Punjab

StateCommission

FA/13/307

Shally Mittal - Complainant(s)

Versus

Birla Sunlife Insurance Co. Ltd. - Opp.Party(s)

Rajesh Goel, Jatin Kumar Sourab Bindra and Robin Khanna

05 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 307 of 2013

                                                           

                                    Date of institution: 19.3.2013 

                             Date of Decision:    5.2.2015

 

1.       Shally Mittal w/o Sh. Manoj Gupta D/o Sh. Sharan Kumar Gupta through attorney Sharan Gupta s/o Sh. Devi Chand Gupta r/o House No. 21, FF, HIG Flats, Rajguru Nagar, Ludhiana.

2.       Sh. Sharam Gupta s/o Sh. Devi Chand Gupta r/o House No. 21, First Floor, HIG Flats, Rajguru Nagar, Ludhiana.

…..Appellants/Complainants

                                      Versus

Birla Sunlife Insurance Company Limited, through its concerned Officer, SCO 124, Ground Floor, Feroze Gandhi Market, Ludhiana.

Alternative Address : One India Bulls Centre Tower-1, 15^th and 16^th Floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinc Stone Road, Mumbai-400013

…..Respondent/Opposite Party

 

First Appeal against the order dated 29.1.2013 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellants            :         Sh. Deepak Goyal, Advocate for

                                                          Sh. P.M. Goyal, Advocate

          For the respondent :         Sh. Nitin Thatai, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellants/complainants (hereinafter referred as “the complainants”) have filed the present appeal against the order dated 29.1.2013 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as “the District Forum”) in consumer complaint No.598          dated 19.7.2012 vide which the complaint filed by the complainants was disposed off that the matter is of complicated nature require deeper probe, investigation, which require lengthy evidence and cross-examination of the witnesses and the parties were allowed to avail their remedy before the Civil Court.  

2.                The complaint was filed by the complainants under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondent/opposite party(hereinafter referred as ‘the OP’)  on the allegations that she is policy holder of Life Insurance Policy bearing No. 005067031 dated 27.8.2011 and complainant No. 2 is her nominee. The respondent had managed to sell to the complainant the policy by using unfair trade practice and by giving false representations through their Broker, namely, Endeavour Insurance Broking Limited. Complainant No. 2 is a retired person and was having insurance policy in Metlife. On 6.8.2011, complainant No. 2 received calls from the person, who introduced himself as Suresh Jain, M.B.A., Investment and from Customer Service Department IRDA and he pointed out some drawbacks in the Metlife policy. He further assured that he could get the existing plan cancelled and can help complainant No. 2 in getting back amount of Rs. 2,09,410.13p and Government is launching an IPO of Coal India Advantage Fund and he can get allotment of the said fund @ Rs. 6.27 for complainant No. 2 and that the said fund will reach to Rs. 21/- within two months and the difference of the rate will be paid to complainant No. 2 in the month of October, 2011 and that all the investment made by him will be one time investment and accordingly, complainant No. 2 agreed to purchase 17 policies, total amounting to Rs. 12,47,312/- in the name of daughters, namely, Renu Gupta and Shally Mittal and 15 policies were in the name of complainant No. 2. He further advised to answer the inquiry from the different insurance companies so as to get smooth investment. For some time, Suresh Jain was in touch with respondent No. 2 and after that he stopped attending his calls. However, when the complainant became suspicious of the conduct of Suresh Jain then she started probing the matter and came to know that she will have to pay the premium of all the policies to the tune of Rs. 12,00,000/- per year and that the Broker had received upto 50% to 60% commission and the policies are of the tenure of 10 to 20 years, therefore, these policies have been given by playing fraud with the complainant. Legal notice was served upon the OP but to no response. Hence, the complaint was filed against the Ops to pay back the premium paid by the complainant to the tune of Rs. 76,000/- alongwith interest @ 24% p.a., to pay litigation expenses of Rs. 11,000/- and compensation of Rs. 1 lac.

3.                The complaint was contested by the Op, who filed written reply taking preliminary objections that the complaint was not maintainable as the complainant had attempted to misguide and misled the Forum; the complainant had no cause of action to file the complaint; she does not come within the definition of the ‘consumer’; the complaint was not maintainable for want of compliance under Section 12(1)(c) of the Act; the complaint was bad for non-joinder of necessary party i.e. Endeavour Insurance Broking Pvt. Ltd. and Suresh Jain; the policies were purchased with a clear motive of investment and earning huge profits and in case the policy has been purchased for the purpose of investment then the complainant does not come within the definition of the ‘consumer’; the life assured had filled up the proposal form No. A 44656180 dated 9.8.2011 for the purchase of BSLI Bachat Moneyback Plan and consequently, policy No. 005067031 dated 27.8.2011 was issued. Before accepting of the proposal form, the contents of the proposal form, illustrations and addendum in forms were read over and explained to the life assured. The proposal form was processed and then the policy was issued. In case any person signs any document, there is a presumption that he/she knows its contents. The life assured did not avail the opportunity to cancel the policy within the free look period of 15 days. The policy holder was to pay Rs. 25,000/- every year and its term was 10 years. She did not pay the premiums as per schedule, therefore, his policy had lapsed. Moreover, the complainant policy holder is Doctor, well educated, therefore, she knows the contents of the documents, she signed and the policy documents received by her. There was no deficiency in services on the part of the OP; complicated questions of facts and law were involved, therefore, the matter be relegated to the Civil Court; complaint was false, frivolous and vexatious to the knowledge of the complainant, therefore, it be dismissed with special costs. On merits, the same pleas were reiterated and ultimately, it was submitted that the complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence affidavit of Sharan Gupta Ex. CA, welcome letter Ex. C-1,  legal  notice  with  postal receipt dt. 12.7.12 Exs. C-2 & 3, special power of attorney Ex. C-4, copy of I-card Ex. C-5, proposal form copy Ex. C-6, schedule of payment Exs. C-7, 8, 9, First Premium Certificate Exs. C-10, 11, 12, 13, policy schedule of Reliance Policy Exs. C-13-A, 14, Aegon Religare policy particulars Exs. C-15, 16, 17, policy details of Birla Sun Life Ex. C-18, Schedule of Bajaj Allianz Cash Gain Economy Ex. C-18-A, income tax return copy Exs. C-19, 20, 21, 22, 23, Form No. 16 Ex. C-24, 25, 26. On the other hand, the opposite party had tendered into evidence affidavit of Santoshmurthy Vashista, Ex. RA.

6.                After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the complaint of the complainant was disposed off as stated above.

7.                In the grounds of appeal, it has been contended that the order so passed by the learned District Forum is against the facts and law. The entire evidence of the parties have come on the record and after that referring the parties to the Civil Court is not an appropriate order, therefore, the order so passed by the learned District Forum be set-aside and the appeal be decided on merits by the learned District Forum.

8.                In case we go through the impugned order passed by the learned District Forum, the matter has been referred to the Civil Court on the grounds that there are allegations of fraud committed by the Ops and for that appropriate evidence, examination and cross-examination of the witnesses is required. In case we go through the allegations in the complaint, the allegations of fraud and mis-representation have been levelled against Mr. Suresh Jain of Endeavour Insurance Broking Limited, who is Sub-Agent of the opposite party. In case there were such allegations against Mr. Suresh Jain then he should have been made a party and in his absence allegations as alleged by the complainant cannot be decided. Otherwise, the complainant is an educated Lady, Doctor by Profession, she knows what were the contents of the proposal form when she filled up the proposal form. It has been held by the Hon’ble Apex Court in case “Grasim Industries Ltd. Vs. Aggarwal Steel”, 2009(4) CCC 598 : 2010 (1) SCC 83 wherein it was observed by the Hon’ble Supreme Court that ‘when a person signs the document, there is presumption, unless there is proof of force or fraud that he has read the document properly and understood it. Presumption is stronger in case of businessmen they being careful people.’ Similarly here the complainant is educated lady, Doctor by profession, therefore, in case she had signed the proposal form then there is presumption that she had understood the nature of the policy. There is no allegation that she did not receive the policy documents. After going through the policy document in case she was not satisfied with the nature of the policy then she had a 15 days free look period to cancel the policy but that option was not exercised by the complainant, therefore, the policies are governed by the terms and conditions of the policy.

9.                Both the parties have led their evidence, on the basis of that evidence we can decide it whether the complaint of the complainant has any merit. Moreover, the Presiding Officer of the District Forum are mostly manned by the retired District Judge and they have good experience at their back to decide these type of matters. A reference can be made to the judgment of the Hon’ble Supreme Court in the case of “Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi”, 2002(6) SCC 635 that:-

‘the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora’ after obtaining evidence and if need be after getting an expert opinion’.

 

10.              It was further held by the Hon’ble National Commission in “Shiv Kumar Agarwal versus Arun Tandon and another”, 2007(2) CLT 287. In that case – plea that case involves complicated questions of act and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled – Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have complete their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter.

11.              In view of the above, we are of the opinion that it was not appropriate for the District Forum to refer the matter to the Civil Court. In view of the above, we accept the appeal. The impugned judgment is hereby set-aside. The complaint is remanded back to the learned District Forum to decide it on merits without referring the matter to the Civil Court.

12.              The parties through their counsel are directed to appear before the learned District Forum, Ludhiana on 18.3.2015. Copy of the order alongwith record of the District Forum, Ludhiana be sent back forthwith.

13.              The arguments in this appeal were heard on 28.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

14.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

                                                                      (Gurcharan Singh Saran)

                                                                          Presiding Judicial Member

 

February 5, 2015.                                                                                                                                   (Jasbir Singh Gill)

as                                                                                                                                                                   Member