Life Insurance Corporation of India vs MONORANJAN GOPE

THIS appeal is against an order of the Nadia District Forum allowing a complaint claiming compensation against the Life Insurance Corporation of India. The facts alleged in the complaint were as follows:-

ONE Monoranjan Gope, son of Sri Jagatbandhu Gope of Nutanbazar, Krishnagar was entitled to an amount of Rs. 5,000/- from the L.I.C.I. being the survival benefit of a Money Back Policy. The said amount was sent to the policy holder Monoranjan Gope by the L.I.C.I. after getting the discharge certificate duly signed and after the completion of all formalities. The money was sent through a cheque, drawn on the UCO Bank, per registered post. The Complainant-Monoranjan Gope, however, did not receive the cheque. On enquiry it was revealed that the cheque was delivered by the Postal Department, to one Madhusudan Karmakar at Nabadwip and the same was ultimately encashed by some person through the Dena Bank, Krishnagar who opened a new account in the name of Monoranjan Gope in the aforesaid bank and withdrew the money. The complaint case was filed against (1) the Senior Branch Manager, L.I.C.I., Krishnagar Branch, (2) the Superintendent of Post Offices, Nadia North Postal Division, Krishnagar, (3) Shri Madhusudan Karmaker of Mukherjee Market, Dearapara Nabadwip, and (4) the Branch Manager, Dena Bank of Krishnagar Branch, claiming a total compensation of Rs. 12,000/- alleging that the money was wrongly paid to a fictitious person.

All the Opposite Parties contested the case before the District Forum. The L.I.C.I.''s defence was that it had sent the cheque, duly crossed and A/c payee, per registered post at the recorded address of the Complainant-policy holder at Krishnagar, but it lost the track at the postal end to which the L.I.C.I. had no control. On receipt of the information that the cheque was misdelivered to one Madhusudan Karmakar the L.I.C.I, had referred the case to the Postal Authorities but the latter denied its obligation to pay any compensation on this account on the plea that the complaint was not made within three months from the date of misdelivery.

THE Supdt. of Postal Office''s case was that the Postmaster, Krishnagar Head Office, had received a letter of intimation regarding the change of address of the addressee on 29.12.90 where the addressee requested the Postmaster to redirect his mails to a new address namely, "C/o. Madhusudan Karmakar, Mukherjee Market. Dearapara Nabadwip-741302." THE registered letter was accordingly redirected to the new address where the relevant Postman could not deliver the letter to the addressee from 5.1.91 to 9.1.91 due to the absence of the addressee. On 10.1.91 also the addressee Monoranjan Gope was found absent and at the request of Madhusudan Karmaker under whose care the addressee gave his address the letter was handed over to him on behalf of the addressee on 10.1.91. On receipt of the complaint that the letter did not reach the real addressee the Postal Department did not want to proceed further with the matter as the case was already time barred as three months had elapsed from the date of posting of the letter. Opposite Party No. 3, Madhusudan Karmaker in his written objection admitted the receipt of the disputed registered letter, but he wove a different story of his own involving another man one Nirode Debnath, with this letter. According to this Opposite Party, Nirode Debnath was a busy agent of the L.I.C.I. through whom Opposite Party No. 3 and his wife had effected certain life insurance policies. This Mr. Debnath was on visiting terms with Opposite Party No. 3. He allegedly told the Opposite Party No. 3 Madhusudan Karmakar that due to his frequent visits to various places he had arranged his mails to be sent to the address of Opposite Party No. 3. Shri Karmakar''s case is that on receiving the registered letter on 10.1.91 he handed it over to Nirode Debnath.

OPPOSITE Party No. 4 Dena Bank did not file any written objection but contested the case. His case as it appears from the judgment of the District Forum is that one Monoranjan Gope opened an account in the bank on the introduction of one Sanjoy Mitra of Chand Sarak Para and the relevant A/c. Payee cheque was encashed by him. On being summoned Sanjoy Mitra appeared before the Court, but he did not identify the complainant as Monoranjan Gope but said that the person whom he introduced was another person who was the owner-cumdriver to Truck No. WBI 8062. That person however could not be produced in Court. On the above facts presented before the District Forum the said Forum held that a gang of swindlers showed their underhand trick. According to the Forum a gang of miscreants were responsible for the clandestine transaction and one end of this chain of gangs was in the office of the L.I.C.I. and the other end is in the Bank. In between the two ends a few persons of the Postal Department at Krishnagar and at Nabadwip, the aforementioned Madhusudan Karmaker, Sanjoy Mitra and the fictitious Monoranjan Gope played their parts. The association of Nirode Debnath with the gang was also not ruled out by the Forum. On the question of liability to pay the amounts claimed by the Complainant the District Forum held the L.I.C.I. responsible for the payment as the amount was not received by the policy-holder for all what the said Corporation had to say. Against this judgment of the Forum the present appeal has been filed by the L.I.C.I.

THE learned Advocate representing the appellant attacks the judgment of the Forum mainly in the ground that no deficiency of service on the part of the L.I.C.I. has been proved in this case. According to him the L.I.C.I. discharged its liability by sending an A/c. Payee cheque to the policy holder at his correct address after observing all formalities. If the cheque did not reach the actual addressee it was the least responsibility of the sender. It is accordingly argued that the judgment of the Forum in making the appellant responsible for the non-payment of the money is palpably wrong.

WE have give a broad outline of the facts revealed in the case. Undoubtedly the appellant discharged its primary duty by sendingan A/c. Payee cheque to the correct adddress of the policy holder per registered post. But unfortunately it was not delivered to the addressee. The next responsibility for delivering the cheque to the addressee is that of the Postal Authority. Evidently the cheque has been misdelivered to another person. This is clearly admitted in the letter No Cr 3-22.5.91 dated 25.11.91 addressed to the Complainant by the Superintendent of Post Office, Nadia North Postal Division. It is also reflected in the letter dated 26.5.92 from the Senior Branch Manager, L.I.C.I., Krishnagar Branch addressed to the complainant. In the face of these two letters the subsequent stand taken by the Opposite Party No. 2 in his written objection that the registered letter containing the cheque was redirected to a changed address at Mukherjee Market, Dearapara, Nabadwip in the case of Madhusudan Karmaker is quite incompatible. It has been stated in the objection that the letter was redirected to the above address at a written request of the addressee Shri Monoranjan Gope. But no such letter has been produced before the District Forum and there is no explanation for the non-production of this letter. Under Section 102 of the Indian Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In this case the registered letter containing the cheque was evidently not delivered to the correct addressee. Opposite Party No. 3 Madhusudan Karmakar admits in his written objection that it was delivered to him at Nabadwip. Opposite Party No. 2 the Postal Superintendent although admits the misdelivery in his previous correspondence but sets up a story later in his written objection that the letter was redirected to Nabadwip on a written request by the addressee himself. If he does not adduce any evidence is support of this belated defence his plea will fail and he will lose. So the burden of proving that the letter was redirected to another address at the request of the addressee himself is upon him. He has not discharged this burden. So the complicity of the Postal Deptt. in the misdelivery of the letter is well proved.

Now reverting to the topic of deficiency, if any, on the part of the L.I.C.I., it may be stated that as soon as the fact of misdelivery of the letter to a wrong person and the non-delivery of the same to the real addressee was brought to the notice of the L.I.C.I., its liability to send the letter to the correct address was revived. But it took no steps to trace out the letter or to stop the encashment of the cheque. In such circumstances can it be said that there has been a discharge of the liability regarding the payment of the insurance money to the policy holder? The discharge must be beneficial to the policy holder. Nothing has been shown to us that there has been a statutory discharge of the liability in. such a case.

ON behalf of the appellant a printed judgment of a Munsif of Rajahmundry (Original Suit No. 901 of 1983 V.V.V. Satyanarayana Murthy and Others v. L.I.C. of India) has been produced in support of the argument that the L.I.C.I. has discharged its liability in such a case and that the L.I.C.I., cannot be held for the misdelivery of a cheque sent by registered post. The judgment of a Munsif is not binding on this Commission. The learned Munsif has held that by sending a cheque by registered post, the L.I.C.I., has discharged its contractual liability. The contractual liability in such a case is to pay the money. Payment by cheque is not equivalent to payment of money. If the cheque is lost or if it is bounced for any reason, can it be held that the L.I.C.I., has discharged its contractual liability of paying the money? If the policy holder is available at hand and identifiable will the contractual liability be discharged by not paying the cash money, but by sending him a cheque by post ? We do not think that the judgment of the Munsif produced is any authority in respect of the decision made therein. The defect in the proceeding before the Forum has been that although witnesses had been cited, none of them was orally examined or cross-examined. If they were put to examination and cross-examination truth would have come out.

HOWEVER, on a consideration of the entire circumstances we are of the opinion that the complainant as a consumer has been able to prove the deficiency on the part of the L.I.C.I. If the L.I.C.I., pleads not guilty, so also does the policy holder. The case should be properly investigated if not already done, as public policy and public welfare are involved. The guilty person should be brought to book and the money should be realised from the person found guilty of impersonation and fraud and the L.I.C.I., should, if possible, be reimbursed of the amount allowed in this case. With the above observations we dismiss the appeal and confirm the judgment of the District Forum. There will be no order for costs in this appeal. Appeal dismissed.