FINAL ORDER/JUDGEMENT

Smt. Sahana Ahmed Basu, Member.

This is an application u/s.12 of the C.P. Act, 1986.

Brief facts of the instant consumer complaint are that being convinced, the complainant incepted a Unit Linked Insurance Policy (ULIP) of Rs.60,000/- and paid the said amount by cheque No.02-047-866028 dated 31/03/2008 to the O.P.-1 against money receipt. In February-2010 the 2^nd renewal premium was paid for the continuation of the policy through one Saoli Das vide cheque No.479-588, which was lying with her since long. In the month of August-2008 complainant invested another Rs.50,000/- in the name of his son against money receipt dated 19/09/2008 but this policy was mis-sold by telling single term (one year) policy.  Again in the month of October-2008 complainant opted two single premium policies for Rs.24,000/- each and receipts were issued accordingly. Surprisingly in the month of January-2009 an amount of Rs.48,000/- and Rs.1858/- was deducted through his credit card towards premium of the O.Ps. and he had to suffer mental pressure and mental torture to settle this transaction by paying huge penalty.  Thereafter, complainant found that his credit card is missing from his custody. The complainant came to know that by practicing fraud the O.Ps. has opened a policy in his son’s name keeping him in dark without taking any consent from him. A complaint was lodged with the local P.S. and the with the card issuing bank also but to no effect. It is the case of the complainant that he has opted several policies being influenced by the assurance of O.P.-3. On several occasions complainant requested the O.Ps. for cancellation of the policy No.500-5166714. O.Ps. did not handover the policy documents  and as per the advice of the Branch Manager of the O.P. insurance company he deposited Rs.18,000/- and Rs.32,000/- for renewal of the policies. On several persuasions the O.P.-3 handed over 07 nos. of policy documents of the complainant and he found that in most of the proposal forms were incorrect and the signatures of the complaint were forged. There was no parity in the policies what he was promised at the time of opening of such polices. Complainant requested the O.Ps. to rectify the discrepancies of the policies but the O.Ps.-2 and 3 refused to do the same. Being aggrieved the complainant approached before the Grievance Redressal cell of the O.Ps. for refund of entire invested amount but such Redressal Cell refused the prayer and advised the complainant to approach before the Insurance Ombudsman. Accordingly, the complainant approached before the Insurance Ombudsman and on 1/11/2016 his prayer was dismissed. Finding no other alternative, the complainant has filed the instant consumer complaint praying for a direction upon the O.ps.  to refund the invested amount and for other reliefs.

O.Ps.-1 and 2 have contested the case by filing a joint W.V. assailing the maintainability of the complaint as well as denying and disputing the allegations against them. The case of the contesting O.Ps. is that the present complaint has no cause of action. The complaint is filed after lapse of three years and s liable to be dismissed. Another case of the O.Ps.-1 and 2 is that the unit linked policy holders cannot be treated as consumer as such investment is commercial purpose. Moreover, all the policies are already terminated and the risk stood covered for the priod for which premium had been paid. That apart, there was a free look period of 15 days and the complainant should have raised his objection, if any, within the said period. Complainant had availed the service from the O.P.-3 and as such allegation of mis-selling of policy cannot be sagged off upon the O.Ps.-1 and 2. The O.Ps.-1 and 2 have acted as per the mandate given in the proposal forms, which have been duly signed by the complainant and all the terms and conditions (IRDA approved) are clearly mentioned in the policy documents and complainant is well aware about such terms and conditions in respect of the policies. Further case of the O.Ps.-1 and 2 is that they have received 08 nos. of proposal forms of complainant and his son. They issued 06 nos. of policy documents. One policy was cancelled on medical, health and other grounds and another was transferred to other policy numbers. Intimation letter dated 24/09/2008 in this regard was sent to the complainant. O.Ps. Two nos. of policies have lapsed for non-payment from the 3^rd premium. Termination letters in regard to two nos. of policies were sent on 04/10/2012 26/11/2012 along with cheque Nos.110484 and 116651 for amount of Rs.13,919.90 and Rs.27,225.29 respectively towards surrender value which were not cleared till date.  The renewal premiums in respect fo two policies were not received by the contesting O.ps. and hence those were terminated and lapsed and as such no benefit were payable as per the terms and conditions of those policies. Hence, O.Ps.-1` and 2 have stated that there is no deficiency in serviced and any unfair trade practice on the part of the contesting O.Ps. Thus, O.Ps.-1 and 2 prayed for dismissal of the present complaint.

In spite of service of notices neither the O.Ps.-3, 4 and 5 appeared nor did they file any W.V. to contest the present consumer complaint. As such, the case against the O.Ps.-3, 4 and 5 has proceeded ex-parte.

On pleadings of the parties following points are come up for determination –

1. Whether there is deficiency in service on the part of the O.Ps.
2. Whether the O.Ps. indulged in unfair trade practice.
3. Whether the complainant is entitled to get relief or reliefs as prayed for.

Decision with Reasons

Points No.-1 to 3.

            All the points are taken up together for the sake of convenience and brevity in discussion.

            Both the parties have tendered evidence supported by affidavit and replied to the questionnaires set forth by their adversaries. Ld. Advocate for both sides advanced their arguments through proper procedure.

            Despite service of notices, O.Ps.-3 to 5 did not appear to contest the case. Therefore, the case against the O.Ps.-3 to 5 has proceeded ex-parte.

            There is no doubt that the complainants incepted different insurance policies (ULIP) of the O.Ps. by investing Rs.3,50,000/- through the authorized agent i.e. OP-3. Ld. Advocate for complainants argued that some of the policies were mis-sold by misleading as well as by adopting improper method.  The complainants had approached before the Insurance Ombudsman but the Insurance Ombudsman dismissed the matter  on the ground that they have neither the jurisdiction nor  wherewithal to cause investigation into such complaint.

            On perusal of the record it appears to us that the complainants took several attempts to resolve the problem. Complainant-1 wrote several letters to the higher officials of the O.Ps.-1 and 2 for refund of money and to cancel the policy being No.500-2633427 issued on 07/01/2009, which was issued by adopting unfair means as well as by forging the signature by the authorized agent of O.Ps.-1 and 2 i.e. O.P.-3. Moreover, in regard to policy No.500-5166714 issued on 26/02/2010, complainant-1 requested to refund the entire deposited sum. On 24/04/2012 being aggrieved by such irregularities and discrepancies in the policies, complainants requested to the Grievance Cell of the O.Ps. to refund all the deposited money. Surprisingly, O.Ps. turned a deaf ear to all such requests as well as the grievances of the complainants in regard to said irregularities and discrepancies. All such acts on the part of the O.Ps., lead us to reckon the gross deficiency on their part. 

            Fact also remains that despite receipt of summon none came from the side of the O.P.-3  to contest or contradict or controvert the version of the complainant.  The Evidence on Affidavit filed by the complainant remains unchallenged and uncontroverted by the O.P.-3.  In absence of any contrary and controverting materials on record and having regard to the documents on record we find that a mischievous role has played by the O.P.-3 . O.P.-3 was the mediator between the complainant and O.Ps.-1 and 2 and she had created misconception between them. O.Ps.-1 and 2 enjoyed the invested money of the complainant which was collected by the O.P.-3 to upgrade her position in the company of O.Ps.-1 and 2. As such, O.Ps.-1 and 2 cannot escape from their liability to monitor their agents and men.

            It has been argued by the Ld. Advocate for the contesting O.Ps.-1 and 2 that the unit linked policies cannot maintainable in the Consumer Forum. On the contrary, Ld. Advocate appearing for the complainants has shattered such averment by citing a decision of the Hon’ble National Commission  in the case of Paramjit Kaur Vs. Aviva Life Insurance Co. Ltd. where it has been held by the Hon’ble NCDRC that –

“Ram Lal Agarwala Vs. Bajaj Allianz Life Insurance Co. Ltd. & Anr. III (2013) CPJ 203 (NC) – whereas, perusal of aforesaid judgement reveals that in the aforesaid case Unit Gain Super Diamond Policy was taken with Rs.2,00,000/- annual premium for 24 years. Policy in the aforesaid case was for investment purpose whereas, disputed policy is for covering life as well accident benefit and this policy cannot be equated with policy in the case of Ram Lal Aggarwala (Supra). Ld. State Commission has committed error in dismissing complaint as not maintainable  as policy was for investment in speculative business. Ld. Councel for the petitioner has placed reliance on judgement of this Commission in 2012 Law Suit (CO) 606 – Met Life India Insurance Co. Ltd. Vs. Addanki Satyanarayana in which claim for unit linked policy with life insurance was held maintainable before Consumer Fora, though, in that policy maturity value was 2,51,73,756/- and the death benefit was only Rs.5,02,000/- whereas in the case in hand, sum assured was Rs.14,00,000/- along with accidental benefits of same amount. Thus, it becomes clear that complaint filed by the complainant was maintainable before Ld. State Commission and Ld. State Commission committed error in dismissing complaint as not maintainable and appeal is to be allowed.” Thus, the instant consumer complaint is quite maintainable in its present form and in law.

            On perusal of the evidences furnished by both the parties we find that complainants invested their hard earned money with a hope to get financial benefit in future but in view of some discrepancies and irregularities from the end of the O.ps.-1 and 2 and as  per suggestion of the O.P.-3 together with a fear of more loss they stopped payment. In the mean time, complainant attempted to resolve the problems but no positive attitude was shown from the side of the O.Ps.

            That apart, O.Ps.-1 and 2 ought to have given more focus on their authorized agents, who are the face of the insurance company, whether they are working independently or under their control. More so, being an insurance company, O.Ps.-1 and 2 should be more careful and serious over the grievances of their customers and those should be dealt sympathetically because the insured persons deposited their hard earned money with the insurance company with utmost good faith. In this case, we find that doing nothing and giving no consideration to the complainants’ grievances, O.Ps.-1 and 2 terminated  the policies on the ground of non-payment of renewal premium. They did not bother to investigate what is what and this gesture is going to give much glow to the matter of intention to grab the invested money of the complainants. As such, we are of the opinion that it is a clear case of unfair trade practice on the part of the O.Ps. Complainant did not claim any relief against the O.Ps.-4 and 5. As such, the case is liable to be dismissed against the O.Ps.-4 and 5.

            In view of the above discussions, we hold that the complainants are able to prove their case and they entitled to get relief or reliefs as prayed for. Thus, all the points under determination, answered in the affirmative.

In result, the case succeeds.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the O.Ps.-1 and 2 and also allowed ex-parte against the O.P.-3 with cost of Rs.5,000/- each and dismissed ex-parte against the O.Ps.-4 and 5 without any cost.

            O.P.-1 is directed to refund Rs.3,50,000/- along with the litigation cost on proportionate basis to the complainants within 30 days from the date of this order.

            O.Ps.-1 to 3 are jointly and severally directed to pay Rs.50,000/- as compensation for causing mental agony, pain  and harassment  to the complainants within the statutory period.

Liberty be given to the complainant to put the order in execution, if the OPs transgresses to comply the order.