BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    11^th DAY OF NOVEMBER 2019

Complainant/s: -                           

1. Sri.Siddalingesh

S/o Basanagouda

Age 42 years,

R/at Ward No.10,

Karatagi

2. Smt.Padmavathi

W/o Venugopal Bannur

Age 31 years

R/at Ward No.31,

Karatagi

3. Sri. Ramesh

S/o Kristayya

Age 45 years

R/at Ward No.11,

Karatagi

4. Smt.Rekha

W/o Ananthashetti

Age 52 years,

R/at Dalal Bazar,

Karatagi.

5. Sri.Ananthashetti,

S/o Kristayya

Age 53 years,

R/at Dalal Bazar,

Karatagi.

By Adv.Sri.M.V.Mudgal

V/s

Opposite party/s:-    

Exide Life Insurance Co., Ltd., Regd., Office 3^rd Floor, J.P.Techno Park,

No.3/1, Millers Road, Bengaluru-01.

By Adv.V.Raman

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant no.1 to 5 (herein after called as Complainants) have filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay as below:

2. The brief facts of the complaint are as under:

The Complainants submit that, in the present case there are 5 Complainants. As the nature of complaint and claims against the OP are one and the same, on behalf of all, one complaint is filed, and will be filed affidavit evidence, written arguments by one Complainant who has been authorized by all the Complainants through his counsel. Complainants further submit that, believing the assurance of OP’s agent, they purchased policy. At the time of obtaining the policy, the agent assured that the said policy is single premium policy. But, later came to know that, they have to pay premium ever year until the end of the policy period. As the Complainants are not financially fit to pay the premium amount regularly, requested the OP to take back the policy and for refund. But OP not responded. Hence, they issued legal notice dtd.27.06.17 to which OP replied untenably. Hence this complaint.

3. OP did appear and filed version. OP in its version submits that, the complaint being filed by five different persons, who have purchased the insurance policies individually in their own name as beneficiaries. In view of the same any grievances against the insurance company should be filed separate complaint by each beneficiary of the respective policy. OP further submits that, none of the Complainants raised any objection to the terms and conditions of the respective policies within 15 days of the receipt of the policy documents (free look period) as per Regulation 6(2) of Protection of Policyholder’s Interest, Regulation 2002 issued by IRDA. Hence, it is evident that the contract of insurance was legally concluded with the Complainants and he/she was satisfied with all the terms and conditions thereto and accepted the same unconditionally. As per the terms of the policy, the policy premium paying term for each policy varied between 15 to 16 years. Though the said 5 policies were issued during 2016, the same were not renewed by the Complainants. Accordingly replied to their notice also on 06.07.17. Hence, there is no deficiency of service on their part. Hence prays for dismissal of the complaint.

3a. OP filed an application on 14.09.18 rising preliminary objection stating that present complaint filed by different individuals jointly as single case is not admissible under CP Act. To which Complainants not filed any objections. In addition to the above contention, OP has taken specific contention stating that as per the terms of the policies the policy premium paying term for each policy varied between 15 to 16 years. Though the said 5 policies to the said 5 Complainants were issued during 2016 the same were not renewed by the Complainants. However, a legal notice dtd.27.06.17 duly informing that all the Complainants were under the impression that the policies were single premium policies. In view of the same sought to take back the policies and return the premium paid by each policy holders. The OP insurance company replied to the said legal notice vide its letter dtd.06.07.17 denying all the allegations made in the legal notice. It was also informed that as per provisions of Regulation 6(2) of (protection of policy holders’ interest) Regulation 2002 issued by the IRDA the policy holders should return the policy within 15 days of the receipt of the policy if the policy holder is not satisfied with the terms of policy including premium paying term. If they have found that the policy is not single premium policy but annual installment policy, they should have instantly sought for the cancellation of the policies within the free look period of 15 days and return of the premium. The Complainants intentionally twisting the fact for illegal financial gains from the OP. Hence, the complaint deserves to be dismissed for the reason that the Complainants are not approaching the forum with clean hands. There is no deficiency of service committed by OP.  The policies cannot be cancelled after the Risk commencement date under the policy. In the instant case the risk commencement date for the five policies are 30.03.16, 31.03.16, 30.06.16 & 31.12.16. Thus seeking cancellation of the policy after the risk commencement date is not tenable. The Complainants cannot enjoy twin benefit of covering life risk under the policy and cancellation of policy and return of premium simultaneously. In case if any misfortune would have happened during risk period the nominees would have claimed the sum assured under the policy as death claim and OP also would have settled it. Thus demanding cancellation of policies after free look period and after enjoying the life risk coverage benefit under the policies for one year is legally not sustainable. On 31.10.19, learned counsel for the Complainants submits that, no further hearing. Hence, taken this matter for orders.

4. To substantiate the case Complainant no.1 filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents. OP filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the complaint filed by Complainants No.1 to 5 is maintainable ?

2. Whether the Complainants prove the deficiency of service on the part of OP, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP.  In the instant case, all the five Complainants have filed one common complaint stating that, nature of the complaint and claim against OP are one and the same. Therefore, on behalf of all the complaints, one complaint is filed claiming the damages. On behalf of all the Complainants, one Complainant will file affidavit evidence and written arguments who is authorized by all the Complainants through their counsel. In this context, they placed reliance on the decision reported in CPJ-93:2004, NCJ 314 (NC), 2004(2) CLT 267, 2004 (1) CPJ-93 (NC), wherein it is held that ‘complaint may be filed by one or more consumers on behalf of numerous persons having common interest.” Another decision reported in IV (2013) 265 (NC), wherein it is held that ‘(iii) Consumer Protection Act, 1986-Sec.12(c) – conversion of individual complaint into representative suit – Justification – Provision of Sec.12(c) requires complaint to be filed on behalf of ‘numerous consumers having same interest’ – Cellular operator association of India (COAI) had consciously chosen to implead itself on behalf of all cellular operators-conversion justified”. Referring the said decisions, submits that joined complaint filed by the Complainants is maintainable.

8. Denying the said contention, OP specifically taken the contention stating that, five different Complainants have purchased the insurance policy individually in their own name as beneficiaries. In view of the same, any grievance against the insurance company, should file separate complaint by each Complainant/beneficiary of the respective policies. In this context, further submits that, Sec.2(b)(iv) and Sec.12(c) ‘Class Actions’ of the Consumer Protection Act have been misinterpreted. Both sections reads ‘one or more consumers, where there are numerous consumers having the same interest…’ has been misconstrued. The requirement to be satisfied is sameness of the interest and not the same cause of action. We find there is considerable force in the contention taken by the OP.

9. In the instant case, policies are obtained by all the Complainants in their individual capacity, so the common interest does not involved in this case. Assuming for a moment that, they have filed class actions to prosecute the OP, permission of this forum is necessary as contemplated U/s.12(1)(c) of CP Act reads thus: one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested.

10. In the instant case, no permission has sought for to permit them to file ‘class actions’ in the single complaint filed by Complainants no.1 to 5. Hence, we come to the conclusion that, none of the Complainants having common interest. Further, the date of availment of the policy also different, under such circumstances, we do not find any just reasons to allow the complaint to prosecute ‘class actions’. Hence, liable to be dismissed with a liberty to the individual Complainants to file individual complaints, if they desires to do so by taking the assistance of the decision of Hon'ble Supreme Court in the case of Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

 11. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

12. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainants is dismissed. 

2. Anyhow, liberty given to the Complainants to file individual complaints, if they desire to do so.   

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

          Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 11^th day of November 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainants dated.03.02.18

Sri.Siddalingesh, Complainant no.1

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.07.09.18

Sri.Chidananda, Sr.Manager Legal    

Copies of Documents produced by OP

            MEMBER                                           PRESIDENT