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2007 DIGILAW 65 (CHH)

PHULESHW ARI BAI v. PRAKASH GOLCHHA

2007-01-24

R.S.AWASTHI, V.K.AGARWAL, VEENA MISRA

body2007
ORDER V.K. Agarwal, President : 1. This appeal, under section 15 of the Consumer Protection Act, 1986, is directed against the order dated 4.9.06 in complaint No.3/01 by District Consumer Disputes Redressal Forum, Dhamtari (hereinafter called "District Forum" for short) dismissing the appellant's complaint. 2. Complainant/appellant is the wife of Rajeshwar Singh. It was averred by the complainant that, her husband Rajeshwar Singh through respondent No.1 Prakash Golchha, the agent of Life Insurance Corporation of India (‘LIC’ for short), paid premium of Rs.7,300/- on 28.7.05 in order to obtain a life insurance policy (‘LIC policy’ for short) for Rs.4,00,000/-. The said amount paid by Rajeshwar Singh was deposited by the agent respondent No.1 Prakash Golchha and a receipt was obtained from respondent No.2 LIC. The complainant further alleged that despite payment of the said amount of premium, the policy document was not issued in favour of the complaint's husband. In the meanwhile the complainant's husband suddenly expired on 11.9.05. The complaint therefore sought payment under the policy from respondent No.2. However, respondents did not give her any satisfactory reply. Therefore, legal notice dated 18.10.05 was served by the complainant on the respondents. Since, the payment was not made, the complainant approached the District Forum praying that Rs. 4,00,000/- the amount of the policy and compensation of Rs. 10,000/- be awarded. 3. The complaint was resisted by the respondents. Respondent No.1 Prakash Golchha admitted that he is an agent of LIC. He however, denied that any premium amount was deposited by the husband of the complainant through him. Respondent No.1 averred that he had given information to the complainant's husband, about the various policies issued by LIC and premium amount thereof. It was further averred by respondent No.1 that, he informed the complainant's husband that he should directly deposit the premium amount with LIC because the agent is not authorized to collect the premium amount. It was further averred that respondent No.1 never deposited premium amount of Rs.7,300/- for and on behalf of the complaint's husband as the amount of premium is directly deposited by the persons seeking policy. It was further averred by respondent No.1 that since the complainant's husband failed to furnish the proposal form and did not complete other formalities, therefore, no policy was issued in his favour. It was further averred by respondent No.1 that since the complainant's husband failed to furnish the proposal form and did not complete other formalities, therefore, no policy was issued in his favour. It was averred that since the complainant's husband committed default as above, hence the complainant cannot get any benefit as claimed by her. 4. Respondent No.2 LIC denied that there was any insurance of Rajeshwar Singh. According to respondent No.2 Rajeshwar Singh did not submit any proposal form with the respondent No.2 LIC. It was averred that Rs. 7,300/- were deposited on 28.7.05 for one Rajeshwar Jee with the LIC, through agency code of respondent No.1 Prakash Golchha. However, no proposal in regard thereto was submitted with respondent No.2 LIC. It was further averred that the formalities for obtaining LIC policy were not completed by Rajeshwar Jee. It was further averred that respondent No.2 LIC informed respondent No.1 to get the formalities completed in regard to the premium amount as deposited above, upon which respondent No.1 assured that formalities etc. would be completed within a short period. However, it was not so done. By way of amendment respondent No.2 LIC also averred that documents furnished by the complainant show that the name of the proposed insured was Rajeshwar Ram Kalar. It was averred that special medical reports were required in regard to the proposal. It was further averred that the said proposal form was not submitted with respondent No.2 LIC and the endorsement thereon was not made by its officials. Doubt was expressed about the correctness and genuineness of the said document. It was also averred that the complainant has shown the name of her husband as Rajeshwar Singh while the document produced by her show that the name of the proposed insured as Rajeshwar Ram. It was also averred that Rajeshwar Ram was not medically examined nor docmnents relating to his medical check up were produced. It was also averred that the complainant had served notice for payment of the amount on the ground that Rameshwar Singh was insured while in the present complaint the husband's name of the complainant is shown as Rajeshwar Singh. It was further averred that the complainant has deliberately described her husband's name as Rajeshwar Singh, Rameshwar Singh, and Rameshwar Ram. It was further averred that the complainant has not given correct information and has not furnished the death claim properly. It was further averred that the complainant has deliberately described her husband's name as Rajeshwar Singh, Rameshwar Singh, and Rameshwar Ram. It was further averred that the complainant has not given correct information and has not furnished the death claim properly. It was averred that the name of Rajeshwar Ram in whose name the proposal form was submitted was not insured by respondent No.2. Hence, respondent No.2 LIC is not liable for the death of the complainant's husband Rajeshwar Singh. It was therefore prayed that the complaint be dismissed. 5. District Forum in the impugned order observed that the respondent No.1 did not commit any deficiency in service. It was further held that as respondent No.2 LIC never issued the policy it was not liable for payment and held that there was no deficiency in service by respondent No.2 also. The complaint was accordingly dismissed. 6. At the outset, it may be noted that respondent No.1 Prakash Golchha admitted that he is the agent of LIC. However, according to him he works independently. He further averred that he only informed the complainant's husband about the details and particulars of various policies issued by respondent No.2 LIC and had advised him to deposit the premium amount with LIC directly. He denied that he had deposited the amount of premium with respondent No.2 for and on behalf of the complainant's husband. 7. However, contrary to the stand as above taken by respondent No.1, the respondent No.2 LIC in its written version averred that Rs.7,300/- were deposited by respondent No.1 under his agency code, and deposit receipt under his agency code 1174379 was issued. Copy of the deposit receipt of the above amount of Rs.7,300/- has also been filed in the record of the complaint, which clearly supports the averment as above of the respondent No.2 LIC. It has been mentioned in the said receipt that Rs.7,300/- in favour of Rajeshwar Jee was deposited under B.O.C. No. 1903. The said agency code No. 1174379 is that of respondent No.1 as has been asserted by respondent No.2 and not controverted by respondent No.1. It has been mentioned in the said receipt that Rs.7,300/- in favour of Rajeshwar Jee was deposited under B.O.C. No. 1903. The said agency code No. 1174379 is that of respondent No.1 as has been asserted by respondent No.2 and not controverted by respondent No.1. It may also be noted in the above context that LIC had issued a letter dated 5.8.05 to respondent No.1 in which it was specifically mentioned that Rs.7,300/- were deposited on 28.7.05 under B.O.C. No. 1903 by the respondent No.1 Prakash Golchha; however, respondent No.1 has not deposited the proposal form in regard to the said deposit. He was requested to expedite the matter and submit the proposal form. Respondent No.1 in his reply dated 16.8.05 to the said letter stated that he has intimated Rajeshwar Singh Rio Bagodar to submit the proposal form along with documents. 8. The material and documents placed as above on record, clearly go to show that respondent No.1 Prakash Golchha had deposited Rs.7,300/- as evidenced by receipt issued by respondent No.2. It further appears that respondent No.2 reminded respondent No.1 to furnish proposal form in regard to the said deposit. Therefore, the averments of respondent No.1 denying that he had deposited any premium amount for and on behalf of the husband of the complainant and that he only informed him about the various policies and had advised the complainant's husband to deposit premium amount directly with respondent No.2 LIC and to submit his proposal form there, does not appear to be truthful. In fact it is clear from the above material that it was the respondent No.1 Prakash Golchha who deposited the amount of Rs.7,300/- with respondent No.2 LIC for and on behalf of the complainant's husband. 9. It is true that in the receipt of deposit the name as mentioned is Rameshwar lee. The complainant has described the name of her husband as Rajeshwar Singh, the complainant in her legal notice dated 18.10.05 has also mentioned her husband's name as Rajeshwar Singh. The death certificate is also regarding Rejeshwar Singh. However, in some of the documents placed on record the name of the complainant's husband is mentioned as Rameshwar Singh. It further appears that in the proposal review slip issued by respondent No.2 regarding issuance of policy in favour of the complainant's husband, the name is mentioned as Rajeshwar Ram Kalar. The death certificate is also regarding Rejeshwar Singh. However, in some of the documents placed on record the name of the complainant's husband is mentioned as Rameshwar Singh. It further appears that in the proposal review slip issued by respondent No.2 regarding issuance of policy in favour of the complainant's husband, the name is mentioned as Rajeshwar Ram Kalar. Therefore, there is discrepancy and difference in the name of the complainant's husband in various documents filed on record. It is not clear as to why and how this discrepancy in the name of the complainant's husband occurred. 10. It is not in di~f1ute that respondent No.2 LIC never issued any policy. In fact from the documents on record it appears that respondent No.2 LIC reminded respondent No.1 agent Prakash Golchha, to obtain proposal form with necessary medical documents in order that proposal for insurance of the complaint's husband may be processed and proceeded with. It is not clear, as to why then the proposal review slip filed on record was prepared by respondent No.2. The said proposal slip, it is mentioned in the column suggestive underwriting – “cannot underwrite at branch, referred to BO/ZO/CO". There is yet another column in which it is mentioned that deposit not sufficient. There is no explanation about the remarks as above. There appears to be no averment in the reply of the respondents that premium amount was not sufficient. In fact it would appear from the proposal review slip itself, that premium amount was Rs. 7,165/- and the tabular rate of Rs. 72.65p. The deposit as mentioned above was indisputably Rs. 7,300/-. That being so, the deposit of premium could not be insufficient as has been mentioned in the deposit review slip. The respondent No.2 has challenged the genuineness of the said document. In any case, it appears from the proposal review slip dated 6.9.05 that though the proposal of the complainant's husband was being processed and considered for issuance of policy, but policy was actually not issued by respondent No.2; and thus the final acceptance by respondents of the proposal of the complainant's husband was not made. It is also not clear that the medical documents etc. It is also not clear that the medical documents etc. as demanded by respondent No.2 for issuance of policy were furnished by the husband of the complainant: Therefore, there being no concluded contract between the complainant and respondent No.2 LIC and no policy having been issued by respondent No.2 (LIC), it cannot be made liable to pay the amount under such proposal which did not materialise by final acceptance by LIC. 11. So far as respondent No.1 Prakash Golchha is concerned, it clearly appears that he has taken a false stand as would be clear from the above discussions. It is clear that though he accepted the amount from the complainant's husband and deposited it with respondent No.2 LIC, yet he has chosen to deny the deposit thereof. It also appears that there is a proposal form duly signed by the husband of the complainant, Rajeshwar. Presumably, the said proposal form must have been obtained by the agent respondent No.1 and the same might have been either retained by respondent No.1 or belatedly submitted to the respondent No.2. Why respondent No.1 failed to deposit the proposal form within time and as to why he could not get the formalities completed from the complainant's husband, has not been duly explained by him. It is pertinent to note in the above context that the respondent No.1 Prakash Go1chha by his letter dated 10.8.05 purportedly addressed to Rajeshwar lee Rio Bagodar Dist. Kanker, stated that he has to submit proposal form along with other medical documents etc. for completion of formalities of insurance. In support of sending this letter a UPC receipt has been filed on record, The seal on the stamps of the said postal receipt is vague and smudged it and cannot be properly deciphered as to which Post Office has put that seal. Thus by such a seal on the UPC slip, it cannot be said that letter dated 10.8.05 was in fact sent by respondent No.1. Moreover, if respondent No.1 agent had nothing to do with the deposit of premium, as has been averred by him, there was no reason as to why he should have written letter dated 10.8.05 to the complainant's husband. 12. It thus appears that respondent No.1 has not come with clean hands. Moreover, if respondent No.1 agent had nothing to do with the deposit of premium, as has been averred by him, there was no reason as to why he should have written letter dated 10.8.05 to the complainant's husband. 12. It thus appears that respondent No.1 has not come with clean hands. It appears that he has denied having taken any part for and on behalf of the complainant's husband for issuance of insurance policy; in order to avoid his liability as a result of loss caused to the complainant because of non-issuance of policy in favour of the complainant's husband because the formalities thereof were not completed. It therefore, appears that respondent No.1 agent has tried to camouflage his default by denying in toto the averments of the complainant and stating that he did not deposit the amount of premium with respondent No.2. It is therefore clear that respondent No.1 has committed deficiency in service in not taking action, which was expected of him, he being the agent of respondent No.2 LIC. If he had obtained the premium amount from the husband of the complainant, he was under an obligation and duty to get the formalities completed from him so that policy could be duly issued. He failed to do so even after about one and half months after the deposit of the amount and till death of the complainant's husband on 11.9.05. Had he been alert and had discharged his duties properly, the complainant might not have been deprived of getting the benefit of the policy that might have been issued by respondent No.1. 13. In the foregoing circumstances we consider it just and proper to award Rs.30,000/- as against respondent No.1 for deficiency in service on his part. Therefore, though the impugned order dismissing the complaint as against respondent No.2 LIC is maintained. But so far as respondent No.1 Prakash Golchha is concerned the appeal has been partly allowed and it is directed that respondent No.1 agent shall pay to the complainant Rs.30,000/- (Rupees Thirty Thousand) with interest thereon payable @ 9% p.a. from 01.1.06. The respondent No.1 shall also pay to the complainant/appellant cost of this litigation including that of the complaint as well as of this appeal, which is quantified at Rs.2,000/ (Rupees Two Thousand) only. Appeal Partly Allowed.