Order dictated by:
Sh.S.S. Panesar, President.
1. Sh. Manohar Lal Tandon has brought the instant complaint under section 11,12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant who is about 88 years old has purchased one Life Insurance policy for his grand daughter namely Miss Tarika Kumar and has issued a cheque No. 209814 dated 19.1.2015 drawn on Oriental Bank of Commerce, Civil Lines,Amritsar for Rs. 70000/- in favour of opposite party. The officials of the opposite party allured the complainant No.1 that the amount invested in the aforesaid policy shall become double in five years and further assured that the detailed terms and conditions of the policy shall be sent to the complainant No.1. The complainant waited for some time for the Life Insurance policy and other related documents but when no such Life Insurance policy or documents were received by the complainants, the complainants approached number of times the opposite party as well as to the Gorgaon Office at Mumbai but the officials of opposite party did not pay any heed to the genuine request of the complainant. The complainants were informed verbally on the telephone that a policy No. 5012655540 was issued and delivered at the residence of the complainants and a person namely Durga received the aforesaid document. Infact complainants have not received any such Insurance policy or any document from opposite party nor any lady namely Durga is residing alongwith the complainants. Complainant No.1 and his wife Prabha Tandon alone are residing at the aforesaid address and neither complainant No.1 nor his wife ever received any Life Insurance policy or other documents from the opposite party. The policy and other documents were never received by the complainants, so they could not go through the terms and conditions of the Life Insurance policy. As such the officials of opposite party got the cheque of Rs. 70000/- from complainant No.1 by keeping him completely in dark regarding the terms and conditions of the Life Insurance policy and as such has committed an act of fraud and cheating with the complainants. The complainant number of times wrote letters to opposite party to refund the amount of Rs. 70000/- but till today opposite party has not refunded the aforesaid amount . The complainant No.1 also served a legal notice dated 17.10.2015 upon the opposite party, but opposite party has miserably failed to give reply of the aforesaid legal notice to the complainants. The complainant has sought for the following reliefs vide instant complaint:-
(a) Opposite party be directed to refund the entire amount of Rs. 70000/- alongwith interest @ 18% p.a. from the date of payment till its realization ;
(B) Compensation to the tune of Rs. 20000/- may also be granted to the complainants alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that opposite party has not committed any deficiency in service qua the complainant, hence the present complaint is not maintainable ; that present complaint is filed on mere conjectures and surmises. The contents thereof are vexatious and malafide and are clearly an afterthought, as such the present complaint is liable to be dismissed with cost ; that Insurance policy was issued to the complainant on the basis of proposal form submitted by the insured before obtaining the policy keeping in view his/her requirements and submitted the same to the opposite party alongwith a signed copy of the benefit illustrations for purpose of issuance of policy. As per request of the complainant, requirements and based on the information provided in the proposal form, insurance policy was issued to the complainants ; that in case the insured was not satisfied with the insurance product, the policy holder had an option to cancer the policy within 15 days of receipt of the policy bond. As per records of opposite party, original policy bond was duly dispatched to the complainant and as per information , the same was duly received at the end of the complainant. But the complainant failed to approach the opposite party for cancellation of the policy within free look period of 15 days , therefore, the complainant has no night to challenge the said policy and its terms and conditions at this stage; that the premium has rightly been charged from the complainant as per proposal form and the policy bond issued to him according to which complainant was liable to pay annual premium of Rs. 70000/- during the currency period of the policy, as such allegations of the complainant that the premium paid by him was a one time premium are absolutely wrong and denied; that present complaint is not maintainable in the present Forum as the complainant has not approached this Forum with clean hands ; that as per terms and conditions of the policy, the amount deposited by the complainant cannot be refunded to the complainant as the insured person who is matured and educated person , has made the investment by his/her own free will without any sort of pressure ; that this Forum cannot pass any order in contravention to the terms and conditions of the policy contract. On merits, facts narrated in the complaint have specifically been denied and a prayer for dismissal of complaint was made.
3. In his bid to prove the case complainant No.1 tendered into evidence his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-12 and closed his evidence.
4. To rebut the aforesaid evidence Sh.S.K.Vyas,Adv.counsel for opposite party tendered into evidence affidavit of Sh.Rajeev Kumar, Chief Financial Officer Ex.OP1 alongwith documents Ex.OP2 to Ex.OP20 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by both the parties.
6. Ld.counsel for the opposite party has vehemently contended that complainant has filed the present complaint alleging that he purchased LIC policy from opposite party for the life of his grand daughter namely Miss Tarika Kumar for which he issued cheque for Rs. 70000/-. It is further case of the complainant that he was allured by the officials of opposite party namely Satnam Singh Brar and Monika who assured that the complainant can go through the terms and conditions of the policy and if those terms and conditions do not suit, then he can surrender the policy and shall get the amount of premium back. But however, despite receipt of premium amount of Rs. 70000/- opposite party did not issue any Insurance policy in favour of grand daughter of the complainant. But, however, claim of the complainant is not well founded. The complainant was issued policy through blue dart agency and the complainant failed to approach the opposite party for cancellation of the policy within free look period of 15 days from the receipt of said Insurance policy. The premium has rightly been charged from the complainant as per proposal form and the policy bond issued to him for which the complainant was liable to pay annual premium of Rs. 70000/- during the currency period of the policy. This Forum cannot pass any order in contravention to the terms and conditions of the policy contract. Law in this regard is well settled and one may conveniently refer to a recent judgment of the Hon’ble Apex Court in the case of Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co.Ltd. 2010(10) SCC 567 wherein it has been held by the Hon’ble National Commission that since the insurance between the insurer and the insured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly construed to determine the extent of the liability of the insurer. In the case of Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines 2000(1) SCC 66 the Hon’ble Supreme Court has laid down the test of deficiency in service by stating that the deficiency in service cannot be alleged without attributing fault, imperfection , shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The applicant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleges acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service . In case of bonafide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.
7. From the aforesaid facts and circumstances, it transpires that the complainant has failed to prove his case . As a matter of fact Insurance policy in dispute was actually supplied to the complainant through blue dart agency and the complainant having failed to exercise his volition of surrendering the policy within free look period of the policy in dispute, the instant complaint as framed for reimbursement of the premium may be dismissed accordingly.
8. However, from the appreciation of the facts and circumstances of the case, it becomes amply clear that complainant has been able to prove his case beyond reasonable and probable doubt. It is an admitted fact that the complainant had applied for issuance of Insurance policy in favour of grand daughter Miss Tarika Kumar and issued cheque No. 209814 dated 19.1.2015 drawn on Oriental Bank of Commerce, Civil Lines, Amritsar for an amount of Rs. 70000/-. The complainant waited for some time for issuance of Life Insurance policy and other related documents. But when no Life Insurance policy or documents were received by the complainant, the complainant approached number of times to the office of opposite party as well as Goregaon office at Mumbai . But officials of opposite party paid no heed to the genuine requests of the complainant. The complainants were informed verbally on telephone that policy No.5012655540 was issued and delivered at the residence of the complainant and a person namely Durga received the said documents. Infact complainant had not received any Life Insurance policy or any documents from the opposite party nor any lady namely Durga was residing alongwith the complainants. Since the complainants did not receive policy documents, therefore, they could not go through the terms and conditions of the Life Insurance policy . The opposite party failed to adduce the receipt regarding dispatch of the policy in dispute. So much so even, no date has specifically been mentioned in the written reply on which the alleged policy in dispute was dispatched to complainant No.1. All this goes to show that the alleged insurance policy in dispute has not been received by the complainants till date. However, officials of the opposite party after getting cheque for Rs. 70000/- the complainant No.1 kept him in complete dark regarding the terms and conditions of the Life Insurance policy. As such, the opposite party is guilty of committing unfair trade practice. Ultimately on 17.10.2015 complainant got served legal notice calling upon the opposite party to refund the amount of Rs. 70000/- alongwith upto date interest and cancel the Life Insurance policy, if any issued by opposite party besides paying Rs. 11000/- as cost of the legal notice within a period of fifteen days from the receipt of legal notice, copy of the notice as well as postal receipt account for Ex.C02 and Ex.C-3 respectively. But the opposite party has miserably failed to give reply to the legal notice nor any necessary compliance of the notice in dispute was made. As a matter of fact opposite party is deficient in service when it did not issue the requisite policy & further when it refused to refund premium amount of Rs. 70000/- in favour of the complainant.
Consequently, instant complaint succeeds and the complainants are entitled to refund of premium amount of Rs. 70000/- alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery. Besides that cost of litigation are assessed to the tune of Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 19.09.2016.
