Chandigarh

StateCommission

A/330/2015

Devendra Kumar Goel - Complainant(s)

Versus

Aviva Life Insurance Co. India Ltd, - Opp.Party(s)

In Person

08 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	330 of 2015
Date of Institution	04.12.2015
Date of Decision	08.03.2016

 

Devendra Kumar Goel (09417839931), # 78 Sky Net Enclave, Loahgarh Patiyala Road, Zirakpur (Mohali), Punjab.

                           …..Appellant/Complainant.

                           Versus

1. The Chief Manager, Aviva Life Insurance Company India Limited, SCO 45-46-47, Sector 17-A, Chandigarh.
2. HDFC Bank Limited (through Chief Manager), formerly known as Centurion Bank of Punjab Ltd., SCF 69/70, Phase 3B2, Mohali (Punjab) 160058.

.…..Respondents/Opposite Parties.

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Devendra Kumar Goel, appellant in person.

Sh.Gaurav Bhardwaj, Advocate for respondent No.1.

Sh.Sunil Narang, Advocate for respondent No.2.

                               

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 04.11.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short ‘the Forum’ only), vide which, it dismissed the complaint filed by the complainant (now appellant).

2.           The facts, in brief, are that in the year 2006, on the asking of the Branch Manager of Opposite Party No.2, the complainant took one policy of Aviva Life Insurance Co. India Limited, on quarterly payments of Rs.12,500/- through ECS. It was stated that after taking the said policy, the market condition was not good till 2012 and it showed a positive impact only in 2014. It was further stated that in August, 2014, while comparing the ULIP viz-a-viz the payments made, the complainant noticed that the value was almost equal, whereas, the market had moved three times. It was averred that the premium had been increased twice without any information and confirmation, from Rs.12,500/- to Rs.13,125/- and from Rs.13,125/- to Rs.13,781/-. It was further averred that the ECS clearance permission was given to Centurion Bank of Punjab, which was thereafter merged in HDFC Bank and the said bank had changed the ECS amount twice, without information to the complainant. It was further stated that the complainant made objections with regard to deduction of mortality charges, bid offer charges and purchase sell spread charges, which were not the part of the Policy and a written complaint to this effect was also made on 05.08.2014, in response to which, Opposite Party No.1 confirmed that all the charges were as per the Policy and were offered to return the extra amount with a loss to complainant’s account due to indexation. Failing to get any positive response, the complainant also filed a complaint with the Insurance Ombudsman, Chandigarh, which was also dismissed. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (in short the “Act” only), was filed.

3.           In its written reply, Opposite Party No.1, stated that the complaint is not maintainable as the complainant had earlier filed a complaint before the Insurance Ombudsman, Chandigarh, on the same cause of action and the said complaint was dismissed vide order dated 03.05.2015. Thereafter, the complainant has not challenged the said order before the Hon’ble High Court and the order passed by the Insurance Ombudsman became final. Therefore, the present complaint on the same cause of action is not maintainable. It was stated that on the basis of proposal form and declaration made, a Policy bearing No.NLG1206092 was issued in the name of complainant, commencing from 06.02.2006, for a sum assured of Rs.5,00,000/-, and regular quarterly premium of Rs.12,500/- was to be paid till 06.02.2052. As such, till date, the complainant had paid the premium amount of Rs.4,46,343/-. It was further stated that on 18.09.2014, the complainant requested for partial withdrawal, which was duly acknowledged and processed by the replying Opposite Party and an amount of Rs.3,94,078/- was transferred in his Bank Account through NEFT (Annexure R-1/E). It was pleaded that due to partial withdrawal, the sum assured in the Policy was reduced to Rs.1,56,922/-. It was further pleaded that in the meantime, the replying Opposite Party was in receipt of complaints from the complainant regarding the charges incurred on his Policy. As such, the matter was got investigated, vide e-mail dated 13.08.2013, it was clarified to the complainant that on account of some technical error the premium got increased due to activation of indexation in the Policy, which resulted in increase of sum assured from Rs.5,00,000/- to Rs.5,51,000/-. Thereafter, the complainant was requested to give his confirmation if he wanted to terminate the indexation from the Policy and for refund of extra premium deducted in furtherance of the same (Annexure R-1/F). The complainant sent various emails on 20.08.2014, 20.09.2014 and 12.10.2014 to the replying Opposite Party, wherein, he complained of deduction of extra charges and charging of premium on indexation amount and the said emails were duly replied vide emails dated 21.08.2014, 10.10.2014 and 20.10.2014. Nonetheless, the complainant vide his email dated 21.10.2014 requested the replying Opposite Party not to process the refund of excess indexation amount (Annexure R-1/G colly). In the meantime, due to non-payment of regular premium, the Policy was converted into paid up insurance on 07.12.2014 and within six months from said date, the complainant had the option to reinstate the Policy, subject to policy terms and conditions. It was further stated that the replying Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.           

4.           In its reply, Opposite Party No.2 pleaded that as per the instructions of the complainant, the payment was released through ECS. It was denied that the replying Opposite Party had changed the ECS amount twice without information to the complainant. It was stated that replying Opposite Party had no role in the lapse of the Policy. It was further stated that the replying Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.        

5.           The complainant, filed rejoinder to the replies of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of the Opposite Parties. 

6.           The parties led evidence, in support of their case.

7.           After hearing the complainant in person, Counsel for Opposite Party No.1, Counsel for Opposite Party No.2, and, on going through the evidence and record of the case, the Forum, dismissed the complaint, on the grounds that he was not a consumer. 

8.           Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

9.           We have heard the appellant/complainant in person, Counsel for respondent No.1 and respondent No.2 and have gone through the evidence and record of the case, carefully. 

10.         The appellant/complainant has submitted that the Forum failed to appreciate and consider the fact that he invested his hard earned money with a hope to have good returns but because of the deficiency and unfair trade practices on the part of the respondents/Opposite Parties, the complainant was made to suffer both mentally and financially. He further submitted that the Forum completely ignored the fact that the complainant himself filed the application before the Commission without legal help as having financial constraints and was travelling from Rudrapur (Uttrakhand) for attending the dates. He further submitted that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in number of cases have held that an insured is a consumer of the services of the insurer. He further submitted that the latest decisions rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in original complaint No.42 of 1991 dated 30.01.1992 and another 1992 CPJ 169 (Uniplas India Ltd. Vs. National Insurance Company), in which, it was held that the Insurance Company is guilty of deficiency in service towards the insured if the claim payable under the Policy has been reduced arbitrarily, unfairly and has not settled with unreasonable expedient. The appellant/complainant also cited ruling of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Punjab Agricultural University Ludhiana Vs. UTI of India and Anr., I(2012) CPJ 166 (NC). He prayed for setting aside the impugned order and allowing the appeal.

11.         The Counsel for respondent No.1/Opposite Party No.1 submitted the Insurance Policy issued to the complainant is a unit linked policy, whereby, the investment is made through share market/speculative transaction and, as such, the Forum has rightly dismissed the complaint of the complainant.

12.         The Counsel for respondent No.2/Opposite Party No.2 has submitted that the Bank has no role for the lapse of the policy, in question and the payment was released through ECS, as per the instructions of the complainant. He prayed for dismissal of the appeal. 

13.         After giving our thoughtful consideration, to the evidence, on record, we are of the considered opinion, that the said appeal is liable to be remanded back to the concerned Forum, for the reasons to be recorded, hereinafter.

14.         The core question that falls for consideration, before us, is as to whether the Forum rightly passed the impugned order. The Forum had decided the complaint vide order dated 04.11.2015 that the complaint filed by the complainant was not maintainable under the Consumer Protection Act, 1986 for the reasons that the investment made by the complainant was to gain profit and hence, it was invested for commercial purposes and, therefore, he (complainant) is not a consumer. It is pertinent to mention here that insurance is a matter of solicitation and is not an act of purchase or sale and the policy is only issued by the Insurance Company after having looked into the proposal of the proposer and the same is issued under the provisions of the Insurance Act applicable to it. All the insurance policies are governed by the Insurance and Regulatory Development Authority of India (IRDA). There is a distinguishing fact between making investments in a share market and investing in an insurance policy. The applicant in an insurance policy gets profitable returns as per the terms and conditions of the Policy, whereas, any person, who prefers to invest in shares, has to open a D-mat account with a bank and can trade (buy and sell) any number of shares of any listed company with the SEBI (Security and Exchange Board of India), which is the Apex Body that controls such transaction. A person making such investment(s), can trade more than once even in a single day and the person, who invested his money in the share market is always free to sell his shares, when they are moving at a profitable rate. A person who has invested in an insurance policy is bound by the terms and conditions of the Insurance Policy which has minimum lock-in period. Therefore, both the investments i.e. the share market and the insurance cannot be placed at a same plane. It is necessary to quote here two set of judgments of the Hon’ble National Consumer Disputes Redressal Commission of New Delhi i.e. Life Insurance Corporation of India Vs. Smt.Sudhi P.P., R.P.No.2674 of 2013, decided on 15.01.2014 and Dr.Aditya Prasad Roy Vs. Mr.Suresh Mahalingam & Ors., R.P.No.4351 of 2014, decided on 6^th January, 2015, wherein, the Hon’ble National Commission, New Delhi, while dealing with similar set of Unit Linked Policies had decided them on merits and has nowhere given its specific observation that the complainant did not fall under the definition of consumer and the dispute did not fall under the preview of Consumer Protection Act.

15.         For the reasons, recorded above, the appeal is partly accepted and the case is remanded back to the concerned Forum, with a direction to decide the same on merits, in accordance with the provisions of the Act.

16.         The parties are directed to appear, before concerned Forum (District Forum-I) on 15.03.2016, at 10.30 A.M., for further proceedings.

17.         The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed.

18.         Certified copies of this order, be sent to the parties, free of charge.

19.         The file be consigned to Record Room, after completion.

Pronounced.

08.03.2016                                                                   

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER