Order dictated by:

Sh.S.S. Panesar, President.

1        Devender Nath Sharma has brought the instant complaint  u/s 12  & 13 of the Consumer Protection Act, 1986 (in short ‘the Act’) against the opposite parties  on the allegations that officials of the opposite parties contacted the complainant and  on their inducement, complainant purchased the following policies:-

(i)      Policy No. 120613540899 for Rs. 31310 dated 19.6.2012.

(ii)     Policy No.120613543680 for Rs. 4,00,000/- dated 26.6.2012.

(iii)    Policy No. 120713563065 for Rs. 1,99,310/- dated 20.7.2012.

It was further alleged that Mr. Ved Parkash Arora, Senior Manager of opposite party No.1 told the complainant that opposite party No.1 will invest Rs. 1 lac on its own. Accordingly, complainant provided two cheques of Rs. 50,000/- each. However, those cheques were not encashed by opposite party No.1. The complainant became suspicious that opposite parties are selling their product  through unfair means. Accordingly, complainant filed a complaint on 1.10.2012 at the Local Office of opposite parties at Amritsar and requested them to refund the amount invested in the aforesaid plans, but they replied in a vague manner. Thereafter complainant sent a legal notice dated 17.11.2012 upon opposite party No.1 but to no avail. Complainant had earlier filed a complaint against the opposite parties  but due to some technical defect, it was withdrawn with permission to file afresh vide order dated 18.12.2014. The complainant has sought for the following reliefs vide instant complaint :-

1. Opposite parties be directed to repay the amount of there policies alongwith interest @ 18% p.a..
2. Compensation to the tune of Rs. 1,00,000/- for causing unnecessary harassment and humiliation may also be awarded.
3. Opposite parties be also directed to pay litigation expenses to the tune of Rs. 10000/-.

Hence, this complaint.

2.       Upon notice opposite parties contested the complaint  taking certain preliminary objections therein inter alia that the complainant did not disclose any deficiency in service  ; that complaint was barred under sectin 3 of the Act as amended upto date as it involved  recording of elaborate evidence oral as well as documentary , which was not possible in summary procedure under the Act and the matter be relegated to the Civil Court ; complaint was barred by the principle of resjudicata as the complainant had already approached the Forum seeking the same relief in complaint No. 954 of 2012 and it was withdrawn without any cause of action ; no cause of action has arisen in favour of the complainant to file this complaint and that complaint was false, frivolous, therefore, liable to be dismissed with  exemplary cost under section 26 of the Act. In the brief facts, it was submitted that the complainant as a proposer took three policies covering a risk of life of his daughter Ms.Swati Sharma as under:-

Accordingly, the policies were issued in favour of the complainant. The complainant was further given detailed description about the features of the said policy. The complainant signed the declaration that the sale literature and illustrations in relation to the product to be purchased have been provided and have been explained to the complainant As per IRDA  each policy holder is apprised about  the option  of free look period of 15 days with the Welcome letter  and welcome letter was sent with gthe policies to the complainant . It contained free look period of 15 days. The risk for the said policies were under written on 19.6.2012 , 26.6.2012 and 23.7.2012. The aforesaid documents were dispatched to the complainant and the same were received by the complainant on 22.6.2012, 29.6.2012 and 23.7.2012 respectively. However, complainant failed to avail the free look period to get the policies cancelled within  stipulated period. . The first protest with regard to the aforesaid policies was lodged by the complainant only on 3.10.2012 i.e. after  lapse of 15 days from the date of receipt of the policy in question.  Therefore, as per terms and conditions of the policy , those policies were cancelled. Opposite parties vide their letter dated 15.10.2012 were  informed the complainant that request for cancellation of the policy was beyond the free look period. Hence, the policies could not be cancelled. In parawise reply, it was  submitted that  the product of the opposite parties was available in the public domain. It was only on filing of the proposal form  and  further contract details by the proposer, the customer service executives of the opposite parties contact on phone. Issuance of the policies as stated in the complaint is an admitted fact. The aforesaid policies were solicited on the basis of speculative motives  as such, complainant was not a consumer. It was denied that any fraud  or misrepresentation was played upon the complainant at the time of selling the policies. The request for cancellation of the policy was received beyond the free look period of 15 days. Accordingly, that request was not accepted and the said fact was duly intimated to the complainant. No unfair trade practice or deficiency in service on the part of the opposite parties have been pleaded and the complaint was without merit and a prayear for dismissal of the same with cost was made.

3.       On receipt of the evidence and after hearing the counsel for the parties and going through the evidence on record, District Forum, Amritsar dismissed the complaint vide order dated 13.8.2015 mainly on account of the fact that the complainant is not proved to be a consumer of opposite parties. The complainant filed an appeal before the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh which vide order dated 10.2.2016 allowed the appeal holding the complainant to be a consumer under the Consumer Protection Act and remanded back the case to District Consumer Forum, Amritsar for deciding the same afresh after hearing the counsel for both the parties.

4.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.

5.       Ld.counsel for the complainant has vehemently contended that complainant wanted to  invest money in the IPO issued by Govt. of India on coal blocks and for this purpose Varun Saxena and Sh. Ved Parkash Arora approached  the complainant  on telephone and introduced themselves as manager and Senior manager respectively of opposite party No.1. Sh. Varun Saxena  the said manager of opposite party No.1 allured the complainant that opposite party No.1 has a very good finance plan for the growth of money  and then by making the excuse  that Sh. Ved Parkash Arora  is the Sr.Manager of opposite party No.1 and he will explain the whole plan for investment to the complainant and transferred the telephone line to him, the said Sr. Manager. Sh. Ved Parkash  Arora the said Sr.Manager of opposite party No.1 explained that opposite party No.1 is investing money in Govt. of India funding plan like IPO issued by Govt. of India on coal blocks. He further alleged  that in the said company money would grow faster than any other company. Ved Parkash  explained that the complainant has to invest money in three terms   and believing his assurance  that in good faith the complainant made three investments under his instructions and guidance as detailed below:-

1. Policy No. 120613540899 for Rs. 31,310/- dated 19.6.2012 Ex.C-2.
2. Proposal Form No. 731128 Ex.C-3.
3. Policy No. 120613543680 for Rs. 4,00,000/- dated 26.6.2012 Ex.C-4.
4. Proposal form No. 792660 Ex.C-5.
5. Policy No. 120713563065 for Rs. 199310/- dated 20.7.2012 Ex.C-6.
6. Proposal form Ex.C-7.

6.       Ved Parkash Arora further told the complainant that he will invest Rs. 1 lac from his own. On the assurance of said Sr. Manager Sh. Ved Parkash Arora, the complainant provided two cheques of Rs. 50000/- each bearing No. 339764 and 339765 dated 8.9.2012 drawn on Yes Bank and the amount of these cheques of Rs. 1,00,000/- will be encashed by opposite party No.1 itself. Ved Parkash after providing different cancellation codes to be mentioned on the back of every application form signed by the complainant and these cancellation codes were written by the complainant on each and every application form . Opposite parties neither  presented those cheques to the banker of the complainant nor informed the complainant about the current position of the cheques. Ved Parkash Arora  the said Sr. Manager of opposite party No.1 has on so many occasions called the complainant telephonically and instructed him that opposite party No.1 will make so many verification calls for which the complainant has to accept them  saying “yes” to each and every call. The instructions of Ved Parkash, came to be true when complainant received  so many telephonic calls and the complainant replied in the manner instructed by Sh. Ved Parkash Arora believing it to be verification calls from the officials of opposite party No.1. When the abovesaid two cheques of Rs. 50000/- each issued by the complainant  to the opposite parties were not encashed the complainant became suspicious  as the whole episode was based on unfair trade practice and the complainant fell prey to the hands of the opposite parties. The complainant has reason to believe that the opposite parties in connivance with Sh. Varun Saxena, the said manager and Sh. Ved Parkash Arora, Sr.Manager were selling their products through unfair trade practice  by luring them in false plans. The complainant also filed a complaint dated 30.9.2012 in the local office of opposite parties at Amritsar, copy whereof is Ex.C-8 on record requesting them to refund the amount invested in the aforesaid plans.  In the reply opposite parties have suggested the complainant to continue the insurance policies . It was a surprise to the complainant because  how he could continue with the policies which were based on the “lies:” of the officials of the company. Moreover a person like the complainant with meager income is unable to pay such a heavy amount of Rs. 6 lacs annually. The complainant also served legal notice dated 17.11.2012 upon opposite party No.1, copy whereof is Ex.C-10 which was duly received by Davinder Singh, representative of opposite party No.1. The complainant had also filed  the complaint on the same cause of action against opposite parties No.1 & 2 but due to some technical defects the same was withdrawn on  18.12.2014. A perusal of proposal form go on to show that many of  the columns of those have been  left blank and the information regarding annual income of the complainant  has been also mentioned to be wrong. The income of the complainant has been stated  to be Rs. 25 lacs, Rs. 22 lacs and Rs. 23 lacs respectively in the proposal forms Ex.C-2 to Ex.C-4, whereas the complainant has adduced on record Income-tax return wherein his annual income has been shown to be Rs. 2.50 lacs only . Had those column(s) of proposal form  were filled on the instructions of the complainant, vital information regarding annual income of the complainant might not have been that different than the actual annual income to the complainant. Similarly contact numbers regarding the introducer(s) of the Insurance policies were also found to be out of order when contacted by the complainant  , which shows that the proposal forms were filled by the opposite party  on their own and the signatures of the complainant were obtained on those while being blank. Since the opposite parties have practiced unfair trade practice upon the complainant in getting the Insurance policies in dispute issued in the name of the grand daughter of the complainant, therefore, opposite parties cannot escape from liability and they cannot refuse to refund the amount obtained as premium(s)  from the complainant under the Insurance policies in dispute. Reliance in this connection has been placed upon Saheed Bhagat Singh Public School & Anr. Vs. Anoop Singh 2012(3) CPC (NC). Further reliance has been placed upon Ashok Kumar Shivpuri –petitioner Vs. Akbarally’s & Anr-Respondents IV(2010) CPJ 207 (NC) wherein it has been laid down  that in our view, any misleading advertisement for the purpose of promoting the sales would amount to unfair trade practice in view of this, we hold both the respondents responsible for unfair trade practice in question. The complaint is accordingly allowed and we are of the opinion that a lumpsum compensation of Rs. 50000/- be awarded including cost of litigation expenses incurred etc in favour of the complainant  for the unfair trade practice adopted by the respondent.

7.       Ld.counsel for the complainant has further contended that no doubt in the previous complaint filed by the complainant, plea of ‘fraud’ was taken which was substituted by plea of ‘unfair trade practice’ in the fresh complaint yet  the same cannot be termed to be taken to be wrongly substituted . The complainant was  allowed to file the complaint afresh as previous complaint suffered from technical defects, therefore, after removing the technical defects, the present complaint has been filed . The complainant has been able to prove his case. Opposite parties cannot retain the amount wrongfully obtained by them from  the complainant by practicing unfair trade practice and as such the complainant is entitled to the relief as claimed vide instant complaint and the complaint may accordingly be allowed.

8.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complaint filed by the complainant does not disclose any deficiency in service or unfair trade practice on the part of the opposite parties. This contention stands fortified from  the documents forming part of the policy contract entered into between complainant and the opposite party. The complaint is barred by  Section 3 of the Consumer Protection Act, 1986 in as much as the present case involves recording of elaborate evidence, both oral and documentary and as such the matter deserves to be relegated to the Civil Court of  competent jurisdiction. Present complaint is also barred by principle of resjudicata as complainant has already approached this Forum seeking the same relief. The complainant has filed earlier complaint bearing No. 954/2012 before this Forum in which proceedings were complete and sensing that his complaint would be dismissed, the complainant withdrew the same and went on to file the present complaint just  to waste the precious time of this Forum. Hence, the present complaint is also liable to be dismissed on this score.

9.       Further more the complainant has attempted to misguide and mislead the Forum  and has suppressed material facts from this Forum and as such complaint is liable to be dismissed. The polices in dispute were sent to the complainant via AWB No. 40381202971, 40381208372 & 40381488954 respectively and the same were delivered to the complainant on 22.6.2012, 29.6.2012 and 23.7.2012 respectively at his address mentioned in the proposal forms. As formulated and mandated by Insurance Regulatory Development Authority regulations, each policy holder is apprised about the option of free look period of 15 days through a welcome letter sent alongwith the policy contract documents. Under the free look option, if the policy holder finds any discrepancy in the policy terms and conditions sent to him, he may exercise the free look option by informing the ARLIC’s concerned department in writing in such cases, if the policy holder is not satisfied , he can place a request for change in plan or cancellation of the policy. In the instant case, a welcome  letter was sent with the said policies and it contained the free look option. The risk for the said policies were under written on 9.6.2012,  26.6.2012 and 23.7.2012 and the aforesaid policy documents were dispatched to the complainant and the same were received by the complainant on 22.6.2012, 29.6.2012 and 23.7.2012 respectively.  It is none of the case of the complainant that insurance policies in dispute were not received by the complainant on  date(s) stated herein above. However, complainant did not avail free look option within the stipulated time mentioned in the said letter. Under the aforesaid circumstances, it shall be presumed  that the complainant had accepted  the terms and conditions of the policies as they are . Even the complainant was well aware of the terms and conditions of the policy at the time of purchase of the policies & further when welcome letter was received. However, no  request/application for getting the aforesaid policies cancelled has ever been made by the complainant prior to 3.10.2012. Request made on 3.10.2012 is palpably hit by limitation. Since the  complainant has not exercised his volition of getting the insurance policies cancelled within free look period, therefore, his request for cancellation of the policies received on 3.10.2012 cannot be entertained and has rightly been refused by the opposite parties.

10.     The complainant has also tried to play over smart. Complainant also filed complaint No. 954 of 2012 before District Consumer Forum  on same set of facts and for the same relief. But the same was got dismissed as withdrawn with permission to file the same afresh on the ground that the earlier complaint suffered from some technical defects. Those technical defects were not explained either at the time of  withdrawing the earlier complaint nor at the time of filing the fresh complaint. The only technical defect  which was in the previous complaint was to the effect that  a plea of ‘fraud’ was previously taken  which was substituted  with ‘unfair trade practice’ in the subsequent complaint. The complainant could not make such a substitution in the subsequent complaint . As a matter of fact , if we go through the allegations of the complaint, we reach an irresistible conclusion that the complainant wanted to plead that Insurance policies in dispute were issued in his favour by practicing fraud upon him at the behest of the opposite parties and sensing that the pleadings regarding fraud and mis-representation would oust the jurisdiction  of  District Forum, the aforesaid substitution has been made by the complainant unauthorizedly and illegally . The complaint is bound to fail on that account also .Since the proposal forms bear the signature of the complainant and the complainant being a highly educated person, he was bound by the terms and conditions of the Insurance policies in dispute as well as information given in the proposal forms regarding his annual income and other aspects and he cannot pass the buck on to the opposite parties to allege that any unfair trade practice or mis-representation has been made by the opposite parties .In our considered opinion the complainant is bound by the terms and conditions of the Insurance Policy in dispute. We seek support on this point from M/s. V.K. Karyana Store Vs. Oriental Insurance Co. Ltd. 2014(3) CLT page 47 wherein it has been held that it is well settled principle of law that parties are bound by terms and conditions of the insurance policy and none of the parties can seek any  relief beyond those terms and conditions. Further in Prema & Ors- Petitioners  Vs. Life Insurance Corporation of India Ltd.-Respondent 2006(3) CLT 574 (NC), it has been laid down that “we need not say that the Insurance Contracts are ‘uberrima fides’ and are founded upon utmost good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the other. This legal proposition has been reiterated time and again by the Supreme Court, this Commission as well as by various High Courts”.

11.     The complainant cannot wriggle out from the terms and conditions of the Insurance policy in dispute. Therefore, his forbearance for not applying for cancellation of the Insurance policies in dispute within free look period of 15 days of the receipt of Insurance policies in dispute debar him from filing the present complaint. There is absolutely no deficiency of service or use of unfair trade practice on the part of the opposite parties, in issuing insurance policies in dispute. Instant complaint is nothing but an abuse of process of law. As such, instant complaint fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 08.09.2016

/R/