1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 21.02.2022 passed by the Tamil Nadu State Consumer Disputes Redressal Commission (“the State Commission”), in CC No. 174 of 2014 wherein the State Commission partly allowed the Complaint.

2.      For Convenience, the parties in the present matter being referred to as mentioned in the Complaint before the State Commission. “Dr. Capt. S. Srinivasan” is identified as the Complainant (Respondent herein) and Kotak Mahindra Life Insurance Company Ltd. is referred to as the Opposite Party/Appellant/Insurer.

3.      Brief facts of the case, as per the Complainant, are that he is retired from medical service and currently working as a Professor-cum-Surgeon at Arupadai Veedu Medical College, Pondicherry. Intending to take an insurance policy for the benefit of his grandson, he visited the website "policybazaar.com" and provided the required details. He was contacted by Sunitha Suresh, an agent of the insurance company. She provided her agent code No. as 60143732 and explained the Kotak Child Advantage Plan (UIN-107N008V01) to him. He expressed interest and was asked to sign a blank application form, which Sunitha assured she would fill in later.

4.      In good faith, the complainant signed the document and issued a cheque for Rs. 99,900/- as the first-year premium. Later, Sunitha visited the complainant again, requested an additional payment of Rs. 50,000/- for another policy, and was given a cheque for Rs. 50,705/-. Within a month, he received the policy but found errors in the policy certificate, specifically the incorrect naming of the insured and the insurer. Despite repeated attempts to contact Sunitha to rectify the error, she avoided his calls and eventually became unreachable. Frustrated, he reached out to the insurance company's branch office in Chennai, where the Branch Manager promised to correct the errors and refund the premium for the additional policy. However, no action was taken, and the complainant decided to continue with the Child Advantage Policy after assurances of correction, which were never fulfilled. Being aggrieved, he filed a consumer complaint before the State Commission.

5.      The insurer, in reply before the State Commission contended that the complaint lacked cause of action and filed in State Commission by inflating the claim. The complaint was bad for non-joinder of necessary parties, specifically the agent Sunitha Suresh, who was central to the transaction. The complainant failed to seek cancellation of the policy within the freelook period, making the contract binding. The company issued him three policies, all received by him, and his request for alteration outside the freelook period was rejected. There is no negligence or deficiency in service on their part.

6.  The State Commission vide order dated 21.02.2022 partly allowed the complaint with the following findings /reasons:

“5.      Heard the submissions of both sides and perused the materials available on record. Though very many contentions have been raised on either side, it is the main grievance of the complainant that in August 2013, he was contacted by the agent of the opposite parties insurance company who explained about the various insurance policies of their insurance company to the complainant. The complainant evinced interest in taking the policy styled as "Kotak Child Advantage Plan "UIN-107N008V01)" and the said plan was described as "Endowment Assurance for Children". Thereafter, the said agent requested the complainant to sign in some blank application forms to enroll himself in the insurance policy. In good faith, the complainant had signed the blank application form and issued cheque for Rs.99,900/- as premium for the first year of the policy and later when received a copy of the insurance policy, he found that instead of mentioning that after the demise of the Parent or Guardian the Child is the beneficiary it has been wrongly mentioned in the policy that the complainant is as the beneficiary in the event of death of his grandson, the child, Lohith Krishna V. This was brought to the knowledge of the officials of the opposite parties insurance company to make the requisite changes in the policy and the officials of the opposite parties promised the complainant necessary changes would be done and requested him not to cancel the policy. But, thereafter they have not done anything. It is also the case of the complainant that though he had insisted the opposite parties to close the policy and return the policy amount with interest and even for that no response was made till date by any of the opposite parties. Therefore, there is deficiency in service on the part of the opposite parties. But, according to the counsel for the opposite parties, any request for changes in the policy should have been made by the complainant within the freelook period of 15 days from the date of receipt of the policy. But the complainant neither made nor did put forth any request within the freelook period. Moreover, the complainant has neither undergone any economic loss nor had he suffered any physical stress when he took these policies with the opposite parties, but wants to unjustly enrich himself by filing this complaint before this Commission and thus they sought for dismissal of the complaint.

6.   It is evident from the factual aspects of the case that the agent of the opposite parties has committed a blunder mistake while filling-up the proposal form instead of mentioning that after the demise of the Parent or Guardian, the child is beneficiary, but the policy names the complainant as the beneficiary in the event of death of the child, Lohith Krishna V. It is the common knowledge that the complainant who is grandfather of the child would have taken the policy only for the welfare of the child. Without knowing the fact, a mistake has been committed by the agent in filling up the proposal form which would have naturally caused sufferings and mental agony to the complainant for which the opposite parties are liable to pay compensation. That apart, we also find from the factual aspects that the complainant had approached the opposite parties on several occasions to cancel the policy and refund the amount paid by him. But, the complainant was made to run pillar to post but nothing fructified. If the policy could not be cancelled after a free look period of 15 days, the opposite parties could have informed the same at the initial stage itself to the complainant. Here in the instant case, the complainant was made to believe by the agent as if the mistake which crept in the policy would be rectified but finally wriggled out without doing anything. Further, it is a common knowledge that nobody would like to continue the policy by having the name as beneficiary in the event of death of his grandson. Therefore, in our considered view, the opposite parties have committed gross-negligence in their duty by wrongly mentioning the complainant's name in the policy as beneficiary in the event of demise of his grandson and further failed to return the amount after cancellation of the said policy and thereby committed deficiency in service as against the complainant for which they are liable to pay compensation to the complainant besides refund of the amount paid by him. Therefore, the complainant is entitled for the relief as decided supra.

7. In the result the complaint is allowed in part and the opposite parties 1 to 3 are directed jointly and severally to refund the amount of Rs.99,900/- after duly cancelling the said policy with interest at the rate of 9% per annum from the date of issuing cheque on 27.09.2013, to the opposite parties insurance company till the date of payment in respect of the insurance policy No.02810036 and also to pay a sum of Rs.5,00,000/- as compensation for mental agony and hardship undergone by the complainant with cost of Rs.10,000/- to the complainant.

Time for compliance; Two months from the date of receipt of copy of this order, failing which the amount of compensation of Rs.5,00,000/- shall carry interest at the rate of 9% per annum from the date of order its realization.”

7.      Being aggrieved by the order of the State Commission, the Appellant/OP filed Appeal no. 463 of 2022 seeking:

(a) Allow the present appeal;

(b) Set-aside Final Order dated 21.02.2022 passed in CC No. 174/2014 titled as Dr. Capt. S. Srinivasan Vs. MD, Kotak Mahindra Old Mutual Life Insurance Ltd. by Tamil Nadu State Consumer Dispute Redressal Commission, Chennai., and dismiss the complaint;

(c) Pass any other or further order which this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.

8.      In the Appeal, the Appellant mainly raised the following issues:

A. The State Commission has no pecuniary jurisdiction to entertain the complaint. The dispute pertains to only Rs.99,900/- and just to bring within jurisdiction, he arbitrarily, illegally sought exorbitant compensation of Rs.20,00,000/- which was impermissible under law.

B. The complaint is bad for mis-joinder and non-joinder of parties. The OPs in the complaint were neither necessary nor proper parties. They neither issued the policy nor received premium from him. The Respondent submitted the proposal for issue of the policy from the Appellant and not the OPs impleaded. Thus, no relief could have been sought from the OPs. Further, while serious allegations were made against Suresh Sunitha, the Agent she was not impleaded.

C.  The complainant’s contention with respect contents of the policy Certificate No. 2810036 wrongly mentioned the insured and insurer by inter changing them is false. He never raised this issue before the Appellant and raised for in the complaint an afterthought.

D. The State Commission erred in holding that the OPs committed a blunder while filling-up the proposal form and wrongly mentioned the insured and the beneficiary. There was nothing on record to show that the proposal was filled up by the agent and there was a wrong mention. There is nothing on record to show that he ever pointed out the alleged mistake. He never referred these in his communications. He only sought change of term plan from 15 years to 12 years.

E. The State Commission erred in holding that the complainant was denied cancellation despite approaching several times. In fact he sought change of policy term from 15 to 12 years. It was rejected due to lapse of freelook period. His request on 16.12.2013 as regards policy No. 02817383 was changed from Assured Income Plan to Child Advantage Plan, by issuing new policy No. 02849044. Also, on his request, they cancelled the policy No. 02849044 and refunded Rs.50,651.80 on 13.06.2014 which was accepted.

F.   The State Commission erred in holding that the OPs committed gross, negligence. There is nothing on record to show that the OPs wrongly mentioned his name in the policy as beneficiary.

G. The State Commission erred in holding the OPs-1 to 3 jointly and severally liable for refunding the premium amount with interest along with compensation of Rs.5 lacs against refund of premium of Rs.99,900/ along with interest @ 9% per annum on compensation.

H. The State Commission failed to appreciate the fact that the Appellant received premium for policy No.2810036 only once. The renewal was due on 25.09.2014 and a reminder was sent. However, he failed to renew the policy and it lapsed from 25.09.2014.

I. The State Commission failed to appreciate that, at the time of filling proposal, he opted to be policyholder and his grandson as life insured and the policy was issued accordingly. He never sought/ mentioned about the interchanging of the name of insured. Every policy is designed as per age, requirement and the eligibility. The premium differs if the age and other factors differ.

9.      In his arguments, the learned counsel for the Appellant reiterated the grounds of appeal and asserted that the State Commission has no pecuniary jurisdiction to entertain the complaint. The dispute pertains to only Rs.99,900/- and to invoke the pecuniary jurisdiction, he illegally sought exorbitant compensation of Rs.20,00,000 and with other reliefs. The complaint is bad for mis-joinder and non-joinder of parties. The OPs impleaded in the complaint were not necessary or proper parties and no directions could have been issued against them as the OPs neither issued the policy nor received any premium. He submitted the proposal and sought issue of the policy from the Appellant and not OPs. Further, while he made serious allegations against Suresh Sunitha, the Agent, she was not made necessary party. The contentions of the Complainant were totally contrary to record and the document he himself submitted. His main contention that upon receiving the policy No. 2810036, he was shocked to find that policy certificate had wrongly mentioned the insured and the insurer by inter changing them was palpably false and contrary to record. He never raised this issue before the Appellant Company and for raised for the first time in the complaint, which was an afterthought. This fact is manifest from document on record that the Respondent neither in letter dated 29.11.2013 or any other document ever mentioned about wrongly mentioning the insured and insurer by interchanging in the policy bearing No. 2810036. The State Commission passed the impugned order entirely relying on the contentions of the Complainant and did not consider any document, evidence or submissions raised by the Appellant. There was nothing on record to show that proposal form was filled up by the agent and there was a wrong mentioning of the insurer and beneficiary. There was also nothing on record to show that the complainant ever pointed out the said alleged mistake. He, in his own mails including letter dated 29.11.2013 with respect to the policy No. 2810036 never mentioned or pointed the same. He only sought the change of term plan from 15 years to 12 years. Further, the Complainant signed the proposal form and he never disputed his signature. It is settled law if a person signs a document it is presumed that he signed the same after understanding the same. Further, at the time of sourcing the policy, the agent acts an agent of the proposer and· not of the insurer. This has been settled by Hon'ble Supreme court in Reliance Life Insurance Company Ltd., & Anr. vs. Rekha Behen Naresh Bhai Rathore passed in CA No. 4261 of 2019 on 24.04.2019. The State Commission erred in holding that "if the policy could not be cancelled after freelook period of 15 days, Opposite Parties could have informed the same at the initial stage itself to the complainant." This finding of the State Commission is perverse, contrary to record. As per IRDAI Regulations, 2002 the policy and documents were forwarded to the Respondent at his registered address clearly mentioning that in case he is not satisfied with terms & conditions of the policy, he can return the policy within 15 days i.e. under freelook period specifically mentioned in the covering letter dated 29.09.2013. The State Commission erred in holding that OPs committed gross, negligence in their duty by wrongly mentioned the Complainant's name in the policy as beneficiary in the event of demise of his grandson. He failed to establish the same. After receipt of policy on 29.11.2013, he sought change of policy term from 15 years to 12 years and submitted freelook alteration form. In the said request there is nothing to point that wrongly complainant name has been mentioned in the said policy as beneficiary. His request was rejected for being beyond the freelook period. At no stage, he pointed out that wrongly his name has been mentioned as beneficiary. He relied on Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66. He asserted that awarding Rs.5 lacs compensation is perverse as there was no basis, document, evidence on record to show that he was entitled for Rs.5 Lakhs as compensation against refund of premium of Rs.99,900/ along with interest @ 9% per annum on compensation.

10.    On the other hand, the learned Counsel for the Respondent/ Complainant has argued in favour of the impugned order passed by the State Commission.  He sought to dismiss the Appeal with costs.

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsels for both parties.

12. The main issue to be determined is whether there is deficiency in service and/or unfair trade practice by the OPs in the issue of the policy and further declining to address the complainant’s concerns? If there is a deficiency in service and/or unfair trade practice, whether the learned State Commission is right in ordering refund of the premium amount of Rs.99,919/- along with interest 9% p.a. and compensation of Rs.5 Lakh on the ground of deficiency in service in issuing the policy in question?
13. Undisputedly, the policy No. 2810036 was issued by the Appellant on 29.09.2013, with the proposal received date being 25.09.2013. The Respondent/Complainant received the said policy on 28.10.2023. The Appellant Company received the freelook alteration form under the Policy No. 2810036 along with a letter dated 29.11.2013. However, the Appellant rejected the request on 16.01.2014 as it was made beyond the freelook period of 15 days from the date of receipt of the policy documents. The Complainant contended that the dates of birth of the proposer (insured) and the beneficiary were clearly mentioned in the proposal form. However, while issuing the policy, the OPs failed to apply its mind and mechanically issued the policy by naming the child as the insured and the grandfather as the beneficiary, which lacked common sense. The Complainant received the policy on 28.10.2013 and made several unsuccessful attempts to contact Ms. Sunitha to rectify the mistake in the policy. Thereafter, on 11.11.2013, he made an email complaint to the client service desk within the 15-day freelook period specified by the Appellant to report any discrepancies in the policy. Therefore, the contention of the OPs as regards the lapse of the period limitation in filing the Complaint as well as the lapses of the right to freelook and make a decision regarding the cancellation of the policy is untenable. It was explicitly clear from the very beginning that it was the Complainant who is the grandfather of the child in question sought to secure the interest of the child and intended to take a policy against his life. However, while an Agent who reached out to the Complainant and assisted him in making the proposal, the same has resulted in an insurance contract securing the interest of the grandfather against the life of the child, which the Complainant who purchased the policy never intended. When once this was highlighted by the Complainant, the OPs ought to have taken necessary steps to rectify the same, and even recovered the additional cost towards premium, if necessary. As against the same, even after reporting to the Helpdesk within time, the OPs resorted to make the Complainant make multiple visits and finally denied the request to correct the policy. Also, the contention of OPs as regards pecuniary jurisdiction of the State Commission and inflation of the claim beyond Rs.20 Lakhs is untenable as the procedure adopted is as per the Act of 1986.

14.    It is evident that the learned State Commission vide order dated 21.02.2022 awarded multiple compensations to the Complainant. As regards the scope for award of such compensations, the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for single deficiency is not justifiable. Further, award of compensation of Rs.5,00,000 is excessive, notwithstanding the establish deficiency in service. I, therefore, consider appropriate to grant compensation of Rs.2,00,000/- to the complainant.

15.  In view of the foregoing, the order of the learned State Commission is modified as under:

ORDER

I.   The Appellant/OP is directed to refund the Respondent/ Complainant Rs.99,900/- paid as premium;

II.  The Appellant/OP is directed to pay the Respondent/ Complainant Rs.2,00,000 as compensation; and

III.   The Appellant/OP is also directed to pay the Respondent/ Complainant Rs.20,000/- towards costs of litigations;

IV.  The above payments shall be made to the Respondent/ Complainant within a period of one month from the date of this order. In the event of delay beyond one month, the interest applicable for such extended period shall be 12%.

16.    With above directions, FA No.463 of 2022 stands disposed of.

17.    All pending Applications, if any, also stand disposed of.

18.    The Registry may release the Statutory Deposit amount, if any due, in favour of the Appellant, after compliance of the order of this Commission, as per law.