Facts relevant for the disposal of the instant complaint in brief are that on 23.12.2013 on the basis of the mis-representation made by one Sh. Anil Kumar, an employee of Punjab National Bank, Kacheri Adda Tehsil Dharmshala, where the complainant was having his bank account, he purchased insurance policy of opposite party No.1 through opposite party No.2 by making payment of `50,000/- on the basis of the representation made by Sh. Anil Kumar to the effect that the aforementioned payment shall be onetime payment and that he could reap the benefits thereof during next 10 years. However, during the last week of January, 2014, when he received the policy document, to his surprise, he found that term of the policy was 31 years and he was required to make payment of the premium of `50,000/- per year for 10 years.

2. Having felt cheated, he approached above named Sh. Anil Kumar and confronted him with respect to the nature of the mis-representation made by him. But he expressed his ignorance in this behalf and advised him to pay the installments of the premium for next four years so as to enable him to get the policy surrendered after the completion of the period of five years.

3. So under these circumstances, he regularly paid the remaining installments for the next four years. After the completion of the five year term, on 26th of December 2018, he inquired about the fund value of the policy and he was told that it was having the value of `2,72,000/-. So in view of the above, he immediately surrendered his policy and deposited the necessary documents alongwith the original policy with opposite party No.2 who in turn assured him that the necessary amount would be transferred to his account within a few days.

4. Thereafter he kept on waiting about the aforementioned payment and when he did not receive the aforementioned amount, he many times contacted opposite party No.2 about the status of his payment but each time he was given assurance that he would receive the necessary payment after some days. However, on 23rd January 2019, he received only a sum of `2,20,570.14 paisa in his account instead of the amount of `2.72 lacs. So under these circumstances, he contacted opposite party No.2 but it tried to put off the matter on one or another pretext.

5. So under these circumstances, he was left with no other option than to approach this Forum by way of instant complaint and thereby he made a prayer for directing the opposite parties jointly and severally to pay to him `50,000/- being the remaining fund value of the amount as standing 26.12.2018, and also pay to him `50,000/- as damages for subjecting him to un-necessary harassment and mental agony, and payment of ligation costs.

6. The complaint was resisted and contested by the opposite parties by filing joint rely and therein they raised preliminary objections of maintainability, non-joinder of necessary parties and jurisdiction.

7. On merits, they denied for want of knowledge the nature of the alleged mis-representation made by Sh. Anil Kumar, but admitted that complainant had purchased the policy in question and that after the receipt of the necessary premium, they had sent the necessary policy document to the complainant and on the basis thereof, they had taken the plea that specific conditions with respect to discontinuation, surrender and revival of the policy had been mentioned therein, and that the complainant being party to the agreement of the policy was also bound to surrender the policy in accordance with the terms and conditions thereof.

8. They however denied that on 26.12.2018 complainant had submitted any documents with respect to the surrender of the policy in question and had taken the plea that surrender request form alongwith other documents had been received from the complainant on 2nd January 2019 but since the complainant had not sent legible copy of his bank account, so his requested had been rejected and in this behalf, information had also been given to the complainant on 10.1.2019.

09. That thereafter on 15.1.2019, the complainant had re-submitted the necessary request alongwith all other documents and that after the receipt thereof, they had accepted his request and had thereafter processed his claim and that since `2,20,570.14 paisa had been assessed to be the fund value of the policy, so the aforementioned amount had been credited in to his bank account on 22nd January 2019.

10. On the premises of the above, they infact had tried to show that since the appropriate surrender request accompanied by all the necessary documents had been received from the complainant on 15.1.2019 at 12.30 P.M., so Net Asset Value (NAV) prevailing at that point of time had been assessed and necessary amount with respect thereto had been credited in to the account of the complainant. They had denied that thereafter they had received any letter dated 5.3.2019 from the complainant.

11. In short, it had been tried to be shown on behalf of the opposite parties that they had paid the full and final payment under the policy to the complainant as per the terms and conditions thereof, and had thus made a prayer for dismissal of the complaint.

12. The complainant had controverted the nature of the stand taken by the opposite parties by filing rejoinder and thereby he had virtually re- affirmed and reiterated the nature of the stand taken by him in his complaint.

13. Thereafter the complainant had opened his evidence and in support thereof, he had tendered his affidavit Ex. CW-1, and documents Annexures C-1 to C-3.

14. To controvert the case of the complainant and to lend corroboration to their case, opposite parties No.1 and 2 had filed affidavit Ex. OPW-1 of Sh. Rajeev Sharma, their Senior Manager (Legal), and documents Annexures OP-1 to OP-4.

15. No evidence in rebuttal had been led on behalf of the complainant.

16. We have heard learned counsels for parties and have carefully gone through the case file.

17. The admitted factual position which has emerged out of the nature of the averments raised and subsequent evidence produced by the parties is that complainant had purchased the insurance policy in question from the opposite party No.1 through opposite party No.2, the authorized local agent of opposite party No.1 and that after paying five annual installments, he had surrendered the policy and made a request for the payment of the fund value of his policy, and that on the basis of his request, opposite parties had paid to him only `2,20,570.14 paisa. However, dispute interse the parties is with respect to the date of surrender of the policy.

18. The complainant had taken the plea that he had surrendered the policy on 26.12.2018 accompanied by all the necessary documents, whereas opposite parties had taken the plea that they had received the request for surrender of the policy by the complainant on 02.1.2019 and that since the complainant had not sent the legible/clear copy of his bank account, so his request had been rejected and necessary information in this behalf had been passed on to the complainant on 10.1.2019 and that on the basis thereof, the complainant had re-submitted his request on 15.1.2019 alongwith all the necessary documents, and that after processing the same, his requested had been accepted on 22.1.2019 and that the NAV of the policy had been paid to the complainant as per the value existing on that date.

19. So in view of the nature of the aforementioned stand taken by the parties, it has to be seen as to from which date the policy in question could be treated to have been revoked/surrendered?

20. It is the admitted case of opposite parties that there was a provision in the policy with respect to surrender thereof. In para No.6 of their preliminary objections, they had reproduced verbatim the condition with respect to surrender of the policy. It has been provided therein that as per the terms and conditions of the policy, an option had been given to the insured to surrender the policy after the expiry of the lock in period of five years and in that eventuality, the insurer was liable to pay forthwith net asset value thereof without deduction of the discontinuance charges.

22. As already observed above, there is no dispute interse the parties with respect to the fact that complainant had exercised the aforementioned option to surrender the policy and that on the basis thereof, the opposite parties had accepted the request of the complainant to surrender the policy. But dispute interse the parties is with respect to the date of surrender of the policy. Opposite parties had tendered in evidence document Annexure OP-2 in which reference had been made with respect to the terms and conditions of the policy. Perusal thereof goes to show that it had not been specifically mentioned therein as to how an insured could surrender the policy. All that has been mentioned therein is that there should be a written notice by the insured to the insurer for the surrender of the policy.

23. Now it has to be seen as to whence complainant could be held to have given notice in writing to the opposite parties?

24. In this behalf, the case of the complainant is that on 26th of December 2018 he had surrendered the policy by depositing all the necessary documents alongwith the original policy document with opposite party No.2.

25. Opposite parties had denied this aspect of the case of the complainant by taking the plea that no such document had been received by them from the complainant on 26.12.2018, and that surrender request in fact had been received on 02.1.2019, and that since the complainant was not found to have sent the clear copy of his bank pass book, so his request had been declined.

26. It is the admitted case of opposite parties that opposite party No.1 was having its local office at Dharmshala which has been arrayed as opposite party No.2. If regard is had to this aspect of the case, then it could be held that opposite party No.1 was doing business in this part of the area through its authorized agent/opposite party No.2.

27. Complainant in para No.8 of his complaint had categorically stated that he had handed over all the necessary documents with respect to his request for surrender of the policy to opposite party No.2. As already observed above, opposite parties had refuted this aspect of the case but had not specifically asserted that complainant had not handed over the necessary documents to opposite party No.2. All that they had pleaded in this behalf was that the necessary request for surrender of policy in question had been received on 2nd of January 2019. The complainant had filed affidavit Ex. CW-1 in support of his case and thereby he had further asserted that he had handed over all the necessary documents to opposite party No.2 on 26.12.2019. As per the title of the parties, one Sh. Bhanu Pratap Singh had been working as Incharge/Manager of opposite party No.2. So under these circumstances, it was incumbent upon opposite parties to controvert the nature of the stand taken by the complainant in his affidavit by tendering in evidence the affidavit of above named manager. But the opposite parties had not opted to do so and had rather placed reliance upon affidavit Ex. OPW-1 of Sh. Rajeev Sharma, their Senior Manager (Legal). The above named manager of opposite parties infact had virtually reiterated the nature of the stand taken by opposite parties in their reply but had not specifically stated that on the basis of whose statement he had asserted that on 26.12.2018 complainant had not submitted any documents to the opposite parties. So if these aspects of the case are considered in right perspective, then it could be held that the opposite parties had failed to examine the above named manager of opposite party No.2 to controvert the statement of the complainant. If it is held so, then it could be held that opposite parties had withheld the best person who could have thrown light on this aspect of the case. Consequently, an adverse inference available under Section 114 of the Indian Evidence Act could be raised against them. So under the given circumstances, the complainant could be held to have probablized his plea that he had handed over all the necessary documents with respect to his request for surrender of the policy to opposite party No.2 on 261.2.2018.

28. Now it has to be seen as to whether notice with respect to surrender of the policy given by the complainant to opposite party No.2 could be held to be the proper notice of opposite party No.1?

29. To appreciate this aspect of the case, regard has to be had to chapter X of the Indian Contract Act 1872 which deals with agent and principal.

30. Section 186 of the ibid Act provides that the authority of an agent may be express/implied.

31. Section 187 of the ibid Act provides that an authority is said to be express when it is given by words or written, and an authority is said to be implied when it is to be inferred from the circumstances of the case, or the ordinary course of dealing.

32. The opposite parties had neither specifically pleaded nor brought any evidence on record to show that opposite party No.2 was not having any authority to accept the request for surrender of the policy. So under the given circumstances, it could be held that opposite party No.2 was competent to receive notice on behalf of opposite party No.1 with respect to surrender of a policy by an insured.

33. It has already been observed above that there was no specific condition in the policy as to in which manner the insured can seek the surrender of his policy and all that has been mentioned in the condition was that there should be a notice in writing by the insured to the insurer conveying his intention to surrender the policy. So the plea taken by the opposite parties that it had rejected the claim of the complainant with respect to surrender of the policy in the absence of appropriate copy of bank account pass book could not be up-held. Opposite parties could have easily accepted the offer of the complainant on the date of the receipt of the necessary notice and could have subsequently directed the complainant to send the necessary copy of the pass book, even if the nature of the objection taken in this behalf by opposite parte is assumed to be correct.

34. So in the light of the above, the only reasonable conclusion which could be deduced from the above is that on 26.12.2918, the complainant had given notice in writing to the opposite parties with respect to his intention to surrender the policy, and that opposite parties were under legal obligation to assess the fund value of the policy as existing on that day i.e. 26.12.2018. Opposite parties had not denied that on 26.12.2018 the fund value of the policy was `2.72 lacs.

35. In view of the discussion made hereinabove, the complaint is partly allowed with costs of `5000/- and opposite parties are hereby jointly and severally directed to pay to the complainant the balance fund value of the policy in question i.e. `51430/- alongwith interest @ 12% per annum with quarterly rests with effect from 27.12.2018, the day immediately next to the date of notice given in writing of his intention to surrender the policy, till its realization. Besides above, the opposite parties are also held liable to pay `5000/- more as compensation to the complainant for subjecting him to un-necessary harassment and mental agony. A copy of this order be supplied to the parties as per Rules and the file after needful be consigned to the record-room. Announced at Dharmshala on 01.01.2020 (Pradeep Samyal) President (Dinesh Sharma) Member