OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.93/2013
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
Sri Bipul Sarmah -Complainant
S/O Late Sarat Ch.Sarmah,
Gate No.3, Maligaon,
Guwahati-11
-vs-
1) Birla Sun Life Insurance Company Limited - Opp.party
Regd.Office: One Individual Center,
Tower-1,15th & 16th Floor,
Jupiter Mill Compound,841,
Senapati Bapat Marg, Elphinstone Road
Mumbai-400013.
2) Birla Sun Life Insurance Company Limited
G Corp Tech Psrk,6th Floor
Kasar Wadavali, Ghodbunder Road,
Thane-400601.
3) Birla Sun Life Insurance Company Limited
Branch Manager,
Chandmari, Guwahati-3.
Appearance-
Learned advocates for the complainant - Mr.Swapan Barman.
Learned advocates for the opp.party - Mr.Samrat Saha Roy.
Date of argument- 12.4.2017
Date of judgment- 26.4.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Bipul Sarma against Birla Sun Life Insurance Company Limited and three others was admitted on 24.9.13 and notices were served on the opp.parties and they also filed written statement. Thereafter, the complainant filed his evidence in affidavit and he was cross-examined by the Ld. counsel of the opp.party side. The opp.party side did not adduce any evidence. Both sides’ Ld.counsels’filed respective written argument and thereafter on 12.4.2017 we have heard argument of Ld. advocate Mr.Sapan Barman and of Ld. Advocate Mr.Samrat Saha Roy for the opp.parties and today we deliver the judgment which is as below-
2) The gist of the complaint is that the complainant did a insurance with the opp.party in the year 2012 and he paid Rs.20,000/- on 28.5.2012 as first premium vide cheque No.496035, collected by one Sri Sanjib Roy; and the next premium’s due date was 30.5.2013 and he tried to contact the agent of the opp.party over phone to pay the second premium, and also tried to contact him in the said address , but since May,2013 no one has came up for collecting the premium for him; and he also sent a e-mail to the opp.party, but no response found. As per norms of the policy document, the policy holder is directed to check an e.mail I.D. and mobile phone through which they will issue reminder for payment and collection of premium, but all these assurance are false because in spite of his repeated intimation the opp.party did not take any step to collect the premium from him in time; and being compelled, he contacted opp.party over telephone vide No. 9800931765 belong to Advisor’s office of the opp.party as well as the Branch Contact No.02266917777, but he found no response from them; and then he, on 12.7.2013, 16.7.2013, contacted the officers of the opp.party in their toll free number given in the policy documents and they also responded that they were unable to send their agent to collect the due premium, and also informed him that the policy has lapsed. It was the burden of the opp.party to collect the premium from him and they failed to collect the premium from him, although, he contacted them repeatedly; and all the assurance given by them in the policy document are also falses; and this act of the opp.party is utter negligence and deficiency of service towards him; and he ,therefore, prays to direct the opp.party to return the amount which he paid on 20.5.2012 with interest and also to pay him compensation for suffering from mental agony and Rs.50,000/- for loss of his valuable time of practice.
3) The gist of the pleading of the opp.party is that the complaint is not maintainable and no cause of action raised in favour of the complainant; the complaint is malafide and baseless; They were no negligence or deficiency of service towards the complainant. As per Cl.6(2) of the Insurance Regulation and Development Autority (Protection of policy holder’s interest) Regulations,2002 “While acting under regulation 6(1) in forwarding the policy to the Insured, the Insurer shall inform by letter forwarding the policy that he has a period of 15 days from the date of receipt of the policy document to review the terms and conditions of the policy and where the insured disagrees to any of those terms and conditions, he has the option to return the policy stating reasons for his objections, when he shall be entitled to a refund of the premium paid, subject only to a deduction of a proportionate risk premium for the period on cover and the expenses incurred by the insurer on medical examination of the proposer and stamp duty charges. As per the Regulation ,2002- the policy holder may take step for review the terms and condition of the policy within 15 (fifteen days) from the date of receipt of the policy documents and the policy holder has the right to return the policy stating reasons within that period subject to deduction of stamp duty charge, but such right shall immediately stand extinguished after the cancellation of the policy. If the dispute involves complex factual position, then the matter should be examined by an appropriate court of law, not by Commission and other consumer disputes redressal bodies. The present case involves complex question of facts and law and hence the complainant should be directed to approach Civil Court for meeting up his grievances. The complainant was aware of the requirement to give correct answer and about contents of the answers. The policy was for twenty years for which sum assured was Rs.3,02,670/-, and the proposal form was filled up by the complainantm and was also signed by him after understanding the terms and condition of the policy. The policy commenced from 30th May ,2012 and the policy documents was sent to him on 18.6.13 through speed post and it was also received by him and the next premium date was 30th May,2013, but the complainant failed to make payment of second premium even after repeated reminders and letters were given to him and accordingly policy was lapsed with effect from 30.5.2013 and after expiry of the validity date, on 8.8.13 the same was communicated to him vide our letter dtd., 9.7.13 and he was also informed that there was opportunity to revive the policy within two years from the date of lapse; yet he failed to make the payment of the defaulted premiums nor heed towards the same. They received a quary from the complainant in the month of July 2013; and they vide letter 11.7.2013 informing that the policy was issued on 30.5.2012 and there was given thirty days grace period to pay unpaid premium, but they did not find to receive renewal premiums from him, and hence the policy ceased to be in force with effect from 30.5.2013. The complainant, knowing all these facts, deliberately failed to make the renewal premiums. The contract between the complainant and them is
the contract of insurance is a contract of uberrimae files and as the Opp.Parties have performed their part of the contract by providing proper services and covering the risk of the life of the complainant from the date of commencement of the policy and as such the complainant is estopped from challenging the contract as such a belated stage.
They have not violated any terms and conditions of policy document nor they are any deficiency in service towards the complainant , but the complainant himself failed to comply with the policy conditions by not paying the renewal premium in spite of reminders, in result of which, the policy has lapsed, and therefore, he is not entitled to get back the premium which had been paid by him or the compensation prayed by him.
4) We have perused both sides’ pleading as well as the evidence adduced by the complainant and it is found that it is both sides’ admitted fact that the complainant, Sri Bipul Sarma had opened an insurance policy with the Birla Sun Life Insurance Company Limited (opp.party) on 28.5.2012, and he had paid first premium Rs.20,000/- as yearly premium vide cheque No. 1496035, and the said amount was accepted by the opp.party and the second installment was due on 30.5.2013, but the second premium was not paid by the complainant and he also did not take step to revive the policy within the grace period of thirty days and thereafter.
5) As per complainant, it is the responsibility of the opp.party to collect the premium from his residence, but the opp.party did not collect the same from him in spite of his repeated communication to the opp.parties. In this case, the opp.parties’ plea is that, the payment of premium is the sole responsibility of the complainant himself, but the complainant neither paid the second premium, nor prayed for revival of the policy within grace period of thirty days and thereafter and in result the policy lapsed. Their second plea is that there is no agreement between them and the complainant that their premium is to be collected by the opp.party through their agent or by themselves. Perusing the evidence of the complainant it is found that in the cross-examination, the complainant specifically states that he had signed the policy agreement and that in the policy agreement there is no mention of collecting premium by the agent of the opp.party that personally and that there is also no agreement for collecting the premium by the agent of the opp.party. From these versions of the complainant (P.W.1), it is crystal clear that there is no agreement between the complainant and the opp.party that premium was to be collected by the agent of the opp.party personally. Secondly, the complainant is found to admit that he signed the proposal form at the time of taking the policy. Thus, it shall be presumed that at the time of signing the proposal form and the policy agreement, the complainant was aware of the terms and conditions of the agreement. It is also found that there is no term and condition in the agreement that the agent of the opp.party would collect the premium from the complainant personally, meaning thereby, the complinant knew well that it is his responsibility to pay the premiums personally and the opp.party is not responsible for collecting the premiums from him. Thirdly, this also found that he complainant side has failed to prove that he attended the branch of the opp.party at Guwahati for enquiry about procedure of payment of the premium after payment of first premium . Fourthly, as he signed the policy agreement knowing all the terms and condition, he is supposed to know all the terms and conditions of the said agreement including the provision of renewal of the policy by depositing the defaulted premium within thirty days of grace period from the due date of payment of the premium. It is found that the complainant never approached the opp.parties for revival of the policy by paying the defaulted premiums (second premium) within the grace period of thirty days or in any occasion after that period. Thus, it is crystal clear that the complainant deliberately did not pay the premiums after the payment of first premium and also deliberately avoided to take step to revive the policy. It is also found from the pleading of the opp.parties that the policy ceased to be in force with effect from 30.5.2013 due to failure of the complainant to deposit the second premium and renew the policy by depositing the defaulted premium which is admitted the complainant. It is also seen that the complainant prays for directing the opp.parties to refund him Rs.20,000/-, the first premium he had paid with interest. Now, question is that whether he is entitled to get back that amount. We have perused the policy agreement which is Ext.3, and found that policy condition is that if the complainant fails to pay premium by due date, he will be given grace period of thirty days during which time all benefits under the policy will continue, but until three full years premium repaid if opp.party do not receive the entire premiums by the end of grace period the policy will be deemed lapsed and all benefits will ceased immediately and the lapsed date is the date the unpaid premium was due and the complainant will be given two years from the lapsed date to reinstate his policy as well as once three full years installment premium have been paid, if opp.party do not receive the entire installment premium by the end of grace period this policy will be deemed paid up and benefits will continue as per the policy paid up provision and the paid up date is the date the un paid premium was due and the complainant will be given two years from the paid up with to reinstate the policy for its full benefit. In this case, it is already established that, the policy was not renewed by the complainant within the grace period of thirty days nor it was reinstated within two years. As the policy was neither renewed nor reinstated, it has lapsed, meaning thereby it has ceased to be effective. Therefore, we hold that under the policy which is in the hand of the complainant, the complainant will not get any benefit nor entitled to refund of the first premium he had paid. Therefore, we hold that the opp.party is not liable to refund the first premium which is Rs.20,000/- deposited by the complainant .
5) Because of what has been discussed as above, we hold that the complaint filed against the opp.parties has no merit and therefore, it is liable to be dismissed. Accordingly, the complaint as filed is dismissed on contest.
Given under our hands and seals in this day of the 26th April, 2017.
Free copies of judgment be delivered to the parties.
(Smti A. D. Lahkar) (Md.S.Hussain)
Member President
