BEFORE THE DISTRICT CONSUMER DISPUTES

                        REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint  No.332 of 2017

                                                                   Date of Instt. 11.09.2017

                                                                   Date of Decision: 04.06.2019

Suvender Singh Age 66 years son of Shri Hari Singh R/o VPO Chania Distt. Jalandhar.

                                                                             ..........Complainant

Versus

1.       Aviva Life Insurance Branch, Jalandhar SCO-18, Ladowali     Road, Puda Complex, Jalandhar.

2.       General Manager, Aviva Life Insurance, Aviva Tower, Sector Road, Opp. Golf Course, DLF, Phase-V, Sector-43, Gurgaon-  122003.

                                                                                ….….. Opposite Parties

          Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh              (President)

                   Smt. Jyotsna                      (Member)

Present:       Sh. KPS Gill, Adv Counsel for the Complainant.

                   None for the OPs.

Order

                   Karnail Singh (President)

1.              This complaint has been filed by the complainant, wherein alleged that the complainant was regular customer of HDFC Bank, Jalandhar and also an NRI and whenever the complainant came to India he used to deposit the money, savings in HDFC Bank and the officials of the HDFC Bank allured the complainant in connivance with the officials of the OP to deposit the money for five years with the OP and the complainant will be insured and he will be given more interest than that of the HDFC Bank and the OP received Rs.2,00,000/- as premium, vide Policy No.LSU1917266/01160809 in the year 2007 and the annual premium was fixed Rs.2,00,000/-. Again the second installment was paid by the complainant on 13.03.2008. Since the complainant is an NRI and he was forced by the employer to come back to Dubai and complainant went back and then the complainant sent his relative to pay the next installments, vide cheque No.003928 dated 24.02.2012 for Rs.4,00,000/-, but the OP refused to receive the amount and asked for personal appearance of the complainant, which was not possible at that time, then the complainant came back to India on 21.12.2012 and paid a sum of Rs.6,00,000/- to the OP, vide receipt dated 18.12.2012 and money was transferred to the account of the OP on 21.12.2012.

2.             That in this way, the OP has received full and final payments from the complainant. The OP was contacted many times to refund the amount along with interest, but the OP keep the complainant in lame excuses and never sent the money alongwith the interest even after the receipt of the entire money on 06.05.2013, they said to the complainant that the complainant is entitled for free look refund amount, which is against the law and policy. The complainant was requested many times to send the policy, but they kept the complainant on lame excuses and neither issued the policy nor send the money to the complainant. However, only the policy number was dictated to the complainant and the same is LSU 1917266. Even after receipt of the full and final amount from the complainant, the complainant lastly filed a complaint dated 25.04.2016 with the OP, but no reply was given by the OP, but telephonically stated that the medical of the complainant was not got done by the representative of the OP. So, the complainant is not entitled for any money/relief from the OP and flatly refused to pay to the complainant the total amount along with interest as agreed.

3.              That the complainant has deposited with the OP an amount of Rs.10,00,000/- and the OP is not returning the same despite many requests and demands which causes mental tension, agony, torture, harassment, financial loss, humiliation to the complainant and there is a deficiency in service and unfair trade practice on the part of the OP, which gave cause of action to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the amount of Rs.10,00,000/- along with compensation on account of mental agony, to the tune of Rs.5,00,000/- and litigation expenses of Rs.2,00,000/- in total Rs.17,00,000/- with interest upto date.

4.              Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable because there is no cause of action accrued to the complainant for filing the instant complaint. Even there is neither negligence nor deficiency of service or unfair trade practice on the part of the OP and further averred that the complainant has concealed the true facts. He has presented a distorted and twisted version and has deliberately withheld true vital facts. The complainant with malafide intentions concocted and attributed absolutely false allegations against the OPs. The complainant applied for Insurance Policy “Life Saver-Unit Linked Plan” by his Proposal dated 13.03.2008. The insurance policy No.LSU1917266/01160809 was issued and sent at his given address on 27.03.2008 by Speed Post, but due to incomplete address given by complainant, it was returned to OP by Speed Post agencies as undelivered on 03.05.2008. The complainant paid next annual premium and thereafter, did not pay regular premiums due on 25.03.2010. Due to non-payment of regular premium, policy lapsed on 30.04.2010. After the policy lapsed, complainant could have applied for reinstatement of policy within two years from date of last due premium. However, no reinstatement request was received during the two years revival period and therefore, in accordance with the policy terms and conditions, policy in question got terminated on 25.03.2012. On termination of policy, a surrender value of Rs.1,37,869/- became payable to the complainant. Cheque for the said amount was accordingly sent by respondent company to the communication address of the complainant through Speed Post on 31.03.2012, but the said cheque returned un-delivered for want of correct address. Thereafter, the complainant requested for reinstatement of policy in December, 2012 with cheque of Rs.6,00,000/-, but the policy could not be reinstated on account of the fact that fresh medicals were required for reinstatement, which were not fulfilled by the complainant. Since, the policy could not be reinstated due to lack of medical tests, company decided to refund the amount received from reinstatement and sent cheques to the complainant at his communication detailed address. Thereafter, the OP Company was in receipt of communication through emails from the complainant that he had not received the policy documents. The respondent company investigated the matter and vide its response dated 29.04.2013 offered to cancel the policy and refund the premiums received therein provided the complainant fulfilled some formalities. Thereafter, the complainant again approached the respondent company in the year 2016, vide email dated 23.04.2016 to which the respondent company again offered him to get his premiums refunded and requested to complete few formalities for processing the refund. The complainant for reasons best known to him did not complete the formalities and filed the present complaint. The complainant malafidely concealed these facts and as such, he has not come to the Forum with clean hands. The next question raised by the OPs is that the complaint is absolutely time barred and deserves to be dismissed as per Section 24A of the Consumer Protection Act, being reason the complaint can be filed within 2 years from the date of cause of action and further submitted that the representation of the complainant by his letter dated 20.04.2013 received and OPs agreed to refund premiums paid by complainant after deduction of Free Look Charges, which was not accepted by it. So, cause of action has arisen on 29.04.2013 and limitation period expired on 29.04.2015, whereas the instant complaint filed on 11.09.2017, which is much beyond the time limit of two years, therefore, complaint is liable to be dismissed. On merits, it is admitted that the complainant deposited the two installments and thereafter, Rs.6,00,000/- in the month of December, 2012 and further admitted that the OPs ready to return the said amount, but after fulfilling some formalities by the complainant. The other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5.             In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-4 and then closed the evidence.

6.              Similarly, counsel for the OPs tendered into evidence affidavit Ex.OPA alongwith document Ex.OP-1 i.e. Copy of Letter dated 29.04.2013 and then closed the evidence.

7.              We have heard the learned counsel for the complainant and also gone through the case file very minutely.

8.              Precisely, the case set by the complainant to the effect that he got insurance from OP after paying premium of Rs.2,00,000/- and policy number issued by the OP was LSU 1917266/01160809 in the year 2007 and admittedly, the complainant also deposited the second yearly installment of Rs.2,00,000/- on 13.03.2018 and then for one reason or the other, the complainant did not deposit any installment till 21.12.2012 and after coming from abroad, the complainant admittedly deposited a sum of Rs.6,00,000/- on 21.12.2012, which was transferred in the account of the OP and thereafter, the complainant started demanding the said amount, but the OP did not return the said amount on one pretext or the other and upto this extent, there is no dispute between the parties.

9.              Now, coming to the legal issue raised by the OP that the complaint of the complainant is hopelessly time barred on the ground that the last representation given by the complainant was on 20.04.2013 and where upon did act by the OP and agreed to refund the premium amount, but after deduction free look charges, which was not accepted by the complainant and as such, a cause of action accrued to the complainant on 29.04.2013, when an offer was given by the OP and as per limitation period, which is to be reckoned from 29.04.2013, of two year, then the complainant has right to file the complaint on or before 29.04.2015, but admittedly the instant complaint filed on 11.09.2017, beyond the period of two years.

10.              We have considered the above submission of learned counsel for the OPs and find that there is recurring cause accrued to the complainant until the payment is not made or flatly refused to the complainant, but if we go through the letter dated 29.04.2013, which is Ex.OP-1, whereby the complainant was not denied the payment of the said premium amount rather an option was given to the complainant to get refund the said premium after deducting free look charges and the same has not been admitted by the complainant, as also alleged by the OP in its written reply in Para No.6 of the Preliminary Objections. So, version of the OP that a cause of action accrued to the complainant on 29.04.2013 is not acceptable. There is another reason for not accepting the aforesaid date as given by the OP, the OP itself explained in Preliminary Objection No.5 that the complainant again approached the respondent company on 23.04.2016 and there upon, the complainant was asked to complete the formality, but he did not complete the formality rather filed the instant complaint. So, the cause of action again accrued to the complainant on 23.04.2016 when he made an email complaint to the OP, which is accepted by the OP and gave an offer to get the premium amount return, but after completion of some formalities. So, from all angle, we do not agree with the submission of learned counsel for the OP that the complaint of the complainant is time barred rather we find that the complaint of the complainant is within limitation.

11.            Further, the factum in regard to purchase of insurance policy by the complainant, in the year 2007 is admitted fact and further it is also admitted that the complainant at the first instance deposited Rs.2,00,000/- as premium and second installment also paid Rs.2,00,000/- on 13.03.2018 and then on 21.12.2012 deposited the prior installments i.e. Rs.6,00,000/- and total Rs.10,00,000/- was deposited by the complainant is not in dispute. Now, question remains whether the OP has right to deduct any free look charges there from, for that purpose, we have to refer the pleadings of the OP, the OP in its Preliminary Objections No.3, itself stated that the complainant did not pay regular premium due on 25.03.2010 and due to non-payment of regular premium, the policy lapsed on 30.04.2010 and further the complainant never had applied for reinstatement of policy within stipulated period of two years from the date of last due premium and thus, the insurance policy of the complainant was terminated on 25.03.2012 in accordance with policy terms and conditions.

12.            Here the OP alleged that the insurance policy of the complainant was terminated on 25.03.2012, whereas in a letter Ex.OP-1 dated 29.04.2013, the OP alleged that the insurance company/OP has decided to cancel your policy and refund your premium paid less free look charges. If the policy of the complainant has been terminated in the year 2012, then how the OP can take a different term in the letter Ex.OP-1 dated 29.04.2013 that the company has decided to cancel your policy. So, it means the policy of the complainant was alive in the year 2012 as well as in the year 2013 and upto 2017 i.e. the day of filing of the instant complaint. If virtually the OP has cancelled or terminated the policy of the complainant, then the OP has to bring on the file the said order of termination or cancellation of the policy and if the amount so assessed by the OP i.e. surrender value of Rs.1,37,869/- and sent to the complainant, which was received back, what is the mode of sending the said cheque amount, by courier or by registered post, the receipt of the said courier or post office can be produced on the file just to give strength to its version, but for the best known reason, the OP has not brought any such type of evidence.

13.            Further, the OP itself admitted in Para No.5 on merits that an email message was received on 23.04.2016, so, it means the complainant who is residing abroad making his best efforts to make continue his communication with the OP just to save/preserve his huge amount of Rs.10,00,000/-, which was deposited by the complainant for getting thereon higher interest rate, but for the best known reason, the OP has forfeited the said amount without any reason just on the name of some formalities like medical not got conducted by the complainant and other documents not supplied by the complainant. We find that if the OP accepted the amount of Rs.6,00,000/- from the complainant in the year 2012, even after the termination of the policy, then it is the duty of the OP's official to firstly get medical examination of the complainant and then to accept the such huge amount, but at that time, the company is only running after the money and they make all efforts to procure the money and whenever time come to return the said amount to the consumer, then the OP company change its eyes just to refrain the complainant from getting the said amount, so with these observations, we are of the considered opinion that the OP has committed negligence and deficiency in service for retaining the amount of the complainant for no reason and as such, we find that the complainant is entitled for the relief as claimed.

14.            As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the amount of insurance premium of Rs.10,00,000/- with interest @ 12% p.a. from the date of last letter sent by the complainant i.e. 29.04.2013, till its realization and further, OPs are directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.80,000/- and further, OPs are directed to pay litigation expenses of Rs.20,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.  

15.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.                                                                                                                                                                

Dated                          Jyotsna                                  Karnail Singh

04.06.2019                 Member                                 President