BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 3rd November 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.255/2013
(Admitted on 19.09.2013)
Mr. K.P. Suraj Rao,
S/o K.P. Vasudeva Rao,
Aged 24 years,
Residing at Suryasmrithi,
A.S.R.P. Road,
Dongerkery Street,
Mangalore 03.
……… Complainant
(Advocate for Complainant by Sri. AKU)
VERSUS
- The Authorised Signatory,
M/s AVIVA,
Aviva Life Insurance Company Ltd,
Registered office at 2nd floor,
Prakash Deep Building 7 Tolstoy Marg,
New Delhi 110001.
- The Branch Manager,
M/s AVIVA,
Aviva Life Insurance Company Ltd,
Classique Arcade,
Near City Center Mall,
K.S. Rao Road, Mangalore 01.
…. Opposite Parties
(Advocate for the Opposite Parties No.1 and 2: Sri. KSNR)
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 serviced as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties jointly, and severally to settle the claim of the complainant by pay the sum of Rs. 10,910/ along with interest of 18% p.a from the of confirmation of the surrender intimation i.e. 25.01.2013 till the date of realization. Further Opposite Party to pay a sum of Rs. 25,000/ towards compensation for the loss, damage, nuisance, mental agony.
II. The brief facts of the case are as under:
The complainant being influenced by the exiting offers, promises and gestures made by the Opposite Party regarding the said Life Saver Plus Policy, had availed the Life Saver plus policy under the Policy Number ALS1835174 client ID No. 1603384 issued by the Opposite Party No. 1 and 2 in the year 2008 having its effective date from 21.01.2008. The sum assured under the policy is Rs.75,000/. The complainant paid the annual premium regularly from 2008 till the year 2012. The complainant had paid total 5 annual premiums totally for sum of Rs.75,000/. The last premium was paid on 23.01.2012. Hence the complainant had paid the amount to the full extent of sum assured. Further submitted that the complainant for his financial needs decided to surrender the policy. Therefore he had sent a request for surrender with the policy document to the Opposite Party. The Opposite Party accepted the proposal for surrender of the policy on 23.01.2013 and the same was intimated to the complainant vide letter dated 25.01.2013. The Opposite Party remitted a sum of Rs. 64,090/ through NEFT alleging that the said amount is in full settlement of the claim of the complainant. Further submitted that as against the total payment of premiums made by the complainant in a sum of Rs. 75,000/ the Opposite Party paid only a sum of 64,090/ by deducting a sum of Rs. 10,910/. It is submitted that the Opposite Party has not given any explanation for reduced value of the surrender amount. The Opposite Party is not entitled to deduct the said sum of Rs. 10,910/ as the terms and conditions of the policy issued to complainant and the act of the party amounts to unfair trade practice adopted by the Opposite Parties to cheat the customers. It is submitted that the complainant is the student pursuing his studies in PGDBM at St. Aloysius College. The complainant had invested his small savings with the Opposite Party, with a fond hope that the investment would come to his aid on a future date for his studies. The flowery words of the representatives of the Opposite Party made this complainant to invest the money with the Opposite Party. The Opposite Parties promised that the said investment with Opposite Party will provide insurance to the life and also provide good surrender value upon surrender of the policy, for the requirement of the complainant. But the promises made by the Opposite Party rendered futile. When the complainant surrendered the policy the Opposite Party has made a payment of Rs. 64,090/ as against the payment of Rs. 75,000/. The Opposite Party ought to have returned at least the amount that was invested by the complainant. The Opposite Party by introducing these types of policies are misguiding the customers and taking undue advantage, there by the Opposite Parties are indulging themselves in unfair trade practice at the cost of the poor customers like the complainant. The act of the Opposite Parties confirms their intention to deprive the amount to the complainant, which the Opposite Parties are legally liable to pay to the complainant. The act of the Opposite Parties in not considering and settling the claim amounts to deficiency in service. Further it is submitted that at the time of availing the policy, the complainant was minor and any declarations allegedly signed by the complainant can not be used against the complainant casting liability on the complainant as he was not competent to read and understand the same. It is submitted that even in the reply notice the Opposite Parties have not opted for provide a calculation as to arrive a figure of Rs. 64,900/ has been arisen as surrender value. The Opposite Parties not complied with the demands made in the notice. Hence the complainant has got no other alternative remedy that to proceed before this forum with is complainant. Hence this complaint.
III. Version Notice served to the opposite party by RPAD appeared through an advocate and filed their version stating that there is no deficiency in services of the opposite parties. That the contents of Para 1 of the complaint do not merit any comments from Opposite Party. That the contents of Para 2 of the complaint are wrong and denied. It is further submitted that based on the declarations made and information provided in the proposal form along with the receipt of the initial premium amount a policy bearing No. ALS1835174 (hereinafter referred to as “policy”) was issued to the policy holder having date of commencement as 21.01.2008 and sum assured of Rs. 75,000/. The said policy documents were forthwith dispatched on 30.01.2008 to the mailing address of the complainant through speed post bearing No. #ET031073365IN and same was delivered to the complainant. It is pertinent to mention here that delivery of policy documents are not disputed on the part of complainant. The said policy contained a notice on free-look whereby the policyholder has a right to reconsider his decision to purchase the policy within 15 days of receipt of the policy document in case he does not agree to the terms and conditions of the said policy. Complainant never opt this option which presumes that complainant was satisfied with the policy issued to her and its terms and conditions. The said policy documents also contained a welcome letter in which it was clearly mentioned complainant never raises any question regarding said policy with in a free-look period. It is admitted that complaint has paid 5 premium amount total amounting to Rs. 75,000/ that the contents of para-3,4,5 and 6 of the complaint are wrong and denied. It is further submitted that on 23.01.2013 Opposite Party received a request for surrender the policy. On the request and confirmation of complainant Opposite Party process the surrender of said policy as per terms and conditions and surrender value i.e. Rs.64,090/ strictly calculated as per the terms and conditions of said policy was transferred to the account of complainant through NEFT on 25.01.2013 and said fact is also admitted by the complainant.
That Opposite Party also received a legal notice on behalf of complainant. Opposite Party vide letter dated 16.08.2013 replied said legal notice. It is pertinent to mention here that surrender value was strictly calculated as per the terms and conditions of said policy and there is no deficiency is service at the end of the answering company. The opposite party and denied the deficiency of service alleged against him and sought for dismissal of the complaint.
In support of the complainant One Mr. K.P.Suraj Rao (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document got marked as Ex C1 to C9. On behalf of the opposite parties not lead any evidence hence treated nil.
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 Opposite Party?
- If so, for what quantum and from whom the complainant in 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) to (ii): This is a case of demanding for payment of a balance sum of Rs. 10910/ with interest from 25.01.2013 i.e. the date of confirmation of the surrender intimation till the date of realization hence this complaint lodged by the complainant against Opposite Party No.1 and 2. For which he obtained Life Sever Plus policy from the Opposite Parties on the term that paid a sum of Rs. 15000/ per annum towards premium as per Ex C1 the same is totally for a period of 10 years. As such the same is commencement on 21.01.2008 and to be matured on 21.01.2013. On the same basis, the complainant regularly paid a total sum of Rs. 75,000/ till 2012, for total 5 years. Till this facts there is no dispute even by any of the Opposite Parties. But of the first 5 years i.e. from 21.01.2013 the complainant could not able either continue or going on making payment of the premium amount, annually. Hence invariably taken up a firm mind to surrender the policy and get back at least of the paid total hard earned money of Rs. 75,000/ by making a proposal for surrender as on 23.01.2013, along with all the necessary documents, to the Opposite Parties. It was also acknowledged as per Ex C2 thereafter confirmed the same as per Ex C3 and paid only a sum of Rs. 64090/ instead of Rs. 75,000/. Hence this complainant is filed for the balance of Rs. 10910/. On the other hand the Opposite Party taken a plea in its detailed length version is that, the said sum of Rs. 64,090/- paid as per the terms and condition of the policy, in the place of surrender of the same by the complainant and prays for its dismissal. On the contrary, we have only the alternative remedy is that, whether the steps taken by Opposite Party is proper and incordence with law, as contemplated under the C.P.Act. Because except this factor of terms and condition followed and calculated the same, and it is only a sum of Rs. 64090/ as per Ex C3, dated 25.01.2013, remaining all the aspects have been admitted as no dispute. So that, we are now restricted in our discussion to the said aspects is that, for proving case of the complainant he himself adduced the evidence orally and also the documents got marked as an exhibits from Ex.C1 to C9 completely along with its interrogatory and reply in detail thereafter no evidence in oral or documentary made by of the Opposite Parties. Hence it is crystal clear that, the Opposite Party is utterly fails in proving the case as per their version. So we have no option, unless to believe the total case of the complainant. Furthermore, is that no material before us that the said terms and condition was served on the complainant along with the Ex C1. Because even the said Ex C1 is only a document of first premium receipt dated 21.01.2008, that is totally silent to that effect of any terms and condition. Even in Ex C2 also silent regarding in the same. Hence this shows clear that the intention of the Opposite Party is that only to suppress that material facts throughout. For the reason of make profit and gain for itself, on the other hand cause loss and damage to the complainant. Because, admittedly for full more than 5 years the said a total sum of Rs. 75,000/ with the hands of Opposite Party concerned and naturally it was utilized for commercial purpose and earned profit in their business. No doubt, they have not caused any loss economically. But the complainant student caused loss and damage unnecessarily or else if really, the said terms and condition was supplied and explained in advance definitely the complainant might not go for accepting the said policy with the Opposite Party. Hence in all, for the reasons stated above including in the absence of any oral or documentary evidence by the side of the Opposite Party we hold that the above both the points are answered in the affirmative by concluding the matter as there was a pure deficiency of service by the Opposite Party concerned to the complainant throughout as best known to the Opposite Parties so, once the deficiency of service is come in the way, the same also amounting to unfair trade practice as the profession the insurance company is of commercial in nature. In such a circumstances, we hold that even once this matter was made over once to Lok Adalath but it was settled as the Opposite Party was agreed and case forward then again kept pending before us for passing orders. For this type of cases an identical Ruling of
Hon’ble S.C of India I (2000) CPJ page 1 Where in it is the concept of suppressing the material facts Appellant in its affidavit filed confirmed that it was supplied only with cover note and schedule of policy other terms and conditions containing exclusion clause did not form part of contract of insurance Respondent cannot claim benefit of said exclusion clause finding of National Commission not tenable in law The ruling reported in 2012 (II) CPJ Page 602 (NC) and 2012 STPL (CL) 1568 (NC) where in N.C opined that the petitioner had contended before for a below that the copy of the terms and conditions of the policy was not supplied to him and the district Forum had accepted the contention, not supplied to him by the respondent when he took the insurance policy. So we are of the view that the respondent was not justified in repudiating the claim on this ground. The citation produced by the Opposite Party also observed by this Forum. But none of the same are not applicable to the facts of the case. Since there was no any constancy between the defense taken by the Opposite Party to the facts of this case with the facts of those citations, we hold the Opposite Party have committed deficiency in service.
i.e. non production of terms of condition of the policy is amounting to deficiency of service. So the Opposite Party is sole responsible and liable. So that, we come to a considerable conclusion that the Opposite Party is liable to pay the balance of Rs. 10910/ with the accrued interest at rate of 10% on the said sum of Rs. 10910/ from 25.01.2013 till realization. Further due to causing harassment and mental agony, with suppression of material facts and a falls ple the Opposite Party is also liable to pay sum of Rs. 5000/ towards compensation, together the another sum of Rs. 5000/ towards cast and litigation expenses incurred by the complainant. Now a days is in learnt by everyone in the society that the general public innocent only the ultimate sufferer and the other get the benefit, of profit and gain from the hard earned money of the common man like this complainant. So that, as at least under this provision of law on C.P.Act one should have protection in the society. Further the insurance company is running only under concerned of good faith. So it should not be mis utilized by anyone else, ever once there is no any meaning as well as heed and purpose of incorporation of the C.P. Act. for hold we hold have that the principle of inter pretation statute under the primary rule is that as suppress the mischief and advance the remedy and hold the complainant is entitled for the relief as stated here.
POINTS No. (iii): In the result, as per the Order below:
ORDER
Complaint is allowed in part. The opposite party No.1 and 2 are jointly and severally held liable and responsible to pay the balance of a sum of Rs.10,910/ (Rupees Ten thousand nine hundred ten only) with interest at the rate of 10%, from 25.01.2013 till realization, including a sum of Rs. 5,000/ (Rupees Five thousand only) towards compensation and litigation and also another sum of 5,000/ (Rupees five thousand only) towards cost and litigation charges incurred by the complaint. Payment shall be made within 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 her, revised and pronounced in the open court on this the 3th day of November 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: Mr. K.P.Suraj Rao
Documents marked on behalf of the Complainant:
Ex.C1: First Premium receipt.
Ex.C2: Dated: 23.01.2013 Confirmation letter for request of surrender.
Ex.C3: Dated: 25.01.2013 Letter accepting the surrender.
Ex.C4: Dated: 05.02.2013 Notice issued by the complainant.
Ex.C5: Acknowledgment card.
Ex.C6: Dated: 21.06.2013 Legal notice issued to the Opposite Parties.
Ex.C7: Acknowledgment card.
Ex.C8: Acknowledgment card.
Ex.C9: Reply notice.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents produced on behalf of the Opposite Parties:
Nil
Dated: 03.11.2016. PRESIDENT
