Date of filing:12.08.2013

Date of disposal:05.09.2014   

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.

PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)

Smt. M.Sreelatha, B.A.,B.L., Lady Member

Friday, the 05^th day of September, 2014

C.C.No.126/2013

Between:

1.       K.Prakash Rao S/o K.Ramaswamy,

          Working as Superintendent, 1^st ADJ Court,

          Anantapur. Now on deputation as Persona Assistant

          In J.C.J. Court,

          Guntakal.

2.       K.Anitha Bai W/o K.Prakash Rao.

3.       K.Madhusudhan Rao S/o K.Prakash Rao,

          All are residing at D.No.20/194- A. Upstairs,

          Near Old Ruchi Restaurant and Bard,

          Hanumesh Nagar, Guntakal.

          Ananthapuramu District.                     …                    Complainants

Vs.

1.     The Manager,

        Future Generali India Life Insurance Company Limited,

        Opp: country Club, Begumpet,

        Hyderabad.

2.     Smt. M.Kiran Mai W/o M.Ravisankar,

        Advocate, Anjali Nagar Street,

        Near Prathiba Vikas English Medium High School,

        Guntakal,

        Ananthapuramu District.                              …                  Opposite Parties

This case coming on this day for final hearing before us in the presence of Sri M.C.Sreenivasulu, Advocate for the complainants and the 1^st Opposite Party called absent and set exparte and Sri B.Vijaya Kumar, Advocate for the 2^nd Opposite Party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Smt. M.Sreelatha,  Lady Member: - This complaint has been filed by the complainants under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.60,000/-  towards refund the entire policy premium amount  and to pay interest  on Rs.30,000/-  from 04.03.2013  till the date of payment and Rs.1,00,000/- towards damages for causing mental agony of complainants.

2.       The brief facts of the complaint are that: - The 1^st complainant had taken the policy bonds from the 1^st opposite party on 09.03.2011 in his name,                            2^nd complainant and 3^rd complainant policy bearing Nos. 00769708, 00769722 & 00769389 by paying a sum of Rs.30,000/-,15,000/- & 15,000/-. As the complainants 1 to 3 are living jointly and they are the members of the Hindu family.  The 2^nd opposite party being authorized agent of the 1^st opposite party approached the 1^st complainant before taking the above polices from the                             1^st opposite party and persuaded the 1^st complainant to take polices by making false promise that policyholders will get rich dividends from the polices.  The opposite party have not acted deligently and there is deficiency of service on their part.  The 2^nd opposite party has also made false promise that if one policy has taken they will get more commission and he has also shown demand drafts and cheques by way of commission issued by the 1^st opposite party. The 2^nd and 3^rd complainants believing the words of the 2^nd opposite party and the 2^nd opposite party stated that only once the amount paid he will look after to get good commission from the 1^st opposite party.  The 2^nd opposite party changed the minds of the complainants and she also conducted meetings to canvas the                       1^st opposite party proposals.  Hence the 2^nd opposite party added as party in the complaint. The proposal of the said policy bonds is to pay the premium amount yearly once by the complainants.  Being the members of the Hindu joint family the 1^st complainant has deposited the said amounts on behalf of his wife and his son. Hence the 1^st complainant is representing and claiming the amount of Rs.60,000/- on behalf of his wife and son from the opposite parties. The                              1^st complainant has sent a letter to the 1^st opposite party on 04.03.2012 stating that he is unable to pay the yearly premium amounts on their behalf and requested the 1^st opposite party to reduce the premium amount from yearly to half yearly accordingly to his financial condition.  The 1^st opposite party has received the said letter and did not give any reply for the same.  The 1^st complainant received the postal acknowledgement sent by the authorized manager of the 1^st opposite party.   The 1^st complainant approached the 2^nd opposite party about his premium mode of change from yearly to half yearly and the 2^nd opposite party had also obelized his request and promised that she looked into the matter and convince the 1^st opposite party to convert into from yearly to half yearly.  Then the 1^st complainant paid Rs.30,000/- towards half yearly premium amount i.e., 15,000/-,7,500/- & 7,500/- and their upon the 2^nd opposite party has acknowledge the receipt of the amount on the letter submitted by the 1^st complainant on 04.03.2012 the 2^nd opposite party signed on the letter.  The 1^st opposite party had given response after a lapse of 8 months along with banker Cheque Bearing No.045318 for Rs.15,031/- dt.29.10.2012,044417 for Rs.7,500/- dt.27.08.2012 and Rs.7,500/-total Rs.30,030/-. The 1^st complainant had informed the 1^st opposite party that he came to know that the 1^st opposite party had accepted the said proposal with regard to yearly policy to half yearly policy in favour of one Ramakrishna policyholder, advocate, Guntakal for reducing the yearly premium amount to half yearly, whereas the 1^st opposite party did not accept the said proposal of the 1^st complainant and shown partiality against the complainant.  The 1^st complainant sent a letter to the 1^st opposite party on 10.01.2013 that he is unable to continue as policyholder and sought for refund of the policy amount of Rs.60,000/- with accrued interest and claim interest on Rs.30,000/- 04.03.2012 till date the said fact also been informed to the 2^nd opposite party.  It is submitted that there is a clause in the terms and conditions of the 1^st opposite party:- You may change the frequency or mode of premium payments by a written request. Subject to our minimum premium requirements and the availability of the desired mode can be changed at the premium rates applicable on the risk commencement date. It is submitted that the 1^st complainant had ready sent a letter to the 1^st opposite party prior to the letter dt.10.01.2013 requesting the 1^st opposite party on 04.03.2012 to reduce yearly premium amount to half yearly premium in respect of the above said policy bonds through the authorized agent at Guntakal on behalf of the 1^st opposite party.  The 1^st opposite party had already received the said letter, but did not give reply.  The 1^st opposite party is showing negligence and great latches intentionally in reducing the premium amounts to half yearly premium amounts to take easy to the 1^st complainant is making the same. The complainant got issued legal notice to the 1^st opposite party requesting to refund the policy amounts of Rs.60,000/- with accruing interest on Rs.30,000/- to the complainants. The 1^st opposite party had received the legal notice, but did not give any reply.  Hence, the petition for specific direction to the 1^st opposite party and 2^nd opposite party to make refund of Rs.60,000/- the policy amounts deposited by the complainants. The said fact has also been informed to the 2^nd opposite party.  The 1^st complainant has informed the 2^nd opposite party from time to time with regard to delay of receiving the premium amount, and negligent act of 1^st opposite party, but she is silent for the same.   It is submitted that the complainant that there is clause in the terms and conditions of the 1^st opposite party stating that: The surrender value is paid to you should you decide to surrender your policy. Once the policy surrendered, all benefits under the policy will immediately terminate and the policy will be not be eligible for revival.  The amount payable to you on surrender of the policy would, at all times be equal to the surrendered value under the policy less any indebtedness.  It is further submitted that the there is another clause in the terms and conditions of the 1^st opposite party stating that :  Free look cancellation:- You have a period of 15 days from the date of receipt of the policy document to review the terms and conditions of the policy,  If you are not satisfied with or disagree with any of the terms and conditions , you have the option to cancel/withdraw and return the policy along with a letter (dated & signed) stating your intention to cancel  the policy  and  reasons for the objections/cancellation, within this period.  Cancellation of policy and refund of premium is allowed under this provision, whereby the amount payable on such cancellation will be equal to the total premium paid less a reasonable cost of insurance cover for the period and expenses towards policy stamp duty and medical examination if any.   It is submitted that the 1^st complainant also informed about the above clauses, but the 1^st opposite party did not follow the clauses and failed to refund the amount inspite of repeated demands.

3.       The 1^st opposite party called absent and set exparte.

4.       The 2^nd opposite party filed counter denied all the allegations made in the complaint as false and the complainant is strictly proof of the same. The 2^nd opposite party is not an authorized agent of the 1^st opposite party as alleged by the complainants.  The 2^nd opposite party submitted that the 1^st complainant  before taking the policies  from the 1^st opposite party and this opposite party persuaded the 1^st complainant to take policies  is false and denied by the                          2^nd opposite party.  The 2^nd opposite party stated that the application filed up by her is also denied. The 2^nd opposite party also denied that she approached the 1^st complainant to take the policies from the 1^st opposite party and the                              2^nd opposite party has not acted diligently and there is deficiency of service on the part of the 2^nd opposite party by making false promise to take the policies, the complainants will get more commission and the 2^nd opposite party has shown the Demand Drafts and Cheques received by her as commission from the 1^st opposite party to attracted to the words of the 2^nd opposite party and promised to get good commission from the 1^st opposite party after the complainants paid the  amount to 1^st opposite party is denied as false.  The 2^nd opposite party also denied the allegations of the 1^st complainant approached  the 2^nd opposite party with regard to change of premiums from yearly mode to half yearly mode and she promised that she will look in to  matter and promised to convince the 1^st opposite party to convert the policies  into half yearly mode  and that the complainants paid Rs.30,000/- towards half yearly premium and the same  acknowledge the receipt of the amount and signed on the letter submitted by the 1^st complainant on 04.03.2012 is false and denied.  The 2^nd opposite party also submitted that about the sending letters to 1^st opposite party by the 1^st complainant by expressing his inability to continue as policyholder is not known to this opposite party and the same was denied.  The 2^nd opposite party also denied  about the  issuing of legal notice to 1^st opposite party requesting  for refund of policy amount of Rs.60,000/- and interest on Rs.30,000/- paid by the complainants.   The 2^nd opposite party also denied that there is no cause of action and the alleged cause of action is false and denied and the 2^nd opposite party also denied that the complainant obtained three policies from the 1^st opposite party and the 2^nd opposite party is authorized agent of the 1^st opposite party and received Rs.60,000/- on 27.02.2011 and Rs.30,000/- on 04.03.2012 the 2^nd opposite party submitted she is neither an agent nor  an authorized agent of the 1^st opposite party.  The 2^nd opposite party is also a policyholder of the 1^st opposite party the husband of the 2^nd opposite party is working an advocate at Guntakal the 1^st complainant used to visit the house cum office of the husband of the 2^nd opposite party when the 1^st complainant expressed his difficulty in paying the income tax, this opposite party suggested to obtain an insurance policy by which the 1^st complainant will get exemption from paying the income tax.  The 2^nd opposite party mentioned  that she is an employee and obtained the policy from the 1^st opposite party and get exemption from paying income tax and as such she shared her experiences with the 1^st complainant.   The 2^nd opposite party also submitted that the 1^st complainant is educated man and is well versed with law.  The 1^st complainant himself approached  the 1^st opposite party and taken the policies directly the allegations about the filling of proposal form sending letters at subsequent  stages to the 1^st opposite party and an application to changing premium amount is  denied.  The 1^st complainant paid all the amounts to 1^st opposite party by way of Demand Draft directly. Hence the question of receiving any commission by this opposite party does not arise.  All the amounts which were alleged to be paid by the complainant has received by the 1^st opposite party and the same was mentioned in para 8 of the complaint.  The 2^nd opposite party also submitted that she is not receiving any commission or reward either form the complainants or from the 1^st opposite party and there is no relationship of consumer between the complainants and the 2^nd opposite party.  The 2^nd opposite party also submitted that she is not the agent of 1^st opposite party she never received any commission or other remuneration either from the complainants or from the  1^st opposite party, the question of  she approaching the complainants or persuading them to take the policies  does not arise.  The 2^nd opposite party also submitted that the complainants being well educated must have understood all the pros and cons before obtaining a policy and paying the amount.  The 2^nd opposite party was not informed of any of the allegations made in the complaint which led the complainants to file the present complaint and she has not received any prior notice before filing the complaint. Hence, the complaint is dismissed against this opposite party with exemplary costs.

5.       Basing on the above pleadings, the following points that arise for consideration are:-

1. Whether there is any deficiency of service on the part of the opposite parties 1 & 2?

ii)      To what relief?

6.       In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A12 documents. On behalf of the 2^nd opposite party, the 2^nd opposite party filed evidence on affidavit and no documents are marked.

7.       Heard both sides 

8.       POINT:-       As per Ex.A1 to A3 the complainants have taken three polices from the 1^st opposite party on 09.03.2012 for an amount of Rs.30,000/-, Rs.15,000 and Rs.15,000/- and the 1^st opposite party has issued policy bonds in favour of the complainants.  The complainants filed written arguments it is stated in written arguments that the 2^nd opposite party acted as agent of                   1^st opposite party and induced complainants to take polices of 1^st opposite party by believing false words of the 2^nd opposite party and promise of the 2^nd opposite party the complainants have taken polices.  The complainants also stated that as per section 235 of Indian Contract Act: A person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.

9.       The complainants are stated that as per TXC the complainant have to pay premiums yearly, but due to financial inconvenience the complainant requesting the 1^st opposite party to change premium from yearly to half yearly under Ex.A6 dated 23.11.2012 with consent of 2^nd opposite party, but the 1^st opposite party not respond properly.  Thus the complainant paid half yearly premiums after taking promise from the 2^nd opposite party under Ex.A4.  The counsel for the complainants also stated that after lapse of eight months the 1^st opposite party did not accept proposal of complainants and returned Cheque on 20.07.2012 Ex.A9.  Then the complainants are decided not continue the polices and send a letter a claiming refund of Rs.60,000/- and on interest half yearly premium amount under Ex.A11. Though the 1^st opposite party received notice failed to give any reply. Though there is no reply from the 1^st opposite party. The 2^nd opposite party saying that she will convince the 1^st opposite party and promised to refund the amount.  But the complainants have not received any amount from the opposite parties. Hence, the complainants are claiming compensation for the negligent act of the opposite parties.

10.     All the documents filed by the complainants except Ex.A4 the transaction only between the complainants and the 1^st opposite party.  The allegation of the complainants that the 2^nd opposite party acted as an agent to 1^st opposite party is not proved.   Ex.A1 to A3 are polices issued by the 1^st opposite party does not show the agent name.  Generally if any policy taken through agent the insurer use to make the mention of agent name and their code, but in the present case it does not mention in the polices.  Moreover in the complaint or in the notice  the complainants not made any averment that the 2^nd opposite party acted as an agent for the 1^st opposite party and the 2^nd opposite party received commission from the complainants nor from the 1^st opposite party to fix the liability of the 2^nd opposite party as an agent the 1^st opposite party has to say whether they appointed the 2^nd opposite party as their agent or not, to decide the 1^st opposite party has not come forwarded before this Forum nor gave any reply to representation of the complainants.  The complainants simply stated that the 2^nd opposite party know all the facts and circumstances, hence no notice was issued to 2^nd opposite party prior to filing of complaint.  If that is the fact the complainants must take reasonable care while entering into contact with the opposite parties.  But there is no document to show that the 2^nd opposite party is agent of 1^st opposite party.  The complainants himself stated that he is not a layman, he is an employee of Judicial Department, a layman should take all precautions to fight legal battle.  The 2^nd opposite party argued that when the complainants expressed his difficult in paying the income tax she suggested obtaining policy as she has taken the policy from the 1^st opposite party and got exempted from income tax.  The 2^nd opposite party argued that she is not agent of 1^st opposite party and she has not received any commission from the complainants nor from the 1^st opposite party.

11.     As we have already discussed in the above paras about the liability of                2^nd opposite party we are not reiterating the same observations.  We are of the opinion that the complainants failed to establish that the 2^nd opposite party is the agent of 1^st opposite party and she failed to provide services as agreed by her and there is deficiency of service on the part of the 2^nd opposite party. No liability is fixed against the 2^nd opposite party.

12.     About compensation admittedly the complainants paid Rs.60,000/- in total under different polices on 09.03.2011and the complainants have to pay premium amounts annually.  Before their premium due the complainants made a request to change annual premium to half yearly premium.  On 04.03.20-12 under Ex. A4 for this request the complainants have not filed any document to show that the request letter was served to 1^st opposite party.  The complainants stated that the in the complaint that as per terms and conditions in the policy there is clause at 1^st opposite party you may change the frequency or mode of premium payments by a written request. Subject to our minimum premium requirements and the availability of the desired mode can be changed at the premium rates applicable on the risk commencement date.  If the clause is considered it is mentioned that desired mode can be available  only on written request, whether the request of  complainants are reached to 1^st opposite party or not without any proof about the changing of premium, he cannot claim interest on subsequent amount paid as per  Ex.A4.  The complainants made proposal with 1^st opposite party that he intend to change his premium payment mode from annual to half yearly.  If that proposal accepted by the 1^st opposite party then the contract will come into force.  But in this case there is no proof that the 1^st opposite party accepted the proposal of the complainants. Hence, without knowing the request of complainants about change of premium mode is accepted by the 1^st opposite party how the opposite parties are liable to pay interest on the amounts paid by the complainants by imaging that the 1^st opposite party accepted the proposal made under Ex.A4.  Hence the complainants are not entitled interest on the subsequent amounts paid to 1^st opposite party on 04.03.2012.  The Ex.A5 and A6 shows that the 1^st opposite party has not accepted the amounts paid by the complainants and returned to complainants on 29.10.2012 and 27.08.2012.

13.     As per Ex.A1 to A3 the complainants paid an amount of Rs.60,000/- to 1^st opposite party towards polices.  The amount was not received by the complainants. Though he made representation to 1^st opposite party under Ex.A6 to A9 & A11 on different occasions.  All the representations and notices are served to 1^st opposite party.  But the 1^st opposite party has not given any reply so, we are of the opinion that the complainants have not received the amounts paid under Ex.A1 to A3 in the year 2011.  In notices the complainants expressed their intention that they are not intended to continue the policy and they wish to withdraw the amounts, even though there is no response from the 1^st opposite party.  The institutions are not showing much interest when the policyholder intend to withdraw the amount as shown at the time of taking policy.  Admittedly the amount of Rs.60,000/- is with 1^st opposite party from 2011 to this date.  The act of 1^st opposite party is gross negligence act and the 1^st opposite party failed to discharge their services to complainants.  These are all shows that there is deficiency of service on the part of the 1^st opposite party. Hence, this point answered accordingly in favour of the complainants and against the 1^st opposite party.

14.     In the result, the complaint is allowed partly.  The complainants are entitled an amount of Rs.60,000/- which was paid towards first premium amount and also entitled an amount of Rs.3000/- towards mental agony and Rs.2000/- towards deficiency of service.  The amount of Rs.60,000/- is payable by the 1^st opposite party within one month after surrendering the policies by the complainants with interest @9% P.A. from 09.03.2011 to till realization. The claim against the 2^nd opposite party is dismissed and no costs are awarded.

Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 5^th day of September, 2014.

                       Sd/-                                                                   Sd/-

              LADY MEMBER                                                PRESIDENT (FAC)        

 DISTRICT CONSUMER FORUM                        ISTRICT CONSUMER FORUM

             ANANTAPUR                                                          ANANTAPUR  

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE COMPLAINANTS:

NIL

ON BEHALF OF THE OPPOISITE PARTIES

-NIL-

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANTS

Ex.A1 Original policy bond bearing No.0075708 dt.09.03.2011 issued by the

1^st opposite party in favour of the 1^st complainant.

Ex.A2 Original policy bond bearing No.00769722 dt.27.02.2011 issued by the

          1^st opposite party in favour of the 2^nd complainant.

Ex.A3 Original policy bond bearing No.00769389 dt.27.02.2011 issued by the

          1^st opposite party in favour of the 3^rd complainant.

Ex.A4 Letter dt.04.03.2012 sent by the 1^st complainant to the 1^st opposite

          party.

Ex.A5 Photo copy of Bankers Cheque bearing No.045318 dt.29.10.12 for

          Rs.15,031 and another Cheque bearing No.044417 dt.27.08.2012 for

          Rs.7,500/- issued by the 1^st opposite party in favour of the

1^st complainant & 3^rd complainant.

Ex.A6. Letter dt.23.11.2012 sent by the 1^st complainant to the 1^st opposite

            party.

Ex.A7 Original postal receipt dt.24.11.2012.

Ex.A8 Postal acknowledgement singed by the 1^st opposite party.

Ex.A9 Letter sent by the 1^st complainant to the 1^st opposite party.

Ex.A10. Postal acknowledgement signed by the 1^st opposite party.

Ex.A11.Office copy of the legal notice dt.12.02.2013 got issued by the

   complaints to the 1^st opposite party.

Ex.A12. Postal acknowledgement signed by the 1^st opposite party.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES 1 & 2

NIL

                   Sd/-                                                                 Sd/-

            LADY MEMBER                                                  PRESIDENT (FAC)

 DISTRICT CONSUMER FORUM                        DISTRICT CONSUMER FORUM

             ANANTAPUR                                                       ANANTAPUR