For the Complainant                       -   Mr. Abhishek Duta, Advocate

For the OPs                                      -   Mr. Diganta Das, Advocate

FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

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

The fact of the case in brief is that the Complainant  Smt. Swapna Roy purchased a Life Insurance Policy  bearing Policy No. 501-4114804 from the OPs in March, 2016 with premium amount of Rs.48, 999.37. Before taking out this policy, she was convinced by the Agent Mr.Bibhas Das of the OPs that she will be entitled to withdraw the amount paid  against the policy after 5 years  of the commencement of the said policy. But, on receipt of the policy documents  she was shocked to see that the surrendered value of the said policy after 5 years  is only 50 percent. She contacted the concerned agent immediately within 15 days of free look period  and requested him to cancel the said policy. The agent assured him the said cancellation but after completion of free look period the agent told her that the policy could not be cancelled.  Thereafter, the complainant lodged a complaint to the OPs through their website. The OPs thereafter replied that the request for cancellation of the policy was beyond the free look period and at this stage nothing can be done. The complainant thereafter sent a legal notice dated 05.04.2017  pointing the deficiency in service  rendered by the OPs  and / or unfair trade practice adopted by the OPs and calling upon them  to refund the premium amount of Rs.48,999.37  within 15 days of the receipt of the said letter.  The OPs sent a reply dated  01.06.2017  denying all the allegation levelled against them. Being aggrieved with the reply of the OPs the complainant has filed the instant case for justice. The OPs have contested the case by filing Written Version  contending inter alia  that the present complainant is false, frivolous, vexatious and is liable to be dismissed. under Section 26 of CP Act, 1986. The OPs have submitted that as per terms & conditions of the policy the policy holder can withdraw at any time within the free look period of 15 days   of receipt of the policy document. After the free look period the terms and conditions are binding to the life assured and any benefit arising out of it would be settled as per the terms & conditions of the subject policy only. Moreover, the OPs being the Insurance Company is not responsible for the action or inaction of the Agent Sri Bibhas Das, Agency Code No. 168877 and the Insurance Agent is the agent of the insured and not the Insurer

On the pleading of the parties the following points have necessarily come up for determination:-

1. Whether Sri Bibhas Das, Agency Code No.168877 is the Agent of the      

Insurer or the agent of the insured.

2. Whether the OPs have got any responsibility or liability for the action or

inaction of the Agent.

3. Whether there is any deficiency in service on the part of the OPs.

4)         Whether there is any unfair trade practice on the part of the OPs.

5)         Whether the complainant is entitled for the relief as prayed for.

Decision with Reasons

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

Both parties have tendered their evidence on affidavit, reply to the questionnaire set forth by their adversaries. They have also filed their BNAs. We have travelled over all the documents placed on record. The OPs have also cited so many case laws in support of their defence.

Facts remain that the complainant purchased a Policy bearing No.501-4114804  from the OPs through their Agent Sri Bibhas Das where the policy issue date is 29.02.2016 and the premium amount paid is  Rs.48,999.37. The sum assured is Rs.1,98,210 and the premium paying term is 5 years and ,policy benefit period is 10 years. From the illustration of the Maturity Benefit of the Policy document it is understood that the Maturity benefit will be payable from the 11^th year instalment wise depending upon the amount of premium up to 19^th year. Policy was issued to the complainant when she was 63 years of age. From the policy papers sent to the complainant by the OPs it appears that the maturity payment in the form of installment will start when she will attain the age of 73 years and the same will be continued up to age of 83 years. We have perused the proposal papers signed by the complainant and have not found any such details of modus operandi of the maturity payment. It is an undisputed fact that the policy was initiated by Sri Bibhas Das, agent of the OPs. The complainant trusted the agent and was agreed to purchase the policy with the hope that she will get return of her investment after 5 years but on receipt of the policy document she was shocked to see that she will get only 50  percent of the invested amount after 5 years. Being aggrieved she rightly rushed to the agent for cancellation of the policy who has not advised her properly and because of her false assurance of arranging cancellation of the said policy the free look period of 15 days passed out. As per the terms and conditions of the policy, after expiry of free look period the conditions stated in the policy become binding on each other and cancellation of the policy and the refund of premium thereof as desired is not possible.

If we go through the policy document under part G in point No. 1 customer service it is written “you can seek clarification or assistance on the policy from the following: THE AGENT FROM WHOM THE POLICY WAS BOUGHT”. So the complainant acted in a way which was directed in the policy document but in the WV the OPs have categorically denied that the agent who procured the policy is the agent of the policy holder and the action or inaction on the part of agent is not at all their responsibility

. As per IRDA guidelines the insurer shall be responsible for all acts and omissions of its agents including violation of code of conduct specified under this guidelines and shall be liable to a penalty which may extend to Rs. one crore. Incidentally, it is worthwhile to mention that the confusion of insurance agent whether he is the agent of insured or the agent of insurer has been clarified in ESSEX Insurance Company V. Zota, 985 So.2d 1036, 1046-47 (Fla.2008) where it is clearly stated that an insurance agent represents an insurer under an exclusive employment agreement by the insurance company... The distinction between an agent and a broker is important because acts of an agent are imputable to the insurer and acts of the broker are imputable to insured.   

If we look into the policy we find that the policy was issued to a senior citizen widow lady aged 63 years who lives on her pension income only. She will have to pay premium annually  at the rate of Rs. 49,000/- around for 5 years and the policy will mature after another 5 years and the maturity benefit payment will start from 11^th year to 19^th year and that to instalment wise which is 8.5 percent of the sum assured of Rs. 1,98,210/-. On 20^th year the sum assured of Rs. 1,98,210/- will be paid. The clarification as mentioned above, has not been projected anywhere at the proposal stage. We also do not find any concurrence of the policyholder agreeing the above maturity benefit before depositing the premium cheque which has become mandatory for all Insurers at the very initial stage before depositing the proposal deposit as per guidelines issued by IRDA to the CEOs of all the Insurers. The maturity benefit of Rs.1,98,210/- will be paid only when she will attain the age of 83 years. It is a clear case of misselling & the agent is very much responsible for such irresponsible act .The helpless widow on receipt of the policy bond understood the said fact & immediately rushed for help to the issuing Agent as per the direction given in the policy document under clause G. But she got no remedy from him. So for the irresponsible action or inaction of the Agent the senior citizen complainant has suffered mentally as well as financially which responsibility the Insurance Company cannot avoid.

The Insurance Laws(Amendment) Bill,2015 provides for a penalty of up to 25 Crore for misselling or misrepresentation of policies by agents or Insurance Companies to customers.

Since the allegation of the Complainant against the Insurance Agent Sri Bibhas Das has not been denied by the OPs by swearing any separate Affidavit the Forum has every reason to believe the submission of the Complainant as true.

 As such we are of the considered view that there is deficiency of service and unfair trade practice on the part of the OPs. Thus all the points are answered in the affirmative.

In the result the complaint succeeds in part.

Hence,

ORDERED

That the Complaint Case be and the same is allowed on contest in part  against the OPs   with the following directions.

1. The OPs are directed to refund  the premium amount of Rs. 48,999.37/-  to the Complainant

2. The OPs are further directed to pay a sum of Rs. 15,000/- to the Complainant   for harassment & mental agony with litigation cost of Rs.10,000/- .

3. The OPs are directed to  comply  the above order within 45 days from the date of the order failing which the Complainant is at liberty to put the order in execution according to law.