BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012
Filed on : 20-12-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.668/2010
Between
Rajesh Vijayendran, : Complainant
Advocate,35/191, (party-in-person)
Automobile road,
Palarivattom, Cochin-682 025.
And
1. Aviva Life Insurance : Opposite parties
Company India Ltd., (By Adv. Nelson J, Manayil,
Rep. by its Manager, Edathil Building, Market road
Head Office, Aviva Tower, Cochin-682 035)
Sector Road,
Opp. Golf Course,
DLF-phase-V, Sector-43,
Gurgaon-122 003.
2. The Branch Manager,
Aviva Life Insurance
Company India Ltd.,
2nd Floor, Swapnil Enclave,
Opp. Joy Alukkas, Marine Drive,
Ernakulam, Kochi.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Lured by the tall claims and assurances of the 2nd opposite party on 25-04-2006 the complainant availed himself a policy from the opposite party on good faith. It was assured that on remitting the amounts for the first 3 consecutive years, the complainant had the option to surrender his policy by which time he would get back at least twice the deposited amount and also would have the benefit of life insurance coverage. The complainant paid the 1st annual premium on 25-09-2006 and thereafter duly paid the 2nd and 3rd consecutive years’ premiums. In the meantime the complainant placed a request for switching over the policy to avoid deterioration of growth fund. In November 2009 after the mandatory lock period of one year the complainant approached the 2nd opposite party to surrender his policy. The complainant was advised to wait till end of the 5th year to avoid loss. The facts while so the 1st opposite party sent a letter dated 11-06-2010 along with a cheque to the tune of Rs. 10,000/- stating that since the surrender value of the policy had became less than the 1st year premium amount and the policy became auto foreclosed. The complainant caused 2 letters to the opposite parties to get his grievances redressed but there was no response. The complainant is entitled to get the premium amounts from the opposite parties with 18% interest. He is also entitled to get interest from the refunded amount from 25-09-2006 to 11-06-2010 together with compensation and costs of the proceedings. This complaint hence.
2. The version of the opposite parties.
The policy was issued in September 2006 where as the complaint is filed after 2 years and the complaint is barred by limitation under Section 24 A of the Consumer Protection Act. If the complainant was dissatisfied with the policy he could have opted to cancel the same during free look period. The complainant was served with a policy schedule and standard terms and conditions of the policy. The 2nd opposite party received a fund switching request from the complainant dated 08-10-2008 and the total fund value as on 09-10-2008 was Rs. 20,742/-. Since the complainant defaulted in depositing the premium for 2010 the policy changed into auto-foreclosure on 25-11-2010. So at that point of time as per the terms and conditions of the policy the complainant was entitled to get Rs. 10,000/- only, which was paid to the complainant. There is no negligence or deficiency in service on the part of the opposite parties.
3. Proof affidavit in lieu of chief examination was filed by the complainant. Exts. A1 to A5 were marked on the side of the complainant. Ext. B1 to B8 were marked on the side of the opposite parties. The complainant filed argument note. Heard the complainant who appeared in person and the learned counsel for the opposite parties.
4. The points that came up for consideration are.
i. Whether the complaint is barred by limitation?
ii. Whether the complainant is entitled to get refund of Rs.
20,000/-with interest from the opposite parties. ?
iii. Whether the complainant is entitled to get interest for Rs.
10,000/- from 25-09-2006 to 11-06-2010?
iv. Whether the opposite parties are entitled to pay
compensation and costs ;of the proceedings to the
complainant. ?
5. Point No. i. Admittedly the policy in question was availed himself of by the complainant on 25-04-2006. Even according to the opposite parties the tenure of the policy is 50 years from the date of joining of the policy. The complainant knocked at the doors of this Forum within the currency of the policy. The strange contention of the opposite parties that the limitation started to run from the date of commencement of the policy is unsustainable in law.
6. Points Nos. ii & iii. Admittedly on 25-09-2006 the complainant availed himself an insurance policy from the opposite parties with sum assured of Rs. 1,75,000/- and premium amount was Rs. 10,000/-. It is not in dispute that the complainant had paid the premium for 3 consecutive years.
7. According to the complainant at the outset the opposite parties assured that he had the option to surrender the policy after one year lock in period subsequent to the 3rd year and by the time he would get back at least double the deposited amount. It is stated that the action of the opposite parties in auto foreclosing the policy with out his request and without issuing notice amounts to deficiency in service.
8. The learned counsel for the opposite parties vehemently contended that the opposite parties have acted only in accordance with the terms and conditions of the policy, if he had any disagreement with the same he could have very well got the policy cancelled during the free look period. It is contended that since the complainant defaulted in depositing the premium for the term 2010 the status of the policy changed into auto-foreclosure on 25-11-2010 and the eligible amount has been disbursed to the complainant.
9. Ext. B1 is the key feature document of the policy purportedly issued by the opposite party to the complainant. It is pertinent to note that the features and details of the policy are stated in too fine prints and nobody can read the same with naked eyes. The Hon’ble Supreme Court has held that if the terms and conditions are not in fine prints those terms and conditions are not binding on the parties (Modern Industries Ltd V. Oriental Insurance Co. Ltd. 2000 CTJ 169 (SC) (CP) ). In the above circumstances it can be seen that the complainant has availed the policy only on the oral assurance given the opposite parties and the printed one being not readable as observed by the Hon’ble Supreme Court as read above.
10. According to the opposite parties under the IRDA (Protection of Policy Holders’ interest) Regulation 2002 the policy terms and conditions provides for a free look period of 15 days during which period the policy holder is entitled to review the policy terms and conditions and request for a cancellation if dissatisfied with the terms and conditions of the policy. Though the opposite parties claim that they have duly forwarded the terms and conditions of the policy to the complainant, nothing is on record to substantiate the same which has not been controverted. Since the complainant has a case that he has not received the same the positive inference is that the opposite parties have not sent the same to the complainant which they have not denied. So the opposite parties denied the opportunity of the complainant to invoke his right during this free look period. The above conduct of the opposite parties itself amounts to deficiency in their service.
11. The Hon’ble Kerala State Consumer Disputes Redressal Commission in Metlife Insurance Company Ltd. V. Yousuf & Another FA No. 304/2010 decided on 31-03-2011 (cited by the complainant) held as follows:
The Forum below on examination of the evidence adduced and the documents produced has observed that the condition to pay premium for 86 years is totally absurd. It was noted relying on the evidence of the complainant that the provision with respect to the free look period was not brought to his notice. The Forum has noted that the complainant was virtually trapped. It was also noted that the opposite parties have not adduce any rebuttal evidence as such.
It was also noted that the agent ought to have explained the conditions of the policy properly to the policy holders and that the conditions are printed in small print.
On perusal of the Ext. A1 which contains the conditions as well as the proposal and policy there is a booklet containing more than 20 pages. The case of the complainant that it was not explained as to the 86 years maturity period appears true. It is the case that he was also not told about the period of request to cancel the policy as 15 days from the date of receipt of policy. The same also appears genuine as nothing has been brought up in the cross examination of PW1 to discredit his evidence. Further the failure on the part of the opposite parties to depose is also relevant. In these circumstances we find that there is no patent illegality in the order of the forum. There is no scope for admitting the appeal.”
The decision of the Hon’ble Commission applies in the instant case squarely. Moreover the opposite parties had not even cared to send a reply to the letters sent by the complainant except half baked one to one. In view of the above we are of the opinion that the opposite parties are legally liable to refund the remaining amount with interest and also liable to pay interest for the disbursed amount.
12. Point No. iv. Since the primary grievance of the complainant having been met squarely and adequately order for compensation and costs of the proceedings are not called for.
13. In the result, we partly allow the complaint and direct as follows:
i. The opposite parties shall jointly and severally refund the premium of the 2nd and 3rd years to the complainant with 12% interest p.a. from the date of each payment till realization.
ii. The opposite parties shall jointly and severally pay to the complainant interest @ 12% p.a. for the refunded amount of Rs. 10,000/- from 24-09-2006 the date of receipt of the amount till 11-06-2010 the date of disbursement.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of January 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : copy of terms and conditions
A1 : Copy of policy schedule
A2 : Copy of proposal form
A3 : Copy of standard terms and conditions
A4 : Copy of Web form message
A5 : Copy of endorsement request form
A6 : Copy of computer generated letter
A7 : Copy of foreclosure letter
A8 : Copy of letter dt. 14-07-2010
Opposite party’s exhibits:
Ext. B1 : Copy of the “life long unit Linked” plan
B2 : Copy of the proposal form dt. 31-08-2006
B3 : Copy of the standard terms and conditions
B4 : Copies of the e-mails exchanged between
the complainant and the opposite party.
B5 : Copy of the “Endorsement Request form”
dt. 08-10-2008
B6 : Copy of letter dt. 10-10-2008
B7 : Copy of lawyer notice dt. 02-07-2010
B8 : Copy of reply dt. 14-07-2010
