FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed this case U/s 12 of CP Act, 1986.
The fact of the case in brief is that he purchased the policies in question from the OPs 1 and 2 through their agent i.e. OP-3.
The complainant further stated that the OP-3 being the agent or representative of OPs 1 and 2 approached the complainant for purchasing different products of life insurance policies. The complainant being convinced by the approach of OP-3 purchased the following subject policies being policy No. 13234863 dated 13.01.2010 premium Rs. 12,000/- sum assured Rs. 1,00,000/- plan ICICI Pru Assured Wealth- Super in his name, another policy being No. 13536630 dated 09.03.2010 plan ICICI Pru Assured Wealth- Super Premium of Rs. 12,000/- sum assured Rs.1,00,000/- and the third subject policy being policy No. 05967540 dated 22.08.2007 premium of Rs. 24,000/- sum assured Rs. 1,20,000/- plan Invest Shield Cash Back . So, the complainant purchased three subject policies on payment of premium in total of Rs. 48,000/-.
It is alleged that at the time of purchasing the policies, the OP-3 assured the complainant that the subject policies are only for “One Time Payment” of the premium agreed to deposit the said “One Time Premium” to OPs 1 and 2 through the OP-3 as the authorized agent/broker of the OPs 1 and 2 with a hope that the OPs 1 and 2 will issue the policy subject to that effect. The OP-3 collected the blank proposal form in respect of above three subject policies only duly signed by the complainant along with the premium amount for the above mentioned policies. Subsequently, the complainant received the documents in respect of three afore mentioned policies and after going through said records, it is found that the said policies are not concerned with “One Time Payment” but it is a recurring premium deposit for term of 20 year under the payment mode annual. The photocopy of subject policies are annexed hereto A, A1 and A2. when the complainant found that it is not possible for him to run the policies and to deposit the premium for long 20 years then he requested the OP-3 to cancel the subject policies as stated above and also requested the OPs 1 and 2 to cancel the afore mentioned policies in question and to return back the deposited amounts . The OPs assured the complainant that they will refund the deposited amount after lapse of 10 years along with proportionate rate of interest of policies. thereafter the complainant suddenly received three letters dated 01.03.2018 wherein the OPs refused to refund the payment in respect of subject policy but they offered part payment only of Rs. 6,508.97/- only in respect of policy No. 05967540 dated 22.01.2007 out of total premium of Rs. 24,000/-. The complainant made several communication in writing to the OPs which are annexed herewith as annexure B1, B2 and B3.
It is further case of the complainant that this forum has ample jurisdiction to try this case and the cause of action arise on 01.03.2018 on the date of receipt of offer letter by the complainant. The OP did not refund the premium amount paid by the complainant which compelled the complainant to file this case with a prayer to give direction the OPs to refund the deposited total amount of Rs 48,000/- along with interest and also give direction to the OPs for giving compensation of Rs. 1,00,000/- to the complainant for harassment, mental pain and agony with cost of Rs. 50,000/- towards the litigation cost.
The OPs 1 and 2 appeared and contested this case by filing WV denying all the material allegations leveled against them. The OP-3 did not appear before this Forum and did not file WV. Hence, the case runs ex parte against him vide order dated 28.02.2020.
The OPs 1 and 2 stated in their WV that they are represented duly by the OP Company. It is the further case of the OPs 1 and 2 that the petition of complaint has no basis at all and it is not maintainable in the eye of law because the same is barred by limitation.
From the content of the WV submitted by the OPs 1 and 2 it appears that admittedly the disputed policies was issued to the complainant on 22.08.2007, 13.01.2010 and 09.03.2010 which were received by the complainant at his registered communication address in the month of August, 2007, January 2010 and March 2010 respectively. So, the cause of action if any for the subject policies began in the year 2010. It is alleged that the complainant did not approach the OP Insurance Co. regarding any discrepancies in respect of the policies in question within the “Free Look Period” in spite of having the policy documents and approached the Forum approximately after 9 years from the date of issuance of the policies which is simply barred by limitation.
It is further stated by the OPs 1 and 2 that the complainant purchased the policies in question from the OP-3 and the OP-3 is the right person to depend all allegation of mis-selling it is further stated by the OPs 1 and 2 that all the insurance brokers are governed by the provision of IRDA (Insurance Broker) Regulations, 2013. Thus, for any act on the part of any insurance broker, the insurance cannot be held liable or accountable in any manner. The contending OPs have issued the subject policies in conformity with the insurance proposal received by it. The complainant has no where alleged that he had not subscribed the policies or policies in question were issued without his consent or signature. Being prudent person the complainant should have purchased the subject policies after going through the terms and conditions of the policies and he could his signature thereon after understanding the terms and conditions clearly. So, the OP Insurance Co. were not under any obligation to issue the policies with any oral promises and assurances made by the OP-3 if any. Moreover, on receipt of the subject policies the complainant did not approach the OP insurance co with any discrepancies regarding the benefits payable or any other terms and conditions in respect of the policies during the Free Look Period. so it is implied that he had agreed to all the terms and conditions of the policies. Under such condition both the parties to the subject polices are bound by every terms and condition of the subject policies and in that case the OPs 1 and 2 that the OP Insurance Co. is not liable to refund the premium as prayed for by the complainant in his petition of complaint because there was no deficiency of service or unfair trade practice on the part of the contending OPs. On the other hand there was no cause of action on the part of the complainant because the case is barred by limitation; hence, the case is liable to be dismissed in the interest of justice.
In view of above stated pleadings the point of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case?
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainant entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the facts and circumstances of the case it is found that this Forum has got the ample jurisdiction to try this case both territorial and pecuniary.
It is alleged by the contending OPs that there is / was no cause of action on the part of the complainant to file this case but the complainant claimed the refund of the premium paid by him to the OPs and that was rejected by the OP Insurance Co. vide his letter dated 01.03.2018. So cause of action run on and from 01.03.2018 and the complainant has filed this case on 17.12.2019 which is well within the period of limitation and there was sufficient cause of action to file this case from which it is held by the Forum that there was sufficient cause of action and the case is filed well within the period of limitation.
Admittedly, the complainant purchased the subject policies being policy nos. 13234863 dated 13.01.2010, 13536630 dated 09.03.2010 and 05967540 dated 22.08.2007 from the OP Insurance Co. on payment of required premium under impression that it was “One Time Premium” as stated by the OP-3, the insurance brokers of the OPs 1 and 2. As and when the complainant purchased the policies in question from the OP-3 on payment of required premium either “One Time” or “Recurring” for getting service or benefit since then he is the consumer within the ambit of Consumer Protection Act, 1986.
In view of the discussion made above, it is held by this forum that the complainant is a consumer as per Consumer Protection Act, 1986.
Let us see whether there was any deficiency in service on the part of the OPs or not. It is claimed by the complainant in his petition of complaint that the OP-3 i.e. the insurance broker allured him that the policy if he purchased the policy on payment of required premium i.e. the “One Time Premium” which have been annexed as A, A1 and A2. the certificates of the policies being Nos. 13234863 dated 13.01.2010, 13536630 dated 09.03.2010 and 05967540 dated 22.08.2007 but after getting the documents issued by the OPs-1 and 2 the complainant came to know that the premium was actually a recurring premium for terms of 20 years under the payment mode “Annual” instead of “One Time Payment” which was next to impossible for him to continue for long 20 years then and there the complainant approached the OPs-1 and 2 for cancellation of the three policies in question and to return back the deposited amount of premium of Rs.12,000/-, Rs.12,000/- and Rs.24,000/- in total Rs,48,000/- only. But the OPs offered as a part payment only for Rs.6,508.97 related to policy no. 05967540 dated 22.08.2007 out of total premium of Rs.24,000/- only.
From the materials on record it is evident that the complainant made contact with the OPs on several occasions in writing and the annexure of those letters have been annexed as B1, B2 and B3. But the approach of the complainant was repudiated by the OPs vide letter dated 01.03.2018. Without having any other alternative, the complainant served the Advocate’s notice to the OPs but in vain. Then he compelled to knock the door of this Forum for getting relief. Such conduct of the OPs as they did not pay any heed to the appeal of the complainant and tried to ignore the prayer of the complainant taking plea that to OPs-1 and 2 have no obligation for any sort of misconduct of the policy broker i.e. the OP-3. It is the admitted fact the OP-3 was the policy broker of the OP-s1 and 2. Under such circumstances it is the vicarious liability of the OP1 and 2 being the master of the OP-3 and they cannot evade from their responsibility.
On the basis of the discussion made above, it is the view of the Forum that OP-1 and 2 are equally responsible with the OP-3 for mis-selling the subject policies to the complainant by giving him wrong impression that the premium is “One Time Premium” instead of “Recurring” for a period long of 20 years. Such conduct should be turned as deficiency in service and unfair trade practice on the part of the OPs and they are liable to refund the deposited amount paid by the complainant of Rs.48,000/- only after deducting 10% service charge and are also liable to pay compensation to the complainant amounting to Rs.30,000/- only along with litigation cost of Rs.5,000/- only.
In a nutshell in view of the discussion made above it is observed by this Forum that the complainant could be able to prove the deficiency in service beyond all reasonable doubt against the OPs and is entitled to get the relief as prayed for.
All the issues are considered and decided favorably to the complainant
The case is properly stamped.
Hence,
Ordered
that the case be and same is decreed on contest against the OPs-1 and 2 and on exparte against the OP-3 with cost of Rs. 5,000/- only.
The complainant do get the decree as prayed for.
The OPs are directed to refund the premium paid by the complainant for the three subject poleis amounting to Rs.48,000/- in total to the complainant after deduction 10% as service charge either jointly or severally within a period of 45 days from the date of this order.
The OPs are further directed to pay compensation of Rs.30,000/- (Rupees Thirty thousand) only to the complainant along with litigation cost of Rs.5,000/- (Rupees Five thousand) only either jointly or severally within 45 days from the date of this order i/d the complainant will be at liberty to execute the decree as per law in a separate proceedings.
Let a copy of this order be handed over to the parties free of cost.
