State Consumer Disputes Redressal Commission
Ramesh Kumar vs Punjab And Sind Bank on 2 February, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.248 of 2015
Date of Institution: 02.03.2015
Order reserved on:31.01.2017
Date of Decision : 02.02.2017
Ramesh Kumar S/o Shri Gian Chand, aged about 40 years C/o
Gupta Watch House, Geeta Bhawan Road, Near Adarsh High
School, Sunam.
.....Appellant/complainant
Versus
1. Punjab and Sind Bank through its Branch Manager, Sunam.
2. Aviva Life Insurance Company Ltd, through its Managing
Director, Aviva Tower, Sector Road, Opposite Golf Course,
DLF- Phase V, Sector 43, Gurgaon 122003, Haryana (India).
.....Respondents/opposite parties
First appeal against order dated
23.01.2015 passed by the District
Consumer Disputes Redressal
Forum, Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Munish Goel, Advocate
For respondent no.1 : Sh. Harish Goyal, Advocate
For respondent no.2 : None
.................................................
AND 2) First Appeal No.249 of 2015 Date of Institution: 02.03.2015 Order reserved on:31.01.2017 Date of Decision : 02.02.2017 Rakesh Kumar S/o Shri Gian Chand, aged about 40 years C/o Gupta Watch House, Geeta Bhawan Road, Near Adarsh High School, Sunam.
.....Appellant/complainant Versus
1. Punjab and Sind Bank through its Branch Manager, Sunam. First Appeal No.248 of 2015 2
2. Aviva Life Insurance Company Ltd, through its Managing Director, Aviva Tower, Sector Road, Opposite Golf Course, DLF- Phase V, Sector 43, Gurgaon 122003, Haryana (India).
.....Respondents/opposite parties First appeal against order dated 23.01.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Munish Goel, Advocate For respondent no.1 : Sh. Harish Goyal, Advocate For respondent no.2 : None ................................................. J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Since the common controversy is involved in both the appeals, hence they are being disposed of together by means of common order, which shall be pronounced in first appeal no.248 of 2015, which has been filed by the complainant of complaint no.390, instituted on 11.07.2014 and decided on 23.01.2015 as appellant of this appeal. Second first appeal no.249 of 2015 has been filed by the complainant of complaint no.391, instituted on 11.07.2014 and decided on 23.01.2015 now appellant in this appeal. These appeals have been preferred by the appellants for enhancement of the amount of compensation.
F.A. No.248 of 2015
2. Complainant Ramesh Kumar filed complaint no.390 of 2014 under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he has business First Appeal No.248 of 2015 3 dealing with OP no.1. It was averred that he purchased the insurance policy no.AHP2821456 (UIN-122N057V01) for a sum of Rs.3,50,000/- under the pressure of the officials of OP no.1. The complainant gave cheque of Rs.35,896/- to OP no.1 from the cash credit limit for remitting the amount to OP no.2. OP no.1 remitted the amount of first premium to OP no.2 and sent the receipt thereof to complainant alongwith policy. It was further averred that complainant had given cheque no.502598 on 06.12.2010 of Rs.35,896/- as second premium to OP no.1 out of cash credit limit and another cheque no.550380 of Rs.35,896/- as third premium to OP no.1 out of cash credit limit. The complainant came to know that OP no.1 prepared draft on 06.12.2010 of this amount and same was cancelled. Another draft no.687139 was prepared on 01.03.2012 in favour of OP no.2 and draft no.687104 was prepared on 06.02.2012 in favour of OP no.2 by OP no.1. The complainant was entitled to various benefits, as mentioned in the policy and also entitled for tax exemption under the policy for three years. The complainant took tax benefit of Rs.11,000/- per annum under the said policy and he had to claim tax exemption under Income Tax Act of Rs.33,000/- in three years. When complainant approached OP no.2 for second and third premium receipts, then OP no.2 informed that only first premium was received from him. The complainant enquired about the same from OP no.1, then he came to know that OP no.1 did not remit the amounts of second premium and third premium to OP no.2 and OP no.2 had cancelled the policy due to negligence of OP no.1. The First Appeal No.248 of 2015 4 complainant remained deprived of the benefits under the policy. OP no.1 charged interest @13% upon the amounts, which have been consumed from the cash credit limit. The complainant had to deposit tax of Rs.33,000/- for which he had to claim tax exemption. The complainant requested OPs to refund the amount along with interest @13% per month, but to no effect. The complainant, thus, prayed that OPs be directed to refund Rs.1,07,688/- i.e. amount of three installments alongwith interest @13% , as OP no.1 charged interest @13% under cash credit limit; further to pay Rs.33,000/- on account of tax exemption benefits; further to pay Rs.2 lakhs as damages; and to pay Rs.15,000/- as litigation expenses.
3. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant. It was admitted that OP no.1 was having contract with OP no.2, but now there is no contract between OPs. This fact was admitted that complainant has business dealing with OP no.1. It was denied that complainant purchased the policy in question under pressure of officials of OP no.1. Representative of OP no.2 used to sit in the office of OP no.1, as there was contract between OP no.1 and OP no.2. The complainant informed OP no.1 that DD No.685744/807/10 for Rs.35,896/- and DD no.685745/808/10 for Rs.35,914/- dated 06.12.2010 have been lost. OP no.1 controverted the other averments of the complainant regarding any deficiency in service on its part and it prayed for dismissal of the complaint. First Appeal No.248 of 2015 5
4. OP no.2 filed its separate written reply and contested the complaint of the complainant vehemently. Legal objections were taken that complaint is misconceived and afterthought version only.
The complaint is alleged to be not maintainable being without cause of action. Intricate question of facts and law are involved in the case, which cannot be adjudicated in summary manner by the Consumer Forum. It was denied that complainant is consumer of OP no.2. The complainant is estopped by his own act and conduct from filing the complaint. On merits, it was averred that complainant himself approached the advisor of OP no.2 for purchasing the policy and received the entire information of the plan. The complainant opted to purchase Aviva Health Plus Plan. The complainant opted the term of plan as 10 years. Premium paying term of the policy was five years with annual premium of Rs.35,897/- with total sum assured of Rs.3,50,000/-. The complainant signed the proposal form and also suffered declaration in this regard. Regular premiums were required for frequency of the policy terms. OP no.1 underwriters of the policy, issued the policy to complainant, vide policy no.AHP2821456 and sent policy documents to complainant with complete terms and conditions. The complainant could review the policy's terms and conditions within free look period option and could cancel the policy accordingly. It was further averred that OP no.2 received first premium of the policy only and issued the receipt accordingly. Thereafter OP no.2 did not receive any premium amount from complainant and the policy lapsed due to non-payment of requisite First Appeal No.248 of 2015 6 premium even within grace period, as provided under the policy terms and conditions. OP no.2 controverted the other averments of the complainant and prayed for dismissal of the complaint.
5. The parties led evidence in support of their pleas. After conclusion of evidence and arguments, the District Forum allowed the complaint no.390 of 2014 by directing OP no.1 to pay an amount of Rs.71,792/- being the amount of two demand drafts dated 06.12.2010 and 06.02.2012 to complainant. The District Forum further directed OP no.2 to pay Rs.35,896/- on account of first premium and to pay Rs.10,000/- as consolidated amount of compensation and litigation expenses to the complainant. Dissatisfied with the above order, the complainant now appellant has preferred this appeal for enhancement of amount of compensation, litigation expenses and for interest.
F.A. No.249 of 2015
6. Complainant Rakesh Kumar filed complaint no.391 of 2014 under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he has business dealing with OP no.1. It was averred that he purchased the insurance policy no.AHP2821341 (UIN-122N057V01) for a sum of Rs.3,50,000/- under the pressure of the officials of OP no.1. The complainant gave cheque of Rs.35,914/- to OP no.1 from the cash credit limit for remitting the amount to OP no.2. OP no.1 remitted he amount of first premium to OP no.2 and sent the receipt thereof to complainant alongwith policy documents. It was further averred that First Appeal No.248 of 2015 7 complainant had given cheque no.502597 on 06.12.2010 of Rs.35,914/- as second premium to OP no.1 out of cash credit limit and another cheque no.550379 of Rs.35,914/- as third premium to OP no.1 out of cash credit limit. The complainant came to know that OP no.1 prepared draft on 06.12.2010 of this amount and same was cancelled. Another draft no.687140 was prepared on 01.03.2012 in favour of OP no.2 and draft no.687105 was prepared on 06.02.2012 in favour of OP no.2 by OP no.1. The complainant was entitled to various benefits, as mentioned in the policy and further entitled for tax exemption under the policy for three years. The complainant took tax benefit of Rs.11,000/- per annum under the said policy and he had to claim tax exemption under Income Tax Act of Rs.33,000/- in three years. When complainant approached OP no.2 for second and third premium receipts, then OP no.2 informed that only first premium amount was received. The complainant enquired about the same from OP no.1 and he came to know that OP no.1 did not remit the amounts of second premium and third premium to OP no.2 and OP no.2 had cancelled the policy due to negligence of OP no.1. The complainant remained deprived of the benefits under the policy. OP no.1 charged interest @13% upon the amount which has been consumed from the cash credit limit. The complainant had to deposit tax of Rs.33,000/- for which he had to claim tax exemption on account of operation of the policy. The complainant requested OPs to refund the amount along with interest @13% per month, but to no effect. The complainant, thus, prayed that OPs be directed to refund First Appeal No.248 of 2015 8 Rs.1,07,742/- i.e. amount of three installments alongwith interest @13% , as OP no.1 charged interest @13% under cash credit limit; further to pay Rs.33,000/- on account of tax exemption benefits; to pay Rs.2 lakhs as damages; and to pay Rs.15,000/- as litigation expenses as well.
7. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant. It was admitted that OP no.1 was having contract with OP no.2, but now there is no contract between OPs. This fact was admitted that complainant has business dealing with OP no.1. It was denied that complainant purchased the policy in question under pressure of officials of OP no.1. Representative of OP no.2 used to sit in the office of OP no.1, as there was contract between OP no.1 and OP no.2. The complainant informed OP no.1 that DD No.685744/807/10 for Rs.35,896/- and DD no.685745/808/10 for Rs.35,914/- dated 06.12.2010 have been lost. After adopting the process regarding loss of demand draft, it issued fresh DD. OP no.1 controverted the other averments of the complainant regarding any deficiency in service on its part and it prayed for dismissal of the complaint.
8. OP no.2 filed its separate written reply and contested the complaint of the complainant vehemently. Legal objections were raised that complaint is misconceived and afterthought version only. The complaint is alleged to be not maintainable being without cause of action. Intricate question of facts and law are involved in the case, which cannot be adjudicated in summary manner by the Consumer First Appeal No.248 of 2015 9 Forum. This fact was denied that complainant is consumer of OP no.2. The complainant is estopped by his own act and conduct from filing the complaint. On merits, it was averred that complainant himself approached the advisor of OP no.2 for purchasing the policy and received the entire information of the plan. The complainant opted to purchase Aviva Health Plus Plan. The complainant opted the term of plan as 10 years. Premium paying term of the policy was five years with annual premium of Rs.35,915/- with total sum assured of Rs.3,50,000/-. The complainant signed the proposal form and also suffered declaration in this regard. Regular premiums were required for frequency of the policy terms. OP no.1 underwriters of the policy issued the policy to complainant, vide policy no.AHP2821341 and sent policy documents to complainant with detailed terms and conditions. The complainant could review the policy's terms and conditions within free look period option and could cancel the policy in accordance therewith. It was further averred that OP no.2 received first premium of the policy only and issued the receipt accordingly. Thereafter, OP no.2 did not receive any premium amount from complainant and the policy stood lapsed due to non-payment of requisite premium within grace period as well, as provided under the policy terms and conditions. OP no.2 controverted the other averments of the complainant and it prayed for dismissal of the complaint.
9. The parties led evidence in support of their pleas. After conclusion of evidence and arguments, the District Forum allowed First Appeal No.248 of 2015 10 the complaint no.391 of 2014 by directing OP no.1 to pay an amount of Rs.71,828/- being the amount of two demand drafts dated 06.12.2010 and 06.02.2012 to complainant. The District Forum further directed OP no.2 to pay Rs.35,914/- on account of first premium and to pay Rs.10,000/- as consolidated amount of compensation and litigation expenses to the complainant. Dissatisfied with the above order, the complainant now appellant has preferred this appeal for enhancement of amount of compensation, litigation expenses and for awarding interest amount.
10. We have heard the learned counsel for the parties and have also examined the record of the case. Since, no cross appeal has been preferred by the respondents in the above referred appeal, hence we do not touch the legality of the finding of the District Forum with regard to deficiency in service on the part of respondents of these appeals. The above appeals have been preferred by the complainants as appellants praying that the District Forum has awarded less amount of compensation to the complainants and the same be raised. The complainants now appellants have, thus, prayed that on account of deficiency in service of respondents of above appeals being OPs in the complaint, they suffered loss of interest on the amount which remained with OP no.1 to the extent of Rs.71,792/- and Rs.71,828/- respectively in above complaints. The District Forum passed the order for the refund of the above amounts payable to the complainants without payment of interest thereon. We find that since the complainants remained deprived of these First Appeal No.248 of 2015 11 amounts, hence they are entitled to interest on the above referred amounts in our view. The amounts have been utilized by the OPs, which belonged to the complainants. We, thus, hold that complainants are entitled to interest @8% per annum from the date of preparation of drafts i.e. 06.12.2010 and 06.02.2012 respectively in the above complaints till actual payment of the amount.
11. The complainants now appellants further prayed that OP no.2 be directed to refund the amount of Rs.35,896/- and Rs.35,914/- to them with interest @13% thereupon. We find that the above policies stood lapsed and the deficiency on the part of OP no.2 has been held on the ground of non issuance of notice only. We do not think it appropriate to grant any interest on the above said amounts as premium amount deposited with OP no.2. This relief of the complainants now appellants, as sought in the appeals, is not accepted by us.
12. The complainants further prayed that they suffered loss of Rs.33,000/- in each of the complaint for loss of income tax benefit and further prayed that the amount of litigation expenses be enhanced to Rs.15,000/- in each complaint. Considering the facts and circumstances of the case, we find that complainants now appellants of above referred appeals certainly suffered loss of Rs.33,000/- for tax exemption, but the policy stood lapsed for non- payment of premiums and so in the circumstances of the cases, we enhance the composite amount of compensation and litigation from Rs.10,000/- to Rs.25,000/- in each complaint payable to First Appeal No.248 of 2015 12 complainants by OP no.2. OP no.2 cannot be mulcted for loss of income tax benefit to complainant because policies lapsed due to non-payment of premium amounts only, due to deficiency of OP no.1. So in the circumstances of the case the orders passed by the District Forum in the above referred complaints are modified, as referred to above.
13. As a result of our above discussions, we partly accept the first appeal no.248 of 2015 and partly accept first appeal no.249 of 2015 by modifying the orders of the District Forum, as referred to above therein. We direct the OPs to pay the above said amounts to the complainants within 45 days from the date of receipt of certified copy of this order.
14. Arguments in above referred appeals were heard on 31.01.2017 and the orders were reserved. Certified copies of the orders be communicated to the parties as per rules.
15. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER February 02, 2017 (MM)