FIRST ADDITIONAL BENCH

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                   First Appeal No.564 of 2012

                                                Date of Institution: 08.05.2012

                                                Date of Decision :  08.10.2015

Shri. Paramjit Kaur wife of Sh. Paramjeet Singh, c/o 2029, Sector 48-C, Chandigarh

                                                                      …..Appellant/Complainant     

                                           Versus

1.      The Manager, Bajaj Allianz Life Insurance Company Limited, Registered and Head Office, GE Plaza, Airport Road,    Yerwada,             Pune 411006.

2.      The Manager, Bajaj Allianz Life Insurance Company Limited, SCO 73, Phase 9, Mohali

3.      Ms.Monika, Agent c/o Bajaj Allianz Life Insurance Company   Limited, SCO No.73, Phase 9, Mohali Executive

4.      Sh. Rohit, Agent Bajaj Allianz Life Insurance Company Limited,   SCO No.73, Phase 9, Mohali Executive.

                                                               … Respondents/Opposite Parties

First Appeal against order dated 28.03.2012 passed by the District Consumer Disputes Redressal Forum,  Mohali

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Jasbir Singh, Gill, Member

Present:-

          For the appellant                   : Sh.Sandeep Bhardwaj, Advocate

          For the respondent no.1 & 2: Sh. Varun Chawla, Advocate

          For the respondent no.3 & 4: Ex-parte.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 28.03.2012 of District Consumer Disputes Redressal Forum Mohali, dismissing the complaint of the complainant. The instant appeal has been preferred by the complainant now appellant in this appeal against the same.

2.      The complainant Paramjit kaur has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that previously, he instituted a complaint no.431 of 2010 against OPs, but the same was withdrawn with  permission to file the fresh complaint on the same cause of action on 13.10.2011. The complainant being non-resident Indian (at present she is in India) has filed the complaint. On 15.02.2008, the complainant was induced by Ms. Monica and Sh. Rohit/OP nos.4 and 5 being executive of OPs to buy the insurance policy of their company by telling about their merits, It was disclosed to complainant that payment of one premium initially was required only and complainant can opt the specified number of years such as 10 years or 15 years. The lock-in-period was stated to be of  three years. The complainant purchased the below noted policies by paying amounts, which are reproduced as under

The complaint is being filed with regard to policy at serial no.3,4 and 5 bearing policy nos.0098308066, 0092410472 and 0092412502. No terms and conditions of the policy were explained to the complainant nor any receipt about supply of terms and conditions of the policy was ever given to the complainant. The policy document is a long book containing long, vague one, which is difficult to understand easily by laity. At the time of receiving the payment, neither any receipt of the amount nor the terms and conditions of the policy were handed over to the complainant. The proposal form also did not disclose any terms and conditions of the policy. It was assured by the OPs that the policy document would reach the complainant within a period of one week from the date of premium, whereas the above executive/OP No.4 and 5  handed over the policy document to complainant at her home and that too after a long period of three four months. The OP No.4 and 5 also averred that the above said policies are Single Premium Policies and complainant need not to pay any further amount , if she do not wish to pay. The complainant returned to India in March 2010 and wanted to withdraw the money so invested in the policies. When the complainant asked the OPs to refund the amount, the OPs asked him to refund only to the tune of 66%, which are charges for running the policy. The complainant was made to understand that it was a single premium policy only by the OPs without making him to understand the terms and conditions of the policy. It was primary duty of the OPs to narrate the terms and conditions of the policy document to the complainant. The proposal form of policy bearing no. 0098308066 was got signed on 02.05.2008 by the complainant. In the second policy and third policy bearing nos. 0092410472 and 0092412502 and the proposal form dated 020.03.2008. The OP/Insurance Company is bound by the guidelines issued by the Insurance Regulatory Authority (IRDA), but they have not followed any of the guidelines issued by IRDA nor the KYC Norms. The OPs have also ignored the provision of Section 50 of the Insurance Act. The IRDA has also issued guidelines on 1.07.2010 clarifying the position, as to how the charges were to be deducted, while refunding  the amount to the customers at the time of discontinuance of the insurance policies. The complainant also served legal notice dated 27.01.2010, but to no effect. The complainant has, thus, filed the complaint for refund of the premium amount of Rs.1,75,000/- with interest @ 18% p.a from OPs, besides payment of compensation of Rs.50,000/- for mental harassment and Rs.11,000/- as costs of litigation.

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable and hence merits dismissal. It was further averred that yearly premium was of Rs.75,000/- and Rs.50,000/- and Rs.50,000/- in three policies without any obligation on the part of the insurance company and to issue notices or  reminders for renewal premium under the policies, as per contractual terms and conditions. The original policy documents were given to the complainant and they were in possession of the complainant. It was further averred in written reply that complainant is estopped to file the complaint due to his act and conduct. The complainant took policy by filling the proposal from after understanding the features of the policy including benefits, risk and terms and conditions of regular premium 'Unit Gain Plus Gold" plans. It was further averred that the complainant failed to pay the yearly premium of the policies, as per contractual obligation, to be discharged by him. No effort was made by the complainant to revive the policy in question during the revival period of two years from the date of first unpaid premiums and hence the contract of insurance stood terminated. It was further averred that permissible surrender value was paid to the complainant under policy nos.0098308066, 0092410472 & 0092412502 amounting to Rs.12659/-. Rs.10,713/- & Rs.10,712/-, vide cheques no.386278 dated 13.05.2011 (sent vide speed post no.EM360322964IN dated 01.06.2011), 364101 dated 23.03.2011 (sent, vide speed post no.EM34875867IN dated 29.03.2011), 364081 dated 23.03.2011 (sent, vide speed post no.EM348758668IN dated 29.03.2011) and therefore nothing more is payable to the complainant. The complainant had free look period option to opt out of the contract of insurance policy, but he failed to exercise this option. The complex questions of facts and law are involved in the present case, which cannot be adjudicated in summary proceedings by the Consumer Forum. On merits, OPs specifically averred that the policy's terms and conditions were duly explained and duly understood by the complainant before taking them and he filled the proposal forms accordingly, which were accepted by OPs and policy nos. 0092407045 and 0098267157 was issued to him. The original policy documents containing terms and conditions were admittedly received by the complainant along with schedule of the said policy and premium to be paid by the complainant. It was further averred that policies are regular premium policies and not single premium policies, as wrongly avowed by the complainant in the complaint. The OPs further averred that the complainant received the policy documents well in time and has been fully aware about the terms and conditions of the policy and he filed the complaint for the purpose of misleading only The OPs controverted the other averments of the complainant for his entitlement to the amount in question of the policies and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, his affidavit Ex.CW-1/1  along with copies of the documents Ex.C-1 to Ex.C12. As against it, OPs tendered in evidence affidavit of Rajinder Singh Kalsi Zonal Legal Manager of OPs Ex.RW-1/1 along with copies of documents Ex.R-1 to Ex.R-12. On conclusion of evidence and arguments, the District Forum Mohali, dismissed the complaint of the complainant, by virtue of order dated 28.03.2012. Dissatisfied with the order of the District Forum Mohali, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case, as respondent no.3 and 4 are exparte in this appeal. We have also examined the controversy of this case with the aid of evidence on the record. The evidence is required to be evaluated by us on the record to determine the controversy between the parties in this case. The affidavit of  complainant is Ex.CW-1/1 on the record in support of his averments, as pleaded in the complaint. Ex.C-2 is letter dated 07.05.2008 addressed to the complainant for providing total transparency in the business of the OPs. It is recorded in it that OPs offered 15 days free look period, which commenced from the date of receipt of the policy to opt out of the contract of insurance. It is, thus, evident that it was issued on 07.05.2008 to the complainant by the OPs. Ex.C-3 is letter dated 25.03.2008 addressed to Paramjit kaur complainant by the OPs. Ex.C-4 is letter dated 25.03.2008 addressed to complainant. Ex.C-5 is letter addressed to one Amandeep Singh regarding to Unit Grain Plus Gold Size Two. Ex.C-6 letter addressed to Amandeep Singh regarding Product Century Plus.. Ex.C-7 is legal notice dated 27.01.2010 sent to OPs by the complainant. Ex.C-8 is agents commission in insurance policy. Ex.C-9 is guidelines on anti money laundering programme for insurers. Ex.C-10 is guidelines for Unit Linked Life Insurance Products. Ex.C-11 is benefit illustration for Unit Linked Products. Ex.C-12 is notification dated 1.07.2010 issued by IRDA (Treatment of Discontinued Linked Insurance Policies) Regulations, 2010 issued under Section 114A of the Insurance Act 1938 read with Sections 14 and 26 of the IRDA Act, 1999. Ex.C-13 is notification dated 16.10.2002 issued by IRDA. OPs relied upon affidavit of Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Limited Ex.RW-1/1 on the record. Ex.R-1 is proposal form filled by the complainant for taking policy in question on 20.03.2008. Ex.R-2 is driving license of complainant. Ex.R-3 is statement of various bills. Ex.R-4 is Moral Hazard Report. Ex.R-5 is proposal form filled in by the complainant. Ex.R-6 statement of various charges along with growth of the fund expected over the duration of the policy. Ex.R-7 is telephone bill. Ex.R-8 is pan-card of complainant Paramjit Kaur. Ex.R-9 is copy of proposal form. Ex.R-10 is statement of various charges along with growth of the fund expected over the duration of the policy. Ex.R-11 is Moral Hazard Report. E.R-12 is copy of passbook of Bank of India.

6.      From critical evaluation of the above-referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that OPs have specifically pleaded this fact in the written statement, which is supported by affidavit of Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Limited Ex.RW-1/1 that whatever was payable to complainant in accordance with the terms and conditions of the policy and permissible surrender value, has been paid to complainant under policy nos. 0098308066, 0092410472 & 0092412502 amounting to Rs.12659/-. Rs.10,713/- & Rs.10,712/-, vide cheques no.386278 dated 13.05.2011 (sent, vide speed post no.EM360322964IN dated 01.06.2011), 364101 dated 23.03.2011 (sent, vide speed post no.EM34875867IN dated 29.03.2011), 364081 dated 23.03.2011 (sent, vide speed post no.EM348758668IN dated 29.03.2011)  and therefore nothing more is payable to the complainant. This fact remained un-rebutted on the side of the complainant. The stock value, which was permissible under the terms and conditions of the policy has  been paid to the complainant. There is specific pleading of the OPs corroborated by affidavit of Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Limited Ex.RW-1/1 on the record to this effect, which remained un-rebutted by the complainant by any cogent evidence on the record.

7.      We find that the complainant opted for Unit Linked Policy and filled in proposal form Ex.R-1 on the record. It is clearly recorded in the proposal form that the investment risk in investment portfolio is borne by the policyholder. The complainant signed the proposal form in English and whosoever signs the documents in English is supposed to be acquainted with the terms and conditions of the policy  Even policy document has been examined by us, which has  proved it is Unit Linked Policy. The investment in the Unit Linked Policy is speculative in nature and unit purchased are subject to rates of fluctuations in the market rates of their value. The matter has been examined by Hon'ble National Commission has held in case titled as  Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Company and ors, III (2013) CPJ-203 (NC), that the policy having been taken for investment of premium amount, policy taken for investment of the premium in the share market, which is a speculative transaction and the complainant does not come within the purview of consumer, as per the Act. Even on other counts, the complainant is proved to be in possession of the terms and conditions of the policy documents. It is nowhere established on the record by the complainant that they were not sent to him or not received by the complainant. The finding of the District Forum cannot be said to be without any evidence on the record to this effect. The terms and conditions of the policy documents contained the free look period clause of 15 days from the date of receipt of the policy under which complainant could opt out of the terms and conditions of the policy, if he was not satisfied therewith. In addition to that, letter Ex.C-2 has been produced by the complainant dated 07.05.2008, which proved that the free look period of 15 days commenced from the date of receipt of the policy. The complainant cannot back out of the same, as this document produced by the complainant himself is on the record. The complainant, thus, failed to exercise the option of free look period of 15 days from the date of the policy and hence his grievance regarding non-supply of terms and conditions of the policy, cannot be accepted, as canvassed before us. The complainant has not continued with the payment of the premiums and rather committed default thereafter. The policy, thus, stood terminated on account of non-revival of the policy by the complainant by not paying premiums within stipulated period or within a grace period therefrom, as well. The complainant wants to refund the entire amount by him, which is not permissible, as per terms and conditions of the policy document. The reliance of the appellant on law laid down in Life Insurance Corporation of India versus Bimla Devi III(2009) CPJ 370 (NC) has been examined by us, but the cited authority is distinguishable from the fact situation of the case and cannot be of any avail to the appellant in this case. Similarly, the appellant relied upon the judgment of our State Consumer Commission in First Appeal no.1006 of 2011 in case titled as Sukhwinder Singh versus  The Manager Aviva Life Insurance and others, decided on 07.06.2013, we find that this authority is also on different factual matrix of the case and would not be any help to the appellant. The value of the units depends on fluctuation in the market rates and sometimes it rises and sometime it falls, as per fluctuations prevailing in the market.

8.      The next point is as to whether the complaint is barred by time or not, we find that previous complaint was filed in the year 2010 and it was withdrawn on 13.10.2011 with permission to file a fresh complaint. The present complaint was filed on 14.11.2011. The period of limitation is to file the complaint within two years. Three cheques bearings nos.386278 dated 13.05.2011of Rs.12659/-, 364101 dated 23.3.2011 of Rs.10713/- and cheque bearing no.364081 dated 23.03.2011 of Rs.10712/-. The above-said two cheques were sent to the complainant on 23.03.2011 and one on 13.05.2011, hence it cannot be said that complaint is barred by time.

9.      The next submission of the appellant before us is that as per the notification dated 01.07.2010 in the matter of discontinued linked Insurance Policy Regulation 2010, the OPs could have deducted the amount, as specified under Clause 7 of this notification. Consequently, the OPs have already issued the amount to the complainant and if OPs have issued less amount to complainant than in that case, as per clause 7 of this notification Ex.C-12 on the record, the complainant can claim the arrear amount, if any due, from the OPs on the basis of this notification.

10.    In the light of our discussion, we have no ground to interfere with the order of the District Forum Mohali dated 28.03.2012 and same is hereby affirmed under challenge in this case. Finding no merit in the appeal, the same is hereby dismissed.

11.    Arguments in this appeal were heard on 30.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                                                                           (J.S GILL)

                                                                             MEMBER

October 8,  2015.                                                                 

(ravi)