BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.70 of 2016
Date of Instt. 09.02.2016
Date of Decision: 05.04.2017
Kuldip Singh Banwait, Age 67 Years, S/o Late S. Swaran Singh, House No.212, Lane No-5, Sainik Vihar, Dhilwan Road, Rama Mandi, Jalandhar (Pb) Mob No.9872411531.
..........Complainant
Versus
Birla Sun Life Insurance Company Limited, SCO 23-24, 2nd Floor, City Square Building, Civil Lines, Jalandhar-144001, Through its Manager/Director/Authorized representative.
.........Opposite party
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh. Parminder Sharma (Member)
Present: Complainant in person.
Sh. KS Minhas, Adv Counsel for OP.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein alleged that he got a telephone call during May 2013 from a landline phone from New Delhi/Noida representing himself as Nitin Malhotra, alleged to be an IRDA officer asking him about difficulties, if any and facing from any Insurance Company as they are there to help us and sort out the same as he enquired that fund value of some policies comes out even less than the amount paid by him for 9-10 years, he advised the complainant that if he withdraw these policies, I will get full refund which will be not less than the amount paid by complainant including the commission of the agents within 45-60 days. The said Nitin Malhotra gave his personal mobile No.09654423175 to the complainant to make the complainant believe upon him. He further advised the complainant that refunds are routed through few selected Insurance Company and the “Birla Sun Life Insurance Company” is the best one for such refunds. As such the complainant was in need of money having been recently operated his wife due to fractured shoulder and already having a policy with Birla Sunlife Insurance Company, complainant believed upon him and acceded to his advice.
2. That within a day or two, he got a call said to be from Birla Sunlife Insurance Company office located in Cannaught Palace, New Delhi from Mrs. Tanvir whose personal mobile Numbers as given by her, 09873076175 and 08527054023. As she was talking from the same land line phone from where Mr. Nitin Malhotra had spoken to him, he got suspicious and asked her to clarify as to how the telephone numbers may be the same while the one person was said to be speaking from IRDA Noida and herself from the Birla Sunlife Insurance Company from New Delhi, she befooled him saying that same landline numbers have been given to Insurance Companies at different stations. She also assured him that she is like his daughter, hence he can have faith on her as children do not in any way cheat their parents. She advised him that the rules say that he has to deposit a sum of approximately Rs.50,000/- as Security Money which along with other refunds of all policies accumulating to approximate Rs.7 lakhs, will be credited to his same bank account within 45-60 days. As complainant was not able to pay Rs.50,000/- and then she agreed for Rs.28,000/- only and one of the employees/agent from Jalandhar Branch named Shekher (Mob No.99144-96984) was deputed for collection of cheque for Rs.28,000/- and the requisite documents. Consequently, policy No.006147783 dated 28.06.2013 was issued. As he did not agree to the terms and conditions of the policy, she assured him that he need not to worry as all of this is a formality and he will be getting refunds very soon. After a month or so, when he enquired for refunds, she told him that his case was sent to IRDA but they have not accepted the same for want of more “Security Money”, he was again asked by her to pay a sum of Rs.30,000/- more to fulfill IRDA's speculations to get refunds at the earliest. With the shock of not getting his refunds, he suffered a mild Heart Attack during Ist Week of August, 2013 for which he had to undergo many tests like Echo, TMT, Angiography and planting of stent costing approximately Rs.2,50,000/-. Resultantly his heels are also paining and he has to wear specific shoes with arc type shoe pads, he has been advised regular tests from time to time and medicines for the whole life for which he had to spend averagely Rs.10,000/- to 12,000/- per month since then.
3. That consequently, he was in dire need of money and he had to go with her advice, she forced him for another investment of Rs.25,000/- for which Mr. Aditya having mobile No.9888340603 from Jalandhar branch was deputed and policy No.006199943 dated 04.09.2013 favouring his daughter named Mrs. Satinderjit Kaur Banwait was issued as his medical was rejected by the company. That though, Mrs. Tanvir had been talking to him regularly on the given telephone numbers till September, 2013 but when his policies were issued and their Free Look period was over, neither the so called IRDA official Mr. Nitin Malhotra nor Mrs Tanvir attended to his call thereafter. The company cannot disown Mrs. Tanvir as she may be their employee or the agent as their particulars/agent code is mentioned in the policies issued. She also cannot deny the postal address given by her as C/o Kamal Kumar, Birla Sunlife Insurance Company Ltd, 301-1, Regalia Building, 2nd Floor, CCS University Road, Meerut-250001 as the documents of his daughter were dispatched on this address were correctly received by her on the basis of which the 2nd policy was issued. The complainant is aged 67 years, and no other source of income except a meager pension, was unable to pay all the premiums in addition to day to day expenses and medical expenditures. So, he had requested the company time and again directly, through Grievance Officer, Chief Grievance Redressal Officer and Insurance Ombudsman for only refund of his hard earned money of Rs.53,000/- but they have not accepted his request on one pretext or the other. What to say of others, even the honorable Ombudsman had neither given him any questionnaire nor call letters as mentioned in his decision but opined one sidedly in favour of the company saying that complainant is least interested in his case and as such complainant has suffered a loss of mental agony, torture, harassment, physical and financial loss and as such the complainant prayed for acceptance of the complaint and directed the company for refund his invested sum of Rs.53,000/- with interest, litigation expenses, cost of hospital admission and planting of stent and compensation for mental agony/harassment and physical sufferings, amounting to Rs.18,28,370/- at the earliest.
4. Notice of the complaint was given to the opposite party and accordingly opposite party appeared through his counsel and filed reply whereby contested the complaint by taking preliminary objections that in the complaint the dispute raised by the complainant can by no stretch of imagination be called a Consumer Dispute. The complainant has alleged that on the assurance of Mr. Nitin Malhotra, Mrs. Tanvir, Shekhar and Aditya, the complainant had invested the amount. He is pertinent to mention herein that the complainant has not impleaded the said persons as a necessary party in the present complaint. Hence, the complaint is liable to be dismissed on the ground of non-joinder of necessary parties. It is further most pertinent to mention herein that the complainant has not obtained the policy through any agents/employees of this opposite party. For obtaining the policy in question, the complainant had availed the services of an independent Insurance Brokers, India Infoline Insurance Brokers Pvt. Ltd. An Insurance Broker is an independent entity licensed by Insurance Regulatory and Development Authority (IRDA), who advice the customers on their insurance needs and thereafter arrange insurance policy from any insurance company as per their own judgment and as per the customers choice. It is to be noted that the Insurance Companies do not enjoy any administrative control over the Insurance Brokers. All Insurance brokers are governed by the provision of IRDA and IRDA also entertain complaints against Insurance Brokers. The complainant has failed to make the said Broker as party in the complaint hence the present complaint is liable to be dismissed on the ground of mis-joinder and non-joinder of necessary parties and further alleged that it is a settled principle of law that a principal can be held vicariously liable for the acts of an agent, only where such act was within the scope of the agent's authority and further alleged that in the present complaint the complainant has alleged cheating, fraud misleading, criminal conspiracy. Such serious allegations require a proper trial by a civil/criminal Court and evidence has to be taken which is not possible in summary trial. It is clear from the averments made in the complaint that the complainant has made such allegations, such matter in question involves complicated questions of facts and law as well as voluminous evidence, which can only be dealt with by a Civil Court and further alleged that the complainant has failed to demonstrate any deficiency in service on the part of the replying opposite party. It is further alleged that as per the terms and conditions of the policy, if the policy is not suitable, the policy holder may get his/her policy reviewed by returning the policy and policy documents within 15 days (Free Look Period) from the day of the policy holder received a policy. The insurance company will return the premium paid to the complainant after making certain deductions specified therein but in the present case, the complainant has not approached the OP within a Free Look period and as such the complainant is not entitled for the relief for the refund of premium under the serving policy. On merits, all the averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
5. In order to prove his claim, complainant himself tendered into evidence his affidavit Ex.CA alongwith some documents Ex. C1 to Ex.C18 and closed the evidence.
6. Similarly, counsel for the OP tendered into evidence affidavit Ex.RA alongwith some documents Ex.R1 to Ex.R7 and closed the evidence on behalf of OP.
6. We bestowed our thoughtful consideration to the submissions made by learned counsel for respective party and also scanned the case file very minutely.
7. After taking into consideration the entire facts, we find that the OP has not denied that the complainant has took two insurance policies bearing No.006147783 dated 28.06.2013 in his own name i.e. Kuldip Singh Banwait and second policy bearing No.006199943 dated 04.09.2013 obtained in the name of his daughter Mrs. Satinderjit Kaur Banwait but the allegation of the OP are only that the said policies were obtained by the complainant not through any authorized agent or employee of the OP rather the same were obtained through Insurance Brokers who are under the control of IRDA Insurance Regulatory and Development Authority and if any fraud, mis representation as alleged by the complainant in the complaint, has committed by the said Insurance Brokers namely Mr. Nitin Malhotra, Mrs. Tanvir, Shekhar and Aditya then they are liable to indemnify the complainant for the loss caused to the complainant if any and remedy with the complainant is only to approach the IRDA for taking action against the said independent Insurance Brokers but the complainant has intentionally and for the best known reason did not make any complaint against those Insurance Brokers even they are not impleaded as a party in the present complaint and moreover after purchasing policy the free look period is 15 days, within that period the insurer has right to return the policy and get back the premium whatsoever deposited with the Insurance Company but in this case the complainant has not approached the Insurance Company within stipulated period of 15 days and as such there is no deficiency on the part of the OP.
8. We have sympathetically considered the case of the complainant as well plea taken by the OP and find that the complainant has not made any specific allegation against the OP i.e. Birla Sun Life Insurance Company Ltd in regard to deficiency of service, the allegations made against the Insurance Company is only that the Insurance Company failed to return the amount of the premium deposited by the complainant for two policies. But as per settled law the premium of the policy can be refund to the Insurer if the Insurer apply to the company within a stipulated period of 15 days (Free Look Time) but in this case the complainant has not applied to the Insurance Company within that period and therefore the complainant is not entitled for the relief for the refund of the premium of the both insurance policy.
9. Apart from above it has been established on the file that the complainant after making a payment of first premium of both the policy, they are failed to deposit the next installments and these factum has been admitted by the complainant in the complaint as well as in the letter Ex.C1 dated 18.11.2015 and due to that reason the claim of the complainant for refund of the premium of both policy, has been declined by the OP vide letter Ex.C4 dated 05.03.2015 and letter Ex.C6 dated 30.12.2013 and as such we find that the claim of the complainant is rightly declined by the Insurance Company.
10. From the pleadings of the complaint, it is out rightly clear that the allegation made by the complainant in the complaint are a cheating committed by four persons namely Mr. Nitin Malhotra, Mrs Tanvir, Shekhar and Aditya through whom the complainant invested the amount in the policies of Birla Sun Life Insurance Company but said four persons are not proved to be the agent of the OP rather as per the version of the OP they are Independent Insurance Brokers and if any fraud, misrepresentation has been committed by the said four persons then they are liable but the OP i.e. Insurance Company is not liable for the act of the Independent Insurance Brokers, any action can be taken against the Insurance Brokers by the Insurance Regulatory and Development Authority, to whom the complainant can approach, if he has any grievance and moreover when plea of fraud/mis representation has been taken as clear from the complaint as well as from the letters of the complainant Ex.C3, Ex.C5 and Ex.C7, then the jurisdiction of the District Forum is barred because whenever any fraud is alleged to be committed then it requires voluminous evidence as well as documents and lengthy cross-examination of the witness and which can only be dealt with by a Civil Court and from this angle the complaint of the complainant is also not maintainable and accordingly we do not find any force in the argument put forth by the complainant himself and therefore the complaint of the complainant is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
05.04.2017 Member President
