State Consumer Disputes Redressal Commission
Smt.Ruby Singh vs Indusind Bank Ltd. Through Manager & ... on 20 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2017/918
Instituted on : 28.12.2017
Tata A.I.A. Life Insurance Company Limited,
Through : Branch Manager,
Branch Office : 126, Ground Floor, Dhillon Complex, Supela,
Bhilai, District Durg (C.G.)
Raipur Office : Lal Ganga Shopping Mall, Second Floor,
G.E. Road, Raipur, District Raipur (C.G.) 492001
Registered Office : 14th Floor, Tower 'A'
Peninsula Business Park, Senapati Bapat Marg,
Lower Parel, Mumbai 400 -013 ... Appellant (O.P. No.2)
Vs.
1. Smt.Ruby Singh, W/o Late Shri Uday Shankar Singh,
Aged 43 years,
R/o : "G" -38, Street No.4 "B", Sector - 9,
Bhilai, Tehsil and Dist. Durg (C.G.) ..Respondent No.1 (Complainant)
2. Indusind Bank Limited,
Through : Branch Manager,
Branch Office - Plot No.1 & 10, Block No.33,
South Gangotri, G.E. Road,
Bhilai, District Durg (C.G.)
Raipur office:Shankar Nagar,Raipur (C.G.)...Respondent No.2 (O.P.No.1)
Appeal No.FA/2017/890
Instituted on : 28.12.2017
Smt. Ruby Singh, W/o Late Shri Uday Shankar Singh,
Aged 44 years,
R/o : "G" -38, Street No.4 "B", Sector - 9,
Bhilai, District Durg (C.G.) ... Appellant (Complainant)
Vs.
1. Indusind Bank Limited,
Through : Branch Manager,
Branch Office - Plot No.1 & 10, Block No.33,
South Gangotri, G.E. Road,
Bhilai, District Durg (C.G.)
Raipur off.: Shankar Nagar, Raipur (C.G.)...Respondent No.1(O.P.No.1)
2. Tata A.I.A. Life Insurance Company Limited,
Through : Branch Manager,
Branch Office : 126, Ground Floor, Dhillon Complex, Supela,
// 2 //
Bhilai, District Durg (C.G.)
Raipur Office : Lal Ganga Shopping Mall, Second Floor,
G.E. Road, Raipur, District Raipur (C.G.) 492001
Registered Office : 14th Floor, Tower 'A'
Peninsula Business Park, Senapati Bapat Marg,
Lower Parel, Mumbai 400 -013 ... Respondent No.2 (O.P. No.2)
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri Sunil Patel, Advocate for O.P. No.2 Tata A.I.A. Life Insurance Company Limited.
Shri Anurag Thaker, Advocate for complainant - Smt. Ruby Singh. Shri Santosh Tiwari, Advocate for O.P. No.1 Indusind Bank Limited.
O RDER Dated : 20/February/2018 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2017/918 and Appeal No.FA/2017/890, which have been preferred respectively by O.P. No.2 Tata A.I.A. Life Insurance Company Limited, and complainant - Smt. Ruby Singh, in Complaint Case No.C.C./2017/04 against the order dated 27.09.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum").
By the impugned order, the learned District Forum, has allowed the complaint of the complainant and directed that :-
(1) The O.P. No.2 Insurance Company will pay remaining principal assured amount Rs.13,42,719 /- (Rupees Thirteen Lakhs Forty Two Thousand Seven Hundred Nineteen) // 3 // (Rs.15,00,000 - Rs.1,1,15,281) to the complainant within a period of one month from the date of order.. (2) The O.P. No.2 Insurance Company will pay interest @ 9% p.a. on the above amount from the date of death i.e. 26.04.2016 till realization, to the complainant.
(3) The O.P. No.2 Insurance Company will pay a sum of Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony to the complainant.
(4) The O.P. No.2 Insurance Company will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
2. The complainant Smt. Ruby Singh has filed Appeal No.FA/2017/890 against the impugned order on the ground that the District Forum has passed order in her favour against O.P. No.2 only and has exonerated the O.P. No.1 from its liability whereas the O.P. No.2 Tata A.I.A. Life Insurance Company Limited has filed the Appeal No.FA/2017/918 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No. FA/2017/918 and it's copy be placed in the file of Appeal No. FA/2017/890.
3. Briefly stated the facts of the complaint of the complainant are that the husband of the complainant, Late Uday Shankar was having saving bank account with O.P. No.1 Bank. The O.P. No.1 is working as // 4 // an agent of O.P. No.2 and encouraged the husband of the complainant to invest money in the insurance policies of the O.P. No.2 and other Insurance Companies and to purchase the insurance policies. The husband of the complainant, Late Uday Shankar purchased the Tata A.I.A. Life Insurance Fortune Pro Policy of the O.P. No.2, as informed by the O.P. No.1. The details of the above policy are as under :-
Policy No. - U 120291663 Nominee - Ruby Singh Policy date - 07.03.2016 Date of commencement of risk - 07.03.2016 Term of payment of premium - 5 years Principal assured amount - Rs.15,00,000/-.
The proposal form in respect of the above insurance policy was filled up by the employee of the O.P. No.1 and the husband of complainant provided cheque No.955371 towards first premium to the O.P. No.2.
On 26.04.2016, all of sudden, the husband of the complainant had died, thereafter the complainant being nominee of the deceased life assured submitted claim before the O.P. No.2 through O.P. No.1. Vide letter dated 04.10.2016, the claim of the complainant was repudiated by the O.P. No.2 on the ground that the husband of the complainant did not give details of the previous policies purchased by him, in the proposal form. The O.P. No.2 without consent of the complainant directly deposited a sum of Rs.1,57,281/- towards claim amount in the bank account of the complainant. The complainant contacted in the office of O.P. No.2 and informed that the proposal form in respect of policy was filled up by the employee of O.P. No.1 and the husband of the complainant purchased the previous insurance policies through O.P. // 5 // No.1, it means in the previous policies purchased by the insured, the O.P. No.1 had worked as agent. In these circumstances, the O.P. No.1 was having information regarding the previous policies and the it was the liability of the O.P. No.1 to give details of the previous policies obtained by the insured. The complainant informed the O.P. No.2 that the nature of the previous policies purchased by the insured is different from the policy in question and the O.P. No.2 without consent of the complainant paid Rs.1,57,281/- to the complainant, which is not acceptable to the complainant in full and final satisfaction. The O.P. No.2 did not pay hid on the sayings of the complainant and refused to provide any type of assistance or to consider on the insurance claim.
Due to act of the OPs, the complainant suffered mental agony and financial problem. The acts of the OPs comes in the category of deficiency in service, unfair trade practice. Hence, the complainant filed the instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
4. The O.P. No.1 (Bank) filed its written statement and averred that the employee of the O.P. No.1 did not fill up the proposal form in respect of the insurance policy. If any amount was provided by the O.P. No.2 to the complainant, the same was not informed to the O.P. No.1. Late Udayshankar was having Saving Bank account with the O.P. No.1. The form of the insurance was signed and executed by the deceased / policy holder, therefore, it is his responsibility and liability to mention // 6 // and disclose regarding all insurance policies in the proposal form. The O.P. No.1 has no responsibility in this regard. The sum assured and the premium of the policy are fixed between the consumer and the Insurance Company. It is the sole discretion of the consumer to accept the proposal or terms and conditions. In para 8 of the complaint, there is mentioned regarding accrual of cause of action against the O.P. No.2, but there is no mention regarding accrual of any cause of action against the O.P. No.1, in these circumstances, the complainant has unnecessarily impleaded O.P. No.1 as party. The District Forum, Durg has no jurisdiction to hear the complaint and District Forum, Raipur has jurisdiction to hear the complaint, therefore, for want of jurisdiction, the complaint is liable to be dismissed. The complainant is not entitled to get any compensation from the O.P. No.1. If the complainant has to take claim amount respect of life insurance policy of Udayshankar, then the O.P. N.2 Insurance Company, is liable for the same. In the instant case, the District Forum, Durg has no jurisdiction to hear the case because deceased Udayshankar was customer of Raipur branch. There is no relation with Durg - Bhilai Branch. The amount of policy is fixed by Tata A.I.A., which is fixed on the basis of capacity of payment of premium by the life assured. In these circumstances cause of action did not accrue in Bhilai-Durg, therefore, for want of jurisdiction of hearing, the complaint is liable to be dismissed. After death of the policyholder, the O.P. No.1 did not pay any insured amount. The sole discretion of // 7 // determining insured amount is on O.P. No.2. The complaint be dismissed with compensation of Rs.50,000/- to the O.P. No.1.
5. None appeared before the District Forum inspite of service of notice and no written statement was filed by the O.P. No.2.
6. The complainant has filed documents. Annexure A-1 are policy documents, Annexure A-2 is Unit Statement, Annexure A-3 is repudiation letter dated 04.10.2016, Annexure A-4 is Unit Transaction History dated 04.10.2016, Annexure A--5 is I.T. Return of Uday Shankar for 2015-16, Annexure A-6 is Adhaar Card, Annexure A-7 is Death Certificate of Uday Shankar.
7. The O.P. No.1 & O.P. No.2 have not filed any documents.
8. Learned District Forum after having considered the material placed by the complainant before it, has allowed the complaint and directed the O.P. No.2 to pay amounts to the complainant, as mentioned in para 1 of this order.
9. In Appeal No.FA/2017/918, the appellant (O.P. No.2) has filed application under Order 41 Rule 27 CPC and sought permission to file at the appellate stage as evidence copy of proposal form dated 09.12.2015 Ex.D/2-1, information regarding account dated 17.12.2015 (Ex.D/2-2, Proposal Form dated 02.03.2016 (Ex.D/2-3), Certificate dated 29.09.2016 issued by Aviva Life Insurance Co. Ltd. (Ex.D-2/4) // 8 //
10. We have heard learned counsel for both the parties on the application filed by the O.P. No.2 under Order 41 Rule 27 CPC and have also perused documents sought to be filed by the O.P. No.2 at the appellate stage as evidence.
11. The O.P. No.2 sought permission to file above documents at the appellate stage as additional evidence.
12. Looking to the facts and circumstances of the case, we find that the above documents, which are sought to be filed by the O.P. No.2 at the appellate stage as additional evidence are essential for proper adjudication of the case and will also helpful to the parties and will not cause any prejudice to the complainant and O.P. No.1. Therefore, it is just and proper to allow the application filed by the O.P. No.2 under Order 41 Rule 27 CPC.
13. Therefore, we allow the application filed by the O.P. No.2 under Order 41 Rule 27 CPC, and the above documents are taken on record as additional evidence at the appellate stage.
14. Appeal No.FA/2017/918 has been filed by Tata A.I.A. Life Insurance Company Limited (O.P. No.2) and Shri Sunil Patel, learned counsel appearing on behalf of the O.P. No.2 has argued that the District Forum, Durg (C.G.) has no territorial jurisdiction to take cognizance in the matter. The insurance policy was obtained by // 9 // deceased life assured Uday Shankar from Raipur branch of the O.P. No.2 Insurance Company and the proposal form submitted by the deceased life assured, was also signed at Raipur. The address of the deceased life assured Uday Shankar is Maruti Kunj, Flat No.603, City Division East, Raipur and cheque was issued from Shankar Nagar, Raipur branch of the O.P. No.1. Even declaration form submitted by deceased Life Assured was signed at Raipur, therefore, merely branch of the O.P. No.1 and O.P. No.2 are also situated at Bhilai, District Durg (C.G.), does not confirm the territorial jurisdiction of the District Forum, Durg (C.G.). Hence, the impugned order passed by the District Forum, Durg (C.G.) is without jurisdiction, therefore, without going into merits of the complaint, the complaint is liable to be dismissed. The appeal No.FA/2017/918 filed by the O.P. No.2, be allowed and the impugned order passed by the District Forum be set aside and complaint be dismissed. [The O.P. No.2 mentioned many judgments in its written statement, but did not produce them before this Commission, for perusal].
15. Shri Santosh Tiwari, learned counsel appearing for the respondent No. O.P. No.1 Indusind Bank in Appeal No.FA/2017/890 and FA/2017/918, has argued that only branch office of the O.P. No.1 Bank is situated at Bhilai, District Durg (C.G.). No transaction had been done from Bhilai, Branch office of the O.P. No.1 (Bank). The O.P. No.1 has no information regarding the previous policies obtained by the deceased life assured Uday Shankar. Deceased Life assured Uday // 10 // Shankar was having Saving Bank account with the O.P. No.1. The proposal form was not filled up by the employee of the O.P. No.1. It is the duty of the deceased life assured to disclose the details regarding the previous insurance policies. The O.P. No.1 did not commit any deficiency in service. The learned District Forum, has rightly exonerated the O.P. No.1 from its liability. Both the appeals are liable to be dismissed against the O.P. No.1.
16. Appeal No.FA/17/890 has been filed by the complainant - Smt. Ruby Singh, and Shri Anurag Thakker, learned counsel appearing for the complainant has argued that deceased Life Assured Uday Shankar and complainant both are resident of Durg (C.G.). Deceased Uday Shankar was having saving bank account with O.P. No.1 Bank branch situated at Bhilai (C.G.). The premium was paid by late life assured to the O.P. No.2 through O.P. No.1, by cheque. The O.P. No.1 has acted agent of the O.P. No.2 and branches of both the OPs are situated at Bhilai (C.G.). The amount of premium was paid at Bhilai (C.G.), therefore, the District Forum, Durg (C.G.) has territorial jurisdiction to decide the matter. The learned District Forum, has rightly held that the O.P. No.2 has committed deficiency in service and awarded compensation against it, but learned District Forum committed an error by exonerating the O.P. No.1 (Bank) from its liability because the O.P. Bank is an agent of the O.P. No.2 and all previous insurance policies were obtained by deceased life assured Uday Shankar through O.P. No.1, therefore, if the O.P. No.1 has not disclosed regarding the // 11 // previous insurance policies, then for the same, the O.P. No.1 is liable. Both the OPs have committed deficiency in service. The complainant is entitled to get the compensation, as prayed by her in the complaint, from both the OPs, but the learned District Forum erroneously exonerated the O.P. No.1 from the liability. The appeal No.FA/2017/890 filed by the complainant, may be allowed and both the OPs be held liable to pay the amounts jointly and severally, to the complainant. He placed reliance on M/s. Moden Insulators Ltd. Vs. The Oriental Insurance Company Limited, 1986 - 2002 CONSUMER 5973 (NS).
17. We have heard learned counsels appearing for the parties and have also perused the record of the District Forum, as well as the impugned order.
18. Firstly we shall examine whether learned District Forum, Durg (C.G.) has territorial jurisdiction to take cognizance in the matter ?
19. Sub section 2 of Section 11 of the Consumer Protection Act, 1986 runs thus :-
"(2) A complaint shall be instituted in District Forum within the local limits of whose jurisdiction -
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and // 12 // voluntarily resides or, carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry or business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
20. In Appeal No.FA/15/705 - Director, Reliance Life Insurance Company Limited Vs. Nohar Sonwani, vide order dated 28.06.2016, this Commission has observed thus :-
"8. ..............izLrko i= ij gLrk{kj chek daiuh ds izkf/kd`r O;fDr }kjk fnukad 20-08-2014 dks ^^/kerjh** esa fd;k x;k FkkA bl izdkj okn dkj.k dh mRifRr /kerjh N-x- esa gqbZ Fkh blds vfrfjDr ifjokn i= ml ftyk Qksje esa izLrqr fd;k tk ldrk Fkk] ftlds {ks=kf/kdkj esa vukosnd@vihykFkhZ chek daiuh dh og 'kk[kk dk;kZy; gks tgkWa ikfylh dz; dh xbZ Fkh o nkok fujLr fd;k x;k FkkA fdlh Hkh chek daiuh ds vusd 'kk[kk dk;kZy; izns'k ds fofHkUu {ks=ksa esa LFkkfir gS bldk rkRi;Z ;g ugha gksrk fd izR;sd 'kk[kk dk;kZy; ds LFkku ij fLFkr ftyk Qksje esa ifjokn izLrqr fd;k tk ldrk gSA chek daiuh dk ogh 'kk[kk dk;kZy; tks chek lafonk gsrq lfdz; Fkk ,oa tgka okn dkj.k mRiUu gqvk og 'kk[kk dk;kZy; ftl ftyk Qksje ds {ks=kf/kdkj esa fLFkr gS ifjokn i= Hkh mlh ftyk Qksje ds le{k izLrqr fd;k tk ldrk FkkA izLrqr izdj.k esa ifjokn i= ds vfHkdFku o nLrkost ds vuqlkj ifjokn i= ftyk Qksje /kerjh ds le{k izLrqr fd;k tkuk FkkA ifjokn i= esa ml 'kk[kk dk;kZy; dks i{kdkj Hkh ugha cuk;k x;k gS] tks fd vko';d i{kdkj dh izfLFkfr j[krk gSA gekjs erkuqlkj ftyk Qksje nqxZ dks /kkjk&11 ds vuqlkj izdj.k ds fopkj.k dk {ks=kf/kdkj izkIr ugha FkkA"
// 13 //
21. In the instant case, the complainant has filed copy of Proposal Form (Ex.D/2-3). In the proposal form, the Servicing Branch Name is mentioned as Raipur, the address of late Life Assured Uday Shankar is mentioned as Maruti Kunj, Flat No.603, City Division, Raipur, the name of employer/business/school/college is mentioned Sales Tax Office, Raipur. In the proposal form in Clause No.27 i.e. which is regarding payment details, cheque No.955371, issuing bank IndusInd Bank, Shankar Nagar, is mentioned, the name of account holder is mentioned Uday Shankar, Bank account is mentioned 100003082086, Bank name and Branch is mentioned IndusInd Bank, Raipur, Account type is mentioned as savings account, and IFSC code is mentioned INDB0000027.
22. Annexure A-1 page no.47 is declaration of the proposer, annexed the in the record of the District Forum. In the above document, the proposer's name is mentioned Uday Shankar, date is mentioned 02.03.2016 and place is mentioned Raipur and the name of the agent/ intermediary is mentioned Shweta Sahni and agent / intermediary number is mentioned 4589669. Even in the Indian Income Tax Return Verification Form for Assessment Year 2015-16, the name of Uday Shankar is mentioned and address is mentioned Commercial Tax Office, Civil Lines, Behind Raj Bhawan, Raipur (Chhattisgarh).
// 14 //
23. Looking to the above documents filed by the complainant, it apparently appears that all the correspondence and transactions were done in Raipur (C.G.).
24. In Sonic Surgical Vs. National Insurance Company Ltd. (Supra) Hon'ble Supreme Court has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 17 - Jurisdiction -
Territorial - Fire broke out in godown at Ambala - Insurance policy taken at Ambala - Compensation claim made at Ambala - Contention regarding applicability of Amendment Act, 2003 not acceptable - 'branch office' in amended section means, branch office where cause of action arose - No part of cause of action arose in Chandigarh - Consumer Commission, Chandigarh had no jurisdiction to adjudicate."
"8. ......... In our opinion, the expression branch office in the amended section 17(2) would mean the branch office where the cause of action has arisen..."
25. In Srei Equipment Finance Pvt. Ltd. & Ors. Vs. S. Natrajan, III (2016) CPJ 389 (NC), Hon'ble National Commission has observed thus :-
"6. Perusal of agreement executed between the parties reveals that agreement was executed in Kolkata and registered office of OP is in Kolkata whereas complaint has been filed before District Forum, Salem in Tamil Nadu State. Merely because, there is branch of OP at Salem and Chennai, complainant does not get jurisdiction to file complaint at branch office of OP and complaint was to be filed only in Kolkata. In spite of specific objection by OP in its written statement towards jurisdiction neither District Forum nor State Commission has dealt with this objection and learned State Commission decided appeal in absence of // 15 // petitioner's Counsel and I am of the view that District Forum, Salem had no territorial jurisdiction to entertain the complaint...."
26. In Appeal No.FA/2013/137 - Branch Manager, Bajaj Allianz Insurance Company Limited Vs. Ghararam Sahu, vide order dated 21.03.2014, this Commission observed thus :-
"9. In the instant case, the office of the appellant/Insurance Company is situated at Pandri, Raipur and there is no branch of the appellant/Insurance Company at Dhamtari and policy was issued from Raipur office of the appellant/Insurance Company. Merely the accident was took place at near Sihawa, no part of the cause of action has accrued at Dhamtari and District Forum, Dhamtari (C.G.) has no territorial jurisdiction. Therefore, the learned District Forum, Dhamtari (C.G.) erred in holding that it has territorial jurisdiction to take cognizance of the complaint case..."
27. The O.P. No.1 (Bank) filed its written statement. In para 2, the O.P. No.1 (Bank) simply admitted that Late Uday Shankar was having saving bank account in the branch of the O.P. No.1 Bank situated at Bhilai (C.G.). The rest of the allegations made in the complaint has been denied by the O.P. No.1. The O.P. No.1 did not admit that amount was paid through cheque of branch of O.P. No.1 bank or any transaction was done through O.P. No.1 Bank branch at Bhilai (C.G.). Even the complainant did not plead in her complaint that the cheque no.955371 which was given to O.P. No.2 was towards premium was paid by the O.P. No.1. On the contrary other document show that cheque was given by the life assured to branch of Indusind Bank situated at Shankar // 16 // Nagar, Raipur. The complainant has not filed any documents to show that the payment of premium was made by the deceased life assured through Bhilai (C.G.) branch of O.P. No.1.
28. In the instant case, the insurance policy was issued in favour of life assured Uday Shankar, from Raipur branch of the O.P. No.2 and cheque given by the life assured towards premium was also paid through Shankar Nagar, Raipur branch of the O.P. No.1. The in proposal form, the address of the complainant as well as the deceased life assured is given as Maruti Kunj, Flat No.603, City Division East, Raipur, therefore, merely in the complaint the address of the complainant is mentioned as G-38, Street No.4, B Sector 9, Bhilai, District Durg (C.G.)., and branch of the OPs are situated at Bhilai, District Durg (C.G.), it does not confirm the territorial jurisdiction of the District Forum, Durg (C.G.). Hence, the District Forum, Durg (C.G.) has no jurisdiction to take cognizance in the matter.
29. Therefore, the appeal No.FA/2017/890 filed by the complainant - Smt. Ruby Singh, is liable to be dismissed and is hereby dismissed. The appeal No.FA/2017/918 filed by Tata A.I.A. Life Insurance Company Limited, deserves to be allowed. Hence, is allowed and impugned order dated 27.09.2017, passed by the District Forum, is set aside. The case is remitted back to the District Forum, Durg (C.G.) with a direction to return the complaint, as well as the documents to the complainant for filing the complaint before the competent District Forum, which is // 17 // having territorial jurisdiction to take cognizance in the matter. The complainant is entitled to file a fresh complaint before District Forum, Raipur (C.G.), where all transactions were done. The complainant is entitled to get exemption of the time spent by her in prosecuting the complaint before the District Forum as well as appeal before this Commission.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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