DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint No: 497 of 2011] -------------------------------- Date of Institution : 01.11.2011 Date of Decision : 30.07.2012 -------------------------------- Satinder Kaur w/o Sh. Yadvinder Singh, H.No.1509, Phase 5, Mohali. ---Complainant VERSUS [1] Aviva Life Insurance Company India Pvt. Limited, SCO No. 181-182, Madhya Marg, Sector 9, Chandigarh, through its Manager/ Authorized Signatory. [2] Aviva Life Insurance Company India Pvt. Limited, Head Office, Aviva Tower, Sector Road, Opposite Golf Course, DLF, Phase-V, Sector 43, Gurgaon (122003), through its M.D./ Authorized Signatory. ---Opposite PartiesBEFORE: SH. LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. H.S. Parwana, Counsel for Complainant. Sh. Sandeep Suri, Counsel for Opposite Parties. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainant has filed the present complaint, against the Opposite Parties on the grounds that, the Complainant on being approached by the Agent of the Opposite Parties who requested her to purchase life long unit linked fund insurance policy of the Opposite Parties and convinced the Complainant that the policy would be beneficial as after the 3 years lock-in-period, the Complainant would be entitled to surrender the policy, and get back the amount paid, along with share and profit, earned by the company, for the period for which the policy was retained by the company. The Complainant signed the proposal no. 10382099 on 30.6.2006, filled in by the representative of the Opposite Parties and paid a premium amount of Rs.25,000/-, which are acknowledged by the Opposite Parties, vide their premium receipt dated 13.7.2006. The sum assured was Rs.2.5 lac. The proposal form is attached at Annexure C-1 and premium receipt is annexed at Annexure C-2. The Complainant received the policy documents bearing Policy No.WLG1289656 which are annexed as Annexure C-3 and C-3A. The Complainant continuously paid the first three premiums on due dates amounting to Rs.77,500/- vide Annexures C-2, C-4 and C-5. The Complainant approached Opposite Party No.1 after the 3 years lock-in-period and desired the discontinuation of policy and its surrender. The representative of Opposite Party No.1 informed the Complainant that in case the policy is surrender pre-mature, surcharge would be levied to the tune of 1/3rd of the fund value. The Complainant claimed to be shocked on hearing such a fate of her investment, as she had perceived that she would be receiving more than the amount of Rs.77,500/- invested by her, through three regular premiums. Aggrieved of the act of the Opposite Parties, she wrote a letter dated 18.12.2009 to Opposite Party No.1 citing misrepresentation by the representative of the Opposite Party and made a request of refund of the amount invested (Annexure C-6). The Opposite Party replied the Complainant through their communication dated 22.12.2009 (Annexure C-7) claiming that the case of the Complainant is being investigated upon. Thereafter, another letter dated 30.12.2009 under the signatures of Ms. Deepti Kalra was received (Annexure C-8), wherein the dead issue of lock-in-period was raked whereas the surrender of the policy or the refund of the money claimed by the Complainant was totally ignored. The Complainant also claims to have received a letter dated 20.7.2011 through which the Opposite Party informed her that the policy subscribed by her stands auto-foreclosed and on contacting the concerned branch office, Complainant was shocked to receive a Cheque bearing No. 569571 dated 19.7.2011 worth Rs.30,410/-. The Complainant claims to have received the Cheque under protest, and has also stated that the Opposite Party had unnecessarily deducted the commission paid to the Agent, overhead and other misc. expenses. Having failed in eliciting any proper reply from the Opposite Parties, Complainant harassed of the act and conduct of the Opposite Parties has sought the following relief: - [a] To pay balance invested amount (Rs.77,500/- - Rs.30,410/-) say Rs.47,000/- with 12% interest. [b] To pay a sum of Rs.45,000/- on account of mental agony and physical harassment. [c] To pay Rs.7,000/- on account of litigation charges. The complaint of the complainant is duly supported by her detailed affidavit. 2. The Opposite Parties No.1 and 2 have contested the claim of the complainant by filing their joint reply, taking preliminary objections to the effect that the Complainant was made fully conversant with the terms & conditions of the Policy as per the I.R.D.A. Guidelines and that the terms & conditions of the Policy were duly supplied to the Complainant, at the time of raising the Policy in her name. The Complainant had failed to exercise her right to re-consider, and as such, has no locus-standi to challenge the same after a passage of 03 years. The Opposite Parties have also raised a specific objection with regard to the limitation of the present Complaint, as the 1st premium was paid in the year 2006, and even if the 03 years lock-in- period be considered till 2009, even then, the present Complaint is time barred. The Opposite Parties have mentioned a judgment titled as Ram Ratan M.Shriwas Vs. Jayant H.Thakkar, N.C (Delhi). On merits, the Opposite Parties No.1 and 2 have repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. The Opposite Parties have also mentioned a chorological order of different events with regard to the inquiries, letters and their replies. The Opposite Parties have also claimed that as the Complainant has alleged fraud, misrepresentation, in her complaint, the same cannot be adjudicated upon by this Forum. The Opposite Parties have annexed the standard terms and conditions from Annexure R/1 and R/2 (Pg. 10 to 29). Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Parties No.1 and 2 have prayed for the dismissal of the complaint. The reply of the Opposite Parties No.1 and 2 is supported by a detailed affidavit of Sh. Gaurav Malhotra. 5. Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions. 6. As the fact with regard to the subscription of life long unit linked fund policy by the Complainant in the year 2006 is not in dispute. The subscription of the said policy started from the date 13.7.2006 and the Complainant paid a total of three premiums till the year 2009 as is clear from Annexures C-2, C-3A and C-4. However, the main grouse of the Complainant emanated when he enquired about the status of her investments in the year 2009 and this aspect is clearly reflected from the detail of customer’s interaction with call center as mentioned at page 7 of the reply of the Opposite Parties, wherein on 13.8.2009, the Complainant enquired about the surrender value. The Complainant claims to have repeatedly visited the office of the Opposite Parties as the value of the policy was much less than her expectations as well as the projections which were explained by the Agent of the Opposite Parties before she filled up the proposal form. 7. On not having elicited any response from the Opposite Parties, the Complainant wrote a letter dated 18.12.2009 (Annexure C-6), wherein all her grouses were clearly mentioned and had also urged the Opposite Parties to refund the money paid by her. This communication of the Complainant was replied back by a letter dated 30th Dec.,2009 (Annexure C-8), wherein the Opposite Parties had neither answered the objections of the Complainant with regard to the schedule of charges, the rate of surrender charges as well as the allegations of having been mislead by the Agent of the Opposite Parties. The reply of Opposite Parties dated 30.12.2009 (in para 7) mentions about the free look period which had actually lapsed three years before this communication was sent to them. There is also no mention about the act and conduct of the Agent who had actually explained the policy features to the Complainant, before she had submitted her proposal form, though one more letter which was letter preceding the one dated 30.12.2009, and is annexed as Annexure C-7 and is dated 22.12.2009, claims that the case of the Complainant is being investigated and sincere apologies towards inconveniences caused to the Complainant, are mentioned. 8. We feel that the letter of the Complainant dated 18.12.2009 (Annexure C-6) was not replied back in a clear cut and uncertain terms and the Complainant was also not informed about the manner in which she could get the refund on her investments at that particular point of time. The Complainant was made to go in circles for full two years and finally, refunded an amount of Rs.30,410/- through a Cheque dated 19.07.2011 claiming that the Policy had lapsed through their communication dated 20.07.2011. It is after this happening that the Complainant had filed the present complaint. 9. From the above sequence of events, only one aspect flows that the Opposite Parties being in the full knowledge that the Complainant had no intentions of paying any further premiums, wanted to withdraw the money due towards her, was made to wait for more than two years after which the Policy having automatically lapsed, a payment of Rs.30,140/- was made to her. We feel that the Opposite Parties deliberately delayed the honouring of the request of the Complainant, about her refund, after the three consecutive years of lock-in-period, as it was only the Opposite Parties which was benefited due to the deductions being made every month, and it was of no use to the Complainant who was losing money on each such deductions every month, for the entire period of two years. 10. An interesting aspect that has come to light is the fact that during the pendency of the present complaint, Complainant had moved an application dated 10.5.2012 (Annexure C-11) demanding the net asset value as on 13.7.2006, unit sale price of fund as on 19.7.2011 and the details of charges recovered on full settlement as on 19.7.2011 were enquired upon. This letter was replied by the Opposite Parties through their letter dated 17.5.2012 and this detail is annexed at Annexure RW-2/1 and RW-2/2. The Opposite Parties in this communication has once again mentioned that after the lapse of revival period, the surrender value as was applicable has been refunded to her through a Cheque of Rs.30,140/-. The Complainant after having received this detail, has failed to rebut the details of the Opposite Parties, hence the Complainant has failed to convince us that the refund of Rs.30,140/- as on 19.7.2011 is in any way wrong. We feel that the Opposite Parties though was very prompt in replying to the letter of the complaint, during the pendency of the present complaint, but it is very much clear from the pleadings of the present complaint, that she was made to make repeated inquiries during the period when her policy lay in a lapsed state. 11. The Complainant has strongly objected to the verification clause of the reply of the Opposite Parties, wherein the authorized representative Mr. Gaurav Malhotra, has only mentioned that the contents of para 1 of the above are true and correct and has remained silent about the rest of the objections taken by the Opposite Parties with regard to the averments of the complaint. In these circumstances, we feel that except for the para 1 of the reply, which is admitted, to be true and correct, the rest of the paras answered by the Opposite Parties, have actually gone unrebutted, as the same have not been specifically denied and are not supported by a cogent, reliable and trustworthy evidence, as required by law. The Complainant has cited a judgment of the Hon’ble Supreme Court of India in the case titled as A.K.K. Nambiar Vs. Union of India and Another, AIR 1970 SC 652, wherein it is held that the verification clause of the affidavit which is termed as a necessity, if not properly verified, cannot be admitted in evidence. Thus, in the light of this judgment, the very evidence tendered by the Opposite Parties, along with their reply, has completely run out of force, and the same is out rightly ignored. 12. Thus, we feel that as the Opposite Parties have failed to respond to the queries of the Complainant, dated 18.12.2009 (Annex. C-6) in a convincing manner, and that too not within the stipulated time of mandatory ten days, as per the directions of the IRDA (Protection of Policy Holders Interest), 2001, POLICY HOLDERS SERVICING Regulation 10(1) d the Opposite Parties are found to be deficient in service towards the Complainant. 13. In the light of above observations, we find a definite deficiency in service on the part of the Opposite Parties No.1 and 2. The present complaint of the Complainant succeeds against the Opposite Parties and the same is allowed. We direct the Opposite Parties to pay a sum of Rs.10,000/- on account of mental agony and harassment she had suffered at the hands of the Opposite Parties, along with Rs.7,000/- as cost of litigation. 14. The above said order shall be complied within 45 days of its receipt by Opposite Parties No.1 & 2; thereafter, they shall be liable for an interest @18% per annum on the aforesaid amount of Rs.10,000/-, apart from cost of litigation of Rs.7,000/-, from the date of institution of the complaint, till it is paid. 15. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 30th July, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) PRESIDING MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER ‘Dutt’
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | |
