Dr. Ravinder Singla, ENT Specialist, Primary Health Centre, Goniana, Tehsil and Distt. Bhatinda.



…..Complainant.

Versus



1- Kotak Mahindra Old Mutual Life Insurance, The Mall, Ludhiana (Punjab) through its Branch Manager.

2- Kotak Mahindra Old Mutual Life Insurance Limited, Regd. Office: 9th Floor, Godrej Coloseum, Behind Everard Nagar, SION (East) Mumbai- 400022 through its Authorized Signatory.



…..Opposite parties.







O R D E R








1- Relief claimed by the complainant in this complaint under section 12 of the Consumer Protection Act, 1986, is to direct opposite party, to issue insurance policy in his favour and also to award compensation of Rs.50,000/- for deficiency in services and Rs.10,000/- as litigation costs in his favour.

2- Case of the complainant is that he obtained Term Insurance Policy from opposite party on 11.3.2008, by paying premium of Rs.5621/- vide receipt no.103481 dated 11.3.2008 in its Bhatinda branch. Subsequently, vide voucher no.15205459 dated 30.3.2008, opposite party conveyed to the complainant that his proposal no.00979658 has been accepted and the policy would be issued, within a week by their Ludhiana office. But grouse of the complaint in this complaint is that he has not received policy documents despite repeated letters, reminders and personal visits of opposite party. Such act on part of opposite party, claimed amounting to deficiency in service, which they failed to comply, despite legal notice dated 15.6.2008.

3- Opposite party contested the complaint, by converting allegations of the complainant. It is prayed by them that complaint is not maintainable, this Fora has no jurisdiction to entertain the complaint, as complainant failed to show any deficiency in service on their part and complaint is frivolous. It is denied that complainant on 11.3.2008, took Term Insurance Policy from them. Rather, complainant on 25.3.2008, submitted a duly filled proposal application form dated 25.3.2008 for Kotak Preferred Term Plan and alongwith the proposal, remitted Rs.5618/- towards proposal deposit qua which, was issued receipt dated 30.3.2008. His proposal was never accepted and consequently, denied that opposite party vide voucher no.15205498, intimated complainant qua acceptance of his proposal and that policy would be issued within a week. Complainant is trying to mislead the facts, to suit his own convenience. Insurance policy is not issued, unless all formalities are complied with, including undertaking medical examination.


Complainant while filling the proposal form, had undertaken to undergo medical tests, required by opposite party company, for issuance of a policy. Contract does not come into existence by mere signing of the proposal form. His proposal form was never accepted, so no insurance contract had come into existence between the parties. As per requirement of the plan, complainant was required to undergo medical examination, so opposite party was unable to assess his proposal and issue the policy. Resultantly, opposite party had issued refund cheque no.32270 dated 9.5.2008 for Rs.5618/- to the complainant and complainant was also informed to collect it from branch of opposite party, but he failed to do the same.


In the meantime, legal notice dated 14.6.2008 was received from the complainant, through his advocate, which was replied vide reply dated 14.7.2008. Subsequently, final reply was given by opposite party, vide letter dated 2.9.2008 and complainant was intimated that his proposal has been rejected and cheque bearing no.32270 dated 9.5.2008 for Rs.5618/- which was not collected, was also sent to the complainant. There is no deficiency in service or negligence on their part. Complainant has cause against them and complaint deserves dismissal.

4- In order to prove their respective cases, both parties adduced evidence by way of affidavits and documents.

5- Both ld. counsels for parties stood heard and record minutely gone through.

6- The material which complainant is able to place on the record in support of his allegations, is acknowledgement Ex.C1 dated 11.3.2008 issued in his favour by opposite party, qua receipt of proposal for life insurance. Alongwith, opposite party had issued receipt Ex.C2 dated 30.3.2008, acknowledging receipt of Rs.5618/- qua his proposal no.00979658. When opposite party failed to issue insurance certificate to the complainant, he through his counsel, issued legal notice Ex.C4 dated 15.6.2008, which stands answered by opposite party, vide reply Ex.C5 dated July 14, 2008. Vide this reply, they sought time to look into details of his allegations, promising detailed reply of his notice at the earliest.

7- The detailed reply Ex.C6 dated 2.9.2008 was issued by opposite party to the complainant, claiming that his legal notice was frivolous, misleading and false. It was conveyed to the complainant that his proposal for insurance wasn’t accepted and consequently, premium amount of Rs.5618/- was refunded vide cheque dated 9.5.2008 and complainant was informed to collected the same, but he failed to do so. It was further conveyed thereunder that again refund cheque dated 9.5.2008 of Rs.5618/- is being sent to his client.

8- Vide letter Ex.C7 dated 29th August, 2008, opposite party had conveyed to the complainant that his proposal for life insurance has been cancelled, enclosing refund cheque for the amount of Rs.5618/- to him. Ex.C6 and Ex.C7 were sent through registered envelope, as evidenced by receipt Ex.C8.

9- Opposite party in support of their defence, have placed reliance on affidavit Ex.RW1/A of Sh. R. Mahesh Kumar, its vice president. Appears from this affidavit that complainant had submitted insurance proposal form Ex.R1, alongwith insurance premium amount of Rs.5618/- vide receipt Ex.R3. But after receipt of proposal, they never issued policy in his favour and when complainant served notice Ex.C4 dated 15.6.2008, they vide reply Ex.R4 dated 14th July, 2008, took time to furnish detailed reply, which was given vide reply Ex.R7 dated 2.9.2008. His policy was not accepted and complainant was accordingly intimated, refunding the premium so sent by him. The notice was received by the complainant, vide acknowledgement Ex.R8 and Ex.R9.

10- It is in these circumstances, matter for consideration whether after making proposal for insurance and paying premium, insurance company is liable to accept the proposal and provide insurance coverage to the applicant.

11- At the outset, we may state that insurance company under legal system and on the basis of applying for insurance coverage by the applicant, is not bound to accept such proposal, by accepting the proposal of the proposer and covering him under the insurance policy. Insurance company would be at liberty either to accept or reject such proposal and convey decision of rejection to the proposer, within a reasonable period. Consequently, question in this case is whether proposal of the complainant was rejected by opposite party, within reasonable period and refunded the amount of insurance premium to him, also within reasonable time, so as to exonerate them from the liability of not rendering proper services to the complainant.

12- Reasons intimated by opposite party to the complainant, vide their letter Ex.C7 dated 29th August, 2008, simply conveyed as under:-

“We wish to inform you that your application for life insurance vide proposal no.00979658 has been cancelled and the refund cheque for the initial deposit paid by you, is enclosed as per details given 0below”.

13- Therefore, it was under this communication Ex.C7 dated 29th August, 2008 that cancellation of the proposal was conveyed to the complainant and cheque of Rs.5618/-, amount of which complainant had remitted for purchasing insurance cover, was refunded to him, vide cheque no.32270. No reasons for cancellation of the proposal were incorporated in the communication, or conveyed to the complainant.


However, at the time of arguments, it was contended that complainant failed to undergo medical examination, which was necessary, to provide him insurance coverage and due to such failure on his part, the policy was not accepted. But we are not convinced by this contention. Because such reason that he failed to undergo medical examination and then policy cancelled, was never communicated to him. Neither opposite party have placed on record, any material to show that they ever called upon the complainant after submission of proposal by him, to undergo medical tests, before accepting his proposal. Such plea appears to be an after thought, hence liable to be rejected.

14- Admitted aspects are that complainant filled proposal application Ex.C9 on 25.3.2008 and on the same day, remitted premium vide cheque of Rs.5618/-. Receipt of that amount was acknowledged by opposite party, vide receipt dated 30.3.2008. But defence of opposite party had issued refund cheque no.32270 dated 9.5.2008 for Rs.5618/- to the complainant and informed complainant, to collect the same from their branch office, is also not proved on the record. Neither opposite party has placed on the record, such intimation given to the complainant, requiring him to collect cheque from branch office of the opposite party.


In absence of any material or proof, giving such intimation to the complainant, the plea can not be accepted to be true, despite the fact that opposite party has placed on the record, copy of that cheque Ex.R3 dated 9.5.2008. The cheque could have been drawn by opposite party, by putting any date. Possibility of putting back date on this cheque, can not be brushed aside. Had actually, cheque Ex.R3 drawn on 9.5.2008, they would have forwarded it to the complainant, as was done by them subsequently under reply of the notice, Ex.R7 dated September 2,2008, issued by opposite party, in answer to legal notice dated 15.6.2008(Ex.C4) of the complainant.


On receipt of notice Ex.C4, opposite party initially vide reply Ex.R4 dated 14th July,2008, took time to give detailed reply to the notice dated 15.6.2008(Ex.C4) of the complainant. Subsequently, after one and a half months, final reply Ex.R7 dated 2.9.2008 was given, conveying that proposal of the complainant has not been accepted and refunded amount of Rs.5618/- vide cheque no.32270 dated 9.5.2008. If they could send the cheque dated 9.5.2008, under reply Ex.R7 dated 2.9.2008, could have sent it earlier to the complainant. So, in absence of any proof, we are not convinced by plea of opposite party that complainant was informed to collect cheque dated 9.5.2008 for Rs.5618/-.

15- This means that amount of Rs.5618/- which opposite party had received as premium for insurance proposal of the complainant on 30.3.2008, was retained by them, without any justification or cause upto 2.9.2008. During this period, they never called upon complainant, either to get himself medically examined, nor took any decision on his proposal. Rather sat over the same till compelled by complainant, vide his legal notice Ex.C4 dated 15.6.2008. Such delay which was caused by opposite party in rejecting the proposal, in our view, certainly would amount to deficiency in service on part of the insurance company.

16- In coming to aforesaid conclusion, we are influenced by decision of the Hon’ble National Commission, reported in Rajendra Plastics Vs New India Assurance Co. Ltd. & Ors. 2004 NCJ-16(NC). In that case, there was a delay by insurance company, for issuing the main policy from the date of proposal. Same was held to be deficiency of service.

17- Non supply of policy to insured, is deficiency in service, as held in Hundi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. Vs Oriental Insurance Co. Ltd., Landmark Judgments on Insurance(2004 Page-147)(NC).

F.A.I.A.No.2358 OF 2009 IN FASR NO.4687 OF 2009 AGAINST C.C.NO.382 OF 2006 DISTRICT CONSUMER FORUM-I HYDERABAD
Between

1. M/s Kotak Securities Limited,
Baktawar, 1st Floor, 229, Narimanpoint
Mumbai-400 021 rep. by its Authorised Signatory
N.Venkateswara Reddy S/o N.C.krishna Reddy
Occ: Associate Vice-President



2. M/s Kotak Securities Limited,
Branch office at 9-1-164, S.D.Road,
Secunderabad-500 003 rep. by its
Authorised Signatory N.Venkateswara Reddy
S/o N.C.krishna Reddy
Occ: Associate Vice-President

Petitioners/Appellants/opposite parties

A N D

Sri Brijlal Tapadia S/o Kishanlal Tapadia
aged about 74 years, occ: Business,
R/o 1-7-1072/A, Musheerabad Road,
Hyderabad

Respondents/Respondents/ opposite parties

Counsel for the Appellant Sri M.Sudheer Kumar

Counsel for the Respondents Admission Stage



QUORUM:

THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER

WEDNESDAY THE SECOND DAY OF DECEMBER

TWO THOUSAND NINE

Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

The appellant/opposite parties filed the appeal along with application seeking condonation of 485 days delay in filing the appeal. Ground on which delay is sought to be condoned is set out in para 8 of the affidavit filed in support of the petition. It is stated that the authorized signatory of the petitioner company who used to look after the complaint before the District Forum resigned in the month of November 2005. At the time of tendering his resignation, he had not handed over the charge of all the cases pertaining to the petitioner company. The petitioner company has deputed a new officer in the month of September 2007. The new officer could not pursue the complaint with the counsel for the petitioner company as the officer who used to look after the case did not hand over the records.

Notice in the complaint was served on the petitioner company. The petitioner company engaged an advocate as also entrusted the matter to one of its authorized signatories. The officer who used to look after the case on behalf of the petitioner company said to have resigned in the month of 2005. Further, it is the version of the petitioner company that the officer who resigned from its service had not handed over the charge in regard to the case. The petitioner company is not an individual. It has engaged an advocate as also deputed an authorized signatory on whose tendering resignation another officer was deputed to look after the cases including the complaint in question. The latches on the part of the petitioner company that it had taken about two years to depute an officer cannot be viewed leniently in the light of the fact that the petitioner company had engaged an advocate who all through represented the matter in the District forum on behalf of the petitioner company. It cannot be believed that the authorized officer who left the service of the petitioner company did not hand over the charge pertaining to this case only. The negligence is also manifest by the fact that an officer was deputed about two years after the resignation tendered by the other officer. Viewed from any angle the delay caused by the petitioner company in filing the appeal can be held to be supported by any sufficient cause. The inordinate of 485 days in filing the appeal is deliberate and does not deserve to be condoned. The appellants/opposite parties failed to establish any just and sufficient cause to condone delay in filing the appeal. The petition is liable to be dismissed.

Even on merits, the opposite party had taken objection before the lower court that the claim was barred by limitation. The documents, Exs.A1, A3 and A5 the representations made by the respondent/complainant for payment of reversal of DP charges and Exs.A6 and A9 reply sent by the appellants/opposite parties informing the complainant that in view of business relationship they offered special brokerage rate as also that they had arranged to reverse DP charges for 2001-2002 and 2003-2004. The respondent/complainant was held to be entitled to the reversal of DP charges for the year 2003, an amount of Rs.3,24,840/- with interest. We do not see any merits in the contention of the appellants/opposite parties.

In the result the petition is dismissed, consequently the appeal is rejected. No costs.

Consumer Complaint No: 58/2008

Date of presentation: 12.06.2008

Date of decision: 12/11/2009.

Shri Parkash Chand Bansal S/O late Shri Goopal Dass Bansal, Resident of HNO 2741/10, Chhota Chowk, Nahan, District Sirmour, H.P.

… Complainant.
Versus

1. Shri Vinod Kuamr S/O Shri Gurmeet singh,

Resident of HNO 524 Milk Colony,

Dhansh Chandigarh-16009.



2. Kotak Life Insurance Limited,

SCO 144-145, 2nd Floor Sector-9,

Chandgiarh-16009. …Opposite Parties.
For the complainant: Mr. Sandeep Aggarwal, Advocate.

For the Opposite Party No.1: Exparte.

For the Opposite Party No.2: Mr. Vijay Wason, Authorized Agent.
O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he issued a cheque bearing No.333225 dated 28.02.2007, amounting to Rs.15,000/- to the OP No.1 for issuance of policy in his favour, but the OP No.1 despite receipt of the cheque failed to issue the policy, hence has indulged in an unfair trade practice. Hence, feeling dissatisfied and aggrieved by the act of the OP No.1, the complainant avers that there is apparent deficiency in service on the part of the OP No.1, in not issuing the policy in his favour, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OPs, in its written version, to the complaint, contended that the complainant failed to issue medical certificate to them regarding issuance of the policy, hence, the policy could not be issued to him. They further contend that the cheque No.15149 dated 23.04.2007 has been sent to the complainant vide letter dated 24.04.2007. As such, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. The parties do not wrangle over the fact that the complainant had deposited the necessary amount of premium with the OP, for, his purchasing a policy from the OP No.2. The OP No.2, has, in its reply, sought, to, exculpate its liability from issuing the policy in favour of the complainant despite the fact, of, its having received the premium amount merely on the score, that, the complainant had not issued details of his medical health. The above ground appears to be flimsy as the OP, has, not supported its version qua the necessity of the complainant furnishing details of his medical health, hence, when the above necessity was not apprised to the complainant, at, the stage of theirs having received the premium, the subsequent necessity as enjoined qua health of the complainant, appears, to be an after thought, more so, to enable the OP, to, wriggle out of its liability to issue a policy, to, the complainant, despite, its having received the premium.

6. The OP has canvassed in, its, reply that the amount of premium has been dispatched by them to the complainant, which has not been encashed and has been stated to have been lost in transit, yet, it is willing to defray the amount of cheque, as received by it from the complainant. However, the above offer as disclosed in the reply of the OP, would meet the requirement of the complainant, inasmuch, as, with his seeking the said relief and with the OP not refusing it, hence, would redress his grievance.

7. Accordingly, the complaint is allowed and the OPs are directed to refund the amount of Rs.15,000/- to the complainant along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till actual payment is made. In addition to this, the OPs, shall also pay compensation of Rs.2500/- to the complainant along with litigation cost, assessed at Rs.1,000/-. This order shall be complied with by the OPs, within a period of forty five days after the date of receipt of copy of this order. With this, the complaint stands disposed of. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.