Kerala

Kasaragod

CC/12/114

K.Basheer - Complainant(s)

Versus

The Manager HDFC Bank Ltd. - Opp.Party(s)

George John Plamootil

11 Aug 2014

ORDER

                                                                      Date of filing    :  20-04-2012

                                                                     Date of order   :  11-08-2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                             CC.114/2012

                      Dated this, the  11^th    day of   August   2014

PRESENT:

SMT.P.RAMADEVI                                         : PRESIDENT

SMT.K.G.BEENA                                          : MEMBER

SMT.SHIBA.M.SAMUEL                               : MEMBER

 

K.Basheer, S/o.Abdul Rahiman,                                       : Complainant

R/at, Jameela Manzil, Kalanad.Po,

Kasaragod.Dt.

(Adv.George John Plamootil, Kasaragod)

 

1 The Branch Manager, HDFC Bank Ltd,                       : Opposite parties

   Kasaragod Branch, Kasaragod. 671121.

2 The Manager,

    HDFC Standard Life Insurance Co.Ltd,

    City Centre, Kasaragod. 671121.

(Adv. Saji Isaac.K.J, Cochin)

3 The General Manager,

   Regd. Office, Ramon House, H.T. Parekh Marg,

   Backbay Reclamation, Church Gate,

   Mumbai. 400020.

                                                                                                OR D E R

SMT.K.G.BEENA, MEMBER

                The gist of  the case of Sri.K.Basheer is that he has availed a vehicle loan from opposite party No.1 for his Maruthi Swift Desire  car bearing Registration No.KL.14/L/700 in September 2011.  At the time of availing loan, opposite parties 1 & 2 requested the complainant to take a one time payment policy for Rs.30,000/- in his name and Rs.20,000/- in the name of his wife, Jameela.  Opposite party No.2 issued  duplicate receipts and informed that opposite party No.3 will contact him and explain the  details within 3 weeks.  Complainant checked the receipts and found mistakes in the address and mobile number.  Opposite parties requested one week time for rectification and confirmation.  The complainant  approached opposite parties on several times for rectified documents but no response from opposite parties.  Even after 4 months complainant not received any call from opposite party No.3, complainant lost his faith in opposite parties and send free look cancellation request. Complainant sent a lawyer notice on 14-02-2012 to opposite parties 1 to 3. They have received the notice but neither returned the amount nor send reply.  Due to the unfair trade practice and deficiency in service on the part of opposite parties complainant suffered great mental agony and monitory loss.  Hence the complaint for necessary redressal.

2.         Adv. Saji Issac.K.J. filed vakalath and version for opposite party No.2.  According to opposite party No.2 complainant opted the policies after being aware of the terms and conditions of the policy.  The proposal was given by the complainant after he had read and understood the terms and conditions of policy and this was also declared by the complainant in section E of the proposals.  Opposite party No.2 denied the allegation that he has issued duplicate receipt for payment dated 6-9-2011 for Rs.30,000/- and dated 30-09-2011 for Rs.20,000/- respectively.  The complainant is not entitled for any relief as claimed.

3.         Complainant filed proof affidavit.  Exts A1 to A5 marked. Complainant is  cross-examined on affidavit.  Exts A6 & A7 marked.  On the side of opposite parties Exts B1 to B3 marked.  Heard both sides.  The questions arises for consideration are:-

            1 Whether there is deficiency in service?

            2 If so, what is the relief  ?

4.         Issue No.1:     The receipts dated 6-9-2011 and 30-09-2011 are marked as Exts A1 & A2.  The copy of the free look cancellation letter dated 15-02-2012 is marked as Ext.A4.  Copy of the lawyer notice dated 14-02-2012 to opposite party No.1 to 3 is marked as Ext.A3, postal acknowledgement 3 in numbers is marked as Ext.A5. While perusing  the documents Ext.B1 is the original policy in the name of Basheer.K. with policy No. 1456953 dated 9^th September 2011 produced by opposite parties.  Ext.B2 is the original policy in the name of Mrs.Jameela Basheer, with policy No.14650179 dated 11^th October 2011.  Free lock period is one month after the receipt of policy document.  Policy can be cancelled soon after one month of receiving policy document.  Ext.A6 is the cover in which the policy is sent by opposite party to the complainant.  The complainant filed joint application for cancelling the policy on 15-02-2012, after about one month from receiving policy document.  But opposite parties did not heed the request of complainant.  The act of opposite parties amounts to deficiency in service and unfair trade practice.  In policy document, policy conditions are written in tiny letters, which a common man cannot read.  So the policy holders usually relying upon the descriptions given by agents.  From the evidence it is clear that complainant  availed the policies  only due to inducement made by opposite parties.  When the  complainant approached opposite party No.1 for a vehicle loan  and after sanctioning the loan  opposite parties 1 & 2  herein made use of that opportunity and insisted   him to take one time payment policies in his name and his wife’s name.  So signing of proposal form involved a concealed trap. The disclosure is a persuasive duty and a failure or  concealment involves consequences.  Here opposite party No.3 failed to met the complainant as assured by opposite parties 1 &2 complainant was badly in need of a vehicle loan, opposite parties clearly used this opportunity for their business promotion.  Complainant in his affidavit stated that he was not satisfied with the terms of policy, moreover, the address taken by opposite parties were not correct, when the complainant pointed out the mistakes, opposite parties requested one week time  for rectification and confirmation.  Complainant approached several times to opposite parties to get back the rectified documents but no response from opposite parties.  The act of opposite parties caused loss and mental agony to the complainant.  The Hon’ble Supreme Court in the case of Modern Insulators V the Oriental Insurance Company Ltd reported in I (2000) CPJ(SC) has held.

            It is the fundamental principle of Insurance law that utmost good faith must be obtained by the contracting parties and good faith forbids either party from non-disclosure.  The insured has a duty to disclose and similarly “it is the duty of insurance company and its agent to disclose all material facts in their knowledge obligation of good faith applies to both equally”

5.         Another important point to be noted that opposite parties did not adduce any evidence nor did he  examine opposite parties 1 & 2  who alleged to have induced the complainant.  When there is an allegation of inducement made by the proposer of the policy, it is the bounden duty of opposite parties to examine opposite parties 1 & 2 to prove the contrary.  Further the opposite parties has not adduced any evidence to show that complainant has concealed anything from the insurer which is material contract.

6.         Therefore from the evidence let in by the complainant and also considering the facts and circumstances of the case we are of the opinion that at the time of canvassing the complainant, what is transpired between opposite parties 1 & 2 and the complainant is as narrated by the complainant is true especially when opposite parties are not in a position to prove contrary.

7.         The further contention of the opposie parties  that the complainant ought to have surrendered the policy, the free look period is also not sustainable since the proposal itself was obtained by inducement and misrepresentation.  The proposal which itself has no legal sanctity, the whole contract voidable at the option of the policy holder irrespective of the limit of free lock period and therefore the complainant is not bound by the terms and conditions of policy.

8.         Point No.2: Relief and cost

            The complainant has deposited  Rs.30,000/- in his name and Rs.20,000/- in the name of his wife.  In total  he had  deposited Rs.50,000/- with opposite parties in September 2011.   The claim of complainant is to refund Rs.50,000/- with interest from the date of deposit with costs.  Complainant is entitled to get refund of the invested amount with compensation and cost.

            Therefore the complaint is allowed and opposite parties 1 to 3 are jointly and severally  directed to refund Rs.50,000/- with 12% interest from the date of receipt of deposit till payment with a compensation of Rs.10,000/- and Rs.5000/- as costs. Time for compliance is 30 days from the date of receipt of copy of this order.

Sd/-                                                      Sd/-                                                    Sd/-

MEMBER                                                             MEMBER                                                             PRESIDENT

Exts.

A1. Dt. 6-9-2011 Receipt (Duplicate copy) issued by Ops

A2.Dt.30-09-2011 Receipt (Duplicate copy) issued by Ops

A3. 14-2-2012 Copy of lawyer notice.

A4.15-02-12 copy of letter sent by Basheer & Jameela Basheer to Opposite party

A5 & A5(a& b) Postal acknowledgement cards

A6.postal cover sent by HDFC Standard Life to the complainant on 30-7-12.

A7. Policy issued by the HDFC to the complainant.

B1.Policy of Basheer.K.

B2. Policy of  Jameela Basheer.

B3. 18-04-2012 Reply Notice

PW1. Basheer.K.

 

  Sd/-                                                                        Sd/-                                                                   Sd/-

MEMBER                                                             MEMBER                                                             PRESIDENT

Pj/                                                                                Forwarded by Order

 

                                                                           SENIOR SUPERINTENDENT