Complaint filed on: 23-02-2012
Disposed on: 17-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.405/2012
DATED THIS THE 17th SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
T.Sriramaiah,
271, (1st Floor), Avinashitha’
17th B Cross, 32nd Main,
J.P.Nagar, 6th Phase,
Bangalore - 78
V/s
Opposite parties: -
1. Branch Manager,
Kotak Mahindra Old Mutual Life Insurance Ltd, Room No.303 and 304, 3rd Floor, 136, Cears plaza,
Residency Road, Bangalore-25
2. Chief of Grievance Cell,
Kotak Mahindra Old Mutual Life Insurance Ltd, R.O.: 9th Floor, Godrej conliseum, Behind Everard Nagar, Sion (East),
Mumbai-22
3. Chief Operational officer,
Net Ambit, Bangalore office,
3rd Floor, Divyasree Building,
No.30, 1st Main, Mission Road,
Sampangirama Nagar,
Bangalore-27
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, praying to pass an order, directing the OP no.1 and 2 to pay interest at 18% per annum from 28-12-2009 to 25-8-2010, and to pay Rs.40,000=00 towards hardship and mental agony and also consequential relief as deemed fit in the circumstances.
2. The brief facts of the complaint can be stated as under.
One Amith sharma who being the staff of Net Ambit approached the complainant stating that he is representative of Kotak Mahindra Old Mutual Life Insurance Ltd and explained regarding their insurance products, the complainant agreed to take one policy-Kotak Smart Advantage Product on yearly premium for Rs.25,000=00 and given the cheque no.730772 drawn on Canara bank, JP Nagar, Bangalore, 2nd phase branch and encashed on 18-12-2009. On receipt of policy no.01813432 dated 28-12-2009, the complainant observed that premium is fixed as half yearly instead of yearly of the policy. After several follows ups by the complainant, Kotak Life Insurance agreed to change premium to yearly. On 28-8-2010 the complainant received a new policy bearing no.02082110 wherein the periodicity is fixed as yearly, but policy issued from25-8-2010 instead of 28-12-2009 the date of original policy. Again the complainant made several correspondences with the company and also to ombudsmen of insurance at Mumbai to change the policy date from the original date of issue i.e. from 28-12-2009 or pay interest from 18-12-2009 to 25-8-2010. Since the amount of Rs.25,000=00 is with Kotak Life Insurance. The complainant has also issued notice on 17-6-2011 to OP no.1 and 2 who declined to change the policy date to 19-12-2009 or to pay interest. Hence, the complainant has approached the forum for justice and equity. Hence the present complaint is filed.
3. After filing of the complaint, notices were issued to the OPs, and OPs have appeared through their counsel and filed objection, contending interalia as under:
The 2nd OP is a life insurance company being registered under the provision of section 3 of the Insurance Act, and the 1st OP is a branch office of the 2nd OP, and there is no conflict of interest between the OPs no.1 and 2. The complaint of the complainant has raised various complicated questions of law and facts which need detailed fact findings by a court of competent jurisdiction and same cannot be adjudicated in summary proceedings as per the provisions of CP Act, so the complaint is liable to be dismissed. The complainant has raised some very serious allegations against the OPs without substantiating with any documentary evidence. The entire complaint is based on surmises and conjectures. The OPs received a request from the complainant for mode of payment to be changed from half yearly to yearly. As a special case, the OPS cancelled the policy no.01813432 and a fresh proposal form dated 12-7-2010 duly singed by the complainant, was received by this OPs and thereafter a new policy was issued to the complainant. As regards the complaint lodged by the complainant with IRDA, the OPs had taken a stand that this is a unit linked plan and so it would not be possible for OPs to make the new policy effective from the earlier date. As regard to the payment on interest on money invested by the complainant is concerned, the OPs had informed the IRDA, Hyderabad that the complainant had requested for alterations in mode of premium payment outside freelock period and they had agreed to the same, hence the claim of interest of the complainant was rejected. The free lock period was to expire after one month from that date i.e. 19-12-2009, the request for change of premium payment mode was received after the free lock period, however the said policy was cancelled as an exception on 20-8-2010 and fresh policy no.02082110 was issued on 25-8-2010. The complainant requested for change in commencement of risk to 19-12-2009, the OP had informed IRD, Hyderabad vide their letter dated 16-2-2011 that as this is a unit linked plan it would not be possible to make the new policy effective from the earlier date. The OPs are not liable to pay interest at 18% p.a. or at any other rate to the complainant. The OPs are not liable to pay Rs.40,000=00 or any other amount towards hardship and mental agony and the complainant is not entitled to any other relief in the matter. Hence, it is prayed to dismiss the complaint with exemplary cost.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the OPs are negligent in issuing a new policy from 28-12-2009 and there is deficiency of service on the part of the OPs?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit and additional affidavit by way of evidence and produced 4 documents at annexure-I to IV and two more letters. On the other hand, one J.Jaikumar s/o. Jothi Ramalingam who being the Vice President of OP Company has filed his affidavit by way of evidence and produced six documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties in between line.
7. One T.Sriramaiah, who being the complainant has filed his affidavit dated 28-5-2012 stating that, one Amith sharma who being the staff of Net Ambit who being the 3rd OP approached him stating that he is representative of Kotak Mahindra Old Mutual Life Insurance Ltd i.e. OPs no.1 and 2 and explained about their insurance products, and he agreed to take one policy-Kotak Smart Advantage Product on yearly premium for Rs.25,000=00 and given the cheque no.730772 drawn on Canara bank, JP Nagar, Bangalore, 2nd phase branch and encashed on 18-12-2009. On receipt of policy no.01813432 dated 28-12-2009, he observed that premium is fixed as half yearly instead of yearly in the policy, and after his several follows ups, Kotak Life Insurance agreed to change premium to yearly. On 28-8-2010 he received a new policy bearing no.02082110 wherein the periodicity is fixed as yearly, but policy issued from 25-8-2010 instead of 28-12-2009 the date of original policy. Again he made several correspondences with the company and their head office. Grievance cell and to ombudsmen of OP to change the policy date from the original date of issue i.e. from 28-12-2009 or to pay interest from 18-12-2009 to 25-8-2010 i.e. from the date of cheque realized upto the date of new policy issued. Since the amount of Rs.25,000=00 is with the OPs no.1 and 2, he issued notice on 17-6-2011 to OP no.1 and 2 who declined to change the policy date or to pay interest in their letter dated 6-7-2012. Hence, the present complaint is filed, so order be passed as prayed in the complaint.
8. The complainant has stated further in his additional affidavit filed dated 13-6-2012 that, during processing of application, he received phone call from OP no.1 and informed that for this scheme minimum investment shall be Rs.50,000=00 per annum, then they said to cancel the application as he is not interested to invest more than Rs.25,000=00. Inspite of his instructions just to grab the incentive that the OPs no.1 and 3 are getting the application was processed and made as half yearly premium of Rs.25,000=00 without his consent. After his prolonged follow us, OPs no.1 and 2 agreed and informed that the present scheme i.e. Kotak Smart Advantage cannot be given for Rs.25,000=00 annual premium but they told to offer Kotak Super Advantage Scheme. On receipt of the policy he observed that the date of policy issued is from 25-8-2010 instead of 17-12-2009. Since the amount of Rs.25,000=00 is with OPs no.1 and 2 from 17-12-2009 to 25-8-2010 they have to pay interest or the policy date to be changed to 17-12-2009. So it is prayed to meet the ends of justice.
9. By reading the averment of the complaint, affidavit and additional affidavit of the complainant as mentioned above, it is made ambiguously clear that, the complainant has tendered his evidence in conformity with the averment of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of the complainant is supported by the documentary evidence or not. Annexure-I is the copy of bank statement of the complainant wherein cheque bearing no.00730772 Rs.25,000=00 issued in the name of Kotak was debited from the account of complainant. Annexure-II is the copy of policy issued by the OP in the name of the complainant for a sum assured Rs.2,50,000=00 commencing from 17-12-2009 for a period of 15 years having half yearly premium and name of the policy taken by the complainant was Kotak Smart Advantages. Annexure-III is the copy of letter of OP dated 25-8-2010 stating that, new policy details are Kotak Super Advantage having policy no.02082110. Annexure-IV is the copy of letter of the complainant dated 27-10-2010 addressed to the OP requesting to issue new policy from 17-12-2009 as he will loose interest for Rs.25,000=00, and another letter dated 17-6-2011 is issued by the complainant to OP stating that he is loosing interest from 13-12-2009 to 25-8-2010 and he mailed to give interest, but the matter is not settled, so he will take legal action, if does not receive favourable reply within 10 days. Last document of the complainant is letter of Kotak Life Insurance dated 6-7-2011 stating that, the policy bearing no.01813432 issued on 19-12-2009 has been cancelled as an exception and policy from no.02082110 was issued on 25-8-2010 as per request of the complainant, they regret their inability to provide any compensation.
10. The OPs have produced the copy of free proposal form given by the complainant dated 12-7-2010 praying to issue yearly premium in place of half yearly premium and that proposal was signed duly by complainant and accordingly new policy was issued having yearly premium in place of premium of half yearly, for a sum of Rs.25,000=00. Document no.2 is the copy of letter of OP dated 16-2-2011 stating that, after issuing another policy on 25-8-2010, it is not possible to make a new policy effective from earlier date and claim of interest by the complainant cannot be granted. Next document is the copy of letter from Insurance Regulatory and Development Authority dated 10-1-2011 addressed to the OP requesting to resolve the complaint of the complainant at their end.
11. One J.Jaikumar, Vice president legal in Kotak Mahindra old Mutual Life Insurance Ltd has stated in his affidavit that, the complainant has raised various complicated questions of law and facts which require detailed finding by a competent court and point raised by the complainant cannot be adjudicated in summary proceedings as per the provision of CP Act, so the complaint be dismissed. The complainant has made serious allegations against the OP without substantiating with any documentary proof. The entire complaint is based on surmises and conjectures, so the complaint be dismissed. After issue of the policy no.01813432 dated 19-12-2009, the OP received a request from complainant for mode of payment to be changed from half yearly to yearly and as a special case, the OP changed the said policy and after receiving a fresh proposal dated 12-7-2010 duly signed by the complainant a new policy no.02082110 was issued, since new policy issued is a Unit linked plan so it would not be possible for OP to make the new policy effective from the earlier date. The OP has informed the IRDA, Hyderabad vide letter dated 16-2-2011 that as new policy issued was Unit linked plan it would not be possible for the OP to make the new policy effective from the earlier date. The OPs are not liable to pay interest, compensation or any other amount as prayed in the complaint. So the complaint be dismissed.
12. So making comparative study of the oral evidence of the complainant and OPs as mentioned above, it is explicitly clear that, the complainant has not produced any documentary evidence to show that, when he requested the OPs to issue a first policy for yearly premium and not half yearly premium. The documentary evidence on this aspect on behalf of the complainant is silent. As per request of the complainant, the OPs have taken a fresh proposal form on 12-7-2010 by taking signature of the complainant and issued a new policy on 25-8-2010. After issuing 2nd policy, the complainant has started making correspondences with the OPs to issue a new policy from the original date of first policy or to pay interest on the amount of Rs.25,000=00 from the date of encashment of cheque to issue of second policy. As could be seen from the averment of the complaint and affidavit of the complainant that, nowhere the complainant has stated that, the OPs were negligent in issuing the second policy from 25-8-2010 instead of 28-12-2009 and there is deficiency of service on the part of the OP. The whole complaint and evidence of the complainant are silent on this vital aspect. On the other hand, the complainant went on making serious allegations against the OP, in additional affidavit filed dated 13-6-2012 alleging that, during process of application he received phone call from the OP and informed for this scheme that minimum investment shall be Rs.50,000=00 per annum, but he said to cancel the application as he was not interested to invest more than Rs.25,000=00 and inspite of his instructions to cancel the application just to grab the incentive, the application was processed and made as half yearly premium of Rs.25,000=00 without his consent. But in the complaint, the complainant has not stated that, he received phone call from the OPs that, the minimum investment shall be Rs.50,000=00 and he informed to the OPs to cancel the application and inspite of it in order to grab the incentive made half yearly premium of Rs.25,000=00, as stated in additional affidavit. There is variation between the complaint and additional affidavit of the complainant, in this regard. Besides no documentary evidence is produced by the complainant to demonstrate before the forum that, he instructed the OP to cancel the application, as he was not interested to invest Rs.50,000=00 and inspite of it, the OPs has issued half yearly premium of Rs.25,000=00 in order to grab incentive. Since the said allegations of the complainant to issue half yearly premium of Rs.25,000=00 by the OPs are not supported by any documentary evidence. So, the contention of the complainant as made out in the additional affidavit crumbles to the ground automatically. In fact, the complainant in the present complaint and additional affidavit has raised complicated question of law and facts which require detailed findings by competitive court and the said complicated questions of law and facts cannot be adjudicated in summary proceedings under the provisions of CP Act. The complainant has raised serious allegations against the OP without proving with documentary evidence. So under the circumstance, we are of the view that, the material evidence placed by the complainant is insufficient to hold that, the OPs are negligent and there is deficiency of service on the part of the OPs in issuing a new policy by putting date as 28-8-2010 instead of 28-12-2009. On the contrary, the oral evidence of the employee of OPs no.1 and 2 is corroborated by proposal form of the complainant dated 12-7-2010 and correspondences letters made between the parties, and as such we are of the opinion that, the OPs have issued second policy in the name of the complainant by putting date as 28-8-2010 as per the application of the complainant and they have acted in accordance with the terms and conditions of new policy, and there is no latches on the part of the OPs in issuing a new policy in the name of the complainant. So we hold that, the oral evidence and documentary evidence of the OPs are more believable trustworthy and acted upon than the material evidence of the complainant, and as such, we are of the considered opinion that, the complainant who come to the forum seeking relief has utterly failed to prove this point by placing clear and tangible documentary evidence, and accordingly we answer this point in a negative.
9. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 17th day of September 2012.
MEMBER MEMBER PRESIDENT
