(4)
CC/38/2023
with a surrender case with policy number 3120362272. The cheque image shared by the fraudster found to be used in some more cases including that of Mr. Dipak Kuner. It was further found that the account is held for the name of Paresh Sadhukan . An ex-employee Mr. Raja Sadhukan had similar residential address who was associate Manager , Axis Channel . He admitted that fraudulent account was held in his father’s name. The policy holder had compromised the OTP. Former employee Mr. Raja Sadhukan was involved in the misappropriation of fund by changing the contact and against NEFT details. One case was started against Raja Sadhukan vide FIR no. 123/23 dated 08.03.2023. In the meantime the complainant approached insurance ombudsman at Kolkata wherein the insurance company was directed by order dated 19.05.2023 to settle the death claim. As per terms and conditions the payment will be released as directed by the ombudsman. The OP No.2&3 claimed that the case is liable to be dismissed with cost.
On the basis of the specific case of the complainant and the defence case of the OPs the Commission considers it necessary to ascertain the following points for proper adjudication of this case
Points for Determination
Point No.1.
Whether the present case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief claimed prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
Both the Opposite Parties pleaded that the case is not maintainable but in course of argument they could not advance any point of law as to the maintainability of this case. However, after perusing the pleadings of the parties and the evidence in the case record the Commission holds that the present case is not barred by any provisions of law and is maintainable in its present form and prayer.
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CC/38/2023
Accordingly, point no.1 is decided in favour of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity convenience of discussion.
It is the specific allegation of the complainant that one fraud was committed in respect of the insurance policy in the name of the husband of the complainant at the instance of the opposite parties.
It is the admitted position that the husband of the complainant insured the policy bearing no. 310362272 namely Max Life Guaranteed income plan 104N085V02. The said policy money was fraudulently surrendered and the money was withdrawn . The surrender value of Rs.6,75,000/- was withdrawn by the miscreants. The complainant lodged complaint to the police as well as to the OP. The complainat also lodged complaint to the ombudsman through gmail before Kartik Rama Murti . Both the OP No.1, 2 and 3 admitted the said Fraudulent act. The OP No.2&3 against whom the major allegation lies also categorically admitted that the OP during investigation FPCU found that an ex-employee Mr. Raja Sadhukan (EMP No.CAL2450) was working as associate Manager – sales in bancassurance (Asix Channel) . The said Raja Sadhukan admitted that fraudulent account was held in his father’s name and father informed that some more individuals are involved in the racket whose name he could not disclose.
It is the settled position of law that admitted facts need not be proved. So, it can reasonably be held that the complainant did not get the death claim under the said policy after the death of her husband being the policy holder. It is also the admitted fact that the complainant is the nominee of the policy holder .
The OP , however, tried to establish that the policy holder had compromised the OTP sent to his registered mobile which is held in the name of policy holder Mr. Dipak Mondal.
But the OP could not substantiate with cogent evidence that the complainant or deceased husband played any role in the Commission of the said fraudulent act.
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CC/38/2023
It is the further admitted case of the OP that former employee Raja Sadhukan was involved in the misappropriation of funds by changing the contact no. and NEFT details in the policies referred.
The pleadings and the evidence further proved that since the allegation of the complainant is genuine, so the matter was referred to the ombudsman wherein the said ombudsman by its order dated 19.05.2023 directed the OP to settle the death claim under the policy no.310362272.
The complainant with a view to strengthening his case proved the documents.
Annexure-1 is the letter to the Max Life Insurance Company dated 26.08.2022 stating the said criminal conspiracy behind the said fraudulent transferred. Annexure -2 is the formal FIR to Nabadwip P.S. Annexure-3 is the written complaint to Nabadwip P.S. . Annexure-4 is the premium paid certificate. Annexure-5 is the information for fraudulent policy surrender. Annexuyre-6 is the policy details issued by Max Life Insurance. Annexure-7 is the key feature document of the said policy. Annexure-8 is the letter issued by Axis Bank.
The OP also proved some documents is under:-
Annexure-A is the insurance policy. Annexure-B is the debit mandate form,. Annexure-C is the cancelled cheque by which the fraud was committed. Annexure-D is the copy of Aadhar Card of one Dipak Mondal. Annexure-E is the online update request. Annexure-F is the letter by the complainant to the OP Max Life dated 26.08.2022. Annexure-G is the information for fraudulent policy transferred . Annexure-H is the investigation report.
Although in the said investigation report it is concluded that the policy holder compromised the OTP yet there is no reflection in that report that the complainant was given any opportunity of being heard in that investigation. So, without hearing the complainant it cannot be ascertained that the OTP was compromised by the policy holder or the complainant.
The OP further proved Annexure-I regarding complaint filed against Raja Sadhukan by the OP. Formal FIR also proved being FIR no.123/23. Annexure-I is the award of the ombudsman.
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CC/38/2023
After perusing the said award it is found that it was held that death claim lodged by the complainant/nominee was not raised by the insurance company. The award passed by the ombudsman discloses that the insurance company in their e-mail dated 05.05.2023 admitted that their ex-employee Mr. Raja Sadhukan did this manipulation fraudulently as a result the surrender value against the impugned policy was transferred to the bank account of Mr. Sadhukan without the knowledge of the deceased . It is also evident that the impugned policy was not surrendered by the DLA and the surrender value was settled to another person fraudulently without the knowledge of the DLA.
The Opposite Parties tried to convince this Commission that the OPs are not liable for the act of the ex-employee.
The said argument is not acceptable in as much as the status of the OPs is just like principal and the fraud committed by the ex- employee is the act of the agent and as such the principal is liable for the act of the agent.
Thus having assessed the evidence in the case record and the observation made hereinabove the Commission comes to the finding that the complainant successfully proved the case against the opposite parties. Fraudulent act done on the part of the ex-employee of the OP tantamounts to deficiency in service which caused mental pain and agony and harassment to the complainant and as such it should be compensated in terms of money
Ld. Advocate for the complainant argued that after the death of the DLA the complainant being the nominee has moved from post to pillar for getting the said benefits but the OP denied her genuine claim.
Ld. Defence counsel argued that the company has taken due steps for the redressal of the grievance as it would be reflected from their documents.
It is fact that the case was finally referred to the ombudsman but it is evident for the case record that the complainant without any fault on her part has been deprived of getting the policy value after the death of her husband within the reasonable time. So, she deserves for reasonable compensation.
Accordingly, Point No. 2& 3 are answered in affirmative and decided in favour of the complainant.
(8)
CC/38/2023
Consequently, complaint case no.38/2023 succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case no.CC/38/2023 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand) against the OPs. The complainant do get an award for a sum of Rs.19,12,000/- (Rupees nineteen lakh twelve thousand) including interest @8% p.a against OP No.2, Rs.2,00,000/- (Rupees two lakh) towards compensation for deficiency in service , mental pain and agony and Rs.5,000/- (Rupees five thousand) towards litigation cost . The Opposite Parties are directed to pay Rs.21,17,000/- (Rupees Twenty one lakh seventeen thousand) within 30 days which has from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a from the date of passing final order till the date of its realisation. If the Opposite Parties has already paid the award money as per the award of the ombudsman dated 19.05.2023 vide award no.IO/KOL/A/LI/0099/2023-2024 that shall be excluded from the award money under this case.
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
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