The Complainant has filed this case against the O.P’s. under Section 35 of the Consumer Protection Act 2019 and praying for following Order/ Relief :-

1. Direction against the OP’s to pay a sum of Rs 2,65,000/- to the Complainant which was paid by the Complainant  to the OP’s.
2. Direction against the OP’s to pay a sum of Rs 50,000/-to the Complainant for causing mental pain, agony caused to the Complainant by the Op’s. .
3. Direction against the OP’s to pay a sum of Rs 50,000/-to the Complainant towards costs of legal proceedings.
4. Such other relief / reliefs to which the Complainant is entitled as per law.

BRIEF FACTS OF THE COMPLAINT

1. That, the Complainant is a peace loving and law abiding citizen of India having his residence within the jurisdiction of this Commission.

2. The O.P. No. 1 is running his business of Life Insurance having his Corporate Office at Mumbai and the O.P. No. 2 is the Branch Manager of that Insurance Company of Siliguri Branch and the O.P. No. 2 is the Branch Head of the O.P. No. 1 Company.

3. That on 10.02.2022 the Complainant received a Phone Call from Mobile No. 9832609309 where the officials of the O.P. informed the Complainant that few years back the Complainant got one Insurance Policy when there was current Bank Account in the name of Mitra Steet Trunk Store being A/C No. 430030110000017 INR with Bank of India, Jalpaiguri Branch and the premium was at Rs. 15,000/- and it was paid on 07.09.2011 but the same remain dormant due to nonpayment of the premium paid by the Complainant. They assured the Complainant that on paying of Rs. 1,55,000/- as premium they can able to provide the entire insured sum to the Complainant and they told that by making payment of that amount as previous premium the Complainant will be entitled to get the entire insured sum amounting to Rs. 18,00,000/- approximately.

4. That on the basis of the assurance by the O.P’s. the Complainant agreed to pay the said premium and issued a Cheque for the sum of Rs. 1,55,000/- through current account no. 430030110000017 INR of Bank of India in favour of the O.P.

5. That the Complainant had paid that sum of money by issuing two cheques for the sum of Rs, 45,000/- directly to the officials and Rs. 1,10,000/- was send through Courier Service .

6. That the O.P’s. again inform the Complainant that the second cheque which was of Rs, 1,10,000/- could not be materialized due to some technical problem and they asked the Complainant to send another cheque for the same amount via courier service but they did not state anything about the said cheque dt. 21.03.2022.

7. That the Complainant with bonafide intention send another cheque for the sum of Rs 1,10,000 via courier service to the OP’s which the OP’s materialized on 31/03/2022 and the Complainant on apprehension of some possible misappropriation started recording all conversation took place between the Complainant and officials of the OP’s.

8. That, the Complainant along with second cheque send a Customer  declaration Form signed by him as the OP’s informed the Complainant that only one Insurance Policy existed but the OP’s instead of collecting Rs 155000/- collected 2,65,000/- in fraudulent manner.  

9. That the Ops instead of receiving the old Insurance Policy issued three different insurance scheme in the name of the Complainant viz. i)Policy No. 01706321 the product name of which is Future Genereli New Assure Plus, ii) Policy No. 01708257 the product name of which is Future Genereli New Assured Wealth Plan iii) Policy No. 01709760 the product name of which is Future Genereli Money Back Super Plan.

10. That the Policy No. 01706321 was issued by materializing Rs. 45000/- vide cheque no. 095295 dated 09.03.2022 which was materialized on 11.03.2022 and policy was issued by the Ops on the same day and the second policy was issued after materializing cheque of Rs. 110000/- vide cheque no. 095296 dated 17.03.2022 materialized on 21.03.2022 and they issued policy on 28.03.2022 and third policy was issued by the Ops after materializing cheque no. 095293 dated 25.03.2022 of Rs. 1,10,000/- which was materialized on 31.03.2022 and the policy was issued them on 31.03.2022.

11. That, the policies were sent by the Ops to the Complainant through courier service and the third policy bears the signature of the Complainant as his signature was given on the Customer Declaration Form.

12. That, the first and second policy bears ‘Sales Persons Declaration’ instead of ‘Customer Declaration Form’ as the Complainant sent only one Customer Declaration Form and that the OPs’ intention was to defraud the Complainant and that’s why they instead of taking signature of the Complainant they forged the signature by taking two Sales Persons  Declaration.

13. That those OPs issued the policies against the will of the Complainant and the OPs instead of reviving the previous policy they issued new policy which is evidently against the purpose of the Complainant and the OPs had collected Rs. 110000/- by practicing fraud upon the Complainant and they intentionally refused to redeem those insurance policies.

14. That the Complainant is a Consumer and the OPs have violated the Consumer Right of the Complainant and there was clear deficiency in service on the part of the OPs and  the act of the OPs are nothing but unfair trade practice.

15. That the cause of action of this case arose within the jurisdiction of this Commission.

16. That the Complainant sent legal notice to the OPs on 14.12.2022 which was duly received on 19.12.2022 and 15.12.2022 by the OPs and they gave a reply on 20.02.2023 and they sought time for the Complainant but till filing of this case they made no response.

17. That the cause of action arose firstly on 10.02.2022 when the Complainant first time received the phone call of the OPs and lastly on 20.02.2023 when the Complainant receive the reply of the legal notice.

In support of the Complaint the Complainant have filed the following documents:-

1. Xerox copy of Aadhar Card of the Complainant.
2. Xerox copy of current bank account statement of the Complainant for the period of 20.08.2011 to 16.09.2011 vide A/C NO. 430030110000017/INR.
3. Xerox copy of current bank account statement of the Complainant for the period of 01.01.2022 to 30.11.2022 vide A/C NO. 430030110000017/INR.
4. Copy of the consignment track details of the two legal notices sent by the Complainant.
5. Xerox copy policy document/ forwarding letter of the policy no. 01706321, the product name of which is Future Genereli New Assure Plus.
6. Xerox copy policy document/ forwarding letter of the policy no. 01708257, the product name of which is Future Genereli New Assure Wealth Plan.
7. Xerox copy policy document/ forwarding letter of the policy no. 01709760, the product name of which is Future Genereli Money Back Super Plan.

Notice was issued from this Commission for serving the same upon the OPs. On receipt of notice both of the O.P’s have appeared before this Commission through Vokalatnama, filed their Written Version, denied all the material allegations of the Complainant. In the Written Version, the O.P’s have stated that the policy is being no., 01706321, 01708257 and no. 01709760 were sourced by independent broker Prosales Financial Services Limited who is not an agent of the Company and the OP Company is a different, unique and an independent legal entity and in no way connected or related to said insurance broker and the Company issued the policies on receipt of the online proposal and the tabulation would disclose the proposal no., date of proposal by the Complainant, date of WPLVC and the corresponding policy no. and date of delivery of the policy to the Complainant. It is further stated that, based on the information provided in the proposal form the OPs had issued policy in favour of the life assured and the Complainant had also signed the Customer Declaration Form and the Complainant was also require to undergo WPLVC process where the Complainant was asked to confirm the details of the policy and provide his consent. It is also stated that, the Company sent the policy documents along with the proposal form to the policy holder to enable him to go through the details in entry again and in the instant case those were sent to the Complainant and free look period which was given to the Complainant and the Complainant never approached the OPs alleging any discrepancy in the proposal form or relating to the terms and conditions during free look period. It is also stated in the written version, that the Complainant never approached the OPs for cancellation of the Policies within the free look period and the Complainant only raised objection to the OPs by sending legal notice alleging frivolous grounds. In the written version the OPs have also stated that, the statements made in para no. 1 are not within the knowledge of the OPs and para no. 2,3 are matter of record/ para no. 4 is denied / para no. 5 is beyond the knowledge of the OPs./ para no. 6 are denied and they admits that, the Complainant paid the premium through cheque of Bank of India of A/C No. 430030110000017 / para no. 8 and 9 are admitted/ para no. 10 is denied for want of knowledge / para no. 11 and 12 are denied / para no. 13 is also denied by the OPs / in response to para no. 14 the OPs have stated that, the policy were issued by the Company as per duly filled up application forms submitted by the Complainant / statements of para no. 15,16,17,18 & 19 are admitted / para no. 20 is denied/ para no. 22,23,24,25 & 26 are denied by the OPs as the policies were issued on the basis of the proposal form submitted by the Complainant which was duly delivered, he was informed that, if he is not satisfied with the terms and conditions of the policies he may approached the Company during the 15 days free look period but the Complainant failed to approach the Company within free look period / contents of para 27 is admitted / para no. 28 is partly admitted as the OP received the undated legal notice / the OPs sought for time to resolve the grievances of the Complainant and the OPs attempted to contact with the Complainant to further understand his grievance and investigate the allegation of the Complainant / para no. 32 and 35 are denied / para 34 is matter of record. Ld. Advocate of the OPs in the written version, referred several decisions including (2000) 1 SCC 66 and (1999) 6 SCC 451 and (1996) 3SCR500 etc. and praying for dismissal of this case.

In support of the written version the OPs have also filed documents which are Annexure R1, R2, R3.

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version, Documents filed by the parties, following points are taken to be consider by this Commission.

Points for consideration :-

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act 2019?
3. Whether there is any deficiency in service on the part of the O.P’s. as alleged by the Complainant?
4. Whether the Complainant is entitled to get the relief as prayed for?                                 

 Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

The Complainant was given opportunity to prove his case by adducing evidence. In order to prove the case, the Complainant has filed written deposition in the form of an affidavit. In the written deposition, the Complainant has specifically stated that, the OPs by practicing fraud, collected Rs. 265000/- from the Complainant. The Complainant has also stated in his evidence that, instead of reviving the Old Insurance Policy the OPs have issued three different insurance schemes keeping him in dark. The Complainant in his written deposition, has stated that, immediately after getting the policy documents he contacted with the OPs for cancellation of those three insurance policies but they refused to redeem those three Insurance Policies. The Complainant has further stated that, he sent demand notice to the OPs on 14.12.2022 which was duly received by the OP No. 1 on 19.12.2022 and the OP No. 2 received notice on 15.12.2022. In the legal demand notice, Complainant sought for response from the OPs within 30 days from receiving that notice but the OPs after lapse of 30 days on 20.02.2023 gave reply seeking time from the Complainant but make no response for settlement. At the time of hearing of argument, Ld. Advocate of the Complainant argued that, they have filed their Brief Notes of Argument and stated everything there. He also argued that, the Complainant has been able to prove the case against the OPs not only by adducing evidence in the form of an affidavit but also by producing documents before this Commission. Ld. Advocate of the Complainant also argued that, the OPs have issued first and second policy which does not contain the Customer Declaration Form and the same contains Sales Person Declaration which clearly proves that, there was deficiency in service as well as restrictive trade practice on the side of the OPs who keeping the Complainant in dark issued those policy without disclosing terms and condition of those policies.

To falsify the case of the Complainant the OPs have filed affidavit in reply and also cross examine the Complainant by putting the questionnaire. In the affidavit in reply as well in the Written Notes of Argument, the OPs have stated, that, the Complainant has filed this case on some false allegation and by suppressing the material facts. In the W/V as well as in the written argument, the OPs have stated that, the Complainant of his own accord purchased three insurance policies and he himself had filled up the proposal forms for purchasing those three insurance policies. At the time of argument, Ld. Advocate of the OPs argued that, all the three proposal forms bears the signature of the Complainant and after complying all the formalities, three insurance policies were issued by the OPs. It is also argument of the Ld. Advocate of the OPs that, the Complainant was given 15 days free look period from the receipt of the policy certificate to raise objection against the terms and conditions of those policies and the Complainant had the opportunity to cancel the policies but the Complainant did not avail the said opportunity. He also argued that, there was no deficiencies of service on the part of the OPs and the Complainant has failed to give reply to the questions put to him and he has failed to prove the case against the OPs. It is also argument of the OPs that, after availed bonus and benefiting from the policy for a financial year the Complainant raised objection by alleging the complaint of forgery without taking any recourse to criminal complaint.

At the time of argument, Ld. Advocate of the OPs referred decisions of Civil Appeal No. 5994 of  2004, 7477 of 2004 and 1733 of 2005 decided by Hon’ble Apex Court where it was held that, “ When a person signs a document, there is a presumption, unless there is proof of force or fraud, that  he has read the document properly and understood it and only then he has affixed the signature therein, otherwise no signature on a document can ever be accepted. “

Having heard the Ld. Advocate of  both the sides, and on perusal of the complaint, written version, evidence of the parties, documents filed by them, written argument it is admitted fact that, the Complainant has paid a sum of Rs. 265000/- in favour of the OPs through three separate cheques. It is also fact that, the OPs had issued three separate insurance policies in the name of the Complainant. It is also fact that, the Complainant sent legal notice to the OPs asking for reply within 30 days from the date of receipt of notice but the OPs gave no reply within that period. It is also fact that, by sending demand notice, the Complainant praying for refund of the amount which has given to the OPs.

Only dispute in the case is that, the Complainant has claimed that, for the purpose of revival of the Old Insurance Policy he gave money to the OPs but they fraudulently  did not take any initiative for revival of the old policy rather they issued three separate new insurance policies keeping the Complainant in dark. On the other hand, the case of the OPs is that, they issued three policies in favour of the Complainant as he filled up proposal forms, participated in video KYC, issued cheques after putting signature on the Customer Declaration Form, participated in pre-verification issuance process and thereafter issued the policies.

Now let us see how far the Complainant has been able to prove his case against the OPs or how far the OPs have been able to falsify the case of the Complainant.

In order to prove the case the Complainant has cross examined the witness of the OP’s by putting questions in the form of Questionnaires and in reply to the Question No 14 of the Complainant and they replied that, Prosales Financial Services Ltd is an agent of the OP’s in the case in hand it is specific allegation of the Complainant that the said Prosales Financial Services Ltd is the main culprit who firstly assured the Complainant that they will revive the old/dormant Life Insurance Policy. The Complainant has also alleged that, as misguided by the said agent of the OPs he issued several number of cheques to them but the OPs instead of reviving the old dormant Life Insurance Policy they issued three new Life Insurance Policies in favour of the Complainant. In this regard the Complainant has been able to prove that, the said agent of the OPs took no initiative for revival of the old / dormant policy of the Complainant though it was assured to him. It is needless to mention here that, for the act of the agent, principal is vicariously liable. In the case in hand, Prosales Financial Services Ltd. is the agent and the OPs are principal and the same is admitted by the OPs.

The said agent along with the OPs keeping the Complainant in dark issued three new policies by misleading the Complainant stating that, one cheque was not materializable due to some reason and for which the Complainant was compelled to issue the third cheque in favour of the OPs.

From careful perusal of the record, it also reveals that, the OPs have directly admits that there was malafide intention on the part of the Company and for which the OPs put question no. 29 of their questionnaires.

In the case in hand, the Complainant had filed several documents including three policy certificates before this Commission. From those policy documents, it is proved that, for the policy no. 01706321 of proposal no. IM0097179 the OPs executed WPLVC on 08.03.2022 and for the policy no. 01709760 of proposal no. IM0097178 they executed WPLVC on 23.03.2022. But the OPs in para no. 4 of their written version has stated that, the date of the proposal was on 09.03.2022 and 25.03.2022 which clearly proves that, there is specific discrepancy which cannot ruled out the intention of the OPs to defraud the Complainant. It is very much hard to swallow how without the date of proposal the execution of WPLVC was executed by the OPs.

From the policy documents, and other documents of the Complainant it is also proves that, for the policy no. 01706321 and 01709760 the WPLVC was executed by the OPs prior to the date of alleged submission of proposal form which violates the procedure of issuing new insurance policies.

It is also admitted fact that, the OPs have executed the Sales Persons Declaration Form (SPD) for the policy no. 01706321 on 09.03.2022 and for the policy no. 01708257 on 17.03.2022. But in respect of those two policies no Customer Declaration Form (CDF) was  provided or annexed with the policy documents so provided by the OPs to the Complainant. It is also not explain on the side of the OPs as to why the OPs had provided CDF with the policy documents of policy no. 01709760 which was executed on 09.03.2022 and no SPD was provided to the Complainant in the original policy documents.

It is also needless to mention here that, in reply to question no. 30 of the Complainant the OPs have replied that each Life Insurance Policy shall contain a CDF. But the OPs have failed to explain/ prove as to why two new insurance policies being in no. 01706321 and no. 01708257 does not contain separate CDF and that non existence of CDF with the new Insurance Policy clearly presumes the illegality in issuing those insurance policies and the said act of the OPs are nothing but the deficiency in service as well as restrictive trade practice.

Ld. Advocate of the OPs during argument and in their written notes of argument claims that, 15 days free look period from receipt of policy certificate was given to the Complainant for raising objection against the terms and condition of new policy and for cancellation of the policy but the Complainant did not avail the opportunity. But the Complainant has specifically stated in his evidence that, no question of free look period of 15 days arose only when the insured disagreed with any terms and conditions so provided by the Insurance Company but in the instant case the dispute of the Complainant is that, the OPs have issued the policies by practicing fraud on the Complainant with an ulterior motive to deceive him. In this regard Section 45 of the Insurance Act 1938 is very much applicable in this case because according to that section any insured can raised the issue of fraudulent activity of the Insurance Company within 3 Years from the date of commencement of the risk and the case in hand the dispute of the Complainant is arising within the period of three years from the date of issuance of those Insurance Policies.

Considering all, we are of the view that, the OPs have tried to thwart the case of the Complainant by adducing evidence and by putting questionnaires against the evidence of the Complainant but has failed to substantiate the same. Accordingly, we are also of the view that the Complainant has been able to prove the  case against the OPs and both the OPs are jointly and severally liable to pay the awarded amount. The decisions referred by the OPs are not applicable to the facts and circumstances of this case.

Hence it is therefore,

                                                     O R D E R E D

That the instant Consumer Case being in No. 33/2023 is hereby allowed on contest but in part. The OPs are directed to pay the sum of Rs. 2,65,000/- (Rupees Two Lakh Sixty Five Thousand) only to the Complainant which was paid by the Complainant to the OPs. The OPs are further directed to pay a sum of Rs. 20,000/- (Rupees Twenty Thousand ) only to the Complainant for causing mental pain, agony caused to the Complainant by the OPs. The OPs are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) Only to the Complainant towards cost of legal proceedings and they are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) Only in the Consumer Legal Aid Account of this Commission.

The OPs are directed to pay the awarded amount to the Complainant within 45 days from this day, failing which they will have to pay interest @7% per annum with effect from this day till making payment of the entire amount.

Let a copy of this Order / Judgement be given to the parties free of cost.