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2017 DIGILAW 1005 (HP)

Parveen Kumar v. Anil Kumar Parmar

2017-08-31

MEENA VERMA, P.S.RANA, VIJAY PAL KHACHI

body2017
ORDER P.S. Rana (R), President. - Present appeal is filed against order dated 16.01.2016 passed by Learned District Forum in consumer complaint No. 19/2013 title Anil Kumar Parmar vs. SBI Life Insurance Co. Pvt. Ltd. & Anr. Brief facts of Case: 2. Complainant Parveen Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that complainant is serving as senior clerk in the office CMO Sirmaur H.P. It is pleaded that opposite party No. 2 agent of opposite party No. 1 approached complainant in the month of April 2008 to purchase life insurance policy. It is further pleaded that complainant paid Rs. 50000/-(Fifty thousand) as one time paid plan for a period of three years. It is further pleaded that complainant requested opposite parties to release the amount of Rs. 50000/- (Fifty thousand) alongwith maturity amount and interest but opposite parties did not release the amount and caused mental tension to the complainant. Complainant sought relief of Rs. 50000/- (Fifty thousand) alongwith interest. In addition complainant also sought relief of damages to the tune of Rs. 20000/- (Twenty thousand). 3. Per contra version filed on behalf of opposite party No. 1 pleaded therein that benefits payable under the policy are always subject to terms and conditions of insurance policy. It is pleaded that learned District Forum has no territorial jurisdiction to entertain and decide complaint. It is further pleaded that complainant is not consumer. It is further pleaded that investment made by complainant was for gaining profit and it was invested for commercial purpose. It is further pleaded that both the parties are bound by terms and conditions of policy. It is further pleaded that complainant has no cause of action against opposite party No. 1. It is further pleaded that complainant had option to apply for cancellation of policy within free look period of 15 days after receipt of policy. It is further pleaded that complainant did not opt for free look period option and continued the policy since 2008. It is further pleaded that complainant had paid only initial premium to the tune of Rs. 50000/- (Fifty thousand) under policy and it is further pleaded that policy lapsed due to non-payment of premium after 30.04.2009. It is further pleaded that complainant did not pay the premium within grace period of thirty days. It is further pleaded that complainant had paid only initial premium to the tune of Rs. 50000/- (Fifty thousand) under policy and it is further pleaded that policy lapsed due to non-payment of premium after 30.04.2009. It is further pleaded that complainant did not pay the premium within grace period of thirty days. It is further pleaded that if the premium is not paid within grace period then policy automatically lapsed. It is further pleaded that complainant has no cause of action to file the complaint. Prayer for dismissal of complaint sought. 4. Opposite party No. 2 was proceeded ex-parte by learned District Forum. Learned District Forum allowed complaint against opposite party No. 2 i.e. Parveen Kumar Sharma and ordered opposite party No. 2 to pay compensation to the tune of Rs. 45000/- (Forty five thousand) to the complainant within 45 days from the date of receipt of copy of order. Learned District Forum further ordered that failing which opposite party No. 2 would also pay interest @9% per annum. 5. Feeling aggrieved against order passed by Learned District Forum opposite party No. 2 i.e. Parveen Kumar Sharma filed present appeal before State Commission. 6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 7. Following points arises for determination in present appeal. 1. Whether appellant was properly served before learned District Forum in accordance with law? 2. Final order. Findings upon point No. 1 with reasons: 8. Complainant Shri Anil Kumar filed affidavit in evidence. There is recital in the affidavit that opposite party No. 2 is agent of opposite party No. 1. There is further recital in the affidavit that opposite party No. 2 approached complainant for purchase of life insurance policy. There is further recital in the affidavit that deponent paid Rs. 50000/- (Fifty thousand) as per one time paid plan for a period of three years. There is further recital in the affidavit that deponent was assured that he would get a sum of Rs. 50000/- (Fifty thousand) after three years with interest. There is further recital in the affidavit that on the assurance of opposite parties complainant purchased plan and deposited a sum of Rs. 50000/- (Fifty thousand) through draft No. 656718 dated 22.04.2008. There is further recital in the affidavit that opposite party No. 1 issued cheque to the tune of Rs. 50000/- (Fifty thousand) after three years with interest. There is further recital in the affidavit that on the assurance of opposite parties complainant purchased plan and deposited a sum of Rs. 50000/- (Fifty thousand) through draft No. 656718 dated 22.04.2008. There is further recital in the affidavit that opposite party No. 1 issued cheque to the tune of Rs. 33027/-(Thirty three thousand twenty seven) to the complainant. 9. Opposite party No. 1 filed affidavit of V. Srinivas in evidence. There is recital in the affidavit that deponent is duly authorized representative of SBI Life Insurance Company Limited. There is further recital in the affidavit that complainant is not consumer as defined under Consumer Protection Act 1986 as dispute raised by complainant pertains to unit linked policy which is a commercial policy. There is further recital in the affidavit that terms and conditions of policy is binding upon both the parties. There is further recital in the affidavit that complainant applied for unit plus plan vide proposal No. 24732049 dated 25.04.2008 and deposited a sum of Rs. 50000/- (Fifty thousand) and opted for yearly mode of payment of premium i.e. Rs. 50000/- (Fifty thousand) per year for term of five years. There is further recital in the affidavit that complainant had option to apply for cancellation of policy within free look period of 15 days but complainant did not exercise option within stipulated period. There is further recital in the affidavit that complainant had only paid initial premium to the tune of Rs. 50000/- (Fifty thousand) for one year and policy lapsed due to non-payment of remaining premium since 30.04.2009. There is further recital in the affidavit that complainant did not pay premium within grace period and there is further recital in the affidavit that after the expiry of grace period insurance policy automatically lapsed. There is further recital in the affidavit that maturity amount of complainant was to the tune of Rs. 33027.01 qua surrender policy. There is further recital in the affidavit that opposite party No. 1 is willing to pay maturity value as stated above on receipt of all documents required for processing the claim. There is further recital in the affidavit that complainant has no cause of action to file the complaint against opposite party No. 1. 10. Opposite party No. 1 also filed affidavit of Dhanya K.P. Deputy Manager Legal in evidence. There is further recital in the affidavit that complainant has no cause of action to file the complaint against opposite party No. 1. 10. Opposite party No. 1 also filed affidavit of Dhanya K.P. Deputy Manager Legal in evidence. There is recital in the affidavit that during the pendency of complaint opposite party has paid maturity amount to the tune of Rs. 33027/- (Thirty three thousand twenty seven) vide cheque No. 048068 dated 13.03.2014 to complainant. There is further recital in the affidavit that opposite party No. 1 has duly discharged his contractual obligation as per terms and conditions of policy and nothing is payable to the complainant. There is further recital in the affidavit that complainant is not entitled for any relief. 11. Submission of learned advocate appearing on behalf of appellant that appellant was not properly served by learned District Forum and on this ground appeal be allowed is decided accordingly. It is proved on record that address of opposite party No. 2 is shown as Shri Parveen Kumar Sharma S/o Shri Padam Dutt, House No. 128/1 Mohalla Katcha Tank, Nahan (Mohalla Charjan) District Sirmaur H.P. It is also proved on record that notice was issued to appellant by learned District Forum by way of registered letter alongwith acknowledgement. Acknowledgment is placed on record. In the acknowledgement address of Parveen Kumar has been shown as Parveen Kumar Sharma S/o Shri Padam Dutt Katcha Tank Nahan. In the acknowledgement house number of appellant has not been shown. In the acknowledgment name of district has also not been shown and in the acknowledgment name of State has also not been shown. We have perused signature upon acknowledgment and we have also perused signatures of appellant upon appeal and in the affidavit filed in appeal. Signatures of appellant in the appeal and affidavit filed in appeal and signatures of appellant upon acknowledgement did not tally with each other. It is well settled law that service upon opposite party should be effected personally or through adult member of family jointly residing with him. There is no recital in the acknowledgement that signature was obtain from the adult member of family of appellant who was residing jointly with appellant. There is also no recital in the acknowledgement that copy of complaint was served upon appellant. 12. There is no recital in the acknowledgement that signature was obtain from the adult member of family of appellant who was residing jointly with appellant. There is also no recital in the acknowledgement that copy of complaint was served upon appellant. 12. As per regulation 10(5) of Consumer Protection Regulations 2005 alongwith notice other documents annexed with complainant should be sent to opposite party. State Commission is of the opinion that word shall mentioned in Regulation 10 (5) is mandatory in nature and not directive in nature. There is no evidence on acknowledgement receipt and on the duplicate summon retained in the office of District Forum that copies of documents filed alongwith complaint were sent to opposite party No. 2. Regulation number 10 of Consumer Protection Regulations 2005 is quoted in toto:- 10. Issue of notice. - (1) Whenever the Consumer Forum directs the issuance of a notice in respect of a complaint, appeal or revision petition, as the case may be, to the opposite party(ies)/respondent(s), ordinarily such notice shall be issued for a period of 30 days and depending upon the circumstances of each case even for less than 30 days. (2) When there is a question of raising presumption of service, 30 days notice shall be required. (3) Whenever notices are sought to be effected by a courier service, it shall be ascertained that the courier is of repute. (4) While appointing the courier for the purpose of effecting service, security deposit may also be taken. (5) Along with the notice, copies of the complaint, memorandum of grounds of appeal, petitions as the case may be and other documents filed shall be served upon the opposite parties/party. (6) After the opposite party or respondent has put in appearance, no application or document shall be received by the Registrar unless it bears an endorsement that a copy thereof has been served upon the other side. 13. Submissions of learned advocate appearing on behalf of respondent No. 1 that opposite party No. 2 was duly served in accordance with law and on this ground appeal be dismissed is decided accordingly. It is held that plea of respondent No. 1 that opposite party No. 2 was duly served by learned District Forum as per Regulation No. 10 of Consumer Protection Regulations 2005 is defeated on the concept of ipse-dixit (An assertion made without proof). It is held that plea of respondent No. 1 that opposite party No. 2 was duly served by learned District Forum as per Regulation No. 10 of Consumer Protection Regulations 2005 is defeated on the concept of ipse-dixit (An assertion made without proof). There is no evidence on record to prove that notice was issued to opposite party as per address mentioned in the complaint. In the acknowledgment full address of opposite party No. 2 has not been mentioned and only half address of opposite party No. 2 has been mentioned. Hence it is held that proper notice was not issued to opposite party No. 2 and opposite party No. 2 was not properly served by learned District Forum. Even notice upon opposite party No. 2 was not served personally but was served through third person and there is no recital that third person is adult family member of opposite party jointly residing with him. In view of above stated facts State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified. Point No. 1 is decided accordingly. Point No. 2: Final Order 14. In view of findings upon point No. 1 above appeal is decided accordingly and order of learned District Forum dated 16.01.2016 announced in consumer complaint No. 19/2013 title Anil Kumar Parmar vs. SBI Life Insurance Company Limited & Anr. is set aside. Complaint is remanded back to learned District Forum with order that learned District Forum will give opportunity to the appellant to file version and thereafter learned District Forum will obtain evidence of parties by way of affidavits strictly as per modes mentioned under section 13(4) of Consumer Protection Act 1986. It is further ordered that learned District Forum will dispose of complaint afresh strictly in accordance with law and proved facts within two months after receipt of file. Observations will not effect merits of the case. Parties are directed to appear before learned District Forum Sirmaur at Nahan on 15.09.2017. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.