Chandigarh

StateCommission

A/70/2015

Birla Sun Life Insurance Co.Limited - Complainant(s)

Versus

Harmesh Singh - Opp.Party(s)

S.C.Thatai & Nitin Thatai, Adv.

06 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

                                                       

First Appeal No.      :    70 of 2015 

Date of Institution    :    20.03.2015

Date of Decision       :    06.04.2015

 

1. Birla Sun Life Insurance Company Limited, Regd. Office One Indiabulls Centre, Tower 1, 15 & 16th Floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai-400013, through Ms. Aakriti Manocha, Assistant Manager – Legal.
2. The Manager, Birla Sun Life Insurance Company Limited SCO No.149-150, Sector 9C, Chandigarh (Old Address), SCO No.226-227, IInd Floor, Sector 34, Chandigarh (New Address).

……Appellants/Opposite Parties.

 

Versus

 

Harmesh Singh, resident of House No.1143, Sector 23-B, Chandigarh.

               ....Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

                               

Argued by:Sh. Nitin Thatai, Advocate for the appellants.

 

PER DEV RAJ, MEMBER.

                This appeal is directed against the order dated 11.02.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint of the complainant (now respondent) and directed the Opposite Parties (now appellants) as under:-

“18.          For the reasons recorded above, the objections of the complainant against the report of the hand writing expert are allowed to the extent mentioned above. After having considered various aspects of the case discussed above, we find merit in the complaint and the same is partly allowed.  The OPs are directed as under :-

1. To refund the amount of Rs.1,99,996.29 alongwith interest @ 9% per annum from the date of payment till realization by the complainant.
2. To pay Rs.40,000/- as compensation to the complainant on account of harassment, mental agony and unfair trade practice.
3. To pay Rs.11,000/- to the complainant towards costs of litigation.

19.           This order shall be complied with by the OPs within one month from the date of receipt of its certified copy; thereafter the OPs shall pay the amounts mentioned at Sr.No.(i) and (ii) above with interest @ 12% per annum from the date of filing of the present complaint till realization by the complainant, besides payment of litigation costs.”

2.             The facts, in brief, are that somewhere in the month of March 2012, Opposite Party No.2, made a telephonic call to the complainant, apprising him about the salient features of “Birla Sun Life Insurance Vision Plan”. It was stated that the complainant was told that the above-said Policy was a single premium Policy having lock in period of three years from the date of commencement and that on the commencement of fourth Policy year, the complainant was duly entitled to the matured value of the Policy. It was further stated that after discussion, Opposite Party No.2, sent an agent who persisted with the complainant to invest the money, in the scheme floated by Opposite Party No.1. It was further stated that various projections were made through attractive brochures and pamphlets and it was assured that the money invested in the scheme would give handsome returns i.e. more than 33% interest per annum, on the amount invested.  It was further stated that believing the projections made by the Opposite Parties to be true, the complainant signed the blank proposal form document, and deposited single premium of Rs.2 lacs approximately in the Birla Sun Life Insurance Vision Plan. It was further stated that the complainant was misled and it was never disclosed that his hard earned money was going to be subjected to market movements. It was further stated that the said fact came to notice of the complainant when he received the Policy document (Annexure C-1) on 18.5.2012, which reflected the Policy having annual frequency and Policy term to be 11 years etc. 

3.             It was further stated that the complainant immediately telephonically informed Opposite Party No.2 as well as the agent and raised a demand for refund of the premium amount of Rs.1,99,990.89 vide letter dated 22.5.2012 (Annexure C-2) which was acknowledged on 25.5.2012 (Annexure C-3) by the Opposite Parties.  However, the Opposite Parties vide letter dated 13.7.2012 (Annexure C-4) stated that they were unable to accede to his request for cancellation of the Policy as they were not in receipt of any concern towards the said Policy within the free look period.  It was further stated that, subsequently, the Opposite Parties vide letter dated 16.8.2012 (Annexure C-5) admitted that they had received the cancellation request within the free look period, but at the same time stated that they were in receipt of letter dated 28.5.2012 (Annexure C-6) of the complainant confirming to continue with the Policy. The complainant denied the execution of letter dated 28.5.2012 and it was stated that the same was a fabricated one written with mischievous intent by the Opposite Parties. It was further stated that the complainant opposed letter dated 16.8.2012 by writing letter dated 5.9.2012 (Annexure C-7) but to no avail. 

4.             It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only),  directing the Opposite Parties, to refund a sum of Rs1,99,990.89 alongwith interest @18% per annum from the date of deposit till realization; pay Rs.1,00,000/- as compensation for physical harassment & mental agony; and  Rs.25,000/- as cost of litigation, was filed.

5.             The Opposite Parties, in their written statement, took up certain preliminary objections to the effect that the complaint involved disputed questions of fact; that the Policy was purchased by the complainant with the clear motive of investment and earning more and more profits and multiplying the invested amount and, therefore, the District Forum was not having the jurisdiction to decide the complaint.

6.             On merits, it was stated that the Opposite Parties received the proposal form No.46170781 from the complainant for the purchase of Policy for his wife Smt. Tajinderpal Kaur. It was further stated that in the said proposal form dated 12.4.2012, the complainant applied for the purchase of BSLI Vision Plan for a Policy term of 36 years, and premium paid term was 11 years and paid the basic premium of Rs.1,99,996.29 and the basic sum assured was Rs.14,61,000/-. It was further stated that before acceptance of the aforesaid proposal, the contents of the proposal/application, illustrations and the addendum forms were read over and explained to the complainant/life assured. It was denied that any assurance was given by the Opposite Parties or their agents. It was also denied that blank proposal form was signed by the complainant. It was further stated that the complainant/life assured, being Graduate, was very well aware of the terms and conditions of the Policy, the nature of the product, premium payable and the risk coverage. It was admitted that the complainant applied for the cancellation of Policy within the free look period, but later on the cancellation request was withdrawn by him vide letter dated 28.5.2012.  It was further stated that the complainant was not liable to get any refund. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, contained in the complaint, were denied being wrong.

7.             The parties led evidence, in support of their case.

8.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

9.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

10.           We have heard the Counsel for the appellants and have gone through the evidence and record of the case.

11.           Counsel for the appellants/Opposite Parties submitted that the respondent/complainant, by submitting the proposal form dated 12.4.2012, applied for the purchase of BSLI Vision Plan, for a Policy term of 36 years, the premium paying term whereof was 11 years and he paid the basic premium of Rs.1,99,996.29Ps whereas the sum assured was Rs.14,61,000/-. He further submitted that the Insurance Policy bearing No.005546214 was issued. He further submitted that the Hon’ble Supreme Court in Grasim Industries Ltd. Vs. Agarwal Steel, 2010 (1) SCC 83, held “In our opinion, 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 his signatures thereon, otherwise no signature on a document can ever be accepted.” He further submitted that before acceptance of the proposal by the appellant Company, adequate information with regard to the product, nature and its significance was provided to the respondent/complainant/Life Assured. He further submitted that after requesting for cancellation of the Policy within the free look period, the complainant requested to continue with the same.

12.           After giving our thoughtful consideration, to the contentions, raised by the Counsel for the appellants/Opposite Parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter.

13.           Admittedly the respondent/complainant vide his letter dated 22.5.2012 (Annexure C-2) applied for the cancellation of two Policies bearing No.005546214 and No.005544728, for which first basic premiums in the sum of Rs.2,00,000/- and Rs.51,000/- were paid. The instant case relates to Policy No.005546214. The request for cancellation was clearly within the free look period of 15 days, and as is evident from Annexure C-3, the same was received in the office of the appellants/Opposite Parties at Chandigarh. While the appellants/Opposite Parties were grossly deficient in processing the same (request), they surprisingly vide letter dated 13.7.2012 (Annexure C-4) informed the respondent/complainant, that since they did not receive any concern towards the aforesaid Policies, within the free look period, they were unable to accede to any cancellation of the Policies. In the face of Annexures C-2 and C-3, the contents of letter dated 13.7.2012 (Annexure C-4) were highly incorrect. It was only vide letter dated 16.8.2012 that the appellants/Opposite Parties, while admitting the receipt of letter dated 22.5.2012 for the cancellation of Policies within the free look period stated regarding receipt of another letter dated 28.5.2012 from the respondent/complainant, that he (respondent/complainant) wished to continue with the Policies. It was also mentioned, in the aforesaid letter, that in the event of non-receipt of reply within 8 weeks, concern of the respondent/complainant shall be considered as resolved. The respondent/complainant immediately vide his letter dated 5.9.2012 clarified that he did not write letter dated 28.5.2012 and disowned the same. He (respondent/complainant) reiterated that he had returned the Policies within the free look period of 15 days, and his claim for refund was in accordance with the Rules. When the appellants/Opposite Parties admitted that request for cancellation was within the free look period and the respondent/complainant disowned the alleged letter dated 28.5.2012, it was obligatory, on their part to refund the premium amount.

14.           No doubt, as per CFSL report, disputed document viz. letter dated 28.5.2012 (Exhibit R-8) was written by the respondent/complainant. The respondent/complainant also got examined his signatures, on the aforesaid disputed document, with his standard signatures/photocopies of specimen signatures from Dr. Jassy Anand, Forensic expert. As per report of Forensic Expert Dr. Jassy Anand, the disputed signature on the letter dated 28.5.2012 were not of the respondent/complainant. The respondent/complainant filed objections alongwith his affidavit.

15.           We find from the findings of the District Forum, in paras 13 and 14 of its order, that the report of CFSL was rejected by it on solid and justified grounds. The extracts from Paras 13 and 14 of the order, which are relevant, read as under:-

13.           We have given our thoughtful consideration to the objections to the report of CFSL, report by Dr. Jassy Anand and reply to the objections by the OPs.  In the instant case, the report of Sh. Abhimanyu Kumar, Scientist B is not supported by any affidavit.  In view of the law laid down in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi-2002 AIR (SC) 2931, in cases where cross examination of the persons who have filed affidavit is necessary, suggested questions of cross-examination be given to the persons who have tendered their affidavits and reply may be also obtained on affidavits.  In the instant case, since there is no affidavit of Sh. Abhimanyu Kumar, therefore, the learned counsel for the complainant could not give the suggested questions for cross-examination to Sh. Abhimanyu Kumar. In Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma & Ors-(1973) 4 SCC 46 it has been held that evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed.  The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. The conclusions based upon mere comparison of a handwriting expert must at best be indecisive and yield to the positive evidence in the case.  In Magan Bihari Lal Vs. The State of Punjab-(1977) 2 SCC 210 it was held by the Hon’ble Apex Court as under :-

                             “Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction.

14.              We are of the opinion that in view of the law laid down in the above rulings, the Courts should be wary to give too much weight to the evidence of hand writing expert. The science of handwriting is not a perfect science.  Furthermore, this type of evidence being opinion evidence, is by its very nature weak and infirm.  In the instant case, we feel that since there are two contradictory reports of experts, one against the complainant and one in favour of the complainant, and the evidence of handwriting expert unlike that of a finger print expert is generally of a frail character, we should not give any weight to the evidence of the handwriting experts.  The conclusions based upon mere comparison of a handwriting by Sh. Abhimanyu Kumar, Scientist B in this case are indecisive and yield to the positive evidence in the case.  It is no doubt true that this Forum cannot decide the complicated and complex questions of facts and law and the questions of fraud and cheating are also beyond the purview of summary jurisdiction. However, after taking into consideration the totality of the circumstances and ignoring the report of both the handwriting experts, we feel that on a close scrutiny the original of Annexure C-6/Ex.R-8 is found to be a fabricated document……”

The District Forum was, thus, right in not relying on the report of the Forensic Science Laboratory. The District Forum was also right in holding that by not cancelling the Policy, on receipt of request therefor, within the free look period and by not refunding the amount of premium, the Opposite Parties were deficient, in rendering service.

16.           The respondent/complainant has specifically averred that he was assured attractive returns and Policies were mis-sold to him. A perusal of the Policy (Annexure C-1) and proposal form (at pages 25 to 27), reveals that the respondent/complainant was 72 years of age at the time of submitting proposal. His annual income has been shown to be Rs.2.60 Lacs per annum. Policy term was 11 years. The sum assured was Rs.14,61,000/- and guaranteed survival benefit was Rs.16,61,157.00. A prudent person at the age of 72 years having annual income of Rs.2.60 Lacs will never subscribe to a Policy for which he has to pay total premium of Rs.22,00,000/- against which the sum assured was Rs.14,61,000/-. The logical inference is that the complainant was misled by painting rosy pictures, and on receipt of the Policy, he chose to request for cancellation of the same (Policy) well within the free look period. Thus, the order of the District Forum is just and correct.

17.           No other point, was urged, by the Counsel for the appellants/Opposite Parties.

18.           The District Forum correctly evaluated the entire evidence led by the respondent/complainant and the appellants/Opposite Parties. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.

19.           For the reasons, recorded above, the appeal, being devoid of merit, is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

20.           Certified copies of this order, be sent to the parties, free of charge.

21.           The file be consigned to Record Room, after completion.

Pronounced.

6^th April, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

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