Chandigarh

StateCommission

A/110/2015

Mrs. Urmila Rani - Complainant(s)

Versus

PNB Metlife India Insurance Company Limited - Opp.Party(s)

Kulwinder Singh Rathour, Adv.

27 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

First Appeal No.	:	110 of 2015
Date of Institution	:	25.05.2015
Date of Decision	:	27.05.2015

 

Mrs. Urmila Rani wife of Dr. Mahender Singh, resident of 02 Campus, Govt. College of Education, Sector 22-D, Chandigarh.

……Appellant/Complainant

V e r s u s

1. PNB Metlife India Insurance Company Limited, Registered Office Brigade Soshamahal, 5, Vani Vilas Road, Basavanagudi, Bangalore-560004.
2. The Branch Manager, PNB Met Life India Insurance Company Co. Ltd., 2^nd Floor, Plot No.28, Industrial and Business Park, Phase 1, Chandigarh-160001.
3. Jatin Malik (Code 60073101) Insurance Agent, PNB Met Life India Insurance Company Ltd., SCO 2463-64, 2^nd Floor, Near Federal Bank, Sector 22-C, U.T., Chandigarh.
4. The Regional Manager, PNB Met Life India Insurance Company Ltd., SCO 2463-64, 2^nd Floor, Near Federal Bank, Sector 22-C, U.T., Chandigarh.
5. The Branch Manager, Punjab National Bank, Sector 20-C, U.T., Chandigarh.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by:Sh.Kulwinder Singh Rathore, Advocate for the                      appellant.

                Sh.Umesh Kumar, Advocate for respondents No.1, 2              and 4.

                Ms.Namita Kandhari, Advocate for Opposite Party No.5.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 16.04.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the consumer complaint bearing No.763 of 2014, in default of appearance of the complainant (now appellant).

2.       The facts, in brief, are that Opposite Party No.3, agent of Opposite Parties No.1, 2 and 4, visited the residence of the complainant, and insisted her to invest some amount, in their (Opposite Parties No.1, 2 and 4) Insurance Policy. As such, the complainant issued one cheque, bearing No.332938 dated 20.04.2013, in the sum of Rs.50,000/-, pertaining to her saving account, and also handed over the requisite documents to Opposite Party No.3. It was stated that, on the asking of Opposite Party No.3, the column of “pay to” in the said cheque was left blank. It was further stated that, later on, the complainant consulted her husband and decided to drop the idea of investment in the Insurance Policy of Opposite Parties No.1, 2 and 4.  As such, the complainant requested Opposite Party No.3 to close her application, aforesaid, and return the the cheque issued by her, alongwith the documents aforesaid. It was further stated that it was assured by Opposite Party No.3, that he will destroy all the documents, alongwith the cheque issued by the complainant. It was further stated that, however, on 23.10.2013, the complainant received a  message, on her mobile phone, from Opposite Party No.5, with whom she was holding the saving bank account that the amount of Rs.50,000/- had been debited to it (saving account) and credited to the account of Opposite Parties No.1, 2 and 4. It was further stated that, as such, the complainant approached Opposite Parties No.1 to 4, and enquired about the matter, but to no avail. It was further stated that after sometime, the complainant received a welcome letter dated 20.11.2013, pertaining to the Insurance Policy, issued by Opposite Parties No.1, 2 and 4, in her favour, wherein the name of the broker/agent was mentioned as Mr. Jatin Malik. i.e. Opposite Party No.3. It was further stated that Opposite Parties No.1, 2 and 4, in connivance with Opposite Party No.3, had misused the cheque, issued by the complainant, as also the documents, which were handed over by her to him (Opposite Party No.3).  It was further stated that not only this, Opposite Parties No.1 to 4, had forged the signatures of the complainant, at various places, on the documents and issued the said Insurance Policy, without her consent. It was further stated that written complaints dated 05.12.2013 and 26.12.2013 were made by the complainant, to Opposite Parties No.1 and 4, but to no avail.
3.       It was further stated that after much persuasion, the amount of Rs.50,000/-, aforesaid, was refunded to the complainant by Opposite Parties No.1, 2 and 4, but without interest and compensation. It was further stated that the complainant approached Opposite Parties No.1 to 4, through every possible means, with a request to pay her interest on the amount of Rs.50,000/- for the period the same was retained by them and compensation, but they flatly refused to do so. It was further stated that the aforesaid acts of Opposite Parties No.1 to 4, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs.
4.       Opposite Parties No.1, 2 and 4, in their joint written version, stated that the terms and conditions, in respect of the said Insurance Policy, were duly explained by Opposite Party No.3, to the complainant, before obtaining the same. It was further stated that the complainant duly filled in and signed the proposal form. It was further stated that alongwith the proposal form the complainant also paid the amount of premium, for the Insurance Policy, which she opted for. It was further stated that it was only after the receipt of proposal form, that the Insurance Policy, in question, was issued and dispatched to the complainant, which she opted for. It was further stated that it was clearly mentioned in the welcome letter aforesaid that, in case, the complainant was not satisfied with the terms and conditions of the Insurance Policy, she was at liberty to get the same cancelled, within the free look period of 15 days, from the date of receipt of the same. It was further stated that Opposite Parties No.1, 2 and 4, received an email dated 02.12.2013, from the complainant, wherein she opted for cancellation of the Insurance Policy, within the free look period of 15 days, from the date of receipt of the same, which was acceded to, and the amount invested by her was refunded to her. It was further stated that, as per the terms and conditions of the Insurance Policy, the complainant was neither entitled to any interest on the amount refunded to her, nor any compensation. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1, 2 and 4, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.       On 16.04.2015,  the complaint  was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed in default of her appearance.
6.       Feeling aggrieved, the instant appeal, was filed by the appellant/complainant, against the order dated 16.04.2015.
7.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully.
8.        Sh.Kulwinder Singh Rathore, Counsel for the appellant (Counsel in the consumer complaint also), submitted that, no doubt, on 16.04.2015, none put in appearance, on  behalf of the appellant/complainant, as a result whereof, the consumer complaint was dismissed in default of her appearance. He further submitted that, on 16.04.2015, suddenly, he (Sh.Kulwinder Singh Rathore, Counsel) had to go to Rajpura, on account of some family problem, as a result whereof, he deputed his friend Mr.Mandeep Kumar Dhot, Advocate, to appear before the District Forum, and make a request, on his behalf, to give a short date, in the consumer complaint. He further submitted that since Mr.Mandeep Kumar Dhot, Advocate, was busy in his personal work, he could not put in appearance, in the District Forum, on 16.04.2015. He further submitted that after finishing his personal work, Mr.Mandeep Kumar Dhot, Advocate, appeared before the District Forum, whereupon, it transpired that the consumer complaint had already been dismissed in default of appearance of the complainant. He further submitted that, on account of the reasons, aforesaid, neither he, nor Mr.Mandeep Kumar Dhot, Advocate, could appear in the District Forum, on 16.04.2015, when the complaint was called. He further submitted that, thus, the absence of the complainant, on 16.04.2015, was neither intentional, nor deliberate, but for the reasons, referred to above. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to  her (appellant/complainant), as in that event, she would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
9.        On the other hand, the Counsel for the respondents No.1, 2 and 4 submitted that, no doubt, the absence of the appellant/complainant, on 16.04.2015, in the District Forum, was intentional and deliberate, yet in the interest of justice, he has no objection, if the order impugned is set aside, subject to imposition of heavy costs upon her (appellant).
10.       However, the Counsel for respondent No.5, submitted that the absence of the complainant (now appellant), on 16.04.2015, in the District Forum, was intentional and deliberate. She further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.  
11.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and, on going through the record, we are of the considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  It may be stated here, that perusal of the District Forum record, reveals that  vide order dated 24.11.2014, notice was ordered to be issued to the Opposite Parties, for 06.01.2015.   On 06.01.2015, the Counsel for Opposite Parties No.1, 2 and 4, put in appearance, and filed his vakalatnama, on their behalf. Since the notices sent to Opposite Parties No.3 and 5, through ordinary post were not received back served or unserved, they were ordered to be served through registered post for 19.02.2015. On 19.02.2015, written statement and short affidavit were filed, on behalf of Opposite Parties No.1, 2 and 4. At the same time, Ms. Namita Kandhari, Advocate, put in appearance on behalf of Opposite Party No.5, and filed her vakalatnama. However, notice sent to Opposite Party No.3, through registered post was received back unserved, with the remarks “addressee has left”. As such, the complainant was directed to furnish the correct address of Opposite Party No.3, within 10 days, whereafter, notice was ordered to be issued to it (Opposite Party No.3), for 06.04.2015. Reply and evidence, on behalf of Opposite Party No.5, as also evidence, on behalf of Opposite Parties No.1, 2 and 4, was also ordered to be filed on 06.04.2015. On 06.04.2015, none put in appearance, on behalf of the complainant, as a result whereof, the consumer complaint was adjourned to 16.04.2015, for the purpose. Since, reply and evidence, on behalf of Opposite Party No.5, as also evidence, on behalf of Opposite Parties No.1, 2 and 4, were also not filed, the same too were ordered to be filed on the said date i.e. 16.04.2015. However, as stated above, on the said date i.e. 16.04.2015, the complaint was called many times, but none entered appearance, on behalf of the complainant, on account of the reason that suddenly Sh.Kulwinder Singh Rathore, Counsel engaged in the consumer complaint, had to go to Rajpura, on account of some family problem, as a result whereof, he deputed his friend Mr.Mandeep Kumar Dhot, Advocate, to appear before the District Forum and make a request, on his behalf, to give a short date, in the consumer complaint, but since he (Mr.Mandeep Kumar Dhot, Advocate), was busy in his personal work, he also could not put in appearance, in the District Forum, on the said date (16.04.2015), as a result whereof, the same (consumer complaint) was dismissed in default of her (complainant) appearance.
12.       It may be stated here, that by 16.04.2015, only vakalatnama and reply on behalf of Opposite Parties No.1, 2 and 4 were filed. Evidence on behalf of Opposite Parties No.1, 2 and 4 was still to be filed by them. Even, Opposite Party No.5 did not file his reply and evidence by 16.04.2015. It means that the complaint could be said to be at the preliminary stage only. In our considered opinion, in the interest of justice, the District Forum should have granted one more opportunity, to the complainant, but it did not and dismissed the complaint in default of her appearance. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
13.       No doubt, there was negligence, on the part of the Counsel for the complainant, as it was required of him, to reach the District Forum, on the date fixed i.e. 16.04.2015, and if, he had to suddenly go to Rajpura, on account of some alleged family problem, and deputed his friend Mr.Mandeep Kumar Dhot, Advocate, to appear before the District Forum and make a request, on his behalf, to give a short date, in the consumer complaint, who also did not appear, as he was allegedly busy in his personal work, on the said date (16.04.2015), it was his (Sh.Kulwinder Singh Rathore, Counsel) bounden duty to keep in touch with him (Mr.Mandeep Kumar Dhot, Advocate), to know the status of the case and remind him to appear in the District Forum, on the said date, but he failed to do so. Since, the Counsel for the complainant did not take the requisite measures, referred to above, negligence was attributable to him.  It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
14.       On account of the negligence of the complainant or her Counsel, delay in the disposal of complaint, on merits, shall be caused.  According to Section 13 (3A) of the Act, endeavour should be made to decide the complaint, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of service of the Opposite Party(s). The complaint had been filed on 20.11.2014. A period of three months has already lapsed, much earlier. Since, the case is being remanded back, certainly further delay shall be caused, in the disposal thereof.  Thus, the appellant/complainant is required to be burdened with costs.
15.       For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further,  from the stage, at which, it was dismissed in default of appearance of the complainant, and decide the same, afresh, on merits, in accordance with the provisions of the Act.  However, the appellant/complainant is burdened with costs of Rs.7,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs, in equal shares, to respondents No.1,2, 4 and 5, shall be a condition precedent. 
16.       The Parties are directed to appear before District Forum (I) on 08.06.2015, at 10.30 A.M., for further proceedings. 
17.       The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 08.06.2015, at 10.30 A.M.
18.       Certified copies of this order, be sent to the parties, free of charge.
19.        The file be consigned to the Record Room, after due completion.

Pronounced.                                                Sd/-

May 27, 2015                         [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

  MEMBER

 

Rg