Order No.12

Dated 02/07/2018

                     The Complainant filed the instant petition claiming refund of Rs.100000/- with 18% interest, compensation Rs.500000/- and cost of Rs.30, 000/-.  The complainant opted for AVIVA Life Long Unit Linked Policy bearing No. WLG1673649 (upgraded as 02375708/ WLG1673649) for an amount of Rs.100000/- for 26 years with risk commencing from 28/09/2007.  The complainant admittedly was not satisfied and tried to communicate to OP-1 on the grievance repeatedly; subsequently, lodged the case.

                      The OP-1 after filing WV filed a petition on 22/03/2018 challenging the maintainability of the complaint on the following grounds:-

1.  Holder of Unit Linked Policy does not come under the definition of ‘Consumer” in terms of section 2(1) (d) of the C.P. Act, 1986. 
2. The complaint is hit by limitation under section 24A of the C.P. Act, 1986. 
3. The Forum has no territorial jurisdiction to adjudicate the dispute on the AVIVA Unit Linked policy which was obtained from Mumbai and the whole transaction was done in Mumbai.

The complainant filed written objection to the OP-1’s petition challenging the Maintainability of the complaint.

Learned Advocates of complainant and OP-1 as well as OP-2 were present and took part in the long argument on 26/06/2018.

The complainant cited many issues in the WO but those are points deserving to be in the main course of the case.

One pertinent point raised by the complainant is that the policy no. stated in the OP-1’s petition and that in the complaint/WV differs. So, the Maintainability Petition of OP-1 be rejected.

Interestingly, the complaint itself does not mention any policy number.

However, the fact remains that the Policy when issued, was numbered as “WLG1673649”.The same was upgraded and was intimated at the end of Page 2 of letter dated May 02, 2016 issued by AVIVA to the complainant himself reg. his complaint to OP-1.Said letter dated May, 02, 2016 with upgraded number as “WLG1673649/02375708” has been relied by the complainant in the instant case as Annexure at running Page 23-24.

So, complainant’s plea reg. difference in the number of Policy has no leg to stand.

Regarding complainant’s observation on the judgement in RamlalAgarwala case, we shall comment in the right time.

Other points raised by the complainant during argument or in the W.O. are not related to the Maintainability petition, as we mentioned above.

We have perused the records filed by OP-1 and also heard presentations of OP-1 during hearing of the petition.

In view of the above said discussions and findings of the State Commission, we are of the opinion that the present complaint is not maintainable under the Consumer Protection Act, 1986, and as such, it is dismissed being devoid of merit”.

Observations at Para-6 and 12 of the Judgement also speak of the same view.

We also hold the same view, the ratio of our case at hand being the same.

In this connection, we like to mention that during argument, Ld. Advocate for the complainant made a point on the judgement under discussion that in the referred judgement, the complainant had 7 policies but in the instant case, the complainant has only one policy; so, it cannot be for commercial purpose.

Ld. Advocate may be replied that when a principle is established, quantity or amount does not matter and falls into the accepted principle, without any exception.Moreover, Ld. Advocate may be referred to letter dated 28/05/2010 of the complainant himself written to Director, Operation of OP-1,where at Page 2, last Para of the letter, the complainant stated inter alia, “Alternatively, as I discussed with your other agent, I propose to invest another Rs.100000/- /Rs.100000/- with AVIVA in Units subject to the condition that how many further units you may allot to me over and above the units 3100 as I am already holding since initial period and the total units in summation will be paid to me on the fourth year at current market value and no further charges be deducted”.The letter was filed by the complainant himself at running Pages 17-18 of the complaint.

• 1)  Reg. Expiry of Limitation

OP-1 tried to substantiate that the present complaint is hit by limitation u/s 24A of the C.P Act, 1986.

It appears from records that the complaint has been filed on 08/12/2017 and the policy commenced from 28/09/2007.Complainant’s claim to OP-1 was repudiated and intimated through letter dated 11/11/2010.So, as per common parlance, cause of action arose from the date of intimation of repudiation i.e. on 11/11/2010 and cause of action should have expired within 2 years, i.e. on 11/11/2012.Instead, the complaint has been filed after long 7 years from the date of cause of action and after 5 years from expiry of cause of action.On perusal of Para-18 (i) of the complaint, it appears that the complainant had sent a letter on 11/09/2007 which complainant had sent a letter on 11/09/2007 which is before the issue of Policy.So, said letter dies not come to add any help in curbing the long gap of expiry of limitation.

The complainant did not case to bridge such gap.No petition for explaining the delay and for condonation of such delay has been filed for our consideration whereas every day’s delay has to be counted.

The complaint has been filed long after expiry of Limitation.So, the complaint is not maintainable in terms of section 24A (1) of C.P. Act, 1986.

The records placed in connection of the complaint show:

1. The policy has been obtained from Mumbai; Para – 4 of Complaint shows that offices of both OP-1 & 2 are situated in Mumbai.
2.    Transaction of Premium payment (FIRST PREMIUM RECEIPT) dated 28/09/2007 took place at Dadar Branch of IndusInd BANK (OP-2), Mumbai;
3. Last Page (Running Page -8 of complainant) of Proposal Form shows that the complainant signed the Form on 29/08/2007 at Place: Mumbai.
4. Complainant admitted in his letter dated 20/04/2016 (Running Page 25) that the policy No. WLG 1673649 was issued by OP-1’s Mumbai office. 2^nd Para of the said letter shows transactions made at Dadar and Mumbai Offices.  Complainant’s letter dated 16/08/2010 as referred to at 2^nd Para, Page 2 of the letter (Running page 26) of complaint) that the complainant shifted from Mumbai to Kolkata in 2010 due to ill health.
5. No scrap of Paper has been filed by the complainant to show that the transactions as stated from serial (i) to (ii) to (vi) have been made through Kolkata Office of OP-1.

Kolkata Office of OP-1 appears to have been made a party to cause jurisdiction of this Forum.But from settled principle, it transpires that no branch can be made a party unless any transaction takes place through it in connection with any complaint.

From above analysis, it is evident that this Forum has no territorial jurisdiction to adjudicate the complaint.

From observations of above 3 points, the complaint seems Non-Maintainable in each point.

So, the petition of OP-1 challenging the Maintainability of the complaint is allowed and the W.O. filed by the complainant is rejected.

The Maintainability Petition of OP-1 is hereby disposed of.

The complaint no. C.C 515/2017 is hereby dismissed being no Maintainable.

Let copies of the order be handed over to parties when applied for.