Veena Misra, Member
1. This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 05.07.2012, passed in Complaint No.08/2008 by the District Consumer Disputes Redressal Forum, Jagdalpur (hereinafter referred to as the âDistrict Forum for short) whereby the complaint was dismissed by the District Forum.
2. Aggrieved by the aforesaid order the complainant has preferred this appeal. Relevant facts necessary for disposal of this appeal are that complainant and her husband D.L.Netam had joint saving account No.0110060145.with OP no.2 Bank. Complainants husband had obtained insurance cover from OPâ3 under S.B.I. Life Super Suraksha Yojana. Premium for the period from 01.04.2005 to 31.03.2006 and 01.2006 to 31.3.2007 was debited from the aforesaid account by OP No.2 and transferred to OP No.3 insurer. After death of her husband Shri D.L.Netam on 29.06.2007, the complainant both orally as well as in writing requested for payment of Rs.2,00,000/âtowards claim. In response to the application, the complainant received letter dated 15.10.2007 from OP No.2 stating that as per request letter of her husband dated 26.02.2007 premium for year 200.7â2008 was not debited hence the insurance coverage is not available. After giving legal notice complaint was filed before District Forum alleging that her husband did not write letter dated 26.02.2007 and by not debiting the premium despite there being sufficient amount in their account, OP No.2 has committed deficiency in service.
3. OP No.1 and 2 filed joint written version denying all allegations of deficiency in service and stating that premium for the period 01.04.2007 to 31.03.2008 was not debited in pursuance of written request of complainants husband. It was averred that OP No.3 had issued only a Master Policy in favour of OP No.2 which was to be renewed on first of April every year and as complainants husband had instructed for not deducting premium, his instructions were followed. The complaint is malafide and deserves to be dismissed with cost.
4. OP No.3 insurer averred that there is no allegation in the complaint against OP No.3. Admittedly they had not received premium for the period covering death of complainants husband they are not at all liable as no cause of action has arisen against the said OP. Prayed for dismissal of complaint against OP No.3.
5. Twice the matter was remanded back, firstly in view of additional documents being produced by the Bank and secondly for permitting crossâexamination of the experts by way of furnishing questionnaire in view of contradictory opinion given by them. Finally the impugned order was passed dismissing the complaint, hence this appeal.
6. Final arguments heard and record perused.
7. Learned counsel for appellant submitted that the District Forum has failed to follow the directions given by this Commission vide order dated 24.02.2012 in appeal No.742/2011 to put questions to the experts after their crossâexamination by way of questionnaire. The District Forum has failed to put any questions to the experts and has drawn own inferences, hence the order is not sustainable. Learned counsel further submitted that the District Forum has relied upon the affidavit of Satish Meshram which was filed when the matter was remanded back due to additional documents being filed in appeal no.80/2009. By means of this affidavit the OPs had tried to fill the lacunae but the fact remains that the statements made in affidavit are not in consonance with the pleadings and proof without pleading cannot be accepted. Learned counsel submitted that the bank has neither stated about the mode through which the disputed letter dated 26.02.2007 was received in the branch nor has produced inward register. Learned counsel for appellant further submitted that the District Forum has failed to properly appreciate the material on record hence prayed for quashing the impugned order.
8. Learned counsel for respondent No.1 and 2 submitted that with course of time there occurs some change in the signatures. Disputed signatures have been found to be matching with signatures in the account opening form as well as some other admitted signatures. Hence the order passed by the District Forum does not call for interference.
9. Learned counsel for Respondent No.3 submitted that even in complaint there was no allegation against them and OP no.3 was only a formal party.
10. Admittedly Late D.L.Netam had obtained insurance coverage from OP No.3 for which renewal date was 1st April every year and premium was to be paid prior to the said date. It is also admitted that premium of Rs.661/âwas debited from his account on 31.03.2005 and 04.03.2006 and for the next year premium was not debited and D.L.Netam died on 29.06.2007. Plea taken by the Bank is that D.L.Netam had instructed the Bank vide letter dated 26.02.2007 for not debiting the premium amount for the coming year as he is not any further interested in taking insurance coverage. The complainant had disputed the said letter from the very beginning and alleged that no such letter was written by her husband for discontinuing the insurance policy. The complainant had produced report of handwriting expert Mr. Ulhas Athale who opined that the disputed signatures were not of D.L.Netam. In rebuttal the Bank had filed report of handwriting expert Dr. Sunanda Dhenge which was contrary to the report of Mr. Ulhas Athale. Both the experts had also replied, in the form of affidavit, the questionnaire provided by the other party.
11. The main question to be considered is whether the insured himself had instructed the Bank not to deduct premium for the period 2007â2008 or the Bank committed a mistake by not debiting the premium amount from the account of the insured. In view of contrary reports being given by the experts we examined the record with extra care and caution.
12. It is observed even from the bare eye that the signatures of late D.L.Netam on Exâ2 which an application for leave dated 4.2.2006 and Ex.Aâ3 which is request letter to the bank for adding the name of his wife in the account are very much the same and both the documents appear to have been written in the handwriting of D.L.Netam. Though no date has been mentioned on Ex.Aâ3 yet it appears from the Account Opening Form Ex.NAâ26 that name of Ambika Netam was added to the account on 12.2.2004. The signatures on front and back side of Savings Bank Withdrawal Form dated 24.5.2004 and 22.12.2004 which are Ex.NAâ22 and Ex.NAâ25 respectively are also in consonance with the signatures on Ex.Aâ2 and ExAâ3. Keeping in mind that the account was initially opened on 25.6.1998, it is noted that though there was considerable change in the signatures during long period of six years but the bank authorities were aware of such change and were following the instructions of the account holder as name of his wife was subsequently added in the year 2004 and signatures on Withdrawal Form were also honoured. So we find that there was natural change in the signatures of the account holder during aforesaid period of 6 years and the Bank authorities were aware of such change.
13. We have observed one more thing that the late D.L.Netam was in the habit of writing his initials in brackets under the signature. Now we come to the two Debit advise dated 31.12.2004 and 31.3.2005, Ex.NAâ23 and Ex.NAâ24 respectively, relating to debit for insurance premium. It is a matter of common knowledge that Debit advise is internal communication of the Bank and is not required to be signed by the account holder. This belief is further reinforced by the fact that on the printed form for Debit advise there is no place for signatures of the account holder. Surprisingly enough these Debit advises have also been alleged to bear âadmitted signatures of the account holder. Probably because the amount was paid towards premium by means of aforementioned Debit advises no body noticed that the account holder is not supposed to sign the documents. It is noted that the signature on debit advise are closer to signature of the account holder on Account Opening Form i.e. Specimen Signature, than those on admitteddocuments written in 2004.
14. Without going into other minute details, because the alphabets used in signatures are not clear, we would like to mention that earlier D.L.Netam used to underline the signatures differently but in his subsequent signatures the very first letter is written in such a manner so as to underline the signature. Besides specimen signatures mentioned in the report of experts as S.1 to S.3 only the signatures on document Ex.NAâ23 (Debit Voucher dated 31.12.2004) and Ex.NAâ24 (Debit Voucher dated 31.3.2005) appear to be in earlier style i.e. separately underlining the signatures. It is further noted that under the signature the initials of the account holder have not been mentioned as he normally used to do. It is significant to note that the signatures on withdrawal slips dated 24.5.2004 and 20.12.2004 are in the same style as his signatures on Ex.Aâ2 (Leave application) and Ex.Aâ3 Application for addition of his wifes name in the account) both signed in 2004 whereas the signatures on debit vouchers dated 31.1202004 and 31.302005 are different and surprisingly they bear more resemblance to the signatures S1 to S3 on the account opening form than to other signatures admittedly put on letters and withdrawal slips.
15. We have also noted that though it is written in letter dated 26.2.2007 alleged to have been written by Late D.L.Netam that premium for the year 2006 was debited from his account without his consent yet surprisingly enough Debit Voucher dated 31.3.2005 produced as Ex.NAâ24 allegedly bears his signatures.
16. Now we come to the disputed signature on letter dated 26.02.2007. The said signature is very different from other signatures. It is in descending form and does not bear similarity with other signatures. Dr. Sunanda Dhenge has found similarity in such signatures but we are not convinced by her report. On the other hand the other expert Mr. Ulhas Athale has observed ââThe disputed signatures show fundamentally different alignment which is descending while it is fairly straight in the comparative signatures. Further, besides making observations regarding spacing, penâlift, formation of alphabets etc. the expert Mr. Athale has also observed â âThe three formation show step like arrangements in the disputed signatures such step like arrangements is not seen in the comparative signatures. The expert has marked such formations in the enlarged photographs filed with his report. It is noted that this phenomena is so obvious that it is clearly discernible even with the bare eye. The expert has further found that the differences found in general and individual handwriting characteristics between the disputed and comparative signatures are âbeyond the range of natural variation of the writer of comparative signatures. These differences are so significant that these differences cannot be attributed either to the time gap or the intended disguise on part of genuine writer. Mr. Athale did not find any significant similarity suggesting common authorship in the disputed and comparative signatures.
17. Descending step like formation in the disputed signatures is very significant and is noticeable on the very first sight but surprisingly enough the other expert Dr. Sunanda Dhenge failed to notice and mention this very important phenomena in her report. Whereas even replying the questionnaire Mr. Athale replied the question No.20 in negative which challenged his observation of descending alignment.
18. We do not consider it necessary to go into other minute details as we find that from the observations made hereinabove we find the report of Mr. Athale to be more reliable and agree with him that the disputed signatures are not that of late D.L.Netam.
19. We have also observed that there is material to show that D.L.Netam was not keeping good health in the beginning of the year 2007. Even in the notice this fact has been mentioned. Though prescription of doctor has not been filed yet Cash Memo of M.P.M. Hospital Jagdalpur relating to dialysis of D.L.Netam dated 11.2.2007, 8.2.2007 and 28.2.2007 have been filed together with Cash Memo dated 11.2.2007 for Dialyser. It is noted that the District Forum while passing the impugned order got confused and thought that both the cash memo dated 11.2.2007 were for dialysis where as one was for Dialiser which is an apparatus through which dialysis is done. From the Cash Memo placed on record it is apparent that D.L.Netam was suffering from kidney problem and hence was required to undergo dialysis from the period prior to the time when the letter for discontinuing insurance has been alleged to have been written. It does not apply to reason that a person who is already insured would prefer to discontinue payment of premium after he started suffering from kidney problem.
20. The respondent has not placed any material to show the mode of receipt of the disputed letter. The complainant had stated that she used to go to the Bank to operate the account and in case her husband wished to send any letter he would have sent the same through her only. Pass book entries show withdrawal of Rs.10,000/âon 26.2.2007. In the facts of the case the silence of the respondent regarding the mode of receipt becomes much more conspicuous. Copy of inward register has also not been produced.
21. On the basis of observations made hereinabove we are of the considered view that complainants late husband had not written the letter dated 26.2.2007 for instructing the Bank not to debit premium amount. Probably the bank had mistakenly forgotten to debit premium amount and as the insured died and claim was preferred a story was developed as an afterthought.
22. Complainant had filed copy of the brochure relating to the relevant insurance plan which is at page 85 of the record of the District Forum. I t has been clearly mentioned that premium will be deducted from the account, hence by not deducting the premium the respondent Bank has committed deficiency in service. As solely due to such deficiency insurance cover of the husband of the complainant had discontinued and the insured died during the said period when insurance was not available, the Bank is liable to make good the loss. Order of the District Forum dismissing the complaint cannot be sustained and is hereby set aside. This appeal is allowed.
23. It is directed that Respondent No.1 and 2 shall be jointly and severally liable to pay the insured sum of Rs.2,00,000/â(Two Lacs) to the present appellant within a period of one month from the date of this order together with interest @9% from the date of complaint and Rs.5,000/âtowards costs of proceedings throughout.