State Consumer Disputes Redressal Commission
Dr. Charles Ajoy Estibeiro vs Bank Of India on 13 April, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 23/2016
Dr. Charles Ajoy Estibeiro,
Son of late Dr. Jacinto Estibeiro,
Age 48 years,
R/o 781, St. Mary's Colony,
Miramar, Panaji, Goa. ... Complainant
V/s.
Bank of India,
Through its Branch Manager,
Panaji Branch,
Rua de Ormuz, Opp. Azad Maidan,
Panaji, Goa. ... Opposite Party
Shri. Aires Rodrigues, Lr. Counsel for the Complainant.
Shri. Edwin Furtado, Lr. Counsel for the Opposite Party.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 13/04/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] By this Complaint filed under Section 12 of the Consumers Protection Act, 1986 ( the "Act", for short), the Complainant has prayed to direct the Opposite Party (OP, for short) to pay to him the following amounts towards damages caused to him for negligence on the part of the OP:- (a) Rs. 1,00,000/- towards cost of return ticket to Goa; (b) Rs. 44,00,000/- for the loss and injury on account of deprivation of business opportunity and mental agony and potential liability towards compensation to the Overseas Associates of Mr. Sudhir Gude; (c ) Rs. 50,00,000/- for loss of reputation and business 2 opportunity (together with interest @ 18% p.a. till the date of actual payment); and (d) Rs. 2,000/- towards cost of the notice.
2. Case of the Complainant, in short, is as follows:
The Complainant is the customer of the OP which is a nationalised bank. The Complainant holds Account No. 100710100017119. The Complainant is a reputed doctor having his own clinic and is also connected with various hospitals on scheduled visits arranged in advance. The Complainant needed to raise a substantial amount of investment funds to the tune of USD$ 25 million for his overseas venture in the Middle East. Therefore, he prepared his information memorandum and project report and approached Mr. Sudhir Gude, a financial consultant to obtain the required investment sometime in June 2014. In this regard, the Complainant had a number of meetings with Mr. Sudhir Gude and thereafter Mr. Sudhir Gude sent his final proposal to his overseas associates as the cost of funds is better than India. The project funding was approved in principle and therefore a final meeting to negotiate the terms and conditions was arranged by Mr. Sudhir Gude in Paris on 28th January 2015. Accordingly, the Complainant arranged for his travel and purchased a travel insurance policy with benefits for USD$ 500,000 (knowing the cost of expenses in Europe in case of medical contingency) with a validity of one year as the Complainant was not certain of his return date. Towards the travel insurance policy, the Complainant issued a cheque bearing No. 146658 drawn on Panaji Branch of the OP for a sum of Rs. 5724/- to Bajaj Allianz General Insurance Company Limited and in turn the said insurance company issued to the Complainant a policy bearing No. 0Q-15-1703-9910-00001481. The Complainant departed for Europe on 26th January, 2015 and arrived in Paris on the same day. The Complainant had to cancel a lot of pre-arranged appointments organized in his clinic as well as other hospitals for this visit to Europe. In the evening of 26th January, 2015, the wife of the 3 Complainant informed him telephonically that someone from Bajaj Allianz General Insurance Company Limited had phoned saying that the cheque issued for Rs. 5724/- had been dishonoured by the OP and consequently the policy was invalid. Upon hearing about the dishonour of the cheque, the Complainant was panicked as he was aware of the consequences of travelling without a travel insurance policy in terms of costs in Europe as well as the due diligence of his bonafides were based on a valid travel policy. The Complainant could not purchase a new travel policy at that time since such policy had to be purchased while still in India before departure. The Complainant had an apprehension that the visa would be revoked and he would have to face the consequences of being stopped at the airport for traveling on an illegal visa. Therefore, the Complainant immediately purchased the first available return ticket on an emergency basis for which he had to pay an amount of Rs. 1,00,000/- and returned to India on 27th January 2015 (early morning of 28th January, 2015) without attending the proposed meeting and organization of the required fund. Subsequently, the Complainant received written communication dated 30/01/2015 from Bajaj Allianz General Insurance Company Limited officially informing to the Complainant that the Insurance Policy was invalid as the cheque issued to them by the Complainant was dishonoured by the OP with reason 'Funds Insufficient' for Rs. 5724/-. The Complainant apologized profusely to Mr. Sudhir Gude but Mr. Sudhir Gude was very angry and disappointed as the whole team had already travelled into Paris for the meeting. Mr. Sudhir Gude wrote to the Complainant an unpleasant letter dated 23/03/2015 through email in which he said that the same would be followed by the pecuniary damages. Mr. Sudhir Gude also spread this news among his financial fraternities who are now unwilling to discuss any financial proposal of the Complainant. The Complainant has an apprehension that he will be liable for huge compensation to associates of Mr. Sudhir Gude for not fulfilling his part/obligation of 4 attending the proposed meeting. The Complainant wrote a letter to the Branch Manager of the OP and received a reply dated 11/03/2015 through email, admitting the same. The Complainant then wrote a letter to the Manager of the OP expressing his inability to accept the reason of non-clearance of cheque as sufficient fund was available in his account on the previous day. Thereafter, the Complainant addressed a legal notice dated 24/05/2016, through his advocate, claiming that the Complainant had suffered loss and injury on account of deprivations, mental agony and loss of reputation, loss of business opportunity due to negligence on the part of the OP for which OP was liable to pay compensation to the Complainant. The OP sent a reply through advocate thereby refusing to accept the responsibility and further making wide allegations against the Complainant. The Complainant then sent a rejoinder through advocate by letter dated 03/08/2016.
3. The Complainant therefore filed the present Complaint and alongwith the same he produced the travel policy dated 21/01/2015, letter dated 30/01/2015 sent by Insurance Company regarding the cheque dishonour, email dated 23/03/2015 sent by Mr. Sudhir Gude to the Complainant, letter written by the Complainant to the Manager of Bank of India thereby enclosing the letter received from Insurance Company, email dated 11/03/2015 from OP to the Complainant, reply sent by Complainant to the OP, letter dated 30/03/2015 written by the Complainant to the OP, legal notice dated 24/05/2016 sent by advocate of the Complainant to the OP, legal notice dated 03/08/2016 sent by advocate of the Complainant to the OP, reply dated 24/06/2016 sent by advocate of the OP to the advocate of the Complainant. The Complainant thereafter produced the copy of his passport, copy of the visa and copy of the boarding pass, for which leave was granted by this Commission. Notice was issued to the OP. The OP has filed its written version.
4. Case of the OP, is as follows:
5The Complaint is false, fictitious, preposterous and vexatious and is filed to recover money by blackmailing the OP which is a public sector bank. The Complaint has been filed malafidely by suppressing all material facts and documents. The Complaint is not maintainable as the same is for potential future liability towards compensation to some alleged overseas associates of Mr. Sudhir Gude for which there is no present cause of action. The Complaint is bad for non-joinder of necessary party namely Mr. Sudhir Gude. The present Complaint is filed as if it is a proceeding under section 138 of the Negotiable Instruments Act without any enclosures to support the claim of Rs. 95,00,000/-. The Complaint is filed to extort money from the OP to pay all the outstanding loans of the Complainant to other banks who have filed legal proceedings against him in the Court, running into crores of rupees. On one hand, the Complainant is claiming to be a reputed doctor and on the other hand he has filed the Complaint for loss and injury on account of deprivation of business opportunity and mental agony. Besides the above, the so called loss and injury has not been substantiated at all. The statement of the Complainant that he is a reputed doctor is self-assessment of the Complainant. In fact, the Complainant is a person of most doubtful character and integrity and more into business of making money than the profession of a doctor. The Complainant is involved in many recovery of money litigations running into crores of rupees and for which all banks have filed recovery proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Sarfaesi Act, for short) against the Complainant in various Courts in Goa and Mumbai (the OP has stated in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the written version about the details of the amounts due to various financial institutions and about the recovery proceedings filed by them). The Complainant deliberately has not enclosed a single detail of so called overseas venture in the Middle East. No details or documents of any Information Memorandum 6 and Project Report have been produced alongwith the Complaint and therefore the same is a concocted and fabricated story. No details of meetings held by the Complainant with Mr. Sudhir Gude have been stated. No statistics and details regarding any final proposal sent by Mr. Sudhir Gude to the overseas associates have been enclosed with the Complaint. No credentials and educational background and experience of the so called Mr. Sudhir Gude as a financial consultant have been stated. No details of any final meeting to negotiate the terms and conditions allegedly arranged by Mr. Sudhir Gude in Paris on 28th January, 2015 have been stated.
The so called overseas venture in the Middle East of the Complainant and purchasing of the travel insurance policy and that too, to Europe, is nothing but a well planned and thought out conspiracy to extort money from the OP. A return ticket was mandatory of Indian nationals whilst applying for visa to go abroad and for booking the ticket to go abroad. The Complainant has deliberately not enclosed his original tickets and return tickets with bills and receipts purchased to go abroad and come back. The OP is not aware as to for what purpose the said cheque for Rs. 5724/- was issued by the Complainant. The Complainant was informed of the bonafide reasons of not clearing the said cheque. A temporary overdraft of Rs. 4,78,000/- was granted to M/s. Premium Distributors Pvt. Ltd., on 03/09/2014 at a personal request of the Complainant vide his letter dated 03/09/2014. The said account was over drawn on the same day i.e. on 03/09/2014 and classified as Non-Performing Asset (NPA) in December 2014, since the Complainant and M/s. Premium Distributors Pvt. Ltd., failed to operate the said account. This fact was brought to the notice of the Complainant and M/s. Premium Distributors Pvt. Ltd., by the OP. Since the said overdraft facility was given at the personal request of the Complainant and since the same was classified as NPA and further since the Complainant failed to repay the said overdraft facility as promised, a lien of Rs. 5,00,000/- was marked on the 7 Savings Bank Account no. 100710100017119 of the Complainant maintained by him with the OP on 01/01/2015 towards the recovery of the overdues in the said NPA account. Though the general lien was marked in the said NPA account on 01/01/2015, the same was unmarked on 02/01/2015 to pay a cheque of Rs. 29,646/- drawn on National Insurance Company, again at the personal request of the Complainant. However, after passing the said cheque, general lien was once again marked on the said savings bank account of the Complainant. The Complainant was fully aware of the said general lien marked on his savings bank account. However, on 23/01/2015 due to some technical/connectivity issues/late clearing, the said cheque no. 146658 was marked for "return" by the system and could not be cleared and remained unpaid and therefore was returned with the system generated reason of "Funds Insufficient". Hence the complaint is liable to be dismissed.
5. The OP produced documents showing the proceedings filed under Section 14 of the Sarfaesi Act filed by some banks against the Complainant. The OP also produced loan applications, loan agreements of the Complainant.
6. The Complainant filed his own affidavit-in-evidence and he relied upon the documents which were produced by him alongwith the Complaint. The OP filed the affidavit-in-evidence of Mr. George Anthony D' Lima the authorized officer of the OP. He relied upon the documents mentioned in the written version. In their affidavits, both the parties have stated the same facts that have been stated in their pleadings. Hence there is no need to repeat the statements made in affidavits-in-evidence. Both the parties have filed written arguments. The Complainant thereafter filed clarification and alongwith the same produced Schengen Visa Application Requirements. The OP filed additional affidavit-in-evidence in answer to the clarification. The matter was also heard orally. Mr. Rodrigues, Lr. Counsel argued on behalf of the Complainant and 8 Mr. Furtado, Lr. Counsel argued on behalf of the OP. We have gone through the entire material on record.
7. The first question that arises for determination is whether the cheque issued by the Complainant was erroneously dishonoured by the OP for the reason "Fund Insufficient", thought there was sufficient balance in the said account of the Complainant. Indisputably, the Complainant, on 21.01.2015, had issued cheque, drawn on OP-Bank, for Rs. 5724/- to the Bajaj Allianz General Insurance Company. Admittedly, the said cheque was dishonoured by the OP. No doubt, the said cheque has not been produced by the Complainant before us. As per the letter dated 30.01.2015 written by Bajaj Allianz General Insurance Company to the Complainant, the said cheque was returned to it by the OP being dishonoured for the reason " Funds Insufficient." There is no reason for the Insurance Company to falsely intimate that the cheque was dishonoured for the reason "Funds Insufficient". The OP has admitted that the cheque was dishonoured for the said reason. By letter dated 23.02.2015 written to the OP, the Complainant had enclosed the letter dated 30.01.2015 received by him from the Insurance Company in respect of dishonor of cheque. By e.mail dated 11.03.2015, sent to the Complainant, the OP apologized for the error and expressed deep regrets. There an amount of over Rs. 8000/- balance in the said savings account of the Complainant. In the said e.mail dated 11.03.2015, the OP did not state that the cheque was returned due to general lien marked on the said savings account and that there was some technical/connectivity issue/late clearing due to which the cheque was marked by the system for "return". Even if the cheque was marked by the system for "return", the question arises as to why it was returned for the reason "Funds Insufficient. The above defence taken by the OP is only by way of afterthought. It is proved by the Complainant that the cheque was erroneously dishonoured 9 by the OP. In view of the above, there is deficiency of service on the part of the OP.
8. The next question that arises for determination is whether the Complainant has proved that he had some overseas business venture in the Middle East, for which various facts as stated by the Complainant in the Complaint had taken place and whether on account of the dishonor of the cheque, in the Complaint huge loss as prayed for had occurred.
9. Clause 4 of the Insurance Regulatory And Development Authority (Manner of Receipt of Premium) provides as under:-
"Commencement of Risk.- In all cases of risks covered by the policies issued by an insurer, the attachment of risk to an insurer will be in consonance with the terms of Section 64VB of the Insurance Act, 1938 and except in the cases where the premium has been paid in cash, in all other cases, insurer shall be on risk only after the receipt of the premium by the insurer.
Provided that in the case of a policy of general insurance, where the remittance made by the proposer or the policy holder is not realised by the insurer, the policy shall be treated as void ab-initio.
Provided further that in the case of policy of life insurance, the continuance of the risk or otherwise shall depend on the terms and conditions of the policy already entered into."
10. Thus a contract of insurance comes into being only after the insurer gets the premium in advance. The Insurance Policy No. OG- 15-1703-9910-00001481, for the period from 22/01/2015 to 20/01/2016, purchased on 21/01/2015 by the Complainant, had a condition there under to the effect that if the premium is paid through cheque, the policy is void ab-initio in case of dishonor of cheque. One of the requirements of the Schengen Visa Application was to secure travel health insurance policy covering any medical 10 emergency with hospital care and travel back to ones native country due to medical motives. The said valid health policy had to be purchased before picking up the Visa. Hence, it was the duty of the Complainant not to have travelled to Europe until he had secured a valid travel health insurance policy. The Complainant had to pay in cash if he could not have waited. Since the Complainant did not pay in cash but had issued cheque, he had to wait till the said cheque was realized. The Complainant has averred in the Complaint that he had an apprehension that the Visa would be revoked and he would have to face the consequences of being stopped at the airport for travelling on an illegal visa. In spite of the condition written in the said travel policy to the effect that if the premium is paid through cheque, the policy is void ab-initio in case of dishonor of cheque, the Complainant could procure the Visa, on the basis of such policy, itself means that procurement of travel health insurance policy was not mandatory. Looking at the above provision of law contained in clause 4 of the Insurance Regulatory And Development Authority (Manner of Receipt of Premium) and the condition in the policy that it would be void ab-initio if the cheque is dishonoured, it can be said that the Complainant had travelled to Europe without a valid travel health insurance policy and again had travelled back to India without a valid travel insurance policy but nothing had happened. The final meeting to negotiate the terms and conditions was allegedly arranged by said Sudhir Gude in Paris on 28/01/2015. But the Complainant returned back to India on 27/01/2015 (early morning of 20/01/2015). It is difficult to believe in such situation that the Complainant could not have waited there for one or two days more. Besides the above, though the overseas venture of the Complainant was in the Middle East, it is not known as to why the meeting to negotiate the terms and conditions was arranged in Paris.
11. The cheque was dated 21.01.2015 and was dishonoured on 23.01.2015, before departure of the Complainant for Europe.
11According to the Complainant, in the evening of 26.01.2015, his wife informed him telephonically that someone from Bajaj Allianz General Insurance Company Ltd. had phoned saying that the cheque issued for Rs. 5724/- had been dishonoured by the OP and consequently, the policy was invalid. The OP has denied the above in the written version as well as in the affidavit-in-evidence. The returned cheque along with cheque return memo has not been produced by the Complainant. The letter of Bajaj Allianz General Insurance Company written to the Complainant, about the cheque dishonor, is dated 30.01.2015 and not 26.01.2015. This letter does not say that in the evening of 26.01.2015, the wife of the Complainant was telephonically informed that the cheque was dishonoured. It is not the case of the Complainant that on 26/27.01.2015, he had confirmed from the Insurance Company and from the OP that the cheque was dishonoured by the OP. No affidavit of the wife of the Complainant or of the officer of Bajaj Allianz General Insurance Company has been filed to prove that it was only on 26.01.2015 that the Complainant came to know that the cheque was dishonoured and the policy was invalid. Therefore, it is not cogently proved by the Complainant that he had returned to India on 26.01.2015 since the cheque was dishonoured and the travel health insurance policy was invalid.
12. According to the Complainant, he needed to raise a substantial amount of investment funds to the tune of USD$ 25 million for his overseas venture in Middle East and therefore had prepared his Information Memorandum and Project Report. However, it is not known as to what kind overseas venture it was. No Information Memorandum and Project Report pertaining to any overseas venture has been produced on record by the Complainant. Further, the Complainant says that he approached Mr. Sudhir Gude, a financial consultant to obtain the required investment sometime in June, 2014 and had a number of meetings with Mr. Sudhir Gude and 12 thereafter Mr. Sudhir Gude sent his final proposal to his overseas associates. There is no evidence to prove existence of a financial consultant by name Mr. Sudhir Gude. No credentials or educational background and experience of Mr. Sudhir Gude as a financial consultant have been produced. No details or documentary evidence of meetings held by the Complainant with said Mr. Sudhir Gude are produced nor any copy of so called final proposal sent by Mr. Sudhir Gude to his overseas associates has been produced. It is not known as to who are the said overseas associates of Mr. Sudhir Gude. Though some e-mail sent by said Sudhir Gude on 23.03.2015 is produced on record, however no affidavit of said Sudhir Gude or his alleged overseas associate/s has been filed. There is no correspondence in the form of letters of e-mails regarding any discussions and fixing of date of final meeting at Paris. It is not known as where in Paris the said meeting was fixed. In our view, the Complainant has failed to prove that his visit to Europe on 26.01.2015 was for the purpose of any overseas venture in the Middle East.
13. Firstly, the Complainant has claimed Rs. 1,00,000/- towards cost of return ticket to Goa. The Complainant has stated in the Complaint and in his affidavit-in-evidence that he spent Rs. 1,00,000/- for said return journey. The OP has denied the above in the written version as well as in the affidavit-in-evidence. However, the Complainant has only produced a boarding pass of Jet Airways for travelling from Paris De Gaulle to Mumbai. This boarding pass does not mention the amount paid towards the said journey. Nothing is produced about journey from Goa to Paris on 26.01.2015 and from Mumbai to Goa on 27.01.2015. No tickets of any journey are produced. No receipts/bills to show payment of particular amounts have been produced.
14. Secondly, the Complainant has claimed a huge consolidated amount of Rs. 44,00,000/- for loss and injury on account of 13 deprivation of business; mental agony and potential liability towards compensation to the overseas associates of Mr. Sudhir Gude. It is not clarified as to how much is claimed for loss towards deprivation of business opportunity; how much towards mental agony; and how much towards potential liability. There cannot be a present cause of action for potential i.e. future liability. Said Mr. Sudhir Gude has not filed any proceedings against the Complainant claiming any compensation nor is he a party to this Complaint. It is the case of the Complainant that the whole team i.e. the overseas associates of Mr. Sudhir Gude had already arrived for the meeting in Paris. However, the number, names, addresses and other details of the so called associates of Mr. Sudhir Gude are not disclosed. There is nothing on record to even remotely show as to how much expenditure was already incurred by said Mr. Sudhir Gude and his financial associates. There is nothing on record to show that the said associates of Mr. Sudhir Gude have levied any damages on Mr. Sudhir Gude. There is no documentary evidence produced by the Complainant to support his claim that Mr. Sudhir Gude spread the news among his financial fraternities. Be that as it may, since it is not proved that there any deprivation of business opportunity, the question of granting an amount of Rs. 44,00,000/- for loss and injury on account the same and on account of any future liability towards compensation to the overseas associates of Mr. Sudhir Gude does not arise.
15. Thirdly, the Complainant has prayed for further huge compensation of Rs. 50,00,000/- for loss of reputation and business opportunity, together with interest of 18% per annum. In fact, compensation for loss of business opportunity is included in earlier prayer. The so called business opportunity has not been proved. There cannot be any loss of reputation when existence of any project and various consequent events having taken place, as alleged by the Complainant, have not been proved.
1416. Thus the Complainant has failed to prove that he is entitled to compensation as prayed for, on the grounds as stated. However, since the OP is guilty of deficiency in service, the Complainant is entitled to compensation for that and in our view an amount of Rs. 10,000/- would be reasonable compensation. Further an amount of Rs. 5,000/- would be reasonable towards costs of the litigation.
17. In the result, the Complaint is partly allowed. The OP shall pay to the Complainant an amount of Rs. 10,000/- as compensation and an amount of Rs. 5,000/- as costs within 30 days from today. In case the said amount of Rs. 15,000/- is not paid within the said period, it shall carry interest at the rate of 9% per annum from the date of expiry of the said 30 days till the date of payment.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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