IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of April, 2018
Present:Sri. P.Satheesh Chandran Nair, President (I/c)
Sri. K.N. Radhakrishnan, Member
Smt..Renu.P.Gopalan, Member
CC No. 173/2016(Filed on 27/5/2016)
Between:
Joseph Emmanuel
Kunnumpurath,
Navarathna Villas,
S.H.Mount PO,
Kottayam 686 006.
(By Adv.John Zachariah) …..Complainant
And:
Aviva Life Insurance Company
India Ltd. Rep. by its
Chief Operating Officer,
2nd floor, Prakshdeep building,
7 Tolstoy Marg, New Delhi
Pin 110 001.
(By Adv. Saji Isaac) …..Opposite parties
O R D E R
Sri. P.Satheesh Chandran Nair, President(I/c)
The complainant filed this complaint u/s.12 of the C.P.Act 1986.
2. The case of the complainant is as follows. The complaint he who availed a life insurance policy from the opposite party vide policy No. ALS-2634897 with name and style ‘Life Saver Plus’ on 15/7/2009. It is contended that one Anoop was an agent of the opposite party’s Kottayam branch he who persuaded the complainant by offering attractive schemes and financial benefits thereby he availed the said policy. According to the complainant he was believed that if he made premium payments at least for first three years he would be eligible for all the benefits of said scheme. The complainant remitted an amount of Rs. 6,00,000/-(Six lakhs) on 6/9/2010 and 9/8/2011 respectively for the said scheme. It is further contended that though the complainant would ready to pay the subsequent premium due to the absence of opposite party’s office at Kottayam or due to the reason of strike the complainant could not make any further payment of the scheme. It is contended that the opposite party surprisingly sent a Cheque for Rs. 2,00,000/-(Two lakhs) to the complainant even without any request from the complainant along with a statement to the effect that the policy was closed due to the nonpayment of premium. The complainant did not accept the above said Cheque since the act of the opposite party was illegal and unilateral. Though the complainant demanded the total paid up amount of Rs.6,00,000/- from the opposite party they denied the demand of the complainant. Hence, the case is refund of said paid up amount Rs.6,00,000/-, compensation, cost etc.etc.
3. This Forum entertained the complaint and issued notice to the opposite party for appearance. The opposite party entered appearance and filed their version as follows. According to them this complaint is not maintainable either in law or on facts. It is contended that the complainant has taken a unit linked policy so that it is speculative investment and a speculative gain and the matter does not come under the Consumer Protection Act. It is contended that the said insurance is a contract based on terms and conditions of the policy and both the parties are binding to the terms and conditions of the said policy. If the complainant has any objection with regard to the said terms and conditions there was a ‘free look period’ of 15 days to return the policy. The preferred mode of payment opted by the complainant was by Cheque from his NRE account. As such the closure of the branch was not at all a difficulty for the complainant to make any further payment for the scheme as required. It is further contended that the complainant defaulted the premium after paying the premium for three years. The nonpayment of the subsequent premium is the violation of the terms and conditions of the contract of insurance. If complainant opted any options for the renewal of the policy it would have been reinstated as per article 2 (d) of terms and conditions of the policy. As per the terms and conditions of the policy the policy holder has a right to reinstate the lapsed policy under Section 2(d) of the terms and condition. It is further contended that the opposite party has not committed any deficiency in service as alleged by the complainant. Hence the opposite party prayed to dismiss the complaint with costs.
4. We peruse the complaint, version and records produced before us and framed the following issues for consideration.
1) Whether the complaint is maintainable before the Forum?
2) Whether the opposite party is committed any deficiency in service
as alleged by the complainant?
3) Regarding relief and costs?
5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of his chief examination and marked Ext.A1 to Ext.A3. Ext.A1 is the copy of the policy schedule dtd 15/7/2009.Ext.A2 is the copy of policy account statement dtd 7/4/2014. Ext.A3 is the copy of terms and conditions. On the other side opposite party also filed a proof affidavit and filed Ext.B1 document in their favour. Ext.B1 is the policy schedule of the complainant and terms & conditions of the said policy. Ext.B1 we can see copy of the proposal form and surrender value details etc.etc. After the closure of evidence we heard both sides.
6. Point No.1
The opposite party in this case seriously contended that this case is not maintainable either in law or on facts. The opposite party pleaded that since the complainant life insurance policy is a unit link policy and the said policy is a speculative investment and speculative gain as such this matter does not comes under the purview of Consumer Protection Act 1986. In order to establish the case of the complainant along with the proof affidavit complainant produced and marked as Ext.A1 to A3. Ext.A1 is the policy document showing the commencement date as on 15/7/2009. The opposite party did not oppose the marking of policy document. Ext.A2 is the policy account statement dtd 7/4/14. If we go through Ext.A2 we can see the term of the policy is for 15 years and the installment of the premium is of Rs. 2,00,000/- annually. It also shows that upto 9th August 2011 the complainant remitted an amount of Rs.6,00,000/- as premium to opposite party. Ext.A3 is the policy conditions of the said scheme. As per clause 2©(iii) a 60 days of notice period is given to the policy holder to renew the policy by paying the unpaid premium. The complainant deposed that on 17/8/12 the policy was closed by the opposite party without issuing notice as prescribed in terms and conditions of this policy. The 60 days period will ends only on 15/9/12. As per Ext. A1 policy we can also see that the 4th premium date is of 15/7/12. On the other side as discussed earlier the opposite party filed a proof affidavit and marked Ext. B1 document. When we peruse the Ext. B1 document we can see that page No.1 of Ext.B1 and Ext.A1 are one and same(Page No. marked with red ink above) It also consist of the terms and conditions, from page No.16(as printed below) to page no.22. The copy of the proposal form also attached along with this document.
7. On the basis of the evidence adduced by both parties the first question to be considered is whether this case is maintainable before this forum. As per the terms and conditions it is to be noted that the investment risk in investment portfolio is borne by policy holder. The complainant herein pleaded that he availed this policy because one of the agent of the opposite party by name one Anoop who persuaded him offering attractive scheme and financial benefits to avails a life insurance policy from the opposite party. The opposite party pleaded that on knowing the terms and conditions of the policy and also knowing the risk of investment profit and gain, including loss involved in such polices the complainant has taken this policy. If so, the said Anoop is a necessary party for this proceedings. In the above said case the said Anoop is not at all in the party array. The learned counsel appearing for the opposite party argued that since the said policy is a unit link policy this forum has no jurisdiction to entertain the said matter. In order to substantiate their contention he refer a decision reported in CPR 2013(2) page 389 in Ramlal Agarwala Vs. Bajaj Allianz Life Insurance Company Limited. In this decision the Hon’ble National Commission held that Consumer Forum has no jurisdiction to entertain a case going under unit linked polices, since speculative gain and speculative investment are involved in such policies. As discussed earlier if we go through Ext.A1 to A3 we can clearly come to a conclusion that the said policy was a unit link policy. The speculative gain and speculative investments are clearly mentioned in Ext.A1 to A3. When we go through Ext.B1 all the necessary ingredients of speculative gain and speculative investment are described in Ext.B1.
8. It is the contention of the opposite party to see that if an insured failed to pay the subsequent premium of the policy the insurer has a right to foreclose the policy. It is true that as discussed earlier there are three options left to the insured to reinstate the policy. It is clearly mentioned in page No.2 of Ext.A3. Ext.A3 says “ if we do not receive the Regular premium due after the first 3 consecutive Policy years from the Commencement Date, and provided the policyholder has paid Regular Premium due for the first 3 consecutive Policy Years. Then:
i) We will allow a 30-day grace period from the due date of first unpaid instalment of Regular Premium. During this grace period, the benefits under Article 3) and the benefits under applicable riders, if any, will continue to apply.
ii)If the Regular Premium due is not received within the grace period of 30 days from the due date of the first unpaid instalment of Regular Premium then, the Policy will remain in force with all benefits under Article3) and the benefits under applicable riders. If any, except the benefit under Article 3)c) for a period of 2 years from the due date of the first unpaid instalment of Regular Premium and the Charges as specified in the Schedule will continue to be deducted.
iii) The Policyholder may exercise any of the 3 options during the 2 year reinstatement period
- Reinstate the Policy subject to Article 2)d). The Policy may be reinstated within e consecutive years from the due date of the first unpaid instalment of Regular Premium.
- Surrender the Policy in accordance with Article 5), upon which the Policy shall automatically terminate and We will pay the Policyholder a Surrender Value.
- Continue the Policy beyond the reinstatement period without paying further Regular Premium, provided We receive a written notice from the Policyholder within sixty days of the due date of the first unpaid instalment of Regular Premium requesting Us to continue the Policy. If We accept the Policyholder’s request, we will continue the Policy with benefits under Article 3) and the benefits under applicable riders, if any, except the benefit under Article 3)c) being in force and will continue to levy the Charges as specified in the Schedule”.
When we look into the evidence of the case it is pertinent to see that the complainant is failed to avail any of the above condition to reinstate the policy. As we discussed earlier it is to be find that the policy in question is a unit link policy and on the basis of the decision cited above the case related to unit link policy is not comes under the purview of Consumer Protection Act 1986. Therefore point No.1 found against the complainant
9.Point No. 2 and 3
The point No.2 and 3 are the points to know whether the opposite party committed any deficiency in service as alleged by the complainant and regarding the cost and relief. We already find point No.1 against the complainant and there is no need of going in detail with regard to the above said point. Even then we peruse the evidence adduced by both parties before us it is find that there is no material before us to see that the opposite party committed any deficiency in service as alleged by the complainant. We do admit that the complainant as an innocent investor paid Rs. 6,00,000/- rupees for the said scheme and as a result of the non-continuation of the scheme the opposite party has given only a surrender value of Rs…2,00,000/- to the complainant through a Cheque. It is seen that the complainant have not accepted the Cheque as per his proof affidavit page 6 in this case.. Anyhow we find that the complainant is at liberty to receive the said Cheque amount from the opposite party with interest in due course. In the light of the decision in issue no.1 and on the basis of the evidence discussed above we found Point No.2 and 3 are also against the complainant.
10. In the result we pass the following orders.
1) The case is dismissed
2) No order for cost.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28th day of April, 2018.
Sd/-
P.Satheesh Chandran Nair,
(President)
Sri. K.N. Radhakrishnan, Member Sd/-
Smt..Renu.P.Gopalan, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1-Copy of Policy Schedule dtd 15/7/2009
A2-Copy of policy account statement
A3-Copy of terms and conditions
Exhibits marked on the side of opposite party
B1-Copy of Policy document& schedule
By Order,
Senior Superintendent.
Copy to:
1)Joseph Emmanuel
Kunnumpurath,
Navarathna Villas,
S.H.Mount PO,
Kottayam 686 006
2)Aviva Life Insurance Company
India Ltd. Rep. by its
Chief Operating Officer,
2nd floor, Prakshdeep building,
7 Tolstoy Marg, New Delhi
Pin 110 001.
3) Stock file
