Sri. P. Satheesh Chandran Nair (President):
The complainant filed this petition u/s.12 of the C.P. Act 1986.
2. The case of the complainant is briefly stated as follows: The complaints are husband and wife. The 1st opposite party is a trading insurance company. The 2nd opposite party is the authorized corporate sales partner of the 1st opposite party. The other opposite parties are officials of this opposite parties. According to the complainant in December 2007, some personnel of 2nd opposite party approached the complainants as part of sales promotion and they made the complainants to believe that M/s Birla Sun Life Insurance Co. Ltd was having unique investment plan called “Gold Plus II” similar to a term deposit, but with life coverage and great returns. They also promised that if the complainants invest for four consecutive years, they will get a minimum guaranteed annual growth of 12% or more and the invested amount will be returned along with the growth after 3 years. On the basis of this assurance the petitioners invested a total amount of Rs. 5,00,000/- on 28.12.2007. Subsequently Policy No.001365531 and 001365711 were respectively issued to the 2nd complainant. The complainants remitted Rs.10,000/- each as renewal premium for second, third and fourth years. The complainants contented that, the above said sales personnel obtained the complainant’s signature on the proposal form and other papers. But no authentic literature was supplied and no proper communication was effected according to their promises. It is submitted that all these documents were kept in the custody of the opposite party M/s Catholic Syrian Bank Ltd. Kumbanad branch till the death of first complainant. On February 2014, the petitioners received two account statements from the 1st opposite party to the effect that, the 1st complainant had a fund value of Rs. 58,976.58/- only and the 2nd complainant had a fund value of Rs.1,32,198/- only. This information was really shocked to the complainants. According to them, the fund values stated above are actually 1/4th and 1/2th of the promised maturity value. It is submitted that, the above said arrival of fund value has no logic or ethic. The above mentioned acts of the opposite parties are unethical and unfair trade practices which are also not tolerated. The complainants alleged that, all the material facts were either misrepresented or suppressed by their authorized personnel. The opposite parties charged exorbitant and unfair loads, charges and deductions for their calculations. In these circumstances, the petitioners issued lawyer’s notices to the opposite parties. All of them received it and given baseless, frivolous and untenable replies. According to the complainants, they sustained great financial loss and mental agony due to the above illegal acts of the opposite parties and the money invested is the price of their sweat and toils. According to them, they are entitled to get 12% interest to their entire investment from the date of payment to till its realization apart from compensation, cost etc.,
3. The 2nd complainant submitted that, since the 1st complainant is no more she is not pressing any claim for him as per this complaint. She is stick on her claim only. According to the 2nd complainant, the cause of action for this case is aroused on 28.12.2007, February 2014, 22.02.2014 and on 07.03.2014 and on subsequent dates with in the territorial jurisdiction of this Forum. Hence the complainant filed this petition for the relief stated above.
4. We entertained this complaint and documents filed by the complainants and ordered notice to all the opposite parties for their appearance. All the opposite parties entered appearance. 1st, 3rd, 4th and 7th opposite parties filed a joint version and opposite party 2 and opposite party 8 also filed a joint version. 5th and 6th opposite parties are also filed their version. But subsequently as per order dated 12.11.2014 in I.A.No.64/2014 the 5th and 6th opposite parties are deleted from the party array. The version of 1st, 3rd, 4th and 7th opposite parties are briefly stated as follows. According to this contesting opposite parties the complainant is not maintainable either in law or in fact since it is false, frivolous and vexatious. According to them, the complaint is not maintainable under Section 24A of the Consumer Protection Act. The said policy was issued in the year 2007 and 2008 respectively. According to them, the complainant has failed to approach the answering opposite parties within the free look period of 15 days, the date of receipt of the policy documents, with regard to any discrepancy in the policy terms and conditions. The fund value of the policy depends on the fluctuation and performance of capital market and the unit price of investment fund. Increase or decrease happened as per the performance of financial market. The opposite parties contented that, the policy documents were sent to the complaint on 28.12.2007 and 28.01.2008 respectively to the branch office and the same were received by hand by the complainant. The complainants are bound by the policy contract and given up/relinquish and waived their right by not exercising the freelook period. According to them, the complainants signed the proposal form and benefit illustrations at their free will and consent. Hence they are bound to follow the terms and condition of the policy. They again contented that, after the lapse of 6 years from the insurance policy, the complainant has not permitted to come forward and make a complaint with regard to the policy. This opposite parties again stated that, they received a duly filled and signed proposal form from the complainant seeking insurance policy as detailed below:
Policy No. | 1367511 | 1365591 |
Initial Premium | Rs. 2,50,000/- | Rs. 2,50,000/- |
Policy plan | BSLI gold plus II | BSLI gold plus II |
Policy Term | 8 years | 8 years |
Premium payment period | 3 years | 3 years |
5. This opposite parties categorically stated that, on the basis of information and declaration made in the above proposal forms, benefit illustrated form and other documents received and considering the same to be true and correct in all aspects, the opposite parties issued the above said policy to the complainant. It is stated that, despite the receipt of the policy and policy documents, the complainant did not approach this opposite parties for any discrepancy made in the proposal form or any grievances made in the policy or their terms and conditions during freelook period. The implication is that, the complainants are agreed the terms and conditions of the policy. This opposite parties again stated that, the complainants approached them on 19.01.2009 and 04.03.2009 for reducing the premium from Rs.2,50,000/- to Rs.10,000/- for the 2nd and 3rd renewal of the policy. In the light of this request 6th opposite parties accept the request of the complainants and reduce the annual premium to Rs.10,000/- wide letters dated 27.01.2009 and 17.03.2009 respectively. According to them, they did not induce the complaints to invest in the policies or made to sign any blank documents as alleged. The policies purchased by complainants are unit link policy subject to deduction of applicable policy charges. The policy fund value is based on the fluctuation and performance of capital market. These opposite parties did not indulge any unfair trade practice or make any misrepresentation. According to them, they have not committed any deficiency in services. Hence the complainants are not entitled to get any relief as per this case. These opposite parties are requested to dismiss the complaint with cost.
6. The version of 2nd and 8th opposite parties are briefly stated as follows. According to this opposite parties the complaint is not maintainable either in law or in fact. It is stated that, the 2nd opposite party is the authorized sales corporate partner of 1st opposite party is false and there is no joint or vicarious responsibility to other opposite parties as alleged by the complaint. It is stated that, this opposite parties did not insist the complainants to avail gold plus II scheme as alleged by the complainant. The roles of this opposite parties are limited to that of a corporate agent only. It is again contented that, they have not given any assurance or commitment to the complainants. The investment done by the complainants are purely based upon their wish and oblation. According to them, they only give a lead to the insurance company stating that, particular customer is interesting in availing policy. They also stated that, even if any difference in the policy the complainant could have very well approach the insurance company and redress their grievances within the free look period of 15 days. According to them, the premium amount is collected by the insurance company alone, if any dispute regarding policy arised it is only between the insurance company and the complainants. According to this opposite parties the complainants never effected payment on the basis of goodwill on them and also denied the allegation of the complainant to the effect that, they sustained financial loss and mental agony due to the illegal act of them. They categorically stated that, the complainants are not entitled to get any interest or damages from this opposite parties since they are acting only as a corporate agent and they did not commit any deficiency in service, negligence, unfair trade practice, misrepresentation and suppression of material facts. As per these opposite parties they are not jointly and severely liable to compensate the complainants or no cause of action arised against them as alleged by the complainant. Therefore, the opposite parties request to dismiss the complaint with cost to them. The 5th and 6th opposite parties are also filed version. But as stated earlier as per Order in IA 66/2014 dated 12.11.2014 they deleted from the party array. Hence there is no need to state the details of their version here.
7. We perused the complaint, version and records before us and framed the following issues for consideration.
- Whether this case is maintainable before this Forum?
- Whether the opposite parties committed any deficiency in
service or unfair trade practice as alleged by the complainant?
- Relief and costs?
8. In order to prove the case of the complainant, the 2nd complainant filed a proof affidavit in lieu of chief examination and she is examined as PW1 and marked Exts.A1 to A5. Ext.A1 is the copy of the lawyers notice dated 04.02.2014 sent by the complainant to opposite parties. Ext.A2 series are the postal receipts of Ext.A1. Ext.A3 series are the postal acknowledgement cards of Ext.A1. Ext.A4 series covers shown ‘addressee left’. Ext.A5 is the reply to legal notice sent by opposite party to the complainant’s counsel. In this case opposite parties 1, 3, 4, and 7 filed a proof affidavit but the person who filed the proof affidavit before the Forum did not turn up for adducing evidence. Apart from it, 2nd and 8th opposite parties also filed a proof affidavit in lieu of chief examination and he is examined as DW1. On the side of this DW1 no exhibits were marked. PW1’s proof affidavit in lieu of chief examination is more or less as per the tune of her complaint. According to her testimony some personal of the 2nd opposite party M/s Catholic Syrian Bank Ltd. Kumbanad branch approach them for this new insurance scheme and they made believe that M/s Birla Sun Life Insurance Co. Ltd. have unique investment plan “Gold Plus II” similar to a term deposit, it got life coverage and great return. In depositing this scheme it provided 12% or more annual growth and the investment amount will be returned along with the growth after three years. As a result of this inducement the complainant invested Rs.2,50,000/- on 28.12.2007 for the said scheme. On February 2014, they received a statement stating a fund value of Rs.58,976.58/- and Rs.1,32,198/- respectively for her husband and for her. The fund value statement was highly shocked and there is no logic and ethic in the statement. She again deposed that, the statements of accounts are confusing and cooked up. It is deposed that, both this Birla Sun Life Insurance Co. Ltd. and Catholic Syrian Bank are responsible for the damages caused to PW1 and all these opposite parties are jointly and severely liable for the damages sustained to PW1. Though she filed this case for getting relief to both her and her husband since husband is died she is not pressing for the relief of her husband. In order to substantiate the pleadings of the complainant as PW1, she marked as Ext.A1 to A5 as stated above. Ext. A1 to A3 are the proof of legal notice to the concerned opposite party and the proof of its issue and acceptances. Ext.A4 series are the notice issued by the complainant’s counsel against customer care unit of Birla Sun Life Insurance Co. Ltd. Andheri East, Mumbai, which was returned as endorsement ‘addressee left’. Though the complainant filed this Ext.A4 it is seen that, all of the opposite parties in the party array entered appearance and filed their version. Ext.A5 is the reply notice issued to the learned counsel of the complainant from Birla Sun Life Insurance Co. Ltd. on 5th May of 2014. When we peruse the Ext.A5, it is clear that they totally disputed all the claims of the complainant and on the basis of the terms and condition of the insurance they repudiated their claim. As per this Ext.A5, the Birla Sun Life Insurance Co. Ltd has taken a clear stand to the effect that, with full knowledge and awareness the PW1 and her husband has availed this policy and if they have any difference with regard to any of the conditions they could have been opted for freelook period. On the other hand, though opposite parties 1, 3, 4 and 7 filed a proof affidavit as stated above that deponent not turned up for facing a trial. It is true that, 2nd opposite party and 8th opposite party also filed a proof affidavit so that, the concerned bank manager of Catholic Syrian Bank was examined as DW1 in this case. When we examine the proof affidavit of DW1, we can see that the deposition in the chief affidavit are more or less as per the tune of version filed by 2nd opposite party and 8th opposite party in this case. According to the testimony of this DW1, he deposed that he has no vicarious responsibility to other opposite parties in this case and denied that, he is the authorized corporate sales partner of the 1st opposite party. He admitted that, as part of his banking business the bank entered in to an agreement with M/s. Birla Sun Life Insurance Co. Ltd. and his role is limited to that of a corporate agent. This DW1 never forced or induced any of its customers including PW1 to substantiate any amount to 1st opposite party in respect of the insurance scheme. According to DW1, he act as a corporate agent under the corporate agency tie up as approved by Reserve Bank of India and IRDA norms. According to this DW1 he categorically depose that, even if the complainant felt any difference in the said scheme they can very well used the free look period to surrender the policy without any loss of money. He again deposed that, the premium amount is collected by the insurance company hence the dispute regarding the policy has to be settled between the insurance company and the complainant. It is seen that, this DW1 has not produced any of the documents on his side for marking exhibits. After the closing of evidence, we heard the counsel for the complainant and counsel for the 2nd and 8th opposite party in this case.
9. Point No.1 : The main allegation of the 1st opposite party to 8th opposite party in this case is that the petition is not maintainable before this Forum either in fact or law. But when we examine the pleading, deposition and version of both sides it is pertinent to see that, the complainants paid a huge amount for this investment policy and 1st opposite party to 8th opposite parties are jointly and severely liable for the remittance of the amount and the complainant has every right to get all kinds of relief as alleged by the complainant or as per the terms and conditions of the agreement. As per the provisions of the Consumer Protection Act Section 2(d) the above evidences are sufficient and more to find that, the complainant is a consumer of all opposite parties and there is a genuine dispute existing between the parties. Hence point No.1 is found in favour of the complainant.
10. Point No. 2 and 3 : For the sake of appreciating the evidence of the case we would like to consider point No.2 and 3 together. As per this issue, the next question to be considered is whether the opposite parties committed any deficiency in service against the complainant. When we look in to the evidence it reveals that, this PW1 remitted Rs. 2,50,000/- initially for availing this scheme and subsequently she remitted Rs. 10,000/- each for 3 years for the regularization of this scheme. This PW1 has a definite case to the effect that, though he remitted the amount and signed the document the documents including the terms and conditions were not send her in time. Her definite case is that, she avail this policy not as an investment policy but as a policy having a growth of 12% or more and the investment amount will be returned along with the growth after 3 years. It is pertinent to see that, the contesting insurance company or the contesting bank failed to produce the terms and condition of the questioned scheme before the Forum. No doubt the receipt of the policy certificate is totally denied by the complainant. In this juncture it is the paramount duty of the opposite party to produce the details of the policy in question before the Forum. In the absence of that regarding policy’s and terms and condition we have to rely the contention of the complainant in this case. The contentions of the complainant are more probable than the contesting opposite parties in this case.
11. When we peruse the lengthy cross examination of the learned counsel who is appearing for the contesting opposite party nothing brought out to disbelieve the testimony of PW1. We do admit that, the learned counsel for the opposite party stressed all the relevant contentions of their version at the time of cross examination. In cross she replied, “ഞങ്ങള് Bank ൽ പണം നിക്ഷേപിക്കാൻ പോയതാണ്, അവർ പറഞ്ഞാണ് policy എടുത്തത്. ഈ policy യുടെ proposal forms, benefit illustrations മുതലായവയിൽ ഒപ്പിട്ടിരുന്നോ (Q)? കുറെ file ചെയ്ത paperൽ ഞങ്ങളെക്കൊണ്ട് ഒപ്പിടുവിച്ചു. (A). എനിക്ക് v opposite party യിൽ നിന്ന് welcome letter കിട്ടിയതിനേക്കുറിച്ചും, ആയതിലെ Free look period ഉപയോഗിച്ചിട്ടില്ല എന്ന് പറയുന്നതും ശരിയല്ല. Renewal notice മാത്രമേ opposite party കള് ഞങ്ങള്ക്ക് അയച്ചിട്ടുള്ളു. ഒറ്റത്തവണ മാത്രം പണം അടച്ചാൽ മതിയെന്ന് ബോധ്യപ്പെട്ടാണ് ഞങ്ങള് policy എടുത്തത്. 3 തവണ അടക്കണം എന്നത് ഞങ്ങള്ക്ക് അറിയില്ലായിരുന്നു. Again she adds, “ടി opposite party കള് ഞങ്ങളെ ഈ policy എടുക്കാൻ നിർബന്ധിച്ചില്ല എന്ന് പറയുന്നത് ശരിയല്ല. Bank കാർ നിർബന്ധിച്ചിട്ടാണ് policy എടുത്തത്. She answered in cross examination of 2nd and 8th opposite parties as follows: “ഈ scheme ൻറെ specifications Renewal notice വന്നപ്പോഴും എനിക്ക് അറിയില്ലായിരുന്നു. എൻറെ Husband-നും ഈ scheme- ൻറെ വ്യവസ്ഥകള് അറിയില്ലായിരുന്നു എന്നാണ് എൻറെ വിശ്വാസം . Catholic Syrian Bank Managerടെ നിർദ്ദേശം അനുസരിച്ച് ഒന്നാം opposite part യുടെ ആള്ക്കാർ ആണ് Form ൽ ഒപ്പിടുവിച്ചത് . Manager അവർക്കൊപ്പം എൻറെ വീട്ടിൽ വന്നിരുന്നു. Scheme ൽ ചേർക്കാൻ (Q & A). When we peruse the above testimony of PW1, it reveals that though the complainants signed the proposal form without knowing the details this opposite parties have no case to the effect that the insurance certificate and the terms and conditions are within the custody of these complainants. If it be so, it is the duty of the opposite parties to ask specific question regarding the serving of the document and it is in the safe custody of the complainants. Considering these facts also, we can come to a conclusion that without knowing terms and condition and the risk of these type of policy this complainants availed this policy. Through the above versions it also reveals that, 2nd and 8th opposite party, the Catholic Syrian Bank Ltd., has an active role in this event and none other than the 2nd and 8th opposite party instigated the complainant to avail this insurance scheme. In order to attract this findings we can rely the testimony of PW1 in her cross examination, “എൻറെ personal details fill ചെയ്യാൻ Bank ൽ നിന്ന് വിവരങ്ങള് എടുത്തുകൊള്ളാമെന്ന് ഒന്നാം opposite party പറഞ്ഞു. ഞാൻ ആണ് 2,50,000/- ലക്ഷം രൂപയുള്ള 2 policy കള് എടുത്തത് . She again adds “ policy certificate വർഷങ്ങള്ക്കുശേഷം കിട്ടിയപ്പോള് മാത്രമാണ് freelook period മനസിലായത്. policy certificate കിട്ടിയപ്പോള് terms and conditions satisfied ആയിരുന്നില്ല. satisfied അല്ല എന്ന വിവരം നിരവധി തവണ Bank ൽ അറിയിച്ചു. ആയതിൻറെ രേഖകള് ഇല്ല ”. We do admit that, all these contesting opposite parties have a definite case to the effect that, this policy certificate and terms and conditions are duly served to the complainants and they have taken another strong stand to the effect that, the complainant fail to avail the free look period. But it is seen that, neither the insurance company nor the Catholic Syrian bank (2nd and 8th opposite parties) produced any documents to show that, the policy documents along with terms and conditions were served to the complainant. If the above said policy documents are duly served to the complainant with in time what prevented this 2nd and 3rd opposite parties to produce a reliable document to show it? Hence the failure of opting free look period has also not to be considered as a defect on the side of the complainant. We do admit that 2nd and 8th opposite parties have a strong stand in this case to the effect that, they are only a corporate agent of 1st opposite party and they are not jointly and severely liable for any defect raised from the side of 1st opposite party the insurance company. When we go ahead with the testimony of PW1 in cross of 2nd and 8th opposite party it reveals that, “ഈ transaction ൽ Catholic Syrian Bank ന് role ഉണ്ടെന്ന് ഞാൻ കരുതുന്നു. (Q & A) ഈ ഇടപാടിൽ Bank പേർക്ക് ഞാൻ documents sign ചെയ്തു കൊടുത്തിട്ടില്ല. ഇത് സംബന്ധിച്ചുള്ള കത്തിടപാടുകള് രണ്ടാം opposite party യാണ് നടത്തിയത്. ഇത്തരത്തിൽ case ആവശ്യത്തിന് കളവ് പറയുകയില്ല . She answered for a suggestive question “2ഉം 8 ഉം opposite party കള് corporate agent എന്ന നിലക്ക് മാത്രമേ പ്രവർത്തിച്ചുള്ളു എന്നത് ശരിയല്ല .”. In the light of the above deposition it also clear that, 2nd and 8th opposite parties have a direct involvement and responsibility in this transaction and they are jointly and severely liable along with the insurance company.
12. It is true that, the 8th opposite party file a proof affidavit in lieu of his chief examination. When we peruse the testimony of DW1 in his proof affidavit it is more or less as per the tune of his version before this Forum. At the time of cross examination it reveals that, when the policy in question i.e., in 2012 May this DW1 was not the manager of the concerned bank and he admitted that, the Catholic Syrian Bank is a corporate agent of Birla Sun Life Insurance Co. Ltd. The learned counsel appearing for the complainant asked a definite question in cross examination regarding the involvement of the manager in respect of this policy. His answer was like this, “ ഈ കാലയളവിൽ ഞാൻ ടി branch ൻറെ Manager ആയിരുന്നില്ല. അന്നത്തെ Manager ഈ വാദികളെ നേരിട്ട് സമീപിച്ചോ എന്ന് എനിക്കറിയില്ല”. In a question he answered, “Bank ൻറെ goodwill ഉം അന്നത്തെ Bank manager ടെ പ്രേരണകൊണ്ടാണ് വാദികള് ഈ scheme ൽ പണം നിക്ഷേപിച്ചത് എന്ന് പറയുന്നത് എനിക്കറിയില്ല ”. Regarding this suggestive question the reply of the Bank manager was not specific and the answer was evasive in nature. Even though, 2nd and 8th opposite parties examined this witness before this Forum no documents produced or marked on behalf of their evidence. In the light of the available evidence it also proved that, all these opposite parties are jointly and severely liable for the deficiency in service against the complainant.
13. Considering the nature, circumstances and available evidence as per exhibits we find that, the case put forwarded by the complainant is proved beyond doubt and opposite party 1 to 8 are committed deficiency in service against the complainants in this case. Hence the complaint is allowable and point No. 2 and 3 found accordingly. In the result we passed the following orders.
- Opposite parties 1st, 2nd,3rd, 4th, 7th, and 8th are directed to return the premium amount of Rs. 2,80,000/- (Rupees Two Lakh Eighty Thousand only) to the complainant No.2 (PW1) with an interest of 10% till its realization from the date of filing of this complaint before this Forum, i.e. on 24.06.2014.
- The above opposite parties are also directed to pay the compensation of Rs. 50,000/- (Rupees Fifty Thousand only) to complainant No.2 (PW1) with an interest of 10% till its realization from the date of receipt of this order onwards.
- The above opposite parties are also directed to pay an amount of Rs.3,000/- (Rupees Three Thousand only) as the cost of this case to the complainant with an interest of 10% till its realization from the date of receipt of this order.
Declared in the Open Forum on this the 29th day of January, 2016.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (Member –I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Grace John
Exhibits marked on the side of the complainant:
Witness examined on the side of the opposite parties:
DW1 : Francis C. Anto
Exhibits marked on the side of the opposite parties:
A1 : Copy of the lawyers notice dated 04.02.2014 sent by the
Complainant to opposite parties.
A2 series : Postal receipts of Ext.A1.
A3 series : Postal acknowledgement cards of Ext.A1.
A4 series : Addressee Left Cover
A5 : Reply of legal notice sent by opposite party to the complainant’s
counsel.
(By Order)
Copy to: (1) K.M John, Kochupurackal House, Kumbanad,
Puramattom P.O, Thiruvalla 693 543.
(2) Birla Sun Life Insurance Co. Ltd., 5th & 6th Floor, Vaman Centre,
Makhwana Road, Off Andheri Kurala Road, Near Marol Naka,
Andheri (E), Mumbai 400059.
- The Catholic Syrian Bank Ltd.,
CSB Bhavan, Head Office,P.B No. 502,
St. Mary’s College Road, Thrissur 680 020.
- Customer Care Unit, Birla Sun Life Insurance Co. Ltd.,
Indiana Business Center, B Wing, 1st Floor,
Makhwana Road, Marol Naka, Andheri (E)
Mumbai 400 059.
- Birla Sun Life Insurance Co. Ltd, 2nd Floor, CKG Towers,
KK Road, Kanjikuzhy, Kottayam 4.
- The Chairman, Catholic Syrian Bank Ltd., No. 24,
Unnamalai Ammai Street, T.Nagar, Chennai 600 017.
- The M.D and CEO, The Catholic Syrian Bank Ltd.,
E 37, Lajpat Nagar 3, New Delhi 110 024.
- The Branch Manager, Birla Sun Life Insurance Co. Ltd.,
Pathanamthitta.
- Branch Manager, Catholic Syrian Bank Ltd.,
Kumbanad Branch.
- The Stock File.