BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th October 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.28/2012
(Admitted on 30.12.2011)
Sri. Pundalika Shettigar alias P. Shettigar,
S/o late Babu Shettigar,
Aged about 56 years,
Residing at Pellet Plant, KIOCL,
Panambur, Mangalore 575010.
……… Complainant
(Advocate for Complainant by Sri. MNA)
VERSUS
- HDFC Standard Life Insurance,
Mangalore Branch,
Ground floor, Paradigm Plaza,
A.B. Shetty Circle, Pandeshwar,
Mangalore
- HDFC Standard Life Insurance,
Registered Office,
Ramon House, H.T.Parekh Marg,
169 Backbay Reclamation,
Mumbai 400020
…. Opposite Parties
(Advocate for the Opposite Parties No.1: Sri. PAA)
(Advocate for the Opposite Parties No.2: Ex parte)
ORDER DELIVERED BY HONBLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to surrender the policy No. 10124776 and pay the surrender value of Rs. 75,000/, pay interest at 18% p.a from 08.12.2004, damages for mental agony, stress and inconvenience Rs. 50,000/-, the cost of the legal notice Rs, 1,000/, the cost of this proceedings for such other reliefs as this forum deems fit to grant under the circumstances of the case under section 12 and 13 of C.P.Act.
II. The brief facts of the case are as under:
The top Number Complaint lodged by the complainant against the above of the opposite parties Under Section 12 of Consumer Protection Act For the relief as sought for, on the strength the opposite parties recommended Standard Life Insurance policy to the complainant assuring various benefits that are available to the said policy holders, the complainant had signed a proposal form filled up by the agent of opposite party. At the time of the said proposal form the agent of opposite party did not inform the complainant that the proposed policy is a Unit Linked Policy but he had stated that it the premium at Rs, 25,000/ half yearly paid continuously for a period of 3 years, the complainant is entitled for all the benefits and the said policy do not get lapsed. The complainant believed the said representations to be true and he opted for the said policy. After some time he had received a Policy No. 10124774. Further stated that the complainant was for an insured sum of Rs. 50,000/ and the maturity date was 08.12.2014. The complainant has paid the premium regularly for 3 years, recently the complainant has been receiving letters from the opposite party stating that the amount standing to his credit under the said policy is decreasing from time to time and the present balance is only Rs. 19,530/ as on 02.09.2011 according to them. The complainant states that he is not satisfied with the service of opposite party as an insurer and they made the complainant to invest in HDFC Policy with false representations. When the complainant came to know that the opposite party is decreasing the complainant fund under the guise of unit linked policy. He had started meeting them personally and requested them to pay him at least the premium amount paid by him towards the said policy. When there was no response from them, he had caused to issue a legal notice to the opposite party on 14.09.2011 calling upon the opposite parties to surrender the policy No. 10124776 and to pay the surrender value along with the value of the fund held by the opposite parties and other benefits available to the complainant within 7 days. Said notice was received by the opposite parties without demur. The opposite parties have neither repudiated the claim of the complainant nor honoured it till date. The opposite parties have mismanaged the fund of the complainant with malafide intention to make unlawful gain and defraud the complainant. Hence, as per law, custom and usage they are liable to pay interest to the complainant at 18% p.a on the premium amount received by them. The opposite parties have committed deficiency in service and there is no chance of settlement of claim amicably out of court. Hence the complaint.
III. Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite parties by RPAD with copies of the complainant. Inspite of receiving version notice the opposite party No.1 appeared and contested through case Advocate before this FORA. Opposite Party No.2 placed Exparte. The opposite party submits that the policy was issued on the basis of a duly signed proposal form submitted by the complainant and opposite parties issued a Unit Linked Young Star Policy Document dated 08.12.2004 which clearly reflects the installment premium as Rs. 25,000/ half yearly and the date of final premium to be paid on 08.06.2014 with life cover of Rs. 5,00,000/ along with Rs. 5,00,000/ extra health benefit plus critical illness benefit of Rs. 50,000/ and a premium waiver rider of Rs. 50,000/ This apart the terms and conditions are also mentioned on the policy document. Further in the policy the frequency of premium is mentioned as. The opposite parties submits that the complainant is a literate person and had been a P.A to his AGM in KIOCL Panambur (Kuduremukha Iron Ore Company Limited), Mangalore and he himself had submitted a duly signed proposal form for issuance of a Unit Linked Young Star Plan Policy and therefore in the said proposal form he had declared under section E (Declarations) that he had read and understood the terms and conditions of the Insurance Policy opted. Without prejudice to the above mentioned facts this opposite party further submits that complainant had failed to exercise his right under the clause Option to Return contained in the said policy document which gives policy holder the option to return the policy to opposite party stating the reasons there of within 15 days of receipt of the policy in case if he is not agreeable to any of the provisions stated in the policy and the details in the proposal form.
It is submits that the complainant had paid Rs. 25,000/ each on every 6 months from 08.12.2014 till 24.06.2007 that is for a period of 3 years and then stopped the premium payment. But as per policy terms, the complainant ought to have made the premium payment half yearly Rs. 25,000/ for 10 years till 08.06.2014. The complainant had made a Partial Withdrawal request of Rs. 25,000/ on 15.12.2006 and further a sum of Rs. 20,000/ on 26.06.2007 on placing a request for partial withdrawal by the complainant. As per request of complainant, the opposite parties paid total amount of Rs.45,000/ through cheque to the complainant and the same is reflected in the unit statement. It is submits that the complainant himself had managed his funds through online and had opted for a FUND SWITCH of his choice during January 2007 and January 2008 through our ONLINE WEB page using his Pin Number. So no question of opposite parties managing or mismanaging complainants funds. The complainant had opted the fund as per his choice and the same being a unit linked plan the performance of fund depends on the volatile market conditions. The he dispatched premium reminder notice/ Unit Statement / lapsed letters and revival quotation letters in this regard on various dates over these years which were accepted by the complainant. Only on accepting the policy he had been paying premiums on the subsequent years from 08.12.2004 till 24.06.2007 also kindly note that the status of the policy as on date is PAID UP as no premium was paid since 08.12.2007. Under these circumstances, claiming it to be a mismanagement or missale is a clear after thought defense to make unlawful gain by the complaint. It is submits that there is no deficiency in service and the policy is issued as per proposal form which was opted by the complainant and there is no deficiency in service by the opposite parties.
IV. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite Parties No. 1 & 2?
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (i) and (ii): The Opposite Party submits that the policy was issued on the basis of a duly signed proposal form submitted by the complainant and Opposite Party issued a Unit Linked Young Star Policy document dated 08.12.2004 which clearly reflects the installment premium as Rs. 25,000/ half yearly and the date of final premium to be paid on 08.06.2014 with life cover of Rs. 5,00,000/ along with Rs. 5,00,000/ extra health benefit plus critical illness benefit of Rs. 50,000/ and a premium waiver rider of Rs. 50,000/. This apart the terms and conditions are also mentioned on the policy document. Further in the policy the frequency of premium is mentioned as. As per the version of Opposite Party No.1 as admitted at page No.2 para 5 that they have received a total sum of Rs. 1,50,000/ towards premium amount as half yearly each at Rs. 25,000/ for the period from 08.12.2004 till 24.06.2007. That is 25,000 X 6 = 1,50,000/ Even in such a situation further admitted by Opposite Party No.1 that in the version page No.2 at para 6 that they have already made partial payment, as withdrawn by complainant of Rs.25,000/ on 26.06.2007 and another sum of Rs. 20,000/ on 26.06.2007, in total, it is the withdrawal of a total sum of Rs. 45,000/- through cheque, that also reflected in the document of unit statements, as well as it also reveals even as an admission by the complainant, as stated in the interrogatories of Opposite Party No.1 at question No.12 and 13, the answer given by complainant as a reply to the same questions reveals that he admits the said receipt of total sum of Rs. 45,000/ on two occasion. Therefore the same has to be given deduction to the Opposite Party and for the balance of Rs. 1,05,000/ is only entitled so that it is of an option to return the policy by the complainant to the Opposite Party No.1 was allowed and permitted to him by the Opposite Party concerned. Therefore, as stated in the above paragraph, as the Opposite Party has been admitted, for the receipt of a total sum of Rs. 1,50,000/ till 24.06.2007, from the complainant. Accordingly the present withdrawal of Rs. 45,000/ to be given deduction from the said Rs. 1,50,000/ Therefore still the balance of Rs. 1,05,000/ has to return by the Opposite Party concerned to the complainant, on the same stretch of the transaction which made as stated in their own version at page 2 para 6 as admitted by them. Even as per the documents Opposite Party as admitted by them it is clear that the word option to return has been cover up in the case of the complainant between the Opposite Party such being so, the same has been admitted by the Opposite Party concerned and later the said payment was made of a sum of Rs.45,000/ as withdrawn by the complainant. Hence it is the clear case that the balance of Rs. 1,05,000/ is still with the Opposite Party concerned. For which the complainant is always entitled under the said head. So that the present action which taken by Opposite Party against the complainant, by disallowing from make either payment or settlement of the same with the complainant, within the stipulated and reasonable time in question, it is amounting to virtual deficiency of service and also it amounts to unfair trade practice, with a view to make a profit and gain illegally under the motive of commercial transaction in the general public society. For which the Opposite Party also liable to pay the interest at rate of 10% p.a on the said balance of Rs. 1,05,000/ from the date of complaint lodged before us i.e. 30.12.2011 till realization. In order to cause harassment and mental agony to the complainant till the time, by making unnecessary prolonging and protracting the matter with a malafide intention including utilization of said huge amount of the complainant, though it is aware even by Opposite Party that the same is not belonging to them, the same is of disclosing the conduct of the Opposite Party. Therefore the same has be to compensated by imposing a reasonable compensation of Rs. 10,000/ as for that also the complainant is entitled. Further another sum of Rs. 5,000/ is also imposed as the Opposite Party is liable to pay to the complainant towards cost and litigation expenses incurred by the complainant.The complainant is not entitled for a sum of Rs. 1,50,000/ as sought by him since he was already withdrawal of a sum of Rs. 45,000/, the same has to deduct from the same. As such he is entitled only for the amount of Rs. 1.05,000/
POINTS No. (iii): In the result, accordingly we pass the following Order:
ORDER
Complaint is allowed in part. The both Opposite Parties are held liable and responsible to pay for a sum of Rs. 1,05,000/ (Rupees one lakh five thousand only) with accrued interest at 10%p.a from the date of complaint i.e. 30.12.2011 till realization. Further, the Opposite Parties are also liable to pay for a sum of Rs. 10,000/(Rupees ten thousand only) towards compensation and another sum of Rs. 5,000/ (Rupees Five thousand only) towards cost and litigation expenses incurred by the complainant in the above case. Payment shall be made within in 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 11 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of October 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C.V.SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Sri. Pundalika Shettigar alias P. Shettigar.
Documents marked on behalf of the Complainant:
Ex.C1: Xerox copy of the Insurance Policy.
Ex.C2: Office copy of the legal Notice.
Ex.C3: Postal Acknowledgements (2 Nos)
Ex.C4: Annual Statement for the period from 03.09.2010 to 02.09.2011.
Ex.C5: Information Letters (20 in Nos)
Ex.C6: Annual Statement for the period from 08-12-2010 to 07-12-2011.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Gopi Narayanan.
Documents produced on behalf of the Opposite Parties:
Ex.R1: Original copy of the Unit Linked Proposal Form Dated 29.11.2004.
Ex.R2: Copy of the 1 Pin Request Form (for online transactions)Dated 22.12.2006.
Ex.R3: Copy of the 1 Pin Request Form (for online transactions) Dated 23.07.2007.
Ex.R4: Copy of the 1 Pin Request Form (for online transactions) Dated 23.01.2008.
Ex.R5: Copy of the Fund Switch and premium re direction form Dated 22.01.2007.
Ex.R6: Copy of the Fund Switch and premium re direction form Dated 23.01.2008.
Ex.R7: Letter issued by the complainant dated 14.12.2006.
Ex.R8: Letter issued by the complainant dated 26.06.2007.
Dated: 28.10.2016. PRESIDENT
