Ld. Advocate(s)
For Complainant: Samaresh Kumar Mitra
For OP/OPs :Debatray Banerjee
Date of filing of the case :19.04.2023
Date of Disposal of the case :21.02.2024
Final Order / Judgment dtd.21.02.2024
The concise fact of the case of the complainant is that the complainant Dipak Kundu and Swapna Kundu registered Life Insurance Policy with the OP No.2 Max Life. On 14.12.2022 the
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complainants came to know that a loan has been taken against the said policy no.353075799 for which a sum of Rs.44191.89 is due towards interest and principal. He further knew that policy no.205941677 in the name of the complainant has been surrendered on 23.04.2022 for Rs.32,9,718/-, Rs.42,000/- has been taken loan on 10.05.2022 in respect of policy no.353075799 in the name of the complainant no.1, against policy no.846623874 in the name of the complainant no.1 Rs.2,45,019/- has been taken loan on 24.03.2022, against policy no.205957103 in the name of the complainant no.1 has been surrendered on 11.06.2022 for Rs.3,29,621/-, for policy no.343171336 for complainant no.2 sum of Rs.84,000/- has been taken loan on 07.06.2022, for policy no. 8466239078 for complainant no.2 Rs.2,48,327/- has been taken loan on 17.05.2022. Having received that information the complainants lodged complaint to the OP No.1 on 03.03.2023 regarding the fraudulent transaction by OP No.2. Prior to that the complainants also lodged a complaint on 18.12.2022 to the OP No.1 but to no effect. The OP No.1 acknowledged the same. They referred the matter to the concerned team and lodged a police complaint to Nabadwip P.S. The complainants also lodged a separate complaint to the Axis Bank. The OP No.1 admitted the fraud transaction. The complainant being induced by the OP No.1 agreed to take the the policy of OP No.2. So, the opposite parties are bound to compensate the complainant for the loss suffered by him. The complainants moved the OPs several times for redressal of his grievance but they did not take positive steps. So, the present case is filed. The cause of action arose on 14.02.2022 and continued till the date of filing this case. The complainants therefore, prayed for an award to compensate the loss against the opposite parties and normalised the insurance policy, Rs.10,00,000/- for mental pain and agony and loss and Rs.50,000/- towards litigation cost.
OP NO.1 contested the case by filing W/V wherein they denied the major allegations. The positive defence case is that the complainant lodged one complaint to the effect that some of their policies were surrendered and some loan was availed whereas the complainants did not give any such consent for either surrender or applications of loan. Moreover, neither the surrendered amounts nor the loan amount was credited to their account. Upon investigation the Max Life Insurance found that the amount was credited to a third party . The e-mail I.D and mobile no. of the complainants were challenged digital for which they did not get any alert. It was further found that relationship associate of Max Life Insurance Raja Sadhuka was involved in the misrepresentation through surgery and it was credited to his account and his father’s account Paresh Sadkhua. On the advise of Max Life Insurance the
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complainants lodged an FIR with Nabadwip P.S.. But the OP No.1 Axis Bank did not cooperate in this matter. The OP No.1 denied the other allegations and claimed that the complaint should be dismissed with cost.
The case is running ex-parte against OP No.2 and as such there is no defence case made out by the OP No.2.
The dispute involved in this case vis-a-vis the defence case of the OP led this Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainants are entitled to get the relief prayed for.
Point No.3.
To what other relief if any the complainants are entitled to get.
Decision with Reasons
Point No.1.
Although, the Opposite Parties pleaded that the case is not maintainable yet in course of argument they could not advance any argument as to maintainability of this case. However, having perused the pleadings of the parties and the evidence in the case record the Commission is of the view that the present case is not barred by any provision of law and is maintainable in its present form and prayer.
Accordingly, point no.1 is decided in favour of the complainants.
Point No.2&3.
Both the points are closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
It is the specific allegation of the complainants that a fraud was committed in respect of different insurance policies in the name of the both the complainants at the instance of both the opposite parties. It is the admitted position that the complainants invested different amounts of money with the OPs which were
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either fraudulently surrendered or loan taken. The case has been heard ex-parte against OP No.2 Max Life Insurance Company Limited. So, the specific allegation against OP No.2 stands unchallenged and undiscarded since the case is heard ex-parte against OP No.2.
The OP No.1, however, categorically admitted that the OP No.1 found that the amounts were credited to a third party account in a different account. The e-mail I.D and Mobile No. of the customer/complainants were changed digitally for which the complainants did not get the alert. On further investigation it revealed that the earlier “relationship associate” of Max Life Insurance- “Raja Sadhuka” was involved in misappropriation of fund through forgery and the funds so misappropriated were credited to his account and his father’s account Paresh Sadhukhan.
This part of statement in the W/V of OP No.1 clearly suggests that the admitted facts need not be proved as per the Evidence Act.
The OP No.1 further stated in W/V that as per advise of the OP No.1 the complainants lodged FIR against Raja Sadhukhan and Paresh Sadhukhan of the OP No.2 also lodged FIR at Nabadwip P.S. . It is the further case of the OP No.1 that in spite of repeated follow up by OP NO.1 bank that is Max Life Insurance Company with regard to the refund of the misappropriated funds, no resolution has been provided by Max Life Insurance Company that is OP No.1.
In course of argument the OP No.1 further argued as per their BNA in para-2 that the instant case is a matter of fraud and forgery committed upon the complainants by an Ex-employee of the OP No.2 Insurance Company. It is the settled principle of law that “Qui Facit Per Alium Facit Perse” which means “An Act of an agent is the Act of the principal”. It is the admitted position that the complainants had entered into an agreement for insurance with the OP No.2 Insurance Company . A master shall be liable for the fraudulent act of his servant committed in the course of employment. So, the fraud committed by the ex-employee of OP No.2 Insurance company was done in course of employment and as such OP No.2 Insurance Company cannot escape their liability in making good the loss suffered by the complainants.
Having assessed the evidence and the specific pleading and notes of argument of the OP No.1 it stands well established that the case of the complainants stands proved up to hilt.
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However, the OP NO.1 tried to convince this court, that they have no liability. On the contrary , Ld. Advocate for the complainant argued that the OP No.1 accepted the insurance policy after being induced by the Branch Manager OP NO.1 Bank. So, the OP NO.1 also cannot escape from their liability.
Thus the peculiar facts and circumstances of the case being assessed in the light of the pleadings of the parties and the evidence in the case record the Commission comes to the conclusion that all the OPs have joint liability in regard to the loss suffered by the complainants. The misdeeds done by the opposite parties against the complainants tantamount to deficiency in service which caused mental pain and agony which requires to be compensated in terms of money.
In the backdrop of the aforesaid observation and the finding undergone therein the Commission is of the opinion that the case of the complainants stands established against the opposite parties upto the hilt.
Consequently, the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/29/2023 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 with cost. The complainant do get an award with a direction to OP No.1&2 jointly and severally to normalise the insurance policy with the status of the earliest position giving further effect as if the said policy is under continuation , a further award for Rs.2,00,000(Rupees Two lakh) towards deficiency in service and mental pain and agony and Rs.20,000/- (Rupees Twenty thousand) towards litigation cost . The opposite parties are directed to pay the said sum of Rs.2,20,000/- (Rupees Two lakh twenty thousand) and implement the order within 30 days from the date of final order failing which the entire award money shall carry an interest @ 8% p.a in default a further sum of Rs.100/- per day for
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non-compliance of the order of this Commission till the final payment from the date of passing final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
