BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.357 of 2014

Date of Instt. 16.10.2014

Date of Decision :23.04.2015

Rajinder Kaur aged about 54 years wife of Pritam Singh R/o VPO Padhiana, Tehsil & District Jalandhar.

..........Complainant

Versus

1. Aviva Life Insurance Company India Ltd, Aviva Tower, Sector Road, Opposite Golf Course, DLF Phase-5, Sector 43, Gurgaon, Haryana through its authorized Head.

2. Aviva Life Insurance Company India Ltd, SCO-18, PUDA Complex, Ladowali Road, Jalandhar through its Branch Manager.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.SK Verma Adv., counsel for complainant.

Sh.YV Rishi Adv., counsel for opposite parties.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant is old aged and illiterate lady and is resident of above said address. The complainant insured herself with opposite parties vide policy No.AFP2875189 and paid the opposite party No.2 total premium of Rs.75,000/- and she was regularly paying the premium. The copy of the policy is attached. On 25.10.2013 the opposite party No.2 terminated the policy of the complainant and refunded the amount of Rs.25,000/- through cheque No.376655 dated 22.10.2013. The opposite parties with held Rs.50,000/- alongwith interest of the complainant, thereby the opposite parties committed the offence under 406/420 of IPC. At the time of issuing the insurance policy to the complainant, the agent of opposite parties told the complainant that whenever she want the money back she can take and only one minimum installment is to be paid by the complainant and thereafter she can take the installment at her Will but when the complainant demanded her money back, her policy was terminated and out of Rs.75000/- which she paid in three installments each of Rs.25000/- to the opposite parties, only Rs.25000/- was returned and Rs.50,000/- was withheld and misappropriated by cheating and fraud by leveling invalid terms and conditions. She has also served legal notice but opposite parties gave false and fake reply. On such like averments, the complainant has prayed for directing the opposite parties to give her the balance amount of Rs.50,000/- alongwith interest. She has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply pleading that the policy opted by the complainant is investment oriented and unit linked plan as such is not covered under the Consumer Protection Act and as such the complaint deserve to be dismissed. The facts of the present case are that complainant purchased the Aviva New Freedom Life Plan Policy No.AFP2875189 in January, 2010 from the opposite parties which was enforced from 31.1.2010. The policy is unit linked plan in which the investment risk in investment portfolio is borne by the policy holder i.e complainant. The complainant submitted proposal No.NUP 13453954 for the issuance of the Aviva New Freedom Life Plan with an annual premium of Rs.25,000/- for premium paying term of 10 years which was dispatched on 6.2.2010 vide speed post with AWB No.EH126528588IN and it has been duly delivered to the complainant. The policy features like policy tenure, premium payment amount etc have been extracted from the proposal form and the policy was effected from 31.1.2010. The complainant was furnished with the policy schedule, first premium receipt, standard terms and conditions, copy of proposal form and right to reconsider notice with an option to opt out of policy if not agreeable to the terms of the said policy for which fifteen days free look period was given to the complainant. Complainant did not opt out of the policy within the said 15 days free look period being agreed with the terms and conditions of the policy kept on making annual premiums as initial and renewal premium of the policy from the year 2010 to 2012. It is relevant to said that as per the terms and conditions of the subject policy, the subject policy had auto foreclosed due to non payment of premium amount after third policy year, accordingly a termination notice dated 25.10.2013 had been sent to the complainant thereby intimating him about the termination of the subject policy and the surrender value had been paid by way of cheque for an amount of Rs.25000/- which had been duly encashed by the complainant. They denied other material averments of the complainant.

3. In support of her complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C8 and closed evidence

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. According to the own version of the complainant, she has obtained policy in question from opposite party No.2. She has herself produced policy document Ex.C1. Important terms are attached with it i.e Ex.C1 produced by the complainant herself. In the terms of the policy, it is specifically mentioned that the policy is a unit linked life insurance product and not fixed deposit or mutual fund. Further there is no assured return under the policy and benefits payable to her will depend on the market performance and be subject to market risk which is borne by her. It is further mentioned that past performance of an investment fund is not indicator of future performance. So from the terms and conditions of the policy, it is evident that it was unit linked policy and the benefit payable under the policy depended on market performance and market risk and there was no assured return under the policy. In Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co.Ltd & Ors, Revision Petition No.658 of 2012 decided on 23.4.2013 by Hon'ble National Commission it has been held as under:-

The District Forum observed that admittedly the complainant is an advocate having vast experience and is also a Notary. His wife Tarini Agrawal was the recognized agent of the insurance company. In such circumstances, the allegation of fraud being practiced on him in the matter of issuance of policy is totally unacceptable. The Forum also observed that the policy having been taken for investment of the premium amount in the share market, which is for speculative gain, the complaint did not come within the purview of the Consumer Protection Act, 1986. In this connection, the Forum placed reliance on the decision of this commission in the case of Smt.Abanti Kumar Sahoo Vs. Bajaj Allianz Life Insurance Company Ltd, (FA No.162 of 2010).

After hearing the complainant, who argued the matter on admission personally, and going through the relevant documents available in the LCR, we see no reason to differ from the finding recorded by the learned District Forum. Accordingly, we reject the appeal memo at the admission stage".

7. So in this case, complainant can not be termed as consumer. The ratio of above cited authority is fully applicable on the facts of the present case. Since complainant can not termed as consumer, as such complaint is not maintainable under the Consumer Protect Act. Her remedy is to approach Civil Court or any other appropriate forum.

8. In view of above discussion, the present complaint is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

23.04.2015 Member Member President