BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    11^th DAY OF DECEMBER 2019

Complainant/s: -                           

1. Sri.Siddalingesh

S/o Basanagouda

Age 42 years

R/at Ward No.10,

Karatagi.

2. Smt.Padmavathi

W/o Sri.Venugopal Bennur Age 31 years

R/at Ward No.31,

Karatagi.

3. Smt.Rekha

W/o Ananthashetti

Age 52 years

R/at Karatagi

4. Sri.Ananthashetti

S/o Kristayya

Age 53 years

R/at Dalal Bazar,

Karatagi.

5. Sri.Venugopal Bennur

S/o Lakshmikanth

Age 48 years

R/at Ward No.12,

Karatagi.

By Adv.Sri.Manju.V.Mudgal

V/s

Opposite party/s:-    

Bharti Axa Life Insurance

Co., Ltd.,

Corporate Court

Upper Ground Floor,

No.15, Infantry,

Behind Madinova,

Infantry Road,

Bengaluru-01.

By Adv.Sri.Kapil Dixit

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant no.1 to 5 (herein after called as Complainants) have filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay as below:

2. The brief facts of the complaint are as under:

The Complainants submit that, in the present case there are 5 Complainants. As the nature of complaint and claims against the OP are one and the same, on behalf of all, one complaint is filed, and will be filed affidavit evidence, written arguments by one Complainant who has been authorized by all the Complainants through his counsel.  In support of this, the Complainants placed reliance on the decisions reported in 2004 (1) CPJ-93 (NC) and IV (2013) 265 (NC), wherein it is held that ‘complaint may be filed by one or more consumers on behalf of numerous persons having common interest’ as per the provision U/s.12(c) of the CP Act. Complainants further submit that, believing the assurance of OP’s agent, they purchased the policy. At the time of obtaining the policy, the agent assured that the said policy is single premium policy. But, later came to know that, they have to pay premium every year until the end of the policy period. As the Complainants are not financially fit to pay the premium amount regularly, requested the OP to take back the policy and for refund. But OP not responded. Hence, they issued legal notice dtd.27.06.17 to which OP not replied. Hence this complaint.

3. OP did appear and filed version. OP in its version submits that, the policies opted by the Complainants were regular premium paying policies and the same has been mentioned in the proposal from and benefits illustrations duly filled and signed by the Complainants. After going through the contents of the proposal form and after being fully satisfied with the features of the policy, the Complainants signed the proposal forms. As per clauses 4(1) and 6(2) of the IRDA, 2002 “in case policy holder is not satisfied with the features or the terms and conditions of the policy, he can withdraw/return the policy within 15 days i.e. under the Free Look Cancellation period.” Since no such request was received from the Complainant, the policy continued as per the terms and conditions. The legal notice dtd.27.06.17 suitably replied on 08.08.17 and the request of the Complainants were declined by the OP as the request was beyond the freelook period. OP further submits that, only one premium each under the respective policies have been paid by the Complainants and not thereafter, therefore, the policies have moved in lapsed stage. The Complainants have an option to revive the policies by paying all the due premiums, failing which the policies will be foreclosed. Further, the policy obtained is a legal contract between the policy holder and Insurance Company and the parties to the said contract are bound by its terms and conditions. Due to his own act of negligence, failed to approach the OP for cancellation of the policy within the freelook period. Thus, the OP is not liable for the act of commission and omission on the part of the Complainants and is further not liable to refund the premium as claimed by the Complainants. OP further submits that, it is not a dispute which falls within the ambit of Consumer Protection Act and is exclusively triable by a Civil court, as such there is no jurisdiction to entertain the complaint before this forum. Hence on these ground and other grounds pray for dismissal of the complaint.

4. To substantiate the case Complainant no.1 filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents. Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the complaint filed by Complainants No.1 to 5 is maintainable ?

2. Whether the Complainants prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Before embarking on the facts of this case, we would like to give some relevant facts of CC.No.3006/2017. The Complainants no.1 to 4 herein being the Complainants in CC.No.3006/2017 filed against Exide Life Insurance Company ltd.,/OP therein inrespect of their claim for premium amount paid towards the insurance policy. The claim of the Complainants herein and in CC.No.3006/2017 is one and the same. The said CC.No.3006/2017 has been dismissed by this forum holding that, before filing the complaint, the Complainants have not sought for permission U/s.12(1)(c) of CP Act to file the ‘class actions’ in the single complaint. Further, the availment of the date of the policy by the Complainants of CC.No.3006/2017 are also quite different.

8. Point No.1: In the instant case, we meticulously gone through the contents of the complaint with reference to the date of availment of the policies as shown below:

9. Further in respect of filing common complaint, the Complainants placed reliance on the decision reported in CPJ-93:2004, NCJ 314 (NC), 2004(2) CLT 267, 2004 (1) CPJ-93 (NC), wherein it is held that ‘complaint may be filed by one or more consumers on behalf of numerous persons having common interest.” Another decision reported in IV (2013) 265 (NC), wherein it is held that ‘(iii) Consumer Protection Act, 1986-Sec.12(c) – conversion of individual complaint into representative suit – Justification – Provision of Sec.12(c) requires complaint to be filed on behalf of ‘numerous consumers having same interest’ – Cellular operator association of India (COAI) had consciously chosen to implead itself on behalf of all cellular operators-conversion justified”. Referring the said decisions, submits that joined complaint filed by the Complainants is maintainable.

10. Even though the OP has not taken the contention in respect of maintainability of this complaint, this forum has to look in to the said issue. In view of the maintainability of this complaint, any grievance against the insurance company, should file separate complaint by each Complainant/beneficiary of the respective policies. In this context, Sec.2(b)(iv) and Sec.12(c) ‘Class Actions’ of the Consumer Protection Act have been misinterpreted. Both sections reads ‘one or more consumers, where there are numerous consumers having the same interest…’ has been misconstrued. The requirement to be satisfied is sameness of the interest and not the same cause of action. 

11. In the instant case, policies are obtained by all the Complainants in their individual capacity, so the common interest does not involved in this case. Assuming for a moment that, they have filed class actions to prosecute the OP, permission of this forum is necessary as contemplated U/s.12(1)(c) of CP Act reads thus: one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested.

12. In the instant case, no permission has sought for to permit them to file ‘class actions’ in the single complaint filed by Complainants no.1 to 5. Hence, we come to the conclusion that, none of the Complainants having common interest. Further, the date of availment of the policy also different, under such circumstances, we do not find any just reasons to allow the complaint to prosecute ‘class actions’. Hence, liable to be dismissed with a liberty to the individual Complainants to file individual complaints, if they desires to do so by taking the assistance of the decision of Hon'ble Supreme Court in the case of Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 13. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

14. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainants is dismissed. 

2. Anyhow, liberty given to the Complainants to file individual complaints, if they desire to do so.   

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

          Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of December 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainants dated.03.02.18

Sri.Siddalingesh, Complainant no.1

Copies of Documents produced by the Complainants:

Witnesses examined on behalf of the OP dated.28.02.18

Sri.Sachin Kalra, AVP-Legal    

Copies of Documents produced by OP

            MEMBER                                           PRESIDENT