Chandigarh

DF-II

CC/300/2020

Amarpal Singh Sidhu - Complainant(s)

Versus

Bajaj Allianz Life Insurance Co. Ltd. - Opp.Party(s)

Lalit thakur

14 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	300/2020
Date of Institution	:	16.07.2020
Date of Decision	:	14.03.2023

 

                     

            

 

Amarpal Singh Sidhu r/o House No.28-B, Sector 2, Panchkula, Haryana -134112

                 ...  Complainant.

Versus

1.  Bajaj Allianz Life Insurance Company Ltd., Bajaj Allianz House, Airport Road, Yerawada, Pune-411006, Maharashtra through its Authorized Manager.

2.  Bajaj Allianz Life Insurance Company Ltd., SCO No.215-216-217, 4^th Floor, Sector 34-A, Chandigarh (UT)-160022 through its Branch Manager.

…. Opposite Parties

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Ms.Ateevraj Sandhu, Counsel of complainant Ms.Nidhika, Adv. Proxy for Sh.Nitin Thatai, Counsel of OPs.

 

   

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 alleging therein that being allured by the representations made by the agent of the OPs, he purcahsed a life insurance policy No.0007254592 known as Bajaj Allianz Unit Gain Life Pension on 21.02.2005 (Annexure C-1) for sum assured of Rs.1.00 lakh against annual premium of Rs.10,000/- paid against receipt dated 21.02.2005 (Annexure C-2). He was allured to buy the policy on the pretext that the premium of Rs.10,000/- was to be paid annually and the maturity could be claimed/withdrawn on or after the due date of maturity.  Since the complainant was posted on official duty in Jammu and Kashmir on the date of maturity of the policy, therefore, he visited the branch of the OPs on 13.03.2020 to claim the maturity amount, however, he was informed orally that as he did not come on the disclosed maturity date i.e. 24.02.2020, he would not be entitled to the entire maturity amount of the policy and a mere 30% of the total maturity amount was to be paid along with monthly pension of Rs.1500/-. The complainant submitted the complaint dated 13.03.2020 (Annexure C-6) regarding unlawful 70% deduction of the maturity amount with the OPs but to no effect. Thereafter, on 16.03.2020, the complainant had to return to his duty in Jammu and Kashmir and then nationwide lockdown due to covid-19 was imposed, leaving the complainant helpless and stuck in Jammu and Kashmir. Finally, the complainant served a demand notice dated 19.05.2020 (Annexure C-7) requiring them to refund the due maturity amount of Rs.4,44,190.29P but to no effect. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to release the maturity amount of Rs.4,44,190.29 along with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.     In their written version, the OPs have submitted that the complainant Sh.Amarpal Singh Sidhu "Life Assured" had submitted a proposal/application dated 18.02.2005 (Annexure OP-2) for the purchase of "Bajaj Allianz Unit Gain Life Pension-RP Plan", the proposal was accepted on the standard rates based on the information provided by the LA and consequently a Pension policy was issued bearing policy No.0007254592, commencing from 21.02.2005, Mode of the payment of the Premium was Annual & an amount of Rs.10,000/- per annum was to be paid & name of the Nominee was Mrs.Aman Sidhu i.e. the wife of the complainant (Annexure OP-3).  Before acceptance of the proposal form, the contents of the proposal form was read and explained to the complainant and after understanding all the terms and conditions of the insurance policy, the declaration was also signed by the complainant to that effect.  It has further been submitted that on the vesting date/maturity date, the policy carries a fund value of Rs.4,44,190.29/- after deduction of necessary charges. Out of the maturity amount 33% equivalent to Rs.1,46,582.80/- can be withdrawn by the complainant & rest of the maturity amount 67% equivalent to Rs.2,97,607.49/- is to be invested by the complainant for purchasing the annuity from the opposite parties or from any other institution or company which provides such like facilities on the annuity amount the complainant will get regular pension as per the terms and conditions of the policy. However, on the maturity date, maturity amount comes to Rs.4.44,190.29/- after deduction of policy administration charges, service tax charge & morality charges. A copy of the Unit Statement (Account Statement) is Annexure OP-6. However, as per terms of the policy 33% of the maturity is payable on the date of maturity & 67% amount is invested by the complainant for purchasing annuity for regular pension as it is a Pension Policy. It has further been stated that the complainant did not visit the office of the OPs for withdrawal of the maturity amount on the date of maturity i.e. 21.02.2020, so he is not entitled to withdraw the entire maturity amount. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, the OPs prayed for dismissal of the complaint.
3.     The complainant filed replication to the written reply of the Opposite Parties controverting their stand and reiterated the contents of the complaint.
4.     The parties filed their respective affidavits and documents in support of their case.
5.     We have heard the Counsel for the contesting parties and have gone through the documents on record including written submissions.
6.     It is observed that the resolution of the Board of Directors of Bajaj Allianz Life Insurance Company Ltd. in favour of Mr.Tarun Chugh, Managing Director and CEO of the Company has not been filed on record to prove the same. In its absence, the appointment of Mr.Amit Khanna by Mr.Tarun Chugh cannot be held valid and legal in the eyes of law for want of proof of authorization by Mr.Tarun Chugh, (in the absence of resolution of the Board of Directors of Bajaj Allianz Life Insurance Company Ltd.). In order to find out the legal consequences of filing the written statement and other proceedings without having competent authority to do so, the judgment of the Hon'ble Supreme Court of India in the case reported as (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” is important. In para no.11 of the judgment,  it has been held as under:-

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

         Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) SCC 30 that the

“bare authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

7.     In the present case, the OPs-company did not file the written version and other legal proceedings by an authorized person. There is nothing on record that the OPs-company issued any authorization in favour of Mr.Tarun Chugh, Managing Director & CEO of the Company who appointed Mr.Amit Khanna. The OPs failed to place on record its memorandum/articles to show that any person has been vested with the powers or had been given any power of attorney on behalf of the company to sign, verify and file the written version on behalf of the company. The OPs has not placed on record any resolution passed by any Board of Directors in favour of any person. So written version filed by an unauthorized person has no legal effect. The Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G. Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect. Hence, it can safely be concluded that the written version and the documents placed by an unauthorized person have no legal value.
8.     Even for the sake of arguments, if the complaint is decided on merits. It is clear that the complainant is consumers qua the OPs as he availed the services of the OPs for consideration. The complainant has made specific allegations that the terms and conditions of the policy were neither supplied to him nor it was ever signed by him.  
9.     So the main question to be determined in in the present complaint is whether, the terms and conditions of policy were supplied to, explained to and further understood by the complainant or not?
10.     The complainant alleged that the present policy was mis-sold to him on the assurance that he will be able to withdraw the maturity amount of Rs.4,44,190 on the date of maturity that is 24th   of February 2020. The complainant alleged that terms and conditions of the policy were neither supplied to him nor it was ever signed by him. In its written version, the OPs took a stand that terms and conditions of the policy were supplied to the complainant and it was signed by him.

        From the perusal of the record on file, it is clear that terms and conditions were not signed by the complainant. The terms and conditions placed on record by the opposite parties on record are not signed by the complainant. The opposite party failed to prove on file that terms and conditions were signed by the complainant. The terms and conditions which were not signed by the complainant or not applicable  and binding on the complainant.

11.     In Civil Appeal No.10398/2011 titled as New India Assurance Co. Ltd versus Parvesh Mohanlal Parmar, decided on 04.02.2020, the Hon’ble Supreme Court has held that the National Commission has returned the findings that terms and conditions of the policy were not communicated to the appellant which findings are contained in para No.7 to the following effect:-

“We have heard learned counsel for the parties. We have perused the record of the State Commission. Before we embark upon discussion on the issue regarding breach of the terms of the Insurance Policy, it may be mentioned that the other contentions of the respondents were rejected by the State Commission. The appellant also had contended before the State Commission that he was not furnished with the terms and conditions of the insurance policy when the insurance policy was taken by him. The fact that the appellant took relevant insurance policy covering period between 5.06.2003 to 4.06.2004 is not in dispute. The case of the appellant was that the annexure containing terms of the insurance policy had not been attached along with the document of the policy furnished to him. Though the respondents denied such averment of the appellant in their written version yet the appellant reiterated the same stand in his rejoinder affidavit filed before the state Commission. The State Commission did not deal with this aspect of the matter. In our opinion, it was necessary for the respondents to prove that the terms and conditions of the Insurance Policy were furnished to the appellant when the policy document was issued in his favour. We have not come across any tangible material to infer that the relevant terms and conditions of the Insurance Policy were brought to the knowledge of the appellant.”

12.     Most importantly, in para number 8 of the preliminary objections of the written version filed by the OPs stated as under :-

“8.     That it is pertinent to mention here that the life assured has misunderstood the nature of the policy.”

        So it is a clear-cut admission on the part of the OPs that the complainant has misunderstood the nature of the policy. If the complainant mis-understood the nature of the policy then the terms and conditions, which were not understood by him, are not binding upon him, being disadvantages to his interest.

        The OPs in para number 12 of its written version (on merits) again admitted that the complainant has misunderstood the terms and conditions of the policy. As the consumer did not understand the terms and conditions of the policy, the same are not binding upon him.

13.     Definition of ‘unfair contact’ as defined under Section 2(46) of the Consumer Protection Act 2019 states as under:

(46. "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:—

(i) to (iv)   xxxxxxxxxxxx

(v)   permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or

(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage;

14.     Definition of ‘unfair trade practice’ as defined under Section 2(47) of the Consumer Protection Act 2019 states as under:

(47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—

(i)     making any statement, whether orally or in writing or by visible representation including by means of electronic record, which—

(a)     falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(b)     falsely represents that the services are of a particular standard, quality or grade;

(c)     falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(d)     represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(e)     represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(f)     makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (g)       gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:

         In the present complaint, the OPs have mis-sold the present policy to the complainant by false representation that this policy have benefits which this policy do not have i.e. maturity value of Rs.4,44,190/-

15.     That it is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

    “It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

16.     In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly partly allowed. The OPs are directed to    release the maturity amount of Rs.4,44,190.29P to the complainant along with interest @ 9% p.a. from the date of filing of the complaint till its actual realization.
17.      This order be complied with by the OPs jointly and severally, within 60 days from the date of receipt of its certified copy, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this Commission.
18.     The pending application(s) if any, stands disposed of accordingly.
19.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced 14/03/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER