Punjab

Sangrur

CC/1017/2015

Bikram - Complainant(s)

Versus

Indusind Bank - Opp.Party(s)

Shri G.S.Shergill

27 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                     

                                                Complaint No.  1017

                                                Instituted on:    08.09.2015

                                                Decided on:       27.06.2016

 

1.     Bikram son of Babu Ram.

2.     Salma daughter of Bikram, both residents of H.No.353, Street No.4, Ward No.9, Dashmesh Nagar, Patiala Road, Sangrur.

                                                        ..Complainants

                                        Versus

1.     Indusind Bank Limited, Gaushala Road, Sangrur through its Branch Manager.

2.     AVIVA Life Insurance Company India Limited, Head Office: AVIVA Tower, Sector Road, Opposite DLF Gold Course, Phase-5, Sector 43, Gurgaon (Haryana) through its Managing Director.

                                                        ..Opposite parties

For the complainant  :       Shri G.S.Shergill, Advocate.

For OP No.1             :       Shri V.G.Johar, Advocate.

For OP No.2             :       Shri Jatinder Verma, Advocate.

 

 

Quorum:   Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : K.C.Sharma,Member.

 

1.             Shri Bikram and Salma complainants (referred to as complainant in short) have preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainant number 1 is having a saving bank account with the OP number 1 bearing account number 1001351749. It is further averred that the wife of the complainant, namely, Krishna Devi was having life insurance cover with the HDFC Standard Life Insurance Company and Aviva Life Insurance Company India Limited and the complainant was the nominee under the policies. It is further averred that unfortunately, the wife of the complainant number 1 Smt. Krishna Devi died on 24.10.2013 and as such, he received the insurance claim amounting to Rs.34.00 Lacs, which was lying in his account with the OP number 1.  Further case of the complainant is that the Branch Manager of OP number 1 along with Himanshu Johar visited the complainant offering to invest the amount in the FDR of the said amount, as such, they got three blank signed cheques from the complainant for making the FDRs. It is further averred that in the month of February, 2014, the OPs deducted an amount of Rs.11,00,000/- from the account of the complainant in lieu of issuing the FDR.  Further case of the complainant is that on 23.4.2014, the complainant number 1 visited the office of OP number 1 and then came to know that apart from the above amount, an amount of Rs.17,27,900/- has been illegally transferred from the account of the complainant number 1, as such the complainant number 1 requested the Ops to return the amount, but all in vain. The complainant also moved an application to SSP Sangrur for taking action against the officials of the bank, as such the matter was investigated by the police and then FIR number 177 dated 7.6.2014 was lodged by the police against the officials of OP number 1 as well as against the officials of Federal Bank Limited and others.  It is further averred that during investigation the complainant also came to know that an amount of Rs.11.00 Lacs which was deducted from the bank account of the complainant number 1 has been invested with the OP number 1 in the name of complainant number 1 and complainant number 2 for 15 years regular premium vide policy number 10101656, 10104660 and 10104661. It is stated that it was not possible for the complainant to pay such a huge amount as premium, more so when, he was working as a peon in the Indian Army at Sangrur and his salary is about Rs.30,000/- per month. It is stated that the OPs have illegally issued the policies to the complainants by misrepresentation. It is stated further that the complainant visited the officials of the Ops so many times for returning the amount, but all in vain. Thus, alleging deficiency in service on the part of the Ops, the complainant has prayed that the OPs be directed to refund him an amount of Rs.11.00 Lacs along with interest and further claimed compensation and litigation expenses.

 

2.             In reply filed by OP number 1, preliminary objections are taken up on the grounds that the complaint of the complainant is totally false and baseless, that the complaint is not maintainable, that the OP has no concern whatsoever with the working of OP number 2, as such the OP cannot be held liable for the act conduct and deficiency in any on the part of the OP number 2, that the complainant out of his sweet free will invested the amount in life insurance policy after going through the application form, offer document product brochure etc.  On merits, it is admitted that the complainant is having a saving bank account in question with it. It is denied that the officials of the Op number 1 lured the complainant to invest the amount with the OP number 2 as an FDR investment.  It is admitted that the FIR number 177/14 was registered at PS City Sangrur.   It has been sated that there is no role of the OP number 1 in investing the amount of the complainant with the OP number 2.  However, the allegations levelled in the complaint have been denied in toto. 

 

3.             In reply filed by OP number 2, legal objections are taken up on the grounds that the complaint is not maintainable in the present form, that the present complaint is misconceived, misleading and after thought, that the complainant has no cause of action, that the complainant has not come to the Forum with clean hands and that intricate questions of law and facts are involved in the present case and that the complainant is not a consumer of the OPs.  On merits, it is submitted that the complainants themselves shown their interest to purchase Life Insurance Plan of the OP and after understanding all the terms and conditions, they purchased Aviva Freedom Like Advantage Unit Linked Plan of the OP and filled the proposal form on 18.2.2014, 7.2.2014 and 19.2.2014 and the term of the plan was 15 years and as such, the Ops issued the policies in question to the complainants. It is further submitted that as per the provisions of the insurance Act and as per the policy document, there is specifically mentioned that the policy holder has an option to reconsider the policy within a free look period of 15 days. It is further stated that in unit linked plans, the investment risk in investment port folio is borne by the policy holder. It is stated further that the complainants have not suffered mental agony, tension and harassment due to the Ops. It is stated further that the proper services have been provided to the complainants and there is no deficiency in service on the part of the Ops. Lastly, the OP has prayed for dismissal of the complaint with special costs.

 

4.             The learned counsel for the complainant has produced Ex.C-1 to Ex.C-3 copies of policy account statement, Ex.C-4 copy of FIR, Ex.C-5 copy of account statement, Ex.C-6 and Ex.C-7 affidavits and closed evidence. On the other hand, the learned counsel for the OP number 1  has produced Ex.OP-1/1 affidavit and closed evidence. The learned counsel for OP number 2 has produced Ex.OP2/1 copy of proposal form, Ex.OP2/2 copy of certificate, Ex.Op2/3 copy of statement of account, Ex.OP2/4 copy of DD, Ex.OP2/5 copy of list of documents, Ex.OP2/6 copy of declaration, Ex.OP2/7 copy of brochure, Ex.OP2/8 copy of certificate, Ex.OP2/9 copy of report, Ex.Op2/10 copy of receipt, Ex.Op2/11 copy of detail, Ex.OP2/12 copy of letter, Ex.OP2/13 copy of illustration, Ex.OP2/14 copy of terms and conditions of policy, Ex.Op2/15 copy of PAN card, Ex.OP2/16 copy of declaration, Ex.OP2/17 copy of ID card, Ex.OP2/18 copy of declaration, Ex.OP2/19 copy of ID proof, Ex.OP2/20 copy of declaration, Ex.OP2/21 copy of debit clearing, Ex.OP2/22 copy of detail, Ex.OP2/23 copy of statement, Ex.OP2/24 copy of declaration, Ex.OP2/25 and Ex.OP2/26 copies of vouchers, Ex.OP2/27 copy of jamabandi, Ex.OP2/28 copy of detail, Ex.OP2/29 copy of declaration, Ex.OP2/30 copy of information, Ex.OP2/31 copy of report, Ex.OP2/32 copy of terms and conditions, Ex.OP2/33 copy of proposal form, Ex.OP2/34 copy of certificate, Ex.OP2/35 copy of statement of account, Ex.OP2/36 copy of DD, Ex.OP2/37 copy of letter, Ex.OP2/38 copy of list of documents, Ex.OP2/39 copy of certificate, Ex.OP2/40 copy of declaration, Ex.OP2/41 copy of form number 61, Ex.OP2/42 copy of declaration, Ex.OP2/43 copy of brochure, Ex.OP2/44 copy of letter, Ex.OP2/45 illustrations, Ex.OP2/46 copy of terms of policy, Ex.OP2/47 copy of voucher, Ex.OP2/48 copy of jamabandi, Ex.OP2/49 to Ex.OP2/51 copies of letters, Ex.OP2/52 copy of ID card, Ex.OP2/53 and Ex.OP2/54 copies of declaration, Ex.OP2/55 copy of DMC, Ex.OP2/56 copy of declaration, Ex.OP2/57 copy of debit clearing, Ex.OP2/58 copy of statement, Ex.OP2/59 copy of declaration, Ex.OP2/60 and Ex.OP2/61 copies of vouchers, Ex.OP2/62 copy of jamabandi, Ex.OP2/63 and Ex.OP2/64 copies of declaration, Ex.OP2/65 copy of report, Ex.OP2/66 voucher, Ex.OP2/67 affidavit and closed evidence.

 

5.             We have very carefully perused the pleadings of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

6.             Keeping in view of the arguments of the learned counsel for the parties and on perusal of the documents placed on record, the Forum is of the opinion that the complainant comes under the definition of ‘consumer’ and this Forum has the jurisdiction to entertain and decide the present complaint.

 

7.             The version of the complainant is that the Branch Manager of OP number 1 visited the complainants and allured them for making the investment by way of FDR. The OP number 1 got the signatures of the complainants on certain blank papers and also obtained three cheques for making the FDR in the month of February, 2014 and an amount of Rs.11.00 Lacs was deducted from the account of the complainant. The complainant visited the office of OP number 1 on 23.4.2014 and came to know that apart from Rs.11.00 Lacs a sum of Rs.17,27,900/- has also been illegally transferred from the account of the complainant number 1. When the officials of OP number 1 refused to refund the amount, then police report by way of FIR was also lodged against the OP number 1 and others.  Then during investigation it came to the light that a sum of Rs.11.00 Lacs which was deducted for the FDR has been invested in three policies in the name of the complainants for 15 years.

 

8.             The OP number 1 in the written reply has submitted that the complainants have taken policies from OP number 1 and as such the complainant is not a consumer of OP number 1.  Further the OP number 1 has admitted that the complainant number 1 has a saving bank account number 100013517491 with them.

 

9.             The OP number 2 has submitted that the complainants have purchased the policies of their own  and if the policies were not acceptable to them, then they could have been returned the policies within the 15 days free look period.

 

10.           Now, the question arises whether the complainants obtained the policies of their own or whether the OP number 1 got their signatures of the policy forms instead of issuing FDR to the complainants.

 

11.           We have gone through the documents Ex.OP2/8 and we find that the OP number 1 is the corporate agent under licensing of insurance and its branch manager Rajan Soni is the certificate holder for doing insurance business. So, it is clear that the OP number 1 was also doing insurance business besides other banking activities.  The Manager of OP number 1 has verified the PAN number of the complainant number 1 and the same is exhibited by OP number 2 as document Ex.OP2/15.  Besides this, some other documents have also been counter signed by the Manager of the OP number 1 and this all shows that it was the OP number 1 who instead of issuing the FDR of the complainants have invested their money in the insurance policies even without caring that how the complainants, who have virtually no income will deposit the annual premium of the policies. This shows that how the OP number 1 in order to earn lucrative commission has played with the money of the complainants.  The Ops have not placed any document on record to show that the policies and other terms and conditions were ever supplied to the complainants. So, when the policies have not been supplied to the complainants, then the question of returning the policies within  15 days free look period does not arise at all.

 

12.           The learned counsel for the complainant has submitted TDS form number 16 of the complainant number 1 in which the complainant number 1 is working as ‘Safaiwala’ and has a very small income. So, the OPs have invested the amount of the complainant even without verifying the income of the complainant. The learned counsel for the complainant has further submitted that there is no land in the name of the complainant whereas the OPs have shown that the complainant owns the landed property.  This shows that the OPs have gone to the farthest extent just to earn commission on the policies.

 

13.           The learned counsel for the complainant has placed on record the judgments of the Hon’ble State Consumer Disputes Commission, Punjab, delivered in First appeal Number 341 of 2013, decided on 7.1.2016 titled as Life Insurance Company Limited versus Manoj Kumar, wherein it has been held that “the policy was unit linked plan. No free look period option was exercised by the complainant in this case. The District Forum ordered the refund of the amount by deducting 10% amount therefrom under surrender charges on the basis of Regulation 2010. The counsel for the appellant argued before us that Regulation 2010 shall come into force on the date of their publication in the official gazette and shall apply to all products of Unit Linked Life Insurance cleared by the authority thereafter. The notification of the Regulation 2010 was published in the year 2010 and the complainant purchased the policy on 11.02.2010, vide receipt Ex.C-1. It cannot be said that the policy was purchased prior to 2010 and hence above notification in the year 2010 can levy the discontinuance charges as per Regulation No.8. i.e. surrender charges of Insurance Regulatory and Development Authority (IRDA) and Surrender Charges Regulation 2010.  In the circumstances of the case; the order passed by the District Forum under challenge in this case cannot be said to be illegal or erroneous because there is no proof of courier receipt regarding service of insurance policy documents on the complainant in this case, as urged by the Op now appellant.   As a result of our above discussion, we do not find any merit in the appeal and the same is hereby dismissed”.  As such, we are of the considered opinion that this citation is fully applicable in the present case as well.  As such, we further find it to be a clear cut case of deficiency in service on the part of the OPs.  The learned counsel for the complainant has further cited ICICI Prudential Life Insurance Company Limited versus Preeti Prasad 2015(2) CLT 113(NC), wherein it has been held that since the insurance company could not place any document on record to substantiate that policy document was actually sent to the complainant and was received by him. There was no question of availing free look period of 15 days and the complainant cannot be bound by terms and conditions of the policy document.  In the present case also, the Ops have not produced any documentary evidence on record to show that the policy document was sent to the complainant and the same was actually delivered to the complainant.  As such, there was no question of availing free look period of 15 days in the present case.

 

14.           The learned counsel for the complainant has further cited a judgment of the Hon'ble National Commission pronounced in First Appeal No.1173 of 2014 titled as Paramjit Kaur versus Aviva Life Insurance Company Limited, wherein in para number 5, it is mentioned that "perusal of disputed policy reveals that it was named as Life Long Unit Linked Fund and sum insured was Rs.14,00,000/- and regular annual premium amount was Rs.1,00,000/-. It also covered accidental benefits of Rs.14,00,000/-. Learned State Commission observed that complaint was not maintainable in the light of judgment of this Commission in III (2013) CPJ 203(NC) Ram Lal Aggarwalla versus Bajaj Allianz Life Insurance Co. Ltd. and another, whereas, perusal of aforesaid judgment reveal that in the aforesaid case Unit Gain Super Diamond Policy was taken with Rs.2,00,000/- annual premium for 24 years. Policy in the aforesaid case was for investment purposes whereas, disputed policy is for covering life as well as accidental benefit and this policy cannot be equated with policy in the case of Ram Lal Aggarwalla (Supra). Learned State Commission has committed error in dismissing complaint as not maintainable as policy was for  investment in speculative business. Learned counsel for the petition has placed reliance on judgment of this commission in 2012 Law Suit (CO) 606- Met Life India Insurance Co. Ltd. versus Addanki Satyanarayana in which claim for unit linked policy with life insurance was held maintainable before Consumer Fora, though, in that policy maturity value was Rs.2,51,73,756/- and death benefit was only Rs.5,02,000/- whereas in the case in hand, sum assured was Rs.14,00,000/- along with accidental benefits of same amount. Thus, it becomes clear that complaint filed by the  complainant was maintainable before learned State Commission and learned State Commission committed error in dismissing complaint as not maintainable and appeal is to be allowed.

 

15.           So, keeping in view of the facts mentioned above, we find that the Ops are not only deficient in service, but also indulged in unfair trade practice and as such, we allow the complaint of the complainant and direct the OPs  to refund to the complainant a sum of Rs.11,00,000/- (Rupees Eleven Lacs only) along with interest @ 9% per annum from the date of filing of the present complaint i.e. 08.09.2015 till realisation. The OPs are further directed to pay to the complainant an amount of Rs.25,000/- on account of compensation for mental tension agony and litigation expenses.

 

16.           This order of ours be complied with within a period of 30 days of receipt of copy of this order. A copy of this order be issued to the parties free of cost. File be consigned to records.

 

                Pronounced.

                June 27, 2016.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                   Member