Date of Filing : 17.12.2011

  Date of Order : 15.05.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

Dated 15^th MAY 2012

PRESENT

Sri. H.V. RAMACHANDRA RAO  ……..                    PRESIDENT

Sri. T.NAGARAJA                           ……..                   MEMBER

Smt. K.G.SHANTALA                      ……..                    MEMBER

CC No. 227 / 2011

Smt. Puttamma,

W/o. Venkatareddy, Age 50 years,

Dibboorahalli (Village & Post),

Shidlaghatta Taluk,

Kolar District.                                                        …..    Complainant

CC No. 228 / 2011

Pallavi.D.

D/o. B. Devareddy,

Aged about 20 years, Dibboorahalli (V) & (P),

Shidlaghatta Taluk,

Kolar District.

(By Sri. K.N. Nagaraja, Adv.)                                 ……. Complainant

V/s.

1. The Manager,

    Bajaj Allianz Life Insurance Co.,

    No. 897, B. Silver Line Arcade, 80 Ft. Road,

    6^th Block, II Floor, Pizza Hut, Koramangala,

    Bangalore – 560 045.

2. Sri. K.S. Narayanaswamy,

    Manager, Branch Office,

    Bajaj Allianz Life Insurance Co.,

    Near Police Quarters  Road,

    Dinnehosahalli Circle,

    Chikkaballapur District,

    (By Sri. J.R. Jagadish & others, Adv.)                …… Opposite Parties

ORDER

By Smt. K.G. SHANTALA, MEMBER

Since the matters are between the different Complainants regarding similar matters against the same Ops, seeking similar reliefs, both are taken up together for this Order and common order is passed and copy of this Order is ordered to be kept in CC No. 228/2011.  Herein afterwards Complainant in CC No. 227/2011 will be referred to as Complainant No. 1, Complainant in CC No. 228/2011 will be referred to as Complainant No. 2, OP No. 1 will be referred to as OP1 and OP No. 2 will be referred to as OP2.

2.       The brief antecedents that led to the filing of the complaints u/s. 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay Rs.4,33,500/- each to each of the Complainants are necessary:-

OP2 was the Agent of the OP1 and now he is the Manager of OP1.  In the year 2007, knowing that the Complainants getting Rs.2,50,000/- each from the Agrigold Company, OP2 approached the Complainants and insisted them to invest the amount for 5 years and persuaded them in this regard for 2 or 3 months.  Grand father of the Complainant No. 2 refused stating that 2^nd Complainant is studying in PUC and for her education or for the marriage he is going to invest the amount in Post Office for 3 years and whenever required he may withdraw it.  Then OP2 told him that even in their Company i.e., OP1 there will be deposit scheme of 3 years and if deposited they will get better facilities, bonus etc. and showed certain bogus planning vouchers and also assured that he will give away the commission that is going to be given to him.  Accordingly, OP2 collected Rs.20,000/- each for 3 Policies i.e., 0085453563, 0085432520 & 0085456798 from Complainant No. 1 and Rs.20,000/- each from 3 Policies i.e., 0085660574, 0085440895 &  0085459795 from Complainant No. 2.  Policy issued in the name of the 1^st & 2^nd Complainant details of which are as under:

Complainant No. 1 (CC No. 227/2011)

Complainant No. 2 (CC No. 228/2011)

OP2 has received Rs.60,000/- from each of the Complainants on 11.10.2007 and gave duplicate Receipt and when asked OPs stated that they will send correct Receipts by post within 3 days.  But, OP2 has not issued the Receipts.  Three months later, when questioned, he has issued Receipt dtd. 01.02.2008 for 3 Policies each.  When questioned again, he has stated that Computer has gone wrong and it will be rectified. OPs have collected for 3 years i.e., Rs.1,80,000/- each from each of the Complainants.  OPs have issued Receipts without containing Policy Nos. and wrong dates from the beginning.  When these discrepancies were found out, Complainants contacted, OP2, and quarrelled with him and OP2 told somehow these mistakes had crept-in and he would rectify the same.  Thus he has collected the amount for 3 years without rectifying the Receipts.  On 24.02.2010, when Rs.60,000/- had been paid, the Computer Section Madam of the OP gave Receipt dtd. 19.07.2010.  When Venkatareddy, husband of Complainant No. 1 & grand father of the Complainant No. 2 told to rectify the mistakes in the Receipts.  Complainants demanded the amount of Rs.1,80,000/- each with interest.  At that time, OP2 threw away the Receipts and OP2 got some letter written in English allegedly stating that he will rectify the defects and took the signature of Venkatareddy who does not know the English language. When the Complainants wanted their amount back, OPs gave letter stating that they are getting only Rs.1,64,450.13.  This is nothing but deficiency in service and unfair trade practice.  When the Complainants had paid Rs.1,80,000/- each, they should get more, but statement of the OP that they are getting Rs.1,64,450.13 is nothing but unfair trade practice, fraud, cheat & deficiency in service.

3(a).   In brief the versions of OP1 are:-

Complaints are bad for misjoinder of necessary parties.  It is barred by time.  Policies are lapsed for non payment of renewal premiums.  Complaints are to be dismissed on the principles of Allegatio contra factum non est admittenda and Nullus commodum capere potest ex sua injuria propria.  Complainants have voluntarily approached the OPs seeking to take Policy under Scheme “New Unit Gain”.  Complainants approached OP1 through agent OP2.  OP2 is not the Manager of the OP1 and he is still agent of the OP1.  Complainants had availed 3 policies each and paid premiums.  The Policy No. 0085453536 given by them does not belong to the Complainants.  This OP is not aware of OP2 approaching the Complainants.  Complainants have filed the Complaints before the District Legal Aid Services and withdrawn the Complaints therein.  In the said Complaints before the District Legal Aid Services, Ops have clearly stated what would be the surrender value the Complainants are entitled to.  Being not satisfied with it, Complainants have withdrawn the Complaints there and come before this Forum.  It is incorrect to say that the amounts were paid on 11.10.2007, but the amounts were paid on 01.02.2008.  There is no mistake in the Receipts.  Mere perusal of the documents of the Policies clearly proves that it is not for 3 years.  The surrender value is as per terms of the Policy.  Now the Policies are in lapsed condition.  Hence, the amount will be still less.  Complainants have not revived the Policies.  All the allegations to the contrary are denied.

3(b).  In brief the version of OP2 are:-

This OP is a Sales Manager and not an Agent of OP1.  Obtaining of the Policy by the Complainants is admitted.  The question of inducement by this OP does not arise.  Through the Agent Mr. Devaraj, Complainants approached the OP1 regarding New Unit Gain Policy.  There is free look period of 15 days in the Policy.  Complainants have not availed of the same.  Period of the policy was not for 3 years and it did not end on 11.02.2011.  All the allegations to the contrary are denied.

4.       Complainants and OP2 had filed Memo stating that their pleading be read as their evidence.  OP1 had filed affidavit. Arguments were heard.

5.       The points that arise for our consideration are:                          

POINTS

(A)     Whether there is deficiency of service?

          (B)     What order ?

6.       Our findings on the above points are as under:

(A)            Positive

(B)            As per detailed order for the following reasons

REASONS

7.       Point Nos. A & B  –  Reading the pleadings in conjunction with the documents, affidavit & Memos on record, it is an admitted fact that the Complainants had received considerable amount in 2007 from Agrigold.  It is also an admitted fact that the Complainants had taken 3 Insurance Policies each of Rs.20,000/- premium per year from OP1 and they had paid the premium for 3 years, in all they had paid Rs.1,80,000/- each to the Ops.  Regarding return of these amounts paid under the Policy with interest, Complainants have raised dispute before the District Legal Aid Services Authorities and there Ops have stated that surrender value is Rs.1,64,450.13 and they cannot pay more than that.  Hence, these Complaints were withdrawn and the same were filed before this Forum.

8.       Now, we have to see deficiency alleged in this case.  Complainants have clearly stated that OP2 is the Agent who persuaded them to pay the money and the amount is paid by Sri. Venkatareddy, husband of the 1^st Complainant and the grand father of the 2^nd Complainant.  OP1 in its pleading has clearly stated “It is submitted that the Complainant had approached the 1^st Opposite Party through an Agent by name K.S. Narayanaswamy”.  That means, OP2 is the Agent of the OP1 at the relevant point of time and it is the OP2 on behalf of OP1 approached Venkatareddy, husband of the 1^st Complainant and grand father of the Complainant No. 2 and persuaded him to obtain policy.

9.       Complainants have clearly stated that Complainant No. 2 was studying in PUC at that time and Venkareddy wanted his amount to be kept in Fixed Deposit for 3 years in Post Office and it is the OP2 who persuaded him to deposit the said amount with them stating that Policy can be taken for 3 years and Complainants will be entitled to the benefits under the Policy on completion of the said term.  OP1 admits Complainants taking the Policy through OP2 as their Agent.

10.     In this case, OP2 had not filed its pleading and had not engaged the service of any Advocate earlier to 30.04.2012.  OP1 had filed pleading on 26.03.2012 when the case was posted for evidence & arguments.  At that time, OP2 engaged service of Advocate and filed version on 07.05.2012 and filed Memo stating that his version be read as his evidence.  This shows the conduct of the OP2.  OP2 contends that he is not the Agent of OP1, but he was the Sales Manager.  But, OP1 admits Agency of OP2 with him.  When himself has admitted the service status under him, how can OP2 change it?  In any event, OP2 or OP1 have not filed appointment order of OP2 as Sales Manager of OP1.  That means, he was only an Agent.  OP2 contends that one Devaraj was the Agent of OP2 through whom application for policy were made by the Complainant.  This Devaraj’s agency has not been whispered by OP1, the principal.  OP1 clearly stated and sworn to that it is the OP2 who was the Agent through whom policy was got.  That means, OP2 is telling untruth before the Court as rightly contended.  The document and proposals are all created and concocted as rightly contended.

11.     Complainants No. 1 was totally illiterate.  Complainant No. 2 was only PUC student and not well-versed in day-to-day affairs and business English at the time of taking the Policy.  Such being the case, GPA holder Venkatareddy brought the proposal forms and took the signatures of Complainant Nos. 1 & 2 by showing ‘x’ mark.  Complainants further contended that they wanted to invest the money only for 3 years with OP2 as told by them that there is policy for 3 years and they can invest the money on that and they will get big amount after 3 years.  Their statement is fully corroborated by the documents produced.  Ops never stated in their versions at any place stating what is the tenure of the policy which they have agreed.  Ops simply denied the policy for 3 years.  But, never stated what is the duration of the policy.  It simply states that Policy be read.  If the tenure of the policies were explained to the Complainants or Venkatareddy as the case may be, they would not have invested the money in these 6 policies.  They have paid the premium amount at the rate of Rs.20,000/- per year. 

12.     Further, it is stated by the Complainants that they had paid the money right from 20.10.2007, but the Receipts issued by the Ops were bogus receipts and later when they insisted he gave Receipt dtd. 01.02.2008 that too without containing policy particulars and when questioned OP2 promised them that he will send the Receipts by post within 3 days.  This statement can never be disbelieved.  Further Complainant has stated thus:

vÀPÀët £À£Àß UÀAqÀ£ÁzÀ J¸ï.ªÉAPÀlgÉrØAiÀĪÀgÀÄ £ÉÆÃrPÉÆAqÀÄ K£ÀÄ ªÉÄÃqÀA gÀ¹Ã¢ ¢£ÁAPÀ vÀ¥ÀÅà PÉÆnÖ¢ÝÃgÁ CzÀ£ÀÄß ¸Àj¥Àr¹PÉÆr JAzÀÄ PÉýzÁUÀ PÀA¥ÀÇålgï PÉlÄÖºÉÆÃVzÉ JAzÀÄ ºÉý ¥ÀÅlÖªÀÄä£À ºÉ¸Àj£À°è £Á®ÄÌ gÀ¹Ã¢UÀ¼À£ÀÄß MlÄÖ £Á®ÄÌ gÀ¹Ã¢UÀ¼À£ÀÄß £ÀPÀ° gÀ¹Ã¢UÀ¼ÀÄ PÉÆnÖgÀÄvÁÛgÉ.  F §eÁeï ¸ÀA¸ÉÜAiÀĪÀgÀÄ 3 ¥Á°¹UÀ¼À£ÀÄß gÀzÀÄÝ¥Àr¹gÀĪÀÅzÁV vÀ¥ÀÅà gÀ¹Ã¢UÀ¼ÀÄ vÀ¥ÁàVgÀĪÀÅzÁV ªÀÄvÀÄÛ £ÀA§gÀÄUÀ¼ÀÄ vÀ¥ÁàVgÀĪÀÅzÀÄ KeÉAmï ªÀÄvÀÄÛ PÉ.J¸ï. £ÁgÁAiÀÄt¸Áé«Ä AiÀĪÀjUÉ w½¹ UÀ¯ÁmÉ ªÀiÁr £Á£ÀÄ ªÀÄÆgÀÄ ªÀµÀðzÀ°è 1,80,000-00 gÀÆ.UÀ¼À ªÉÆvÀÛPÉÌ §gÀ¨ÉÃPÁzÀ §rØ ¸ÀªÉÄÃvÀ ªÁ¥À¸ÀÄ PÉÆr JAzÀÄ gÀ¹Ã¢UÀ¼É¯Áè ©¸ÁrzÁUÀ DUÀ EAVèõï£À°è PÉÃAzÀæ PÀbÉÃjUÉ ¥ÀvÀæ §gÉzÀÄ J¯Áè gÀ¹Ã¢UÀ¼ÀÄ £ÀA§gÀÄUÀ¼ÀÄ ¢£ÁAPÀUÀ¼ÀÄ ¸ÀjªÀiÁr¹PÉÆqÀÄvÉÛêÉAzÀÄ ºÉý F ¥ÀvÀæPÉÌ ¥ÀÅlÖªÀÄä£ÀªÀgÀ UÀAqÀ¤UÉ EAVèµï §gÀĪÀÅ¢®è CªÀjAzÀ ¸À» ªÀiÁr¹PÉÆArgÀÄvÁÛgÉ.

This is fully corroborated by the documents produced.  That means giving the incorrect Receipts and when questioned take back those Receipts & writing something in English & taking signature of Venkatareddy stating that they will get the correct Receipt and failed to issue Receipts is nothing but deficiency in service. 

13.     Giving incorrect Receipt though amount received in 2007 stating that the amount received in 2008 and Receipt issued in the year 2008, that means OP is a known person committing deficiency in service and this person who has promised the Complainant of 3 years policy and its benefits, but sending the policy for different things and when claimed the money orally, they wanted to give lesser money.  This clearly shows that this is nothing but deficiency in service and unfair trade practice.  Hence, the Complainants are entitled to the amount of the policy, at least paid by them with interest, but that has not been done.  Hence, it is unfair trade practice. 

14.     The contention of the Ops is that under the terms of the Policy, Complainants are entitled to lesser amount.  This is an untenable contention.  When the Complainants have established that the Complainants have taken the Policy for 3 years and amount has been paid and the said amount has not been returned/paid by the Ops by an unfair trade practice, the question of paying the lesser amount does not arise.

15.     Ops have not come to the Forum with clean hands.  Other contention of the Ops is that Complaints are barred by time.  Complainants have paid the policy amount upto 2010 and they demanded the money after completion of 3 years.  It has not been paid.  Hence, cause of action arose in 2010 and this complaint is filed in 2011 which is well within the time.

16.     The other contention of the Ops are that Complaints are bad for misjoinder of necessary parties.  This is an untenable contention. How the Complaints are bad for misjoinder of necessary parties is not explained in the version by the OPs. It was contended during the course of the arguments that N. Devaraj should have been impleaded as a party.  Complainants never knew Devaraj and never had transaction with Devaraj.  They had transaction only through and with OP2. Even Devaraj is unnecessary party because is only an Agent according to the Ops.  Hence, Devaraj cannot be implead as a party and he is unnecessary party.

17.     Even according to OP2, he is a Sales Manager.  According to OP1, through OP2 complainant had made transactions.  Hence, it cannot be said it is bad for misjoinder of necessary parties.  Even otherwise, when the Complainants have clearly stated that it is only OP2 through whom they made transaction and OP1 has admitted the same and if that were to be false, OP2 would have got affidavit of Devaraj filed, that has not been done.  

18.     It was contended that the Policies are lapsed.  Policies are not lapsed since the Complainants’ intention and OP2 agreement orally was for 3 years and after 3 years Complainants are entitled for the amount.

19.     It was also contended during the course of the arguments that 2^nd Opposite Party’s assurances even if it is there, OP2’s conduct will not be binding on OP1 as OP2 was the Agent / Sales Manager of the OP1 as the case may be.  Hence, whatever he has done will bind on the OP1.  If OP2 has exceeded his powers, OP1 can recover it from OP2, for that this order will not come in the way.

20.     Hence, under these circumstances, Complainants are entitled to the amount paid by them and interest @ 12% P.A. from 19.07.2010. Hence, we hold the point accordingly and pass the following order:

ORDER

1.       Complaints are allowed in part.

2.       Ops are directed to pay to each of the Complainants a sum of Rs.1,80,000/- each with interest thereon @ 12% P.A. from 17.10.2010 until payment within 30 days from the date of this Order.        

3.       Ops are also directed to pay Rs.2,000/- each as costs of this litigation to both the Complainants.

4.       OPs are directed to send the amount as ordered at (2) & (3) above to the Complainants by Demand Draft through RPAD and submit to this Forum the compliance report with necessary documents within 45 days.

5.       Original Order shall be kept in CC No. 227/2011 and copy thereof   in CC No. 228/2011

6.       Send copy of this Order to the parties free of costs.

7.       Return extra sets to the parties concerned under the Regulation 20(3) of the Consumer Protection Regulations 2005.

(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 15^th day of May 2012)

T. NAGARAJA                K.G.SHANTALA     H.V. RAMACHANDRA RAO

    Member                             Member                          President

SSS