Date of filing: 31/08/2018
Date of Judgment: 20/02/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by the complainant Sri Sirshendu Kundu under section 12 of the Consumer Protection Act, 1986 against the opposite party (referred as OP hereinafter) namely Bharti AXA Life Insurance Company Ltd., alleging deficiency in rendering of service and unfair trade practice on the part of the O.P.
Case of the complainant in short is that being pestered by one of the representative / agent from the Corporate Agent Destimony Securities Pvt. Ltd., complainant purchased Bharti AXA Life elite advantage plan policy being no. 5014732670 from the opposite party. The said agent told the complainant that he has to pay premium only ones but every year there will be pay back or heavy gifts like gold or silver. So relying upon the said representation complainant purchased the policy and paid premium of Rs. 44,999.46/- but when the policy paper was received by the complainant he inadvertently overlooked the policy terms and condition but subsequently when he went through entire policy, he learnt about the deception and untrue assurance given by the agent of the O.P. He learnt that he has to pay the annual premium of Rs. 44,999.46/- for 12 years against the sum assured of Rs. 5,33,165/- which means by depositing of Rs. 5,39,993.52/- as premium he will get the less amount i.e. assured sum of Rs. 5,33,165/-. Even in the policy form, agency had written wrong e-mail ID and the name of the complainant and also his telephone no. Before issuance of the policy, no pre-issuance verification call was made by the O.P. So complainant intimated the misleading representation through e-mail to O.P. on several occasion but O.P. did not agree to admit any mistake or latches on its part. The premium amount paid by the complainant was not refunded to the complainant. Complainant also sent a legal notice on 30/05/2018 but O.P. in its reply as usual denied to refund the premium amount paid by the complainant. So the present complaint is filed by the complainant praying to direct the opposite party to refund the amount of Rs. 44,999.46/- paid as premium, to pay Rs. 20,000/- as compensation and to pay the litigation cost.
O.P. has contested the case by filing the written version denying and disputing the allegation contending inter-alia that the complainant after full reading and understanding the terms and conditions of the insurance policy had proceeded to execute the inter-se agreement by signing proposal form. So the complainant was fully aware of the terms of the insurance policy before purchasing it and as such he cannot go back from the same. Even assuming but not admitting that the policy was mis-sold, in such a situation complainant must have approached the company for cancellation of the policy within the free look period. Complainant did not do so and chose to retain the said policy. Thus complainant is estopped for raising any objection now. So the OP has prayed for dismissal of the case with exemplary cost.
During the course of the trial both the parties filed their respective examination in chief followed by filing of questionnaire and reply thereto. Ultimately both the parties filed written notes of argument. OP in its written argument has also cited many decisions of Hon’ble Supreme Court in support of the argument that the parties are bound by the terms of the agreement and insurance policy is to be construed strictly as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added or subtracted by giving different meaning to the words mentioned therein. Some of the case laws referred by the O.P. are as follows:-
- United India Insurance Company Ltd. vs Harchandrai, Chandrai, Chandanlal
- Bharati Knitting Co. vs. DHL World Wide Courier and (3) Suranmal Ram Nivas Oil Mills (P) Ltd. Vs. United India Insurance Company Ltd.
So the following points require determination:
- Whether there has been unfair trade practice on the part of the OP?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Both the points being inter-related are taken up together for discussion in order to avoid repetition. At the very outset it may be pertinent to point out that the purchase of the policy being No. 5014732670 from the O.P. and complainant paid Rs. 44,999.46/- as the premium is not in dispute. According to the claim of the complainant, he has been misrepresented that the policy was on payment of one time premium of Rs. 44,999.46/- and the sum assured was Rs. 5,33,165/- whereas when he received the policy document, he learnt he had to pay the said premium amount of Rs. 44,999.46/- on each year up to 12 years. So apparently this is a case of mis-selling of the insurance policy.
On a careful scrutiny of the policy proposal form it is evident that the same has been filled up by the agent and not by the Complainant. It is strengthened from the fact that the name of the complainant or the life of person to be ensured has been written “SIRSHANDU KUNDU” instead of “Sirshendu Kundu”. No prudent man would write the spelling of his own name wrongly especially when the document relates to money transaction. Similarly the e-mail ID of the complainant in the proposal form has been filled up as It may also be pertinent to point out that it is not clear whether the premium to be paid was Rs. 44,999.46/- for 12 years or it was fluctuating. If it was Rs. 44,999.46/- for 12 years then complainant has rightly claimed that he would have deposited the premium more than the assured sum. Even if the premium amount was fluctuating and it was more than Rs. 44,999.46/- than also the amount paid towards premium would have been more than assured sum. In such a situation complainant has been able to establish that there has been unfair trade practice and thus he is entitled to refund of sum of Rs. 44,999.46/-.
In view of the discussions as highlighted above regarding very inception of policy being wrongly processed and also that no pre-issuance verification call was made, the case laws cited by the O.P. has no relevance in the given facts and situation of this case and thus not discussed.
Hence
ORDERED
CC/534/2018 is allowed on contest. Opposite party is directed to refund the premium amount of Rs. 44,999.46/- to the complainant within 60 days from this date. OP is further directed to pay litigation cost of Rs. 12,000/- within the aforesaid period of 60 days. In default of payment the entire sum shall carry interest @8% p.a. till its realisation.
