Per Mr.B.S.Wasekar, Hon’ble President 

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, she retired in May-2008. She is consumer of the O.P.No.2/Bank since last several years.  Mr.Janak Rathod, Relationship Manager of O.P.No.2/Bank advised the complainant to invest her amount with the O.P.No.1/Insurance Company.  He told her that the scheme of the O.P. has guarantee to give huge return and it is a reputed company. Accordingly, the complainant invested amount of Rs.8,40,000/- in policy Nos. 004490841, 004491204, 003188310, 002018024 & 2081922.  The total policy value was Rs.8 Lakhs.  She paid premium of Rs.40,000/- i.e. Rs.10,000/- each.  The O.P.No.2/Bank advised her in the year-2008 to invest Rs.3 Lakhs and Rs.2 Lakhs and subsequently she would have to pay premium of Rs.10,000/- only.  In the year-2009, she was advised to invest further amount of Rs.1 Lakh and in the year-2010, she was advised to invest Rs.2 Lakhs in two policies.  She was told to wait for three years to get more profit.  The complainant came to know that additional investment for two new policies was for 30 years which exceeds her life span.  She was told that policy of the O.P.No.1 is similar to L.I.C. having added advantage of high return within a short period.  She was not told about the loading charges.  It amounts to cheating.  When she received the printed policies, she realized that her amount was misused.  The O.P.No.2/Bank lured the investors who were the customers to invest the amount with the O.P.No.1. Mr.Rathod, was doing full time activity of visiting the customers to give advise to encash the fixed deposit amount from the bank and to invest it with the O.P.No.1. Mr.Rathod, did not disclose the hidden charges.  When the complainant received printed policies she came to know about the heavy deductions and term for thirty years. The complainant wanted to cancel her investment immediately.  Therefore, she contacted Mr.Rathod.  Mr.Rathod, assured her that after three years she will gain profit.  The O.P.No.2/Bank is guilty for canvassing such schemes.  There is clear nexus between the O.P.No.1 & the O.P.No.2. The complainant asked Mr.Rathod to rectify his mistake but he never did.  The O.P.No.1 showed loading and other charge deductions from her investment.  Mr.Rathod told her that these deductions are approved by SEBI.  The complainant will earn more than the deductions.  L.I.C. does not claim loading and other charges.  The O.P.No.1/Insurance Company is guilty of employing inexperience, incompetent and corrupt invest persons.  Therefore, this Court should call list of investment for the period from 2008 to 2012.  The complainant came to know that the O.P.No.2/Bank had measure fraud some years ago and the Manager was arrested.  Therefore, the complainant has filed this complaint to direct the opponents to repurchase the above insurance policies at their face value.  The complainant has also prayed for compensation of Rs.2 Lakhs for the trauma suffered by her.

2)                The O.P.No.1 appeared and filed written statement.  It is submitted the complaint is barred by limitation. The complainant has made allegations against the O.P.No.2 therefore it is not maintainable against the O.P.No.1.  The policies were issued on the basis of proposal forms duly filled and signed by the complainant.  The complainant is well educated person.  There is no deficiency in service on the part of the O.P.No.1.  The policy was issued as per customer’s choice.  Welcome letter alongwith policy documents was sent to the complainant.  The complainant was at liberty to get the policy cancel within free look period of fifteen days.  The policies were not cancelled within free look period.  The policies and documents were delivered to the complainant on 23^rd September, 2008, 11^th October, 2008, 11^th August, 2009 and 8^th November, 2010.  The complainant made allegations about fraud and cheating which requires detailed investigation and can not be adjudicated under this summary proceeding.  After issuing policy, the complainant paid premium for renewal of policy for second and third year.  It shows that the complainant agreed the terms and conditions of the policies.  The complainant failed to pay premium for the policy bearing Nos. 004490841, 004491204, 003188310 therefore those policies were lapsed. The complainant herself is responsible for it. The complainant vide letter dated 4^th September, 2009 requested this opponent to reduce the premium amount to Rs.10,000/- annually for the second policy year in respect of Policy bearing No.002081922 and 002018024.  The said request was accepted vide letter dated 18^th September, 2009 and 15^th October, 2009.  This O.P. provided the detailed statement of account of the policy as per her notice dated 19^th March, 2012.  The complainant failed to revive the policy. 

3)                It is submitted the policy holder has to bear the risk of investment in the unit linked policy as it is governed by market fluctuations.  The unit linked policies are different from traditional plans and are subject to market risk.  The complainant applied for the policy after reading the contents of policy.  All the other allegations are denied.  Therefore, the complaint is liable to be dismissed with cost.

4)                The O.P.No.2 appeared and filed written statement.  It is submitted that the complainant has not paid any consideration to this O.P.No.2/Bank. Therefore, the complainant is not the consumer of the O.P.No.2/Bank. The complaint is barred by limitation. The complainant made investment in unit linked policies.  There is no deficiency in service of the O.P.No.2/Bank.  The complainant is highly educated person. She received the policy documents in the year-2008.  She made further payment of annual premium in the year-2009 and 2010.  It shows that the complainant invested the amount knowingly.  The allegations are made against Mr.Rathod in his individual capacity.  Mr.Rathod is not the party.  Therefore, the complaint is liable to be dismissed for non joinder of party. The O.P.No.2 has never given assurance to the complainant about investment. No bank will advise its customer to withdraw the fixed deposit from the bank and to invest it in other company.  All other allegations are denied. 

5)                After hearing both the parties and after going through the record, following points arise for our consideration

POINTS

REASONS

6) As to Point No. 1 :- As per complaint para 3, the O.P.No.2/Bank (Mr.Rathod) advised her in the year-2008 to invest Rs.3 Lakhs and Rs.2 Lakhs and in the year-2009 to invest Rs.1,00,000/- with the policies of O.P.No.1/Insurance Company.  As per para 4 of the complaint, she received the printed polices and realized that there were heavy deductions and the term is for 30 years. The complainant has produced copies of insurance policies. Those were issued in the year-2008 and 2009. There was free look period for fifteen days.  The complainant was entitled to cancel the policy if she was not agreed with it.  The complainant kept mum.  The complaint is filed in the month of June-2012.  Thus, it is apparently barred by limitation.  In the written notes of argument, para 9, the complainant has stated that “ the law is very clear that when deceit is exposed then the limitation clause can not be cited as a shelter nor can the limitation clause be a safeguard to deny the victim of deceit the opportunity to recover her dues”.  This submission is against the legal provision i.e. Sec.24A of the Consumer Protection Act.  There is specific provision to file complaint within two years from the date of cause of action.  As per the statement of the complainant, policies were issued in the year-2008 and 2009.  Thereafter, she paid two premiums.  The complainant had received the printed policies.  Therefore, it was necessary to file complaint within a period of two years from the receipt of the policies. There is no prayer for condonation of delay.  The learned advocate for the O.P.No.2 has placed reliance on the judgment of Hon’ble Supreme Court in the case of Kandimalla  Raghavaiah & Company -Versus- National Insurance Company Limited reported in 2009(6) Mh.L.J. 925. In para 11 of this judgment, the Hon’ble Supreme Court has laid down as under :

Para 11 : Section 24A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date of which the cause of action has arisen.  The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

7)                We would like to place reliance on the judgment of Hon’ble National Commission in Revision Petition No.3204 of 2013 dated 30^th September, 2013.  In this judgment, the Hon’ble National Commission has discussed the judgment of Hon’ble Supreme Court in the case of Post Master General and Others –Versus- Living Media India Limited and another (2012) 3 Supreme Court Cases 5663.  After discussing this judgment of the Hon’ble Supreme Court, the Hon’ble National Commission has laid down that delay can not be condoned unless sufficient cause is shown. In this complaint, policies were issued in the year-2008 and 2009. Thereafter, the complainant paid premiums for two times.  There is no prayer for delay condonation.  The written notes of argument are based upon the emotional feelings of the complainant.  The Forum has to decide the matter on merit as per law and not on the emotional feelings of any party.  In view of the above cited judgments of the Hon’ble Supreme Court and the Hon’ble National Commission, it is clear that the present complaint is barred by limitation.

8) As to Point No. 2 & 3 :-  According to the complainant, her amount was in fixed deposit with the O.P.No.2/Bank. The O.P.No.2/Bank(Mr.Rathod) advised her to withdraw the amount  from fixed deposit and invest it in the policies of the O.P.No.1.  On perusal of complaint, the advise was given by Mr.Rathod.  The learned advocate for the complainant has pointed out that the proposal form is signed by Mr.Rathod as Agent.  On perusal of it, there is nothing to show that Mr.Rathod signed it as Manager of the O.P.No.2/Bank.  If, it is in the personal capacity of Mr.Rathod, then the presence of Mr.Rathod before this Forum is necessary.  Mr.Rathod, is not the party in this complaint.  Therefore, the allegations of the complainant about cheating by Mr.Rathod can not be decided in the absence of Mr.Rathod Moreover, thorough investigation is necessary about the allegations of cheating made by the complainant.  Proceeding before this Forum is summary procedure in which thorough investigation is not possible.  The Hon’ble National Commission while deciding the insurance claim in the case of Champalal Verma –Versus- Oriental Insurance Company Limited reported in III (2008) CPJ 93 (NC) observed in para 5 as under

Para 5 : I am left in no doubt, that as per law, it is the report of the Surveyor which has to be given due weightage but since this case involves the quantum dispute, and as has been consistently held by this Commission, Consumer Fora cannot go into the question of investigation, which cannot be dealt in the summary proceedings expected from the Consumer Protection Act, 1986. 

                   The Hon’ble National Commission has clearly stated that detailed investigation is not expected under summary proceeding before the Consumer Forum.  The complainant has made allegations against the O.P.No.2 as well as against Mr.Rathod who was working as Relationship Manger of O.P.No.2.  Mr.Rathod is not the party in this complaint therefore the allegations made by the complainant can not be decided in this complaint.

9)                The complainant is the educated lady.  She had received polices in the year-2008 and 2009.  There was free look period for fifteen days.  She had not exercised her right within free look period.  Not only that, she has paid premium for two times.  On her request, premium was reduced to Rs.10,000/-.  The O.P.No.1 has produced the copy of letter dated 18 September, 2009 and 15^th October, 2009 showing that on the request of the complainant, premium was reduced to Rs.10,000/-.  The complainant had invested the amount in unit linked policy of the O.P.No.1.  Under these schemes, the policy holder has to bear the risk of investment in the unit linked policy as it is governed by market fluctuations. The unit linked policies are different from traditional plans and are subject to market risks.  After lapse of time, the complainant is making allegations about cheating.  It was necessary for her to make her grievance immediately. Instead of making grievance, she has paid premium for two times.  Therefore, she is not entitled for return of policies and for refund of the amount paid by her.  Thus, there is no merit in the complaint.  Hence, we proceed to pass the following order.

O R D E R

1. Complaint stands dismissed.
2. Parties are left to bear their own costs.
3. Inform the parties accordingly.

Pronounced

Dated 4^th April, 2014