Arsangeet Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Aviva Life Insurance Co. Pvt. Ltd., & another (here-in-after referred to as 'opposite parties').
Originally the complaint was filed before District Consumer Forum, Mukatsar on 3-4-2013.
Briefly stated, the case of the complainant is that the opposite party No. 1 is well known in the field of Insurance qua various kinds of insurances under the name and style of Aviva Life Insurance. The opposite party No. 2 is having its collaboration with opposite party No. 1 for insuring various beneficiaries for insurance purposes. The complainant was having his Saving Bank Account with opposite party No. 2. He was having good relations, being the customer of bank with opposite party No. 2. At that time, opposite party No. 2 stressed upon complainant to purchase Aviva Life Insurance Policy ( Life Long Unit LinkTemplated ) launched by opposite party No. 1 for various account holders of the bank under some special benefits and to become member of this policy. It was also told to the complainant that he will have to pay Rs. 25,000/- per annum as premium. The complainant was matriculate. The employees of opposite party No. 2 took his signatures on blank papers without explaining him terms and conditions of the insurance policy. The complainant was told that he can withdraw his amount after a period of 5 years. He was further assured guaranteed return of bank interest on the amount so deposited by him. Being allured from the assurances, the complainant started paying installments to opposite party No. 1 through opposite party No. 2 for an amount of Rs. 25000/- per annum.
It is also alleged that opposite parties have not supplied any insurance particulars to the complainant, after receiving premium from him. After the period of 5 years, the complainant went to the office of opposite party No. 2 for refund of his 5 installments to the tune of Rs.1,25,000/- with interest. The officials of the opposite parties asked him that his money should not be refunded due to the reason that he has to deposit Rs.25000/- per annum upto the year 2069. On the request of complainant, the opposite party No. 2 provided photo copy of policy schedule and claim form duly signed by complainant in blank, from where he came to know that the last date for paying premium is 14-9-2069. The columns regarding detail of plan applied were blank such as terms of the plan in the year & premium paying terms in the year. The complainant felt cheated in the hands of the opposite parties. He moved a written representation regarding cancellation of policy and for refund of Rs.1,25,000/- so deposited by him. The opposite parties flatly refused to refund the amount and forced him to pay the premium upto the year 2069.
It is alleged that the policy in question has been sold by the opposite parties by giving assurance of guaranteed return and with false promise of interest on the amount so deposited by the complainant. The act and conduct of the opposite parties falls under unfair trade practice as defined under the 'Act'.
It is further pleaded that even after repeated requests the opposite parties did not pay any heed towards the requests of the complainant regarding refund of his premium amount and cancellation of the policy.
On this backdrop of facts, the complainant is entitled to consolidated compensation; cancellation of policy and refund of this amount with interest. Hence, this complaint.
Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing separate written reply.
The opposite party No. 1 i.e. Aviva Life Insurance Company Limited having its Head Office at Aviva Tower, Sector Road, Opp. Golf Course, DLF Phase V, Sector 43 Gurgaon, is a company registered under the Companies Act, 1955 and Section 3 of the Insurance Act, 1938.It is further clarified that each and every statement, averment, allegation or contention made by inconsistent with or contradictory to whatever is stated herein below and no statement, allegation, contention not specifically denied by the opposite parties shall be deemed to have been admittedly merely for want of traverse.
Thereafter opposite party No. 1 raised legal objections that complaint is not maintainable. That the contents of the complaint are mis-conceived, misleading and after thought. The complaint is liable to be dismissed summarily. That the complainant has no cause of action to file the complaint. That the complainant has not come with clean hands. He has suppressed material facts from this Forum. That the intricate question of law and facts are involved in this case. The parties have to lead evidence by examining witnesses and the witnesses are to be cross examined by the other party. The procedure under the 'Act' is summary in nature. The complainant, if so advised, may file civil suit seeking alleged relief. That neither there is any deficiency in service on the part of the opposite party nor any such deficiency in service has been alleged. As such the complainant is not consumer under the Act. The complaint is liable to be dismissed. That the complainant is not a consumer. This Forum has no jurisdiction to entertain and try the complaint. That the complainant is estopped from filing the complaint by his own acts, conduct, omissions and acquiescence. That the complaint is false, frivolous and vexatious in nature. It has been filed in order to cause undue harassment to the opposite party. The complainant is liable to pay penalty as provided under the Act. The Complainant ,who was at liberty and under obligation to go through the terms and conditions of the Policy on receipt of the Policy documents, did not raise any complaints/objections regarding the policy either within the Free Look Period of 15 days or within any reasonable time thereafter. The contract of insurance attained finality and the opposite party continued to provide coverage to the complainant before the lapse of the Policy. After the expiry of the Free Look Period, the Policy terms and conditions permits surrender of the Policy only after completion of 3 years; where surrender value is payable in accordance with the Policy terms and conditions, shall be payable on surrender of the Policy.
It is further pleaded that the Proposal form clearly states that policyholder has to read the Key Features Document carefully which clearly elaborates the term of the policy including premium paying term. It is specifically submitted that Key Features Document of "Life Long" Policy makes it clear that "Policy Term" will continue till policy holder attains the age of 85 years and accordingly, the term of the policy will be determined. Thus in the Life Long policy, Proposer having different age group applying for the policy will have different term of the policy. For example, a proposer aged about 50 years applying the Life Long policy needs to continue with the policy for 35 years. The proposer filling the proposal form is not required to write term of the policy which is according to the age of the proposer. Moreover the Terms and conditions of the said policy clearly states under the definition clause about the premium payment term. The key features also states about entry age of the life assured i.e. 18 years to 60 years of age. However the complainant cannot deny the said facts at this belated stage. Hence the complaint is liable to be dismissed on this ground.
The last legal objection is that the opposite parties float the Insurance Schemes for the public in general, after prior approval of the Insurance Regulatory & Development Authority ("IRDA") and all the terms and conditions of the respective Insurance Policies are set by the I.R.D.A. constituted under the I.R.D.A Act, 1999 and Insurance Act, 1938.
On merits, it is stated that opposite party No. 2 was a referral partner of opposite party No. 1. The opposite party No. 1 is a Life Insurance Company registered under the provisions of the Insurance Act, 1938 and is strictly following the rules and regulations and guidelines issued by the IRDA from time to time. It is denied that complainant was stressed upon to purchase the policy as prayed by complainant. It is further mentioned that complainant himself was willing and shown interest to purchase a Life Long Insurance plan. Thereafter, after understanding all terms , conditions and benefits of all plans, he opted to purchase Life Long Unit Linked Plan of the opposite party and filled Proposal Form on 14-08-2006. It clearly shows from the name of the policy that this is Life Long Plan. The complainant opted to pay Rs. 25,000/- as annual premium with Sum Assured of Rs.6,12,500/-. He also opted type of fund as Unit Linked Fund in Balanced Fund 50% and 50% in Growth Fund. Moreover, before filling the said Proposal Form, there is specific note i.e. in Unit Linked Plans, the investment risk in investment portfolio is borne by the policyholder. The proposer should be satisfied with the details of the product and must pay specific attention to the additional information and commitment sections in the key feature brochure of the product.
It is further unfolded that before signing Proposal Form, the complainant made a declaration to the effect. "I/We declare that I/We have answered the question in the Proposal Form after being explained by the advisor of the Aviva Life Insurance Company India Pvt. Ltd. and have fully understood the nature of the questions and the importance of disclosing all material information while answering such questions.
OP has also further reproduced the remaining part of the declaration, the reproduction of which is not considered necessary at this stage.
It is further mentioned that complainant further declared that he has read the product literature, product brochure, key features, FAQ's and sample Illustration of the maturity value. The opposite party No. 1 has reproduced some part of the declaration, the reproduction of which is not considered necessary at this stage.
The further pleading of opposite party No. 1 is that after receiving Proposal Form and going through the entire contents, underwriters of the policy reached to conclusion that there was no risk to issue policy to the complainant as per information provided by him in Proposal Forum. As such, opposite party No. 1 issued Insurance Policy bearing No.WTG1334230, commenced from 14-09-2006 and sent the policy documents alongwith its all terms and conditions to the complainant on the given address. The same was duly received by him and it is in his possession.
The opposite party No. 1 has further reiterated that entire terms and conditions of the policy documents were provided by opposite party No. 1 to complainant in the month of August 2006 and the complainant purposely denied the factum of policy documents with malafide intention, just to get undue benefits from this Forum and to cause wrongful loss to opposite party No. 1. As per provisions of Insurance Act and policy documents, there is specifically mentioned that the policyholder has an option to reconsider the policy i.e. Free look Period Option, meaning thereby that the Policyholder has the right to review the policy terms and conditions and cancel the policy within a period of 15 days from the date of receipt of the policy documents. All other averments of the complainant are denied.
It is also the case of opposite party No. 1 that complainant can surrender the policy and get surrender value as per terms and conditions of the policy. In the end, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its separate written reply raised legal objections that the complaint is time barred. That the complaint has been filed by complainant only to injure goodwill and reputation of opposite party. Even otherwise, the complaint is false, frivolous and vexatious to the knowledge of the complainant. It is entitled to get special costs. That intricate questions of law and facts are involved in the complaint which require voluminous documents and evidence. That the complainant has concealed material facts and documents from this Forum as well as opposite party. The complainant has concealed the fact that he purchased the policy of opposite party No. 1 voluntarily, of his own accord, after fully understanding the contents of the proposal form and even after signing a declaration. That the complainant is not consumer of the opposite party and that the complainant has no locus standi or cause of action to file the complaint.
On merits, regarding tie up between opposite party No. 2 and opposite party No. 1, it is stated to be matter of record. The pleading regarding bank account of the complainant is also stated to be matter of record but it is denied that any official of opposite party No. 2 stressed upon the complainant to purchase policy of opposite party No. 1.
It is further pleaded that the complainant purchased the policy of opposite party No.1 after fully understanding various terms and conditions, voluntarily of his own accord and after signing proposal form and declaration therein. Therefore, the complainant is estopped from raising any objection at this stage. It is denied that any employee of opposite party took signatures of the complainant on any blank paper. It is denied that any official of opposite party No. 2 told the complainant that he can withdraw the amount after the period of five years or guaranteed any return of bank interest. All other averments of the complainant relating to opposite party No. 2 are also categorically denied. In the end, the opposite party No. 2 prayed for dismissal of complainant.
Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit (Ex.C-1), copy of representations (Ex. C-2 & Ex. C-3), photocopy of premium receipt (Ex. C-4) and photocopy of proposal form (Ex. C-5).
In order to rebut this evidence, opposite party No. 1 has tendered into evidence photocopy of policy terms and conditions (Ex. OP-1/1), photocopy of Key Features (Ex. OP-1/2), photocopy of proposal form (Ex. OP-1/3), photocopy of deposit slip (Ex. OP-1/4), photocopy of advisor declaration (Ex. OP-1/5), photocopy of middle standard DMC (Ex. OP-1/6), photocopy of driving licence of complainant (Ex. OP-1/7), photocopy of vernacular declaration (Ex. OP-1/8), photocopy of customer declaration (Ex. OP-1/9), photocopy of financial statement (Ex. OP-1/10), photocopy of Illustration Benefits (Ex. OP-1/11), affidavit of Watan Kumar Bajakhana (Ex. OP-1/12), photocopy of policy schedule (Ex. OP-1/13), photocopy of policy account statement (Ex. OP-1/14).
The opposite party No. 2 has tendered into evidence affidavit of Kuldeep Garg (Ex. OP-2/1).
The opposite party No. 2 failed to conclude evidence. Therefore, evidence of opposite party No. 2 was closed by order.
After hearing learned counsel for the parties, District Consumer Forum, Mukatsar vide order dated 23-9-2013 ordered for return of complaint for want of territorial jurisdiction.
The complainant preferred appeal against order dated 23-9-2013 before Hon'ble State Commission, Punjab. The appeal was decided vide order dated 16-2-2017 passed in First Appeal No. 1449 of 2013 and this case was remanded back to this Forum with the direction to decide the same on merits. On receipt of case by remand, it was registered with this Forum on 20-3-2017. Thereafter written arguments were filed by complainant on 7-7-2017.
We have heard learned counsel for the parties, gone through record and written arguments of complainant and opposite party No. 2.
Learned counsel for complainant has submitted that opposite party No. 2 stressed upon him to purchase policy by offering some special benefits and got signatures of the complainant on some blank papers without explaining the terms. It is admitted by opposite party No. 1 that opposite party No. 2 was referral partner of opposite party No. 1. The opposite party No. 2 has not categorically denied the averments of the complainant. It is rather pleaded that complainant purchased policy of opposite party No. 1 after fully understanding various terms and conditions and after signing proposal form and declaration form. In this way, the opposite party No. 2 has also impliedly admitted that policy was sold by it on behalf of opposite party No. 1. The complainant also alleged that he was not supplied with detailed policy documents containing terms and conditions. Therefore, the main point for determination is whether the complainant was explained terms and conditions before getting his signatures on the proposal form. The judicial notice is required to be taken on some admitted facts. The date of birth of complainant on the date of alleged policy is 29-4-1985 and the policy was purchased in the year 2006. Therefore, on the date of purchase of policy, the complainant was already of the age of 21 years and date of birth of his father, as mentioned by the opposite parties in documents is as 1-7-1957. As per opposite parties, the complainant was to pay last installment in 2069. The opposite parties have mentioned the name of his father as nominee. It is highly unbelievable and improbable that father of complainant would have survived till the year 2069 i.e. upto the age of 112 years. Therefore, had the complainant opted to have purchased the policy after fully understanding terms and conditions and Had the opposite parties fully explained terms and conditions, the complainant would not have opted his father as nominee and and the opposite parties would have also asked for some other nominee. Both the parties have also placed on record copy of proposal form. Of course in this document, name of plan is mentioned Life Long Plant but terms of the plan and years, it could have been calculated as 64 years (85-21) is not mentioned and it is intentionally concealed. The column relating to terms, plan and premium paying years are also blank. There is nothing in this proposal form that complainant was required to pay premium upto the year 2069. It is admitted by opposite party No. 1 that opposite party No. 2 was referral partner. It is admitted by opposite party No. 2 that complainant purchased policy of opposite party No. 1 through it but the name of officials of opposite party No. 2 who explained terms and conditions is not mentioned. Of course opposite party No. 1 has brought on record declaration (Ex.OP-1/5) to prove that terms and conditions were duly explained to the complainant but it is not so mentioned in this document. The document is dated 2-9-2006 whereas the proposal form was filled up on 14-8-2006 and no date is mentioned in Ex. OP-1/5. Therefore it is proved that complainant was not explained terms and conditions. It is proved that opposite parties have not filled up all the required columns. The complainant has also alleged that he has not received the policy document. Of course the opposite parties have not denied this fact. The opposite parties have also placed on record copy of detailed policy (Ex. OP-1/13) but it is dated 2-9-2013. It is not the case of the opposite parties that it is duplicate copy of policy issued to the complainant. Even otherwise in case of duplicate copy, date of despatch in original was also to be mentioned on this document. Therefore the document replied upon by opposite party No. 1 also belies their claim that policy document containing all the terms and condition was supplied to the complainant. In such circumstances, deficiency in service and unfair trade practice on the part of the opposite parties stands proved. The version of the complainant that he is entitled to refund of the full amount with interest after five years is to be believed.
It is also submitted by learned counsel for the complainant that opposite party No. 1 has tried to prove that complainant was explained terms and conditions by producing copy of Advisor Declaration (Ex. OP-1/5) and copy of Vernacular Declaration Form (Ex. OP-1/8) but these documents will reveal that Ex. OP-1/5 does not bear date of execution. It is also nowhere mentioned that Advisor has explained terms and condition. Ex. OP-1/8 is dated 2-9-2006 whereas the policy was sold on 14-8-2006. Therefore, these declaration forms will also not prove that before sale of policy documents terms and conditions were explained to the complainant.
It is also submitted by learned counsel for the complainant that although District Consumer Forum, Mukatsar returned this complaint for want of territorial jurisdiction but the complaint No. 158 of 2012 titled Harpreet Singh Vs. Aiva Life Insurance was also on the similar averments and it was accepted.
Further submission of learned counsel for the complainant is that admittedly, the complainant has deposited Rs. 1,25,000/- upto 5 years. He is entitled to refund of this amount with interest @ 6% p.a. from the date of receipt till payment. The opposite parties are guilty of unfair trade practice and deficiency in service. The complainant is also entitled to compensation for this deficiency.
On the other hand, learned counsel for opposite party No. 2 has submitted that it has been unnecessarily dragged into litigation. The complainant has voluntarily purchased the policy in question through it and has never alleged any deficiency in service within a period two years from the date of purchase. Therefore, the complaint against opposite party No. 2 is time barred.
It is further submitted by learned counsel for opposite party No. 2 that even otherwise the policy was issued by opposite party No. 1. Therefore, opposite party No. 1 is liable for benefits, if any, accrued or payable to the complainant. The complaint against opposite party No. 2 be dismissed.
The learned counsel for opposite party No. 1 has reiterated his stand as taken in written reply. It is further submitted by learned counsel for opposite party No. 1 that decision, if any, in other complaint as disclosed by complainant is not binding upon this Forum and complainant cannot be held entitled to relief only for the reason that another complainant in another complaint had been given similar relief. This Forum has to decide controversy on the basis of pleadings of the parties and evidence led by them. The complainant has not denied that he has purchased the policy in question through opposite party No. 2. It was Life Long Policy. The Salient Features of the policy are on the record. The complainant has himself placed on record copy of proposal form (Ex. C-5). The name of policy “Life Long” as mentioned on the top of policy document. In columns details of 'plan applied for' also name of plan is mentioned as “Life Long”. Of course the column regarding terms of plan and premium payable term in years are not filled but as the policy was Life Long, it was to continue till the age of 85 years. These blank columns were not required to be filled in. The complainant has not denied signatures on the proposal form. This document contains signatures of the insured. Therefore, documentary evidence has to prevail over oral evidence. It is to be accepted that complainant opted to purchase policy after fully understanding terms and conditions and contents of the same. The contention of the complainant that he was not explained terms and conditions is not accepted.
It is further submitted by learned counsel for opposite party No. 1 that complainant purchased policy in the year 2006. In case he has not received the policy document containing detailed terms and conditions, he was not to remain silent for the period of five year. Therefore, it is to be accepted that complainant received document containing terms and conditions. The opposite party No. 1 has also produced on record copy of policy document issued to the complainant.
We have carefully gone through the record and have considered the rival contentions.
Some facts are not in dispute. It is not disputed that complainant opted for purchase of policy of opposite party No. 1 through opposite party No. 2. The complainant has alleged that he was not explained terms and conditions of the policy and he was not supplied with policy document containing terms and conditions. Therefore, the main controversy revolves around the issue whether the complainant was explained terms and conditions.
The copy of proposal form was produced by both the parties. It is not disputed that date of birth of complainant is 29-4-1985. The policy was said to be purchased on 14-8-2006. Therefore at that time age of the complainant was 21 years. It is the case of the opposite parties that complainant was required to pay annual installments till the age of 85 years i.e. for a period of 64 years. The name of nominee as mentioned is Gurmail Singh. His relationship with insured is 'father' and date of birth as mentioned is 1-7-1957. Had the complainant been explained that policy will continue till the year 2069, then certainly the complainant was not to nominate his father Gurmail Singh as his nominee because by that time age of Gurmail Singh would be 112 years and it is not believable that he would have survived till that age. In this document, it is nowhere mentioned that complainant will have to pay installments till the age of 85 years or upto the year 2069. Of course the name of plan is mentioned as “Life Long', but the material fact required to be declared to the complainant was that he will have to pay installments for 64 years or upto the age of 84 years. Therefore, it cannot be accepted by any stretch of imagination that complainant explained salient features of the policy enabling discretion consciously. Non-mentioning of these material facts leads to inference that opposite parties have intentionally concealed these material facts. Therefore it is to be concluded that complainant was not explained terms and conditions of the policy sold to him.
The next point is whether the opposite parties have supplied copy of policy document containing terms and conditions. Of course the opposite parties have denied averments of the complainant. Therefore, the opposite parties were also required to prove that copy of details terms and conditions were supplied to the complainant within reasonable time. The policy schedule Ex. OP-1/13 also contains letter issued to the complainant titled Welcome to the World of Aviva Life Insurance. This letter is dated 2-9-2013. It is also mentioned in this letter that in case he is not satisfied with the policy terms and conditions, he can re-consider his decision of purchasing it within 15 days of received policy document. This document proves that opposite parties have supplied terms and conditions for the first time on 2-9-2013 i.e. after filing of complaint which was filed on 5-4-2013. Therefore, version of the complainant that he was not supplied with policy document is also to be accepted.
As the opposite parties have failed to prove that terms and conditions were explained to the complainant at the time of sale of policy and policy documents were supplied to him, therefore, the complainant is not bound by terms terms and condition. His version that opposite parties assured refund of amount deposited by him with interest after five years is to be accepted. Therefore, deficiency in service and unfair trade practice on the part of the opposite parties stands proved.
For the reasons recorded above, the complaint is partly accepted with cost of Rs. 10,000/- against opposite party No. 1. The opposite party No. 1 is directed to refund Rs. 1,25,000/- to the complainant with interest @ 6% p.a. (as demanded by complainant) from the date of deposit till payment.
Since the policy was issued by opposite party No. 1 and premium was also received by opposite party No. 1, therefore, the complaint against opposite party No. 2 stands dismissed.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
23-01-2018 (M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
(Sukhwinder Kaur)
