Punjab

StateCommission

A/11/1878

Aviva Life Insurance Company India Ltd. - Complainant(s)

Versus

Gurbax Singh Banga - Opp.Party(s)

Sandeep Suri

24 Mar 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1878 of 2011

 

                                                          Date of Institution: 21.12.2011

                                                          Date of Decision : 24.03.2015

.

1.       Aviva Life Insurance Company Limited , Chandigarh Road, Branch      Nawanshahr through its Branch Manager

2.       Aviva Life Insurance, Aviva Tower, Sector Road, Opposite Gold          Course DLF, Phase V, Sector 43, Gurgaon Haryana through its       Director.

3.       Aviva Life Insurance Company Limited, Insurance Ombudsman,          Office of Insurance Ombudsman, SCO No.101-102 & 103, 2nd    Floor, Batra Building, Sector 17-D, Chandigarh.

4.       Aviva Life Insurance, 5th Floor, JMD Regent Square, Gurgaon, Mehrauli Road Gurgaon, 122001, Haryana through its Director.

 

                                                          …..Appellant/Opposite Parties

         

                                      Versus

 

Sh.Gurbax Singh Banga C/o Gurcharan Singh Banga, resident of Village Shekhupur Bagh, Tehsil Nawanshahr, District Shaheed Bhagat Singh Nagar age 37 years.

.

 

                                                          ….Respondent/Complainant

 

         

First Appeal against order dated 26.09.2011 passed by the District Consumer Disputes Redressal Forum, SBS Nagar (Nawanshahr)

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

 

Present:-

 

          For the appellant              :         Sh.Sandeep Suri,  Advocate

          For the respondents        :         Sh.Navkesh Singh, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellants (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging  order dated 26.09.2011 of District Consumer Disputes Redressal Forum SBS Nagar, accepting the complaint of the complainant and directing the OPs to refund the amount of Rs.13,50,000/- minus Rs.6,57,928/- besides cost of litigation of Rs.5000/-. The instant appeal has been preferred against the same by the OPs now the appellants.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that complainant is non-resident Indian and he approached the OP No. 1 and 2 in connection with making his investment in OPs company. On the persuasion of the OPs, the complainant was made to pay the amount of Rs.4,50,000/- each year for continuous three years, as premium and complainant would get insurance cover of Rs.80,00,000/- for ten years. It was further assured to complainant by the OPs if he wanted to discontinue and surrender the policy after payment of three years premium, the company would pay double the amount of the total premium amount to the complainant in three years. The complainant paid the first premium amount of Rs. 4,50,000/-  on 08.12.2006 for this policy to the OPs. The OPs issued policy No.WLG1394600 to the complainant. The OPs have not handed over said policy after eight months of the insurance of the said policy, moreso ; when the period of free look has already stood expired. The complainant approached the OPs after expiry of the period of three years for discontinuation the policy and requested them to refund the double the amount of premium amount paid by the complainant. The OPs stated to complainant that policy issued to the complainant was for 30 years, only premium has to be paid by the complainant at least for 10 years, and thereafter the complainant could get the benefit thereof. The OPs stated that, if complainant wanted to surrender the policy, the OPs would refund the exiguous amount of Rs.6 lac after imposing heavy deductions of penalties  thereupon. The complainant was shocked on learning about it. The complainant filed the instant complaint against the OPs directing them to refund the amount of Rs.17,91,081/- along with interest to him along with compensation of Rs. 25,000/- and Rs.20,000/- as litigation expenses.

3.      Upon notice, OPs were  set exparte before the District Forum, vide order dated 30.08.2011.

4.      The complainant tendered in exparte evidence affidavit of the complainant Gurbax Singh Ex.C-1, copy of registered letter dated 29.06.2010 Ex.C-2, copy of registered letter dated 10.08.2010 Ex.C-3, copy of policy account statement Ex.C-4, copy of policy document Ex.C-5. On conclusion of exparte evidence and arguments, the District Forum, SBS Nagar,  accepted the complaint of the complainant and directing the OPs to refund the amount of Rs.13,50,000/- minus Rs.6,57,928/- has already paid to the complainant, besides Rs.5,000/- as litigation expenses. Dissatisfied with this order dated 26.09.2011 of District Forum, SBS Nagar. OPs now appellants have preferred this appeal against the same.

6.      We have heard learned counsel for the parties and also examined the record of the case. We have carefully examined the pleadings of the complainant, as contained in the complaint. The affidavit of the complainant Ex.C-1 in support of his pleadings is also on the record, which has been examined by us. Ex.C-2 is registered notice dated 29.06.2010 sent by the complainant to the OPs. Ex.C-3 is copy of registered notice dated 10.8.2010 sent by the complainant. Ex.C-4 is Policy account statement, Ex.C-5 is the policy schedule. The complainant relied upon the above documents. We have carefully gone through Ex.C-5 Aviva Life Insurance Policy Document in this case between the parties. This is the basic contract governing the parties in this case. The parties are strictly bound by the terms and conditions of this document. From perusal of the notes of this policy document Ex.C-5, it is evident that the policy is Unit Linked Insurance Policy and is not a fixed deposit or the mutual fund. There is no return in this policy. Benefits payable to the complainant will depend only on market performance and be subject to market risk, which is borne by him. The past performance of any investment fund is not an indicator of future performance. It is so recorded in the notes of the policy document Ex.C-5. The attention of the customer is specifically drawn to the column : please note in this policy, as embossed on the policy document, we conclude that this policy Ex.C-5 is Unit Linked Life Insurance Policy  and is not a fixed deposit  or a mutual fund. The Hon'ble National Commission has held in case titled as  Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Company and ors, III (2013) CPJ-203 (NC), that the policy having been taken for investment of premium amount, policy taken for investment of the premium in the share market, which is a speculative transaction and the complainant does not come within the purview of consumer, as per the Act. Our own State Commission has also so held in C.C No.96 of 2011 titled as Smt.Paramjit Kaur Vs.  Aviva Life Insurance Company India Ltd, decided on 04.07.2014 as under :

          "The investment made by the petitioner/complainant was to    gain profit. Hence, it was invested for commercial purposes           and, therefore, the petitioner/complainant is not a consumer        under the opposite parties. The State Commission Odisha in           First Appeal No.162 of 2010 in the case of Smt. Abanit           Kumari      Sahoo Vs.  Bajaj Allianz Life Insurance          Company Limited.,    have held that the money of the         petitioner/complainant          invested in the share market is no          doubt a speculative gain and the speculative investment    matter does not come under the           Consumer Protection Act     and accordingly the State Commission dismissed the appeal."

7.      It is, thus, evident that the complainant is not a consumer and complaint is not maintainable under the Act. The District Forum overlooked this important legal aspect of the matter and accepted the exparte complaint of the complainant. The instant appeal has been preferred by the OPs against the same before this Commission. We conclude that the complaint by the complainant under Unit Linked Insurance Policy is not maintainable, in as much as the complainant is not proved to be a consumer, as the money has been invested in speculative business. The complainant himself admitted that he received the policy documents although alleged some delay in it. It is not the case of the complainant that policy documents were not supplied to him at all in this case. The complainant paid premium to the OPs in this case. The complainant is, thus, bound by the terms and conditions of this policy document. In addition to that, the case between the parties is with regard to the settlement of account only. The remedy for the complainant is to seek redressal of his grievance from competent court of law only. Consequently, the exparte order of the District Forum dated 26.09.2011  is not sustainable and merits reversal in this appeal.

8.      As a result of our above discussion, we accept the appeal of the appellants and by setting aside the order of the District Forum SBS Nagar dated 26.09.2011, the complaint filed by the complainant Gurbax Singh now respondent in this appeal, stands dismissed being not maintainable before the Consumer Forum.

9.      The appellants have deposited an amount of Rs.75,000/-, vide receipt dated 9.4.2012 and Rs.25,000/-, vide receipt dated 21.12.2011 at the time of filing the appeal. These amount with interest, if any, accrued thereon, be refunded by the registry to the appellants by way of crossed cheque/demand draft after  45 days from receipt of copy of this order.

10.     Arguments in this appeal were heard on 18.03.2015 and the order was reserved. Now the order be communicated to the parties.

11.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

March  24  2015.                                                            

(ravi)