PER:
Nidhi Verma, Member;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite parties on the allegations that the opposite party No.1 is an insurance company having its registered office at 4th Floor, Building No. 9, Tower-B, Cyber City, DLF City Phase-3 Gurgaon 122002. Opposite party No. 2 is its branch where the opposite party No. 1 worked for gains and the service of opposite parties may be affected through its Managing Director/ Director/ authorized person at registered office and through branch Manager/ authorized person at Branch Office. The opposite party No. 2 approached the complainant through its sales person Mr. Saurav Bhandari and persuaded him to get an insurance policy from opposite parties. The complainant opted to obtain a non ulip life insurance policy from the opposite parties and paid Rs. 49,500/- by cheque on dated 19.6.2017 for application No. AF004629910. The complainant received policy documents on dated 1.7.2017 at his residential address. The complainant read complete policy document and found that terms and conditions of policy are different from explained by sales person of opposite parties at the time selling policy. At the time of selling policy, sales person of opposite parties assured to complainant that this policy can be surrendered after 3 years and you will get all premium paid plus declared bonus from company. The complainant visited the office of Opposite party No. 2 with his friend Mr. Surinder Singh on dated 3.7.2017 for submit request of cancellation of policy under free look cancellation provision. Staff of opposite party No. 2 adopted unfair trade practice and denied to accept request of complainant and told to complainant, “kindly get written consent of our sale manager then we will accept your request” The complainant wrote a complaint to Branch manager of opposite party No. 2 through registered post on dated 7.7.2017. The opposite parties adopted unfair trade practice with complainant and deprived him to use his right for cancellation of policy under free look cancellation provision. Opposite pastries trying to lapsing the period of 15 days available to complainant for cancellation of policy. The complainant is consumer qua the opposite parties for due consideration and the opposite parties have deficiency in rendering services, as such is entitled to invoke the jurisdiction of this Commission. The complainant has prayed the following reliefs against the opposite parties.
(a) The opposite parties may be directed to immediately cancel policy and refund dRs. 49,500/- to complainant with 12% interest without any further delay.
(b) The opposite parties may also be directed to pay Rs. 30,000/- as compensation amount for the mental sufferings, harassment and humiliation suffered by the complainant.
(c) The opposite parties may be directed to pay Rs. 10,000/- as litigation expenses.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties appeared through counsel and filed written version and contested the complaint by interailia pleadings that the instant complaint is false, malicious, incorrect and malafide and is nothing but an abuse of the process of law and it is an attempt to waste the previous time of this commission. The complainant has not approached this commission with clean hands. The present complaint should be dismissed forthwith on ground of being malafide, baseless and lacking a bonafide cause of action. The complaint filed by the complainant does not fall within definition of a consumer dispute under the Consumer Protection Act, 1986 as there is neither any unfair trade practice adopted by opposite party nor deficiency in service being established against opposite party and complaint is liable to be rejected in totally. After duly deliberating upon and understanding all the terms and conditions of DHFL Pramerica Roz Sanchay and after being satisfied with the plan Mr. Gurjeet Singh with the intention to purchase the policy submitted duly filled and signed proposal forms bearing No. AF004629910 dated 19.6.2017 giving all relevant details and information in the prescribed form. Based on the information provided and declaration made in the proposal form, the policy bearing No. 00503406 was issued to the DLI having commencement as on 23.6.2017. The policy terms and conditions along with the schedule and welcome letter were delivered to the address to the DLI. The opposite party has duly dispatched policy documents through AWB No. 34044257144 dated 28.6.2017 which was duly delivered to complainant on 1.7.2017. The complaint filed by the complainant does not fall within definition of a consumer dispute under the consumer Protection Act, 1986 as there is neither any unfair trade practice adopted by OP No. 1 nor deficiency in service being established against opposite party No. 1. The complainant has never visited our office on 3.7.217 as claimed by him and never made a request for cancellation of the policy. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.
4 To prove his case, Ld. counsel for the complainant tendered in evidence affidavit of complainant Ex. C-1 along with documents i.e. copy of delivery sheet Ex. C-2, affidavit of complainant Ex. C-3, copy of the premium receipt Ex. C-4, copy of complaint moved to the opposite party Ex. C-5, copy of postal receipt Ex. C-6, copy of affidavit of Gurjeet Singh Ex. C-7, copy of email dated 12.7.2017 Ex. C-8 and closed the evidence. Ld. counsel for the opposite party tendered in evidence affidavit of Sh. Parmal Singh Ex. OP1/1, copy of authority letter Ex. OP1/2, copy of proposal form Ex. OP1/3, copy of policy documents Ex. OP1/4 and closed the evidence.
5 We have heard the Ld. counsel for the parties and have carefully gone through the record.
6 In the present complaint, complainant purchased insurance policy (non-ulip life insurance policy) from Ops through its sales person Mr . Saurav Bhandari on dated 19/06/2017 for application no. AF004629910 and he paid 49500/- by cheque. The complainant received policy document on dated 01/07/2017 at his residence address. After reading complete policy document, he found that terms and conditions of the policy are different from explained by sales person. Sales person assured to complainant that “ this policy can be surrendered after 3 years and you will get all premium paid plus declared bonus from company”. On dated 03/07/2017 complainant visited the office of the OP No 2 for submit the request of cancellation of policy under free look cancellation provision. But staff of OP No 2 adopted unfair practice and denied to accept request of complainant and told to complainant ,“kindly get written consent of our sale manager then we will accept your request ”. Later on dated 07/07/2017, complainant send the complaint to Branch Manager of OP No 2 through registered post . The Ops adopted unfair trade practice with complainant and deprived him to use his right for cancellation of policy under free look cancellation provision. Opposite parties in their written version accepted the fact that the complainant signed the proposal form bearing No. AF004629910 on dated 19.06.2017 giving all relevant details and information in the prescribed form. On dated 23.06.2017 policy No. 00503406 was issued . The policy terms and conditions along with the schedule and welcome letter were delivered to the address of the DLI. The OP has duly dispatched a policy document through AWB No. 34044257144 Dated 28.06.2017, which was duly delivered to complainant on 01.07.2017. Further, the OP denied some points mentioned in the complaint by the complainant:-
- The complainant was assured that this policy can be surrendered after 3 years and the complainant would get all premiums paid plus declared bonus from the company.
- The complainant has never visited office of the OP on dated 03.07.2017 and never made a request for cancellation of the policy.
- The complainant was told to get written consent of sales manager and then the request shall be accepted.
- OP get any letter (registered post) on dated 07.07.2017from the complainant.
In the view of the above discussion, some questions arises which we need to discuss:-
- Free look period :- As per Op the complainant does not fall within definition of a ‘consumer dispute ' under the Consumer Protection Act,1986 as there is neither any unfair trade practice adopted by OP 1 nor deficiency in service being established against OP 1,hence the allegations made by the complainant is liable for rejection.But in order to protect the interests of consumers ,IRDA has included a provision which allows customers to return their policies which they are not satisfied with and also get a refund for the same . Hence , it’s the right of the consumer to cancel the policy .
In other judgments of the Hon’ble National Commission of case Mohan Lal Benal v. ICICI Prudential Life Ins. Co. RP No.2870 of 2012 decided on 16.10.2012 and R.P. No.3271 of 2013 (Harish Kumar Chadha v. Bajaj Allianz Life Insurance Co. Ltd.) decided on 07.10.2013, it has been held that in case the insured/complainant is not satisfied with the policy taken, then he/she should avail the option of returning the policy with a period of 15 days of receipt i.e. “Free Look Period”.
7 As per OP they did not get any letter on dated 07.07.2017. The complainant provided as an evidence the letter of cancellation in free look period (Ex C 5) , Dispatched post receipt (Ex C 6) , further to prove their point they provided the computerized copy of the delivery sheet ( Ex C 2) , where we clearly check the signature with DHFL STAMP ,as they received the letter on dated 10.07.2017. Further , to make their stand the complainant provided the Affidavit of Rajesh Sharma (post man ) who stated that“ he delivered the registered post bearing no. RP631696137IN on dated 10.07.2017 (Ex C 1) . Further , the complainant send the E mail on dated 12.07.2017 tondfloor,JK Tower, Mall Road, Amritsar. On dated 10.07.2017. Hence the OP adopted unfair trade practice with the complainant and deprived him to use his right for cancellation of policy under free look cancellation provision. Thus , on perusal of documents placed on record it revealed that the complainant had made a request for cancellation of the policy immediately after receipt of the policy document within 15 days.The OP adopted unfair trade practice and also deficiency in service . So, we are of the view that complainant is entitled to refund of his premium amount along with interest and also for compensation on account of harassment and mental agony.
8 The terms and conditions of the Insurance Policy have to be strictly construed. Hon’ble Supreme Court in the case of Export Credit Guarantee Corporation of India vs. Garg Sons International 2013 (1) SCALE 410 (SC) held in Para Nos.8 to 11 as under:
“8. It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567).
9. The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are consequently, the terms of the insurance policy, that fix the responsibility of the Insurance Company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. v. Oil & Natural Gas Company, AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran AIR 2012 SC 2829).
10. In Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd. AIR 2009 SC 2493, it was held: “An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. (See also: Sikka Papers Limited v. National Insurance Company Ltd & Ors. AIR 2009 SC 2834).”
11. Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”
9 In another case of National Insurance Co. Ltd. v. Rameshwar Lal Revision Petition No.1751 of 2017 decided on 18.09.2020 by relying upon various judgments held that the contract of insurance is to be construed as it is written in the policy documents.
10 In view of above discussion, the present complaint is allowed and the complainant is entitled to Rs. 49,500/- i.e. premium amount from the opposite parties. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs.7,500/- ( Rs. Seven Thousand Five Hundred only) as compensation on account of harassment and mental agony and Rs 5,000/- ( Rs Five Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainants are entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
15.09.2022
