By Sri. MOHANDASAN.K, PRESIDENT
Case of the complainant in brief is as follows:-
1. The complainant has got NRI account with the second opposite party. He has got fixed deposit of Rs. 2, 00,000/- for which he is entitled 5.7% interest per annum. Meanwhile when the complainant approached the second opposite party, the third opposite party introduced an insurance scheme of the first opposite party and instigated the complainant to avail insurance policy of the first opposite party stating that the complainant will get more benefit than from FD before the second opposite party. The third opposite party stated that the complainant will get 12% more interest comparing to the FD interest of the second opposite party and thereby the complainant subscribed the insurance scheme of the first opposite party. The insurance scheme was Canara HSBC oriental bank of commerce life insurance guaranteed income plan – 0138792619. He paid the premium amount to the insurance company after breaking the fixed deposit in the second opposite party bank.
2. As per the advice of the third opposite party the complainant was liable to remit yearly premium of Rs. 2, 00,000/- and the policy period was 5 years. Accordingly the complainant remitted 2, 00,000/- rupees on 25/01/2022. The opposite parties 2 and 3 assured that insurance documents will be delivered to the complainant through registered post. It was further assured if the complainant is not able to accept the conditions of the policy he is at liberty to withdraw from the policy within 30 days after receipt of policy document. It was further assured only on telephonic confirmation and call verification the policy will be confirmed. But the complainant submitted that he never received a phone call as stated by the opposite parties. Thereafter 9 months due to want of communications from the opposite parties he directly approached the second opposite party and then it was found the third opposite party already transferred from second opposite party to some other place. Hence the complainant contacted the third opposite party over telephone and the third opposite party assured that she will take appropriate steps to follow the issue of complainant. Accordingly on continues contact with the second opposite party during 2022 November the second opposite party issued the policy documents to the complainant. At that time also the complainant stated that nobody called him as part of verification and confirmation. Then it was stated that they made call to the complainant. Since it was not made to the complainant he demanded the call number details and call records and it was stated that the number called was a different one.
3. The complainant submitted that subsequent to that the complainant was hospitalized due to various health reasons and he undergone angioplasty and due to that he could not follow up the policy issues with the opposite parties.
4. Subsequent to the above facts during the second premium remittance period the reminder messages received by the complainant about the policy and accordingly on 25/01/2023 he came to know that the policy issued to the complainant was not the policy introduced and assured by the third opposite party. The complainant alleges the opposite parties wilfully persuaded the complainant to avail the insurance policy of the first opposite party stating that he will get more benefit than the FD before the second opposite e party. The complainant alleged the policy enrolled by the complainant was with a period of 10 years and the benefit offered was less than 5.7% for the FD assured by the second opposite party. Moreover he will get the benefit only after expiry of 10 years. The policy offered by the third opposite party was for 5 years duration and the assured interest rate was 12% per annum.
5. The complainant submitted that the opposite parties misguided to avail the policy of the first opposite party and thereby the complainant approached RBI ombudsman. The opposite parties 1 and 2 stated false information before the ombudsman and thereby the ombudsman closed the complaint. The complainant specifically stated that there was no confirmation call from the opposite parties and no documents of the insurance was served to the complainant within due period. Hence the complainant submitted that he is least interested to continue the policy and prayed for the refund of the amount 2,00,000/- rupees along with interest. The complainant alleged deficiency in service and unfair trade practice against the opposite parties. The complainant submitted due to the act of the opposite parties he sustained mental agony, inconvenience and hardship. Hence he prayed further compensation of Rs. 1, 00,000/- and cost of Rs. 25,000/-.
6. On admission of the complainant notice was issued to the opposite parties and the opposite parties 1 and 2 entered appearance and filed version.
7. The first opposite party denied the entire averments and allegations in the complaint. The opposite party submitted that the complaint is not a consumer dispute as defined under the consumer protection act as there is neither any unfair trade practice nor any deficiency in service have been established by the complainant in the complaint.
8. The first opposite party submitted that the complainant after completely understanding the terms and conditions of the product “ Canara HSBC oriental bank of commerce life insurance guaranteed income plan” had voluntarily consented and submitted the duly signed proposal form baring No. 9101593711 to the opposite party and offered to pay Rs. 2,00,000/- as annual insurance premium. Subsequent to the receipt of proposal form the opposite party initiated a validation call to ascertain whether the complainant had understood the terms and conditions of the policy availed. During the call as per standard operating procedure the executive of opposite party confirmed the personal details of the complainant. Post confirmation of personal details, the policy details, obligations and duties of the policy holder, money back pay out duration, amount of money back pay out, maturity benefit and death benefit were duly informed to the complainant. Any questions raised by the complainant during the validation call were duly answered by the executive of the opposite party. During the entire call no disconnect or objection regarding any specific policy term and condition for the policy as whole raised by the complainant. An extract of the transcript of the validation call to the complainant, where in the complainant confirmed his personal details, has been re produced. The opposite party submitted that on the basis of information provided by the complainant in the proposal form and believing same to be true and correct and subject to the successful validation call issued the policy with the following details to the complainant. The policy holder name is Mr Beeran Ayyappalli, the policy number is 0138792613, the proposal number is 9101593711, the plan name is Canara HSBC oriental bank of commerce life insurance guaranteed income plan, the risk commencement date is 25/01/2022, the policy term as 10 years , the premium payment term is 5 years , the first guaranteed annual cash back amount (date ) is Rs. 96,330/- (25/01/2028), second guaranteed annual cash back amount (date) is Rs.96,330/-(25/01/2029), the third guaranteed annual cash back amount (date) is Rs. 96,330/- (25/01/2030), the fourth guaranteed annual cash back amount (date) is Rs. 96,330/- , sum assured is Rs. 6,42,200/, instalment premium is Rs.2,00,000/- and premium payment mode is annual.
9. The opposite party submitted that the documents were duly dispatched to the address of the complainant on 04/02/2022. It is submitted as per dispatch record through speed post the article was delivered in favour of the complainant on 15/02/2022. The opposite party submitted since the proposal from was filed electronically the complainant had signed the addendum to the proposal form after being explained about the contents of such proposal form where in it was clearly mentioned that he has under stood all the silent and relevant features of the proposal form and has not further objections / questions to any of the terms or conditions enumerated therein. The opposite party submitted that no prudent person would have signed any document without understanding the intricacies of the same. The opposite party produced the photographs of the same for the perusal and the same will reveal the name and signature of the policy holder. Moreover the complainant duly filled, signed the NACH / direct debit form, authorizing the answering opposite party to periodically debit the complainants account with second opposite party who are making payments to the answering opposite party towards premium through NACH as per the details provided by the complainant. The opposite party furnished snap shot of the NACH form for the perusal.
10. The opposite party submitted that as per clause 16 of part F of the terms and conditions of the policy contract free look period of 15 days was duly provided to the complainant to review the features of the policy contract and to request for the cancellation of the policy, in case, the complainant was not satisfied with the policy terms and conditions. As per free look clause “16. In case the policy terms and conditions are not agreeable to you then you opt for cancellation of the policy, In which case, we request you to send bank this policy document along with reason for your objection within 15 days (30 days in case the policy is sourced through distance marketing mode i.e. is any means of the communication other than in person) from the date receipt of this policy document. In case you opt for cancellation within the said period, we shall refund the premium received by us subject only to deduction of proportionate risk premium for the period of life cover, stamp duty and medical expenses, if any”.
11. That during the verification call the complainant was also informed that a free look period of 15 days from receipt of policy document shall be provided to the complainant to review the features of the policy contract, and to request for the cancelation of the policy, in case , the complainant was not satisfied with the policy terms and conditions. The opposite party submitted that the basic purpose behind the inculcation of the said clause in an insurance contract is to let the concerned individual get privity with the contents of entire policy and availed the same product only if he/she is completely satisfied with the contents thereof. After expiry of the 15 days the insurance contract becomes binding on both the parties and all the rights and liabilities are governed by the said insurance contract. The relevant extract of the transcript of the validation call to the complainant submitted in the version.
12. The opposite party submitted that the complainant was provided a free look period of 15 days to review the terms of the policy contract but the complainant did not approach the opposite party with any discrepancies regarding the policy terms and conditions neither did the complainant approach the opposite party for cancellation of the policy during the free look period thereby implying that the complainant had agreed to all the terms and conditions of the policy and consented to all the details stated in the proposal form. Hence it was presumed the contract was legally concluded between the parties. The complainant never brought to the notice of the opposite party that he wished to cancel the policy. The opposite party is not obliged to consider the request for cancellation of the policy after the expiry of the free look period of 15 days and so the complainant is not entitled the refund of the premium amount. Moreover the complainant filed a complaint with the RBI ombudsman against opposite party alleging that the opposite party No.2 had cheated the complainant by enrolling the complainant in the wrong policy vide order dated 27/02/2023. The RBI ombudsman closed the complaint with the direction that they there was no mis-selling in the present case as the complainant was well aware of the terms and conditions of the policy issued to him. The opposite party furnished the order of RBI ombudsman dated 27/02/2023.
13. The opposite party further citied preamble to the terms and conditions of the policy schedule as follows :- “ preamble ; this policy evidences a contract between you and us and has been issued on the basis of your statement and declarations in the proposal form and other documents evidencing insurability of the life assured. Reference to any legislation, act, regulation, guideline, etc. includes subsequent changes or amendments to the same”.
14. The opposite party specifically submitted that the insurance policy is a contract between the policy holder and the insurance company, and both the parties are strictly bound by the terms and conditions of the same. The complainant herein is very well aware of the terms of the policy contract and such the complainant is bound by its contents and it is estopped from challenging the same. Hence the complainant cannot demand any relief which is beyond the policy terms and conditions. It is the well accepted principal of law of contract and thus cannot be done by one of the parties or by any authority as the consent of both the parties are required for the same. The opposite party submitted various decisions rendered by various authorities including the apex court of the country.
15. The opposite party submitted that the complainant filed this complaint on false and frivolous grounds only with the malafide intention of making wrongful gain. Hence the prayer of the first opposite party is to dismiss the complaint in limine.
16. The opposite party further denied the entire averments in the complaint specifically. The opposite party specifically denied the allegation of deficiency in service and negligence in duties and have caused mental, social, and physical loss or pain to the complainant.
17. The second opposite party submitted that they are acted solely as a facilitator for the first opposite party. The opposite party denied the allegation that the third opposite party is an employee of the second opposite party. It is submitted that the third opposite party is the employee of the first opposite party. The second opposite party admitted that the complainant holds a non-resident Indian account with the second opposite party. In accordance with the complainant’s request, the second opposite party created a fixed account for the amount of Rs. 2, 00,000/- with an annual interest of 5.7%. The opposite party submitted that the complainant purchased a guaranteed cash back traditional policy No. 0138792613 from first opposite party. The policy was availed on 25/01/2021 and the complainant paid 2, 00,000/- rupees towards opening premium. The complainant is bound to pay Rs. 2, 00,000/- per year for a period of 5 years commencing from 25/01/2021. The complainant paid Rs. 2, 00,000/- as premium amount towards first opposite party. The payment was made through the second opposite party bank account. In fact the second opposite party acted solely as a facilitator in this transaction, connecting the complainant with the first opposite party.
18. The opposite party submitted that on receipt of complaint from the complainant the opposite party conducted an enquiry in detail and the second opposite party revealed the fact that the policy was in lieu with the discussions they had during the issuance of the policy and they does not arise a question of mis-selling of the insurance product as had clarified all the doubts and queries of the complainant with the tele caller of the first opposite party. It is further submitted there is a recorded audio conversation documenting this discussion. The opposite party denied the allegation that the documents were not sent to the complainant. The documents were sent to the complainant in his registered address as per the standard procedure. But due to the non-availability of complainant at the registered address the delivery could not be completed. Subsequently when the complainant personally approached the second opposite party the documents were promptly provided to him on the same day. The opposite party submitted there is no deficiency from the side of opposite party in service and so the complainant is not entitled any relief as prayed.
19. The complainant and the opposite parties one and two filed affidavit and documents. The documents of the complainant marked as Ext. A1 to A6. The documents of the opposite party No.1 marked as Ext.B1 to B4. Ext. A1 is copy of statement of account of the complainant maintained with Canara bank Vailathoor branch dated 27/03/2023 and the period of statement is 01/01/2022 to 31/12/2022. Ext. A2 is copy of policy details issued to the complainant by the opposite party. Ext.A3 is copy of email communication between the complainant and the opposite party. Ext. A4 is copy of complaint submitted to the Ombudsman, Trivandrum. Ex.t A5 is copy of complaint filed by complainant to the second opposite party. Ext. A6 is copy of reply submitted by the second opposite party to the insurance Ombudsman. Ext. B1 is copy of insurance proposal form. Ext. B2 is copy of transcription of audio recording between complainant and the executive of first opposite party. Ext. B3 is copy of policy document issued by the first opposite party in favour of the complainant. Ext. B4 is copy of order from the ombudsman dated 27/02/2023.
20. Heard complainant and opposite parties, perused affidavit and documents. The following points arise for consideration:-
- Whether the complainant is maintainable?
- Whether there is deficiency in service and unfair trade practice from the part of opposite parties?
- Relief and cost?
21. Point No.1
The complainant is the account holder of the second opposite party and he has got an insurance policy with the first opposite party. The dispute between the complainant and opposite parties are with respect to insurance policy issued by the first opposite party and as per the provisions of the consumer protection act the first and second opposite parties are providing “service” as defined and so a complaint against the opposite parties are maintainable before the consumer disputes redressal commission.
22. Point No.2 and 3
The grievance of the complainant is that while he approached the second opposite party he was instigated by the third opposite party and accordingly subscribed the policy of the first opposite party. He was instigated by the third opposite party stating that he will be availed more benefits than the deposit before the second opposite party. The complainant remitted 2, 00,000/- rupees on 25/01/2022 as the first premium to the first opposite party. While he was subscribed he was informed the insurance documents will be delivered to the complainant through registered post and if he is not interested or not able to accept the conditions of the policy he was at liberty to withdraw the policy within 30 days after policy document. It was further assured only on telephonic confirmation and call verification the policy will be confirmed. The submission of the complainant herein is that he was never received a phone call as stated by the opposite parties and till 9 months no documents of the policy was received through registered post. The submission of the complainant is that only after 9 months when he directly approached the second oppose party they issued the policy documents to the complainant. The complainant submitted that on receipt of the documents, he could learn that the policy conditions are not in accordance at the time of introducing the policy by the third opposite party from the premises of second opposite party. Hence the submission is to release the premium amount already remitted along with interest and compensation and cost. The complainant produced ext. A1 to A6 to establish the case for the complainant.
On the other hand the contesting opposite parties 1 and 2 admitted the issuance of insurance policy but denied the entire allegations in the complaint.
23. The first opposite party submitted that the policy issued to the complainant was in accordance with the terms and conditions discussed in between the complainant and the third opposite party and the insurance being a contract the parties to the contract are liable to comply the terms and conditions . The opposite parties produced Ext. B1 to B4 to substantiate the contention of the opposite parties. Ext.A1 is the proposal form which is an admitted one. The document Ext. B2 is copy of transcription of audio recording between the complainant and executive of first opposite party. The complainant disputed the content since he stated that there was no call confirmation as stated by the first opposite party. But the perusal of Ext. B2 appears a conversation between complainant and the executive of first opposite party but there is no details from which number the call was made and the mobile number to which the call was made. In the absence of satisfactory details of Ext. B2 document call transcription cannot be accepted as a document in evidence. Ext. B3 is copy of welcome letter along with policy terms and conditions dated 31/01/2022. The complainant specifically denied the service of policy document as contended by the first opposite party. The submission of the complainant is that till 9 months after payment of first premium no registered policy document were served to the complainant and only on directly approaching the second opposite party the policy details were furnished. Though the policy details Ext.B3 is dated 31/01/2022 but there is no document to show Ext. B3 was served on the complainant. Ext. B4 is copy of closure decision of a complaint filed by complainant before the banking ombudsman, Thiruvananthapuram which is cryptic one which does not reveal the transactions between complainant and opposite parties. The closure of a complaint will not restrain complainant from approaching Consumer Redressal Commission to get a relief.
24. Considering the averments and documents, it can be seen that though the complainant paid Rs. 2, 00,000/- on 25/01/2022 towards the first premium there was no confirmation call as claimed by the opposite parties. The commission do not accept Ext. B2 in the absence of the phone numbers from which phone number the call was made and to which phone number the call was made. The opposite party did not produce the call recordings for the proper perusal of the averment in Ext. B2. Moreover it is an admitted case of the opposite party that the complainant is at liberty to withdrawn the policy if the terms and conditions are not acceptable for the complainant. According to the first opposite party there is a free look period of 15 days after receipt of terms and conditions. But in this complaint there is no document to show the terms and conditions were delivered to the complainant in due time. Though Ext. B3 is dated is 31/01/2022 there is no document to show the same was duly delivered to the complainant. Hence the commission is not inclined to accept Ext. B3 document. In the absence of evidence from the side of opposite parties we find that there was no confirmation call from the side of opposite party and also there was no delivery of policy terms and conditions duly to the complainant as claimed by the opposite parties. So the Commission finds that there is merit in the contention of the complainant.
25. It is interesting to note that the complainant submitted that the third opposite party is an employee of the second opposite party. But the second opposite party submitted that the third opposite party is an employee of first opposite party. It can be seen that the first and second opposite parties are two different entities and they are doing two different business. The first opposite party is doing insurance service and the second opposite party is doing banking service. It will not be proper to do two different business under single roof, which the commission finds that causes misunderstanding to the consumer, which amounts unfair trade practice and deceit towards the consumer. In this complaint the complainant approached the second opposite party and then the third opposite party whether he is the employee of second opposite party or the first opposite party instigated the complainant to subscribe the policy of the first opposite party after withdrawing the fixed deposit amount from the second opposite party, which is also amounts an unfair trade practice.
26. The complainant submitted that he do not want to continue the policy and prayed refund of the policy premium remitted amount with interest and cost and compensation. The commission finds the complainant is entitled to get back the premium amount paid along with interest at the rate of 12% per annum from 25/01/2022 to till date of payment. Since there is finding that there is unfair trade practice from the side of opposite parties, the complainant is entitled a reasonable amount as compensation which the commission finds Rs. 25,000/- will be reasonable amount. The complainant also entitled a cost of Rs.10, 000/-.
27. In the light of above facts and circumstances the complaint stands allowed as follows:-
- The first opposite party is directed to refund the premium amount Rs.2,00,000/-(Rupees two lakh only) to the complainant along with interest at the rate of 12% per annum from 25/01/2022 to till date of payment.
- The first opposite party is directed to pay Rs. 25,000/- (Rupees twenty five
thousand only) to the complainant as compensation on account of unfair trade practice and thereby caused inconvenience and hardship to the complainant.
3) The first opposite party is directed to pay Rs. 10,000/- (Rupees ten thousand
only) to the complainant as cost of the proceedings
The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled interest at the rate of 12% per annum from the date of order to till date of payment.
Dated this 30th day of September, 2024.
Mohandasan. K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A6
Ext.A1: Copy of statement of account of the complainant maintained with Canara bank
Vailathoor branch dated 27/03/2023 and the period of statement is 01/01/2022
to 31/12/2022.
Ext.A2: Copy of policy details issued to the complainant by the opposite party.
Ext A3: Copy of email communication between the complainant and the opposite party.
Ext A4: Copy of complaint submitted to the Ombudsman, Trivandrum.
Ext A5: Copy of complaint filed by complainant to the second opposite party.
Ext.A6: Copy of reply submitted by the second opposite party to the insurance
Ombudsman.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B4
Ext.B1: Copy of insurance proposal form.
Ext.B2: Copy of transcription of audio recording between complainant and the executive
of first opposite party.
Ext.B3: Copy of policy document issued by the first opposite party in favour of the
complainant.
Ext.B4: Copy of order from the ombudsman dated 27/02/2023.
Mohandasan. K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
