BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.69 of 2015

Date of Instt. 27.02.2015

Date of Decision :11.08.2015

Jai Kohli son of Late Sh.V.K.Kohli R/o 38, Tagore Park, DAV Professor Colony, Jalandhar (As per policy- Jail Kohli # Tagore Park, Professor Colony, Jalandhar-144008 Punjab).

..........Complainant Versus

1. DHFL (earlier DLF) Pramerica Life Insurance Company Ltd, DLF Centre, Sansad Marg, New Delhi-110001 through its Managing Director.

2. DHFL (earlier DLF) Pramerica Life Insurance Company Ltd, 2nd Floor, Eminent Mall, Guru Nanak Missio Chowk, Jalandhar through its Manager.

3. Mohit Dewan, Sale Person, DHFL (earlier DLF) Pramerica Life Insurance Company Ltd, 2nd Floor, Eminent Mall, Guru Nanak Missio Chowk, Jalandhar.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act,1986.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Rajinder Narula Adv., counsel for complainant.

Sh.HS Kohli Adv., counsel for OPs No.1 to 3.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against the opposite parties on the averments that the complainant is in profession of coaching and related assignments who is unmarried and his father has expired since long and complainant is having a responsibility of his mother who is old. One of representative of opposite party No.1 who is opposite party No.3 contacted complainant and introduced him with the policies of opposite party No.1. Opposite party No.3 told complainant that he is sales person of opposite party No.2 and opposite party No.3 is the head office of opposite parties No.2. Since opposite party No.1 has very high reputation in our country, so complainant has accepted to have talk with opposite party's representative i.e opposite party No.3 at the residence of complainant at Jalandhar. Opposite party No.3 came to the residence of the complainant situated at Jalandhar and complainant in presence of his mother namely Sudha Kaur has clearly mentioned opposite party No.3 that he is only interested in one time investment i.e single premium plan as complainant do not have high monthly income and complainant has also clearly mentioned opposite party No.3 that he is only interested in risk free and legal investment as his saving are hard earned money of his family and in no condition he wants to ruin the savings. Opposite party No.3 has convinced on behalf of opposite party No.1 that opposite party No.1 is doing only legal investments and thus is highly reliable one. Opposite party No.3 has convinced complainant with regard to life insurance policy of opposite party No.1 having only one time investment i.e single premium plan of Rs.99,990/- and also assured complainant that he will get after completion of five years period half the principal amount of Rs.99,990/- alongwith survival benefits of Rs.1,29,728/- for policy. Complainant was interested in similar kind of one time investment and thus complainant has accepted above mentioned policy of opposite party No.1 duly mentioned in the head note after again taking assurance that it relates to only single premium plan and after confirmation by opposite party No.3 complainant has completed the documentation alongwith complainant has given the original copies of his income tax returns. The complainant at his Jalandhar residence in presence of his mother has filled and signed the account payee cheque of premium having cheque No.12568 dated 15.1.2013 amounting Rs.99,990/- drawn on Allahabad Bank, Maqsudan, Jalandhar and handed over the cheque to the opposite party No.3. The opposite party No.3 took the cheque at Jalandhar and assured the complainant that he will come again on clearing of the cheque to take signature of the complainant but opposite party No.3 did not come rather policy was received by complainant. Afterwards opposite party No.1 has sent the policy to complainant which was never signed by complainant and to utter shock of complainant the policy was not of single premium plan rather having annual premium frequency of like amount for 20 years and economical position of complainant in no case allowed him to make a periodic investment of like amount after lapse of each year. Complainant immediately contacted opposite party No.3 and enquired about the policy but he assured complainant that it is single premium plan policy but inadvertently the wrong policy has been sent to him and opposite party No.3 further assured complainant that after few weeks he would get the correct policy of having only one time investment. Complainant has great faith on the reputation of opposite party No.1 and he remained silent for few weeks but no fresh policy has been delivered to complainant. Then complainant visited opposite party No.2 and enquired about the policy where officially it was informed that policy has premium of 20 years and not a single premium plan. The complainant gave written complaint to cancel the policy as complainant has no capacity to pay such a hefty amount each year and opposite party No.2 gave acknowledgment slip to the complainant dated 7.9.2013 for cancellation of the policy but no concrete action was taken by opposite party No.2. Afterwards complainant sent numerous reminders to cancel the policy and return the premium paid by complainant but of no use. Complainant also came to know that opposite party No.3 has attached the false and fabricated income tax returns of complainant which were never provided by complainant. Complainant has provided his income tax returns of just Rs.2,60,923/- for FY 2010-11 as complainant is investing Rs.99,990/- only one time but the original returns were not sufficient for Rs.99,990/- as regular annual premium for 20 years as such opposite party No.3 to enhance the financial capacity of complainant has fabricated the income tax returns showing annual income of Rs.5,00,000/- in policy for which complainant has been defrauded. On such like averments, the complainant has prayed for directing the opposite parties to pay Rs.1,65,990/- as compensation.

2. Upon notice, opposite parties appeared but only opposite parties No.1 & 2 filed a written reply pleading that complainant was sold the policy contracts by M/s Safeway Insurance Brokers Pvt Ltd. Hence as per the clause 3 of the broker regulations issued by IRDA, the broker is responsible for the sale of the said policies to the complainant. They therefore submit that the present complaint filed by the complainant is not maintainable for mis-joinder of improper parties as the said policy contracts were sold by the M/s Safeway Insurance Brokers Pvt Ltd. Pursuant to the solicitation by M/s Safeway Insurance Brokers Pvt Ltd, insurance broker, the complainant's had applied for the two policies with the opposite party under duly filled and signed application forms bearing No.AF000788359 on 23.11.2011 and AF001143489 on 17.1.2013 for an annual premium of Rs.1,00,000/- each. The details of the policies are as under:-

3. The opposite party as per the procedure made pre-verification calls to the complainant as per the table below prior to logging the policies to explain the policy features and benefits such as paying period, policy term, sum assured, premium amount. The calls were attended by the complainant himself wherein he has confirmed all the aforesaid features of the policy contracts. The opposite party then issued the aforesaid policies and dispatched them on the complainant's address as mentioned in the application form as per the table below.

4. The policy bearing number 186624 & 223974 was duly delivered to the complainant and same is also evident from the acknowledgment & POD. Thereafter opposite party as per the procedure made the welcome calls to the complainant on 31.12.2012 and 12.4.2013, however the opposite party was unable to speak with him as his phone was switched off. It is pertinent to mention that despite confirming the details of the application forms on the pre-verification call, the opposite party for the first time received a cancellation request for both the policies from the complainant on 12.9.2013 i.e 9 months after the receipt of the Ist policy and 6 months after the receipt of the 2nd policy seeking cancellation and refund of premium on the grounds of mis-selling. In the said complaint, the complainant alleged that the policies were sold as "Single Premium Policy Contracts". On receipt of the same, the opposite party vide letter dated 12.9.2013 informed the complainant that as the complainant has approached the company beyond the free look period hence the said request could not be honoured. It is important to highlight that in the earlier complaints of the complainant received by opposite party, he had mentioned the reason for cancellation as "Mis-selling" but in the letter dated 30.12.2013, the complainant switched the reason for the cancellation on the grounds of "Financial Constraints" which itself speaks the volume that the allegations raised by the complainant are afterthoughts and to extract monies from the opposite party by one way or other. They denied other material averments of the complainant.

5. Opposite party No.3 did not file any written reply inspite of various opportunities and as such he was debarred from filing any written reply.

6. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.

7. On the other hand, learned counsel for the opposite parties No.1 & 2 has tendered affidavit Ex.OPW1/A alongwith copies of documents Ex.OP1 to Ex.OP6 and closed evidence.

8. We have carefully gone through the record and also heard the learned counsels for the parties.

9. Counsel for the complainant contended that complainant has applied for single premium policy and proposal form of the policy issued by the opposite parties was never signed by the complainant. He further contended that even the income tax returns submitted by the complainant to show his financial position has been forged by the opposite parties. So the complainant is raising question of forgery. In para 4 of the complaint, the complainant has specifically pleaded that afterwards opposite party No.1 has sent the policy to complainant which was never signed by him. Further in this para, the complainant has further pleaded that he also came to know that opposite party No.3 has attached the false and fabricated income tax returns which were never provided by him and he has provided his income tax returns of just Rs.2,60,923/- for financial year 2010-11 as complainant was investing Rs.99,990/- for one time but the original returns were not sufficient for Rs.99,990/- as regular annual premium for 20 years, as such opposite party No.3 to enhance the financial capacity of complainant has fabricated the income tax returns showing income of Rs.5,00,000/- in policy for which he has been defrauded. These facts are also mentioned in the affidavit of the complainant. Even in his emails Ex.C5 to Ex.C7 to the opposite party insurance company, the question of forgery has been reiterated by the complainant. The question of forgery can not be decided effectively in the present summary proceedings. To determine forgery detailed inquiry and evidence is required. Even evidence of handwriting expert is also required. In Oriental Insurance Co.Ltd Vs. Munimahesh Patel 2006(3) Apex Court Judgment 365 (SC), it has been held by Hon'ble Supreme Court as under:-

"Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the document (i.e proposal forms) produced by the appellant.

The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.

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 a appropriate court of law and not by the Commission".

10. In M/s. Bajaj Allianz Life Insurance Co. Ltd and others Vs. Bhupinder Singh, First appeal No. 297 of 2011, decided on 09.01.2012 by Hon'ble State Commission of Union Territory, Chandigarh it has been observed as under:-

"In Reliance Industries Ltd.’s case (supra), it was held that when the questions of fraud and cheating are involved in regard to the claim of the complainant, which require thorough scrutiny including the examination of various documents and supporting oral evidence, the Consumer Fora cannot adjudicate upon the matter. It was further held that the questions of fraud, cheating and conspiracy could be satisfactorily resolved, by the Civil Court. Similar principle of law, was laid down in M/s Sincihal Swaroop Ispat Ltd.’s case (supra) decided the National Commission. Since the disputed, complicated and complex questions are involved, as to whether, Annexure R-1, proposal form and declaration bear the signatures of Jai Teging Singh and whether Annexure R-2 assignment form bear his signatures and the signatures of the complainant or were forged by the Opposite Party No.3. In our opinion, for proving the same elaborate examination of the witnesses, their cross-examination, and a lot of documentary evidence, are required. Not only this, even comparison of the disputed signatures of Jai Teging Singh on the proposal form, as also, on the assignment notice and disputed signatures of his father, on the said form, is required to be made by the Forensic Expert, with their specimen signatures/standard signatures, to arrive at truth. Such disputed, complex and complicated matters can only be adjudicated upon by a competent Court of Civil Jurisdiction. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellant, being correct, is accepted."

Similarly, in case Daljit Singh Dogra Vs. ING Vysya Bank Ltd and others 2009 (4) CLT page 22, the Hon'ble State Commission of Punjab has observed as under:-

" All these facts and circumstances narrated here-in-above clearly lead us to the conclusion that disputed questions arises in this complaint which need a detailed and thorough investigation in to the facts which is incapable of being undertaken in these summary proceedings under the Consumer Protection Act, 1986.

Hon'ble Supreme Court in the judgment reported as Punj Lyoyd Limited Vs. Corporate Risks India Pvt. Ltd. 1(2009) CPJ 10 (SC) was pleased to observe that the parties can be relegated to the civil court after notice to the opposite party and after coming to know the nature of pleadings of the parties and the nature of questions involved in the complaint which needed to be answered and the scope of inquiry Hon'ble Supreme Court discussed the whole law on the subject and was pleased to observe as under:-

"When pleadings of both the parties were made available before the Commission, only then the Commission should have formed an opinion as to the nature and,scope of inquiry i.e. whether the facts which arose for decision on the basis of the pleadings of the parties required a detailed and complicated investigation of facts which was incapable of being undertaken in a summary and speedy manner, then only the Commission should have justifiably formed an opinion on the need of relegating the complaint to a Civil Court.

We reach the conclusion that the nature and scope of inquiry involved in the complaint needs complicated investigation of facts which cannot be undertaken in these summary proceedings. It needs lot of evidence documentary, oral and expert".

11. The ratio of these authorities is fully applicable on the facts of the present case. So in our opinion, the dispute involved in the present complaint can not be effectively decided in the present summary proceedings and further on the basis of evidence on record. To decide the question of forgery appropriate forum is civil court.

12. In view of above discussion, the present complaint is dismissed with liberty to the complainant to approach civil court or any other appropriate forum or court. There shall be no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

11.08.2015 Member Member President