Hong Kong And Shanghai Banking Corporation Ltd vs T Shankar

FAILURE of the appellant in taking as many as 9 months for non -realization of the cheque amounting to deficiency in service resulted in the impugned order dated 29.4.2002 whereby it has been directed to pay the entire maturity amount due under the policy as if all the instalments had been duly received by the appellant after adjusting the amount already paid. And further that this balance amount shall carry interest @ 12% p.a. from the date of maturity till the date of payment and Rs. 2,000 towards mental agony and harassment and Rs. 1,000 for litigation charges.

THROUGH this appeal, the impugned order has been assailed by the appellant mainly on the ground that it was due to the negligence of the respondent herself in not depositing the 9th instalment in time in spite of earlier cheques issued in this regard having been dishonoured that the policy has lapsed. Put briefly the relevant facts for our purpose are as under: The ULIP Scheme in which the complainant/respondent became a member was for 10 years with the target amount of Rs. 60,000. The annual premium was Rs. 6,000. There was no problem till the 8th instalment. For the 9th instalment, the cheque deposited by the respondent was never tendered to the bank by the appellant as per the respondent but as per the appellant it was tendered but returned un -paid. This cheque was deposited with the bank on 18.3.1998. The appellant, however, slept over the matter for 9 months before waking up to tell the respondent that the amount had not been received as the cheque has been returned un -paid for the 9th instalment. Some correspondence ensued and in the process more than one year passed before the respondent issued the 2nd cheque for the 9th instalment. As per provision of the scheme ULIP lapsed.

THE appellant has failed to enlighten us as to why he took 9 months to intimate the fact of non -encashment of cheque to the respondent. As is apparent form the aforesaid facts, the appellant has failed to prove the factum of tendering the cheque of 9th instalment, the onus of which was upon it. Once a consumer had sent the cheque for instalment, there was no reason for the appellant to tell the respondent after 9 months that the amount had not been received as the cheque was returned un -paid and as a result his policy has lapsed.

DEFICIENCY in service as contemplated under Section 2(1)(g) of the Consumer Protection Act, 1986 means : ''any fault, imperfection, short -coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been under -taken to be performed by a person in pursuance of a contract or otherwise in relation to any service.'' In view of the above provision, the provider of service has to provide perfect service without any shortcomings. The appellant was rightly held guilty for deficiency in service and rightly directed to pay the entire amount of maturity due under the policy as the amount had been received by the appellant after adjusting the amount already paid. As there was no term of contract between the parties for payment of interest @ 12% p.a., we set aside the impugned direction that balance shall carry interest @ 12% p.a. Rest of the order is maintained.

THE appeal is disposed of in above terms.

A copy of this order, as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the Record Room. Appeal disposed of.