Hon'ble Mrs. Rumpa Mandal, Member.
The brief fact of the case is that Complainant Ganes Ch. Bhattacharya provided insurance policy by the OP but after receiving of insurance premium. OP did not send insurance policy to the address of the Complainant. After lapse of long time Complainant collected the insurance policy from internet and it was seen that OP preferred illegal, fraudulent fire policy in place of insurance policy. The OP received Rs.54,900/- from the Complainant for premium amount and issued fire insurance policy bearing No.2010-F0272381-FIRE and the period is valid from 09.07.16 to 08.07.26. After that Complainant sent a complaint through email to the OP on 21.06.17 and on 01.03.20 for refund of the premium amount. Seeing no other alternative way Complainant sent written complaint on 31.07.16 through registered post but OP did not send the premium amount. Subsequently on 11.09.20 Complainant filed written complaint before the insurance ombudsman and thereafter on 05.01.21 ombudsman directed the OP to pay premium amount within 30 days. After passing of the award, OP firstly sent only Rs.41,056/- on 22.01.21 through A/C payee cheque. Since Complainant did not receive the full amount so he filed further written complaint through registered post on 09.02.21 and on 15.02.21. Thereafter OP only sent cheque of Rs.1909/-. Op paid to the Complainant in total of Rs.42,965/-, but OP received the amount as per premium of Rs.54,900/-. So Rs.11,935/- is still due from OP.
In connection with the letter dated 01.03.21 sent by the OP mentioning that OP deducted of Rs.11,935/- for payment of tax. The insurance ombudsman allowed full premium amount to the OP but till today OP illegally did not send the said amount. So, according to the Complainant the act of the OP is illegal and there is deficiency in service on their part. So the Complainant has prayed for direction upon the OP to pay of Rs.11,935/- as rest premium amount, Rs.50,000/- for mental pain and agony and deficiency in service and Rs.20,000/- for cost of litigation.
The OP contested the case by filing written version, evidence on affidavit and written argument. OP argued that the Complainant signed the proposal form after reading the terms of the policy. So he is bound by the terms and conditions of the policy. OP also stated in his written version that OP has always acted diligently and in the best interest of the insured persons so no deficiency of service can be attributed on the OP for non-settlement of the claim as alleged. Accordingly to then, OP issued a standard fire and special perils policy in the name of the Complainant with the help of intermediary i.e. AB Insurance Brokers Pvt. Ltd. The proposal form was filed on the basis of the information given by the Complainant to the agent and the proposal form contained a property for which the insured has taken policy.
It was admitted on behalf of OP that OP has duly complied with the award passed by Insurance ombudsman Kolkata and refunded the amount of Rs.42,965/-. The OP denied the other allegations made against them and prayed for dismissal of the instant case.
The pleadings of all the parties vis-à-vis the defence case made out by the parties put this Commission to have a decision for adjudication of the case on the following points.
Points for Determination
- Is the instant case maintainable?
- Is the Complainant entitled to get any relief?
- To what other relief, if any, Complainant is entitled?
Decision with reasons
Point No.1.
The OP challenged that the case is not maintainable. After perusing the pleadings of the parties and evidence on record it is found that there was a financial transaction between the parties towards payment for insurance which was wrongly diverted in to another category of insurance other than the proposed insurance. The ombudsman put a seal over the claim of the Complainant by passing a part award. Accordingly, the nature of the dispute is well within the perview of the C.P. Act. The present case is legally maintainable. Point No.1 is accordingly answered in affirmative and decided in favour of the Complainant.
Point Nos. 2 & 3.
These points relate to the ascertainment as to whether the Complainant is entitled to get the relief as prayed for.
While deciding these points regard being had to the admitted fact that the dispute was referred to the Insurance Ombudsman who passed an order in favour of the Complainant inter alia to the effect which is reproduced herein below:-
“Taking in to account the facts and circumstances of the case and the submission made by both the parties during the course of hearing and after going through the documents and as agreed by the Insurance Company, the eligible premium as per the terms and conditions of the policy as on the date of application i.e. 21.06.17 be refunded to the Complainant”.
Thus a plain reading of the order of the ombudsman reveals that the OP Company agreed to refund the insurance policy premium. Therefore the denial by the OP of different facts in their written version and evidence lost its force in as much as it is the settled position of law that admitted facts need not be proved.
However, it is not explained by the ombudsman as to why the total insurance policy premium money of Rs.54,900/- was not directed to be refunded. So far as the insurance policy being Annexure-A is concerned the document (Annexure-A) discloses that total net premium for Rs.54,900/- was received by the OP insurance company. The other Annexure being Complaint and reply there to being Annexure- B, C, D & E also depict that the Complainant left no stone unturned. Since, the insurance which was actually opted for was not registered, so the defence plea that the Complainant is not entitled to claim any further amount is devoid of any merit.
It is also not explained by the ombudsman in his award dated 05.01.21 as to why the full amount of premium was not refunded.
Thus having considered all the oral and documentary evidence available in the case record, the Complainant is entitled to get the actual insurance premium policy money for Rs.54,900/-. Accordingly, the balance amount should be refunded to the Complainant.
The manner in which the OP Company acted by not registering the actual insurance policy and by registering a different fire insurance in service tantamounts to unfair trade practice and deficiency in service for which the Complainant had been harassed and suffered mental pain and agony. The complaint should therefore be compensated in terms of money alongwith litigation cost.
Point Nos. 2 & 3 are accordingly, decided in favour of the Complainant positively.
Consequently, the complaint case succeeds.
Hence, it is
Ordered
That the complaint case No. CC/19/2021 be and the same is allowed on contest without cost of Rs.10,000/-. Complainant do get an award of Rs.11,935/- being balance premium amount with 6% interest Rs.20,000/- towards unfair trade practice and deficiency in service.
The OP is directed to pay a sum of Rs.31,935/- (Rupees thirty one thousand nine hundred thirty five only) to the Complainant within 30 days from the dated of Final Order failing which the Complainant shall be entitled to get an interest @ 6% per annum from the date of passing Final Order till the date of realisation thereof.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
