Order-18.

Date-16/10/2015.

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

          Complainant by filing this complaint has submitted that complainant being a poor villager being allured by agent of OP2 purchased one Saral Wealth policy and at the time of purchase complainant was convinced that it is one time premium policy and after 3 years he shall have to get a huge amount and relying upon the expression of the agent of the OP complainant paid Rs.12,385/- as premium having policy no.003706817 and it was purchased on 28-12-2009 and it was also informed that after lapse of 3 years from the date of purchase one time premium shall be paid by the insurance company.  Thereafter, complainant received the said document on perusal it was found that the policy was for 20 years and payment of premium was on annual/yearly basis when complainant was highly shocked.  Thereafter, he reported the matter to the agent of the OP but he did not report anything and he also did not explain the above terms and condition.  Subsequently, complainant requested the OP to cancel the said policy and refund the premium amount but officer of the OP did not attend and finally assured that they will refund after lapse of 3 years with interest.  But even after 3 years passed no intimation was received by the complainant.  so, complainant again went to the OP but they did not supply any document and ultimately for such sort of negligent and deficient manner of service and adopting unfair trade practice and also for violating the IRDA guideline complainant has filed this complaint for refund of the same amount and for interest, compensation, litigation cost etc.

          Whereas, OPs1 and 2 by filing written objection including a non-maintainability petition submitted the same content that no doubt for that policy complainant paid premium of Rs.12,385/- and policy number is no doubt 003706817 issued on 28-12-2009 but it is their specific objection that the complaint is barred by limitation because within 2 years from the date of issuance of the policy on 11-05-2010 the complaint was not filed within time so the complaint is barred by limitation under Section 24A of the C.P. Act which is applicable and at the same time complainant did not file any application for condoning the delay at the time of filing the complaint for which the complaint is not maintainable.  Further it has been submitted that there was scope on the part of the complainant to cancel the policy within freelook period that has not been complied with and further submitted that complainant willfully purchased the same knowing fully well of the content so the complaint cannot raise such allegation against the OP.

          Further it is submitted that complainant never prayed for cancellation or surrender of the policy when same has not been done, there was no scope on the part of the OP to refund the amount on the basis of the complaint of surrender of the policy but fact remains only at the time of purchase the premium was paid and subsequent premium was not paid for which after waiting for 3 years this policy was lapsed and that was forfeited.  So, there is no deficiency, negligence on the part of the OP for which the complaint should be dismissed.

Decision with Reasons

On comparative study of the complaint and the written version and further considering the status of the complainant we find that complainant is a poor fellow.  In fact, OP’s Ld. Lawyer submitted that time to time they informed the complainant about lapse of the policy but at the time of hearing the argument the Ld. Lawyer for the OP submitted that all information was sent over phone but peculiar factor is that no communication was made on behalf of the OP for further payment of policy premium or lapse of the policy or about refund of the premium amount after lapse of the policy etc.  Ld. Lawyer for the OP admitted that now-a-days communication is made over phone and in this regard when this forum asked about the phone number of the complainant and on the basis of which phone number they contacted with the complainant then OP’s Ld. Lawyer submitted that it is known to the office but from the policy document it is found that there is no note of phone number of the complainant then question of informing the same to the complainant over phone is completely false and fabricated story.  At the same time it is proved that no written communication was made by the OP and no written instruction or letter was received by the complainant from the end of the OP.  Further after consulting the entire case record it is found after issuance of the policy no communication was made by the OP regarding payment of further premium, regarding lapse of the policy, regarding any request for revocation of policy etc.  Considering the above fact we are convinced that this poor complainant was in darkness for the negligent and deficient manner of service.

          Complainant has submitted that complainant once went to the OP who stated that after lapse of 3 years they shall have to refund the amount.  Then question is for what reason complainant has stated so and in this regard after going through the policy we find that there is a Clause known Revival in the Policy and as per said Clause if the policy is not revived by the end of 2 years revival period, company will terminate the contract and pay the surrender value as of the lapse date to the insured at that time or at the end of the third policy year, whichever is later and the surrender value as on the lapse date will not vary based on the performance of the investment funds and will remain constant till the time it is paid to the insured.  If the said clause is taken into account it can safely be said that invariably OP’s office verbally requested to wait and after 3 years he shall have to get the sum but most interesting factor is that OP did not send any form for surrender, did not supply any application for surrender and other materials for refund of the surrender value.  Complainant was waiting and as a poor man he thought that sum will come back after lapse of 3 years but in spite of completion of 3 years OP did not contact or inform and no surrender amount is also received by the complainant.  In fact, in this case policy was issued on 28-12-2009  so, 3 years already completed.  But OP did not send it and it was not possible for the complainant when their administration shall have to send and refund the same and when complainant waited for a reasonable period and found that he is not getting the same then he filed this complaint.  No doubt, the complaint was filed on 07-04-2015 that is within time when OPs did not send any information so far then this complaint is not barred by limitation.

          Fact remains the allegation against agent of the OP has not been denied.  Truth is that this OP in some other cases including case no.CC/538/14 violated said policy term and in CC/538/14 judgment was passed on 16-06-2015 and in that case this Forum directed the OP to deduct Rs.5,103/- out of the deposited one premium of Rs.45,216-20 and ultimately OP realized the matter and returned the amount against policy No.002151944 and against that policy practically OP paid Rs.15,113/- against the deposit of Rs.45,216/- and that is the common practice of the OP and in all the previous cases also Birla Sunlife Insurance Company took such sort of plea and that is their only defence and ultimately paid after deducting administration and management charges which is fixed by the Forum.

          In the present case most interesting factor is that even after lapse of the policy when complainant paid only one premium and even after lapse of 3 years OP did not refund the paid premium amount after deducting administration and management cost.  No information was sent to the OP, no letter was sent to the OP and that is the only plea Ld. Lawyer for the OP stated that their office contacted with the complainant over phone it is false because there was no phone number of the complainant in the policy.

          Truth is that all the private insurance company are engaged in the market to collect one time premium and after that whether that insured is depositing subsequent premium or not that is not their headache because it is their tactics, it is their benefit by issuing such life insurance policy to create their capital and thousands of people/insured are being deceived by the agents of insurance company and those insurance company shall be closed if there cheater agents do not loiter in the market.  They have already floated cheat agents who are loitering all over the West Bengal in village areas and collected one premium stating that one premium is sufficient and consumer shall get money after 3 years.  It is impossible to know about terms and condition of the policy of the village people and in the present case it is proved that it is no doubt a mis-sale which was done for which OP is silent after receipt of the amount through their agent.  There is no contact in between the complainant and the OP.  OP did not sent any letter regarding any matter.  It indicates that entire business or trade that is insurance trade as continued by the OP is nothing but an unfair trade practice.  Fact remains in other cases like CC/538/14 this Birla Sunlife Insurance Company ultimately paid the amount as awarded by the Forum that is after deduction of administration and management charges and practically in that case against EA/144/15 OP had already complied the order and in other cases they also complied.  Most interesting factor is that how long such sort of defence shall be taken by the OP.  In all the cases and in series of written version their only plea is that within free look period insured did not contact so as per policy condition it is lapsed.  It is their business to grab money anyhow to create capital because it is not their headache to inform the insured to pay further premium or to inform that it is lapsed or to sent the amount after non revival of the lapse period.  They are not complying the provision of policy, they are not refunding the money as per IRDA guide line and it is not possible for the people to go to the office again and again for such amount.  Already Nobel Laureate John Tirello observed that considering measure should be taken against banking and insurance company because they are deceiving the public in so many manner and in this regard Nobel Laureate observed that capacity of the insured must be ascertained by the insurance company at first but in this case that has not been ascertained.

          As per IRDA guideline there must be a consent letter of the intended purchaser of the policy that consent letter is not here and in the said consent letter everything shall be written in question-answer form and in that consent letter the future effect of the policy, tenure of the policy, premium amount, financial capacity of the insured and other factors whether it is one time premium or yearly or monthly etc. shall be written in Bengali and that shall have presented to the consumer and consumer shall have to answer after realizing the same and on receipt of the said consent form, the insurance company office shall have to talk with the complainant and thereafter, application form shall be obtained duly filled in by the insurance company or their men but in this case everything is done by the agent.  Because agent knows that poor people is unable to realize the terms and condition but they shall have to depend upon the expression and assurance of the agent and in this case without adopting the above method agent managed to procure signature of the complainant inform and money was collected and the said agent deposited to the insurance company office but there is no contract in between insured and the insurance company.  That is the situation in the insurance market and such a market should be controlled as per observation and theory of Nobel Laureate John Tirello but it is being violated.  Technicalities should be taken account when there is no deficiency on the part of the OP that is the insurance company but in this case there is no question of technicalities but it is a process adopted by the OPs to deceive the consumer at large in different urban areas and rural areas and in the present case also misrepresentation was made by the agent of the OP because complainant has no financial capacity to pay such amount yearly at the same time about limitation we are confirmed limitation point is the only point in all the cases because their business is to deceive the consumer and to keep them silent for years together.  In the light of the above observation we are convinced to hold that the complaint is not time barred and so the complainant is tenable and maintainable in the eye of law.  Further it is found that as per policy condition after lapse of 3 years from the date of issuance of policy automatically surrender value shall be refunded to the complainant but that has not been done.  No doubt it is an unfair practice on the part of the OP and most interesting factor since purchase of the policy no communication was made by the OP.  Nothing was reported to the complainant.  So, the deficiency and the negligence on the part of the OP is well proved and OP has no intention to refund the premium amount for which they never contacted with the complainant and this is their common business.  Considering the above facts and also considering the policy it is found that complainant deposited Rs.12,385/-  not any lower figure of amount and in the mean time 5 years already lapsed but after lapse of 3 years it was the legal duty as per policy to refund the said amount after deduction of the service charges but that has not been done.  It is no doubt an unfair and deceitful manner of practice on the part of the OP.  In view of the above and also considering the maintenance of the policy for 5 years a sum of Rs.2,385/- may be deducted as maintenance and management charge and service charges out of paid premium amount of Rs.12,385/-  and after deducting that OP shall have to refund Rs.10,000/- to the complainant within one month from the date of this order and for adopting such unfair practice and deceitful manner of trade and also for harassing the complainant in such a manner OP shall have to pay a sum of Rs.2,000/- as compensation and further a cost of Rs.1,000/- shall be paid by the OP as litigation cost and accordingly complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.1,000/- against the OPs.

          OPs are directed to refund of Rs.10,000/- out of deposited premium amount of Rs.12,385/-  because balance amount of Rs.2,385/- is deducted as service and management charge of OPs.

          OPs shall have to pay compensation and harassment cost and deceitful manner of trade pay a sum of Rs.2,000/- as compensation to the complainant.

          Accordingly, in total OP shall have to pay a sum of Rs.1000/- as cost, Rs.10,000/- as refund of premium and Rs.2,000/- as compensation i.e. total Rs.13,000/- within one month from the date of this order positively failing which for expiry of one month from the date of this order penal interest  at the rate ofRs.200/- shall be assessed and if it is collected it shall be deposited to this Forum.

Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.