DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __127_ _ OF ___2017
DATE OF FILING :_11.10.2017 DATE OF PASSING JUDGEMENT: _25.7.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mr. Atindra Kumar Mukherjee, son of late Kshetra Mohan Mukherjee of 17/2A, Iswar Ganguly Lane (Street), P.S Kalighat, Kolkata – 26.
O.P/O.Ps : 1. M/s Bharti AXA Life Insurance Company Limited, Unit 601 and 602, 6th floor, Raheja Titanium, Off Western Highway, Goregaon (East), Mumbai – 400063 and registered office in Kolkata at Chittaranjan Building, 1st floor, Barhena Fartabat, Mahamayatala, Garia, P.S Sonarpur, Kolkata – 84, South 24-Parganas.
2. Mrs. Lipika Banerjee, working as agent at M/s Bharti AXA Life Insurance Company Ltd. having its registered office at Chittaranjan Building, 1st floor, Barhena Fartabat, Mahamayatala, Garia, P.S Sonarpur, Kolkata – 84, South 24-Parganas.
3. Mr. Dibeyendu Mukherjee, working as agent at M/s Bharti AXA Life Insurance Company Ltd. having its registered office at Chittaranjan Building, 1st floor, Barhena Fartabat, Mahamayatala, Garia, P.S Sonarpur, Kolkata – 84, South 24-Parganas
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Alleging deficiency in service , mal practices and also unfair trade practice on the part of the Insurance Company and its agents i.e the O.Ps, the complainant has filed the instant case under section 12 of the C.P Act, 1986 against the O.Ps.
The facts leading to the filing of the instant case may be epitomized as follows.
An Octogenarian and also a practicing Advocate at present , the complainant , was approached on 28.1.2017 by O.P nos. 2 and 3 who identified themselves as the agents of LIC i.e O.P-1 with a proposal to purchase a policy of O.P-1. The complainant agreed to the said proposal of O.P nos. 1 and 2 and delivered a cheque bearing no.948343 dated 28.1.2017 for the yearly premium amount of Rs.35000/-. On 4.2.2017 they i.e the said O.Ps again came back to the complainant and convinced him that as per advice of their superior the premium amount was required to be enhanced to Rs.84000/- and for that matter he would pay a further sum of Rs.49000/- to them. Accordingly, payment of Rs.49000/- was made by the complainant to them by another cheque bearing no.9483444 dated 4.2.2017. The complainant and his son Probal Kumar Mukherjee , who is also a practicing Advocate of Hon’ble High Court at Calcutta, signed some blank forms and delivered those forms to the above O.Ps. It was proposed by the complainant that his son would be made a nominee of him in the prospective policy. It was also made clear by the complainant to the said O.Ps that he wanted to get back the entire premium after three years and the said O.Ps also assured him accordingly. Necessary particulars of himself and his son with copies of Pan Card were supplied to the said O.Ps and his son also signed the blank forms of proposal. On 20.2.2017 original policy deed being no.501-5326480 was received by the complainant from O.P-1, showing premium amount as Rs.35000/- per annum. To his utter surprise, he also came to see various anomalies in the policy to the effect that complainant was made a policy holder and his son, the life insured, instead of nominee and the policy term was made for 12 years and premium payment term 7 years etc. and etc. There was an option given to the complainant in the policy to cancel the policy within Free Look Period of 15 days. Accordingly, the complainant sent a letter to Sr. Vice President (Operation) of O.P-1, requesting him to cancel the policy and return the amount of Rs.35000/- only as his cheque for Rs.49000/- was yet to be debited from his account that time , vide his letter dated 28.2.2017 ,filed herein. Thereafter, on 13.3.2017 another policy being no.501-538 9975 in the name of his son Probal Kumar Mukherjee was received by the complainant showing the premium amount as Rs.24,499.60 and the said son as life insured. On 21.3.2017, the complainant again wrote a letter to O.P-1 for cancellation of said policy of his son and refund of Rs.84000/- taken from him. On 8.4.2017 the complainant was informed by the O.P-1 through Lawyer that the policies were cancelled and refund was being processed. Thereafter, two cheques dated 29.5.2017 and 20.4.2017 for Rs.24,500/- and Rs.24,466.89 only in the name of the complainant’s son Probal Kumar Mukherjee were received. But Rs.35000/- was not paid by the Insurance company till then. The complainant did not encash the cheques for the reason that the encashment of the said cheques might have caused prejudice to his allegation of unfair trade practice against the O.Ps. According to the complainant, he paid Rs.84000/- to the O.Ps for a single policy in his name making his son as nominee of him. But the O.P-1 in collusion with the man of his company i.e O.P nos. 2 and 3 has opened two policies of which one policy is a Ghost one and his son never applied for any policy nor did he sign any policy as life insured. His further allegation is that the company i.e O.P-1 has withheld payment of Rs.35000/- to him. Alleging deficiency in service , unfair trade practice and conspiracy on the part of the O.Ps, the complainant by filing the instant case has prayed for refund of Rs.84000/- , payment of compensation of Rs.3 lac and litigation cost of Rs.16000/- . Hence, arises the instant case.
Notice of the case has been served upon the O.P nos. 2 and 3, but they have not made appearance in the case and, therefore, the case is heard exparte against them.
It is the O.P-1 i.e the Insurance Company who has filed written version of his statement, wherein it is contended inter alia that the three policies being no. 5015326480, 5012389975 and 5015389967 were issued as per the proposal form. The said policies were cancelled as per request of the complainant and the total amount of Rs.84000/- which was received by the company was refunded to the complainant on 20.4.2017, 29.5.2017 and 27.6.2017 i.e much before the filing of the instant case. O.P nos. 2 and 3 are not agent of O.P-1 ; they are the agent of the complainant and the company i.e O.P-1 is not liable for any act of commission or omission on the part of the O.P nos. 2 and 3. The complaint is baseless, misconceived and also filed on false statement on oath and, therefore, the complaint deserves to be dismissed .
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence on affidavit is filed by the complainant and the same is kept in the record after consideration.
DECISION WITH REASONS
Point no.1, 2 :
It is submitted by the complainant himself that he has been deceived by the O.P nos. 2 and 3 and such deception has been practised by them in collusion with their company i.e O.P-1. According to him, he made payment of Rs.84000/- to O.P nos. 2 and 3 for a single policy in his own name as being the life insured, making his son namely Probal Kumar Mukherjee as nominee of him. But, the O.Ps have apportioned the said amount in three parts and had issued three policies – one policy in his own name and the two other polices in the name of his son as being the life insured. These acts on the part of the O.Ps are instances of unfair trade practice, as goes the submission of the complainant and this has been done by the O.P nos. 2 and 3 i.e the agents of the O.P-1 in tandem with O.P-1. It is further submitted by him that he has written several times to the company i.e O.P-1 for returning the money received from him ,but the O.P-1 has treated his request with utter disdain and for this apathetic attitude of O.P-1, he has been compelled to file the instant case before the Forum. He has to shuttle between his residence at Alipore and Baruipur in his old age to pursue the instant case at Baruipur and ,therefore, he has sustained a lot of harassment and mental agony caused to him by the O.Ps. He is entitled to compensation from the O.Ps for the loss sustained by him due to such harassment and mental agony.
Ld. Lawyer appearing for the Insurance company O.P-1 has argued that the Insurance company has committed nothing illegality in the matter of issue of the policies in favour of the complainant. According to him, the company received proposal form from the complainant and his son and the policies were also issued by the company in terms of the proposal form. It is further contended by him that there is a Free Look Period of 15 days given to the complainant in each and every policy and within this period, the complainant was given liberty to cancel the policies. The policies were cancelled as per request of the complainant and the money received from the complainant has also been returned to him. No illegality has been done by the Insurance Company and there arises no question of causing any harassment or mental anguish to the complainant. Money received from the complainant has already been paid to the complainant much before the filing of the instant case and the instant case has unnecessarily been filed by the complainant without any cause of action. His further submission is that the Insurance Company is not liable for any acts of commission or omission of its agents ,because those agents i.e O.P nos. 2 and 3 acted as the agent of the complainant at the relevant time of filling up of the proposal Form. So, to him, if there is any illegality committed in the mater of submission of the proposal form before the company, that illegality or irregularity , whatever it may be, was committed by those agents and the company is not liable for that act of the agents.
Considered the submissions as pointed out above. Perused the complaint, the written version of statement filed by the O.P-1 and also the documents including the copies of policy deeds filed on record by the parties . Also considered all these.
There are some admitted facts coming to the surface of the case. Admitted facts are that the complainant requested the O.P nos. 2 and 3 i.e the agents of O.P-1 to initiate a policy in his name and also delivered two cheques amounting to Rs.84000/- to them as the premium amount of his policy. It is argued by the complainant that he wanted to take one single policy having premium amount of Rs.84000/- . But the O.Ps issued three policies upon that amount, having apportioned the said amount part by part. It is also contended by the complainant that he never wanted to take any policy in the name of his son, but he wanted to make his son as nominee in his policy. It is also admitted fact that three policies have been issued by the O.P-1, and out of them, two policies are issued in the name of the son of the complainant and one policy is in the name of the complainant. Further admitted facts are that in the policy of the complainant, the complainant has not been shown as the life insured; his son has been shown as the life insured. In two other policies the son of the complainant has been shown as the life insured. In the face of these admitted facts ,it is to be seen whether the Insurance company i.e O.P-1 has acted properly and legally while issuing three policies in favour of the complainant and his son.
It is admitted fact that the complainant wanted to take Insurance Policy from the Insurance company i.e O.P-1 and for that purpose, he paid Rs.84000/- to O.P nos. 2 and 3 . The complainant is 84 year old and he being a renowned lawyer, it is well known to him that no life insurance policy can be issued in favour of an aged person who has crossed the threshold of 60. The complainant was quite aware of this fact and, therefore, he delivered the copy of Pan Card of his son to the O.P nos. 2 and 3 and his son also signed the proposal forms in the manner as pointed by the O.P nos. 2 and 3 and it has been stated by the complainant in his petition of complaint and also in his evidence. It is submitted by the complainant that he wanted to make his son as a nominee of him in his policy. Well, if he wanted to do so, why did he hand over the copy of Pan Card of his son to the company and why did his son sign the proposal forms of the company? The Proposal Forms are filed herein and on perusal of these forms, it is revealed that the son of the complainant has singed the proposal forms . A person need not give the copy of his Pan Card in order to become a nominee to a policy. He is not required to sign the proposal form in order to become a nominee in the policy. Mere nomination of a person in a policy does never require all these documents. But these documents were supplied to the O.P nos. 2 and 3. Why? Does it not indicate that the complainant had an intention to take policy in the name of his son also? It is not the case of the complainant , it is not the case of the son of the complainant that his signature is forged and fabricated in the policy of the company. He i.e3 the son is the best person to say whether the signatures appearing on the proposal form of the company are his own signatures or not. But he has no allegation in this regard; he does not raise any complaint before any authority in this regard ,alleging forgery and fabrication of his signature in the proposal forms by the company or his men. In view of these facts and circumstances as transpiring on record, we feel no hesitation whatsoever to say that the complainant who is an experienced practicing Advocate was well aware of the fact that no life insurance policy can be taken by him on his life at this old age of him and that he advanced the money to O.P nos. 2 and 3 only to have the insurance policy in the name of his son Probal Kr. Mukherjee, who is also an Advocate of Calcutta High Court.
There are three proposal Forms filed by the complainant on record. Two proposal forms are seen to have been signed by the son of the complainant as the life insured and only one proposal form is signed by the complainant as the life insured. We have already made it clear that a Life Insurance policy can not lawfully be taken on the life of the complainant for his old age. It may be that the O.P nos. 2 and 3 , therefore, modified the proposal of the complainant to some extent and submitted the same in modified form before the O.P-1 in so far as the proposal form of the complainant himself was concerned. This is not any kind of illegality done by the O.P nos. 2 and 3; it may be ,at the most, some kind of irregularity on their part. O.P nos. 2 and 3 have not misappropriated the money given to them by the complainant; they have deposited the money with their company i.e O.P-1 and the company has also issued the policies in favour of the complainant and his son in terms of the proposal forms. In view of these facts and circumstances of the case, we find nothing sort of illegality committed by the O.Ps as alleged by the complainant.
The allegation of deficiency in service and unfair trade practice have been levelled against the O.Ps by the complainant. But such allegations appear to be not tenable in law. In each and every policy issued by the O.P-1, there is a provision for Free Look Period of 15 days and the complainant is given liberty to cancel the policies within that period ,if he so desires. What is the purpose of the existence of the provision of ‘Free Look Period”? The purpose of this provision is to enable the policy holder to exercise his discretion so that he is not hoodwinked by any unscrupulous persons. If the option is exercised by the policy holder within this Free Look Period in favour of cancellation of the policies , there arises no question of deficiency in service on the part of the company or its agents.
Coming to the facts of the instant case, it is found that the complainant has exercised this option within the aforesaid free look period by writing letter to the Insurance company i.e O.P-1 and the Insurance Company has also cancelled the policies issued in favour of the complainant and his son. Not only this, the Insurance company has also returned the money received from the complainant by them. So, in the facts and circumstances of the case we make no scruple to say that there is no deficiency in service or unfair trade practice on the part of the O. Ps, especially when the policies have been cancelled by the Insurance Company in terms of the option exercised by the complainant within the free look period of 15 days.
Upon what have been discussed above and in view of the facts and circumstances of the case as pointed out above, we do say that the complainant has failed to substantiate any kind of deficiency in service or unfair trade practice on the part of the O.Ps. The money is returned to the complainant by O.P-1 much before the filing of the instant case by two cheques and through NEFT also. The cheques were dated 29.5.2017 and 20.4.2017 and by this time, those cheques, having not been encashed by the complainant , have lost its validity due to expiry of statutory period and, therefore, complainant is entitled to get back the amount of two cheques i.e Rs.49000/- from the O.Ps. The withholding of the payment of the said money to the complainant by the O.Ps is only a deficiency in service of a sort committed by the O.Ps against the complainant for the time being.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is decreed in part on contest against the O.P-1 and decreed exparte against the O.P nos. 2 and 3.
All the O.Ps, who will remain jointly and severally liable to make payment to the complainant, are directed to make payment of Rs.49000/- to the complainant on behalf of his son by issuing cheque or through NEFT after cancellation of earlier cheques,within a month of this order, failing which the complainant is at liberty to recover the same with interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
