DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Consumer Complaint No. 30 of 12.01.2015.
Date of Decision : 09.09.2015
Jagroop Singh aged about 52 years son of Harnek Singh, resident of Village Librha, Tehsil Khanna, District Ludhiana.
….. Complainant
Versus
- HDFC Standard Life Insurance Co. Ltd. Branch Office- 2nd Floor, Purewal Towers, Samrala Chowk, G.T. Road, Khanna, District Ludhiana-141400, through its Branch Manager.
- HDFC Standard Life Insurance Company Limited, Registered Office- Ramon House, H.T. Parekh Marg, 169, Backbay Reclamation, Mumbai-400020, INDIA, through its MD/Chairman/Authorized Person.
..…Opposite parties
(COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)
QUORUM:
SH.G.K. DHIR, PRESIDENT
SH.SAT PAUL GARG, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Harvir Singh, Advocate.
For OPs : Sh. Ajay Chawla, Advocate
PER SAT PAUL GARG, MEMBER
1. Complainant Jagroop Singh filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter as referred as the ‘Act’) against the Ops by claiming that he purchased regular non unit linked life insurance policy named as classic assure bearing No.15876766 on 28.02.2013 by paying first premium of Rs.30,000/-. Proposal submitted by complainant was accepted and thereafter, he was insured. At the time of offering policy Mr. Varun Chaudhary, agent of OPs assured the complainant that objective of the policy is life insurance and savings and the plan is flexible plan. Further complainant was disclosed that if he would not want to continue with policy in future, then he will have the option to terminate the same at any time, on which he will be entitled to return of full premium with interest @9% per annum. After such assurance, blank forms and papers were got signed from complainant. Assurance was given for sending the original policy documents to complainant within 90 days, but despite that those policy documents have not been sent, albeit repeated requests were submitted. The agent of Ops handed over photostat copy of the policy alone to the complainant in August, 2013. However, copy of the proposal form was handed over by the agent of the OPs to complainant on the same date. Owing to non supply of the policy documents, complainant did not pay the premium as second installment. As per assurance given to the complainant, he after expiry of 18 months was interested in return back of the premium amount with interest @9% per annum and that is why he visited office of OP1 in first week of September, 2014 for enquiry as to how the amount can be got returned. There, Manager of OP1 disclosed the complainant as if OP1 is not liable to pay any amount at any point of time. Thereafter, a legal notice dated 12.09.2014 was got served through registered post from Sh. H.S. Bhutta, Advocate, but despite that reply not received. Another legal notice dated 17.11.2014 through registered post again was got served through same counsel, but to no effect. Deficiency in service on the part of OPs pleaded by claiming refund of Rs.30,000/- (paid premium amount) along with interest of Rs.4725/- @ 9% per annum from 28.02.2013 till filing of the complaint. Rs.10,000/- as compensation and litigation expenses even claimed.
2. On notice, OP1 and 2 filed joint written statement by claiming, inter alia, as if the complaint not maintainable; complainant has no cause of action to file the complaint; false story concocted in the complaint for misleading the Forum; complainant has not approached the Forum with clean hands; disputed questions of facts are involved requiring elaborate evidence and as such, the matter can be got decided from the civil court. Besides it is claimed that complaint is bad due to non joinder of necessary parties because Sh. Varun Choudhary, the agent has not been impleaded as party though allegations of mis-selling of policy are leveled against him. Admittedly, on submission of proposal form dated 28.02.2013 for purchase of HDFC SL Classic Assure insurance policy by complainant, the policy in question was issued with date of commencement as 28.02.2013. The policy documents were sent through speed post via POD No.EQ791233205IN. The policy documents produced by complainant is replica of the original policy. That copy produced by complainant is usually generated after dispatch of the original policy, which is of date 29.03.2013. Contents of the proposal/application form, illustrations, addendum form were read over and explained to complainant in the language known to him and thereafter, he put signatures under these forms. Adequate information regarding product, nature and its significance was given to complainant and he was provided necessary guidance also. Complainant also signed most important document dated 28.02.2013, vide which it was disclosed that term of the policy is 10 years and annual premium is Rs.30,000/-, but the sum assured is Rs.1,83,405/-. Declaration forum was duly signed by complainant. Complainant did not exercise the option within 30 days and as such, he cannot be allowed to wriggle out the terms and conditions of policy by leveling false allegations qua deficiency of service and unfair trade practice. Complainant kept silent for two years, but now he has leveled false allegations qua non-receipt of policy documents. As the complainant has admitted the factum of payment of premium and issuance of policy and as such, he cannot seek refund of premium amount after lapse of the policy. Each and every other averment of complaint denied by praying for dismissal of the complaint.
3. Complainant to prove his case tendered his affidavit Ex.CA along with documents Ex.C1 & Ex.C6 and thereafter, closed evidence.
4. On the other hand, counsel for OP1 and 2 tendered in evidence affidavit Ex. RA of Sh. Amit Khanna, Associate Manager (Legal) of OPs along with documents Ex. R1 to Ex. R5 and thereafter, closed the evidence.
5. Written arguments not submitted by any of the parties, but oral arguments of counsel for parties heard. Records gone through minutely.
6. Bone of contention remains as to whether policy documents were actually sent to complainant or not. It is claimed by OP1 and 2 through written statement that policy documents were sent through speed post via POD No.EQ791233205IN. Date, month or year of dispatch of policy documents not mentioned in written statement or in the submitted affidavit Ex. RA and nor any record of such dispatch as maintained by Ops has been produced and as such, virtually Ops failed to prove the dispatch of these policy documents. If the policy documents are not proved to be dispatched, then question of exercising of option within 30 days of receipt of policy documents by complainant does not arise. As per law laid down in The Oriental Insurance Co. Ltd. Vs Satpal Singh & others 2014(2) CLT 305, insured not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by insurance company. Onus of proof that terms and conditions of the policy were supplied to the insured lies upon the insurance company. As onus of proof of sending of the policy documents to complainant lies on Ops and as such, it was for them to prove on record the postal receipt or copy of dispatch register entry or any other record to prove as to on which date, month or year, the policy documents were dispatched to complainant. No proof in that respect adduced. Rather affidavit Ex. RA of Sh. Amit Khanna, Associate Manager though mentions the speed post No.EQ791233205IN, but date, month or year of dispatch has not been mentioned. Mere mentioning of the number of speed post is not enough to prove the due dispatch of the policy documents. So even if the copy of proposal form Ex. C1 and first premium receipt Ex. C2 may have been handed over to the complainant by agent of Ops as admitted by the complainant, despite that complainant was not made aware of the terms and conditions of policy by dispatch of policy documents. That was deficiency in service on the part of Ops. Complainant sent legal notice Ex. C3 and Ex. C5 through registered post on 12.09.2014 and 17.11.2014 as revealed by the postal receipt Ex. C4 and Ex. C6. No reply to these notices sent by Ops and as such, virtually Ops have not bothered to render due services to the complainant. Though Ops have produced on record copy of the proposal form Ex. R2 and letter Ex. R3 for intimation of complainant for acceptance of his proposal for issuing of policy in question, but no proof is adduced to prove the dispatch of these documents to complainant. Rather Ex. R3, letter containing the intimation for acceptance of the proposal form submitted by complainant bears date 03.03.2013, but despite that date, month or year of dispatch of these documents is not mentioned. Even though number of the speed post alone is mentioned on top of Ex. R3. Ex. R4 and Ex. R5, but they are the documents got filled from the complainant on 28.02.2013 itself and they do not disclose about the actual receipt of policy documents by complainant.
7. From the perusal of documents of premium receipt and proposal form etc. referred above, it is made out that first premium of Rs.30,000/- was paid by the complainant to Ops for HDFC SL Classic assure plan because endorsement in that respect exists on Ex. C2, Ex. C1, Ex. R2, Ex. R4 and Ex. R5. Though in Ex. R3, it is mentioned that in case complainant does not agree with the provisions stated in the policy, then he within 30 days from the date of receipt of policy may exercise the option for return of the policy, but despite that the policy documents containing terms and conditions not proved to be sent to complainant. If that be the position, then question of exercising of option of return within 30 days by complainant does not arise.
8. Agent Varun Choudhary is not a necessary party because the premium amount was received by Ops after acceptance of the proposal/offer submitted by complainant. So virtually the contract of insurance was between complainant and Ops and not between agent of Ops and complainant. As parties to the contract are impleaded and as such, complaint is not bad for non joinder of necessary parties.
9. Benefit from ratio of case titled as Jagraj Singh, Jodh Singh Vs HDFC Bank and others, in First Appeal No.1158 of 2011 decided on 20.01.2014 by State Consumer Disputes Redressal Commission, Punjab, cannot be availed by Ops because perusal of para 13 of the said judgment reveals that policy was received by complainant in the year 2007 and thereafter, the complaint was not filed within 2 years of such receipt. That is not the position in this case because here receipt of the policy documents by complainant are not proved by the Ops, as discussed above.
10. Certainly terms incorporated in the agreement of insurance to prevail because nothing can be added or subtracted thereto as per law laid down by Export Credit Guarantee Corporation of India Ltd. Vs M/s. Garg Sons International in 2014(1) SCC 686=2013(4) CPR (SC) 373=2013(2) CLT 9 and M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs United India Insurance Co. Ltd. And another in 2011 AIR SC(Civil) 903=2010(10) SCC 567 and General Insurance Society Ltd. Vs Chandmull Jain and Another in 1966 AIR (SC) 1644. Insurance agreement in this case provides for sending the policy documents to complainant and as such, violation is committed by Ops by not sending those policy documents.
11. In case bearing First Appeal No.202 of 2012 decided on 10.07.2012 by State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in case titled Avtar Singh Dhillon Vs HDFC Standard Life Insurance Company Limited and others, it was found that the complaint was filed after two years of accrual of cause of action and that is why the same was held to be barred by limitation. It was held in para 10 of the above judgment that if complainant has not received the policy, then he was required to write letter to Ops after waiting about month for receipt of the policy documents. However, in this case, even if the letter earlier was not sent by the complainant, but despite that he sent legal notices Ex. C3 and Ex. C5 within period of two years of accrual of cause of action i.e. of submission of proposal form on 28.02.2013 and as such, the complaint in this case before us is not barred by limitation. Facts of the above case are quite distinct than those of the facts before us.
12. As per law laid down in case M/s. Grasim Industries Ltd. & Anr. Vs M/s. Aggarwal Steel in 2010 (1) SCC 83=2010(1) Recent Apex Judgment (R.A.J.) 514, there is a presumption, unless there is proof of fraud and misrepresentation, that a party has read the documents properly and understood the same. Even if presumption qua proposal form, addendum forms and most important documents drawn against complainant, despite that, case of Ops is not proved by that alone qua dispatch of policy documents actually by them to complainant. This complaint was filed on 12.01.2015, though proposal form filled on 28.02.2013, so certainly the complaint is filed within 2 years of accrual of cause of action. Deficiency in service on the part of Ops in not sending the policy documents certainly is there and as such, in view of the facts that Ops did not bother to reply to the legal notices Ex. C3 and Ex. C5 sent by complainant to them through registered post, it is obvious that complainant was kept in dark by Ops by not sending the policy documents. In view of this deficiency in service on the part of Ops, complainant on the ground of equity is entitled to refund of premium amount alone because he himself remained silent for about 1½ years by not contacting Ops for getting the policy documents. So interest on premium paid amount not allowed for this fault of complainant. However, complainant is entitled to compensation and litigation expenses.
13. As a sequel of above discussion, present complaint is allowed in terms that Ops are directed to refund Rs.30,000/- (premium amount) to complainant within 30 days from the date of receipt of copy of the orders. Compensation of Rs.5,000/- and litigation expenses of Rs.5,000/- also allowed in favour of complainant and against Ops. Compliance of order qua compensation and litigation costs be also made within 30 days from the date of receipt of copy of this order, which be made available to the parties free of costs as per rules.
14. File be indexed and consigned to record room.
(Sat Paul Garg) (G.K. Dhir)
Member President
Announced in Open Forum.
Dated:09.09.2015.
Gobind Ram
