BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.274 of 2016

Date of Instt. 04.07.2016

Date of Decision:17.01.2018

Mrs. Kuldip Kaur wife of Shri Ranjit Singh, resident of Village & Post Office Talwandi Dadian, Hoshiarpur.

..........Complainant Versus

Future Generali India Life Insurance Company Ltd., Central Town, Near Gurudwara, Jalandhar City through its Branch Manager.

..….…Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: None for the Complainant.

Sh. KS Minhas, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. This complaint filed by the complainant, wherein stated that she purchased a policy bearing No.01273664 under the Scheme Future Generali Pearls Guarantee from the OP on 14.10.2015 and deposited the first premium of Rs.25,000/- on 14.10.2015 and the Policy Certificate was issued in the name of the complainant, in the month of November, 2015. After receiving the policy, the complainant was not interested in continuing with the policy, as the plan was not conducive to the financial needs of the complainant and was not as per the facts told by the Agent at the time of sale of the Policy, as such, the complainant approached the OP after a week of receipt of the policy and showed her unwillingness to continue with the policy and requested it to refund the amount of Rs.25,000/- received from the complainant as first premium, but the OP had been putting off the complainant with one or the other pretext to refund the amount and in this manner, the OP gained time. However, the OP asked the complainant to come later on in order to settle the matter. On 26.12.2015, the OP called the complainant and asked her to deposit her claim papers, which the complainant deposited with the OP, vide Receipt dated 26.12.2015. The OP also obtained a written request from the complainant as per its dictate regarding closure of the policy. The OP assured the complainant to come after some time to receive the amount claimed. That after deposit of the claim papers, the complainant has been approaching the OP to get the refund of premium amount, but the OP had been dilly dallying the matter. In the first week of June, 2016, the complainant again went to the office of the OP to get back the refund amount, but the OP refused to refund the amount on the pretext that the claim was lodged after 15 days of receipt of the policy and further advised the complainant to go to Forum. That the OP is liable to immediately refund the amount of first premium, received from the complainant as the complainant is not interested in continue with the said policy.

2. The act and conduct of the OP in the above matter is clear cut unfair trade practice, deficiency and negligent in service, which has caused a great inconvenience, undue harassment, mental agony, tension causing damages to the tune of Rs.50,000/- to which the complainant is entitled and the OP is liable to pay the same. Since all the ordinary means for the redressal of grievances of the complainant have proved abortive, the complainant has been left with no other alternative, but to file the present complaint with the prayer that the OP be directed to refund the amount of Rs.25,000/- being the first premium deposited by the complainant with the OP and further OP be directed to pay a sum of Rs.50,000/- as compensation/damages on account of unfair trade practice, negligence and deficiency in service and OP be also directed award the cost of litigation.

3. Notice of the complaint was given to the OP and accordingly, OP appeared and filed a written reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainant is liable to be dismissed on the ground of Territorial Jurisdiction as the OP Company does not have any branch office in Jalandhar and moreover, the complainant is the resident of Hoshiarpur as mentioned in the proposal form and as stated by the complainant herself in the title of the complaint and as such, the complaint of the complainant is liable to be dismissed for want of territorial jurisdiction. It is further averred that the allegations made in the complaint are false, frivolous and untenable and a concocted story. That it is a settled principle of law that if any person sign a document, it is presumed that he/she has signed the same after reading and understanding it properly. It is further alleged that if the Insured/Complainant is not satisfied with the policy taken, then she should avail the option of returning the policy within 15 days of receipt i.e. within “Free Look Period”, as the complainant has not approached to the OP within Free Look Period i.e. 15 days, therefore, the complainant is not entitled for the refund of premium. It is further submitted that the present complaint involves allegations of miss-selling, hence the same cannot be adjudicated under summary procedure rather the matter can only be adjudicated by the Civil Court, after holding a proper trial and leading substantive evidence. On merits, it is admitted that the complainant purchased the policy and submitted an application for cancellation of policy, but after the Free Look Period, therefore, the complainant is not entitled for refund and the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Ex.C-1 Policy Schedule, Ex.C2 Copy of Receipt dated 26.12.2015, Ex.C-3 Letter obtained from the complainant, Ex.C-4 Acknowledgment Document and closed the evidence.

5. Similarly, counsel for the OP tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.OP/1 to Ex.OP/8 and then closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. The facts in regard to purchase of insurance policy under the scheme Future Generali Pearls Guarantee from the Insurance Company, after making a payment of first premium of Rs.25,000/- on 14.10.2015, is not denied. Even the factum in regard to refund of the premium amount, by cancellation of the insurance policy, had been submitted by the complainant, but the same was declined by the OP, on the reason that the same is filed after the stipulated period of 15 days “Free Look Period”, vide letter dated 12.01.2016 Ex.OP-6.

8. Apart from the other objections, the OP has also raised objection in regard to jurisdiction of this Forum and categorically submitted that the OP has no branch office in Jalandhar and moreover, the complainant is resident of Hoshiarpur as mentioned in the proposal form and he purchased a policy in Hoshiarpur not in Jalandhar, therefore, the District Forum, Jalandhar has no territorial jurisdiction to entertain the present complaint and in support of this submission, the learned counsel for the OP made a reliance upon a pronouncement of Hon'ble Apex Court, cited in 2010(1) SCC 135, title “Sonic Surgical Vs. National Insurance Company.

9. Before imparting with other aspect on merit, we feel it necessary to adjudicate the question of jurisdiction firstly, no doubt, at the time of admission of the complaint, the same was admitted being having a territorial jurisdiction of this Forum, but at that time, the factum in regard to having no branch office at Jalandhar and the complainant is the resident of Hoshiarpur, does not come into the notice of this Forum, but this fact has been brought into the notice of this Forum only after filing the written reply. So, as such, we are going to consider this question, at this stage and find that the complainant has categorically mentioned in the complaint in Para No.1 that the insurance policy in question had been purchased by her from the OP (means Future General India Life Insurance Company Limited, Near Gurudwara, Jalandhar City through its Branch Manager) on 14.10.2015, after making a payment of Rs.25,000/- and accordingly, policy certificate was issued in the name of complainant and in reply to Para No.1 of the complaint, the OP has categorically admitted by stating “the contents of Para No.1 are matter of record, hence required no reply. It is however clarified that the Policy No.01273664 has been issued to the complainant on 14.10.2015 with a risk commencement date of 16.10.2015”. From the glance of above reply, itself make a clear that the OP has directly admitted that the insurance policy was issued by the Branch Office, situated in Jalandhar. So, accordingly, we find that the OP has took a contradictory plea in the preliminary objections that the insurance company has no branch in Jalandhar, whereas in reply to Para No.1 of the complaint, it is admitted that the policy was issued by the said branch, if so then, the cause of action accrued at Jalandhar and District Forum, Jalandhar has territorial jurisdiction to entertain the complaint in question and the ruling referred by the learned counsel for the OP (Supra) 2010 (1) SCC 135 is not helpful to the OP in the present case.

10. The next question raised by the learned counsel for the OP that the complaint involves allegation of miss-selling, hence, the instant complaint cannot be adjudicated under the summary proceedings, rather the same can only be adjudicated by the Civil Court and prayed for dismissal of the complaint and in order to give strength to his argument, the learned counsel for the OP made a reliance upon a judgment of Hon'ble National Commission, cited in 2013(3) CPJ 523, title “UCO Bank Vs. S.D. Wadhawa, we have gone through the pleadings of the complainant as well as OP and find that simply alleging by the OP that the complaint involves allegations of miss-selling, but this factum is not appears in the complaint, if so then, how we can assume that the complaint involves allegations of miss-selling. So, with these observations, we came to conclusion that there is no such like any allegation of miss-selling and therefore, the matter in dispute can be adjudicated by the Consumer Forum and further, we find that the facts of the aforesaid judgment referred by the learned counsel for the OP, are not identical to the facts of the case in hand and therefore, the same is not applicable in the present case and plea taken by the OP is not proved.

11. Now, there remains main controversy between the parties, it is admitted that the complainant submitted a request for cancellation of the insurance policy on 26.12.2015 and acknowledgment of the said request is placed on the file, the same is Ex.C-2 and further, the complainant submitted an other application Ex.C-3 for cancellation of the policy and refund of the premium. A request for cancellation of the policy duly filled in the prescribed form is also placed on the file by the complainant Ex.C-4, which is received by the OP on 12.01.2016, but despite that the refund was not made to the complainant on the pretext that as per terms and conditions, the Insured/Complainant has right to get back the amount of the premium after cancellation of the policy, but within 15 days from the date of receipt of the policy and accordingly, the claim of the complainant is declined, vide letter dated 12.01.2016 Ex.OP-6. The OP has also brought on the file a CD i.e. Ex.OP-3, having a conversation with the complainant, showing that the OP has confirmed to have understand all the details of the mentioned policy by the complainant, but here we make it clear that if we go through the recording of the CD Ex.OP-3, then it will be difficult for us to identify the voice of the complainant rather it is the duty of the OP at the time of placing on the file CD to get identify the voice of the complainant by adopting due procedure and therefore, the CD cannot be taken into consideration at this stage. No doubt, the complainant has not mentioned in the complaint when he received the insurance policy, but stated in the complaint that on 26.12.2015, he was called by the OP and asked her to deposit her claim paper and accordingly, she deposited the claim paper and this version of the complainant is fortified by a documentary evidence i.e. acknowledgment issued by the OP, after receiving the said document, Ex.C-2, wherein the date is put as 26.12.2015. So one thing is established that the complainant has firstly submitted a document for cancellation of the policy and refund of the premium on 26.12.2015.

12. To the contrary, the OP alleged in the written reply in Para No.6 under the heading “Facts of Case”, wherein stated that the company for the first time received a Free Look Cancellation request from the complainant only on 12.01.2016, wherein the complainant had mentioned the date of receipt of the policy documents as 12.12.2015, hence, the Free Look Period would have expired on 26.12.2015. Here, we want to make it clear that the OP has intentionally and willfully concealed the factum that the first request for cancellation of policy was received on 26.12.2015, which is categorically proved by way of acknowledgment issued by the OP Ex.C-2, no doubt, the other cancellation of the policy request was submitted by the complainant, which was received by the OP on 12.01.2015 and copy of the same is also placed on the filed by the complainant herself, which is Ex.C-4 and in that request, the complainant submitted that he received the policy document on 12.12.2015, so, it means the 15 days period is expired on 26.12.2015 and on the very that date, the complainant has submitted a request for cancellation of the insurance policy, though the same may not be submitted alongwith the required document, but once request is submitted within a stipulated period that can be considered as submitted within a prescribed period.

13. Apart from above, the OP has itself not clear when the policy document was sent to the complainant, for that purpose, we like to refer some documents placed on the file by the OP, showing the date, on which the insurance policy was dispatched to the complainant, the first document is Ex.OP-4 dated 16.10.2015, wherein categorically mentioned that the original insurance policy certificate alongwith the first premium receipt sent to the complainant, on the address given in the proposal form i.e. in District Hoshiarpur, the second document of the OP is Ex.OP-6 dated 02.11.2015, whereby request for cancellation of the insurance policy and refund of the insurance amount is declined and in that letter, the Para No.5 show that the OP dispatched the insurance policy on 02.11.2015 and then document Ex.OP-8, wherein Para No.3 shows the dispatch of policy is 20.10.2015, so, from the above three documents, it is clear that the OP itself is not sure, on which date the insurance policy was dispatched to the complainant, if so then, we have to accept the document of the OP, which are already discussed above i.e. Free Look Cancellation Form Ex.C-4, showing the date of the receipt of the insurance Policy 12.12.2015 and Ex.C-2 acknowledgment issued by the OP, showing that the request for cancellation of the policy was received on 26.12.2015. So, as per version of the OP itself as taken in Para No.6 under the heading, “Facts of the Case”, that the Free Look Period would have expired on 26.12.2015 and on the last date, the complainant has submitted the documents, therefore, we find that the complainant has submitted the document within a Free Look Period of 15 days and as such, the ruling referred by the learned counsel for the OP 2013(3) CPJ 536, National Commission, title “Shrikant Murlidhar Apte Vs. Life Insurance Corporation of India and another” and on the same point, he further referred a pronouncement of Hon'ble National Commission, cited in 2014(1) CPJ 188, title “Harish Kumar Chadha Vs. Bajaj Allianz Life Insurance Co. Ltd and Others”. The above aforesaid judgments of the Hon'ble National Commission are not helpful to the complainant, because in this case, the complainant has submitted a request for cancellation of the insurance policy within the stipulated period and accordingly, we reach to the conclusion that the OP has wrongly and illegally rejected the claim of the complainant and therefore, the said letter of the OP i.e. Ex.OP-6 dated 12.01.2015 is hereby set-aside and complaint of the complainant is partly accepted and OPs are directed to pay first premium amount of Rs.25,000/- to the complainant with interest @ 12% from the date of request of the complainant i.e. 26.12.2015, till realization and further, OP is directed to cancel the insurance policy of the complainant and further, OP is directed to pay compensation to the complainant, to the tune of Rs.7000/- and litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

17.01.2018 Member President