DILIP KUMAR DE vs Unit Trust of India

THIS appeal, under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 15.7.1999 in Complaint No. 207/1997 by the District Consumer Disputes Redressal Forum, Bilaspur (hereinafter called the ''District Forum'' for short) dismissing the complaint of the complainant/appellant.

THE facts not in dispute stated in brief are that the complainant/appellant obtained membership on 18.7.1986 of respondent''s scheme known as ''Unit Linked Insurance Plan, 1971'' (hereinafter called as ''ULIP'' for short). THE complainant''s membership No. was 32005305. THE target amount as stipulated between the parties was Rs. 30,000/- and half yearly contribution of Rs. 1,500/- was payable by the complainant/appellant. THE last instalment was payable on 10.1.1996 and the policy was to mature on 18.7.1996. It is also not in dispute that when the complainant obtained the membership as above, he was posted at Asansol, West Bengal. He was subsequently transferred and posted at Gevra Project, District Bilaspur in the year 1991. THE complainant had duly intimated the respondent his address of Gevra road and sent his last half-yearly contribution from Gevra Project, District Bilaspur. The complainant averred that the maturity amount under the said scheme was payable to him on 18.7.1996. However, since he did not receive the same, he wrote to the respondent by letter dated 18.11.1996. The respondent intimated the complainant/appellant that the maturity amount of Rs. 60,821.95 was sent to him by cheques dated 18.7.1996. In further correspondence exchanged between the parties, the respondent intimated the complainant/appellant that the said cheques sent to him were encashed through Bank of India, New Town (Islampur), Siliguri on 6.9.1996. The complainant on inquiry was told by the Post Master, Gevra that the registered letter containing the cheques, as above, has not been received. The complainant, therefore, alleged deficiency in service by the respondent-Unit Trust of India and claimed that the maturity amount of Rs. 60,821.95 p. along with interest thereon and damages be paid to him.

The complaint was resisted by the opposite party/respondent U.T.I. A reply was filed on 20.10.1997 by the respondent U.T.I. An affidavit-cum-written reply was also filed by one Tapas Kumar Majhi, Branch Manager of Calcutta Main Branch Office of the respondent. It was averred that the three cheques bearing numbers as specified in Para 10 of the affidavit-cum-reply for the maturity amount of Rs. 60,821.95 p., were despatched to the address of the complainant/appellant at Gevra Bilaspur, M.P. by registered post from G.P.O., Calcutta. It was further averred that the said cheques were encashed through Bank of India, New Town, Islampur Branch on 6.9.1996 through the savings account in the said Bank. It was also averred that the respondent was inclined to lodge F.I.R. with the concerned police station and had taken steps for confirmation about the encashment and payment of the said cheques from Bank of India. It was further averred that there was no deficiency in service on the part of the respondent U.T.I.

THE learned Distt. Forum in the impugned order held that the photocopy of the cheque produced in the record and marked as Annexure-I, indicated that the cheques were encashed and payment thereof was made by Bank of India, New Town, Islampur. It was further held that prima facie it appears that the payment of the amount of cheques was received by the complainant/appellant. In view of the above, it was held that there was no deficiency in service on the part of the respondent - U.T.I. THE complaint was accordingly dismissed. The learned Counsel for the complainant/appellant submitted the photocopies of the 3 cheques allegedly despatched by the respondent though were paid by Bank of India, New Town, Islampur Branch. However, the endorsement of the Bank, on the said cheques or any other material on record, does not disclose that the cheques were credited to the account of the complainant/appellant. It was also submitted that there is no material to indicate that the said cheques were delivered by registered post to the complainant/appellant. It was submitted that the complainant had never received the cheques as alleged by the respondent, therefore, he was entitled to recover the maturity amount under the ULIP policy.

THE respondent''s Chief Manager submitted during arguments, that the order of the District Forum is justified and that the respondent has discharged his obligation by despatching the cheques to the complainant through registered post. It was submitted that presumably the cheques were received by the complainant. It was, therefore, submitted that the respondent cannot be held to have committed any deficiency in service. The main questions that arise for consideration are, as to whether the cheques of the maturity amount, under the ULIP policy obtained by the complainant, were received by him and as to whether there was any deficiency of service by the respondent UTI? It may be noticed that the complainant has averred that he has duly intimated his address at Gevra. The said address is also given in his letter dated 2nd July, 1997 marked as Annexure-C in the record of the District Forum. In fact the respondent also in its reply as well as affidavit-cum-reply in para admitted that the complainant had duly intimated the respondent his address and has in Para 10 of the reply as well as affidavit reproduced the said address of the complainant at Gevra. It was alleged by the respondent U.T.I. that the cheques were sent by registered post on the said address. However, it would appear from the material on record that the complainant has intimated the respondent, as well as the Branch Manager of Bank of India, Siliguri vide his letter Annexure-C and other letter placed on record that he did not receive the maturity amount. The complainant/appellant has also obtained a certificate dated 5.8.1997 from Post Master, Gevra Post Office, wherein the said Post Master has certified that as per their record no registered letter/post/parcel from M/s. Unit Trust of India, Calcutta (respondent) has been received by the said Post Office for delivery to the complainant/appellant Dilip Kumar De, during the period 18.7.1996 to 18.11.1996. Thus, the said certificate by the Post Master unequivocally goes to show that the registered letter allegedly sent by the respondent to the complainant''s address at Gevra was never received at Gevra Post Office. Thus there was no question that the said letter containing the cheques, was delivered to the complainant-appellant.

IT may also be noticed in the above context that the complainant had in the District Forum prayed that Tapas Kumar Majhi, who has filed his affidavit-cum-written reply in the District Forum be permitted to be cross-examined by the complainant. The prayer as above was allowed by the District Forum by order dated 10.12.1998. However, it appears that despite several opportunities given by the District Forum, the said deponent was not produced in the District Forum, the said deponent was not produced in the District Forum and could not be cross-examined. Consequently, the complainant was deprived of the opportunity to elicit information from him, about the payment of maturity amount to him, by the respondent U.T.I.

IT may be noted that before the National Commission in Unit Trust of India v. Rakesh Rastogi & Ors., I (2003) CPJ 226 (NC) a similar question arose and the stand of the UTI in that case was that the cheques having been sent by them by registered post to the complainant''s address, there was no deficiency of service on its part. IT was held by National Commission that even though the Unit Trust of India sent cheques by registered post but since those cheques never reached the hands of the addressee and were encashed by somebody else, resulting in loss to the complainant, he was entitled to receive the amount payable to him. In that case it appears that somebody who received the cheques opened an account in the name of the addressee (complainant) and encashed the cheques. Similar proposition has been laid down by U.P. State Commission in Unit Trust of India & Anr. v. Mohd. Ausaf & Ors., 2000 (2) CPR 212, wherein it was observed that it was the duty of the appellant U.T.I. to pay the amount to the complainant and that it was under an obligation to see that cheques were duly delivered to complainant. IT was further observed that the liability of the appellant U.T.I. does not cease merely by saying that it posted the cheques by registered post. IT was also observed therein that the sending of letter by registered post does not mean that it has been delivered to the addressee. IT was further observed that no doubt there is a presumption under Section 114 of the Evidence Act, of due delivery of the registered letter, however, this presumption is rebuttable and was rebutted by the complainant. IT was, therefore, held that since the appellant failed to prove that the cheques were duly delivered to the complainant, the appellant was liable to make payment to the complainant. In the instant case, as noticed earlier the complainant has by un-impeachable material placed on record proved that the registered letter allegedly sent by the respondent to him was actually never received at Gevra Post Office and was not delivered to him. There is no material to hold that the cheques were encashed and credited to the account of the complainant/appellant. Therefore, merely because the cheques were sent by registered post by respondent or that the said cheques encashed through Bank of India at New Town, Islampur Branch and credited in the Savings Bank account, would not indicate payment to the complainant/appellant.

The finding of the learned District Forum that prima facie it appears that the amount was received by the complainant, therefore, is not justified, in view of the observations of the National Commission in Rakesh Rastogi (supra) and the U.P. State Commission in Mohd. Ausaf & Ors., (supra). The liability of the respondent towards the complainant for payment of the amount does not cease merely because the cheques were despatched by registered post, as is the averment of the respondent. Moreover the complainant established by unimpeachable material placed on record that the registered letter containing the cheques never reached the Post Office, and was, therefore, never delivered to him. The presumption of due delivery of cheques, therefore, stands totally rebutted. The complainant was, therefore, entitled to get the amount of maturity under the said policy of ULIP obtained by him. Clearly, therefore, the District Forum erred in dismissing the complaint.

FOR the foregoing reasons the appeal is allowed. The impugned order is set aside. It is directed that the respondent shall pay to the complainant/appellant Rs. 60,821.95 (Rupees sixty thousand eight hundred twenty-one and paise ninety-five) only being the maturity amount under his membership of the ULIP, the interest @ 10% per annum shall be payable from the date of the maturity i.e., 18.7.1996 till payment on the said amount. The respondent shall bear its own cost and shall pay that of the complainant/appellant, which is quantified at Rs. 3,000/- (Rupees three thousand) only. Appeal allowed.