Order by
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that she purchased policy bearing No. 20803145 from the Opposite Parties having sum assured of Rs.12 lakhs with annual premium of Rs.1,20,000/- and accordingly, the Complainant deposited Rs.1,20,000/- with the Opposite Parties on 07.03.2017. The Complainant alleges that at the time of purchase of the policy, she completed all the formalities and also filled the correct particulars in the form with the Opposite Parties. But the Opposite Parties have sent the policy in question with wrong particulars of complainant as Ms.Swaran Kaur S/O Masss Singh, Galoti Road, Kot Ise Khan, District Moga, whereas the correct identity of the Complainant is Swaran Kaur wife of Chamail Singh. After receiving the policy in question, the Complainant immediately approached the Opposite Parties to make the necessary correction, but the Opposite Parties kept the matter pending on lame excuses and the Complainant was asked to deposit the second installment and thereafter, the necessary correct will be made in the policy. As per the directions of the Manager of the Opposite Parties, the Complainant deposited Rs.60,000/- on 09.04.2018 as part payment of the second installment, but till date, the Opposite Parties are lingering on the matter and did not make the correction in the policy till date and hence, the Complainant requested the Opposite Parties to refund the amount so deposited with them as she has no faith in the Opposite Parties, but they refused to admit the rightful claim of the Complainant. Hence this complaint is filed due to deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
- Opposite Parties be directed to refund the amount of Rs.1,80,000/- alongwith interest @ 12% per annum from the date of its respective deposits.
- Opposite Parties be also directed to pay Rs.50,000/- as compensation on account of compensation for causing her mental tension, harassment and agony besides Rs.5,000/- as costs of litigation and to grant any other relief to which this Commission deems fit and proper in the circumstances of the case.
2. After the notice served upon Opposite Parties, they appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable and averred that the Complainant has provided the incorrect and false address of the Opposite Parties and this District Commission has no jurisdiction to entertain the present complaint as the investment made under Unit Linked Policy is a speculative gain and speculative investment matter does not fall under the purview of the Consumer Protection Act and secondly, the Complainant has failed to approached this Commission with free look period and as per the terms and conditions of the said policy, the Complainant has waived off her right to seek cancellation of the subject policy. Actually, as per the information provided by the Complainant in proposal form, the subject policy in question was issued and after the receipt of the policy documents, the Complainant never approached the Opposite Parties for any rectification. The policy in question was issued on 07.03.2017 and at the time of issuance of the subject policy, the address that was provided by the Complainant in the proposal form was Swaran Kaur S O Massa Singh Galoti Road, Kot ise Khan, District Moga-142043 Punjab India and the same address was corroborated by the Pass Book submitted by the Complainant alongwith the proposal form as address proof and the same has been annexed with the Complainant herself alongwith the complaint. Therefore, accordingly as per the address so submitted by the Complainant, the Opposite Parties have issued the subject policy with the address of the Complainant. However, on 28.03.2017 the Complainant approached the Opposite Parties at the branch office with a request to update the address details and thereafter, the request of change in address of the Complainant was instantly adhere to and honored by the Opposite Parties and consequently, the same has been updated in the records of the Opposite Parties and hence, there is no deficiency in service on the part of the Opposite Parties. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove her case, the complainant has placed on record evidence her affidavit Ex.C1, copy of policy Ex.C2, copy of paper cutting mark-A and closed her evidence.
4. On the other hand, to rebut the evidence of the Complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Thejus Joseph Ex.OP2 & 3/1 and copies of documents Ex.OP2 & 3/2 to OP2 & 3/10 and closed the evidence on behalf of Opposite Parties No.2 and 3.
5. We have heard Sh.Chamail Singh attorney of the Complainant and the ld.counsel for the Opposite Parties, perused the written arguments of the Opposite Parties and gone through the documents placed on record.
6. During the course of arguments, Sh.Chamail Singh attorney of the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Further contended that the Complainant purchased policy bearing No. 20803145 from the Opposite Parties having sum assured of Rs.12 lakhs with annual premium of Rs.1,20,000/- and accordingly, the Complainant deposited Rs.1,20,000/- with the Opposite Parties on 07.03.2017. The Complainant alleges that at the time of purchase of the policy, she completed all the formalities and also filled the correct particulars in the form with the Opposite Parties. But the Opposite Parties have sent the policy in question with wrong particulars of complainant as Ms.Swaran Kaur S/O Masss Singh, Galoti Road, Kot Ise Khan, District Moga, whereas the correct identity of the Complainant is Swaran Kaur wife of Chamail Singh. Further contended that actually Massa Singh is father-in-law of Swaran Kaur complainant and the Opposite Parties have totally changed the relationship of the Complainant with her father-in-law by writing the word ‘son’ whereas Swaran Kaur is wife of Chamail Singh son of Massa Singh. After receiving the policy in question, the Complainant immediately approached the Opposite Parties to make the necessary correction, but the Opposite Parties kept the matter pending on lame excuses and the Complainant was asked to deposit the second installment and thereafter, the necessary correct will be made in the policy. As per the directions of the Manager of the Opposite Parties, the Complainant deposited Rs.60,000/- on 09.04.2018 as part payment of the second installment, but till date, the Opposite Parties are lingering on the matter and did not make the correction in the policy till date and hence, the Complainant requested the Opposite Parties to refund the amount so deposited with them as she has no faith in the Opposite Parties, but they refused to admit the rightful claim of the Complainant and hence the Complainant has prayed for the Redressal of her grievance.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the representative appeared on behalf of the Complainant on the ground that the Complainant has failed to approached this Commission with free look period and as per the terms and conditions of the said policy, the Complainant has waived off her right to seek cancellation of the subject policy. Actually, as per the information provided by the Complainant in proposal form, the subject policy in question was issued and after the receipt of the policy documents, the Complainant never approached the Opposite Parties for any rectification. The policy in question was issued on 07.03.2017 and at the time of issuance of the subject policy, the address that was provided by the Complainant in the proposal form was Swaran Kaur S O Massa Singh Galoti Road, Kot ise Khan, District Moga-142043 Punjab India and the same address was corroborated by the Pass Book submitted by the Complainant alongwith the proposal form as address proof and the same has been annexed with the Complainant herself alongwith the complaint. Therefore, accordingly as per the address so submitted by the Complainant, the Opposite Parties have issued the subject policy with the address of the Complainant. However, on 28.03.2017 the Complainant approached the Opposite Parties at the branch office with a request to update the address details and thereafter, the request of change in address of the Complainant was instantly adhere to and honored by the Opposite Parties and consequently, the same has been updated in the records of the Opposite Parties and hence, there is no deficiency in service on the part of the Opposite Parties.
8. Sh.Chamail Singh attorney of the Complainant has mainly contended that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. He has relied upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, it was held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, if it is admitted that the written version filed by the Opposite Parties is legal. Now come to the merit of the case. It is not the denial of the case of the parties that the Complainant has purchased the policy bearing No. 20803145 from the Opposite Parties having sum assured of Rs.12 lakhs with annual premium of Rs.1,20,000/- and accordingly, the Complainant deposited first annual installment of Rs.1,20,000/- with the Opposite Parties on 07.03.2017. The case of the Complainant is that at the time of purchase of the policy, she completed all the formalities and also filled the correct particulars in the form with the Opposite Parties. But the Opposite Parties have sent the policy in question with wrong particulars of complainant as Ms.Swaran Kaur S/O Masss Singh, Galoti Road, Kot Ise Khan, District Moga, whereas the correct identity of the Complainant is Swaran Kaur wife of Chamail Singh. On the other hand, ld.counsel for the Opposite Parties have repelled the aforesaid contention of the Complainant on the ground that at the time of issuance of the subject policy, the address that was provided by the Complainant in the proposal form was Swaran Kaur S O Massa Singh Galoti Road, Kot ise Khan, District Moga-142043 Punjab India and the same address was corroborated by the Pass Book submitted by the Complainant alongwith the proposal form as address proof and the same has been annexed with the Complainant herself alongwith the complaint. Therefore, accordingly as per the address so submitted by the Complainant, the Opposite Parties have issued the subject policy with the address of the Complainant. However, on 28.03.2017 the Complainant approached the Opposite Parties at the branch office with a request to update the address details and thereafter, the request of change in address of the Complainant was instantly adhere to and honored by the Opposite Parties and consequently, the same has been updated in the records of the Opposite Parties. But for the sake of arguments, if it is admitted that the Complainant has submitted the wrong address, but it is not the bar that one can not rectify his/ her mistake at the later stage on written submission, which the Complainant made immediately after receipt of the policy documents in question and she is wandering here and there to correct the address and for issuance of new policy in her favour from the last more than 3 years. Now what is the hitch for the Opposite Parties to issue her the policy of corrected address. It is impossible that a lady (complainant Swaran Kaur) can be a son of a person which is apparently written wrongly, and for the correction of the said address, what is the problem with the Opposite Parties to correct the same, which clearly proves the high-handedness, malafide and bad intention. Though the Opposite Parties has mentioned in the written reply that they have corrected the address in their record, but why till date, they have not issued the new policy of correct name in favour of Complainant. On the other hand, the Complainant has submitted before this District Commission that when the officials of the Opposite Parties are not listening the Complainant for correcting her name and for issuance of new policy at this initial, and at the time of maturity after a long year, who will listen and admit the rightful claim of the Complainant and hence, the Complainant has no faith in the Opposite Parties and she prayed for the refund of the deposited amount from the Opposite Parties.
10. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to its realization, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. Keeping in view the aforesaid facts and circumstances, we allow the complaint and the Opposite Parties are directed to refund the amount of Rs.1,80,000/- (Rupees 1,20,000/- + Rs.60,000/-) to the Complainant alongwith interest @ 8% per annum from the date of its respective deposit i.e. 07.03.2017 and 09.04.2018 respectively, till its realization. The Opposite Parties are also directed to pay lump compensation amounting to Rs.10,000/- to the Complainant on account of harassment and litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bhatinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
Dated: 16.04.2021.
