Date of Filing:14.12.2021

Date of Disposal:25.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 35 of the C.P.Act, 2019 against the OPs alleging deficiency of service.  

2.   The brief facts of the case is as follows: 

The complainant having a policy No.102463130 with the OP company from 15.03.2002 vide benefit of description of whole life participating to age of 100 years term by paying premium of Rs.4,910/- p.a. which was converted from Rs.4,910/- to Rs.5,427.61p.a. in the year 2017. The complainant submits that during the policy term, one loan was availed against thepolicy by depositing all original bondsback to OP custody as surety/security purpose. Further that the loan and interest part in different aspect and the complainant is regularly paying all premiums upto 2019 of Rs.17,261/- by updating premium on 15.07.2019. Further the OP has issued premium certificate on 31.08.2019 and on 17.02.2020 the complainant had sent mail to OP that the complainant is ready and willing to pay balance premium along with loan dues, but OP refused to accept the payment and givestatement of account, bonus and premium paid details. When the complainant has reached the office on 07.08.2021, the OP have informed that the complainant policy was closed/surrendered by OP company which was not aware of the complainant and instead of keeping the policyin force, the OP have treated an amount of Rs.18,099/- as unclaimed amount and remitted the said amount back to the complainant bank account which leads to deficiency of service on the part of OP. The complainant has given request letter to OP for not to send any refund to thecomplainant bank account and also issued legal notice to OP dt.10.08.2021, but OP has not replied to the complainant. Aggrieved by the act of the OPs the complainant preferred present complaint seeking for refund all the paid premium amount along with other relief as prayed in the complaint.

3. Notice to the OP duly served. OPs represented by their counsel and filed their written version, affidavit  and also filed written arguments.

4. To prove his contention, the complainant has not adduced evidence by way of affidavit  inspite of sufficient opportunity given and same is taken as not filed and matter is reserved for orders.

5.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

6. The findings on the above points are as under:

Point No.1           :       Negative

Point No.2           :       As per final order

REASONS

7. POINT NO.1:-  The complainant having a policy No.102463130 with the OP company from 15.03.2002 vide benefit of description of whole life participating to age of 100 years term by paying premium of Rs.4,910/- p.a. which was converted from Rs.4,910/- to Rs.5,427.61ps. in the year 2017. The complainant submits that during the policy term, one loan was availed against the  policy by depositing all original bonds  back to OP custody as surety/security purpose. Further that the loan and interest part in different aspect and the complainant is regularly paying all premiums  upto 2019 of Rs.17,261/- by updating premium on 15.07.2019. Further the OP has issued premium certificate on 31.08.2019 and on 17.02.2020 the complainant had sent mail to OP that the complainant is ready and willing to pay balance premium along with loan dues, but OP refused to accept the payment and give  statement of account, bonus and premium paid details. When the complainant has reached the office on 07.08.2021, the OP have informed that the complainant policy was closed/surrendered by OP company which was not aware of the complainant and instead of keeping the policy  in force, the OP have treated an amount of Rs.18,099/- as unclaimed amount and remitted the said amount back to the complainant bank account which leads to deficiency of service on the part of OP. The complainant has given request letter to OP for not to send any refund to the  complainant bank account and also issued legal notice to OP dt.10.08.2021, but OP has not replied to the complainant. Aggrieved by the act of the OPs the complainant preferred present complaint seeking  for refund all the paid premium amount along with other relief as prayed in the complaint.

8.  The OP represented by counsel filed written version and they denied the entire allegations and any deficiency of service on their part and on these grounds they pray for dismissal of complaint against OP and the case was posted for complainant evidence. On the date of complainant evidence neither the complainant nor his counsel appeared before this commission, remain absent and failed to lead any evidence by affidavit.

9. The onus to prove that there was deficiency in service of the OP lies on complainant. The commission admitted the contention raised by the complainant, but complainant failed to produce evidence under section 38(5) of C.P.Act, 2019. It is statement of fact that the complainant has not filed affidavit evidence and has not having along his allegations regarding deficiency of service remains unsubstantiated.

10. The complainant has faield to lead any evidence by way of affidavit to prove their allegations against OP on record. Mere pleading in complaint that OP has caused deficiency of service and on perusal of records before the Commission submitted by complainant, we failed to find any material which shows that OP causing deficiency of service. The question of act as the complaint which needs to be proved  by leading an evidence is more important with documentary evidence. During the trial of a complaint evidence by way of affidavit describing every point of case.

11. In the above complaint, even after sufficient opportunity is granted to the complainant to prove her case, but on the date of complainant evidence neither the complainant nor her counsel present before this commission, remained absent and failed to lead any evidence by way of affidavit and the evidence of the complainant is taken as not filed and posted for OP evidence. Even after filing the OP evidence, the complainant remained absent and not even appeared to re-open the case to lead evidence by filing recalling application. Hence, the case is posted for orders.

12. As per section 38(6) of C.P.Act, 2019, every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record providing that where an application is made for hearing or examination of parties in person or through video conferencing, the District Commission may on sufficient  cause being shown and after recording its reasons in writing, allow the same and according to section 38(a) for the purpose of this section the commission shall have the same powers as vested in civil court under Civil Procedure Code 1908(50 of1908) while trying the suit in respect of the following matters.

1. Summary and enforcing the attendance of any witness or any defendant or witness and examining the witness an oath.
2. Discovering and production of any documents or other material object as evidence.
3. Receiving  of evidence as affidavit.
4. Requisitioning of the report  of concerned analysis.
5. Any other matter which may be prescribed.

13. During the trial of the complaint evidence by way of affidavit describing every point of the case only allegations in writing  made by the complainant could not be treated as complainant evidence by affidavit and only pleading of complaint is not treated as evidence. As per C.P.Act, 2019 under section 38(3)(e) when the complainant fails to appear  on the date of hearing before the District commission may either dismiss the complaint for default or decide on its merits.

14.  After sufficient  time was granted to the complainant to lead evidence by way of affidavit  and since the complainant and counsel remained absent on the date of evidence, the commission come to the conclusion that the case of deficiency of service alleged is not proved by the complainant. Hence, the complaint is hereby dismissed. Accordingly, we answer the Point No.1 in Negative.

15. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint filed by the Complainant U/s 35 of the Consumer Protection Act, 2019 is dismissed. No costs.

2.  Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 25^th April  2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: Nil

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:

Sri Harish-Who being the OP

Documents produced by the OP
 

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*