FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant application is filed by the complainant U/s 12 of CP Act, 1986.
The fact of the case in brief is that OP is an Insurance Co. running its business under the name and style Oviva Life Insurance Co. Ltd. within the jurisdiction of this Forum.
It is stated by the complainant that the agent of the OPs approached him and convinced him that the policy offered by the OPs are best and shall provide better security at nominal cost accordingly the complainant purchased the life insurance policy in question as “Life Long Unit Linked Policy” on payment of required premium of Rs. 3,750/- through cheque vide cheque No. 540948 dated 17.11.2003 being policy No. LLG1059972 dated 08.01.2004 sum assured of Rs. 1, 50,000/- quarterly premium of Rs. 3,750/-.
It is further stated by the complainant that at the time of taken the policy in question the agent of the OPs convinced him that he has to pay policy premium for five years but after receiving policy certificate and documents sent by the OPs. The complainant was surprised to see that the mode of payment of premium was on quarterly basis and which will be continued for a period of 38 years. Immediately after receiving the policy certificate the complainant went to the OP-2 and requested to cancel the policy and demanded for premium amount of Rs. 3,750/- and pointed out that on the date of receipt of policy the complainant was of 47 years old and he will attend the age of 85 years by that time he has to pay a sum of Rs 50,000/- towards the premium of policy which was not at all opted by the complainant.
On hearing the complainant, the official of the OPs assured the complainant that they will resolve the issue as mis-sale of the subject policy.
It is further stated by the complainant that thereafter on so many times the complainant visited the office of the OP-2 and requested them to resolve the issue of subject policy but they neglected to discharge their obligation by refunding the amount of policy instead they advised the complainant to continue the policy by making payment of the premium, so it may not get lapsed due to non payment of premium until the issue resolved. Accordingly the complainant paid the premium of subject policy till 07.01.2011 ie 26 instalments and up to date he paid a sum of Rs. 97,500/- in total which was acknowledged by the OP under receipt. At that stage due to financial crisis the complainant failed to pay the premium on and from September 2011 to December 2012.
It is the further case of the complainant that in the month of January, 2012 he visited the office of the OP-2 with an intention to pay the entire premium and to provide the policy but the official of the OP-2 advised the complainant to get in touch with their head office at Gurgaon (OP-1). Thereafter, 17.02.2012 the complainant wrote a letter addressed to the Associate Director (Operation and Admin.) at Gurgaon requested therein to revive the subject policy by receiving the due premium amount. but despite receipt of the said letter, the OP-1 neglected to perform their part in terms and conditions of the policy vide clause No.
Article 36 Premium Holiday which reads as follows “if this insurance has been inforced for continuous and uninterrupted of 5 years from the commencement date and if all instalment of regular premium have been paid then the policy holder may thereafter (but only upto 4 times during the premium term) defer the payment of regular premium for continuation period of upto six months provided that written notice of the policy holders intention to defer the payment of regular premium is received by the company at least thirty days before the entitlement to defer has arisen”. In spite of same, the OP flatly denied the request of the complainant in respect of revival of the policy.
The complainant further stated that on 22.05.2012 he wrote to the complaint redress desk of the OP with a request to revive the policy after receiving due payment or refund the amount of Rs. 97,500/- but the complainant did not get reply save and except the purported reply which is not accepted in the eye of law.
Thereafter, the complainant received an email from a member of Customer Advisory Team of the OP where from it appears that the policy of the complainant was terminated due to negative fund value.
Having no other alternative, the complainant then lodged the complaint to CA and FBP Kolkata-700076 against the OP on 10.11.2017 then the OP-2 sent a letter dated 06.02.2018 to the complainant in response of letter dated 10.11.2017 demanding a sum of Rs. 1,12,500/- only in order to revive the policy. The complainant was also asked for submitting some documents to revive the subject policy being No. LLG1059972 dated 08.01.2004.
The complainant further stated that complainant replied letter dated 06.03.2018 of the OPs and also forwarded the reply to FA and FBP in order to show the unfair trade practice of the OP who forced the complainant to pay a higher rate of premium which comes to Rs. 1,12,500/- as on 10.03.2018 which would not happen had the OPs accepted the request of the complainant in the year 2012 when the premium was more lower being aggrieved and dissatisfied with the conduct of the OP and without having any other alternative. The complainant compelled to file the petition of complaint before the Forum with a prayer to pass an order directing the OPs to revive the subject policy after receiving due premium of Rs 20,000/- or alternatively to refund of Rs. 97,500/- towards premium of the subject policy paid by the complainant along with interest at @ 18 % from the date of payment till realisation. It is also prayed by the complainant that to pass an order directing the OPs to pay compensation amounting to Rs. 2,00,000/- to the complainant for causing physical and mental agony, harassment and negligent along with litigation cost f Rs. 30,000/-.
The OPs have contested the complaint application by filing WV denying all the material allegations levelled against them.
It is the case of the OPs that the petition of complaint is false malicious without having any cause of action and thus the case is liable to be rejected.
It is further case of the OPs that the complainant is not a consumer within ambit of CP Act.
It is admitted by the OPs that the complainant had opted for a Oviva Life Long Unit Link Plan. In that respect after understanding the terms and conditions of the policies completely he filled up the proposal form and signed the same on payment of initial premium. it is further submission that the contents of proposal form were explained to the complainant and he also given a declaration to that effect and also furnished the required information then the OPs evaluated the proposal form on the basis of information provided by the complainant and issued the insurance policy bearing No. LLG1059972 for quarterly premium frequency of Rs. 3, 750/- dated 08.01.2004.
OP further stated that admittedly the complainant stopped paying the premium from 08.07.210 as a result due to non payment of the premium due, the policy after expiry of grace period was converted into paid up policy in August, 2010 with same Sum Assured. It is the case of the OPs that to pay the premium regularly is the sole responsibility of the policy holder and the OP insurance co. made all communications regarding policy including policy A/c statements, premium reminder notice and laps letters to the complainant in time and the same was duly received by him.
It is further stated by the OPs that after the policy was converted into paid up policy the paid up letter was sent to the complainant asking him to pay all the due premium for reinstatement of the policy. it is alleged by the OPs that in the year 2012 the complainant vide his letter dated 17.02.2012, 22.05.2012 and 23.06.2012 raised complaint pertaining to his policy for which the OP vide letter dated 01.03.2012, 29.05.2012 and 29.06.2012 provided its resolution reply. Hence, the policy in question of the complainant as per policy terms and condition was terminated on 18.07.2015 and the complainant got the intimation from the OPs to that effect.
The OPs further stated that there is /was no negligence or deficiency in service on their part and the complainant held to make out a prima facie case against the OPs. Thus, the petition of complaint is liable to be dismissed with cost.
In view of above stated pleadings the points of consideration are as follows:-
- Is the case maintainable in its present form and in law?
- Has the complainant any cause of action to file this case?
- Is the complainant a consumer within the ambit of CP Act 1986?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On careful consideration of the materials on record and also considering the position of law, it appears that cause of action first arose on 08.01.2017 and again on 06.02.2018 when the OPs made illegal demand for revival of the policy on payment of excess money and the case is filed by the complainant on 28.08.2019. So, the case has been filed within the period of limitation.
In respect of territorial jurisdiction, it appears from material on record that at the time of filing petition of complaint the complainant filed another application U/s 11 (2) (b) of CP Act, 1986 with a prayer to allow him for filing this case against the OP-2 who was carrying on its business outside the jurisdiction of this Forum and he was permitted by this Forum. Permission was granted vide order No. 2 dated 13.09.2019 in MA No. 505/2019 from which it is palpably clear that this Forum has got jurisdiction both pecuniary and territorial to try this case. In sum the case is well maintainable in the eye of law.
It is also alleged by the complainant that he purchased a policy namely “Life Long Unit Link Policy” from the OPs on payment of premium amounting to Rs. 3,750/- through cheque vide cheque No 540948 dated 17.11.2003 and got the policy certificate being No. LLG1059972 dated 08.01.2004. sum assured was of Rs. 1,50,000/- regular premium amount, was of Rs 3,750/- amount quarterly and date of final instalment was 08.01.2042.
it is alleged by the complainant that at the time of taking the policy in question he was convinced by the agent of the OPs that he has to pay the policy premium for 5 years only but after receiving the policy certificate he found that the mode of payment of the premium was quarterly basis which will continue for a period of 38 years. The OPs admitted the fact that the complainant purchased the policy in question from them on payment of required premium of Rs. 3,750/-.
So under such circumstances as and when the complainant purchased the subject policy from the OPs which is well admitted by the OPs it is held by this Forum that undoubtedly since then the complainant is a consumer and the OPs are the service provider.
The complainant further stated in his petition of complainant and evidence onrecord that when he came to know from the policy certificate that he will have to pay the premium of the policy continues for a period of 43 years instead of 5 years he requested the OP-2 and their officials to cancel the policy and demanded for refund of premium amounting to Rs 3,750/-. On hearing his grievances the OPs assured him that they will resolve the issue as mis-sale of the subject policy. but subsequently, they advised the complainant to continue with the policy by making payment of premium otherwise the policy will be lapsed until the issue is resolved, without having any alternative the complainant continued to pay the premium under compelling circumstances till 07.01.2011 and in 26 instalment he paid in total a sum of Rs 97,500/-. It is also admitted fact that the OPs in their evidence and WV alleged that the complainant discontinued to pay the premium on and from September 2011 to December 2012 hence the subject policy was lapsed due to non payment of premium and they did not pay any heed to the request of complainant vide letter dated 17.02.2012 to revive the policy and ultimately the OPs terminated the policy due to negative fund value subsequently. The OPs demanded a sum of value Rs 1,12,500/- only from the complainant in order to revive the policy and also asked to submit the documents.
It is the claim of the complainant that the OPs neglected the request of the complainant they harassed him and they practiced unfair trade practice by putting the complainant under force to pay a sum of Rs. 1,12,500/- more for revival of the policy.
On careful perusal of the evidence on record it appears that the OPs since inception of the policy in question did not explain the terms and condition of the policy clearly to the complainant and arbiterally they have terminated the policy of the complainant . the complainant was agreed to pay the due defaulter amount for revival of the policy in question but the OPs did not pay any heed to his request and terminated the policy again with an intention to grab more money from the complainant.
They asked the complainant to pay a huge amount of Rs 1,12,500/- for revival of the policy in question so, the conduct of the OPs was not fair they tried to grab more money from the complainant by putting him under force such conduct of the OP should be termed as deficiency in service. They harassed the complainant and did not lent their ear of his request to refund the amount paid by him of a sum of Rs. 97,500/- only.
It is evident that the complainant continued the policy for a considerable period and paid 26 instalment upto 07.01.2011 on and from 08.01.2004. So, the complainant is entitled to get back the amount paid by him i.e. Rs. 97,500/- after running the policy for a considerable period. if he could be able to run the policy by paying the instalment up to 08.01.2042 then he would get the entire benefit but due to financial crisis he could not be able to refund the policy after payment of 26 instalment so, it is his liberty to get back the amount at least Rs. 97,500/- paid by him towards premium.
The OPs arbiterally and illegally terminated the policy and thereafter, they want to get more money from the complainant under the curve of revive the policy on payment of Rs. 1,12,500/- by the complainant. It is the choice of the complainant that whether he will continue the policy or not. but it should be considered whether he paid the mandatory instalments or not.
In this case the complainant purchased the policy on 08.01.2004 and paid the premium upto 07.01.2011 in 26 instalment so, in the considered view of the Forum the complainant is entitled to get back the amount paid by him towards premium in 26 instalments regarding the policy in question of a sum of Rs. 97,500/- but the OPs harassed him and neglected to keep the request of the complainant they terminated the policy and then claimed a huge amount of Rs. 1,12,500/- form the complainant for revival of the said policy in question which is beyond financial capacity of the complainant.
Hence, the complainant rightly requested the OPs to refund the amount paid by him towards the policy in question in 26 instalment.
The OPs denied the same and their conduct caused the harassment negligence, mental pain and agony to the complainant and also financial loss to the complainant which is considered as the deficiency in service on their part and they should be liable to refund the amount to the complainant also to pay the compensation to that effect.
Hence, in view of discussion made above, the Forum is of opinion that the complainant could be able to prove his case beyond the shadow of all reasonable doubts and is entitled to get relief as prayed for.
The case is properly stamped.
All the issue are thus decided and considered favourably to the complainant.
Hence,
Ordered
That the case be and same is decreed on contest against the OPs with cost of Rs. 2,000/-. The complainant do get the decree as prayed for.
The OPs are directed to refund the amount of Rs. 97,500/- paid by the complainant towards the premium of the policy in question being No. LLG1059972 dated 08.01.2004 either jointly or severally along with interest @ 9 % from the date of filing of this case till realisation on the amount of Rs. 97,500/- only within 45 days from the date of this order.
The OPs are further directed to pay the compensation to the complainant of Rs. 20,000/- either jointly or severally for harassment, mental pain agony along litigation cost of Rs. 5,000/- with 45 days from the date of this order.
If the OPs failed to comply the decree within the stipulated period the complainant will be at liberty to execute the same as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the Forum for perusal of the party.
