Sh.S.S. Panesar, President.

1.       Sh.Jagir Singh Kang has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he is permanent resident of above said address and is senior citizen of India. The representatives/ agents of Opposite Party approached the complainant and induced and allured him that the Opposite Party is giving 12%  interest annually to senior  citizen on Fixed Deposit to be prepared in his name or in the name of his family members. The first complaint was dismissed on 20.8.2015 because the advocate was out of station, and due to some circumstances, the complainant could not come present before this Forum. In the second complaint, the complainant has not mentioned the cause of dismissal of the first complaint, so second complaint was withdrawn on 18.11.2015, hence this third complaint has been filed with permission  of this Forum. The complainant is 82 years old and is senior citizen agreed with the proposal of the Opposite Party and agreed to get  the Fixed Deposit in the name of his grand daughter Simarpreet Kaur daughter of Manohar Singh and as such, paid a sum of Rs.1,40,000/- vide cheque bearing No.626338 drawn on Punjab & Sind Bank, to Opposite Party for preparing separate Fixed Deposit. At that time, the Opposite Party has to issue any document of Fixed Deposit or any other document to the complainant and it was assured that the4 document of Fixed Deposit will be sent to the complainant at his residential address. After few days, the complainant got the document and when he read the contents of the said document, there was no sign of any 12% of Fixed Deposit rates and when he further read it again carefully, he saw that there is a  term of 20 years and the complainant has to pay upto 10  years and the maturity is after 20 years. The Opposite Party also instead of the Fixed Deposit has issued insurance policy bearing No. 02984222. Photo copy of the same is attached. The complainant is 82 years old person and is living his life on his pension and how he can pay for 10 years regularly to the tune of Rs.1,40,000/-. The complainant called the representative of Opposite Party, but he ignored the complainant telling that he is out of station. But continuously the complainant called the representative and then he came to the complainant and told that there is not a big issue and demanded the document from the complainant and stated that it is a clerical fault and he will get it rectified. The complainant handed over the policy document to him and after 3-4 days the representative of the Opposite Party asked the complainant to lodge the complaint and  then the correction letter will be issued within 2 days, but the complainant has not received any correction letter even after making the complaint to the Opposite Party. Thereafter, the complainant visited the office of Opposite Party and the official of the Opposite Party told the complainant that the said policy is for 20 years and the complainant has to pay Rs.1,40,000/- annually for 10 years and maturity amount will be given by the Opposite Party after 20 years. The intention of the Opposite Party in this way shows to be malafide  and issued the policy to the complainant under false assurance and inducement which the complainant never opted.  The complainant has prayed for grant of following reliefs vide instant complaint:-

a)       Opposite Party be directed to refund the amount of Rs.1,40,000/- alongwith interest @ 12% per annum to the complainant forthwith and cancel the said policy.

b)      Compensation of Rs.50,000/- may also be granted in favour of the complainant and against Opposite Party on account of mental pain, agony and harassment suffered by the complainant.

c)       Costs of the proceedings amounting to rs.5,000/- may also be granted to the complainant.

Hence, this complaint.

2.       Upon notice, Opposite Party appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  the present complaint is barred by jurisdiction of this Forum as said matter has been adjudicated twice for same cause of action between the same parties; the Opposite Party denies all the allegations and averments  made in the instant complaint, except those which are specifically admitted in this written statement and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. It is also stated that  anything mentioned in the complaint contrary to and / or inconsistent with what is stated in the present written statement is deemed to be expressly denied; that present complaint is  not maintainable under legal grounds or on factual basis; that said policy concern was sourced by AB Insurance Brokers Private Limited, who are insurance broker duly licensed by IRDA of India. As there is no principal and agent relationship between the insurance company and brokers as per the IRDA (Insurance Brokers0 Regulations 2002 and they are independent legal entity. Further, in the present case, the complainant has failed to include brokers who are necessary parties for adjudication of disputes. Therefore, the complaint deserves to be dismissed for non-joinder of necessary parties; that the present complaint is false, malicious and incorrect and the complaint is filed with malafide intention and is nothing but an abuse of the process of law and it is an attempt to waste the precious time of this Forum of this Forum, as the same has been filed by the complainant just to avail undue advantage/ undue financial gain; that complainant Jagir Singh Kang being an educated person and advocate by professional had availed two life insurance policies in the name of his grand daughter from Opposite Party and submitted a proposal forms dated 22.9.2014 and 25.9.2014 proposing for “Exide Life Guaranteed Income Insurance Plus Plan” (hereinafter referred as ‘policy’)  which is duly approved by the Insurance Regulatory Development Authority of India (in short ‘IRDA’) a statutory body constituted by the Act of the Parliament. The features of the above mentioned plan were duly explained in detail and only after understanding the same in its entirety, the complainant had opted for the said plan. The premium opted by the complainant was Rs.1,50,000/- and Rs.1,40,000/-, to be paid annually, for a premium paying term of 10 years, and the sum assured under the said policy was Rs.10,92,200/- and Rs.10,19,369/- for tenure of 20 years. The complainant had  confirmed these facts in his declaration made in the proposal forms dated above. The copy of the proposal forms and declaration filled up and submitted by the complainant himself are attached; that as per Regulation 6(2) of (Protection of Policy holder’s Interest) Regulation 2002 issued by IRDAI, the policy holder/ proposer is at liberty to review the terms and conditions of the policy and has the option to cancel the policy by stating the reason for his/ her objection within 15 days of receipt of policy bond (free look period). In such a case, the company shall refund the premium received for this policy (after deducting the proportionate risk premium for the period of risk cover and expenses incurred by the company on account of medical examination and on stamp duty charges.) The said facts were clearly intimated in the welcome letter issued to the complainant/ proposer alongwith the policy schedule and terms and conditions; that thereafter the complainant approached Opposite Party and submitted the Free Look Cancellation Request Forms (in short ‘FLC’) dated 10.11.2014 and 20.11.2014 for cancelling the supra policies. A copy of the Free Look Cancellation Request Forms is produced. Accordingly, on the verification and after ascertaining the records Opposite Party had duly rejected the Free Look Cancellation Request for policy 02984222 stating his request is out of Free Look Period vide letter dated 26.11.2014, copy of letter dated 26.11.2014 is attached. However, in the request for policy bearing No. 02982327 as there was signature mismatch, hence Opposite Party had duly sent the communication vide letters dated 27.11.2014, 3.3.2015 and 6.3.2015 asking him to submit the specimen signatures form and KYC n order to process the same. Copy of letter dated 27.11.2014, 3.3.2015 and 6.3.2015 is produced herewith. Subsequently, on receipt of request on 6.4.2015 by the complainant, the Opposite Party had duly processed the FLC and accordingly sent the cheque bearing No. 553901 dated 23.4.2015 for amount of Rs.1,49,589.40 paisa to the complainant and the same was duly encashed by him on 2.5.2015. A copy of specimen signature form submitted by the complainant alongwith cheque is attached; that the complainant has not approached the Opposite Party within 15 days of the receipt of policy document for policy bearing No. 02984222. Hence the same was rejected as per policy terms and conditions. It is submitted that contract of life insurance which was entered between Opposite Party and the complainant/ proposer becomes legally concluded and it was presumed that the complainant/ proposer was satisfied with terms and conditions so issued to him if he did not come within 15 days. Therefore, the complainant/ proposer as such is legally estopped from disputing the terms and conditions of legally concluded contract of life insurance especially after Opposite Party  has performed their part of contract by covering  the risk of the life of the life insured i.e. for a substantial period from the date of commencement of the policy till date. On merits, the   facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence his affidavit Ex.C1, copy of letter written by Insurance Regulatory Development Authority of India Ex.C2, copy of letter dated 26.11.2014 Ex.C3, copy of letter dated 6.10.2014 Ex.C4, copy of policy schedule Ex.C5, copy of first premium receipt Ex.C6, copy of proposal form Ex.C7 and closed his evidence. 

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the proposal form alongwith documents Ex.OP1, welcome letter dated 25.10.2014 alongwith first premium receipt and terms and conditions of the policy Ex.OP2, copy of order dated 20.8.2015 Ex.OP3 alongwith copies of letters Ex.OP4 to Ex.OP11 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       It is not disputed that the complainant purchased the insurance policy  bearing No. 02984222 on payment of premium of Rs.1,40,000/- in favour of his grand daughter Simarpreet Kaur daughter of Manohar Singh, copy whereof is OP1 on record. It is the case of the complainant that Opposite Party had promised to issue a Fixed Deposit Receipt in the name of Ms.Simarpreet Kaur daughter of Manohar Singh on receipt of consideration of Rs.1,40,000/-, but however, they did not issue the same at the spot and told the complainant that the requisite Fixed Deposit Receipt would reach his house  in due course. But however, when the complainant received the document from the Opposite Party, he came to know that it was not a Fixed Deposit Receipt, rather an insurance policy has been issued for which the premium was to be paid @ Rs.1,40,000/- per annum for 10 years, whereas the maturity amount was to be paid after the expiry period of 20 years. It was never the intention of the complainant to purchase such  an insurance policy. On the other hand, it is the case of the Opposite Party that since the insurance policy has not been surrendered within 15 days i.e. free look period, therefore, the claim of the refund of premium filed on behalf of the complainant has to be repudiated. Ld.counsel for the Opposite Party  has further contended that the  terms and conditions of the policy in question are binding inter se parties and while interpreting documents relating to contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is for the court to make or construe as it is and we can not add or subtract anything from the policy terms and conditions. Reliance in this regard has been placed on Bawa Singh Vs. M.D. India Health Care Services & Others 2015(2) CLT page 418 of Hon’ble Punjab State Commission, wherein it has been laid down that:-

Firstly taking the plea whether the terms and conditions were not supplied to the complainant, the perusal of the complaint there is no reference that he was not given the copy of the terms and conditions of the policy. In case the complainant is basing his claim on the basis of policy taken by him, there is presumption that he must have gone through the terms and conditions of the policy. A reference can be made to the judgement given by Constitutional bench of our Hon’ble Apex Court reported in 1966(7) CPSC 44 “General Assurance Society Limited Vs. Chandmull Jain” wherein it has been observed in para 11  (relevant extract as under):-

          “…..The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration , the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is a material whether the policy is actually delivered after the loss and for the same reasons the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply.”

7.       Since in this case, the complainant has not exercised the volition of surrendering the policy within the stipulated ‘free look period’ of 15 days from the date of receipt of the insurance policy, the Opposite Party was justified in declining the request for refund of the premium amount. It is contended that there is no deficiency in service on the part of the Opposite Party. Instant complaint is nothing but an abuse of process of law and the complaint merits dismissal accordingly.

8.       But however from the perusal of the terms and conditions of the insurance policy in dispute, there is term and condition No.4.4.2 which pertained to surrender of policy and the same is reproduced for ready reference as under:-

“4.4.2 Surrender the Policy

If at least one full year’s premium is paid the GSV payable is 20% of premiums paid excluding the service tax and premium for extra mortality rating, if any.

For policies that have paid at least two (2) full years’ premiums in case of seven (7) years PPT and at least three (3) full years’ premiums in case of more than seven (7) years PPT, the Guaranteed Surrender Value (GSV) is payable equal to the GSV Factor times the total amount of premiums paid excluding the service tax and  the premium for extra mortality rating, if any less the survival benefits already paid, if any.

 The policy cannot be surrendered after the death of the Life Assured. Upon payment of  the Surrender Value, the policy shall stand terminated with no further benefits payable under the policy. The company shall be relieved and discharged from all obligations under this Policy thereafter.”

9.       From the bare reading of the  term and condition stated above, it becomes quite evident that the surrender of the policy was tenable if atleast one full year’s premium is paid the GSV payable is 20% of premiums paid excluding the service tax and premium for extra mortality rating, if any, which shows that the complainant was legally entitled to get the surrender value of the insurance premium in the given circumstances, but the Opposite Party has refused to oblige him without following the  terms and conditions of the insurance policy in dispute. If the complainant is bound by the terms & conditions of the insurance contract, the insurance company is also bound by the terms and conditions of the insurance contract. The insurance company cannot be allowed to wriggle out from the contractual obligations of the policy. As such,  the complainant is entitled to get the refund of premium amount as per the term and condition No. 4.4.2 of the policy in question, after deducting stamp charges, medical charges, if any, and the mortality charges of the missing period.  Since earlier complaint which was dismissed in default has not been decided on merit, therefore, fresh complaint on the same cause of action was maintainable and  there is no illegality in filing the second complaint on the same cause of action, particularly when the second complaint is within limitation. 

10.     From the aforesaid discussion, it emerges that Opposite Party is deficient in service and as such, the   Opposite Party is directed to refund the premium amount as per the term and condition No. 4.4.2 of the policy in question, after deducting stamp charges, medical charges, if any, and the mortality charges of the missing period, within a period of 30 days from the date of receipt of copy of this order; failing which the complainant shall be entitled to interest @ 9% p.a from the date of filing of the complaint until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 30.08.2016.