Andhra Pradesh

Chittoor-II at triputi

CC/76/2013

Koppolu Venkata Maruthi Kumar, S/o. K.Jagannadha Rao 66 yrs - Complainant(s)

Versus

The Managing Director - Opp.Party(s)

K.Ajeya Kumar

08 Dec 2014

ORDER

Filing Date:26.11.2013

Order Date: 08.12.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

MONDAY THE EIGHTH DAY OF DECEMBER, TWO THOUSAND AND FOURTEEN

 

C.C.No.76/2013

 

Between

 

Koppolu Venkata Maruthi Kumar,

S/o. K.Jagannadha Rao,

D.No.10/7/287, Upstairs, Nadamuni Street,

Tirupati,

Chittoor District.                                                                              … Complainant

 

 

And

 

1.         The Managing Director,

            Future Generali India Life Insurance Co. Ltd.,

            3^rd floor, Lake City Mall,

            Kapurbawadi Junction,

            Above Big Bazaar,

            Majiwada,

            Thane West,

            Mumbai – 400 607.

 

2.         The Branch Manager,

            Future Generali India Life Insurance Co. Ltd.,

            Town Club Circle,

            5^th floor, Upstairs of GRT Jewellery Mart,

            Prakasam Road,

            Tirupati,

            Chittoor District.                                                                  …  Opposite parties.

 

 

            This complaint coming on before us for final hearing on 26.11.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Ajeya Kumar, counsel for the complainant, and Sri.C.S.Chandra Sekhar, counsel for opposite parties, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This is a complaint filed under Section-12 of C.P.Act 1986, by the complainant

Koppolu Venkata Maruthi Kumar, praying the Forum to direct the opposite parties to pay the value of 6 installments a sum of Rs.78,000/- with interest at 24% p.a. from the date of policy, till realization, to give another direction to opposite parties to pay Rs.1,00,000/- for causing mental agony and for deficiency in service and to pay the costs of the complaint.

            2.  The brief facts of the case are:- That the complainant joined as a subscriber in “Future General India Life Insurance Co. Ltd.” Mumbai, for which opposite party No.1 is the Managing Director and opposite party No.2 is the local branch of opposite party No.1 for an assured sum of Rs.1,30,000/-. His policy number is 00251456, which is unit linked policy with half yearly premium at the rate of Rs.13,000/- per premium. As per the terms of the policy, it can be surrendered after completion of three years i.e. 6 installments / premiums are paid. On such surrender of policy, the paid-up value will be paid to the subscriber / complainant. That the complainant has paid all the 6 subscriptions under Exs.A3 to A14, which are the corresponding acknowledgements and receipts. The complainant approached opposite party No.2 to surrender his policy but the opposite party No.2 demanding to pay 6^th installment. The opposite parties started sending SMS demanding to pay 6^th installment instead of paying the paid-up value on accepting the surrender of the policy. For the letter of the complainant dt:05.04.2012, the opposite parties gave reply on 07.04.2012 stating that the dates are not tallied with renewal premium receipts issued by the opposite parties. The complainant got issued notice under Ex.A15 and the same is served on the opposite parties and proof of delivery of notice is filed under Ex.A16 but the opposite parties did not pay the paid-up value and committed deficiency in service. Hence the complaint.

            3.  The opposite parties 1 and 2 have filed their written version jointly admitting all the complaint allegations except the payments under Exs.A5 and A6 and surrendering the policy of the complainant. The opposite partiers further contended that the complainant is not a consumer as contemplated under Section-2(1)(d) and that there is no deficiency in service on the part of the opposite parties as contemplated under Section-2(1)(g) of the Act. They further admitted in Page.4 at top that the complainant had paid renewal premiums till September 2011. The contention of the opposite parties specifically is that the payment under Ex.A5 dt:03.05.2010 was inadvertently credited into the companies suspense account by their staff instead of crediting the same into policy suspense account, as such the receipt under Ex.A5 bearing No.2Z007018 was cancelled and created a new credit receipt under Ex.A7 bearing No.ZZ017136 dt:13.05.2010, that there are no two payments separately under Exs.A5 and A7. Therefore, the complainant, in total paid only 5 installments under Exs.A3, A7, A8, A10 and A12. For all the 5 installments, the paid-up value is Rs.65,000/-. As per the terms of the policy, net of applicable surrender penalty is to be deducted after deducting applicable surrender penalty. The paid-up value to be given to complainant is Rs.56,534.81/-. If the complainant paid two installments, as he contended there shall be two renewal premium receipts one for dt:03.05.2010 and another for dt:13.05.2010. The complainant made totally 5 premiums only but not 6 and that the District Forum has no jurisdiction to entertain the complaint and prays the Forum to dismiss the complaint with exemplary costs. The opposite parties relied on the following judgments: 1). The Hon’ble National Consumer Disputes Redressal Commission’s decision dt:23.04.2013 in R.P.No.658/2012 between Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd., 2) [(2013) (1) SCALE 410] Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International.        

4.  Heard the counsel for both parties. Exs.A1 to A16 were marked on behalf of the complainant, whereas Exs.B1 to B4 were marked on behalf of the opposite parties.

5. Now the points for consideration are:-

(i).  Whether the complainant is not a consumer as contended by the opposite

        parties?

(ii).  Whether this Forum has no jurisdiction to entertain the complaint?

(iii). Whether the complainant paid 6 half yearly premiums or only 5?

(iv).  Whether there is any deficiency in service on the part of the opposite

         parties?

(v).  To what result?

6.  Before answering the above points, it is pertinent to mention the admitted facts. The opposite parties have admitted the following:-

1.  The complainant is a subscriber in Future General India Life Insurance Co.Ltd. being maintained by the opposite party No.1, through opposite party No.2, which is local agent of opposite party No.1.

2.  That policy number that allotted to the complainant is 00251456.

3.  The agent code is 80022399.

4.  The customer ID is 11457214.

5.  Premium frequency is half yearly.

6.  Premium installment is Rs.13,000/-.

7.  Life Assured is Mr.Maruthi Kumar Koppolu Venkata.

8.  Name of the nominee is Mr.Niranjan Koppolu.

9.  Company is Future Generali India Life Insurance Company Limited.

10.Policy can be surrendered after complete payments of 6 premiums (3 years).

7.  Point No.(i):-  In order to say that the complainant is not a consumer, the opposite parties relied on the decision of Hon’ble National Commission in Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd., in which the facts are that the policy was held to be taken to provide business to the wife of the policy holder to earn commission from the said business through his wife. The funds switching has been done strictly on the basis of the written request of the complainant. Money of the complainant invested in the share market is no doubt a speculative gain and the speculative investment does not come under the C.P.Act. In another decision of the Hon’ble Apex Court in Export Credit Guarantee Corporation of India Limited Vs. M/s.Garg Sons International -  the facts of the above are that the respondent purchased a policy for the purpose of insuring shipment to foreign buyers i.e. M/s.Natural Selection Co. Ltd., of U.K and the said buyer committed default in making payments towards such policy from 28.12.1995 onwards, with respect to the said consignment. The insurer sought enhancement of credit limit to a tune of Rs.50 lakhs, with respect to the said defaulting foreign importer. Subsequently, he presented 17 claims. Insurer rejected all the claims on the ground that the insured did not ensure compliance with clause 8(b) of the insurance agreement. The opposite parties also relied on another decision of the Hon’ble Apex Court in M/s.Suraj Mal Ram Niwas Oil Vs. United India Insurance Co. – the brief facts of the above case are that the appellant company is engaged in the business of manufacture and sale of “Bhisham” brand mustard oil and cakes. They had obtained an open transit insurance policy from the respondent covering “all types of edible oils in tins...” transported by rail/road (which had to be declared) from Jaipur to anywhere in India. Initially, the liability of the respondent was limited to Rs.10 lakhs but during the relevant period, the limit was enhanced to Rs.1 crore. The insurance policy was subject to certain conditions attached as schedule to the policy. Additionally, the cover note also contained the following special condition and warranty “Each & every consignment must be declared immediately before dispatch of goods”. On 14.08.1992, the appellant dispatched 1194 tins of oil valued at Rs.5,84,790/- from Jaipur to Dharamnagar by rail and from Dharamnagar to Agartala by road to one M/s.Sree Kaibalia Bhandar, Agartala. The railway wagon carrying the said goods met with an accident on 28.09.1992, resulting in extensive damage to the consignment. It is an admitted fact that the appellant did not inform either of the two respondents herein about the said accident till 30.09.1992 but claims to have informed their Agartala office on 28.09.1992 itself, who had also appointed a surveyor. The consignment, in damaged condition, was forwarded to Agartala by road on 29.09.1992. The challans bearing Nos.40336, 40337 and 40338 prepared by the road carried M/s. Paul Brothers clearly mentioned the damaged state of the goods. The said goods were received by the consignee on the same day. The facts being as such, their Lordships having considering the facts and circumstances of the case, of the opinion that the claim of the appellant must fail on a short ground that there was breach of afore extracted special condition incorporated in the cover note. The special condition viz. each and every consignment must be declared before dispatch of goods  is clear and admits of no ambiguity. The appellant was obliged to declare each and every consignment before it left the appellants factory premises and there is nothing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to 15 and the policy was dismissed. The opposite party also relied on another decision of Hon’ble Supreme Court in General Assurance Society Ltd. Vs. Chandumull Jain and Another – the facts of the above decisions are quite different from that of the facts on hand. Therefore, they are not applicable for the instant case.      

8.  Section-2(1)(d) of the C.P.Act 1986 defines the word consumer as follows:-

“Consumer means any person who – (i). buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose (or) (ii) [hires or avails of] an services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] For the purposes of this clause “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”

 

            Section-2(1)(o) defines the word “service” as follows:-

“service” means service of any description which is made available to potential [users and includes but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both [housing construction] entertainment, amusement or the purveying of new or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

           

            So, Section-2(1)(o) includes insurance company for the definition of services. In the case on hand, the opposite parties 1 and 2 are the insurance companies. The opposite party No.2 is the local agent of opposite party No.1. The opposite parties in their written version and also in their written arguments specifically contended that the relation between Policy Holder and Insurance Company is a ‘legal contract’. Even this version is supporting the case of the complainant in order to say that the complainant is a consumer. In Malkiat Singh Vs. New India Insurance Company Ltd. reported in 2000 (1) CPJ 356, their Lordships held that “beneficiary of a contract is a consumer”, hence entitled to file a complaint. So in the case on hand also the complainant being the beneficiary of the contract between the complainant and the Insurance Company (opposite parties), he is a consumer under the provisions of the C.P.Act 1986 and he is entitled to file a complaint. Thus points 1 and 2 were answered accordingly.  

            9. Point No.(iii):- In order to answer this point, the burden heavily lies on the complainant. The complainant therefore is expected to prove 6 payments in total as contended by him. The opposite parties admitted the payment under Ex.A3 i.e. the 1^st payment made on 09.10.2009. He also admitted the 2^nd payment on 03.05.2010 but fairly conceded that the said payment was inadvertently credited into the company’s suspense account, as such the said payment under Ex.A5 was cancelled and a fresh receipt was created under Ex.A7 in its place and issued acknowledgements under Ex.A6 to the complainant informing about the cancellation of payment under Ex.A5 and creating new payment receipt under Ex.A6. Exs.A5, A6 and A7 corresponding to one transaction. Ex.A8 is relating to another payment on 18.10.2010. Exs.A9, A10 and A11 are corresponding to 4^th payment to be made on or before 19.04.2011, as such the said payment was made on 15.04.2011. Thus Exs.A9, A10 and A11 were the corresponding acknowledgements and receipts for the 4^th payment. Another payment is made on or before 19.10.2011, accordingly it was made on 28.09.2011. Thus Exs.A12, A13 and A14 are the corresponding acknowledgements and renewal payment receipts instead of the 5^th payment. So, even according to the Exs.A3 to A14, the complainant made only 5 payments but not 6. Ex.A15 is the notice and Ex.A16 is the proof of delivery of the said notice. If it is true that that the complainant has paid two premiums under Exs.A5 and A6 independently, in one and the same month (May 2010), why he has paid the subsequent installment on 18.10.2010 without questioning about payment made on 13.05.2010, even without any demand from opposite parties?

            10. Except those documents, no other document is filed in support of the complainant’s case to prove that he made 6 premiums, in order to complete the duration of 3 years, so as to enable the complainant to surrender his policy as per the terms and conditions of the policy. On the other hand, the opposite parties, in order to substantiate their contention that the complainant made only 5 premiums, they relied on the renewal premium receipts and acknowledgements issued in favour of the complainant, which were already marked on behalf of the complainant as exhibits discussed supra. As such the contention of the complainant that he made 6 half yearly premiums as stated in his complaint in Page.2 at Para.3 cannot be believed. The complainant has made only one premium under Exs.A5, A6 and A7 but not two payments on 03.05.2010 and 13.05.2010 individually. Under the above circumstances, we are of the opinion that the complainant has made only 5 payments but not 6 payments under Exs.A3 to A14 and no other proof is filed in support of the case of the complainant. As such we are unable to convince that the case of the complainant that he made 6 payments i.e. 6 premiums. Accordingly this point is answered.

            11. Point No.(iv):-  On perusal of entire record, pleadings of both parties, evidence affidavits and documents marked on behalf of both parties, it is found that there is no deficiency in service on the part of the opposite parties. On the other hand, the opposite parties have communicated the payments by way of acknowledgements and renewal payment receipts number of times by apprising the status of the policy to the complainant. Accordingly this point is answered.

            12. Point No.(v):-  In view of our discussion on points 1 to 4, we are of the opinion that though the complainant has made so far, only 5 premiums, he being a subscriber, is entiled to paid-up value of Rs.78,000/- on payment of 6^th premium, on such payment, the opposite parties are directed to pay the value of the six premiums i.e. Rs.78,000/-  without deducting or collecting any sort of penalty with subsequent interest at 9% p.a. from the date of complaint i.e. 26.11.2013, till realization. As there is no deficiency in service on the part of the opposite parties, the complainant is not entitled to any damages or claim towards mental agony and the complaint is to be allowed accordingly.

            13.  Point No.(vi):-  In the result, the complaint is allowed holding that the complainant is entitled to claim the value of six premiums i.e. a sum of Rs.78,000/- (Rupees seventy eight thousand only) subject to payment of 6^th installment of Rs.13,000/- (Rupees thirteen thousand only) by the complainant within three (3) weeks from the date of receipt of this order, and on making such payment towards    6^th installment, the opposite parties are directed to pay total paid-up value or value of the six premiums of Rs.78,000/- (Rupees seventy eight thousand only) with interest at 9% p.a. from the date of complaint i.e. 26.11.2013, till realization within six weeks from the date of receipt of 6^th installment without deducting surrender penalty. Rest of the claim is dismissed. Each party do bare their own costs.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 8^th day of December, 2014.

 

        Sd/-                                                                                                                     Sd/-                                             

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: Koppolu Venkata Maruti Kumar (Evidence Affidavit filed).

RW-1: Madangopal Jalan (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1.		Photo copy of Bunch of Statements of Accounts (5 Numbers).
2.	19.10.2009	Photo copy of  Policy bearing No.00251456.
3.	19.10.2009	Photo copy of  Renewal Premium Receipt.
4.	19.11.2009	Photo copy of 1st premium paid receipt bearing No.10294798.
5.	03.05.2010	True copy of Acknowledgement.
6.	13.05.2010	Photo copy of Renewal Premium Receipt.
7.	13.05.2010	Photo copy of Acknowledgement.
8.	18.10.2010	True copy of Acknowledgement.
9.	15.04.2011	Payment Ack.  Slip along with counter foil of Axis Bank, Tirupati.
10.	18.04.2011	Photo copy of Acknowledgement.
11.	19.04.2011	Photo copy of Renewal Premium Receipt.
12.	28.09.2011	True copy of Acknowledgement.
13.	19.10.2011	Photo copy of Renewal Premium Receipt.
14.	28.09.2011	Photo copy of Acknowledgement.
15.	29.10.2012	Office copy of Legal Notice along with Postal Receipts.
16.	14.12.2012	True copy of Confirmation Letter of delivery issued by Postal authorities for the above No.15.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1		Photo copy of Proposal Form.
2.		Photo copy of Terms and conditions of Policy.
3.		Photo copy of Acknowledgement.
4.		Photo copy of Renewal Premium Receipt.

 

 

                                                                                                                                                                  Sd/-       

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

              Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.