O R D E R

Sri. P. Satheesh Chandran Nair (President): 

                The complainant filed this complaint before this Forum u/s.12 of the C.P. Act for getting reliefs against the opposite parties.

                2. The case of the complainant is as follows:  The complainant is a retired Deputy Transport Commissioner of Kerala State and leading a retired life.  The complainant purchased two insurance policies from the opposite parties with Policy Nos.0083963500 and 0096518603 for a period of 10 years tenure and for a total premium of Rs. 1 lakh each.  The complainant remitted Rs. 50,000/- each for both the policies and subsequently the premium was reduced to Rs.25,000/- each.  The complainant remitted the said premium on 04.02.2009 and 04.02.2010 for both the policies.  According to the complainant, he invested his hard earned money of Rs. 2 lakhs to both the policies and the opposite parties assured that the said policies was for 3 years and also assured that the total amount shall be withdrawn by surrendering after 5 years.  The opposite parties offered a 40% return on surrendering the said policies after lapse of time period or a minimum of 20% at least.  The complainant again stated that after the lapse of 5 years and on maturity the complainant tried to surrender both the policies on 22.05.2014.  At that time, the policy bearing No.0083963500 and policy No.0096518603 are having a balance amount of Rs.79,166/- and Rs. 68,000/- respectively.  According to the complainant, it is against the offer, covenant and the complainant suffered loss.  On 21.05.2014 the complainant wrote a letter to 2^nd opposite party describing all this matters.  In a reply it is inform that all these policies were under the scheme of  ‘Century Plus’ and the commission rate were comparatively low compared to other policies and this funds which raised by collecting the premium from insurers are handled by company.  On 21.05.2014 two reply letters were received by the complainant in which it is explained that the complainant has availed single premium policy and not as stated by the complainant.  The complainant again stated that the opposite parties clearly cheated and he invested his hard earned money in the insurance policy as per the offers and assurance given by the opposite parties.  The 2^nd opposite party was deceived the complainant and as a result 1^st and 2^nd opposite parties are equally and severally liable for the act of deficiency in service in this aspect.  The complainant again stated that the opposite parties are committed mistake and defects as per the law of torts also.  As per the complainant the transaction and execution of policy agreement was effected at the residence of the complainant, the cause of action of the case arose within the jurisdiction of this Forum.  The complainant is requested for return of an amount of Rs.2 lakhs along with its growth at the rate of 20% and a compensation of Rs.20,000/- may also allowed against the opposite parties.

                3. The complainant filed the above stated complaint with documents before the Forum we peruse the petition and the document before us and issue notice to the opposite parties for their appearance.  The opposite parties appeared before the Forum and filed version as follows:  According to the opposite parties, the complaint is not maintainable either in facts or in law and the allegation made in the above complaint is false.  The complaint is misconceived, misconstrued and contrary to the contract between the parties and untenable in law and deserves to be dismissed.  The opposite parties further stated and admitted that the complainant is the policy holder of 2 policies mentioned in the complaint and remitted Rs.1 lakh each for the said policies and the complainant has withdrawn an amount of Rs.12,000/- from the Policy No.0096518603. According to the opposite parties, the complainant had availed the said policy after agreeing to abide with the policy terms and conditions and as declared by him in the proposal form.  The opposite parties categorically stated that the complainant is well aware of the terms and conditions of the said policy and also well aware of the benefits on the basis of the policy agreement and also admitted that the complainant’s policies are still in force and the complainant is at liberty to continue the policy by paying regular premium.  The opposite parties again stated that when the complainant approached them on 21.05.2014 on surrendering the policy they are ready to pay the fund value after deducting the service charges which is specifically stated in the policy certificate.  The policy terms and conditions towards the surrender of the policy was also quoted in the version by the opposite parties.

1. The Surrender Value, if any, is payable only after first three policy years.

2. The Surrender Value payable will be equal to the Regular

    Premium Fund Value less the Surrender Charge, if any (as    

   per Annexure B) plus Top Up Premium Fund Value, if any.

         4. The opposite parties again contended that if the terms of the policy bond were not acceptable to the complainant he has to avail an option of 15 days, ‘free look period’ as per the policy bond and in accordance with the Provision of Sec.6(2) of the IRDA 2002 Regulation.  According to the opposite parties, the complainant has at no point of time raised any grievances before the opposite parties for more than 5 years.  The opposite parties again stated that this complainant is an insurance consultant and he is well aware of the policy terms and conditions as an agent of the above said policy.  The complainant himself received the first year commission and also the renewal commission.  The details of the commission paid to the complainant are also stated as follows:

       5. According to the opposite parties, the policy issued to the complainant was a Unit Link policy and it is governed by the provisions of law of insurance with regard to the Unit Linked Insurance policy and the risk of investment in the market under the policy has to be borne by the policy holder.  As per the policy conditions, the opposite parties are not liable to return Rs. 2 lakhs as prayed through this complaint.  According to them, the complainant is an educated person and is aware of insurance law and other policy conditions and more over he is working as an agent of this kind of insurance policies.  The opposite parties again contended that there is no deficiency in service or unfair trade practice committed on their side and it has to be dismissed on the principle of  “Allegatio contra factum non est admittenda’”.

        6. We peruse the complaint along with the records produced by the complainant and the version of the opposite parties and raise the following issues:

1. Whether this complaint is maintainable  before the Forum?
2. If it is maintainable, whether the opposite parties committed any deficiency in service or unfair trade practice?
3. Regarding cost and Relief?

        7. In order to prove the case of the complainant, complainant himself examined as PW1 and filed a proof affidavit in lieu of chief examination.  As per the proof affidavit, he pleaded in terms of his complaint.  At the time of examining the complainant as PW1 through him Exts.A1 to A9 were marked, except the above said evidence the complainant has not adduced any further evidence.  On the other side, after closing the complainant’s evidence the 1^st opposite party field a chief affidavit in lieu of chief examination and he is examined as DW1 and through him Exts.B1 to B4 were marked.  Ext.A1 is the attested copy of Policy Certificate No.0083963500 issued by the opposite parties to the complainant.  Ext.A2 is the attested copy of Policy Certificate No.0096518603 issued by the opposite parties to the complainant. Ext.A3 is the attested copy of First Premium Receipt dated 04.02.2008 in policy No.0083963500 issued by the opposite parties to the complainant.  Ext.A4 is the attested copy of First Premium Receipt dated 09.04.2008 in policy No.0096518603 issued by the opposite parties to the complainant.  Ext.A5 is the photocopy of the Statement of Account of Policy Certificate No.0083963500.  Ext.A6 is the photocopy of the Statement of Account of Policy Certificate No. 0096518603.  Ext.A6(a) is the photocopy of the Statement of Account as on 11^th June, 2014.  Ext.A7 is the photocopy of Brochure.  Ext.A8 is the attested copy of letter dated 21.05.2014 send by the complainant to the 2^nd opposite party.  Ext.A9 is the photocopy of “The Power of SIP”.

                8. On the other hand, for the evidence of the opposite parties DW1 is examined and Ext.B1 to B4 were marked.  Ext.B1 is the photocopy of the Channel Detail Screen.  Ext. B2 is the photocopy of the Commission details.  Ext.B3 is the photocopy of the details of Century Plus Policy.  Ext.B4 is the photocopy of the proposal form for Life Insurance.  After closure of evidence, both sides were heard.

                9. Point No. 1 to 3:- For the sake of convenience we are considering Point No. 1 to 3 together.  It is seen from the evidence that the complainant has a definite case that he suffered a huge loss of time and hard earned money by investing in the above said insurance policies and the investment was caused because of the assurance and words of the opposite parties.  When we peruse the evidence adduced by both side, it is clear that the 1^st opposite party is the insurer and the complainant is the insured of both the policies mentioned above and it is also admitted that both the policies are alive, then the question to be considered is whether the opposite parties committed any deficiency in service against the complainant.  It is also evident to see that the complainant himself is an agent of 1^st opposite party and he received the commission of the questioned policies, i.e. Ext.A1 and A2.  Moreover, it is to see that the complainant is not a layman but functioning as an agent of this insurance company and through him so many persons are joined as insured in this company.  Though Ext.A3 is marked as a document in favour of the complainant it is only a repetition of Ext.A1 document.  Hence evidence of Ext.A3 can be discarded in this case.  Though the complainant in this case pleaded the ignorance of certain terms and conditions of this insurance scheme that defence of the complainant cannot be sustained considering his experience in this field.  It is interesting to see that as an agent of the 1^st opposite party he worked and helped so many persons to joined the insurance scheme of 1^st opposite party.  As per Ext.A4, it is to see that he paid the first premium of Rs.50,000/- on 09.04.2008.  As per Ext.A5, A6, and A6(a) it is an evidence to see the statement of account of payment to the premium and its fund value.  Regarding this Ext.A5, A6 and A6(a) no dispute raised from any side.  As per Ext.A7, the complainant himself adduced evidence of the terms and conditions etc. of the insurance policies.  Ext.A8 is a letter addressed to the insurer by the insured on 21.05.2014.  The content of this letter is an evidence to show that he realize the present fund value of his premium and he however want to escape from the loss.  Though Ext.A9 is marked as Ext.A9, it is marked the marking is subject to proof.  Hence the evidence Ext.A9 has not been relied. 

                10. When we peruse the document produced and marked as Exts.B1 to B4 on the side of opposite parties, we can come to a conclusion that the complainant signed a proposal form in favour of the opposite party for both the insurance scheme and as per Ext.B1, it is proved that the complainant is an agent of 1^st opposite party and through Ext.B2 it is clear that the complainant has accepted remuneration as the agent of 1^st opposite party.  When we rely Ext.B3 it is proved that the complainant sold so many policies in favour of 1^st opposite party.  When we rely the deposition of PW1 in this case at the time of cross-examination he deposed, “എൻറെ Policy Unit Linked Policy ആയിരുന്നു.  ടി  policy share market base ചെയ്തിട്ടുള്ളതാണ്.  ആയതിൻ risk കൂടുതലാണ്.  Market-ലെ up and down policy-þയെ ബാധിക്കും.  ഞാൻ 2008 January മുതല്  Bajaj Allianzþൻറെ agent ആണ്.  IRDA-യുടെ licensee 2008 May-യില് എനിയ്ക്കു ലഭിച്ചു”.  As per the this testimony, it is a cogent and conclusive evidence to show that he is an agent of 1^st opposite party and he is well aware of the terms and conditions of the questioned policy.  Moreover, he admitted that he is a licensee of IRDA.  In a question at cross-examination, “Policy surrender ചെയ്യുമ്പോള് അല്ലല്ലോ 20% കിട്ടുന്നത്? ആണ്.  അപ്രകാരമുള്ള documents ഒന്നും ഫോറം മുമ്പാകെ ഇല്ലല്ലോ?  ഫോറം മുമ്പാകെ ഹാജരാക്കിക്കൊള്ളാം”. Though the complainant assured to produce the said document before the Forum neither he produced it nor he take any steps for the production of such a document.  Hence we can come to a conclusion that there is no document which is available to produce as alleged by the complainant.  He again deposed in cross, “Policy holder-ടെ consent ഇല്ലാതെ company-യ്ക്ക് fund ലേക്ക് പണം ഇടാന് കഴിയില്ല എന്നു പറയുന്നത് ശരിയാണ്v? Ext.A5 പ്രകാരം  നിങ്ങള് പണം നിക്ഷേപിച്ചത് Equity Index Fund II-ലേക്ക് അല്ലേ? എനിക്കറിയില്ല”.  So it is clear that only with the consent and knowledge of the complainant the opposite party can deposit the money and if so he might have know the scheme of the policy at the time of investment.  As per the evidence of this case we can come to a conclusion that the complainant deposited the amount to this scheme under Equity Index Fund and Asset Allocation Fund etc. and the fund value also may change time to time. 

                11. At the time of cross-examination, the complainant (PW1) admitted that he ‘switch in’ the policy on November 2014 as per Ext.A6 and he has withdrawn an amount of Rs.12,000/- from Ext.A2 policy.  In cross-examination, again he admitted that through Ext.A1 and A2 policy he received commission and he himself is the holder of the policy.  When we peruse the whole evidence of this case we cannot see any deficiency in service on the part of the opposite parties.  The complainant is not succeed to prove the case as alleged.  The Point No.1 is found in favour of the complainant.  But in the light of the above discussions, we found Point No.2 and 3 against the complainant.

                12. In the result, we pass the following orders:

                The complaint is dismissed.  No order of cost.

                Declared in the Open Forum on this the 25^th day of July, 2015.

                                                                              (Sd/-)

                                                            P. Satheesh Chandran Nair,                                          

                                                                          (President)

Smt. K.P. Padmasree (Member - I)      :    (Sd/-)

Smt. Sheela Jacob (Member – II)        :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  P.S. Jose

Exhibits marked on the side of the complainant:

A1 :  Attested copy of Policy Certificate No.0083963500 issued

        by the opposite parties to the complainant. 

A2 :  Attested copy of Policy Certificate No.0096518603 issued

        by the opposite parties to the complainant.

A3 :  Attested copy of First Premium Receipt dated 04.02.2008 in   

        policy No.0083963500 issued by the opposite parties

        to the complainant.

A4 :  Attested copy of First Premium Receipt dated 09.04.2008 in  

        policy No.0096518603 issued by the opposite parties

        to the complainant. 

A5 :  Photocopy of the Statement of Account of Policy Certificate  

        No.0083963500. 

A6 :  Photocopy of the Statement of Account of Policy Certificate

        No. 0096518603. 

A6(a) :  Photocopy of the Statement of Account as on 11^th June, 2014. 

A7 :  Photocopy of Brochure. 

A8 : Attested copy of letter dated 21.05.2014 send by the  

       complainant to the 2^nd opposite party. 

A9 :  Photocopy of “Power of SIP”.

Witness examined on the side of the opposite parties:

DW1  :  Krishnakumar. M.S

Exhibits marked on the side of the opposite parties:

B1 :  Photocopy of the Channel Detail Screen. 

B2 :  Photocopy of the Commission details. 

B3 :  Photocopy of the details of Century Plus Policy. 

B4 :  Photocopy of the proposal form for Life Insurance.   

                                                                                   (By Order)

                                                                                                                                  (Sd/-)

                                                                                                                   Senior Superintendent.

Copy to:- (1) P.S. Jose, Jose Villa, Kavumbhagom,

                    Kavumbhagom Village, Thiruvalla Taluk,

                    Pathanamthitta – 689 102.

               (2) Bajaj Allianz Life Insurance Co. Ltd., G.E. Plaza,

                    Air Port Road, Yerwada, Pune – 411006,

                    Maharashtra.

               (3) Manager, Bajaj Allianz Branch Office,

                    Kottayam – Dvn-2, Kanjikuzhy, Muttambalam.P.O.,

                    Kottayam – 4, Pin – 686 004.

               (4) The Stock File.