideration and rely upon the ruling reported in 2006(3)SCC655(SC) we constrained to hold that this Forum cannot decide serious allegation like fraud, where complex factual matter is involved and the case is liable to be dismissed for want of jurisdiction.

Hence,

            Ordered,

                        that the C.C case No. 26/2016 be and the same is dismissed on contest without any order as cost on the ground that the case is not maintainable.

Copy of this order be supplied to the parties each free of cost.