District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
Surya Sen Sarani Municipal Building, 1st Floor, Balurghat Dakshin Dinajpur Pin – 733101.
Telefax: 03522-270013
Present
Sri B. Niyogi – President
Sri S. K. Ghosh – Member
Miss. Swapna Saha – Member
Consumer Complaint No. 13/2009
Smt. Rita Mahato.
W/o.:Jatin Mahato.
Vill.: Cheail.
P.O.:Teor, P.S. :Balurghat,
Dist. Dakshin Dinajpur …………………………Complainant
V-E-R-S-U-S
1.
The Branch Manager,
Bajaj Allianz Life Insurance Co. Ltd.,
Branch Office -Kol, G & A.; Macmet House,4th Floor,
10-B, O.C. Ganguli Sarani, Kolkata-700020.
2.
Branch Manager,
Bajaj Allianz Life Insurance Co. Ltd., Branch Office-Balurghat
House of Bablu Kundu (1st Floor),
Opposite of Town Club – Market,
PS.: Balurghat,
Dist. Dakshin Dinajpur ………………………Opposite Party(s)
For the complainant ……………… – Sri Palash Ch. Sarkar, Ld. Adv.
For the OPs …………………… – Sri Debasish Karmakar, Ld. Adv.
- & Sri Samit Bhowmick , Ld. Adv.
Date of Filing : 20.04.2009
Date of Disposal : 29.07.2009
Judgement & Order dt. 29.07.2009
Instant CC case bases upon a complaint u/s 12 C.P. Act brought by the complainant Smt. Rita Mahato on 20.4.2009 against the OPs who are, in fact, two officials of Bajaj Allianz Life Insurance Co. Ltd., alleging deficiency in service.
Complainant’s case as made out in the said complaint, in brief, is that she took from the Bajaj Allianz Life Insurance Co. Ltd. a policy bearing Policy No.0008058902. Basic sum assured under the policy is Rs.1,00,000/-. Date of the commencement of the policy was 7.3.2005 and the policy term is 15 years. As per the conditions of the policy 10% of basic sum assured i.e. Rs.10,000/- was payable to the complainant after the expiry of a period of three years from the date of commencement as the first survival benefit. Despite regular payment of insurance premia the said benefit was not paid to the complainant. Demand for payment of the said benefit laid by the complainant through her Advocate’s letter on 9.1.2009 proved abortive. In such premises the complainant brought the complaint praying for obtaining the payment of Rs.10,000/- as the first survival benefit, interest thereon @ 15% p.a. compensation of Rs.2,000/- and the costs of this proceeding.
The proceeding has been contested by the both the OPs. In fact, OP 2 – the Branch Manager, Balurghat Br. of the OP Ins. Co. presented a w.v. on 2.7.2009. Branch Manager, Kolkata Branch – the OP 1 under an application dt. 2.7.2009 adopted the said w.v. presented by the OP 2.
It has been the case of the OPs that after the expiry of a period of three years since the date of commencement of the policy the Ins. Co. issued an A/c payee cheque bearing No.037666 dt. 7.3.2008 for an amount of Rs.10,000/- favouring the complainant Rita Mahato and drawn on UTI Bank now known as Axis Bank. Following service of Lawyer’s notice issued from end of the complainant and the summons of this proceeding, the OP Ins. Co. enquired over the matter and was informed from the Axis Bank, Balurghat Branch that the concerned cheque had been encashed through the Indian Bank, Balurghat Branch. In response to the query made over the matter the Indian Bank Balurghat Branch under their letter dt.27.6.2009 informed the OPs that one Rita Mahato of Cheail had deposited the cheque in their bank and that such cheque had been cleared on 8.3.2008. As the Ins. Co. issued the cheque in the name of the complainant and the cheque was got encashed, the Ins. Co. cannot be said to be deficient in service and so the complaint warrants dismissal.
Now upon the pleadings of the sides following points come up for determination :-
Points
1.
Was there deficiency in service on the part of OP Ins. Co.?
2.
Is the complainant is entitled to the reliefs sought for by her?
Decision with reasons:
The complainant in support of her case examined herself as PW-1 and brought on record the original policy deed as Ext.1. She also annexed to her POC, amongst others, copies of two receipts of payment of premium as also the copy of her Advocate’s letter demanding payment of the benefit.
OPs, on the other hand, examined none but brought on record the copies of the cheque stated to have been issued by them towards the first survival benefit as Ext.-B and a certificate issued from the Indian Bank as to the clearing of the cheque as Ext.-A.
No other evidence was adduced in the case.
Let us now enter into the determination on the two points formulated above.
Point No.1
The policy deed brought on record by the complainant as Ext.1 purports that 10% of the basic sum assured i.e. an amount of Rs.10,000/- was due to be paid to the complainant after the completion of three years from the date of commencement of the policy as the first survival benefit. It is not in dispute in this case that the said amount of Rs.10,000/- was payable to the complainant on 7.3.2008. It has been the case of the OPs that they issued an A/c payee cheque for the said amount of Rs.10,000/- on 7.3.2008 favouring the complainant – Smt. Rita Mahato and that such cheque was ultimately encashed through Indian Bank, Balurghat Branch.
In the certificate dt. 27.6.2009 issued from the Balurghat Br. of Indian Bank brought on record by the OPs as Ext.-A it has been certified that one Mrs. Rita Mahato of village Cheail presented in the Balurghat Br. of Indian Bank a cheque bearing No.037666 dt. 7.3.2008 for an amount of Rs.10,000/- drawn on UTI Bank and that such cheque was later cleared on 8.3.2009.
The complainant Rita Mahato in course of her examination before the Forum as PW-1 stated that she does not have any A/c in the said Balurghat Br. of Indian Bank and further that in their village Cheail there has been another woman by the name of Rita Mahato.
Ld. Counsel appearing for the complainant urged that since it has been the case of the complainant that Ins. Co. has not paid the said survival benefit to her and since it has been testified by the complainant during her examination as PW-1 that she does not have any A/c in the said Balurghat Br. of Indian Bank and further that in their village Cheail there has been another woman by the name of Rita Mahato, the OPs were under an obligation to produce before this Forum the receipt as to the delivery of the cheque to show that the endorsement as to the receipt of the cheque was made on behalf of the complainant Rita Mahato and of none else. It was urged by him that since the OPs did not cause production of such endorsement as to the delivery of the cheque complainant’s testimony as to her not having received payment of the benefit has to be accepted to be true.
Bold contention advanced by the Ld. Counsel for the OPs, on the other hand, was that even though the complainant during her examination claimed that there has been another Rita Mahato in her village, she has neither examined such other Rita Mahato as a witness in this case nor has produced before this Forum any certificate issued from the Balurghat Branch of Indian Bank to the effect that she does not have any A/c in the said bank and that in the situation it should be inferred that the complainant herself got the cheque encashed.
We have carefully gone through the pleadings and evidence on record and have taken into consideration the said submissions advanced on behalf of the sides. We note that from the side of the OPs a suggestion was given to the complainant in course of her cross examination that she actually received the cheque issued from the Ins. Co. Such suggestion has been denied by the complainant. Despites such denial by the complainant, the OPs did not bring on record any documentary or other evidence to show that the said cheque had actually been delivered to the complainant. In fact, the OPs though stated in their w.v. that they issued an A/c payee cheqye in favour of the complainant, they are silent as to the manner in which such cheque was actually transmitted or delivered to the complainant. Such being the situation, here there is hardly any ground for disbelieving the claim of the complainant that she did not actually receive the cheque issued from the Ins. Co.
The complainant’s testimony that in their village Cheail there has been another woman by the name of Rita Mahato who happens to be the wife of one Nakul Mahato does not appear to have been challenged from sides of the OPs in course of their cross examination. Rather, from side of the OPs a suggestion was given to the complainant suggesting that the complainant got the cheque encashed having been in collusion with the said other Rita Mahato. It can, therefore, be inferred safely that in the village Cheail in which the complainant has her residence, there has been yet another woman by the name of Rita Mahato who happens to be the wife of one Nakul Mahato.
Consideration of the attending circumstances does not persuade us to view that the complainant was under an obligation to examine the said other Rita Mahato wife of Nakul Mahato as a witness from her side to prove that such other Rita Mahato wife of Nakul Mahato is or was also an inhabitant of village Cheail .
The OPs brought on record as Ext.-A – a certificate issued from Balurghat Br. of Indian Bank to show that the cheque was actually got encashed on 8.3.2008 through such bank by one Rita Mahato of village Cheail. But the Savings Bank A/c opening card enclosed to the said certificate goes to show that Rita Mahato by whom the cheque was got encashed was a person remaining under the care of one Nakul Mahato who, it has been testified by the complainant, has been her neighbour. As the certificate as Ext.-A goes to show the cheque was got encashed by “Rita Mahato C/o Nakul Mahato”, it should hardly be regarded that the cheque was encashed by the complainant Rita Mahato.
From the side of the OPs it was also suggested to the complainant during her cross examination that she got the cheque encashed having been in collusion with the said other Rita Mahato of village Cheail. Such suggestion has been denied. We have already observed that from the side of the OPs no documentary or other evidence has been brought on record to show that the cheque was actually delivered to the complainant. Under such situation we can very well accept the claim of the complainant that she had not got the cheque encashed either by herself or by her having been in collusion with the said other Rita Mahato wife of Nakul Mahato.
In the case of Unit Trust of India and Ors – vs- Kelki Devi and Ors reported in 1986 – 2007 Consumer 12120 (NC) Hon’ble National Commission while deciding a Revision Petition found that the Rev. Petnr. – UTI had issued an A/c payee cheque in the name of the husband of the respondent Kelki Devi and sent the said cheque through registered post towards payment of the maturity amount respecting a number of units of GMIS which had been purchased by the said Smt. Kelki Devi jointly with her husband. The A/D card respecting of the concerned registered postal articles was not received back at the end of the Rev. Petnr. Such cheque was later found to have been encashed through the Respondent No.2- Bank. Rev. Petnr. lodged FIR alleging fraudulent encashment of the cheque by the Respondent No.2 – Bank and Postmaster. The complaint brought before the District Forum by the said Smt. Kelki Devi was allowed directing the Rev. Petnr.- UTI to pay to Kelki Devi the said maturity amount, interest, compensation and costs. Revision Petitioner’s appeal before the Hon’ble State Commission was allowed in part deleting only the compensation and confirming the rest of the order of the District Forum. The Revision Petition before the Hon’ble National Commission against that the order of the State Commission was allowed only effecting a reduction in rate of interest and confirming the rest of the order of the State Commission. In that case in the back drop of situation virtually similar to that in the case in hand before us, the Hon’ble National Commission recorded in Paragraph-5 of the judgment an observation which goes as under.
“*** We heard both the parties and after perusing all the records and the orders passed by the lower Fora we find the arguments of the petitioners that they have no liability to pay is unacceptable by us. We find that the respondent – original complainant cannot be made to suffer on the lapses on the part of erring Opposite Parties – Unit Trust of India or Post Office or Bank, whether the cheques are lost during transit or they are encashed fraudulently by the Bank in collusion with some person, it is not the concern of the consumer to go after all these agencies to get their rightful money ***”.
The Hon’ble National Commission further went on to observe thereafter that the consumer would not suffer for the wrong encashment / fraud committed in the Bank.
Here in this case we have found that even though the OP Ins. Co. issued a cheque for the amount of benefit in the name of complainant – Rita Mahato such cheque was neither received by the complainant nor was got encashed by her (either by herself or by her having been in collusion with some other person). Such being the situation having kept in view the aforesaid decision of the Hon’ble National Commission, we think, bare issuance of the cheque by the OP Ins. Co. or the encashment of such cheque by some other person would not relieve the OP- Ins. Co. from the obligation of making payment to her the survival benefit. The failure on the part of OP Ins. Co. in making payment to the complainant the amount of benefit has to be regarded to have been a deficiency in service on the part of OPs.
We thus decide this Point No.1 in the affirmative holding that there has been deficiency in service on the part of OPs.
Point No.2
In view of our above determination on Point No.1 the complainant is entitled to get an amount of Rs.10,000/- being the amount of 1st survival benefit under the concerned Ins. policy.
Date of commencement of the policy was 7.3.2005. It is virtually not in dispute that the said survival benefit became payable on 7.3.2008. From a consideration of the attendant circumstances, we do not deem it proper to allow any amount as compensation but think it proper to allow the complainant to be paid interest @ 12% p.a. over the said amount of Rs,10,000/- w.e.f. 7.3.2008 and a sum of Rs.1,000/- as costs of this proceeding. Point No.2 is thus decided.
In the result the complaint succeeds in part.
It appears from the case record that the notice of this proceeding meant for the OPs were issued on 4.5.2009. Instant complaint is thus getting disposed of within the period of three months since issuance of notice to the OPs.
Under the circumstances, it is.
O R D E R E D
That the instant Consumer Complaint Case stands allowed in part on contest.
The OPs shall pay to the complainant within a period of 45 days from the service of copy of this order upon them a sum of Rs.10,000/- (Rs. Ten thousand) only towards the 1st survival benefit respecting the policy No.0008058902, interest thereon w.e.f. 7.3.2008 till actual payment @ Rs.12% p.a. and a sum of Rs.1,000/- (Rs. One thousand) only as costs of this proceeding.
In the event of non-compliance of this order or any part thereof, the complainant shall have the liberty to apply for putting such order in execution in accordance with law.
Let plain copies of this order be furnished to the parties forthwith free of cost.