DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 67/2021

Date of Institution: 05.03.2021

Judgment Reserved on: 26.06.2024

Judgment Passed on: 26.06.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

1. By this judgment the Commission would dispose off the complaint of the complainant alleging deficiency in not providing the original policy bond so as to exercise the freelook period.
2. Brief facts as stated by the Complainant in the complaint are that on the assurance of the agent of the OP, the complainant took two policies from the OP, i.e. Policy No. 5018469774 (Bond No.-1) in the name of the complainant and another Policy No. 5018707769 (Bond No.-2) in the name of his wife Mrs. Poonam and paid Rs.1,04,660.78/- as first premium on 24.01.2019. The complainant did not receive the original policy bonds and made a complaint on 17.10.2019 at the OP’s office but no response was received & thereafter he sent an email on 14.11.2019 and subsequently the complainant was advised to collect the original policy bond from OP’s office at Jhandewalan New Delhi. Accordingly the complainant visited the office of OP and was handed over the policy bond i.e. Policy No. 5018707769 (Bond No.-2) which was in the name of his wife and the other policy bond which was of the complainant himself was not given and he was told to wait for sometime. It is further stated that policy bond no. 2 was never handed over to complainant, however on the receiving of Bond No.1 which pertained to the complainant’s wife, she made a request for cancellation of the policy and claimed the refund of the paid amount and that amount was ultimately received by his wife on 15.01.2020 and therefore the present complaint relates to the Policy No. 5018707769 (Bond No.-2) original policy bond of which was never handed over to complainant. The complainant made another complaint on 16.01.2020 demanding original policy bond & for cancellation of policy which was subsequently rejected vide email dated 30.01.2020 by conveying that Policy No. 5018469774 (Bond No.-1) was dispatched on 21.01.2019 by Speedpost and Policy No. 5018707769 (Bond No.-2) was dispatched on 07.03.2019 and notice for cancellation of policy was required to be sent within 15 days of having received the policy bond which was not sent by the complainant and since request for cancellation has been made on 16.01.2020, the OP is unable to accept the request & as such the claim was rejected. Complainant further submitted that the said rejection of the request of the complainant to provide the original policy bond was unjust as it is apparently clear that when a letter was written in October 2019 w.r.t. not receiving the policy bonds then the original bond was told to be collected from their office at Jhandewalan New Delhi & if this contention of the OP, that they had already sent both the policy bonds is accepted, then how the original bond of his wife was given to him subsequently from Jhandewalan Office is a contradictary fact and simultaneously relying on the same fact, he submitted that the original policy bonds was never sent by the OP and therefore rejection of the request by the OP amounts to deficiency in service and he accordingly filed the present complaint thereby seeking directions to the OP that the OP be directed to cancel the policy bond and refund Rs.1,04,999.54/- alongwith compensation and litigation charges of Rs.50,000/- with interest @18% p.a.
3. It is further stated that not only this, after receiving the bond no. 2 of his wife he made a request for cancellation of the policy which was cancelled and even the amount was refunded to his wife and therefore the averment of the OP that original policy bond was returned or sent to the complainant is without any merit and further the complainant on 13.05.2020 received several documents including duplicate policy bond which was never asked for and therefore this is another ploy of OP which establishes the deficiency in service by the OP and therefore he files the present complaint.
4. The OP was served and has filed its written statement thereby stating various facts as to how the policy is issued, what is the mechanism of grievance redressal system on the part of OP, how the same is decided, what are the basic key features of the policy and the general practice being adopted by the complainant prior to and after the issuing of the policy and further making a specific phone calls to the proposer so as to give complete satisfaction but all these averments are not much relevant as far as merits are concerned. However, it is further submitted that in the present matter the policy holder did not invoke the freelook period within 15 days of the alleged discrepancies made therein and a complete/duly information is given which is reproduced herein below;

5. It is further submitted that no request for cancellation a policy was received from the policy holder during the feelook period and first complaint by him was made only in October 2019 i.e. after about 9 months, alleging mis-selling of the policy and also that he did not receive policy documents and seeking cancellation of the policy. It is further submitted that respondent is neither aware of nor privy to the communication in between the policy holder & the person who has sold the policy and denies the facts as to what has been conveyed by alleged agent and what has been understood by the complainant and it is submitted that written document i.e. policy was issued to the complainant which was sent/issued to him on 24.01.2019 & was dispatched on 28.01.2019 which was delivered on 01.02.2019 and it was sent as per the details mentioned in tabular form herein above.
6. It is further submitted that the complainant is prudent & educated person & is supposed and has to be cautious for investing the money with any financial institution and if the bond was not received by him, he should not have waited for about 9 months from the date of premium paid as admittedly the first complaint was made after about 9 months i.e. w.r.t. not receiving the policy bond. It is further stated that even if the complainant has not been duly informed w.r.t all terms & conditions by the so called agent but the complainant had voluntarily opted for the policy of the respondent and all assertion w.r.t. misrepresentation as alleged has to be understood by the complainant before investing the money and therefore the company was well within its right in not accepting the request of the complainant for cancellation of the policy or refund of the amount. The first complaint was not within the freelook period, the complaint is based on concealment of material facts, the same is without any cause of action, no deficiency can be alleged against the OP in view of the facts explained herein above as it has sent the policy document to the complainant & as per law he had to follow all such terms & conditions and since the cancellation of policy was permissible only within the first 15 days period after having received the policy bond which was not exercised by the complainant and complaint is therefore liable to be dismissed.
7. It is further submitted that if any agent does not convey proper facts then that agent does not act on behalf of the insurance company even otherwise he acts as an agent of the insured by filling all such information which are provided by the insured and although company has various agents and such agents have also SMC insurance brokers, whose name is reflected in the proposal form and such insurance brokers are independent entities licensed by  the Insurance Regulatory & Development Authority (IRDA) and therefore if any fact has not been duly explained by so called agent, then after receiving the policy the complainant has to go through the details of each facts and thereby can inform the insurance company w.r.t. any mis-statement & therefore since it was not done by the complainant within specific period, there is no deficiency on the part of OP & therefore complaint of the complainant is liable to be dismissed and this Commission does not have any jurisdiction to entertain such facts.
8. As far as merits are concerned, it is stated that respondent is neither aware nor privy to the communication made in between the policy holder or the alleged insurance agent and in this present matter the policy was taken by the complainant through SMC insurance broker which is third party insurance broker and it has not been added as a party & therefore the OP cannot be held liable for any such alleged mis-statement by such broker. It is denied that policy bond has not reached the complainant as alleged and since the first complaint was made after about 9 months complainant has no right to invoke the freelook period after 9 months. As far as handing over the bond of the wife of the complainant is concerned it is submitted that policy bond of the wife of the complainant was handed over to the complainant in good faith & non receiving of bond by complainant is merely an excuse to get out of the policy’s terms & conditions. It is specifically denied that the complainant was asked to wait for his own policy bond as alleged, cancellation of the policy of the wife of the complainant and refund of amount thereof is stated to be matter of record & it is reiterated that even such cancellation of policy and refund of amount was in good faith. The other contents of the complaint are denied and contents of preliminary objections are reiterated. The OP alongwith its reply has filed proposal form, benefit illustrations, proof of dispatch/delivery and email exchanged.
9. Before coming to the replication part it is necessary to mention that the only document filed by the OP w.r.t. proof of dispatch/delivery is at page no. 37 of the written statement filed by OP.
10. Now coming to the replication part. The complainant has filed rejoinder thereby denying the contents of the preliminary objections or preliminary submission of OP word by word and reiterated the contents of the complaint. Coming to the specific para i.e. para-5 of the written statement where OP submits that the policy bond of the wife of the complainant was given to him and amount was refunded in good faith the complainant has denied this fact specifically and has reiterated the facts of the complaint and it is prayed that complaint of the complainant be allowed.
11. The complainant has filed his own evidence by way of affidavit and OP has filed affidavit of evidence of Ms. Snehal Sawant, Senior Manager, Legal. Both the parties have also filed their respective written arguments. The Commission has heard the arguments and perused the records.
12. The written statement of the OP including preliminary submission and preliminary objections and then the reply on merit is running into 19 pages and further documents are running upto 40 pages. The issue in this matter is only limited i.e. whether the policy bond was sent to the complainant by OP in January 2019 i.e. on 28.01.2019 as alleged and what is the documentary evidence in support of that fact. What the OP is, how much it has the potential in its business, what is the mechanism being adopted by the complainant to fulfil its business aspirations and how it works to redress the complaints may be and would have been a relevant fact provided there would have been specific requirement of such facts. Here, the issue only is as to whether the policy bond was in fact sent to the complainant and it was received by complainant and ironically no such document has been filed on record by the OP. Alongwith written statement at Page no. 37 the alleged proof of dispatch/delivery is filed and page no. 36 relates to the wife of the complainant. Page no. 37 has no details as to whom it was sent and with whom this relates to. There is no particular on page no. 37 which may prove that policy was sent to complainant in January 2019 or even to show prima-facie that it relates to the complainant. Otherwise at page no. 36 as per index of written statement it is specifically clear that it relates to Mrs. Poonam wife of the complainant.
13. Further the complainant states that he had not received the policy bond & when he wrote a letter in October 2019 he was informed to collect the copy of the original policy bond from Jhandewalan Office. This averment has not been denied by the OP in specific words, not the averment of the complainant that he visited the office of OP at Jhandewalan Office, Delhi is denied and even policy bond of his wife was given to him but his own policy bond was not given to him but this fact is not denied by OP specifically. However he was asked to wait for, that fact has been denied by the OP specifically and simultaneously it is stated that policy bond was given to complainant which pertained to his wife, in good faith. If the policy bond of the wife of the complainant has been sent earlier by the OP as is being alleged by the OP then how that policy bond can be given by OP again, which was given at Jhandewalan Office to the complainant & this fact has not been clarified by OP. Merely saying that it was given in good faith does not help the OP to prove its contention and if that policy bond i.e. of the wife of the complainant was given in October 2019 in good faith, this policy bond of the complainant should also have been given to him in good faith. Admittedly complainant had two policies i.e. one for himself and one for his wife. Both having same insurance policy, same date of issuing, both have been obtained through same broker and emails were written to the OP w.r.t. both the policy bonds. One admittedly has been given to the complainant which pertains to his wife allegedly in good faith & even the amount has also been refunded w.r.t. the policy bond of the wife of the complainant, although again in good faith and if good faith could have been exercisable w.r.t. the one policy bond which pertains to the wife of the complainant, either that good faith would have been shown for the complainant also or a specific documents should have been filed on record by which OP should have been able to prove that the policy bond was sent through speed post having particular number of that speedpost, accompanied with the tracking report and then giving the reply to the complainant at the first instance that policy bond has already been issued and delivered to the complainant on particular date alongwith copy of such tracking report as per record. It is not done rather the OP at the first instance directed the complainant to visit at Jhandewalan Office to get the policy bonds.
14. Mentioning so many judgments on each and every aspects w.r.t. good faith bonafide, terms & conditions of the policy, mechanism of the complainant, although is a good gesture on the part of OP yet the material fact was that OP should have proved as to on which particular date the policy bond was sent to the complainant and on which date the complainant had received it alongwith tracking report and this basic part is missing. The period of limitation qua freelook period of 15 days would only start once the OP was able to prove that complainant has received policy bond on particular date and since that date it is not being proved by the OP, the entire effort of the OP to justify its contention has not been proved. Merely saying that the bond w.r.t. the policy of the wife of the complainant was given in good faith, in the considered opinion of this Commission is an effort to justify the mistake which has been committed by the OP in not sending the policy bond within time to the complainant. Therefore, this Commission is of the opinion that OP has failed to discharge its onus/duty that it had sent the policy bond to the complainant as per the dates mentioned in para-7 of the written statement (tabular form) and since this is not proved by OP the contention of the OP, that freelook limitation period has expired, is also not proved by the OP, as the time to count the freelook period would start only from the date when the complainant has received the policy bond, there the claim of the complainant stands proved that he has not received the policy bond & therefore deficiency on the part of the OP has been proved.
15. The Commission hereby orders as follows;

•  OP would refund Rs.1,04,999.54/- to the complainant with interest @6% p.a. from the date of filing the complaint alongwith compensation of Rs.15,000/- alongwith litigation charges.
• This order be complied with within 30 days from the date of receipt of the order. However if the order is not complied with within 30 days, the OP would pay interest @9% p.a from the date of filing the complaint till the date of actual realization.

Copy of the Order be supplied/sent to the Parties free of cost as per rules.

Announced on 26.06.2024.

File be consigned to Record Room.