| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.242 of 09-07-2015 Decided on 26-02-2016 Beant Kaur aged about 46 years W/o Gurnam Singh R/o Village Ghudda, Tehsil & District Bathinda. ........Complainant Versus 1.Aviva Life Insurance Company India Pvt. Ltd., Mall Road, Malvia Nagar, Bathinda, through its Branch Manager. 2.Aviva Life Insurance Company India Pvt. Ltd. Aviva Tower, Sector Road, Opp. Golf Course, DLF-Phase V, Sector 43, Gurgaon-122003, through its Managing Director. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For the Complainant: Sh.Sanjeev Gupta, Advocate. For opposite parties: Sh.Varun Gupta, Advocate. ORDER M. P. Singh Pahwa, President The complainant Beant Kaur (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Aviva Life Insurance Company India Pvt. Ltd. and other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the officials of opposite parties approached her with an offer to purchase the policy. It was told that she would be required to deposit a sum of Rs.25,000/- per annum for a period of 20 years with a sum assured of Rs.2,50,000/- and she can withdraw the amount at any stage after completion of period of 3 years and after depositing 3 regular premiums of Rs.25,000/- each and total amount deposited by her shall be refunded to her alongwith interest thereon @ 2% per month. Being allured by assurance given by officials of opposite parties, she agreed to purchase the policy. It is alleged that officials of opposite parties never told the complainant regarding deduction of any charges in case she will seek refund of the amount deposited by her before completion of term of policy. She was specifically assured that she can withdraw the amount at any stage after completion of period of 3 years i.e. after depositing the three annual premiums with interest @ 2% per month. It is further alleged that the complainant deposited the first premium amount with opposite parties at Bathinda on 23.6.2009 and their officials obtained her signatures on some blank printed papers and assured her to supply the insurance policy within a few days. Later on, she was issued insurance policy No.AEL2617365. It is further alleged that the complainant has been regularly depositing the annual premium amount with opposite parties as per terms of policy and has already deposited the amount for continuous period of 3 years and has deposited an amount of Rs.75,000/- against proper receipts in the year 2009, 2010 and 2011. As per complainant, she being in dire necessity of money, approached opposite party No.1 in the year 2012 with a request that she does not want to continue with the policy and to refund the total amount alongwith interest etc., but opposite party No.1 started putting off the matter on one or other pretext and assured her that her total amount shall be refunded to her at the earliest alongwith upto date interest thereon, but opposite parties flatly refused to refund the principal amount deposited by her. Officials of opposite parties told the complainant that she is required to complete the term of policy and to deposit the total premiums. She requested them that she is in need of money and wants to get the policy cancelled. It is further alleged that opposite parties informed the complainant that she can get the refund of the amount after surrender of policy and only after deduction of huge amount from the deposited amount. They offered to refund the amount of Rs.33,000/- only to the complainant but she requested them that they have no right to deduct any amount from her principal amount and she is entitled to get the refund of total principal amount besides other benefits, but they flatly refused to refund her said amount. She has got issued a legal notice dated 20.3.2015 to opposite parties calling upon them to refund her total amount alongwith upto date interest thereon, but to no effect. A week ago, they have flatly refused to accede her requests. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and has claimed compensation to the tune of Rs.50,000/- on account of mental tension, botheration etc.; Rs.5500/- as cost of litigation and prayed for directions to opposite parties to refund her total amount of Rs.75,000/- alongwith upto date interest @ 2% per month. Hence, this complaint. Upon notice, opposite parties appeared through counsel and contested the complaint by filing their joint written version. In written version, they have pleaded that Aviva Life Insurance Company Limited having its Head Office at the address at Aviva Tower, Sector Road, Opp. Golf Course, DLF-Phase V, Sector 43, Gurgaon is a company registered under the Companies Act, 1956 and U/s 3 of Insurance Act, 1938 carrying on life insurance business. Thereafter opposite parties have raised the legal objections that the complaint is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this Forum. She has suppressed the material facts from this Forum. This Forum has no jurisdiction to entertain and try this complaint. She has failed to disclose any legal and valid cause-of-action against opposite parties to file this complaint. She has created a false story in her complaint to mislead this Forum. The intricate questions of law and facts are involved in this case. Parties have to lead their evidence by examining the witnesses and witnesses are to be cross-examined by the other party. The procedure under 'Act' is summary in nature and complainant, if so advised, may file civil suit seeking the alleged relief. Opposite parties have already provided services to the complainant, as such, there is no deficiency in service or unfair trade practice on their part. She is estopped from filing this complaint by her own acts, conduct, omissions and acquiescence. Opposite parties floats the insurance schemes for the public in general after prior approval of the Insurance Regulatory & Development Authority (IRDA). All the terms and conditions of respective insurance policies are set by IRDA constituted under IRDA Act, 1999 and Insurance Act, 1938. This complaint is false, frivolous and vexatious and has been filed in order to cause undue harassment to opposite parties. On merits, opposite parties controverted all the material averments. It is pleaded that the complainant herself was willing to purchase their Life Insurance Policy and approached their adviser and obtained the entire information about all their plans in vernacular language and after understanding all the terms and conditions of all the plans, she opted to purchase 'Aviva Easy Life Plus Policy' and filled the proposal form on 17.6.2009. At the time of filling of abovesaid proposal form, she opted to pay annual premium of Rs.25,000/- with term of plan as 20 years, premium paying term as 20 years and premium frequency 'annually'. It is also pleaded that at the time of signing the proposal form, the complainant made declaration, which is reproduced in the written version of opposite parties. After receiving the duly signed proposal form and going through the contents thereof, the underwriters reached to the conclusion that there is no risk to issue the policy to the complainant and issued her insurance policy bearing Nos.AEL 2617365, commenced from 23.6.2009 and sent her policy documents alongwith its terms and conditions on the given address and same have been received by her. As per provisions of the Insurance Act and as per policy documents, it is specifically mentioned that the policyholder has an option to reconsider the policy within Free Look Period option, meaning thereby the policyholder has the right to review the policy terms and conditions and cancel it within a period of 15 days from the date of receipt of its documents. The complainant did not do so, from this it is clearly established that she agreed to the same. As such, complaint is liable to be dismissed. It is also stand of opposite parties that the complainant paid only three premiums against the policy till 2011 and next premium was due in the year 2012 and she failed to pay the same so her policy lapsed as per terms and conditions of policy. She had two years to revive the policy after making payment of the due premiums against the policy, but she failed to pay the same, so her policy was terminated as per terms and conditions and opposite parties foreclosed her policy and paid her surrender value as per terms and conditions of policy. On merits, opposite parties have controverted all the material averments and cited some case law to support their contentions. In the end, they have prayed for dismissal of complaint. Both the parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence her own affidavits dated 8.7.2015 and 10.9.2015, (Ex.C1 and Ex.C7); photocopy of postal receipts, (Ex.C2); photocopy of legal notice, (Ex.C3); photocopy of schedule, (Ex.C4); photocopy of first premium receipt, (Ex.C5) and photocopy of letter, (Ex.C6). In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Bhuwan Bhashker dated 22.12.2015, (Ex.OP1/1); photocopy of terms and conditions of policy, (Ex.OP1/2) and photocopy of proposal documents, (Ex.OP1/3). We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. On the other hand, learned counsel for opposite parties has submitted that although they have not taken specific objection to the effect that the complainant is not a consumer, but before coming to the controversy on merits, Forum has to consider that whether the complainant falls within the definition of 'consumer' or not. Documentary evidence will prove that the complainant does not come within the definition of 'consumer'. Opposite parties have produced on record proposal form alongwith terms and conditions contained in the policy documents. The proposal form, (Ex.OP1/3) proves that the plan opted by the complainant was 'Unit Linked Insurance Plan' and she has opted entire investment for growth funds. The policy terms and conditions reveal that investment risk in the investment portfolio is borne by the policyholder. Therefore, it is speculative policy. Investment was for the purpose of business. As such, the complainant does not fall within the definition of 'consumer'. To support his submissions, learned counsel for complainant has cited cases Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Company Limited, 2013(3) CPJ 203; Smt.Paramjit Kaur Vs. Aviva Life Insurance Company India Limited, Consumer Complaint No.96 of 2011, Decided on 4.7.2014 and then Narinder Kaur and other Vs. Birla Sunlife Insurance Company Limited, First Appeal No.136 of 2013 Dated 4.6.2015 in respect of claim under 'Unit Linked Insurance Policy', consumer complaint is not maintainable and money investment is speculative. It is further submitted by learned counsel for opposite parties that even otherwise, the complainant has to prove her case by affirmative evidence. Evidence produced by the complainant does not support her averments. Therefore, she has failed to prove her case. As per complainant, she asked for refund of her amount in the year 2012. Therefore, in case, she has not received refund as claimed by her, then she was to file the complaint within 2 years, but complaint has been filed in the year 2015. Therefore, this complaint is time barred also. We have given careful consideration to these submissions and have gone through the cases law cited by learned counsel for complainant. It is well settled that the complainant has to prove her case by affirmative evidence. Evidence produced by the complainant is her brief affidavits, (Ex.C1 and Ex.C7). In affidavit, (Ex.C7) she has reiterated her averments as taken in the complaint. Therefore, these averments are required to be supported with other evidence. Other evidence of the complainant is postal receipts, (Ex.C2) and legal notice, (Ex.C3). These documents also do not prove her case. She has also placed on record copy of schedule, (Ex.C4). This document simply proves that sum assured is Rs.25000/-; premium frequency is 'annual' and policy term is 20 years and date of last payment of regular premium is 23.6.2028 and maturity date is 23.6.2029. There is nothing in this document to prove that she is entitled for refund of her amount alongwith interest after payment of 3 annual premiums. Therefore, this document also does not support her contention. Ex.C5, is first premium receipt. This document also does not prove her case. Ex.C6, is part of policy documents. She has not brought on record entire policy document, which contained 1 to 30 pages. She has produced only first page and this part of this document also does not prove her case. Therefore, conclusion is that from the evidence of complainant, her case does not prove. The matter can be examined from another angle also. Opposite parties have brought on record proposal form, (Ex.OP1/3). At the beginning of this document, it is mentioned that 'investment risk in the investment portfolio is borne by the policyholder'. In column No.4.12 (In type of funds), it is mentioned as 'Unit Linked Fund' and 100% investment is for growth fund. The standard terms and conditions of policy brought on record by opposite parties also show that there is note at the beginning of terms and conditions to the effect that 'investment risk in the investment portfolio is borne by the policyholder'. Therefore, this documentary evidence proves that it is speculative policy. Invested amount is for the purpose of investment. As per law laid down in cases Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Company Limited, 2013(3) CPJ 203; Smt.Paramjit Kaur Vs. Aviva Life Insurance Company India Limited, Consumer Complaint No.96 of 2011, Decided on 4.7.2014 and then in case of Narinder Kaur and other Vs. Birla Sunlife Insurance Company Limited, First Appeal No.136 of 2013 Dated 4.6.2015 in respect of claim under 'Unit Linked Insurance Policy', consumer complaint is not maintainable and money investment is speculative. From all angles, the complainant has failed to prove her case. For the reasons recorded above, this complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Pronounced in open Forum:- (M.P Singh Pahwa) 26-02-2016 President (Sukhwinder Kaur) Member (Jarnail Singh) Member
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