DISTRICT CONSUMER DISPUTES REDRESSAL FOR`UM, BATHINDA.

CC.No.368 of 2-08-2012

Decided on 30-11-2012

Puneet Bansal aged about 35 years s/o Vinod Kumar r/o H.No.978, Bura Gujjar road, Mukatsar.

........Complainant

Versus

1.Aviva Life Insurance Co. India Ltd., Branch Office, The Mall, Bathinda, through its Manager.

2.Aviva Life Insurance Co. India Ltd. Aviva Tower, Sector Road, Opp Golf Course, DLF Phase V, Sector 43, Gurgaon through its M.D.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt. Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Vinod Garg, counsel for complainant.

For Opposite parties: Sh.Sanjay Goyal, counsel for opposite party No.1.

Opposite party No.2 ex-parte.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the agents of the opposite parties namely Vikas Kumar and Sumit Kumar visited the house of the complainant and allured him about the benefits of the insurance policies of the opposite parties. The said officials allured the complainant that he will get the return of 18 to 24% per annum against the amount deposited and he could withdraw the amount anytime with interest and accrued benefits of the policy. The said officials also conveyed that the amount deposited by the complainant will be invested in the units and the policy will be Unit Linked Policy and he will be issued the insurance policy with complete terms and conditions and also with an option to get the policy cancelled and to get the refund of the entire amount deposited within 15 days after the receipt of the said policy. The officials took the signatures of the complainant on blank papers and forms without explaining any contents of the same. On relying upon the assurance of the opposite parties the complainant has deposited Rs.24,001/- as first premium with them on 11.2.2010 and they intimated him that policy No.TDE2873006 has been allocated and the same with terms and conditions will be sent to him shortly. The complainant further deposited one more premium of Rs.24,001/- vide cheque No.80318 for Rs.25,165/- drawn on State Bank of India, Bathinda encashed on 2.11.2011. The said officials also got another payment of Rs.30,009/- in the month of August,2010 with the same assurance that he will get the return of 18 to 24% per annum against the amount deposited and he could withdraw the amount anytime with interest and accrued benefits of the policy. The said officials also conveyed that the amount deposited by the complainant will be invested in the units and the policy will be unit linked insurance policy and he will be issued the insurance policy with complete terms and conditions and also with an option to get the policy cancelled and to get the refund of entire amount deposited within 15 days after the receipt of the said policy. The officials could not take signatures of the complainant on any paper and assured that his signatures on necessary papers will be taken later on and he will remain assured for a sum of Rs.2,25,000/-. The opposite parties only gave the policy No.TDW3023244 and has not supplied any policy document or its terms and conditions or any free look letter. The complainant has also deposited another premium of Rs.30,009/- vide cheque No.80364 dated 24.8.2011 drawn on SBI, Bathinda but till date no terms and conditions or free look letter supplied to him. The complainant alleged that the opposite parties utilized the first premium of Rs.30,009/- and second premium paid vide cheque No.080364 dated 24.8.2011 for Rs.30,009/- against the insurance policy No.TDW3023244 but no documents were got signed from him for the issuance of the said policy nor any policy document, terms & conditions or free look letter was sent in respect thereof. In July, 2012 the complainant approached the opposite parties to refund the amount of Rs.48,002/- deposited against policy No.TDE2873006 and Rs.60,018/- against policy No.TDW3023244 alongiwth return/interest as assured by them at the time of effecting the insurance in the year 2010. The opposite parties expressed their inability and intimated the complainant that both the policies are term policies and he will have to deposit the premium of Rs.24,001/- per year upto 2014 and he will get only a sum of Rs.1 lac and that too in the year 2020 against policy No.TDE2873006 and similarly he will have to deposit Rs.30,009/- per year upto 2015 and he will get only a sum of Rs.1,50,000/- and that too in the year 2021. The opposite parties did not supply the policy or terms and conditions or any free look letter at that time. The opposite parties have prepared term policies instead of unit linked policies as assured at the time of insurance. Further no policy document has been sent to the complainant in the absence of which he could not get the policies cancelled and could not get the refund within 15 days of the receipt of the policy document. Had the complainant received the said policy document in both the cases he would have opted for cancellation of the policy within free look period of 15 days. The policy bearing No.TDW3023244 has been prepared by the opposite parties without taking signatures of the complainant on any document/form etc. Hence the complainant has filed the present complaint for seeking the directions of this Forum to the opposite parties to refund the premium amount of Rs.48,002/- and Rs.60,018/- alongwith cost and compensation.

2. Notice was issued to the opposite parties. The opposite party No.1 after appearing before this Forum has filed its separate written statement and taken the legal objection that this complaint is time barred as the cause of action arose in 16.2.2010 when the said policy was issued to the complainant whereas he has filed the present complaint in April, 2012 i.e. after the expiry of two years as such this complaint is barred by limitation under section 24A of the 'Act'. The opposite party No.1 further pleaded that as required under the IRDA Regulations 2002, the policy terms and conditions specifically provides for a free look period of 15 days; during which the period the policy owner is entitled to review the policy terms and conditions and request for a cancellation if dissatisfied with the terms and conditions of the same. The complainant did not raise any complaints/objections regarding the said policy either within the free look period of 15 days or within any reasonable time thereafter. The contract of the insurance attained finality and the opposite parties have been continuing to provide the coverage of the complainant. After the expiry of the free look period, the policy terms and conditions permits the surrender of the said policy only after completion of 3 years; where surrender value is payable in accordance with the policy terms and conditions, on the surrender of the policy. The complainant after duly deliberating with the terms and conditions of the 'Aviva Dhan Vridhi' plan vide the Key Feature Document filled and signed the proposal form bearing No.NNU15727821 dated 28.1.2010 for a proposed premium amount of Rs.24,001/- and also signed another proposal form No.NUP13652541 dated 13.8.2010 for a proposed premium of Rs.30,009/- which has to be paid annually and for which the sum assured was given of Rs.1 lac and Rs.1,44,000/- respectfully. The premium received in the proposal form bearing No.NNU15727821 was bounced due to stop payment by the drawer. The complainant submitted the said premium of Rs.24,001/- again on 8.2.2010 which was credited in the said proposal form. In the proposal form bearing No.NUP13652541, the initial premium was bounced due to insufficient fund. As such again the proposer had paid the premium of Rs.30,000/- on 10.8.2010 and Rs.9/- was paid through cash on 4.8.2010. The key features document of 'Aviva Dhan Vridhi' policy makes it clear that 'Policy Term' will continue till 2020 and accordingly, the term of the said policy will be determined. Based on the declaration made and information provided in the proposal from, the policies bearing Nos.TDE2873006 and TDW3023244 were issued to the complainant having date of commencement as 11.2.2010. and 18.8.2010 respectively. The documents of both the policies were dispatched to the mailing address of the complainant through Bluedart Courier vide number-43622668935 on 16.2.2010 and same was received by him on 19.2.2010 and second policy was dispatched to him through speed post No.EH155280798IN on 20.8.2010. It has been clearly mentioned in the said policy schedule that the same is a Aviva Dhan Vridhi Policy and the date of the last premium payment is also mentioned on the same. The said policy contained the notice on free look whereby the policyholder has a right to reconsider his decision to purchase the policy within 15 days of the receipt of the policy document in case he does not agree to the terms and conditions of the same. The complainant failed to pay the renewal premium in policy bearing No.TDE2873006 on 11.2.2011 hence the said policy lapsed. However, the complainant deposited the said renewal premium on 1.7.2011. As per the terms and conditions of the said policy an interest on reinstatement process fee was required and the complainant had deposited Rs.25,165/- i.e Rs.24,001/- of the premium amount of Rs.1164/- as interest for processing fees for reinstatement in the second year premium. The complainant had full knowledge of the terms and conditions of the said policy and accordingly he paid the processing fee too, hence he at this belated stage cannot claim for refund of the premium and dispute the terms of the policy period.

The complainant has paid in total Rs.48,002/- in policy bearing No.TDE2873006 and Rs.60,018/- in policy No.TDW3023244 but thereafter the premium was not paid by him in time. The said policy was due for premium as the complainant has failed to deposit the same in time therefore as per the terms and conditions of the said policy, the same lapsed due to non payment. As per article 4 ( c ) (i) of the terms and conditions of the said policy:-

“If the non payment of Premium has occurred in the first three (3) policy years, then:-

(1)This policy will be deemed to have automatically lapsed without any value and no benefits will be payable.

(2) You may apply to us in writing to receive the said policy within two years of the due date of the first unpaid premium. We may seek information or documentation concerning the Insured's medical condition to decide if we wish to revive the policy and you will cooperate with Us for this purpose. If we wish to revive the Policy, we will send you a revival notice specifying the amount of premium, interest and the prevailing revival fee you must pay to us before the policy is revived.”

As such the complainant is not entitled to the refund of the amount of Rs.1 lac under the said policy only be made if the issued policy is cancelled. However, the complainant has already paid the premiums of one terms and the said policy cannot be cancelled at this late stage as he has already availed the benefit for two years. No prudent man would invest such a huge sum without knowing the terms and conditions of the said policy.

3. The opposite party No.2 despite service of summons has failed to appear before this Forum. Hence ex-parte proceedings are taken against the opposite party No.2

4. The parties have led their evidence in support of their respective pleadings.

5. Arguments heard. The record alongwith written submissions submitted by the parties perused.

6. In the present complaint the dispute is regarding the two policies. The complainant submitted that opposite parties allured that he could get the refund of the said policy anytime with interest as such he purchased two policies. In policy bearing No.2873006 he deposited two premiums of Rs.24,001/- each i.e. Rs.48,002/- in total and in policy bearing No.302344, he deposited two premiums of Rs.30,009/- each i.e Rs.60,018/- in total and as such he has paid Rs.1,08,020/- in both the policies, the same has been admitted by the opposite party No.1 in its reply. The opposite party No.1 has submitted that they have sent the policies through Bluedart courier number-43622668935 on dated 16.2.2010 and speed post No.EH155280798IN on dated 20.8.2010 respectively but neither any receipt nor any acknowledgment has been produced by the opposite parties to prove their version. The terms and conditions were never supplied to the complainant. Thus these are not binding on the complainant as per 2000 AIR 1014 (SC) and OIC Vs. M/s Puneet Pasricha decided on 5.3.2010 in FA No.1579 of 2004 by Hon'ble State Commission Punjab. As per IRDA rules every policyholder has right of an option to reconsider the purchase of the policy and seek its cancellation and refund within 15 days of the receipt of the policy. But the complainant has been deprived of its right and the opposite parties are bound to refund the amount of Rs.1,08,020/-. The complainant further submitted that the opposite parties have not produced the policies even before this Forum. Hence the adverse inference should be taken as per 2003 (3) CLT 402 (NC). Moreover as per 2010 (1) PLR 220 (SC) in case of any ambiguity in a contract of insurance provisions should be construed in favour of the consumer and as per 1994 AIR 787 (SC) provisions of CP Act should be construed in favour of the same.

7. The complainant was allured that the policies will be 'Unit Linked Policies' whereas the opposite parties have issued the 'Terms Oriented Policies'.

8. On the legal side the opposite parties submitted that this complaint is time barred as the cause of action of action arose in 16.2.2010 when the said policy was issued to the complainant. On merits the opposite parties submitted that after duly understanding the terms and conditions of the 'Aviva Dhan Vridhi' plan vide the Key Feature Document, the complainant filled and signed the proposal form bearing No.NNU15727821 dated 28.1.2010 for the proposed premium amounting to Rs.24,001/- and signed another proposal form No.NUP13652541 dated 13.8.2010 for a proposed premium of Rs.30,009/- which has to be paid annually and for which the sum assured was given of Rs.1 lac and Rs.1,44,000/- respectively. The premium received in the proposal form bearing No.NNU15727821 was bounced due to stop payment by the drawer. The complainant paid the premium of Rs.24,001/- again on 8.2.2010 which was credited in the said proposal form. In the proposal form bearing No.NUP13652541, the initial premium was bounced due to insufficient fund. As such again the proposer had paid the premium i.e. Rs.30,000/- on 10.8.2010 and Rs.9/- was paid through cash on 4.8.2010. The complainant has failed to pay the renewal premium in policy bearing No.TDE2873006 on 11.2.2011 hence the said policy lapsed. However, the complainant deposited the said renewal premium on 1.7.2011. As per the terms and conditions of the said policy an interest on reinstatement process fee was required and the complainant had deposited Rs.25,165/- i.e Rs.24,001/- of the premium amount of Rs.1164/- as interest for processing fees for reinstatement in the second year premium.

The complainant has paid in total Rs.48,002/- in policy bearing No.TDE2873006 and Rs.60,018/- in policy No.TDW3023244 but thereafter the premium was not paid by him in time. The said policy was due for premium as the complainant has failed to deposit the same in time therefore as per the terms and conditions of the said policy, the same lapsed due to non payment of the premium.

9. The said policies issued to the complainant are 'Term Oriented Policies' not the 'Unit Linked Policies'. The opposite parties have specifically argued that in 'Term Oriented Policies' the refund of the amount of the premium cannot be given.

10. The opposite parties have further specifically argued and mentioned in their reply that one policy was duly sent to the complainant through Bluedart Courier number-43622668935 on dated 16.2.2010 and the same was received by him on 19.2.2010 and second policy was dispatched to him through speed post No.EH155280798IN on dated 20.8.2010. The said policies also contained the notice of free look option whereby the policyholder has a right to reconsider his decision to purchase the policy within 15 days of the receipt of the policy document in case he does not agree to the terms and conditions of the same. In these policy documents the date of the last premium payment has also been mentioned.

11. The complainant has specifically mentioned in his affidavit Ex.C4 in para No.5:-

“That the deponent has not received any policy vide Bluedart Courier No.43622668935 dated 16.2.2010 or by speed post No. EH155280798IN dated 20.8.2010 as alleged by the opposite parties.”

At the same time the opposite parties have not placed any evidence on the file regarding the dispatch of these policies to the complainant or receipt of the speed post. The opposite parties have also failed to mentioned that who have received the said policies on behalf of the complainant. No doubt the complainant cannot apply for the surrender value as he had not paid the premium of 3 years as required under the policies. The policies purchased by him are the 'Terms Oriented Policies'. But in all the policies a free look option is given to all the insured persons but in the case in hand no free look option has been given to the complainant, if it would have been given to him, he should have applied for the cancellation of the said policies within the stipulated period of 15 days but despite paying two premiums in both the abovementioned policies he has not received any free look option letter or terms & conditions or policy documents.

Moreover the opposite parties have failed to place on file any receipt of Bluedart Courier or forwarding letters through which the abovesaid policies have been sent to the complainant, there is no receipt of the speed post or acknowledgment thereof and the said policies are also not placed on file by the opposite parties.

12. Therefore in view of what has been discussed above there is deficiency on the part of the opposite parties as the opposite parties have deprived the insured from his valuable right 'to reconsider his policies' under the free look option period. Hence this complaint is accepted with Rs.5000/- as cost and compensation and the opposite parties are directed to refund the amount of Rs.48,002/- + Rs.60,018/- =Rs.1,08,020/- after deducting the processing charges; stamp duly and and the medical expenses if any. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

In case of non-compliance the interest @ 9% per annum will yield on the refunded amount till realization.

13. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

30-11-2012

Vikramjit Kaur Soni

President

Amarjeet Paul

Member

Sukhwinder Kaur

Member