IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 25^th  day of May, 2012.

Present : Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

Smt. K.P. Padmasree (Member)

C.C.No.19/2011 (Filed on 13.01.2011)

Between:

Indirabai. C.J.,

Madathumparambil House,

Chumathra P.O., Thiruvalla,

Pin – 689 103.                                                 …  Complainant.

(By Adv. C.M. Binoy)

And:

1.  Aviva Life Insurance India Ltd.,

     Aviva Tower, Sector Road,

     Opposite Gold Course, DLF Phase V,

     Sector 43, Gurgaon,

     Haryana – 122 003, represented by its

     CEO & MD.

2.  Director, Director Sales force,

     of –do--  --do—

(By Adv. P.P. Mohammed Mustaffa)

3.  Giji Joy, Associate Vice President,

     Aviva Life Insurance Company India-

     Limited, 2^nd Floor, Kizhakkethil-

     Arcade, Nagampadom Post,

     Kottayam – 686 001.

(By Adv. Anish Ramakrishnan)

4.  Aviva Life Insurance Company India-

     Limited, Lord’s Arcade, Near Head-

     Post Office, M.C. Road, Thiruvalla,

     Pin – 689 101, represented by its

     Branch Manager.                                                …  Opposite parties.

O R D E R

Sri. N. Premkumar (Member):

                Complainant filed this complaint against the opposite parties for getting a relief from the Forum.

                2. The facts of the case in brief is as follows:  Complainant is a permanent resident of Thiruvalla.  1^st opposite party is doing life insurance business in India since 2002.  The company is having branches all over India.  Opposite parties 2, 3 and 4 are officials of the 1^st opposite party working under different categories. 

                3. Complainant took an insurance policy from 1^st opposite party with an annual premium of `10,000.  It is a Unit Linked Insurance Plan (ULIP).  The policy term is 10 years and complainant has remitted only 2 years premium.  Complainant came to know that some policy holders are in receipt of notice intimating closure of Thiruvalla Branch.  Hearing such news, complainant and her husband visited the branch office to know fund value and the present Net Asset Value (NAV).  Officials in the branch told that there is some problem with intranet and the details could not be obtained and requested to come an another day.  The complainant has gone to the office on the very next day.  That day also intranet was not available.  From there complainant understand that the intranet was purposefully disconnected under the instruction of the 3^rd opposite party.  While the complainant was sitting there, three persons came there to know the details of their policies.  The 4^th opposite party sent them back stating that the intranet is not available. 

                4. The ULIP policies are share market related.  The daily ups and down in the share market will affect the total fund and NAV.  To prevent the fund loss, switching facility is available ULIP policies.  One can prevent fund loss or he can make more profit through repeated process of switching.  Switching has to be done very diligently.  For that the daily NAV & fund value etc., has to be watched very carefully.  If a policy holder is denied his right to know the fund value and NAV as when required, it is a deficiency in service.  For the last one week the complainant has denied the details mentioned above.  In the last week the share market (sen sex) has fallen down by 869 points.  There will be loss in the fund value since the NAV has come down.  If the complainant was given necessary information and she opted the switching facility, she could have avoided the loss.  Complainant has suffered monetary loss due to the non-availability of necessary data from 4^th opposite party branch.  It is a clear deficiency on their part.

                5. According to complainant, 1^st opposite party has the right to close down or relocate the existing branch.  But it should be done strictly in adherence the guidelines issued by the Insurance Regulatory and Development Authority (IRDA) vide Circular No.041/IRDA/BOO/Dec.06.  Hence this complaint for directing the opposite parties to comply the said IRDA guidelines with ` 10,000 as damage for the deficiency of service with cost. 

                6. Opposite parties 1 to 4 entered appearance and filed their version.

                7. Opposite parties 1 and 2 filed separate version stating that they are functioning as a public limited company registered under the Companies Act 1956 having branch office at Thiruvalla.  Their company is a life insurance company registered with the Insurance Regulatory & Development Authority Act 1999.  This Forum does not hold any jurisdiction to try matters pertaining to the closure of the branch office by them which are controlled and regulated by the Insurance Regulatory & Development Authority of India.

                8. According to them, the company is regulated by the Insurance Regulatory & Development Authority of India by Circular No.041/IRDA/BOO/Dec-06 whereby adequate notice of a minimum of two months on the proposed relocation/closure should be given to policy holders serviced by that branch along with the alternate arrangements.  They already noticed their closure of the branch at Pathanamthitta and relocation of the branch to Kottayam.  The closure of the Pathanamthitta branch office should cause no inconvenience to the policy holders at Pathanamthitta.  They still know the current NAV or the fund value associated with their ULIP by calling customer care helpline number given with the policy document.  The current NAV or the fund value can also be seen on opposite parties’ official website.  The branch at Thiruvalla provided all the policy related services to policy holders. 

                9. According to them, Mr. Jacob Joji, the 4^th opposite party whose services were terminated by the opposite party on April 28, 2011.  The 4^th opposite party tried to close down the branch office at Thiruvalla with the help of union members of IFSAAC (Indian Financial Staff and Agents Congress).  The employees of the opposite parties were also receiving threats from him and these opposite parties apprehends that in case the branch office at Thiruvalla is kept open, the union may cause physical threat to the employees working at the branch office.  They may also cause damage to the assets of opposite parties lying in the branch office in order to cause obstruction in the operation of the functioning of the branch office.  Mr. Jacob Joji has also forcefully taken the duplicate keys of the branch office from the employees of the company.  That apprehending damage and destruction to the property at the branch office and in order to avoid closure of the branch office by the activities of the Jacob Joji, opposite parties had filed an FIR against him before the Thiruvalla Police Station on May 06, 2011, seeking adequate protection in order to ensure safety of the employees and customers visiting the branch office.  The above said circumstances, this opposite parties canvassed for the dismissal of the complaint. 

                10. 3^rd opposite party filed separate version stating that complaint is not maintainable either in law or on facts.  This 3^rd opposite party handed only sales and marketing relative responsibility.  The matter related to intranet connection handled by IT department of the company, which is not under the control of this opposite party.  This opposite party never instructed to disconnect the intranet connection of the office of the 4^th opposite party.  This opposite party is an unnecessary party in this case and not a defaulting officer of the 1^st opposite party.  This case is filed against this 3^rd opposite party under the instruction of the 4^th opposite party.

                11. The 4^th opposite party is the custodian of the properties including systems of the branch office Thiruvalla.  The 4^th opposite party is well aware of the organizational structure of the company.  The 4^th opposite party was terminated from the organization last week.  As a union leader, the 4^th opposite party is disturbing the daily function of the branch office at Thiruvalla for the last four days.  The husband of the complainant is a Financial Planning Advisor of the company working under the 4^th opposite party.  He is also colluded with the 4^th opposite party to harass this opposite party. 

                12. The 4^th opposite party filed separate version admitting that the 1^st opposite party has given notice to the landlord, terminating the lease agreement with effect from 24.02.2011.  He also admits that on 05.01.2011 and 06.01.2011 the intranet was not available.  For that, 4^th opposite party contacted Mr. Dharmaraj, the supervisor of IT department over phone.  He informed that the intranet was disconnected as directed by the 3^rd opposite party.  Intranet and allied services are not under the 4^th opposite party’s control.  This opposite party has no power to instruct the IT department, since he has only in charge of sales branch.  He was the last person in the hierarchy of sales and administration. 

                13. On 22.01.2011 the employee of the service provider of intranet came to the branch to remove equipment of connection when the 4^th opposite party was attending this Forum.  Since the matter is under consideration of this Forum, this opposite party did not allow the removing the equipment.  This opposite party contacted the IT supervisor Mr. Dharmaraj over phone.  He told that Mr. Gijy Joy, the 3^rd opposite party has given him the instruction to remove the above said instruments.  There is no deficiency in service on 4^th opposite party’s part.  Therefore, 4^th opposite party canvassed for the dismissal of the complaint with cost. 

                14. From the above pleadings, following points are raised for consideration:

(1)      Whether the complaint is maintainable before this Forum?

(2)      Whether the reliefs sought for in the complaint are allowable?

(3)      Reliefs & Costs?

       15. The evidence of the complaint consists of the oral deposition of PW1 and marked Ext.A1 and Exts. B1 to B3.  After closure of evidence, both parties were heard.

        16. Point Nos.1 to 3:  In order to prove the complainant’s case, complainant filed proof affidavit along with one document.  She was examined as PW1 and the document produced was marked as Ext. A1.  Ext. A1 is the copy of relevant page of the Aviva Life Insurance policy. 

        17. In order to prove the opposite parties’ contention, third opposite party filed proof affidavit along with certain documents.  The documents produced were marked as Exts. B1 to B3.  Ext. B1 is the copy of Circular No. 041/IRDA/BOO/Dec-06 dated 28.12.2006 issued by the Insurance Regulatory and Development Authority of India.  Ext. B2 is the copy of letter intimating the closure of the branch at Pathanamthitta and relocation of the branch to Kottayam.  Ext. B3 is the copy of the terms and conditions for appointing Giji Joy issued by the first opposite party.

        18. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record.  The complainant’s case is that she had taken policy from the 4^th opposite party, the branch office of the first opposite party.  Initially, intranet facility provided, complainant and other policy holders were using the said facility.  Without giving any intimation, opposite parties making effort to disconnect the intranet facility.  Since complainant has taken the ULIP, she has to know the day to day Net Asset Value otherwise she cannot prevent the fund loss or to attain gain by using switching facility etc.  Complainant has been denied the said intranet facility for a period of one week.  Hence this complaint.

        19. According to opposite parties 1 and 2, this Forum has no jurisdiction to try matters pertaining to the closure of the branch office which are controlled by IRDA.  The closure of Pathanamthitta Branch Office would not cause any inconvenience to the policy holders at Pathanamthitta.  According to them, 4^th opposite party tried to close down the branch office at Thiruvalla with the help of union members of IFSAAC.  According to third opposite party, he handled only sales and marketing.  The 4^th opposite party is the custodian of properties including system and he disturbing the daily function of the branch office, Thiruvalla.  4^th opposite party states that the intranet and allied services are not under his control.  He has no power to instruct the IT department, since he has only incharge of sales branch.  According to him, intranet was not available on 05.01.2011 and 06.01.2011.  He got information from Mr. Dharmaraj, Supervisor of IT department that the intranet was disconnected as directed by the third opposite party.  According to him, on 22.01.2011 as per the direction of third opposite party, the employees of the service provider of intranet try to remove the equipment of connection.  Since the matter is under the consideration of this Forum, the 4^th opposite party timely interference thwarted from their act.

        20. On a perusal of Ext.A1, it is revealed that complainant is the policy holder of opposite parties.  Ext. B1 shows that opposite parties are duty bound to obey the rules and regulations of the IRDA.  Ext. B1 stipulates that adequate notice of a minimum of 2 months on proposed relocation of closure would be given to the policy holders.  Ext. B2 shows that notice has given to complainant.  Apart from Ext. B2, opposite parties failed to produce any postal receipt or acknowledgment card to corroborate the said contention.  But complainant flatly denied the acceptance story in her deposition as PW1 which is as follows: “I¼-\n-bpsS Xncp-hÃm {_m©v tIm«-b-t¯¡v amäp-I-bm-sW¶v ImWn¨v 16-þ2-þ2011-þ \n§-fpsS t]À¡v I¼-\n- Hcp I¯v Ab-¨n-cp¶p F¶v ]d-bp-¶p.  icn-bÔ.

        21. We do admit that Consumer Protection Act does not have the jurisdiction to interfere with the closure of the branch office which are controlled and regulated by the IRDA.  Since Ext. B1 regulation has not been complied, IRDA has not taken any steps to rectify the said formality.  When a complaint has been filed to that effect, this Forum has ample power to entertain a case relating to the non-compliance of IRDA regulation and the allied deficiency, if any.  In this case, evidence on record does not reveal that opposite parties have not closed the branch office of Thiruvalla.  Moreover, complainant has not a relief seeking to restrain the opposite parties from closing the branch office.  Therefore, we are not inclined to interfere the aspect of closure of opposite parties’ branch office.

        22. It is seen that, complainant and other policy holders had been using the intranet facility relating to find the Net Asset Value and switching facility etc. from Thiruvalla branch office.  Since complainant’s policy is ULIP, it is highly necessary to use the intranet facility; otherwise market fluctuation may definitely cause loss.  Opposite parties are well aware of this fact and therefore they provided the intranet facility to their policy holders without any hindrance.  They also realized switching charges and other charges from policy holders.  Complainant has every right to use this facility.  It is the boundan duty of opposite parties to provide the intranet facility uninterruptedly to the policy holders.  

        23. On going through the facts and circumstances, it is learnt that there occurred denial of intranet facility and the apprehension of removal of equipments which may cause total denial of the said facility.  4^th opposite party admitted that on 05.01.2011 and 06.01.2011 intranet was not available.  Moreover, on 22.01.2011 when this case is pending before this Forum, 3^rd opposite party has made an attempt to removing the equipment of intranet.  The said contentions of 4^th opposite party had not denied by other opposite parties.  Therefore, there is no reason to disbelieve the 4^th opposite party’s contention.  All this shows that there is willful effort on the part of the third opposite party and other officials of the first opposite party to disconnect the intranet facility.  Moreover, complainant also deposed that at present intranet facility would not provide from the branch at Thiruvalla which is evident in PW1’s deposition which is as follows:  “Intranet facility Ct¸mÄ e`n-¡p-¶nÔ.

        24. From the overall facts and circumstances and the available evidence on record based on the above discussion and findings, we are of the view that opposite parties had denied the intranet facility to the complainant on 05.01.2011 and 06.01.2011.  There is every chance of future denial on the part of opposite parties.  The said act of the opposite parties is unfair, unjust, irrational, unscrupulous and against all the cannons of consumer justice.  It is a clear deficiency of service.  Therefore, this complaint is allowable with compensation and cost.

        25. In the result, this complaint is allowed, thereby the opposite parties are directed to pay ` 3,000 (Rupees Three thousand only) as compensation and a cost of ` 2,000 (Rupees Two thousand only).  The opposite parties are also directed to provide intranet facility to the complainant at Thiruvalla branch uninterruptedly till the date of termination of her policy.  In the event of any denial during the said period, complainant is allowed to realize ` 500 (Rupees Five hundred only) per day from the opposite parties.

        26. The amount so awarded is to be paid within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest from this date till the realization of the whole amount. 

        Declared in the Open Forum on this the 25^th day of May, 2012.

                                                                                (Sd/-)

                                                                        N. Premkumar,

                                                                            (Member)

Sri. Jacob Stephen (President)         :       (Sd/-)

Smt. K.P. Padmasree (Member)                :       (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1 :       Indirabai. C.J.

Exhibits marked on the side of the complainant:

A1    :      Copy of policy schedule of Aviva Life Insurance.  

Witness examined on the side of the opposite parties: Nil.

Exhibits marked on the side of the opposite parties:

B1    :       Copy of Circular No. 041/IRDA/BOO/Dec-06 dated

                 28.12.2006 issued by the Insurance Regulatory and

                 Development Authority of India.

B2    :       Copy of letter sent by the first opposite party to the

                 complainant

B3    :       Copy of the terms and conditions for appointing Gijy Joy  

                 issued by the first opposite party.

                                                                                (By Order)

                                                                                    (Sd/-)

                                                                    Senior Superintendent

Copy to:- (1) Indirabai. C.J., Madathumparambil House,

                    Chumathra P.O., Thiruvalla, Pin – 689 103.                                       (2) CEO & MD, Aviva Life Insurance India Ltd., Aviva 

                    Tower, Sector Road, Opposite Gold Course,

                    DLF Phase V, Sector 43, Gurgaon, Haryana –122 003.                  

               (3)Director, Director Sales force,  –do--  --do—

               (4) Giji Joy, Associate Vice President,

                    Aviva Life Insurance Company India Limited, 2^nd Floor, 

                    Kizhakkethil Arcade, Nagampadom Post,

                    Kottayam – 686 001.

               (5)Branch Manager, Aviva Life Insurance Company India 

                    Limited, Lord’s Arcade, Near Head Post Office, M.C. 

                    Road, Thiruvalla, Pin – 689 101.

                (6)The Stock File.