Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he has taken Flexi Growth Lifetime Super Policy No.05624145 on 30^th June, 2007 for the assured sum of Rs.3,60,000/- from the O.P.No.1 through the Agent, O.P.No.2.  It was for the period of ten years with monthly premium of Rs.6,000/-. The complainant paid Rs.1,74,000/- for twenty nine months upto December-2009 through ECS. Thereafter, he could not pay the premium for eight months due to financial constraint as the complainant had left his employment and went to Jamnagar in Gujarat. In July-2010, the representative of the O.P.No.2 approached the complainant on 20^th July, 2010 to collect accumulated dues of eight months. Therefore, consolidated cheque of Rs.48,000/- dated 21^st July, 2010 was given to him. Personal Health Declaration Form was also given along with the cheque.  The O.P.No.1 encashed the cheque for Rs.48,000/-. However, after four months, the O.P.No.1 returned the cheque on 20^th December, 2010 on flimsy ground that the complainant has not submitted Personal Health Declaration Form. The O.P.No.1 wrote letter dated 21^st September, 2010 to the complainant and asked him to submit another Form of Personal Health Declaration to their nearest branch.  Therefore, the complainant submitted the Form to Chembur branch on 8^th November, 2010.  The said delay was due to complainant’s exigency of his service in Gujarat State.  The O.P.No.1 vide letter dated 20^th December, 2010 informed the complainant that though cheque for Rs.48,000/- was received, the same could not be utilized as it was short of amount without clarifying the short amount. On 19^th September, 2011, the O.P.No.1 informed the complainant that if a premium upto 4^th December, 2011 is not paid, the policy will stand for closed and 40% amount only out of premium of Rs.1,74,000/- will be refunded.  It was mentioned that no benefits shall be paid to the complainant with effect from 5^th December, 2011.  The O.P.No.1 also informed that welcome kit was sent along with the policy.  The said welcome kit was not received by the complainant.  The O.P.No.1 could have charged 9.5% interest if there was delay on payment of monthly premium. The O.P.No.1 was not entitled to deduct 60% premium amount.  Vide letter dated 28^th November, 2011, the O.P.No.1 informed that they had sent email as they wanted some clarification with regard to Personal Health Declaration Form.  The complainant had never received such email.  The complainant issued notice dated 16^th November, 2011 through advocate.  The O.P.No.1 can not change the terms and conditions of the policy unilaterally.  The complainant could not pay premium for eight months due to his employment in Gujarat.  Suddenly, vide letter dated 8^th December, 2011, the O.P.No.1 forwarded cheque dated 7^th December, 2011 for Rs.75,805.55/- being the full and final settlement amount of the policy.  It is also mentioned that no benefits shall paid to the complainant with effect from 5^th December, 2011.  Therefore, the complainant has filed this complaint to direct the O.P.No.1 for revival of policy in favour of the complainant after receipt of Rs.48,000/- with all benefits.  He has also claimed compensation of Rs.30,000/- for mental agony and cost of proceedings. 

2)                The O.P.No.1 remained absent though duly served therefore it was proceeded exparte. 

3)                The O.P.No.2 filed written statement.  It is submitted that the O.P.No.2 is the Agent of the O.P.No.1.  He is not personally liable for the deficiency in service by the O.P.No.1.  The O.P.No.2 has not personally provided any service or received consideration from the complainant.  Therefore, the complaint is not maintainable against the O.P.No.2

4)                All the parties submitted their written notes of argument.  Even though the O.P.No.1 was proceeded exparte, still he has right to argue the matter and point out the lacunas in the complaint though he is not entitled to take any defence. 

5)                After hearing all the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

6) As to Point No.1 & 2 :- The complainant has produced copy of policy alongwith terms and conditions on record.  It is not challenged by the opponents.  From the record, it is clear that the complainant purchased the policy with effect from 4^th July, 2007 for the period of ten years with monthly premium of Rs.6,000/-. According to the complainant, he had paid monthly premium for twenty nine months upto December-2009.  Thereafter, he could not pay premium for eight months due to financial constraints as he left his job and went to Jamnagar in Gujarat.  From the admission of the complainant himself, it is clear that the complainant was at fault. According to the complainant, the O.P.No.2 collected eight months premium amounting to Rs.48,000/-.  He has also submitted Personal Health Declaration Form.  The cheque was encashed by the O.P.No.1. This fact is not challenged by the opponents.  However, as per say of the complainant, the amount was returned as it was short. According to the complainant, the O.P.No.1 has not clarified the short amount.  The complainant has produced letter of the O.P.No.1 dated 20^th December, 2010.  The complainant has also produced letter of the O.P.No.1 dated 19^th September, 2011.  By this letter, the O.P.No.1 has requested the complainant to the pay the premium and to revive the policy by 4^th December, 2011.  There is nothing on record to show the efforts made by the complainant for payment of premium and to revive the policy after receiving the letter of O.P.No.1 dated 19^th September, 2011.  The complainant issued notice dated 16^th November, 2011.  When the O.P.No.1 requested the complainant to pay premium and revive the policy upto 4^th December, 2011 vide letter dated 19^th September, 2011, it was necessary for the complainant to comply with it. There is no compliance by the complainant. 

7)                The policy is the contract in between the parties and both the parties are bound by the terms and conditions of the policy. As per the policy, it was necessary for the complainant to pay monthly premium of Rs.6,000/- regularly.  Admittedly, the complainant failed to pay the premium after twenty nine months i.e. after December-2009.  Chance was given to the complainant to pay arrears of premium and revive the policy.  The earlier cheque of Rs.48,000/- was returned to the complainant as it was of short amount. It was necessary for the complainant to make enquiry about the short amount and about the necessary requirements for revival of the policy. As there is no compliance by the complainant, it can not be accepted that there is deficiency in service by the O.P.No.1.  As there is no deficiency in service by the O.P.No.1, the complainant is not entitled for the relief as claimed.  The O.P.No.2 is the Agent.  There is nothing on record to show his responsibility.  The complainant has not claimed any relief against the O.P.No.2.  The learned advocate for the complainant has placed reliance on the judgment of our State Commission in First Appeal No.A/07/1543 between Bajaj Allianz Insurance Company Limited –Versus- Smt.Sangita Manohar Patil & Ors. decided 31^st January, 2013.  But, the facts before us are totally different.  Therefore, the abovecited judgment is not applicable to this complaint.  Hence, we proceed to pass the following order.

ORDER

1. Complaint stands dismissed.
2. Partiers are left to bear their own costs
3. Inform the parties accordingly.

Pronounced

Dated 30^th May, 2014