BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 158/2011 Filed on 19.05.2011

Dated : 29.02.2012

Complainant :

Vijayan. M, V.V. House, Cheenivila, Koovalassery P.O, Thiruvananthapuram-695 512.

(Party in person)

Opposite parties :

1. Bajaj Capital, Chakrath Towers, Opposite Q.R.S, Karamana P.O, Thiruvananthapuram.

    

(By adv. R.S. Mohanan Nair)

2. Kotak Mahindra, Old Mututal Life Insurance Ltd., Kotak Infinity, 5^th Floor, Zone-2, Bldg No. 21, Infinity Park, Opposite Western Express Highway, Gen. AK Vidya Marg, Malad East (E) , Mumbai – 400 097.

This O.P having been heard on 31.01.2012, the Forum on 29.02.2012 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant, after his retirement from military service on 31.01.2008, had taken policy of the 2^nd opposite party, Kotak Mahindra, Old Mutual Life Insurance Ltd., on advice of the 1^st opposite party, Bajaj Capital, that complainant had remitted three premia on 16.02.2008, 16.02.2009 and on 16.02.2010, that after three years of the issuance of the said policy complainant surrendered the said policy to 2^nd opposite party, upon which he got back only Rs. 56,827.32 out of the premia paid of Rs. 75,000/-. Hence this complaint to get back the balance amount of Rs. 18,172.68 and other benefits.

1^st opposite party filed version contending interalia that complaint is false, frivolous and vexatious one, that 1^st opposite party, as an insurance broker, does not have any right, authority or even a duty to cancel life insurance policy of the complainant, as the same is prerogative of insurance company only, that refund of insurance premium amount is outside the scope of the 1^st opposite party, that policy was issued by the 2^nd opposite party and that as the 1^st opposite party is a separate legal entity, they are not responsible for the acts of 2^nd opposite party, that complainant availed life insurance policy, namely Flexi Plan of the 2^nd opposite party after understanding the terms and conditions of life insurance policy, that the role and responsibility of the 1^st opposite party as a broker has been also mentioned in acknowledgement receipts dated 07.02.2008, 16.02.2009 and 16.02.2010, that 1^st and 2^nd opposite party never acted on the basis of master-servant or principal-agent relationship, that there is no cause of action against 1^st opposite party, nor is there any deficiency in service from 1^st opposite party. Hence 1^st opposite party prayed for dismissal of the complaint with cost.

2^nd opposite party has not turned up nor filed version. Hence 2^nd opposite party remained ex-parte.

The points that arise for consideration are:-

1. Whether there is deficiency in service on the part of opposite parties?

2. Whether the complainant is entitled to any reliefs?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P4. 1^st opposite party has not filed proof affidavit. 2^nd opposite party has not turned up to contest the case.

Points (i) & (ii):- It has been the case of the complainant that after his retirement from the military service on 31.01.2008, upon the insistence and instigation of the 1^st opposite party, complainant had taken policy of the 2^nd opposite party and had remitted three premia on 16.02.2008, 16.02.2009 and on 16.02.2010, through 1^st opposite party. It has been contended by the complainant that after three years of the issuance of the policy, he had approached the 1^st opposite party on 17.03.2011 and surrendered the original policy along with requisite documents, that as directed by the 1^st opposite party when complainant approached 2^nd opposite party's branch office at Pattom, they informed the complainant that they would send the policy other documents to Kotak Life Insurance at Mumbai, that thereupon the 2^nd opposite party sent a sum of Rs. 56,827.32 to him. The very case of the complainant is that though he had remitted Rs. 75,000/- towards premia he got back only Rs. 56,827.32 and still he is entitled to get Rs. 18,172.68 and other benefits from the 2^nd opposite party. Complainant's evidence consisted of oral testimony of the complainant and Exts. P1 to P4. Exts. P1 & P2 are acknowledgement receipts of Life and General Insurance applications issued by Bajaj Capital Insurance Broking Ltd. On perusal of Ext. P1 it is seen that insurer's name is Kotak Life Insurance Co. Ltd. Premium is Rs. 25,000/-, Kotak Life insurance policy No. 889089, name of plan-Flexi plan, policy terms – 15 years, premium frequency yearly, sum assured Rs. 1,00,000/-. Ext. P3 is the copy of the document showing surrender value payable issued by Kotak Life Insurance. A perusal of Ext. P3 reveals that 2^nd opposite party has processed surrender request on 22.02.2011 and surrender value payable came to Rs. 56,827.32. Ext. P4 is the copy of the statement of account given by SBT, Thirumala to complainant showing an amount of Rs. 56,827.32 credited in his account. Complainant has admitted the receipt of the said amount from 2^nd opposite party. Complainant has not furnished the copy of the policy certificate with terms and conditions in order to describe the nature of the flexi plan. Further complainant has no case that he had received Rs. 56,827.32 under protest, nor has the complainant sent any letter to 2^nd opposite party claiming balance amount. Complainant has never pointed out from Ext. P3 statement of account the manner in which 2^nd opposite party has committed deficiency in service. Though the 2^nd opposite party remained exparte, onus is on the complainant to establish his case that 2^nd opposite party has committed deficiency in service in dealing with the said policy. At this juncture it should be mentioned that complainant never furnished the policy certificate. Admittedly, from Ext. P1 to P3 the name of plan is Kotak Flexi plan-II. This Forum had dealt with the similar cases in connection with Kotak Flexi Plan thereby it has come to our notice that the said policy provides a combination of risk cover and investment that the said policy is a unit linked one in which fund management would entirely depend upon the market fluctuations and the performance of the Fund invested in the market would never be in the hands of the opposite party. As the said policy provides a combination of risk cover and investment, the dynamics of the capital market have a direct bearing on the performance of the unit linked policy. In such a policy the investment risk in investment portfolio is borne by the policy holder. Depending upon the performance of the unit linked funds chosen, the policy holder may achieve gains or losses on his/her investments. Further, in such a policy there is a provision of 'free look period'. Accordingly the insured has the right to review the policy terms and conditions and cancel his policy within the 'free look period' from the date of receipt of the policy document. If insured cancelled his policy within the free look period, the premium he had paid would be refunded after adjusting deduction of charges if any. In this case complainant never returned the policy within the free look period, thereby both the parties are bound by the contents of the policy. Onus is on the part of the complainant to establish the case with cogent and clinching evidence. There is no material on record to attribute any deficiency on the part of the opposite parties. In view of the foregoing discussions and evidence available on record, we are of the considered opinion that complaint has no merits at all, which deserves to be dismissed.

In the result, complaint is dismissed. Parties are left to bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of February 2012.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

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C.C. No. 158/2011

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vijayan. M

II COMPLAINANT'S DOCUMENTS :

P1 - Acknowledgement receipt of life and general insurance

applications dated 16.02.2009

P2 - Acknowledgement receipt of life and general insurance

applications dated 16.02.2010

P3 - Policy No. 00889089/PL dated 05.03.2011 issued by 2^nd

opposite party.

P4 - Statement of account No. 57028024359 dated 18.05.2011

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT

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