OFFICE  OF  THE  DISTRICT  CONSUMER  DISPUTES  REDRESSAL FORUM, KAMRUP,GUWAHATI

C.C.72/2008

Present:-

1) Md.Sahadat Hussain, A.J.S.          - President

2) Smti Archana Deka Lahkar          - Member

3) Md Jamatul Islam                          - Member

Sri Trideep Kumar Chakrabarty                                                      -     Complainant

S/O- Dr Basanta Chakrabarty

R/O- Milan Nagar,VIP Chowk,P.O- Guwahati Airport,

Guwahati-15,Dist-Kamrup

  -VS-

1)   Bobcards Ltd                                                                               -     Opp.Party

“ESPERANCA”, Sahia Bhagat Singh Marg,

Colaba,Mumbai-400001

Represented by its Managing Director

2)  TATA AIG General  Insurance Co. Ltd.

Peninsula Corporate Park,

Nicholas Piramal Tower

9^th floor,Ganpatrao Kadam Marg,

Lower Parel, Mumbai-400013

Represented by its Managing Director  

3)  The Branch Manager

TATA AIG General  Insurance Co. Ltd.

2^nd floor, Orion Palace,Christan Basti,

G.S.Road,Guwahati-05

Appearance:

Ld advocate Mr Santanu Chakrabarty  for the complainant Ld.advocate Mr J.Sen for the opp.party

Date of argument -    05-09-2018

Date of judgment -    24-09-2018

JUDGMENT

This is a proceeding U/S- 12 of the Consumer Protection Act, 1986

 1.            The complaint filed by Sri Tridip Kumar Chakrabarty  against i)Bobcard Ltd , “ESPERANCA”, Sahia Bhagat Singh Marg, Colaba,Mumbai-400001, ii) Tata AIG General Insurance Co.Ltd,  Peninsula Corporate Park, Nicholas Piramal Tower , 9^th floor,Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013  and iii)the Branch Manager , Tata AIG General Insurance Co.Ltd , G.S.Road ,Guwahati was admitted on 04/07/2008 and notices were served on the opp. parties and Opp.Party No-2 & 3 filed joint written statement  on 08/04/2009 but the complaint against Opp.Party No-1  is proceeding vide this forum’s order dtd.27/10/2009 . Thereafter the complainant filed his evidence in affidavit on 27/10/2009 and he was cross examined by the Opp.Party No-2 & 3 side’s Ld  counsel . From Opp.Party No-2 & 3, one Sri K.J.Daruwala  had filed evidence in affidavit but his evidence was expunged as he was unable to attend this forum to give evidence due to his illness  vide this  forum’s order dtd. 16/07/2014 and on  that day , Opp.Party No-2 & 3 was allowed to file evidence of one Sri A.Guha and he also filed the evidence on 28/08/2014  but his evidence  is  expunged vide our order dtd. 26/07/2016 as he failed to appear in  this forum  for cross examination  . Thereafter,  Ld advocate Mr Santanu Chakraborty files written argument for the complainant and Ld advocate  Mr J.Sen  filed written argument for Opp.Party No-2 & 3 on 16/02/2017.  But on the days fixed for oral argument the counsels of the parties were not found . We deliver the judgment today after perusing  the written  argument filed .

2.                The  case of the complainant in brief is that on inducement of a representative  of Opp.Party No-1 , he applied to Opp.Party No-1 to issue  a Golden Credit Card but Opp.Party No-1 instead of issuing a Golden Credit Card issued  a  Silver Credit Card to him but he never used the said credit card  and he approached to Opp.Party No-1 to cancel the Silver Credit Card and also  sent e-mail  request to opp. party in their  website - wbc@bobcards.com requesting them to cancel the Silver Credit Card but they did not do that rather Opp.Party No-1 raised bill for transaction with Opp.Party No-2 for an amount of Rs.2,473/- in connection with said Silver Credit Card although he never used the said credit card in connection with  a transaction relate to a renewal of a policy with Opp.Party No-2  vide Policy No-0200015197 . The bill raised at Rs.2,473/- showing a transaction  in favour of Opp.Party No-2 is quite illegal as he never used the said credit card and he asked Opp.Party No-1 to withdraw the said card . As he did not use the said card how the opp. parties showed a transaction done with Opp.Party No-2 and he asked the opp. parties to explain that matter but they totally failed to explained it and they also did not take step  for withdrawing after several requests ; without explaining about the said transaction , Opp.Party No-1 vide letter dtd. 12/02/2007, asked him to make  payment  as per said bill on or before 10/03/2007 . After receiving  the said letter, he on 05/03/2007 sent a legal notice to Opp.Party No-1 requesting not to take action against him reflected  in their letter dtd. 12/02/2007 but Opp.Party No-1 did not response to the  said letter notice rather  they have been harassing him on  regular  manner  calling him  over telephone. Opp.Party No-2 & 3 side also did not taken any step  to solve the said dispute and explain how that transaction  took place even  they were requested  through e-mail  message. He , then on  26/04/2008, sent a legal notice to Opp.Party No-2 & 3 to explain as to how the transaction  of renewing  the policy No-0200015197 took place but they  did not response even after receiving the said notice . He is consumer of  the  opp. parties as  the opp. parties are service provider to him  as per provision of Sec-2(1)(d) of Consumer Protection Act,1986 . By not explaining how the alleged transaction took place and by raising bill of Rs.2,473/- illegally  and by not withdrawing his Silver Credit Card   inspite of his repeated request the opp. parties committed deficiency of service towards him , hence they are liable to pay him Rs.50,000/- as compensation and Rs.10,000/- as cost of the proceeding.

3.                The gist of the pleading of Opp.Party No-2 & 3 is that complainant had taken out an insurance policy for the period w.e.f 25/02/2004 to 24/02/2005 and he paid the premium for the same through a cheque  and when the policy came up for renewal for the year 2005-06 he was telephoned  by the officials and  he consented for the renewal of the policy and opted to pay the renewal premium through his credit card  and furnished credit card number  to their officials and on receipt of  the premium from Opp.Party No-1 the policy documents were dispatched  to him on 10/03/2005 and Ext-A is the proof of dispatch and his voice recording also was preserved  but some records was destroyed in  a flood that had taken place in July,2005  and the voice recording was also  destroyed at that time and hence  same could not be produced  in  the forum. After expiration of the policy they received 1^st communication from the complainant on 20/05/2007 and also received the legal notice dtd.26/04/2008 and the legal notice was replied by them  on 10/07/2008. The cancellation of the policy had been sought by complainant after the policy had expired and so the complainant has no right to send cancellation request having the policy did not exist at that time . They cannot receive any premium  through debit card without consent being given by the complainant himself , and hence they are not aware of the credit card number of the complainant. The complainant never approached  them during tenure of the policy for cancellation of the policy despite receiving the policy . The complainant  has never been communicating Opp.Party No-1 but contacted them only after expiry of the policy tenure . The policy is always in the possession  of complainant  and inspite of that he never enquired with them  about the renewal premium until after expiry of the policy . Had the complainant not given his consent for any premium debit authorization, in that event upon  receipt of the policy , upon its renewal the complainant sought to have immediately cancel the policy and could also had questioned  the company about its bonafide contention of not having given consent  for the renewal could have registered with them.  They have received his monthly statement from Opp.Party No-1 regarding  debit to his  credit card. The debit for the renewal premium must have been shown in the monthly statement of April, 2005 . Since the policy not in force , there is no privity of contact between the complainant and them and the  complainant is not a consumer within the provisions  of Consumer Protection Act,1986 . They  performed their obligations under the terms of the policy . If there had been any claim during the term of the policy, they would have honoured the same . The complainant never requested them for cancellation of the policy. He approached  this forum after 2 years of expiry of the policy and he never made any request for cancellation of policy and he enjoyed the cover and now after 2 years of expiration of the policy tenure approaching this forum for his grievances  . They receive the premium only after proper debit  authorization from the complainant failing which it would not have been possible for them to receive the said  premium. Premium  payment is an obligation of the policy holder (complainant)  and they receive the said premium  through proper mode . It is upto the complainant and his bank  to ascertain whether  his credit card has been debited after proper authorization or not . It is evident from the conduct of the complainant that he himself  was  negligent by not making efforts to cancel  the policy after receiving it. The complainant  enjoyed the policy for its entire period and thereafter sent an e-mail in May,2007 which was much later than the policy expired. The complainant is a branch manager of a reputed insurance company , hence it is therefore  reasonable  to expect that he will request them to  cancel the policy immediately and not after 2 years of expiration of the policy as has been  done and that fact indicates that complainant wanted to enjoy the policy . Since there was  no claim , he is  now demanding  return of the premium amount and as such he is not entitle  to get relief from this forum. The complainant for the 1^st time communicated with them only on 22^nd May,2007  and they replied to the said communication vide their  letter dtd. 10^th July,2008 .Both  they and the complainant performed  their respective role under  the said contract of insurance and hence there is no question of providing any further service to the complainant  and of causing deficiency of service towards him. The complainant is not a consumer as per provision  of Consumer Protection Act,1986. The allegation of complainant basically against Opp.Party No-1 for alleged unauthorized debit transaction and it has nothing to do with insurance service provided to him by them (Opp.Partry No-2 & 3) . They have not issued credit  card to the complainant and hence it is wrong on the part of the complainant to allege that they have indulge in unfair trade practice . The grievance of the complainant are mainly relating to issuing credit card and its issuing bank (Opp.Party No-1) and as such there is no cause of action against them and hence the complaint is liable to be dismissed.          

4.                 We have  perused the pleading of the complainant and his evidence . We have also perused W.S filed by Opp.Party No-2 & 3 .It transpires to us  that the main allegation of the complainant is that he had approached Opp.Party No-1 for issuing a Gold Credit Card to him but they,  instead of  issuing the Gold Card, issued a  Silver Card ,and then he never  used the said Silver  Card and requested Opp.Party No-1 to cancel his Silver  Card . His next allegation against Opp.Party No-1 is that Opp.Party No-1 raised a bill upon him for a transaction with Opp.Party No-2 for an amount of Rs.2,473/- in connection  with the said Silver Card in spite of that he never used the said Silver Card in connection with renewal of policy with Opp.Party No-2 vide Policy No-020015197.

5.               The complainant states the same thing in his evidence . It is both  sides’ admitted fact that  the complainant had taken out an insurance policy w.e.f 25^th February,2004 to 24^th February,2005 and the complainant had paid the premium through a cheque in favour of the Opp.Party No-2.

6.                 The Opp. Party No-2 & 3 side states in their evidence as well as in their pleading that when the policy came up for renewal for the year of 2005 - 2006, the complainant was contacted by their official via telephone and he consented to renewal and also opted  to pay the premium through his credit card and furnished the credit card number  to their official; and on receipt of premium  from Opp.Party No-1, the policy document was despatched to the complainant  on 10/03/2005. In this proceeding , it is  found that , the case against Opp.Party No-1 is proceeding on exparte and they failed to produce their witness namely Mr Amrita Guha ,who filed  his affidavit on 28/08/2014 ,on expungement of the affidavit (evidence ) filed by Shri K.J. Daruwala, to face the cross examination, and accordingly his evidence in affidavit  has also been  expunged by  us vide order dtd.26/07/2016 ; and hence the evidence filed by Shri Amrita Guha cannot be accepted as evidence supporting the case of Opp.Party No-2 & 3  side, meaning thereby is that  Opp.Party No-2 & 3  has failed to adduce evidence in support of their stand . In perusing the written statement of  Opp.Party No-2 & 3,   it is found that Opp.Party No-2 & 3   state that when  the time for renewal of the policy for the year of 2005-2006  came up  the complainant was informed by their officials over phone about the renewal of the  policy and he consented for renewal and opted to pay the premium through credit card and also gave to their  officials his credit card number  and on receipt of the premium from Opp.Party No-1 the policy  was despatched  to him and the correspondence  made by him are preserved in CD but the said CD as well as some records were destroyed due to flood in July,2005 , which , Opp.Party No-2 and 3 side has failed to establish  in this proceeding .Therefore, we hold that , whatever Opp.Party No-2 and 3 state in their written statement , about renewal of the policy of the complainant for the year of 2005 -06 are all false and concoted story. In such premise, whatever is said by the complainant in his evidence shall have to be presumed to be the true fact about the said transaction .Therefore, the plea of the complainant that he had applied to Opp.Party No-2 and 3 for a Gold Credit Card but they issued a Silver Credit Card bearing card No-4293900039343008 instead of issuing the gold card to him but he never used said credit card requesting the opp. parties to cancel the said credit card but they never cancelled  the said card;  but on the contrary,  Opp.Party No-1 raised a bill for a transaction with Opp.Party No-2 for an  amount of Rs.2,473/- in connection with the  said Silver Credit Card although he never used the said credit card in  connection  with a transaction relating to a  renewal of a policy with Opp.Party No-2 vide  Policy No-0200015197 to be true facts, meaning thereby that  opp. parties without receiving any cue  from the complainant did the transaction  of Rs.2,473/- as a premium  relating to renewal of his policy no-0200015197. Therefore, we hold that by doing said transaction by the opp. parties at their own  whims  committed deficiency of service towards the complainant and therefore the opp. parties are liable to return the said amounts (Rs.2,473/-) to the complainant with interest @6% per annum from the date of filing of the complaint (04/07/2008) .

7.                It is found that by doing the said transaction by the opp. parties at their own whims causes lowering of his reputation  and also caused harassment and mental agony to him, and for that reason   we are of opinion  that the opp. parties are liable to pay him  Rs.5,000/- as compensation for that .

                    Secondly,for no fault  of the complainant, he being compelled to file this complaint before this forum  to get  redressal of his grievances against the opp. parties by incurring a handsome amount in paying the fees to his counsel and meeting  the expenditure for attending this forum by him during trial of  the complaint and hence the opp. parties are liable to pay him Rs.5,000/- as cost of proceeding.

8.               Because of what has been  discussed as above, we hold that , the complainant has a prima facie case against all three opp. parties and he has also succeeded  to establish the same. Hence , the complaint against Opp.Party No-1 is allowed on exparte and against Opp.Party No-2  and 3  is allowed on contest and accordingly they are directed to refund Rs.2,473/- which was debited from his account by the opp. parties whimsically with interest @6% per annum from 04/07/2008 and also to pay him Rs.5,000/- as compensation as well as another amount of Rs.5,000/-  as cost of the proceeding , to which , all three opp. parties are jointly and severally liable  with a direction to pay the amounts within 45 days , in default, other amounts shall also carry interest at the same rate.

Given under our hands  and seals  today on this 24^th September 2018.

(SmtArchanaDekaLahkar)             (Md.Jamatul Islam)                              (Md.Sahadat Hussain)         

Member                                                      Member                                                President