DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
CC.No.263 of 02-07-2013
Decided on 06-12-2013
Dr.Sanjay Garg aged about 47 years S/o Ved Parkash C/o Delhi Nursing Home, Bibiwala Road, Bathinda.
........Complainant
Versus
1.Birla Sun Life Insurance Company Ltd., Regd. Office: One Indiabulls Tower I, 15th & 16th floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai-400013, through its Managing Director.
2.The Branch Manager, Birla Sun Life Insurance Company Ltd., The Mall, Bathinda-151001.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Sanjay Goyal, counsel for the complainant.
For Opposite parties: Sh.Varun Gupta, counsel for opposite parties.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that in the year 2004-05, the representative of the opposite parties allured the complainant by claiming various schemes of the insurance and their benefits and further claimed that Birla Sun Life Insurance Company Limited is the best service provider in the field of the insurance and also assured to provide him the best service. On the allurement of the opposite parties, the complainant has purchased an insurance policy bearing No.000162544 for Rs.5 lacs with the annual premium of Rs.29,000/- approximately and paid the annually premiums upto 5 years. However no service has been provided by the opposite parties to the complainant as claimed by their representative at the time of selling of the abovesaid policy. The complainant enquired and came to know that the representative of the opposite parties has cheated him by making the false claims and nothing is found in the abovesaid insurance policy, rather the investment made by the complainant was decreasing from the original amount too. The complainant requested the opposite parties to refund the amount paid by him. However despite repeated requests, no payment of the due amount under the policy in question has been made by the opposite parties to him on one or the other pretext. The opposite parties have written the letter on dated 11.8.2010 to the complainant alleging that the signature on the cash withdrawal form does not match with their record. The complainant has sent another cash withdrawal form duly attested as required by the opposite parties, but again no payment has been made by them. The complainant made number of complaints to the higher officials of the opposite parties and to different authorities and ultimately, the representative of the opposite parties contacted him and got his signatures on various papers on the pretext that due payment under the policy in question shall be made to him within a week. On believing the assurance of the representative of the opposite parties, the complainant has signed on the papers as required by them without going through the contents of the same. The complainant has received the amount of Rs.50,000/- only from the opposite parties. Thereafter the complainant approached many times to the opposite parties and requested them to refund the remaining due amount, but their officials refused to refund the same and told him that another insurance policy has been issued to him in lieu of the balance payment under the abovesaid policy. The complainant has neither purchased any alleged second policy nor any second policy has been ever issued to him. Even the officials of the opposite parties refused to divulge any information of the second policy issued in lieu of the balance payment of the policy in question. No prudent person shall purchase any second policy when he was not satisfied with the first policy and when he has already suffered the loss in the first policy. The complainant approached the higher officials of the opposite parties and apprised them from the situation being faced by him, but to no effect. The complainant has also got served a legal notice dated 3.5.2013 to the opposite parties, but all in vain. Hence the complainant has filed the present complaint to seek the directions to the opposite parties to refund the balance amount of the policy bearing No.000162544 alongwith interest, cost and compensation.
2. The opposite parties after appearing before this Forum have filed their joint written statement and pleaded that the complainant himself approached their adviser and got the entire information about all their insurance plans. Thereafter, the complainant opted to purchase 'Flexi Cash Flow Money Back' plan and filled an application form for the same. After receiving the said application, the underwriters had issued the insurance policy as per the contents of the proposal form and sent the policy documents alongwith its all terms and conditions to the complainant that are in his possession. As per the provisions of the Insurance Act, 1938 IRDA Act, 1999 and rules and regulations made thereunder the insured has an option to reconsider the policy under the Free Look Period option, meaning thereby if he is not satisfied with the terms & conditions of the abovesaid policy, he has the option to cancel his policy within 15 days from the date of receipt of the policy. In such a case, the policy fund value plus all charges till date (excluding the fund management charges) will be paid to the applicant. The complainant regularly paid annual premiums to the opposite parties against the abovesaid policy. The complainant opted to purchase a 'Unit Linked Life Insurance Policy' and as per its terms and conditions that are already in his possession, there is specifically mentioned that 'In Unit Linked Plan, the investment risk in the investment portfolio is borne by the policyholder'. On the terms and conditions of the abovesaid policy, it is mentioned that this is a 'Unit Linked Insurance Policy'. The actual payment of benefits in this policy will vary, based on the actual performance of the investment Fund(s) chosen by the policyholder. The Unit Price of any Investment Fund may increase or decrease as per the performance of the financial markets. The past performance of these or other Investment Funds offered by the company do not indicate the future performance of these Investment Funds. The names of the Investment Funds and that of the policy do not in any way indicate the quality of the returns that can be expected from the Investment Funds. The Insured opted a Unit Linked Life Insurance Plan and this plan is entirely different from the traditional Insurance Plans and is subject to different risk factors. On receiving the request of the cash withdrawal, the opposite parties found that the signatures of the complainant did not match with the signatures which were already in their possession and for this, they have issued the letters dated 11.8.2010 and 17.8.2010 to the complainant to re-submit the form and other required documents as mentioned in these letters, but he himself delayed to submit the same and the opposite parties were unable to process his request. The complainant himself approached the adviser of the opposite parties to purchase one more policy and for this, he submitted the consent letter for the withdrawal/fund transfer and made declaration that 'I wish to withdrawal and transfer Rs.30,000/- to the new policy for which I am submitting fresh application bearing No.A40223454 alongwith this letter and made further declaration that my insurance agent has explained the implications of above decision and I have taken this decision of my own volition knowing fully that this may entail additional charges, costs and loses on my earlier and or new policy. I undertake to hold the company harmless under all circumstances'. The complainant was very well aware about his decision regarding the purchase of the new policy and purposely made false allegations against the opposite parties just to get undue benefits. At the time of making the request for the cash withdrawal against the abovesaid policy, the fund value on that day was approximately Rs.80,000/- and as per the wishes of the complainant, the opposite parties paid Rs.50,000/- to him and the remaining amount has been adjusted against the new policy purchased by him. Thus there is no deficiency in service on the part of the opposite parties.
3. The parties have led their evidence in support of their respective pleadings.
4. Arguments heard. The record alongwith written submissions submitted by the parties perused.
5. The allegations of the complainant are that he has purchased an insurance policy bearing No.000162544 for Rs.5 lacs with the annual premium of Rs.29,000/- approximately and paid annual premiums upto 5 years. As the complainant was not satisfied with the service provided by the opposite parties, he requested them for the cash withdrawal of the abovesaid policy. Despite his request, no payment has been made to the complainant. The opposite parties sent a letter on dated 11.8.2010 to the complainant alleging that the signature on the cash withdrawal form does not match with their record. The complainant has sent another cash withdrawal form duly attested as required by the opposite parties, but again no payment has been made by them to him. The complainant made number of complaints to the higher officials of the opposite parties and to the different authorities and ultimately, the representative of the opposite parties contacted him and got his signatures on various papers on the pretext that due payment under the policy in question shall be made to him within a week. On believing the assurance of the representative of the opposite parties, the complainant has signed on the papers as required by them without going through the contents of the same. The complainant has received the amount of Rs.50,000/- only from the opposite parties. Thereafter the complainant approached many times to the opposite parties and requested them to pay the remaining due payment, but he was conveyed by them that one more insurance policy has been issued to him in lieu of the balance payment under the abovesaid policy, whereas he has neither purchased any second policy as he was not satisfied with the first policy, so there was no question to purchase the second policy. Hence the second policy sold to the complainant without his consent making false claims, amounts to deficiency in service on the part of the opposite parties.
6. On the other hand the submission of the opposite parties is that the complainant himself opted to purchase 'Flexi Cash Flow Money Back' plan and filled an application form for the same. After receiving the said application, the underwriters had issued the insurance policy as per the contents of the proposal form and sent the policy documents alongwith its all terms and conditions to the complainant that are in his possession. If the complainant was not satisfied with the terms and conditions of the abovesaid policy, there was an option to reconsider the policy in Free Look Period meaning thereby he has the option to review/cancel his policy within 15 days from the date of receipt of the policy, but he did not do so. The complainant paid the annual premiums to the opposite parties against the abovesaid policy. The complainant has purchased a 'Unit Linked Life Insurance Policy' and as per its terms and conditions that are already in his possession, there is specifically mentioned that 'In Unit Linked Plan, the investment risk in the investment portfolio is borne by the policyholder'. On receiving the request of the cash withdrawal, the opposite parties found that the signatures of the complainant did not match with the signatures which were already in their possession, hence they have sent the letters dated 11.8.2010 and 17.8.2010 to the complainant asking him to re-submit the form and other required documents as mentioned in these letters, but he himself delayed to submit the same and the opposite parties were unable to process his request. The complainant himself approached the adviser of the opposite parties to purchase one more policy and submitted the consent letter for the withdrawal/fund transfer and has signed the declaration to the effect that he wish to withdraw and transfer Rs.30,000/- to the new policy for which he submitted the fresh application bearing No.A40223454 alongwith this letter and made further declaration to the effect that his insurance agent has explained the implications of the above decision and he has taken this decision of his own. At the time of making the request for the cash withdrawal against the abovesaid policy, the fund value on that day was approximately Rs.80,000/- and as per the wishes of the complainant, the opposite parties paid Rs.50,000/- to him and the remaining amount has been adjusted against the new policy purchased by him.
7. The opposite parties have taken the legal objection that this complaint is barred by limitation as the cause of action arose in the year 2010. The complainant has deposited 5 premiums of Rs.29,000/- approximately for 5 years and the amount of Rs.50,000/- has been refunded to him and Rs.30,000/- has been invested by the complainant in one new policy. As the amount of Rs.30,000/- has not been refunded to the complainant, thus this is continuous cause of action, hence the objection of the opposite parties is not tenable. Further the support can be sought by the precedent laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Laxshmi Bai & Ors. Vs. ICICI Lombard General Insurance Co. Ltd. & Ors., 2011 (3) CPC 367, wherein it has been held:-
“Consumer Protection Act, 1986-Sections 14(1)(d), 21(b) and 24-A-Insurance scheme-Limitation-Continuing cause of action-Insurance scheme initiated for persons below poverty line-Complaint dismissed on the ground of limitation as it was filed 2 years after cause of action-There was continuity of cause of action until assured amount was paid-Dismissal of complaint as time barred unjustified-Order set aside-Case remanded to District Forum to re-decide the matter.”
8. The complainant has purchased an insurance policy bearing No.000162544 for Rs.5 lacs with the annual premium of Rs.29,000/- approximately and paid the annual premiums upto 5 years. The complainant requested for the refund of the amount paid by him to the opposite parties. The opposite parties have refunded the amount of Rs.50,000/- and issued one new policy in lieu of the balance payment under the abovesaid policy, whereas no such request was ever made by the complainant for the issuance of the new policy. The opposite parties have specifically submitted that the complainant himself approached their adviser to purchase one new policy and submitted the consent letter for the withdrawal/fund transfer and made declaration to the effect that he wish to withdraw and transfer Rs.30,000/- to the new policy for which he is submitting fresh application bearing No.A40223454 alongwith this letter.
A perusal of consent letter, Ex.OP1/3 shows that this letter has been submitted by the complainant for the withdrawal/fund transfer. The relevant portion of Ex.OP1/3 is reproduced:-
“I wish to withdrawal this/these policy/ies and transfer the withdrawal complete value or Rs.30,000/- to the new policy/ies, for which I am submitting fresh application bearing No.A-40223454 alongwith this letter.
My insurance agent has explained me the implications of my above decision and I have taken this decision of my own volition knowing fully that this may entail additional charges, costs and losses on my earlier and/or new policy/ies. I undertake to hold the company harmless under all circumstances.”
A perusal of above mentioned letter shows that in this letter it has been specifically mentioned that 'I wish to withdraw this/these policy/ies and transfer the withdrawal complete value or Rs.30,000/- to the new policy/ies, for which I am submitting fresh application bearing No.A-40223454 alongwith this letter', here no option is ticked by the complainant. This proforma of consent is general, not a specific one. Moreover enclosures mentioned at the bottom of this letter:-1.Withdrawal form and 2. Application forms alongwith signed benefits illustration. But no withdrawal form or benefits illustration have been placed on file by the opposite parties, meaning thereby Ex.OP1/3 is the consent letter for the withdrawal/fund transfer, not for issuing of the new policy. In the garb of the consent letter for the withdrawal/fund transfer, the opposite parties have issued the new policy without seeking the valid consent from the complainant as the language in this consent letter is vague as per the settled law if any document is vague/ambiguous it will not be read in favour of the generator of that document, rather it be read in the favour of the complainant as he has signed only for the withdrawal of the policy under bonafide belief considering it withdrawal of Rs.30,000/-, not for the issuance of the new policy of Rs.30,000/-.
9. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.5000/- as cost and compensation against the opposite parties. The opposite parties are directed to pay the amount of Rs.30,000/- alongwith other benefits if any with interest @ 9% per annum since 9.6.2010 till realization and the policy so issued by the opposite parties will stand cancelled.
10. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.
11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum:-
06-12-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
