State Consumer Disputes Redressal Commission
Tata Motors And Others vs Dharam Singh on 22 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.187 of 2010
Date of institution : 08.02.2010
Date of decision : 22.08.2013
1. Tata Motors Limited through its Manager Legal i.e. Mr. MS
Pradeep, Commercial Divison, 5, Jeewan Tara Building, Sansad
Marg, New Delhi and mentioned in the complaint head note as
M/s Tata Motors, Passenger Car Business Unit, Sector No.15-
15A, PCNIDA, Chikhali, Taluka Haveli, District Pune-410 501.
2. Dada Motors Limited through its Managing Director, GT Road,
Dholewal Chowk, Ludhiana represented herein through Shri
Inder Pal Singh (Law Officer).
.......Appellants- Opposite Parties No.2 & 3
3. Dada Motors Limited, Near Kaner Hotel, Bhughipura Chowk,
Moga.
4. Dada Motors Limited, GT Road, Malwal Kadim, Opposite
Bazirpur Gurudwara, Ferozepur (Punjab).
......Performa Appellants/Opposite Parties No.4 and 5
Versus
1. Dharam Singh, aged about 64 years son of S. Kartar Singh,
resident of A-10, Officer Colony, Mansa, now at present resident
of Kothi No.24 A, Near Lal Kothi, Faridkot (Punjab).
.......Respondent/Complainant
First Appeal No.187 of 2010. 2
2. Goyal Motors, Rajpura Road, Patiala, through its Managing
Director.
.......Respondent-Opposite Party No.1
2. First Appeal No.239 of 2010
Date of institution : 18.02.2010
Date of decision : 22.08.2013
Dharam Singh, aged about 64 years son of S. Kartar Singh, resident of
A-10, Officer Colony, Mansa, now at present resident of Kothi No.24
A, Near Lal Kothi, Faridkot (Punjab).
.......Appellant/Complainant
Versus
1. Goyal Motors, Rajpura Road, Patiala, through its Managing
Director.
2. Tata Motors, Passenger Car Business Unit, Sector No.15-15A,
PCNIDA, Chikhali, Taluka Haveli, District Pune-410 501.
3. M/s Dada Motors Limited, Near Kaner Hotel, Bhughipura
Chowk, Moga.
4. M/s Dada Motors Limited, GT Road, Malwal Kadim, Opposite
Bazirpur Gurudwara, Ferozepur (Punjab).
......Respondents/Opposite Parties
First Appeals against the order dated
12.11.2009 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
First Appeal No.187 of 2010. 3Present:-
For the appellants : Shri P.K. Kukreja, Advocate. For respondent No.1 : Shri Ashish Gupta, Advocate. For respondent No.2 : Shri S.R. Bansal, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The above noted appeals have been preferred against the order dated 12.11.2009 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, "District Forum"), vide which the complaint filed by Dharam Singh, complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was allowed and Tata Motors, M/s Dada Motors Limited, Ludhiana and M/s Dada Motors, Moga, opposite parties No.2 to 4 were directed to pay a sum of Rs.57,000/- along with interest at the rate of 7% per annum from the date of complaint till realization, Rs.10,000/- on account of mental agony, pain and harassment suffered by the complainant and Rs.2,000/- as litigation expenses. First Appeal (FA 187 of 2010) has been preferred by opposite parties No.2 to 4 for setting aside that order, whereas the second appeal (FA No.239 of 2010) has been preferred by the complainant for modification of the order so as to award him interest at the rate of 18% instead of 7% and compensation of Rs.5,00,000/- instead of Rs.10,000/-.
2. The complaint was filed by the complainant in which he averred that he purchased one car make Tata Indigo Marina on 10.12.2004 from opposite party No.1, which was manufactured by opposite party No.2, after getting the same financed from Bank of Punjab Limited, for his personal use. He used the car as per the instructions given in First Appeal No.187 of 2010. 4 the operation manual provided by the manufacturer and availed of the services of its authorized dealers. There was inbuilt defect in the engine thereof and in addition to that there were multiple problems. There was starting problem coupled with vibration problem in the engine, which could not be rectified in spite of the fact that he got the defect rectified by spending lacks of rupees. The said inbuilt defect was brought to the notice of opposite party No.1 on 25.1.2005, when the first service was got done and again on 23.3.2005, when there was leakage in the engine etc. That opposite party did not bother to satisfy his grievance. That problem continued and he again brought the same to the notice of this party on 1.6.2005. Job card No.1327 was prepared and he also gave a complaint in writing regarding the problems in the car but that complaint was not entertained by opposite party No.1 and he was told that there may be improvement in the vehicle after covering the distance of 25000 kilometers. However, the problem remained the same. On 21.9.2005 he approached opposite party No.3, the authorized dealer of the manufacturer, with the said problem and requested him to change the defective engine but that opposite party refused to do so. The job card was prepared regarding the starting problem, high temperature of the engine, non-working of A.C. and leakage etc. However, when the car was handed over to him, after alleged satisfactory repairs, the said problems were still there. He again contacted opposite party No.3 on 5.10.2005 and complained about those problems but nothing fruitful came out. He repeatedly First Appeal No.187 of 2010. 5 went to that party with the request to change the engine and the defective parts but no heed was paid to his request and, as such, it indulged in unfair trade practice. He had been approaching that opposite party again and again for the removal of the defects, who had been charging different amounts for the job done but those defects were not removed nor rectified. On 24.3.2008 as an alternative to try his luck, he approached opposite party No.4 at Moga for the replacement of the defective car. That opposite party without his consent undertook overhauling of the engine and kept the car with it in the workshop from 24.3.2008 to 8.4.2008 and charged a sum of Rs.40,265/-, vide bill dated 8.4.2008. They charged a sum of Rs.11,394/- illegally on account of the replacement of the crank shaft as the defective crank shaft was never shown to him. Even the labour charges were charged in excess. He was assured by that opposite party that after the replacement of the parts and overhauling of the engine, the problem would not reoccur but that day never came. He was posted as President of the District Consumer Disputes Redressal Forum, Faridkot and had to suffer on account of the breaking down of the car on 16.5.2008, while coming to that place from Ludhiana as a result of which, he had to face humiliation and to undergo economic loss. The recurring problems were brought to the notice of the opposite parties and he got the car repaired at Moga on the same very day for which he was charged Rs.1667/-, though the same opposite party had overhauled the engine and had assured that no problem will First Appeal No.187 of 2010. 6 develop in future. He had to bring the car again to opposite party No.3 for the rectification of the problems being faced by him. Opposite parties No.3 and 4 had been overcharging for the spare parts and lubricants whereas those spare parts and lubricants were available at less rates in the market. On 22.4.2009 the car virtually went off the road and he approached opposite party No.1 for the repairs. He was told by that opposite party that there was starting problem, noise in the engine, white smoke being emitted, lever giving noise, A.C. not working and less pick up power and that there was no motion at the time of change of gear and the body of the car was rattling and vibrating. After the service by that opposite party, he was not allowed to inspect the car, not to take the test drive and was asked to pay a sum of Rs.1464/-. He was even made to sit outside. Thus, all the opposite parties played fraud and indulged in unfair trade practice by not removing the defects in spite of charging huge amounts for the spare parts etc. On account of defects in the car the same stopped at different places and had to be pushed on account of which he had to cut sorry figure and faced humiliation. In these circumstances he is entitled to receive damages of Rs.5,00,000/- from the opposite party and they are required to provide a new car to him and in the alternative to pay Rs.4,83,545/- as the price of the car and Rs.1,42,137/- as the amount spent by him on the repairs of the car. He also claimed litigation expenses of Rs.20,000/-.
First Appeal No.187 of 2010. 7
3. In the written reply submitted by opposite party No.1, it admitted that the complainant purchased the car from it, which was manufactured by opposite party No.2. While denying the other averments made in the complaint, it pleaded that there was no manufacturing defect in the engine and every time the vehicle was received in the workshop the same was properly attended and delivered to the complainant after his entire satisfaction. In fact, this car was never reported to it by the complainant after 1.6.2005. No expert evidence has been produced by the complainant regarding the alleged manufacturing defect. The mandatory provision of getting the car inspected from the authorized laboratory has not been followed. There was no deficiency in service on its part and, as such, the complaint is not maintainable against it. The complaint has been filed after the period of limitation as the car was purchased in the year 2004 whereas the complaint has been filed in the year 2006. The same is liable to be dismissed on this ground. It has been unnecessarily impleaded as a party and its name is liable to be deleted. The complainant is not the owner of the car as the same has been hypothecated in the name of the financier and, therefore, he cannot maintain this complaint. The District Forum has no jurisdiction to entertain and try this complaint. Only the Civil Court has the jurisdiction to entertain the complaint. It prayed for the dismissal thereof with costs; being totally false and frivolous. It also challenged First Appeal No.187 of 2010. 8 the territorial jurisdiction of the District Forum on the ground that the car was purchased and all the jobs were done at Patiala.
4. Opposite party No.2 in its written reply averred that the recommended services were not availed of by the complainant at the proper time and at the proper mileage. In fact, the vehicle had already covered a distance of 25864 kilometers before filing of the complaint itself. The car could not have covered such a distance in case there was any such alleged defect in the engine. According to the complainant, he was facing the problem from the very beginning and still the complaint was filed after a long period on 30.4.2009, which shows that the same has been filed on the pretext to extort illegal benefits. In fact, false allegations regarding the problems in the running and the engine etc. of the car have been levelled by him in the complaint. There was no such inbuilt defect nor there was any other problem as mentioned in the complaint. He himself was unable to maintain the vehicle as per the requirements and the terms of the warranty. Though the vehicle was not covered within the warranty terms, yet it was duly attended to on 3.8.2007 and prompt service was provided to him. The amount was charged for the spare parts and the labour, which was not covered under the extended warranty. He was liable to pay for the consumable parts as per the terms of the warranty. The engine was overhauled with the consent of the complainant and a false plea has been taken in the complaint. The complaint filed by him is an abuse of process of law. He has not come to the District Forum First Appeal No.187 of 2010. 9 with clean hands and is guilty of suppressing material facts. On account of his acts of omission and commission, he was not entitled to the benefits under the warranty. The complaint is not maintainable in the present form as the problems narrated therein occurred due to the negligence, carelessness, continuous and extensive use of the vehicle. However, all the terms of the warranty were complied with at every stage. Admittedly the vehicle was purchased from Patiala and, therefore, the District Forum at Ferozepur has no territorial jurisdiction to entertain the complaint. According to it also, the complaint is barred by time and it prayed for the dismissal thereof.
5. Opposite parties No.3 to 5 filed a joint written reply. While denying the averments made in the complaint, they pleaded that whenever the complainant brought the vehicle to their service stations, the same was serviced and repaired to his complete satisfaction as per the job cards. There was no such inbuilt defect in the engine nor there were any such multiple problems as narrated in the complaint. The vehicle was brought to them only for minor wears and tears or for the replacement of the spare parts and all those problems were duly removed and the required parts were replaced with new spare parts. Even the problems, which were so pointed out to opposite party No.3 on 21.9.1995, were removed to the satisfaction of the complainant. The complaint is not only false and frivolous but has been filed to extort money from them. The complainant has not come to the District Forum with clean hands and has concealed the material facts. First Appeal No.187 of 2010. 10 The vehicle was purchased on 10.11.2004 and the complaint was filed in the year 2009 and, as such, is barred by limitation. He himself violated the terms and conditions of the warranty and got the vehicle serviced from unauthorized dealer resulting into the alleged defects. They cannot be held liable for any such alleged defect as they always serviced and repaired the vehicle to the satisfaction of the complainant, who in token thereof had been putting his signatures on the job cards. They never committed any such alleged unfair trade practice nor there was any deficiency in service on their part. They prayed for the dismissal of the complaint with special costs of Rs.20,000/- under Section 26 of the Act.
6. The parties produced evidence in support of their respective averments before the District Forum which after going through the same and hearing learned counsel on their behalf partly allowed the complaint, vide aforesaid order.
7. We have heard learned counsel for the parties and have carefully gone through the records of the case.
8. At the outset, it was submitted by the learned counsel for opposite parties No.2 to 4 in FA No.239 of 2010 (appellants in FA No.187 of 2010) that the District Forum, Ferozepur, had no territorial jurisdiction to entertain the complaint and a specific plea to that was taken by the opposite parties in their written replies. When such a plea was taken, the District Forum was required to adjudicate the question of territorial jurisdiction before recording the decision on merits of the First Appeal No.187 of 2010. 11 case. That point was not at all touched by it. The car was purchased by the complainant from the dealer at Patiala and the same was got serviced and repaired by him at Ludhiana, Moga and Ferozepur. His main grievance is that the vehicle was suffering from manufacturing defect and, as such, he is entitled to the replacement thereof and in the alternative to receive the price thereof, along with amount which he spent on the repairs of the car. If it is so, then it cannot be said that any part of the cause of action had arisen at Ludhiana, Moga or Ferozepur. Only opposite party No.5 is residing at Ferozepur. No permission of the District Forum was obtained for filing the complaint at Ferozepur nor the other opposite parties acquiesced in the filing of the complaint at that place; as they took up specific pleas in their replies that the said District Forum had no territorial jurisdiction. In these circumstances the complaint was liable to be dismissed on that ground alone.
9. While contradicting these submissions, it was submitted by the learned counsel for the complainant that after purchasing the vehicle the free services were obtained by the complainant from opposite party No.4, which had a Service Station at Ferozepur also. In that eventuality, it is to be held that the complaint could have been filed in the District Forum, Ferozepur. Therefore, there is no merit in the submissions raised by the learned counsel for opposite parties No.2 to 4.
First Appeal No.187 of 2010. 12
10. For proper appreciation of the matter, Section 11 of the Act, which deals with the jurisdiction of the District Forum, is reproduced below:-
"11. Jurisdiction of the District Forum.- (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs]. (2) A complaint shall be instituted in a 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 the institution of the complaint, actually and 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 on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or First Appeal No.187 of 2010. 13
(c) the cause of action, wholly or in part, arises."
11. Admittedly only opposite party No.5 was carrying on the business within the local limits of the jurisdiction of District Forum, Ferozepur. Therefore, if the complainant was to take benefit of sub- clause (b) of sub-section (2) of the Act, he was to obtain the permission of the District Forum or the other opposite parties should have acquiesced in the institution of the complaint at that place. It is an admitted fact that neither any such permission was obtained nor the other opposite parties acquiesced in filing of the complaint in that District Forum.
12. Now, the question arises, whether cause of action had arisen within the local limits of the District Forum, Ferozepur, wholly or in part? Cause of action means a bundle of facts, which gives rise to a right or liability. If the averments as made in the complaint are taken into consideration, it cannot be said that any part of the cause of action had arisen within the local limits of jurisdiction of this District Forum. The car was purchased from Patiala and it is the categorical case of the complainant that the same had inbuilt manufacturing defect and it was on that ground that he made a prayer directing the opposite parties to replace the car or to pay the price thereof and the amount spent by him on the repairs thereof. Mere getting the car repaired from opposite party No.5 will not constitute a part of the cause of action. As no part of cause of action had arisen at that place, so the District Forum, Ferozepur had no jurisdiction to entertain and decide the complaint. First Appeal No.187 of 2010. 14
13. In the result, the appeal filed by the opposite parties (FA No.187 of 2010) is allowed, the order of the District Forum is set aside and the complaint filed by the complainant is dismissed. The appeal filed by the complainant (FA No.239 of 2010) is dismissed as having become infructuous. However, this order shall not stand in the way of the complainant to file the complaint before the appropriate Forum, which shall exclude the time spent by the complainant for prosecuting the complaint and the appeal, while computing the period of limitation for filing that complaint.
14. The sum of Rs.25,000/- deposited at the time of filing of the appeal (FA No.187 of 2010) along with interest which has accrued thereon, if any, shall be remitted by the registry to appellants No.1 and 2 in FA No.187 of 2010 by way of a crossed cheque/demand draft after the expiry of 45 days.
15. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) August 22, 2013 MEMBER Bansal First Appeal No.187 of 2010. 15 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1787 of 2011
Date of institution : 06.12.2011
Date of decision : 08.08.2013
Rajinder Singh s/o Pargat Singh, resident of Village Kumbhra, Tehsil Amloh, District Fatehgarh Sahib.
.......Appellant-Complainant Versus
1. Kotak Mahindra, Old Mutual Life Insurance Limited through its Incharge, Central Processing Centre, 8th Floor Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
2. Kotak Mahindra Old Mutual Life Insurance Limited (Regd. Office) through its Incharge Central Processing Centre, 9th Floor, Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
3. Kotak Mahindra Old Mutual Life Insurance Limited, Purewal Tower, G.T. Road, Khanna, District Ludhiana through its Incharge/Manager.
4. Shri Davinder Singh, Agent, C/o Kotak Mahindra Bank Ltd., Amloh, District Fatehgarh Sahib.
......Respondents- Opposite Parties First Appeal against the order dated 12.9.2011 of the District Consumer Disputes Redressal Forum, Fatehgarh Sahib.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.First Appeal No.1787 of 2011. 2
Present:-
For the appellant : Shri Vinod K. Sharma, Advocate. For respondents No.1-3 : Shri Mrigank Sharma, Advocate.
For respondent No.4 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Rajinder Singh, has preferred this appeal against the order dated 12.9.2011 passed by District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") for issuance of the following directions to the respondents/opposite parties, was dismissed:-
(i) to return Rs.3,00,000/- along with interest at the rate of 12% per annum;
(ii) to pay Rs.50,000/- for mental pain, sufferings and loss of time;
(iii) to pay Rs.10,000/- as cost of the complaint.
2. The complainant averred in his complaint that Davinder Singh, respondent No.4/opposite party No.4 was working as Agent of the other respondents/opposite parties, who approached him to sell the insurance scheme. He was told by that opposite party that he should deposit Rs.3,00,000/- in one go and his life will be insured till the period the said amount shall remain deposited with the opposite parties in the shape of fixed deposit. On that representation, he purchased two polices for Rs.3,00,000/- each; one for himself and one for his wife, First Appeal No.1787 of 2011. 3 Sukhwant Kaur. At that time opposite party No.4 made it very clear to him that no further amount would have to be paid by him in future and two vouchers dated 14.2.2009 in receipt of the sums of Rs.3,00,000/- each were issued to him by that opposite party. At that time the signatures of his wife, Sukhwant Kaur, were obtained by that opposite party on two blank copies of this Scheme and those were supposed to be filled afterwards at the instance of opposite party No.3. On 20.2.2009 opposite party No.4 again came to his house and told him that in case he deposits Rs.3,00,000/- each in respect of both the polices, then the insurance policy would continue upto 10 years and he would get Rs.75,00,000/- after maturity period for each policy. He told that opposite party that he was just a farmer and it was not possible for him to deposit Rs.6,00,000/- per year for both the policies. Thereafter he was told to keep the said deposits by continuing with the insurance policies so disclosed and that he would get the consequential benefits after the expiry of the fixed period. Thereafter he became suspicious and after making enquiries from his own source chose to surrender the policy of his wife by writing letter dated 24.2.2009, which was served upon the opposite parties. On 20.3.2009 opposite party No.4 again came to his house and gave two books containing the policy terms, which were never disclosed to him and the factual position was also not disclosed by opposite party No.4. He approached opposite party No.3 and narrated the whole story and told the concerned officials that he cannot pay Rs.6,00,000/- per year and First Appeal No.1787 of 2011. 4 he was advised to surrender the policy by writing a letter to the opposite parties. Accordingly he sent letter dated 20.3.2009 with the request that the amount deposited by him be returned along with interest and that he was unable to continue with the policies. Thereafter he had been visiting opposite parties No. 3 and 4 time and again and every time he was assured that the amount paid by him would be returned. On 1.3.2011 when he approached the officials of opposite party No.3, he was asked to pay Rs.12,00,000/- along with interest and other charges for 2010-2011 for which the instalment of Rs.3,00,000/- had not been deposited by him. It was disclosed to him that he would get nothing in case he keeps the policies lapsed by not depositing the said amount. He told those officials that he had already surrendered those policies, vide letters dated 24.2.2009 and 20.3.2009. The act of the opposite parties in not returning the said amounts in spite of writing letters surrendering the policies amounts to deficiency in service and unfair trade practice on their part. On account of that he suffered mental pain, suffering and lost his time for which he is entitled to Rs.50,000/- as damages and is also entitled to Rs.10,000/- as costs of complaint. He is also entitled to the return of Rs.3,00,000/- along with interest at the rate of 12% per annum.
3. The complaint was contested by the opposite parties. Opposite parties No.1 to 3 filed a joint written reply in which they denied the averments made in the complaint. They pleaded that the complainant after thoroughly understanding the features, terms and conditions of First Appeal No.1787 of 2011. 5 Kotak Retirement Income Plan Life Insurance Cover agreed to purchase that Plan and himself provided them duly filled up proposal form No.1516890 in respect of his wife, Sukhwant Kaur. He was explained the benefit illustration which provides the customer with the projected increase in the value of the investment at 6% and 10% subject to the terms and conditions of the Plan. Policy No.1516890 dated 18.3.2009 was duly issued in the name of the wife of the complainant and the documents containing the terms and conditions along with the policy were despatched to him. As per the terms and conditions of the said policies and IRDA (Protection of Policyholders Interests) Regulations, 2002, the complainant was entitled to seek the cancellation thereof within a period of 15 days from the date of receipt thereof in case of his disagreement with any of the terms and conditions. He never approached them for the cancellation thereof under the said 'free look' provision and, as such, is estopped from raising the issues by way of this complaint. The policy was issued on 18.3.2009 and, as such, the complaint is barred by limitation. The delay has not been adequately explained by the complainant. It is very much clear from the averments made in the complaint that the entire transaction was carried out with the intention of gaining commercial benefits and, as such, the subject-matter of the complaint falls outside the purview of the Act and deserves to be dismissed on that ground. They also pleaded that several allegations have been made against First Appeal No.1787 of 2011. 6 their employees, who have not been impleaded and, as such, the complaint is bad for their non-joinder.
4. Opposite party No.4 in his written reply denied the averments made against him in the complaint and contended that all the terms and conditions and plans were read over and explained to the complainant, who after admitting the same to be true and correct got two policies of Rs.3,00,000/- each from the other opposite parties. At that time he was Deputy Manager on monthly salary basis of sister concern of other opposite parties and had deposited the whole of the amount of both the policies with those opposite parties. He left the job and thereafter has no liability of any nature in respect of those opposite parties. The complainant had voluntarily got the insurance policies and never deposited the amounts in the shape of fixed deposits. It is the complainant who approached him and he never visited his house. It is only the other opposite parties, who could pay the amount of the policies to the complainant.
5. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the complainant that from the oral and documentary evidence produced by the complainant, First Appeal No.1787 of 2011. 7 it stands proved that he was cheated by opposite party No.4 and under the guise of the fixed deposit receipts got issued insurance policies and after the issuance of those insurance policies the complainant exercised his option within the prescribed period for the cancellation thereof. The sum of Rs.3,00,000/- was got deposited from him on 14.2.2009 on the false representation of opposite party No.4 that the amount was to be paid only once and he would be given all the benefits. Even before the insurance policy was issued letter was written by the complainant on 24.2.2009 for surrendering the policy but opposite parties No.1 to 3 in connivance with opposite party No.4 cleverly filled up the blank proposal form by putting the date 27.2.2009 and issued the policy on that date. From the evidence, it also stands proved that on 20.3.2009 second letter was written by the complainant for the cancellation of the policy. Therefore, the opposite parties were to refund the sum of Rs.3,00,000/-, along with interest and besides that they are liable to pay compensation for the unfair trade practice on their part. According to him, all the directions, as prayed for in the complaint, are to be issued to the opposite parties.
8. On the other hand, it was submitted by learned counsel for opposite parties No.1 to 3 that it is the complainant, who is to be blamed and no such blame can be placed upon opposite parties No.1, 2 and 3. From the very beginning the complainant was trying to manipulate the evidence. The wife of complainant had filled up the proposal form on 27.2.2009 and, as such, there was no question of First Appeal No.1787 of 2011. 8 writing letter dated 24.2.2009 that the insurance policies be cancelled. It was in view of the request made by him, in the proposal form, the contents of which were admitted by him to be correct, that the insurance policy was issued and he failed to exercise his option during the "free look" period for getting that policy cancelled. Therefore, the District Forum did not commit any illegality by dismissing the complaint. The complainant is neither entitled to the refund of the sum of Rs.3,00,000/- nor is entitled to any such compensation etc.
9. The complainant substantiated his averments as made in the complaint by means of his affidavit Ex.C-1. He also produced documentary evidence for proving that first he had written letter dated 24.2.2009 Ex.C-5 to the opposite parties for surrendering of the insurance policy plans and second letter dated 20.3.2009 after the insurance policies had been issued, for the cancellation thereof. He had written that letter within the "free look" period. On the other hand, the opposite parties have relied upon the proposal form Ex.R-1, which is dated 27.2.2009 and purports to bear the signatures of Sukhwant Kaur, wife of the complainant and the letter dated 17.3.2009 Ex.R-3 asking the complainant that in case it was not agreeable to any of the provisions stated in the policy, he had the option of returning the policy within 15 days.
10. In the appeal by way of additional evidence the complainant proved on record Policy Deposit Receipt Ex.C-7, vide which a sum of Rs.3,00,000/- was deposited by him with opposite parties No.1 to 3 on First Appeal No.1787 of 2011. 9 14.2.2009 on behalf of his wife Sukhwant Kaur. It is mentioned in this receipt itself that the name of the Plan was "Kotak Safe Investment Plan II". Once the deposit was made by the complainant for that Plan, the same could have been invested by the opposite parties only in that Plan. According to the opposite parties, the insurance policy was issued in the name of the wife of the complainant on 27.2.2009 and the same was proved by them on the record as Ex.R-2. The complainant has himself proved on record that insurance policy is Ex.C-2. The amount, which was required to be invested in the above said Plan, as is apparent from this insurance policy, was invested in "Kotak Retirement Income Plan Without Cover". How the opposite parties could have done the same on their own without any request by the complainant? No doubt, in the proposal form Ex.R-1 the said Plan has been mentioned but from the cogent and convincing evidence produced by the complainant, it stands proved that signatures of his wife, Sukhwant Kaur, were obtained on blank forms. As per the averments made in the complaint, which were proved by the complainant by means of his affidavit Ex.C1, he entertained a doubt about the benefits of the insurance policies on the repeated visits of opposite party No.4, who had been coming up with the proposal of different Plans. When that suspicion arose, the complainant had written letter Ex.C-5 to the opposite parties on 24.2.2009 and sent the same through certificate of posting Ex.C-3. In this letter he had stated that same facts, which have been averred by him in the complaint. In First Appeal No.1787 of 2011. 10 spite of that letter the insurance policies were issued by opposite parties No.1 to 3 in respect of a different Plan. Even after the issuance of those policies the complainant had not remained silent as he wrote second letter dated 20.3.2009 Ex.C-6, which was sent to the opposite parties under the Certificate of Posting Ex.C-4. By reiterating the same facts he specifically mentioned in the letter that he is surrendering both the policies and the amount of Rs.3,00,000/- each be returned to him. If opposite parties No.1 to 3 were not to take any action on that letter, then what was the fun of writing the letter dated 17.3.2009 Ex.R-3, vide which the complainant was given the option for returning policy during the "free look" period of 15 days. After the receipt of that letter the opposite parties were bound to return money so received from the complainant. They failed to do so. This act on the part of the opposite parties No.1 to 3 not only amounts to deficiency in service on their part but also amounts to unfair trade practice. The act of opposite parties No.1 to 3 in issuing the policy for a different Plan than applied for is highly deplorable and that is to be kept in mind by this Commission while assessing the amount to be awarded to the complainant as compensation. Opposite parties No.1 to 3 retained the money of the complainant even after he had written letter dated 20.3.2009 for returning his amount. So, they are liable to pay interest on that amount with effect from that date.
11. In view of the above discussion, this appeal is allowed. The order of the District Forum is set aside and following directions are First Appeal No.1787 of 2011. 11 issued to opposite parties No.1 to 3, which they are to comply with within the period of 30 days from the date of receipt of a copy of this order:-
(i) to return the sum of Rs.3,00,000/- to the complainant along with interest at the rate of 9% per annum from 20.3.2009 till the date of payment;
(ii) to pay a compensation of Rs.30,000/-;
(iii) to pay Rs.11,000/- as costs of litigation.
12. The arguments in this case were heard on 5.8.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT August 08, 2013 (BALDEV SINGH SEKHON) Bansal MEMBER STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1787 of 2011
Date of institution : 06.12.2011
Date of decision : 08.08.2013
Rajinder Singh s/o Pargat Singh, resident of Village Kumbhra, Tehsil Amloh, District Fatehgarh Sahib.
.......Appellant-Complainant Versus
1. Kotak Mahindra, Old Mutual Life Insurance Limited through its Incharge, Central Processing Centre, 8th Floor Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
2. Kotak Mahindra Old Mutual Life Insurance Limited (Regd. Office) through its Incharge Central Processing Centre, 9th Floor, Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
3. Kotak Mahindra Old Mutual Life Insurance Limited, Purewal Tower, G.T. Road, Khanna, District Ludhiana through its Incharge/Manager.
4. Shri Davinder Singh, Agent, C/o Kotak Mahindra Bank Ltd., Amloh, District Fatehgarh Sahib.
......Respondents- Opposite Parties First Appeal against the order dated 12.9.2011 of the District Consumer Disputes Redressal Forum, Fatehgarh Sahib.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.First Appeal No.1787 of 2011. 2
Present:-
For the appellant : Shri Vinod K. Sharma, Advocate. For respondents No.1-3 : Shri Mrigank Sharma, Advocate.
For respondent No.4 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Rajinder Singh, has preferred this appeal against the order dated 12.9.2011 passed by District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") for issuance of the following directions to the respondents/opposite parties, was dismissed:-
(i) to return Rs.3,00,000/- along with interest at the rate of 12% per annum;
(ii) to pay Rs.50,000/- for mental pain, sufferings and loss of time;
(iii) to pay Rs.10,000/- as cost of the complaint.
2. The complainant averred in his complaint that Davinder Singh, respondent No.4/opposite party No.4 was working as Agent of the other respondents/opposite parties, who approached him to sell the insurance scheme. He was told by that opposite party that he should deposit Rs.3,00,000/- in one go and his life will be insured till the period the said amount shall remain deposited with the opposite parties in the shape of fixed deposit. On that representation, he purchased two polices for Rs.3,00,000/- each; one for himself and one for his wife, First Appeal No.1787 of 2011. 3 Sukhwant Kaur. At that time opposite party No.4 made it very clear to him that no further amount would have to be paid by him in future and two vouchers dated 14.2.2009 in receipt of the sums of Rs.3,00,000/- each were issued to him by that opposite party. At that time the signatures of his wife, Sukhwant Kaur, were obtained by that opposite party on two blank copies of this Scheme and those were supposed to be filled afterwards at the instance of opposite party No.3. On 20.2.2009 opposite party No.4 again came to his house and told him that in case he deposits Rs.3,00,000/- each in respect of both the polices, then the insurance policy would continue upto 10 years and he would get Rs.75,00,000/- after maturity period for each policy. He told that opposite party that he was just a farmer and it was not possible for him to deposit Rs.6,00,000/- per year for both the policies. Thereafter he was told to keep the said deposits by continuing with the insurance policies so disclosed and that he would get the consequential benefits after the expiry of the fixed period. Thereafter he became suspicious and after making enquiries from his own source chose to surrender the policy of his wife by writing letter dated 24.2.2009, which was served upon the opposite parties. On 20.3.2009 opposite party No.4 again came to his house and gave two books containing the policy terms, which were never disclosed to him and the factual position was also not disclosed by opposite party No.4. He approached opposite party No.3 and narrated the whole story and told the concerned officials that he cannot pay Rs.6,00,000/- per year and First Appeal No.1787 of 2011. 4 he was advised to surrender the policy by writing a letter to the opposite parties. Accordingly he sent letter dated 20.3.2009 with the request that the amount deposited by him be returned along with interest and that he was unable to continue with the policies. Thereafter he had been visiting opposite parties No. 3 and 4 time and again and every time he was assured that the amount paid by him would be returned. On 1.3.2011 when he approached the officials of opposite party No.3, he was asked to pay Rs.12,00,000/- along with interest and other charges for 2010-2011 for which the instalment of Rs.3,00,000/- had not been deposited by him. It was disclosed to him that he would get nothing in case he keeps the policies lapsed by not depositing the said amount. He told those officials that he had already surrendered those policies, vide letters dated 24.2.2009 and 20.3.2009. The act of the opposite parties in not returning the said amounts in spite of writing letters surrendering the policies amounts to deficiency in service and unfair trade practice on their part. On account of that he suffered mental pain, suffering and lost his time for which he is entitled to Rs.50,000/- as damages and is also entitled to Rs.10,000/- as costs of complaint. He is also entitled to the return of Rs.3,00,000/- along with interest at the rate of 12% per annum.
3. The complaint was contested by the opposite parties. Opposite parties No.1 to 3 filed a joint written reply in which they denied the averments made in the complaint. They pleaded that the complainant after thoroughly understanding the features, terms and conditions of First Appeal No.1787 of 2011. 5 Kotak Retirement Income Plan Life Insurance Cover agreed to purchase that Plan and himself provided them duly filled up proposal form No.1516890 in respect of his wife, Sukhwant Kaur. He was explained the benefit illustration which provides the customer with the projected increase in the value of the investment at 6% and 10% subject to the terms and conditions of the Plan. Policy No.1516890 dated 18.3.2009 was duly issued in the name of the wife of the complainant and the documents containing the terms and conditions along with the policy were despatched to him. As per the terms and conditions of the said policies and IRDA (Protection of Policyholders Interests) Regulations, 2002, the complainant was entitled to seek the cancellation thereof within a period of 15 days from the date of receipt thereof in case of his disagreement with any of the terms and conditions. He never approached them for the cancellation thereof under the said 'free look' provision and, as such, is estopped from raising the issues by way of this complaint. The policy was issued on 18.3.2009 and, as such, the complaint is barred by limitation. The delay has not been adequately explained by the complainant. It is very much clear from the averments made in the complaint that the entire transaction was carried out with the intention of gaining commercial benefits and, as such, the subject-matter of the complaint falls outside the purview of the Act and deserves to be dismissed on that ground. They also pleaded that several allegations have been made against First Appeal No.1787 of 2011. 6 their employees, who have not been impleaded and, as such, the complaint is bad for their non-joinder.
4. Opposite party No.4 in his written reply denied the averments made against him in the complaint and contended that all the terms and conditions and plans were read over and explained to the complainant, who after admitting the same to be true and correct got two policies of Rs.3,00,000/- each from the other opposite parties. At that time he was Deputy Manager on monthly salary basis of sister concern of other opposite parties and had deposited the whole of the amount of both the policies with those opposite parties. He left the job and thereafter has no liability of any nature in respect of those opposite parties. The complainant had voluntarily got the insurance policies and never deposited the amounts in the shape of fixed deposits. It is the complainant who approached him and he never visited his house. It is only the other opposite parties, who could pay the amount of the policies to the complainant.
5. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the complainant that from the oral and documentary evidence produced by the complainant, First Appeal No.1787 of 2011. 7 it stands proved that he was cheated by opposite party No.4 and under the guise of the fixed deposit receipts got issued insurance policies and after the issuance of those insurance policies the complainant exercised his option within the prescribed period for the cancellation thereof. The sum of Rs.3,00,000/- was got deposited from him on 14.2.2009 on the false representation of opposite party No.4 that the amount was to be paid only once and he would be given all the benefits. Even before the insurance policy was issued letter was written by the complainant on 24.2.2009 for surrendering the policy but opposite parties No.1 to 3 in connivance with opposite party No.4 cleverly filled up the blank proposal form by putting the date 27.2.2009 and issued the policy on that date. From the evidence, it also stands proved that on 20.3.2009 second letter was written by the complainant for the cancellation of the policy. Therefore, the opposite parties were to refund the sum of Rs.3,00,000/-, along with interest and besides that they are liable to pay compensation for the unfair trade practice on their part. According to him, all the directions, as prayed for in the complaint, are to be issued to the opposite parties.
8. On the other hand, it was submitted by learned counsel for opposite parties No.1 to 3 that it is the complainant, who is to be blamed and no such blame can be placed upon opposite parties No.1, 2 and 3. From the very beginning the complainant was trying to manipulate the evidence. The wife of complainant had filled up the proposal form on 27.2.2009 and, as such, there was no question of First Appeal No.1787 of 2011. 8 writing letter dated 24.2.2009 that the insurance policies be cancelled. It was in view of the request made by him, in the proposal form, the contents of which were admitted by him to be correct, that the insurance policy was issued and he failed to exercise his option during the "free look" period for getting that policy cancelled. Therefore, the District Forum did not commit any illegality by dismissing the complaint. The complainant is neither entitled to the refund of the sum of Rs.3,00,000/- nor is entitled to any such compensation etc.
9. The complainant substantiated his averments as made in the complaint by means of his affidavit Ex.C-1. He also produced documentary evidence for proving that first he had written letter dated 24.2.2009 Ex.C-5 to the opposite parties for surrendering of the insurance policy plans and second letter dated 20.3.2009 after the insurance policies had been issued, for the cancellation thereof. He had written that letter within the "free look" period. On the other hand, the opposite parties have relied upon the proposal form Ex.R-1, which is dated 27.2.2009 and purports to bear the signatures of Sukhwant Kaur, wife of the complainant and the letter dated 17.3.2009 Ex.R-3 asking the complainant that in case it was not agreeable to any of the provisions stated in the policy, he had the option of returning the policy within 15 days.
10. In the appeal by way of additional evidence the complainant proved on record Policy Deposit Receipt Ex.C-7, vide which a sum of Rs.3,00,000/- was deposited by him with opposite parties No.1 to 3 on First Appeal No.1787 of 2011. 9 14.2.2009 on behalf of his wife Sukhwant Kaur. It is mentioned in this receipt itself that the name of the Plan was "Kotak Safe Investment Plan II". Once the deposit was made by the complainant for that Plan, the same could have been invested by the opposite parties only in that Plan. According to the opposite parties, the insurance policy was issued in the name of the wife of the complainant on 27.2.2009 and the same was proved by them on the record as Ex.R-2. The complainant has himself proved on record that insurance policy is Ex.C-2. The amount, which was required to be invested in the above said Plan, as is apparent from this insurance policy, was invested in "Kotak Retirement Income Plan Without Cover". How the opposite parties could have done the same on their own without any request by the complainant? No doubt, in the proposal form Ex.R-1 the said Plan has been mentioned but from the cogent and convincing evidence produced by the complainant, it stands proved that signatures of his wife, Sukhwant Kaur, were obtained on blank forms. As per the averments made in the complaint, which were proved by the complainant by means of his affidavit Ex.C1, he entertained a doubt about the benefits of the insurance policies on the repeated visits of opposite party No.4, who had been coming up with the proposal of different Plans. When that suspicion arose, the complainant had written letter Ex.C-5 to the opposite parties on 24.2.2009 and sent the same through certificate of posting Ex.C-3. In this letter he had stated that same facts, which have been averred by him in the complaint. In First Appeal No.1787 of 2011. 10 spite of that letter the insurance policies were issued by opposite parties No.1 to 3 in respect of a different Plan. Even after the issuance of those policies the complainant had not remained silent as he wrote second letter dated 20.3.2009 Ex.C-6, which was sent to the opposite parties under the Certificate of Posting Ex.C-4. By reiterating the same facts he specifically mentioned in the letter that he is surrendering both the policies and the amount of Rs.3,00,000/- each be returned to him. If opposite parties No.1 to 3 were not to take any action on that letter, then what was the fun of writing the letter dated 17.3.2009 Ex.R-3, vide which the complainant was given the option for returning policy during the "free look" period of 15 days. After the receipt of that letter the opposite parties were bound to return money so received from the complainant. They failed to do so. This act on the part of the opposite parties No.1 to 3 not only amounts to deficiency in service on their part but also amounts to unfair trade practice. The act of opposite parties No.1 to 3 in issuing the policy for a different Plan than applied for is highly deplorable and that is to be kept in mind by this Commission while assessing the amount to be awarded to the complainant as compensation. Opposite parties No.1 to 3 retained the money of the complainant even after he had written letter dated 20.3.2009 for returning his amount. So, they are liable to pay interest on that amount with effect from that date.
11. In view of the above discussion, this appeal is allowed. The order of the District Forum is set aside and following directions are First Appeal No.1787 of 2011. 11 issued to opposite parties No.1 to 3, which they are to comply with within the period of 30 days from the date of receipt of a copy of this order:-
(i) to return the sum of Rs.3,00,000/- to the complainant along with interest at the rate of 9% per annum from 20.3.2009 till the date of payment;
(ii) to pay a compensation of Rs.30,000/-;
(iii) to pay Rs.11,000/- as costs of litigation.
12. The arguments in this case were heard on 5.8.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT August 08, 2013 (BALDEV SINGH SEKHON) Bansal MEMBER STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1787 of 2011
Date of institution : 06.12.2011
Date of decision : 08.08.2013
Rajinder Singh s/o Pargat Singh, resident of Village Kumbhra, Tehsil Amloh, District Fatehgarh Sahib.
.......Appellant-Complainant Versus
1. Kotak Mahindra, Old Mutual Life Insurance Limited through its Incharge, Central Processing Centre, 8th Floor Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
2. Kotak Mahindra Old Mutual Life Insurance Limited (Regd. Office) through its Incharge Central Processing Centre, 9th Floor, Godrej Coliseum, Behind Everard Nagar, Soin (East), Mumbai 400 022.
3. Kotak Mahindra Old Mutual Life Insurance Limited, Purewal Tower, G.T. Road, Khanna, District Ludhiana through its Incharge/Manager.
4. Shri Davinder Singh, Agent, C/o Kotak Mahindra Bank Ltd., Amloh, District Fatehgarh Sahib.
......Respondents- Opposite Parties First Appeal against the order dated 12.9.2011 of the District Consumer Disputes Redressal Forum, Fatehgarh Sahib.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.First Appeal No.1787 of 2011. 2
Present:-
For the appellant : Shri Vinod K. Sharma, Advocate. For respondents No.1-3 : Shri Mrigank Sharma, Advocate.
For respondent No.4 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Rajinder Singh, has preferred this appeal against the order dated 12.9.2011 passed by District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") for issuance of the following directions to the respondents/opposite parties, was dismissed:-
(i) to return Rs.3,00,000/- along with interest at the rate of 12% per annum;
(ii) to pay Rs.50,000/- for mental pain, sufferings and loss of time;
(iii) to pay Rs.10,000/- as cost of the complaint.
2. The complainant averred in his complaint that Davinder Singh, respondent No.4/opposite party No.4 was working as Agent of the other respondents/opposite parties, who approached him to sell the insurance scheme. He was told by that opposite party that he should deposit Rs.3,00,000/- in one go and his life will be insured till the period the said amount shall remain deposited with the opposite parties in the shape of fixed deposit. On that representation, he purchased two polices for Rs.3,00,000/- each; one for himself and one for his wife, First Appeal No.1787 of 2011. 3 Sukhwant Kaur. At that time opposite party No.4 made it very clear to him that no further amount would have to be paid by him in future and two vouchers dated 14.2.2009 in receipt of the sums of Rs.3,00,000/- each were issued to him by that opposite party. At that time the signatures of his wife, Sukhwant Kaur, were obtained by that opposite party on two blank copies of this Scheme and those were supposed to be filled afterwards at the instance of opposite party No.3. On 20.2.2009 opposite party No.4 again came to his house and told him that in case he deposits Rs.3,00,000/- each in respect of both the polices, then the insurance policy would continue upto 10 years and he would get Rs.75,00,000/- after maturity period for each policy. He told that opposite party that he was just a farmer and it was not possible for him to deposit Rs.6,00,000/- per year for both the policies. Thereafter he was told to keep the said deposits by continuing with the insurance policies so disclosed and that he would get the consequential benefits after the expiry of the fixed period. Thereafter he became suspicious and after making enquiries from his own source chose to surrender the policy of his wife by writing letter dated 24.2.2009, which was served upon the opposite parties. On 20.3.2009 opposite party No.4 again came to his house and gave two books containing the policy terms, which were never disclosed to him and the factual position was also not disclosed by opposite party No.4. He approached opposite party No.3 and narrated the whole story and told the concerned officials that he cannot pay Rs.6,00,000/- per year and First Appeal No.1787 of 2011. 4 he was advised to surrender the policy by writing a letter to the opposite parties. Accordingly he sent letter dated 20.3.2009 with the request that the amount deposited by him be returned along with interest and that he was unable to continue with the policies. Thereafter he had been visiting opposite parties No. 3 and 4 time and again and every time he was assured that the amount paid by him would be returned. On 1.3.2011 when he approached the officials of opposite party No.3, he was asked to pay Rs.12,00,000/- along with interest and other charges for 2010-2011 for which the instalment of Rs.3,00,000/- had not been deposited by him. It was disclosed to him that he would get nothing in case he keeps the policies lapsed by not depositing the said amount. He told those officials that he had already surrendered those policies, vide letters dated 24.2.2009 and 20.3.2009. The act of the opposite parties in not returning the said amounts in spite of writing letters surrendering the policies amounts to deficiency in service and unfair trade practice on their part. On account of that he suffered mental pain, suffering and lost his time for which he is entitled to Rs.50,000/- as damages and is also entitled to Rs.10,000/- as costs of complaint. He is also entitled to the return of Rs.3,00,000/- along with interest at the rate of 12% per annum.
3. The complaint was contested by the opposite parties. Opposite parties No.1 to 3 filed a joint written reply in which they denied the averments made in the complaint. They pleaded that the complainant after thoroughly understanding the features, terms and conditions of First Appeal No.1787 of 2011. 5 Kotak Retirement Income Plan Life Insurance Cover agreed to purchase that Plan and himself provided them duly filled up proposal form No.1516890 in respect of his wife, Sukhwant Kaur. He was explained the benefit illustration which provides the customer with the projected increase in the value of the investment at 6% and 10% subject to the terms and conditions of the Plan. Policy No.1516890 dated 18.3.2009 was duly issued in the name of the wife of the complainant and the documents containing the terms and conditions along with the policy were despatched to him. As per the terms and conditions of the said policies and IRDA (Protection of Policyholders Interests) Regulations, 2002, the complainant was entitled to seek the cancellation thereof within a period of 15 days from the date of receipt thereof in case of his disagreement with any of the terms and conditions. He never approached them for the cancellation thereof under the said 'free look' provision and, as such, is estopped from raising the issues by way of this complaint. The policy was issued on 18.3.2009 and, as such, the complaint is barred by limitation. The delay has not been adequately explained by the complainant. It is very much clear from the averments made in the complaint that the entire transaction was carried out with the intention of gaining commercial benefits and, as such, the subject-matter of the complaint falls outside the purview of the Act and deserves to be dismissed on that ground. They also pleaded that several allegations have been made against First Appeal No.1787 of 2011. 6 their employees, who have not been impleaded and, as such, the complaint is bad for their non-joinder.
4. Opposite party No.4 in his written reply denied the averments made against him in the complaint and contended that all the terms and conditions and plans were read over and explained to the complainant, who after admitting the same to be true and correct got two policies of Rs.3,00,000/- each from the other opposite parties. At that time he was Deputy Manager on monthly salary basis of sister concern of other opposite parties and had deposited the whole of the amount of both the policies with those opposite parties. He left the job and thereafter has no liability of any nature in respect of those opposite parties. The complainant had voluntarily got the insurance policies and never deposited the amounts in the shape of fixed deposits. It is the complainant who approached him and he never visited his house. It is only the other opposite parties, who could pay the amount of the policies to the complainant.
5. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the complainant that from the oral and documentary evidence produced by the complainant, First Appeal No.1787 of 2011. 7 it stands proved that he was cheated by opposite party No.4 and under the guise of the fixed deposit receipts got issued insurance policies and after the issuance of those insurance policies the complainant exercised his option within the prescribed period for the cancellation thereof. The sum of Rs.3,00,000/- was got deposited from him on 14.2.2009 on the false representation of opposite party No.4 that the amount was to be paid only once and he would be given all the benefits. Even before the insurance policy was issued letter was written by the complainant on 24.2.2009 for surrendering the policy but opposite parties No.1 to 3 in connivance with opposite party No.4 cleverly filled up the blank proposal form by putting the date 27.2.2009 and issued the policy on that date. From the evidence, it also stands proved that on 20.3.2009 second letter was written by the complainant for the cancellation of the policy. Therefore, the opposite parties were to refund the sum of Rs.3,00,000/-, along with interest and besides that they are liable to pay compensation for the unfair trade practice on their part. According to him, all the directions, as prayed for in the complaint, are to be issued to the opposite parties.
8. On the other hand, it was submitted by learned counsel for opposite parties No.1 to 3 that it is the complainant, who is to be blamed and no such blame can be placed upon opposite parties No.1, 2 and 3. From the very beginning the complainant was trying to manipulate the evidence. The wife of complainant had filled up the proposal form on 27.2.2009 and, as such, there was no question of First Appeal No.1787 of 2011. 8 writing letter dated 24.2.2009 that the insurance policies be cancelled. It was in view of the request made by him, in the proposal form, the contents of which were admitted by him to be correct, that the insurance policy was issued and he failed to exercise his option during the "free look" period for getting that policy cancelled. Therefore, the District Forum did not commit any illegality by dismissing the complaint. The complainant is neither entitled to the refund of the sum of Rs.3,00,000/- nor is entitled to any such compensation etc.
9. The complainant substantiated his averments as made in the complaint by means of his affidavit Ex.C-1. He also produced documentary evidence for proving that first he had written letter dated 24.2.2009 Ex.C-5 to the opposite parties for surrendering of the insurance policy plans and second letter dated 20.3.2009 after the insurance policies had been issued, for the cancellation thereof. He had written that letter within the "free look" period. On the other hand, the opposite parties have relied upon the proposal form Ex.R-1, which is dated 27.2.2009 and purports to bear the signatures of Sukhwant Kaur, wife of the complainant and the letter dated 17.3.2009 Ex.R-3 asking the complainant that in case it was not agreeable to any of the provisions stated in the policy, he had the option of returning the policy within 15 days.
10. In the appeal by way of additional evidence the complainant proved on record Policy Deposit Receipt Ex.C-7, vide which a sum of Rs.3,00,000/- was deposited by him with opposite parties No.1 to 3 on First Appeal No.1787 of 2011. 9 14.2.2009 on behalf of his wife Sukhwant Kaur. It is mentioned in this receipt itself that the name of the Plan was "Kotak Safe Investment Plan II". Once the deposit was made by the complainant for that Plan, the same could have been invested by the opposite parties only in that Plan. According to the opposite parties, the insurance policy was issued in the name of the wife of the complainant on 27.2.2009 and the same was proved by them on the record as Ex.R-2. The complainant has himself proved on record that insurance policy is Ex.C-2. The amount, which was required to be invested in the above said Plan, as is apparent from this insurance policy, was invested in "Kotak Retirement Income Plan Without Cover". How the opposite parties could have done the same on their own without any request by the complainant? No doubt, in the proposal form Ex.R-1 the said Plan has been mentioned but from the cogent and convincing evidence produced by the complainant, it stands proved that signatures of his wife, Sukhwant Kaur, were obtained on blank forms. As per the averments made in the complaint, which were proved by the complainant by means of his affidavit Ex.C1, he entertained a doubt about the benefits of the insurance policies on the repeated visits of opposite party No.4, who had been coming up with the proposal of different Plans. When that suspicion arose, the complainant had written letter Ex.C-5 to the opposite parties on 24.2.2009 and sent the same through certificate of posting Ex.C-3. In this letter he had stated that same facts, which have been averred by him in the complaint. In First Appeal No.1787 of 2011. 10 spite of that letter the insurance policies were issued by opposite parties No.1 to 3 in respect of a different Plan. Even after the issuance of those policies the complainant had not remained silent as he wrote second letter dated 20.3.2009 Ex.C-6, which was sent to the opposite parties under the Certificate of Posting Ex.C-4. By reiterating the same facts he specifically mentioned in the letter that he is surrendering both the policies and the amount of Rs.3,00,000/- each be returned to him. If opposite parties No.1 to 3 were not to take any action on that letter, then what was the fun of writing the letter dated 17.3.2009 Ex.R-3, vide which the complainant was given the option for returning policy during the "free look" period of 15 days. After the receipt of that letter the opposite parties were bound to return money so received from the complainant. They failed to do so. This act on the part of the opposite parties No.1 to 3 not only amounts to deficiency in service on their part but also amounts to unfair trade practice. The act of opposite parties No.1 to 3 in issuing the policy for a different Plan than applied for is highly deplorable and that is to be kept in mind by this Commission while assessing the amount to be awarded to the complainant as compensation. Opposite parties No.1 to 3 retained the money of the complainant even after he had written letter dated 20.3.2009 for returning his amount. So, they are liable to pay interest on that amount with effect from that date.
11. In view of the above discussion, this appeal is allowed. The order of the District Forum is set aside and following directions are First Appeal No.1787 of 2011. 11 issued to opposite parties No.1 to 3, which they are to comply with within the period of 30 days from the date of receipt of a copy of this order:-
(i) to return the sum of Rs.3,00,000/- to the complainant along with interest at the rate of 9% per annum from 20.3.2009 till the date of payment;
(ii) to pay a compensation of Rs.30,000/-;
(iii) to pay Rs.11,000/- as costs of litigation.
12. The arguments in this case were heard on 5.8.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT August 08, 2013 (BALDEV SINGH SEKHON) Bansal MEMBER