IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,                               MURSHIDABAD AT BERHAMPORE.
CASE No.CC/41/2014
Date of Filing: 21.03.2014                                                               Date of Final Order: 17.04.2015

Ms Indira Sarkar,
Chaulpatty Singhi Bagan.
 P.O.+P.S.- Jiaganj,
District.- Murshidabad.
PIN.-742123.                                                     …………………………………………… Complainant.
-Vs-
1). Branch Manager
Reliance Life Insurance Co. Ltd.
Branch Code- IRDA Code-1048
3rd Floor,3/20, K.K.Banerjee Road.
P.O.+ P.S.- Berhampore. Dist. Murshidabad.

2).Amit Kumar Sarkar
 Lt. Manindra Nath Sarkar,
P.O.+P.S.- Jiaganj,
District.- Murshidabad.
PIN.-742123.                                                     …………….…..……............ Opposite Parties.
 
      Shyama Charan Dhar, Ld. Advocate     …………………………………….. for the complainant
      Gopen Prasad Sinha, Ld. Advocate          …………………………………….. for the Opposite Party No.1
                            
                                                 Present:     Hon'ble Member, Samaresh Kumar Mitra.            
                                                                     Hon'ble Member, Pranati Ali.

 
FINAL ORDER
 Samaresh Kumar Mitra, Member.
The facts of the complaint as enumerated in the complaint petition are that the complainant purchased a life Insurance Policy on 17th March, 2009 from Reliance Life Insurance Company.  The policy entitled Reliance Super Automatic Investment Plan and the premium amount was Rs.10000/- for a period of 5 years. It was the terms of the policy that once the premium is deposited then it was returnable after 3 years deducting the mortality charge.
              The complainant being an aged widow could not read & understand English and when she went to the OP to surrender her policy after 3 years then she came to know that she was given another policy. The OP by selling another policy instead of which she desired and was cheated. Then she went to the OP Company to correct the bond but the company did not entertain her. The proposal Form in which she put her signature, clearly depicts policy name but the said company compelled her to accept wrong policy. So, she took the recourse of this Forum for redressal i.e. to get refund of Rs.10,000/-including interest and Rs.4,000/- for mental pain & harassment.
               OP appeared on 18.07.2014 and filed Written Version on 08.08.2014 denying the allegation as leveled against them. He submitted that as required under the IRDA (Protection of Policy holders Interest) Regulation 2002, the Policy term and condition specifically provides for a Free Look Period of 15 days; during which period the Policy owner is entitled to review the terms and conditions of the Policy and further may request for a cancellation if dissatisfied with the terms and condition of the Policy. However, the Complainant failed to exercise the said option.  Thus, the contract of insurance attained finality.
             That, the Complainant is only entitled to the surrender value, if any under the said Policy on account of the risk borne by the Opposite party associated with the Policy. The same has been held by National Commission in the case of Life Insurance Corporation of India V. Anil P.Tadkalkar 1(1996)CPJI59(NC) where the Hon'ble Commission in para. 4 have stated:
"Moreover, we have not been able to understand how the Complainant can claim refund of all the premium paid by him during the period of the policies remained alive and the LIC had cover the risk. If during this period the Complainant had died (an event which did not occur) the insurer i.e. LIC would have had to pay the full amount due under the policies even though only some fraction of the premium would have been realized by that time by the insurer. Hence on cancelling the policies the Complainant is only entitle to the surrender values of the policies. It is immaterial what circumstances prompted him to cancel the policies."
             It is submitted that the Complainant has alleged that the Opposite Party has committed fraud in the Complainant. It is submitted that it is a well-established principle of law that the Consumer Protection Act and the machinery there under cannot be effective be utilized for determining complicated question of fraud and cheating. The Hon'ble Supreme Court has held in an appeal title as Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(IV) CPJ 1
That:- "Proceeding before the commission are essentially summary in nature and adjourned of issues which involve disputes factual questions should not be adjudicated. ….. … the nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The state Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and by the Commission."
That without prejudice to above stated contentions, the opposite Party submits the correct facts and details of the case:-
               That after duly deliberating and understanding the terms and condition of "Super Invest Asure" Policy plan, the Complainant in the present dispute, applied for the Policy through Mr. Amit Kumar Sarkar, the advisor vide Proposal From dated 28.02.2009 bearing no. A2773524. In the Proposal Form, the Complainant gave all relevant details and information in the prescribed form for the said policy for which an annual premium amounting to Rs. 10,000/- (Rupees Ten Thousand Only) was proposed to be paid annual for a period of 15 years was signed on 27.02.2009 (Annexure OP-1).  
            It is submitted that the Complainant was well aware of the terms and condition of proposal form as the Complainant has signed and declared that she had understood all the terms and condition of the Policy. Thereafter the Policy Documents along with the Schedule and the standard terms and conditions thereto and a welcome letter were dispatched to the Complainant's mailing address which were duly delivered to her. It is most humbly submitted that the welcome letter clearly stated that in case the Life Insurance disagreed with the terms and conditions of the Policy, she should return the Policy within 15 days of the receipt of the same and was entitled for cancellation available to the Life Insurance. Thus based on the declaration made and information provided in the Proposal Form and upon receiving confirmation only, the Policy bearing no. 14037918 (hereinafter referred to as the "Policy") was issued to the Complainant having date of commencement as 17.03.2009.
            It is submitted that the premium payment terms as also mention in the policy schedule, the Premium Quotation and Illustration Statement, which are enclosed within the policy documents are clearly indicative of the fact that the policy contract is a long terms contract.
              It is further pertinent to mention here as per clause 6 (2) of the Insurance Regulatory and Development Authority (Protection of Policyholder's Interests) regulations, 2002," While acting under regulation 6(1) in forwarding the policy to the Insured, the Insurance 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 condition 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 charge."
             It is submitted that the Policy benefits terms and conditions are drawn as per the guidelines laid down by the IRDA and, before issuance to the general public; each policy format is approved by the IRDA to ensure that the same is in consonance with the guidelines for the protection of interest of policyholders. It could not be believed that the Complainant was not aware of the terms and condition of the Proposal Form and she had simply put on her signature. In case the complainant felt that she was being misrepresented miss communicated or that certain information was not being provided to her by the opposite party, she had all the means to submit a cancellation request within the limit of 15 days. The Complainant is, hence falsely alleging misselling against the Company and has made a false claim to get the policy cancelled beyond the free look period and is trying to take advantage of the Company to achieve wrongful gain.
The said averment can be supported by the case of Prema and Ors. V. Life Insurance Corporation of India Ltd. IV (2006) CPJ 239 (NC) where the Hon'ble National Consumer Disputes Redressal Commission has observed that:
"8 Insofar as the filing of the proposal forms is concerned, Manjunath was a lineman in K.E.B. at Davangere. As such, the State Commission was justified in taking the view that it was reasonable to believe that he would have the minimum knowledge of these matters. Consequently it could not be believed that he had simply put his signature on different proposal forms without understanding the contents of the relevant items. Besides, it may be mentioned that in terms of LIC vs. M. Gowri's , the judgment referred to by the State Commission the agent who got the proposal form could be an agent of the person seeking insurance policy. The plea that the insured was not aware of the requirement to give correct answer and about contents of the answers given cannot be accepted."
             It is imperative to note here that the said policy contract was enforced upon the receipt of consent and approval of the policy holder for effecting the contract of life insurance which was duly opted for by the Complainant in the Proposal Form. It is further submitted that the OP provided their services to the complainant as per the norms and guidelines of the IRDA.
That the Complainant had paid only one premium of Rs.10,000/- for the policy bearing no. 14037918 and the Complainant failed to pay the successive premiums despite various reminders by the OP. In view of the same, giving due regard to the terms and condition of the policy, it was automatically changed to status of Lapse and was foreclosed on 14.03.2012 with the surrender value of Rs. 271.37/-. A copy of the letter dated 09.06.2012 informing the Complainant about the foreclosure of the Policy due to non-payment of premiums is being attached herewith and marked as ANNEXURE OP-3.  
The answering OP No.1 filed evidence on affidavit which is nothing but replica of written Version so it is needless to discuss.
As this answering opposite party did not act any violation of law which the complainant was constrained to move the Ld. Forum, so the complainant is not entitled to get any compensation and refund value of the premium from this OP as alleged in the petition of complaint.             
             Despite receiving notice, OP No.2 did not turn up so the proceeding runs ex-parte against him.
               From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS   FOR   CONSIDERATION
1.    Whether the Complainant 'Indira Sarkar' is a 'Consumer' of the opposite party?
2.    Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3.    Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4.    Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?
DECISION WITH REASONS
       In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
1).Whether the Complainant 'Indira Sarkar' is a 'Consumer' of the opposite party?
From the materials on record it is transparent that the Complainant is a 'as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant insured her life before the OP No.1 with the advice of OP No.2 which is mater of record and also admitted by OPs in dispute, so she being the customer of OP No.1 is entitled to get service from the OPs.
 2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
               Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad. The complaint valued at Rs.14,000/-ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.     
3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?    
The case of the complainant is that she being the customer of OP  Insurance Company insured her life following the advice of the agent of the OP Insurance Company as per terms and conditions as envisaged in the policy namely 'Reliance Super Invest assure Plan'. It appears from the documents as produced by the OP i.e. Policy Application Form in which the complainant put her photograph in the front page and supplying relevant documents put her signature. The Plan details ( Questions10-15) of said Application Form depicts Premium paying option, Policy Term is 10 years, Premium amount is Rs.10,000/-, Premium paying term-5 yrs, Sum assured Rs.50,000/-, Installment Premium Rs.10,000/- and at the bottom of page No.9 of page No.28 of the Form stated the name of the Broker/Agent i.e. Amit Kumar Sarkar. In the policy application Form of the complainant clearly stated that Amit Kumar Sarkar is the Agent/Broker of OP No.1 and he put his signature for identifying the complainant. So it can be presumed that complainant after knowing all the terms and conditions of policy accepted the policy and she did not avail the option 'Free Look Period". Thereafter due to some personal problem she could not meet the expenditure that may be incurred for paying further premiums and failed to pay further premiums after the 1st premium as a consequence the policy of the complainant was automatically changed to status of lapse and was foreclosed on 14.03.2012 with the surrender value of Rs.271.37/-.  
             In the page No.19 of Page 28 of Reliance Life Insurance Document in the name of the complainant it is stated in the;
9.3 1 Surrender of the base plan and Top-ups: 9.3 1 Surrender Value shall be acquired immediately on the payment of the first Premium. However, the base plan can be surrendered after the completion of three policy anniversaries. Whenever full Surrender Value of base plan is paid, the surrender Value of any attaching Top-ups shall also be paid. The surrender Value charges for base plan are the same as partial withdrawal charges and guaranteed additions if any.
9.3 2 The Surrender Value shall be the Fund value under base plan less surrender charge as applicable. On surrender of the base plan any attaching Top-ups shall also be surrendered if even if a period of three years has not elapsed from the date of payment of Top-up.
9.3 3 Surrender value shall be acquired immediately on payment of Top-up. However, it can be surrendered on completion of three years from the date of payment of Top-up. This restriction of three years lock in period is not applicable in respect of Top-up Premium(s) paid during the last three years of the policy. The surrender charge is not applicable on Top-up premium units. The surrender value is equal to the fund value under the Top-ups.
       In the page No.17 of Page 28 of Reliance Life Insurance Document in the name of the complainant it is stated in the, Column of Grace Period: There is grace period of 30 days from the due date of payment of Regular premium. In case of monthly mode, the grace period the grace period is of 15 days. A policy lapses if premium are not paid within the days of grace. And in the same page the 4.8 is the Discontinuance of payment of premium :  4.8.1 Discontinuance of  payment of due premium due within three years from the date of commencement of policy.
48.1.1    If the Premium due and payable have not been paid for at least three consecutive years from the inception, the insurance benefits and the rider benefits if any shall cease immediately. However, the policyholder shall continue to participate in the performance of unit fund. The monthly administration charges shall be deducted from the fund value by cancellation of units. The fund management charge shall be priced in the unit value.
4.8.1.2 Anytime during this period should the policy holder die, the fund value shall be paid.
4.8.1.3 A policyholder may receive a policy by paying the arrears of Premiums and recommencing the payment of Premium at the time within a period of 2 years from the due date of the first unpaid Premium but before the maturity date of the policy subject to satisfactory medical and financial underwriting. In the event of the policy is not revived during revival period, the policy shall be terminated and the surrender value, if any, shall be paid at the end of the period allowed for revival.
4.8.3    Revival of policy after non-payment of due Premiums.
4.8.3.1A policyholder may revive a policy by paying the arrears of Premiums and recommencing the payment of Premiums at any time within a period of 2 years from the due date of first unpaid Premium but before the maturity date of the policy subject to satisfactory medical and financial underwriting.
4.8.3.2 If the base plan is revived, the riders can be revived by paying the arrears of Premiums with interest at the prevailing rate of interest (currently 9.5% p.a.) as specified by the Company. This shall be subject to satisfactory medical and financial underwriting.
              So from the above statements and discussions we are in the view that the complainant after knowing everything regarding the terms and conditions of policy/scheme accepted the policy by putting his signature in the 'Proposal Form' and paid the first premium for insuring her life before the OP Insurance Company in which the OP No.2 is merely an agent. In accordance with the complaint petition the complainant after paying first premium due to some problem could not pay further premiums as a consequence her policy got auto surrendered following the terms and conditions as envisaged in the brochure. During that period she never tried to revive her policy as per the norms of the policy but remained silent.
           OP No.2 is merely an agent of OP No.1. He convinced the complainant to take the policy & collected the money and deposited the same before the OP No.1. So, his liability regarding the refund is ousted.
           As the complainant has failed and neglected to pay any premium inspite of issuance of notice(Annexure-C)by the OP No.1and as per terms of policy it automatically changed to status of lapse and was foreclosed. As the complainant did not seek for revival of the policy within the time framed as per terms, the OP No.1 accordingly fixed the surrender value of Rs.271.37/-. It is the general principles that the insurance policy is based on uberrimae fidei i.e. utmost on good faith in between the parties. In this case breach of contract was done by the complainant as she failed to pay premiums after the first premium and she is fully aware regarding the consequence of nonpayment of premiums in accordance with the terms. She did not continue with the policy after 1 year. So it cannot be said that there is deficiency in service on the part of OP No.1. In case of non-payment of premium the Insurance Company has right to cancel or policy may be auto surrendered so such surrender cannot be termed as deficiency of service. By fixing the surrender value in time the contested OP showed good gesture upon this complainant.
              During the period of argument the advocate of the complainant assailed the Plan of Policy differs from the proposal and premium collection receipt. But the advocate on behalf of the OP submitted that knowing everything regarding the Plan, the complainant accepted the said policy, so she did not availed of the Free Look Period.   
            From the foregoing discussion we are in a considered opinion that the complainant has failed to prove her case by adducing cogent documents/evidence beyond reasonable doubt so the complaint fails on contest.          
           So her claim of getting reliefs is not tenable. She is entitled to get only the premium proceeds of 1st installment/premium i.e. deducting the surrender charge as admissible including interest if it is not received till date. It is to be considered that the complainant invested such amount for getting handsome return from the OP Company which was assured by the OP No.2 but at the material point of time the OP is trying to evade his responsibility while giving return by the name of clauses & conditions that envisaged in the Policy brochure. So, the OP No.1 should keep up his goodwill of the business while disbursing his financial liability.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?
           The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is not able to prove her case beyond any reasonable doubt. So, the Opposite Party is not liable to compensate the Complainant.
ORDER
               Hence it is ordered that the complaint be and the same is dismissed as no order as to cost. The Opposite Party No.2 is exonerated from his liability.
               So, we direct the Opposite Party No.1 to pay the complainant only the premium proceeds of                                             1st installment/premium i.e. deducting the surrender charge as admissible including the interest accrued thereon, if the complainant is not received the auto surrendered amount, within a period of 45 days from the receipt of this order. No other relief (s) is awarded to the complainant. At the event of failure to comply with the order the Opposite Party No.1 shall pay cost @Rs.50/-for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
          Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgement/ be sent forthwith under registered post with A/D to the concerned parties as per rules, for information and necessary action.
         Dictated and corrected by me.  
 
                      Member,                                                                                                                                                                                               
    District Consumer Disputes                       
 Redressal Forum, Murshidabad.                                                                                     

              
    
                     Member,                                                                                        Member,
  District Consumer Disputes                                                                                         District Consumer Disputes                       
Redressal Forum, Murshidabad.                                                                                 Redressal Forum, Murshidabad.