In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/127/2021.

Date of filing: 30/09/2021.                     Date of Final Order: 04/12/2024.

Sri Prem Darshan Lal,

 son of Late Rajan Lal,

of New Ramkrishna Pally, Monoharpur,

P.O. & P.S. Dankuni, District Hooghly,

PIN 712311, West Bengal.                                                                      …..complainant

  vs 

1.  First Priority Solution Pvt. Ltd.,

represented by its Managing Director,

having its corporate office at 4th Floor,

19/A, Jawharlal Nehru Road, Leslie House,

Police Station Park Street, Kolkata 700087

and registered office at Room No. 3A,

3rd Floor, 277, Bipin Behari Ganguly Street,

Kolkata-700012, West Bengal.

2. Sri Arnab Roy,

representative of First Priority Solution Pvt. Ltd.,

having his office at 4th Floor, 19/A,

Jawaharlal Nehru Road, Leslie House,

Kolkata 700087 and also working from Room No. 3A,

3rd Floor, 277, Bipin Behari Ganguly Street,

P.S. Muchipara, Kolkata-700012, West Bengal.

3. Managing Director,

Birla Sur: Life Insurance Company Limited,

having its registered Office at One India bulls Centre,

Tower 1. 15h Floor, Jupiter Mill Compound,

841, Benapati Dogpat Marg. Elphinestone Road,

N.M. Joshi Marg Police Station, Mumbai Maharashtra. 400013.

……….Opposite Parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.                        

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that For the purpose of meeting with exigencies and urgent medical expense, the complainant desired to make an one time investment of around Rs. 50,000/- and sought advise from one Snowlex Investment Limited, who upon full understanding of the complainants requirement advised the complainant to invest the money with the respondent no. 3 company to get best quick return. Thus said Snowlex Investment Limited, obtained necessary information from the complainant and took the complainants signature and his wife's signature in a printed format. The complainant gave a Cheque of Rs. 50,000/- drawn on State Bank of India, Dankuni Branch Hooghly dated 15.02.2012 in favour of the Opposite Party no. 3 company.

That later when the Complainant received the insurance policy being number 005392311 dated 26.02.2012 from Birla Sunlife Insurance Company Limited, he was surprised to find that he has been totally misguided and instead of one time investment he has to pay premium upto 2029 i.e. for 17 years. The Complainant appreciating that his money of Rs.50,000/- has been duped because as a pensioner with limited income he cannot afford to make payments every year and thus discontinued further payment of premium.

That in March, 2020, the complainant while at his residence at Dankuni called at his mobile phone from "First Priority Solution Pvt. Ltd.," the opposite party no. I herein. Soon thereafter one Arnab Roy the opposite party no. 2 contacted the complainant represented himself that his company is the advisor for Birla Sunlife Insurance Company now named Aditya Birla Sunlife Insurance Company Limited and after some conversation assured that he can easily recover the blocked money through the Opposite Party no.1, being the sum of Rs. 50,000/- from said Birla Sunlife Insurance Company and invited the complainant at the corporate office as referred to above.

That the complainant thereafter went to the office of the said Arnab Roy at the corporate office of the First Priority at 19, Jawaharlal Nehru Road, Kolkata 700087 where said Arnab Roy claimed that in the event the complainant agrees for a medical policy of Rs.45,199/- per annum he would cause to return the blocked money from the office of Aditya Birla Sunlife Insurance Company. Being hopeful of recovery of Rs.50,000/- and furthermore considering his requirement for a medical policy the complainant agreed and delivered an account payee cheque for the sum of Rs. 45,199/- (Rupees Forty five Thousand one hundred and Ninety nine) only drawn on SBI, Dankuni Branch, dated 14.03.2020 in favour of the Opposite Party no. 1. i.e First Priority.

That said opposite party No.2 Arnab Roy further gave the account no. 919020096863065 of Birla Sunlife Insurance Company and advised that in the event the complainant deposited some more money in favour of Birla Sun Life Insurance Company Limited the complainant can fetch around 6 Lakh to 8 Lakh as the said policy is a market linked policy.

That the complainant intimated the matter regarding non-receipt of any amount as per his assurances at this the opposite party No.2 instructed to make a payment of Rs.18,000/- at Loke Babha Parishad from his phone 911409741959, accordingly following his instruction the complainant paid in the account no.04330110000113 of Lok Sabha Parishad on 13 July 2020 Rs. 18,000/-from two accounts,

That on 10/12/2020 on instruction of the advisor Arnab Roy, the complainant again deposited Rs. 19,326/ in favour of Birla Sun Life Turnover at Account no. 50190024808625.

After waiting for a considerable length of time the complainant directly wrote a letter to Aditya Birla Sunlife Insurance Company of Mumbai head office about the fate of further payments. However, in response to the same said Aditya Birla Sunlife Insurance Company by letter No. **** Case ID CAS-15029954-G7M9N6CRM: 0006482000000526 dated 19th June, 2021 stated "Your mention policy is terminated." The Company further stated in its letter "We are not in receipt of the multiple amounts that have been debited from your bank account."

Again on 03.04.2021 one Priyanka Muherjee representing herself as an employee of Aditya Birla Sunlife Insurance Company Topsia Office and demanded a sum of Rs. 21,328/ requesting the complainant to deposit the said amount in the first half of the following day and get the payment of the matured amount of Rs.6,03,403/- in second half. Similar advise soon came from Arnab Roy but this time the complainant refused.

That on 18/9/2021, when the complainant called upon the said Opposite party no. 2, he said that that since the complainant was investigating with Aditya Birla Sunlife Insurance Company the Opposite party no. 1 is not getting any commission accordingly his money was invested in share market to fetch the opposite party No. 1's schedule commission. He cannot help the complainant to get back his money.

That the complainant crave leave to submit all available documents and the available proofs with Arnab Roy's whatsapp messages and audio voice records demanding money and assurance towards payment at the time of hearing if necessary. The electronic messages are all uploaded in a pen drive and the complainant crave leave to refer the same if the Learned Forum may so direct.

That the complainant further states that said Arnab Roy who is maintain in the Calcutta corporate and registered Office of Opposite Party no. 1, leave no scope to disbelieve his advises and the complainant for taking service of said Arnab Roy has paid money as per his suggestions although and now he is trying to wither out the claim of the Complainant

That now the complainant as per the advise of said opposite party no.2 has paid the total sum of Rs. 1,91,525/- to Birla Sunlife Insurance Company and others' account directly and Rs.50,000/- assure to be returned has not been returned back nor any maturity amount of Rs. 6,00,000 to 8,00,000/- has been paid by the advisor opposite party Nos. 1 and 2 has resorted to unfair trade practice and the services render by said opposite party No. 1 and 2 has been fraudulently applied in favour of the complainant creating entire financial and mental disturbances to the complainant and his aged wife.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to return back all the moneys deposited by the complainant in various accounts as per direction of the op no. 2 being the sum of Rs. 2,41,525/- and direct the op no. 2 to pay a sum of Rs. 2,00,000/- toward compensation for mental pain and agony and to pay sum of Rs. 50,000/- as litigation cost.

Defense Case:-  The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that based on the information and declaration contained in the proposal form and believing the same to be true and also upon the receipt of the duly filled proposal form, the Answering Opposite Party Issued the policy bearing number 005392311 (hereinafter referred as 'said policy/policy') on 26.02.2012 in the name of Policy owner Prem Darshan Lal (hereinafter referred as 'Policyowner'). The details of the policy is described in the written version.

That the Answering Opposite Party submits that believing the information given in the Proposal form to be true and correct in all aspects and as per the underwriting norms of the company, the said proposal form was accepted by the company and life insurance policy was issued.

That the policyholder was given detailed description about the features of the said policy and was also apprised with its terms and conditions before signing of the Application for insurance. It was only after being completely aware, as regards the risks and consequences of the proposed policy and the terms and conditions attached therewith, that the policyholder applied for the same vide the said application.

That in accordance to the clause 6(1) of the Insurance Regulatory and Development Authority (Protection of Policy Holder's Interests) Regulations, 2017, it is duty of the insurer to furnish to the insured, free of charge, within 30 days of acceptance of a proposal, a copy of the proposal submitted by the Insured and abiding to the instant procedure, the Answering Opposite Party duly sent the policy document to the policyowner.

That it is further submitted that in accordance to Clause 6(2) of the IRDAI (Protection of Policynoider's Interests) Regulations, 2002 (Superseded by Clause 10(1) of the Insurance Regulatory and Development Authority (Protection of Policy Holder's Interests) Regulations, 2017), the Policyholder has free look period of 15 days from the date of receipt of the policy document to review the terms and conditions of the policy and in case the policyholder disagrees to any of those terms and conditions he has the option to return the policy to insurer for cancellation. However, in the instant matter, the policyholder/complainant chose to retain the policy and did not raise any objection in regard to the terms and conditions of the policy. Meaning thereby, they agreed to all the terms and conditions of the policy and the same was in order. Thus the present complaint deserves to be dismissed on this ground.

That in compliance with the above provision of the policy document pertaining to the policy which clearly mentions that in case the policyholder disagrees with any of the terms and conditions of the policy then the policyholder can opt out of the policy by requesting for cancelation within 15 days of receipt of the policy document.

It is noted that in the instant matter, the policyholder chose to retain the policy and did not raise any objection in regard to the terms and conditions of the policy within the free look period or thereafter. Meaning thereby, he agreed to all the terms and condition of the said policy. By not availing the option of free look period the complainant has waived off his right to cancellation of the policy.

That the policy in question was issued on 26.02.2012 under BSLI Vision olan and the Answering Opposite Party received only the initial premium le. one premium from the complainant under the said policy in the year 2012 along with application for insurance. Thereafter the complainant never approached the Answering Opposite Party within the free look period with any request for cancellation or with any other concern.

That it is also pertinent to mention that the policy schedule sent along with the policy document indicated the details of the policy obtained and also indicated about the next due date for the premium amount. However, the complainant did not fulfill the aforementioned requirements to continue the said policy hence the said policy automatically terminated as per the policy terms and conditions. That it is important to note that the same was admitted by the complainant as well. The termination clause is detailed below.

Termination of Policy: the policy will terminate at the earliest of:

(a) the date we receive intimation of death of the life insured;

(b) the date we confirm your request to surrender the policy;

(c) the policy maturity date; or

(d) the date on which the reinstatement period ends after your policy has lapsed as per Premium Discontinuance provision

Thereafter the complainant has approached the Answering Opposite Party vide letter dated 05.05.2021 which is after the expiry of the 9 years, which in itself falls beyond limitation. The complainant has vide the mentioned letter alleged that he was sold a long term policy without his consent, thus he discontinued to pay further premiums. Thereafter he has further alleged that he was dupped by the advisor of Opposite Party No. 1 & 2, and that has deposited total amount to the tune of Rs. 1, 46, 326/in different account as advised by the advisor and that he wanted the round of the said deposited premium.

That upon receipt of the letter dated 05.05.2021 which was received by the Answering Opposite Party on 08.06.2021, company duly responded vide letter dated 19.06.2021, wherein he was informed that the policy has terminated and no multiple amounts as mentioned was received by the Company and he was further asked to provide acknowledgement copy reflecting the amount which has been debited in favour of ABSLI as alleged.

The complainant instead of complying with the requisite has approached the Learned Commission vide this complainant.

That the Answering Opposite Party would like to submit that the insurance is a paid service, wherein the insurance company covers the risk to the life of insured person against the payment of the premium. In the present case, the complainant paid one premium for the year 2012, against which the company covered the risk for a period for which premium amount was paid. It is the complainant who failed to continue with the policy and the Answering Opposite Party cannot be held liable for the same.

The complainant was asked to prove the authenticity of the various payments made to the Answering Opposite Party as the onus lies on the complainant that he paid certain amount to get back the amount paid towards the issuance of the policy. It is important to note that the policy bond clearly mentions the customer service mail id for any query and the address of the head office with toll free number, so any concern should have been raised with the said details. It was his choice to rely on unknown person and deposit the cheques without verifying the account details. It is important to note that the cheques are issued in favour of Aditya Birla Sun Life Insurance Company Limited and no-account number is required. Thus, the explanation made clears that the Answering Opposite Party is not liable to pay the amount as the amount mentioned were never paid to them.

In this case, the complainant did not approach the Answering Opposite Party i.e. the insurer for freelook cancellation. Neither the complainant ever approached the opposite party with the acknowledgment copy reflecting the proof that the amount has been debited in favour of the Answering opposite party. That it is once again important to reiterate that the Answering Opposite Party received no amount other than the initial payment at the time of policy issuance. The complainant never approached the Answering Opposite Party within freelook period for policy cancellation as per the terms and conditions of the policy thereby establishing that he had no issue and there is no discrepancy.

That in present case the Answering Opposite Party herein acted as per the mandate given by the complainant in proposal form and issued insurance policy which is a concluded contract between the insurance company and complainant. It is stated that it is settled law that the insurance terms have to be constructed strictly and no relief which are beyond the terms of the insurance policy can be granted, hence, no case for deficiency in service is made out in this case as there is no breach on the part of the insurance company accordingly the present complaint is liable to be dismissed on this ground alone.

That it is humbly submitted that the Answering Opposite Party earnestly follows the rules and regulations passed by the IRDA and further functions of the business is carried in accordance with the settled principles of law. The alleged benefit of the Complainant is contrary to the settled principles of law and therefore is liable to be rejected.

In view of the above facts and submissions, it is therefore, most respectfully prayed that the present complaint may be dismissed with exemplary costs in favor of Answering Opposite Party and against the Complainant.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no. 3.

            The answering opposite party no. 3 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

            As the op nos. 1 and 2 did not appear after receiving notice the case runs ex parte against them vide order no. 12 dt. 2.1.2023.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 3 filed written notes of argument. As per the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the ld. Advocates of the complainant and the opposite party no. 3 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Dankuni, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two points of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the OP-3 in the written version has practically admitted the fact of making first payment of premium of Rs.50,000/-.  As the complainant has paid the first premium of Rs.50,000/-, he is entitled to get back the said amount from the OP-3 but at the same time it is also important to note that the complainant has paid the remaining amount to the OP-1 and of Rs.45199/- and Rs.18000/- by way of submitting cheque of S.B.I, Dankuni Branch.  In this regard it is important to note that the said amount of Rs.45199/- and Rs.18,000/- has not been credited in the bank account of OP-3.  For that reason OP-3 is not duty-bound to refund the said amount of Rs.45199/- and Rs.18000/- to the complainant.  So the complainant is entitled to get back the said amount of Rs.45199/- and Rs.18000/- from OP-1&2.

A cumulative consideration of the above noted discussion goes to show that the complainant is entitled to get Rs.50,000/- from the OP-3 and at the same time the complainant is also entitled to get Rs.45199/- and Rs.18000/- from OP-1&2.  In the light of the observation made above the points of consideration No.4&5 are decided in favour of the complainant but in part.

In the result it is accordingly

ordered

that this complaint case being no. 127 of 2021 be and the same is allowed on contest against the OPs but in part.

It is held that the complainant is entitled to get refund of Rs.50,000/- from OP-3 Insurance Company and also entitled to get Rs.45199/- from OP-1 and Rs.18000/- from OP-2.  OPs are directed to pay the said amount within 45 days from the date of passing of this judgment.  Otherwise the complainant is given liberty to execute this award as per law.

No order in respect of awarding compensation and interest is passed by this District Commission as the evidence of the complainant is not corroborated by any other evidence.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.