IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 78/S/2010. DATED : 03.03.2011.
BEFORE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBERS : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT : ANJU AGARWAL,
C/O Mr. Sova Chand Agarwal,
Thirani Rice Mill Compound,
Babupara, Ward No.26,
P.O. & P.S.- Siliguri, Dist.- Darjeeling.
O.Ps. 1. STANDARD CHARTERED BANK,
144, Hill Cart Road,
P.O. & P.S.- Siliguri,
Dist.- Darjeeling.
2. BAJAJ ALLIANZ LIFE INSURANCE CO. LTD., Sevoke Road, City Plaza, 3rd Floor,
Opposite Payel Cinema Hall, Siliguri,
Dist.- Darjeeling.
3. PROSENJIT SENGUPTA,
Representative of the Bajaj Allianz Life Insurance Co. Ltd., Standard Chartered Bank,
144, Hill Cart Road, P.O. & P.S.- Siliguri,
Dist.- Darjeeling
FOR THE COMPLAINANT : Sri Monojit Roy, Advocate.
FOR THE OP No.1 : Sri Partha Choudhury, Advocate.
FOR THE OP No.2 : Sri Arun Bhattacharjee, Advocate.
J U D G E M E N T
This is an application under Section 11 & 12 of the Consumer Protection Act, 1986.
The case of the complainant in brief is that the OP No.1 is an Agent of the OP No.2 and offers a wide range of LIC Products from the OP No.2 which is a leading Insurance Company. The complainant purchased a LIC Policy of OP No.2 from the OP
No.1 being Policy No.0124854228 dated 28.03.09 of premium of Rs.1,50,000/-. That the complainant has accordingly paid the premium amount in connection with the said policy under Cheque No.126097 drawn on Axis Bank dated 03.03.09 amounting to Rs.1,50,000/-. The said amount was duly debited against the policy from the account of the complainant lying with the Axis Bank being No.035010100232456. As the complainant being dissatisfied with certain terms and conditions of the said policy surrendered the same to the OP No.1 under Free Look Cancellation of Policy on 11.04.09 as per instruction of the OP No.1 Original Policy Bond was also enclosed with the said letter requesting them for cancellation of the same. After receiving the said letter dated 11.04.09 the OP assured to cancel the policy and to refund the same. But after waiting for one week the complainant visited to the office of the OP No.1 several times for taking necessary steps. Subsequently on 11.04.09 when the OP No.1 did not take any effective measure to cancel the said policy bond and denied its liability the complainant lodged a complaint with the Assistant Director of Consumer Affairs & Fair Business Practices and several communications were made to resolve the dispute but to no hope. The complainant also intimated the entire matter to the OP No.2 under letter dated 15.02.10 by Registered Post with AD requesting them for cancellation of the policy bond under free look cancellation of policy. Accordingly, OP No.2 gave a reply under letter dated 15.02.10 agreed to cancel the said policy but they demanded the original policy bond for such purpose. So, the complainant requested the OP No.1 for handing over the policy bond to the OP No.2 for cancellation vide letter dated 15.03.10. Subsequently, OP No.1 sent his employee, the OP No.3 who came to his house and requested them to put his signature for issuing a duplicate policy bond for the purpose of completion of the requisite formalities for cancellation of the said policy and it has been instructed to state as lost from the custody of the OPs. So, the complainant requested the OP No.3 to state the above factum of lost in writing. Accordingly, OP No.3 denied to make any written complaint. Even the OP No.3 misbehaved with him. In spite of repeated request the OPs did not come forward to solve out the dispute as alleged and also to cancel the said policy. As the said premium bears a huge sum of Rs.1,50,000/- and when the complainant did not agree to continue the same and requested the OPs to cancel the same within the look cancellation period no proper steps have been taken by the OPs and denied to refund the premium amount. Such activities of the OPs amount to deficiency of service causing mental pain and agony to the complainant. Hence, this case for proper relief with a prayer for refund of the said sum of Rs.1,50,000/- and also for compensation.
The OP No.1 contested the case by putting Written Version denying each and every allegation as made therein with a specific defence that the case is not maintainable.
The complainant is not a consumer under the law. The OP No.1 only rendered a liasoning role between the complainant and the OP No.2. The complainant made his subscriptions relating to the said policy after being satisfied with the terms and conditions of the said policy. But the OP No.1 has no role or relation what so ever with regard to the contract of insurance and the same was entered in between the complainant and the OP No.2. Once the complainant has subscribed the said policy the complainant is bound to observe and comply with the terms and contract as embodied therein. There is no deficiency of service on the part of the OP No.1.
It is specifically denied that the complainant never surrendered the policy to the OP No.1 under free look cancellation of policy on 11.04.09 or any other date. Therefore, the case is liable to be dismissed with cost.
The OP No.2 contested the case by putting W.V. supported by affidavit denying each and every allegation as made therein with a specific defence that the case is not maintainable. The complainant did not follow the terms and condition as embodied in the said policy and/or the terms and condition of free look cancellation of policy. The complainant never surrendered the policy to the OP No.2. As per terms and condition the policy holder is to issue a notice of the cancellation along with reasons for the same within 15 days of the receipt of the said policy and to assign reason for dissatisfaction of the terms and conditions. In spite of repeated request and demand of the original policy certificate the complainant did not submit the said document to this defendant. The complainant never intimated about the cancellation of such policy prior to 15.02.10. The company has no connection with Standard Chartered Bank in respect of the aforesaid matter and as such there is no deficiency of service on their part and the case is liable to be dismissed with cost.
Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-
1) Is the case maintainable ?
2) Has the Forum got jurisdiction to entertain and try the instant case ?
3) Is there any deficiency of service and/or Unfair Trade Practice on the part of the OPs ?
4) Is the complainant entitled to get award as prayed for ?
5) To what other relief/reliefs as prayed for?
Decision with reasons.
All the points are taken up together for the sake of convenience as because the Ld. Advocate on behalf of the OP No.1/Standard Chartered Bank argued that no such service as provided in order to obtain alleged policy in question has been provided in favour of the complainant. In case of any service free of cost that can not be come within the purview of service as provided under Section 2(1)(o) of the Consumer Protection Act, 1986. No such role has been played by the Bank concerned in granting policy in question in favour of the complainant or in rendering in service what so ever. Therefore, when one of the parties alleged that they have not rendered any service relating to the policy in question in favour of the complainant that would be considered later considering the merits of the case.
According to the complainant OP No.1 is the Agent of the OP No.2 and offers a wide range of Life Insurance products from the OP No.1. In support of his contention the complainant has filed a copy of the letter addressed to the Branch Manager, the OP No.1. The said letter was received by the Standard Chartered Bank on 11.04.09 by putting their official seal and signature. From the said letter it reveals that letter of request for cancellation of the policy being No.0124854228 on the plea of non-satisfaction of the terms and condition of the said policy. The said letter (Annexure-C) clearly speaks about the enclosure as policy bond. The original letter issued by Bajaj Allianz Life Insurance Company Ltd. (Annexure-H) goes to show authorized signatory of the said Insurance Company wrote a letter regarding Free Look Cancellation against Policy No.0124854228 wherein the addressee was requested to submit photo identity prove i.e. Voter I.D., PAN Card, Driving License, Pass Port along with the original policy bond for the purpose of cancellation of the said policy (Annexure-J) issued by the complainant to the Branch Manager, Standard Chartered Bank by his letter dated 15.03.10 requested to send the policy bond to the office of the Bajaj Allianz Life Insurance Company Ltd. wherein it has categorically stated that he surrendered the relevant policy on 11.04.09. The letter was duly received by the OP No.1/Bank on 15.03.10 by putting its official seal and signature. Against the said letter the authorized signatory the Branch Manager of the OP No.1/Bank intimated for taking investigation of the matter in question for the purpose of reversion of the same (Annexure-K). Subsequently, another letter dated 25.03.10 (Annexure-L) the said Branch Manager of the OP No.1 intimated that a representative of Bajaj Allianz Life Insurance Company Ltd., Mr. Prasenjit Sengupta, Bancassurance Team Member would visit to him to complete the requisite formalities.
In the instant case the complainant led evidence as PW No.1 wherein he categorically stated that he purchased a Life Insurance Policy of OP No.2 from OP No.1 being Policy No.0124854228 dated 28.03.09 of premium of Rs.1,50,000/- drawn on Axis Bank dated 03.03.09 as per instruction of the OP No.1 and the said amount was duly debited from his Account. He also stated that he surrendered the said policy to the OP No.1 under Free Look Cancellation of policy within time. He was thoroughly cross-examined and in support of his contention he has filed several brouchers. In reply against the questionnaire filed by the OP No.1/Insurance Company the complainant stated that he has gone through the terms and condition of the policy and being dissatisfied he surrendered the policy as because the terms and conditions as ventilated by the OP No.1 at the time of its purchase has not been fulfilled rather violated.
The OP No.2 on the other hand led evidence through one Joydip Choudhury, the Senior Divisional Manager wherein he stated that complainant never intimated the matter in question to this Company. Thereby the complainant violated the terms and condition under the policy in question. Even the policy in question was not returned within the stipulated period. The Insurance Company has no connection with the Standard Chartered Bank who has no authority to deal with the matter of Free Look Cancellation option.
The OP No.1/Bank also led evidence through one Mr.Gajendra Rai, the Branch Manager who stated that the complainant purchased the said policy from the OP No.2 on 28.03.09. The contract of the said policy was made by and between the complainant and the OP No.2. The OP No.1 is not a party to the Insurance Policy and has no contractual relation with the complainant. There is no term and condition or scope to request and/or process the formalities for cancellation of the policy in question through the bank concerned. Any action as taken relating to the instant case was done as the banker of the OP No.2.
It is argued by the Ld. Advocate on behalf of the complainant that the Provision of the Consumer Protection Act, 1986 has been enacted by the legislature for social benefit for restraining the Unfair Trade Practice on the part of the businessman and the consumer can not be deprived of to get legitimate claim from the traders. According to the Ld. Advocate on behalf of the OP No.1 that the complainant has failed to prove that the OP No.1 has no responsibility or obligation to satisfy the claim of the complainant and/or any direct role to play with regard to cancel of the policy in question. Whereas the Ld. Advocate on behalf of the OP No.2/Insurance Company argued that under the policy duty casts upon the complainant to intimate the Insurance Company and/or send
the policy in question to the Insurance Company. The duty of the OP No.1 is to sale the policy and collect premium on behalf of the OP No.2 and they have no other right to deal with the other affairs of the Company. As the complainant never intimated or sent the policy in question within time prior to 15.02.10 the complainant is not entitled to get the benefit of Free Look Cancellation as because under the settled principles of law the parties are to bound by the terms and condition of the policy.
From the evidence as well as materials on record it is evident that the complainant requested for cancellation of the policy in question enclosing the original policy bond to the OP No.1 who received the same by putting its official seal and signature. Subsequently, various letters were received by the complainant from the end of the OP No.1 about taking proper steps and/or investigation of the matter. Further more, the OP No.2 also requested the complainant for sending original policy bond coupled with document of his identity.
Pertinent to mention here neither the OP No.1 nor the OP No.2 has furnished the copy of the Policy bond for proper appraisal about the terms and condition of the policy in question as well as terms and condition about the tie up in between the OP No.1 & OP No.2. But fact remains that policy in question was purchased by the complainant from the OP No.1 who acted on behalf of the OP No.2. unless by production of agreement by and between the OP No.1/Bank and OP No.2/the Insurance Company it can not be sustained that OP No.1 rendered free of service for the sake of their consumer concerned and/or customer concerned i.e. for the OP No.2. From the clear admission on the part of the OP No.2 it is evident that OP No.1 acted as Agent on behalf of the OP No.2 relating to the policy in question. All the brouchers clearly reflect that publicity was made by the OP No.1 for securing customers relating to the policies as issued by the OP No.2. Thereby the OP No.1/Bank can not state that free service was rendered for the sake of their party or client or consumer concerned. Initially, the OP No.2 by a letter requested the complainant to send the original policy in question. The initial letter issued by complainant to the Branch Manager, OP No.1/Bank clearly goes to show that policy bond was surrendered and the said letter was duly received by the said bank on 11.04.09. No where the OP No.1 stated or alleged no such enclosure was received by the Bank concerned. In this regard a broad factum has come up before this Forum during the pendency of the instant case the OP No.2/Insurance Company issued a cheque bearing No.847788 dated 13.09.10 amounting to Rs.1,66,991/- for full and final settlement of the claim. But the same was not accepted claiming to be the part payment. However,
admittedly, the said cheque was sent by the OP No.2/Insurance Company in favour of the complainant against the claim as lodged by the complainant. The said cheque does not disclose anything about the calculation under what head the said amount was sent to the complainant. Unless the original policy bond was not received from the complainant through its Agent/the OP No.1, the OP No.2 can not finalize the claim. Such circumstances clearly prove that the complainant has submitted the original policy in question within the period of Free Look Cancellation under the terms and condition of the said policy bond. Therefore, the complainant has able to establish his case by cogent, oral and documentary evidence.
When the policy was issued by the OPNo.2 against premium obviously service was rendered on consideration.
It has already been reflected hereinbefore the OP No.1 failed to establish that free service was rendered on behalf of the OP No.2 by cogent, oral and documentary evidence. Rather circumstance leads the Forum believe that due to tie up with the OP No.2 such service was rendered. It is true rather admitted by the OP No.2 that the role of the OP No.1 is nothing but an Agent on behalf of the OP No.2 and the OP No.1 has no role in dealing with cancellation during the period of Free Look Cancellation and never stated that free service was given by the OP No.1 on their behalf i.e. OP No.2.
‘Consumer’ as defined under Section 2(1)(d)(i) means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires of avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
‘Service’ as defined under Section 2(1)(o) means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply
of electrical or other energy, board of lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge of under a contract of personal service.
In view of the said defence this Forum is of the view that service was rendered on consideration not only by the OP No.2 but also by the OP No.1 due to their MOU/Tie up in between the OP No.1 and OP No.2. So, when the service was availed of on consideration the complainant is a consumer and this Forum has got jurisdiction to entertain and try the instant case.
According to the complainant his claim was not entertained by the OPs and did not make any response in getting the amount as clamed for after cancellation of the said policy within the stipulated period it causes mental pain, harassment and agony for which compensation was sought for. It reveals that the OP No.2 during pendency of the case a cheque amounting to Rs.1,66,991/- was paid through the OP No.1 in satisfaction of the claim and to some extent it can be considered the nature of service as rendered by the OP No.2 is deficiency on the part of the OP No.2 as because after receiving the notice no proper step was taken at the earliest for which the complainant had to institute the instant case.
Since no proper action was taken immediately after receiving the cancellation letter obviously it caused mental pain, agony and harassment. Therefore, the complainant is entitled to get compensation to the tune of Rs.5,000/-.
Since the complainant has established to prove his case by cogent, oral and documentary evidence the complainant is entitled to get a sum of Rs.1,50,000/- only from the OP No.2 but as OP No.1 is an Agent of the OP No.2 though did not send the policy bond to the OP No.2 in time causing inconvenience to the complainant and as they have no direct role in dealing with the Free Look Cancellation no such relief stands against the OP No.1.
In the result, the case succeeds in part.
Issues are disposed of accordingly.
Hence, it is
O R D E R E D
that the Consumer Case No.78/S/2010 is allowed on contest in part with cost of Rs.500/- against the OP No.2 only and the case is dismissed on contest against the OP No.1 but without cost and the case is dismissed Ex-Parte against the OP No.3 but without cost.
The complainant is entitled to get a sum of Rs.1,50,000/- from the OP No.2.
The complainant is further entitled to get a sum of Rs.5,000/- as compensation towards mental pain, agony and harassment.
The OP No.2/Bajaj Allianz Life Insurance Company Ltd. is to pay the awarded sum of Rs.(1,50,000/- + 5,000/-) = Rs.1,55,000/- within 45 days from the date hereof failing which the amount do carry interest @ 9% per annum from the date of institution of the instant case i.e. 22.06.10 till realization of the said sum.
The OP No.2 is at liberty to withdraw the cheque as deposited before this Forum on proper receipt.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
-Member- -Member- -President-