BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   30^th DAY OF DECEMBER 2019

O R D E R

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to pay a sum of Rs.25,000/- towards damages for the inconvenience caused, to refund Rs.1,00,000/- being the sum paid and grant such other reliefs.

2.      The brief facts of complaint is as under:

Complainant submitted that he was approached by 2 executives of OP-4 in August 2012 when she was staying in her father’s house at Bangalore.  The said executives were conducting a promotional campaign for OP-1, which has an association with OP-4.  The executives wrongly represented to the complainant that they were collecting deposits from interested persons and that OP-4 would provide annual interest on the said deposit amount.  Believing such representation to be true and correct and unsuspecting of the executives of OP-4, the complainant decided to make two ‘deposits’ of Rs.50,000/- each.  However OP-4 issued receipts for Rs.49,235/-.

Complainant further submitted that complainant was made to sign on the document by misrepresenting the facts of the matter.  On 10.09.2013 the complainant received intimation from OP-1 demanding payment of premium of Rs.48,497/-.  It is only then it came to light that the complainant was fraudulently made to take life insurance by the OPs.1 to 4.  On realizing the same, the complainant requested the OP-1 to return what she believed were deposits made by her.  To her utter shock and dismay the complainant was informed that she cannot surrender the insurance policies under policy numbers TDW 3171555 and TDW 3171606 before the expiry of the lock-in period of 3 years.  The complainant had been misled by OPs.1 to 4, she would not have taken the said life insurance for herself considering the fact that she is not even a resident of India.  Only because the complainant was fraudulently made to believe that she was investing in a fixed deposit, did she decide to pay the amount.  The actions of OPs.1 to 4 were not bonafide and done with an intent to deceive the complainant and sell the insurance policies of OP-1 in order to enjoy regular hefty premiums.  The complainant had issued notices dated 09.04.2015.  OP-2 replied to the notice.  Complainant felt deficiency in service on the part of OPs.  Hence complainant approached this Forum for seeking reliefs.

3. In response to the notice issued, OPs.1 & 2 appeared through their advocate and filed their version in brief as under:

OPs.1 & 2 submitted that the complaint is not sustainable for the reasons the word ‘deficiency’ as defined in Section 2 (g) of the C.P Act 1986.  The complainant having defaulted in making regular payment of premium is barred from alleging deficiency in service as against the OP.1 & 2 Insurance Company and consequently the complaint does not stand the test of law.  The complainant being desirous of availing Life Insurance Policies from OP.1 & 2 Insurance Company had submitted the proposal forms dated 05.08.2012 through the agents.  The OP.1 & 2 Insurance Company accepting the declarations made in the proposal form accepted the risk and issued policy Nos.TDW3171555 & TWD 3171606, “Aviva Dhan Vriddhi’ and dated of commencement of policy being 09.08.2012 with the sum assured amount of Rs.4,50,000/- in respect of each of the policies and with an annual premium of Rs.49,235/- each policy.  The averments that the agent of the OP Company had wrongly represented the facts and had collected the premium in the guise of fixed deposits for which they had assured annual interest etc., are misleading and incorrect and the complainant is put to strict proof of the same.

OPs.1 & 2 further submitted that the complainant was made to sign misrepresenting the facts etc., are specifically and emphatically denied as false and incorrect.  It is apparent from the proposal form that the complainant is a Graduate and working as a Software Analyst residing at United States of America had given all the details sought from in the proposal form including the details about the premium and the term of the policy and the premium paying term.  Further the policy documents also specifies about the term of policy and premium details and frequency of the premium to be paid.  Further the policy documents have already delivered to the complainant via Blue Dart courier on 13.08.2012.  The complainant failed to avail the free look in period.  If she was not satisfied with the terms and condition of the policy, she should have to cancel the policies in question within free look in period.  The complainant had failed to pay the annual premium which fell due on 09.09.2013, with a grace period of 30 days and as such the policy stood lapsed.  Thereafter the complainant got issued a legal notice on 17.04.2014 followed by another legal notice dated 28.04.2015, after the span of one year with a malafide intention of filing the present complaint which is barred by limitation.

OPs.1 & 2 further submitted that as per clause 4 (c) of the policy conditions if the non-payment of premium has occurred in first three years then the policy will be deemed to have automatically lapsed without any value and no benefits will be payable.  As per the policy terms and conditions the policy will acquire surrender value if the life assured had paid premium due for first three policy years as per clause 5 of the policy terms and conditions and if the Life Assured does not chose to pay the premium within 2 years from the date of the first unpaid premium the policy stand terminated as per clause 7 of the policy conditions.  The insurance policy being a contract both the parties to the contract are bound by the terms and conditions of the policy.  The averments made in the complaint are after thought and the complainant having defaulted the payment of premium is not entitled for any claim.  The complainant has not approached this Forum with clean hands.  Rest of the allegations made by the complainant is denied by OP.  Hence OPs.1 & 2 prayed for dismissal of the complaint with costs.

4. In response to the notice issued, OPs.3 & 4 appeared through their advocate and filed their version in brief as under:

OPs.3 & 4 submitted that the complaint is not maintainable either in law or on facts.  The complainant is not a ‘consumer’ as defined under the C.P Act.  The complainant approached 2 executives of OP-4 during August 2012 when she was staying in her father’s house at Malleshwaram, Bangalore and the said executives wrongly represented that they were collecting deposits from interested persons and the OP would provide annual interest on the deposit and believing such representation the complainant had decided to make two deposits of Rs.50,000/- each, however the OP-4 had issued receipt for rs.49,235/- are false and alleged with mischievous intentions.  In fact the complainant along with her father i.e., power of attorney holder of complainant had approached the bank and evinced interest to avail insurance policies in the complainant favour.  Accordingly the complainant had shortlisted the “Aviva Dhan Vriddhi” out of various schemes floated by the OPs.1 & 2 for the interest of public.  Further the complainant had executed necessary proposal form to avail the policy No.TDW3171555 & TDW3171606 and also requested to accept debit mandate by way of written letter for debiting Rs.49,235/- for issuance of demand draft since she don’t have cheque leaf.  It is also wrong to allege that she had deposited Rs.50,000/- which will yield annual interest and if such is the case there is no need for her to sign the Aviva Insurance proposal form No.NUP16086427 and NUP 16123497 for availing insurance Aviva Dhan Vriddhi Insurance policies.  It is also wrong to allege that complainant decided to make two deposit of Rs.50,000/-.  The OP.3 & 4 had issued receipt for Rs.49,235/-.  She had provided written instructions to debit her account for Rs.49,235/- towards availing two policies and accordingly her account was debited only for Rs.49,235/- twice towards her instructions to cut DD in favour of Aviva Life Insurance Corporation.

OPs.3 & 4 further submitted that the complainant was made to sign on the document by misrepresenting the facts and complainant put her signature was illegible and unclear and complainant received intimation from OP-1 demanding payment of premium of Rs.48,497/- and it is only then it came to light that complainant was fraudulently made to take life insurance by the OPs.1 to 4 and on realizing the complainant demanded the OP to return the same what she believed were deposits made by her and to her utter shock and dismay the complainant was informed that she cannot surrender her policies for 3 years are wrong and denied by the OPs.  The proposal form and other documents of insurance company is elaborate and she cannot plead ignorance that she has singed without being aware that she is availing insurance policies.  As a matter of best practices once the proposal form is signed and policy is issued, the insurance company staff calls the policy holder and preserve such call records, to confirm the correctness stated in the proposal form.  Further the said staff also explains about the features of policy, so that instant allegations of mis-selling can be avoided.  Even in the present case the complainant was called and the said call of complainant has been duly recorded.  During the said call the complainant accepted of signing the proposal form for availing insurance policies and the complainant was made aware of 3 years lock in period for the policies which she availed and it is wrong to allege that she came to know about the insurance policies and lock in period only after receiving renewal due notices/clarification letter from OPs.1 & 2.

OPs.3 & 4 further submitted that had the complainant not been misled by the OPs.1 to 4 she would not have taken the said life insurance for herself considering the fact that she is not even a resident of India and only the complainant made to believe that she is investing in deposits she decided to pay the amount are wrong and denied by OPs.3 & 4.  She was explained about the features of insurance policy by the OP staff and also when the staff of OPs.1 & 2 called the complainant and the said calls are duly recorded.  The said calls goes to prove beyond doubt that she is aware about the insurance policies.  Moreover after enjoying the benefits of insurance she cannot claim to refund the entire amount what she had deposited towards insurance policies.  It is like availing a insurance policy for risk cover and enjoy the risk cover and thereafter claim the premium amount which by no means can be accepted.  The complainant was given 15 days free look in period to go through the terms and conditions of policy and if the terms of policy is not as explained by the insurance agent or she is not agreeable for any of the terms mentioned in the policy bond then she is at liberty to return the policy by giving written notice to OPs.1 & 2 within 15 days from the receipt of policy document and upon such return the insurance company is liable to refund the entire amount, but not thereafter.  In the instant case she had received the policy bond but she never raised any dispute and hence it is deemed acceptance and feigning ignorance about availing insurance policy when call records speaks contrary tantamounts to perjury.

OPs.3 & 4 further submitted that the OPs were not bonafide in issuance of insurance policies are wrong.  If such is the case there is no need for OPs to include a free look clause providing right to policy holders to return the policy within 15 days from the date of receipt if they are not agreeable or if there is any mismatch.  Further calling the policy holder on recorded platform to confirm that she intended to avail the insurance policy and the data provided by her and the features have been well explained all these best practices only shows the bonafides of the OPs in issuing bonafide insurance policies.  The complainant has not approached this Forum with clean hands.  Hence OPs.3 & 4 prayed for dismissal of the complaint with costs.

5. In the course of enquiry into the complaint, the complainant and the OPs.3 & 4 have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPs has submitted written arguments.  Complainant has produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

6. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether the complainant is entitled for the relief sought for?

2.  What order?

7. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

8. Point No.1:  In the instant case the complainant alleged that the OPs have fraudulently made to believe the complainant that she has invested the amount in the fixed deposit.  Only after received demand letter for payment of premium of Rs.48,497/- from the OPs, the complainant come to know that she was invested in the “Aviva Dhan Vriddhi” life insurance policy.  Hence the complainant seeking for refund of premium amount but the OPs have rejected the claim of the complainant on the lock-in period of the policy for 3 years. 

9. On perusal of the pleadings, evidence and documents produced by both the parties, it is clear that there is no deficiency in service on the part of OPs.  As the complainant has signed the proposal form and obtained the policy.  The complainant has also received the policy bond No.TDW3171555 & TWD 3171606 as per complainant document No.4(a) and (b).  Further the complainant has also admitted that she has accepted the welcome letter which was sent by the OPs.  In the welcome letter/document No.4(a) and (b), it is clearly mentioned that if there is any objection from the complainant within the stipulated period of 15 days and if the complainant was not interested she can surrender the policy within that stipulated period.  But the complainant has not done so as she has accepted the policy and kept quiet for one year now the complainant cannot take U turn and say that she was deposited her money in the FD.  But the OPs have invested in the policy bond No.TDW3171555 & TWD 3171606 with her knowledge and consent.  The complainant being an educated knowing fully well has signed the proposal form and accepted the policy.  The complainant is estopped from taking the contention that she has not invested the amount in the policy.  Moreover the complainant has not produced any documents to show that the complainant has requested the OPs to invest her money in the FD account. 

10. Further as per the policy terms and condition No.5 surrender value, the complainant can seek for surrendered value only after completion of the first three (3) policy years.  In the instant case the complainant has not completed the first three (3) policy years.  Hence the complainant is not entitled for surrender value as per the terms and condition No.5.  The complainant also did not point out the relevant terms and conditions of the policy in question under which they are entitled to refund of the amount paid.  Thus from the material placed on record, we are of the opinion that, the OPs have acted in accordance with the terms and conditions of the policy.

11. The complainant has failed to establish deficiency of service as alleged in the complaint on the part of OPs.  Therefore, the complainant is not entitled to any relief as prayed in the complaint.   Accordingly we answer the point No.1 in the negative.

12. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  No order as to costs.

 Supply free copy of this order to both the parties.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 30^th day of December 2019)

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Umesh Babu Patel.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs.3 & 4 by way of affidavit:

Sri.Venkatesh K.V.

Documents produced on behalf of Opposite Parties - Nil

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

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