O R D E R

Sri. P. Satheesh Chandran Nair (President):

                 Kuriakose Mathew, Elavinamannil and two others.  The complainant filed this complaint before the Forum u/s.12 of the Consumer Protection Act for getting the relief against the opposite parties. 

        2. The case of the complainant is as follows:-  The 1^st opposite party is carrying on his business in the field of insurance and the 2^nd opposite party is an agent of 1^st opposite party for carrying their business.  The complainant took a policy from the opposite parties vide policy No.02596238 under the head ING Life Insurance.  As per the contract of the insurance company, the complainant remitted a premium amount of Rs.10,000/- on 09.01.2013, which is mentioned in the policy document.  The complainant approached the opposite party to remit the 2^nd premium on 10.02.2014.  But the opposite party refused to accept the amount stating the reason that the account has been lapsed.  Moreover, the grace period is also over.  According to the complainant, the acts of the opposite parties are clear violation of the insurance act and C.P. Act which is a clear deficiency of service in Toto.  The complainant is a consumer within the definition of the side and eligible to best service from the opposite parties in this transaction.  That the sum assured in the said policy is Rs.1,03,473/- for which a premium of Rs.10,000/- is levied with incidental charges of the commencement of the policy.  At the time of entering to the contract as a consumer the complainant believed that the opposite party would render the service according to the contract entered between the parties.  The complainant is a handicapped all along his life with which he has taken the policy for his betterment of life.  According to the complainant, the opposite parties committed deficiency of service and he has to be compensated for the mental agony and also for physical future considering the circumstance of the case.  The complainant consent a notice on 18.02.2014 and it has not been properly replied.  Hence the complainant raise that the opposite party to pay a sum of Rs.10,000/- as the premium remitted towards the contract of insurance and also the complainant is to be qualified for damages and mental agony and torture suffered by him rounded up to Rs.15,000/-.  Cause of action of the complainant has arisen on 09.01.2013, the date in which the complainant taken the policy and remitted first premium on 10.02.2014.  The date envisaged as the maturity which is within the jurisdiction of this Forum.

                 3. In this case, opposite party 1 and 2 entered appearance.  But 2^nd opposite party has not filed version hence 2^nd opposite party declared as exparte on 29.09.2014.  1^st opposite party filed his version as follows:  According to the 1^st opposite party, the complaint is not maintainable either on legal grounds or on factual basis.  Complainant is guilty of suppressing the material and pertinent facts relevant for adjudication of the present complaint.  Opposite party admitted that the complainant is a subscriber of his insurance company and his policy commenced on 08.01.2013 and the maturity of that policy is on 08.01.2025.  The sum assured in the policy is an amount of Rs.1,03,475/- and the premium amount is Rs.9,213/-.  In the instant matter, the complainant remitted the 1^st premium amount of Rs.10,000/- on 09.01.2013 and the complainant needs to pay the next premium on 8^th January each year.  According to the 1^st opposite party, the complainant failed to pay first premium on 08.01.2014 or even after the grace period of 30 days.  The complainant admitted that he had approached the company only on 10.02.2014, i.e., after a grace period of 30 days.  That the complainant admitted that he is a handicapped which has not been intimated to the opposite party at the time of the commencement of the policy.  Section VII Health details of the life insured clause 69 to 77 mandates the policy holder to submit the health details.  The complainant suppressed this fact at the time of the commencement of the policy.  Hence the act of the complainant is a suppression of material fact.  As per clause 5.1.1 of the policy terms and conditions in case of any such misrepresentation of the proposal form the company have all right to forfeit the amount paid by the complain ant towards his policy and all other benefit payable under the policy could be seized.  According to the 1^st opposite party, the complainant had not approached this Forum with clean hands due to his suppression.  The complainant did not approach before the insurance company for a re-instation of the policy and directly approach before this Forum for a relief and the acts of the irregularity can be cured but not illegality.  Considering the above facts the complaint has to be dismissed by the Forum for meeting the ends of justice. 

                 4. On the basis of the pleadings of both sides, the following points has to be considered.

1. Whether the petition can be maintainable?
2. If it is maintainable what relief can be allowable?

        5. On the side of the complainant, complaint himself examined as PW1 in lieu of his chief examination he filed proof affidavit along with 3 documents.  The original policy certificate is produced before this Forum i.e. marked as Ext.A1.  Ext.A2 is the returned registered notice and Ext.A3 is the office copy of the advocate notice.  The evidence of the 1^st opposite party consists of his proof affidavit and Ext.B1 to B4.  The evidence of the complainant and 1^st opposite party closed and subsequently, both the parties were heard.

         6. Point No.1:- The contention of the 1^st opposite party is that this complaint is not maintainable since the complainant is not comes under the definition clause of consumer as per the act.  We peruse the pleadings of both side and heard the argument raised by both side.  It is clear that this complaint is comes under the purview of consumer as defined in C.P. Act. The 1^st point found accordingly.

         7. Point No.2:- When we examine the complaint filed by the complainant and the version of 1^st opposite party and exhibits marked on the side of the complainant and opposite party we are come to a conclusion as follows:- When we read the pleading of the complaint as well as the chief affidavit, it is clear that he is a subscriber of insurance policy run by the opposite party and he paid 1^st instalment premium of Rs.10,000/- on 09.01.2013.  As an evidence of his case as a subscriber of the policy we can clearly rely on Ext.A1 dated 08.01.2013 Page No.11.  As per Ext.A2, it is seen that a registered notice has been sent by the complainant to the opposite party but it is return as unserved.  Ext.A3 is the office copy of the advocate notice dated 18.02.2014 sent to the opposite party.  When we examine the contention raised by the complainant through his pleading and his proof affidavit it is seen that he is approached before the opposite party for renewal of the premium on 10.02.2014, i.e. only 2 days after the stipulated time.  The learned counsel appearing for the complainant submitted that it is the duty of the opposite party to inform the date of premium to the complainant but when we examined the opposite party as DW1, he has not adduced any evidence to show that the opposite party informed the date of instalment to the complainant through any letter or notice etc. or even orally.

         8. The main contention of the opposite parties through their version and the affidavit filed in lieu of the chief affidavit, it is seen that the reason for non-acceptance of the premium was happened due to the expiry of the due date i.e. 08.10.2013.  Another contention of the opposite party is that the complainant suppressed the material fact at the time of the commencement of the policy.  Opposite party contended that even though the complainant is a handicapped person he who suppressed that fact at the time of joining the policy with them.  As per clause 5.1.1 of the policy terms and condition such kind of misrepresentation can be amounted to forfeiture of the policy or it could be lapsed.  Moreover, the complainant has to approach this Forum with clean hand.  In order to prove their case along with chief affidavit at the time of the examination of opposite party as DW1 marked Ext.B1 to B4.  Ext.B1 is the authorization letter issued by CEO in favour of DW1.  Ext.B2 is copy of policy schedule which shows that the premium amount is Rs.9,213/- per year and the total sum is assured for an amount of Rs.1,03,475/-.  Ext.B3 is the terms and condition of the said policy.  Ext.B4 is a copy of proposal form signed by the complainant.  Though 1^st opposite party cross-examined by the counsel of PW1 nothing brought out to disbelieve his case.  It has to be seriously considered that at the time of cross-examination the opposite party has not raised any question regarding the policy condition which runs against the complainant.  When we consider the deposition of 1^st opposite party in cross-examination, a suggestive question asked for the complainant, “അറിയിപ്പ് നല്കാത്തതുകൊണ്ടാണ് പ്രീമിയം യഥാസമയം വാദിയ്ക്ക് അടയ്ക്കാന് കഴിയാഞ്ഞത് എന്നു പറയുന്നു?”  The answer is “അതേപ്പറ്റി എനിയ്ക്കറിയില്ല”.  The answer given by 1^st opposite party is clear evasion from his responsibility and moreover if there any condition laid down in Ext.B4 what prevented this DW1 to give a clear answer as per their defence.  When we peruse Ext.A1 document we have seen a clause in Page No.1 “we wish to inform you that, in case you are not satisfied with any of the terms and conditions of this insurance policy, ING Life Insurance gives you an option to cancel this policy within 15 days from the date of receipt of this policy.  You would need to write to us stating your reason for cancellation and return the original Policy Kit to any of our ING Life Insurance branches.  We will refund the premium amount paid by you towards this policy, after deducting applicable charges”.  In the instant case, the petitioner approached the opposite party and requested to accept the 2^nd premium after two days from the stipulated time.  But the opposite party was not in a position to accept it.  Apart from this, aggrieved by the approach of the opposite party the complainant have no alternative except to approach this Forum for redressing the grievance.  We come to a conclusion that as per the condition laid down in Ext.A1, which is already stated above the insurance company is liable to redress the grievances of the complainant.

         9. The opposite party emphasized the suppression of the actual fact i.e. the handicapped physical condition of the complainant at the time of admission to the policy.  At this juncture, the suppression of the physical disability is not a fact to be considered.  The non-acceptance of the premium caused much difficulty and mental agony to the complainant.  Considering the above finding, we have a clear view that the opposite party committed deficiency in service and the opposite party is liable to be answered.  Therefore issue No.2 found in favour of the complainant.

         10. In the result, this complaint is allowed as follows:-

1. The opposite parties are directed to return the premium amount of Rs.10,000/- (Rupees Ten Thousand only) to the complainant and also liable to pay an interest of 10% to the complainant from 09.01.2013 till the date of realization.
2. The opposite parties are directed to pay a compensation of Rs.5,000/- (Rupees Five Thousand only) with an interest of 10% to the complainant from the date of this order onwards.
3. The opposite parties are directed to pay Rs.2,000/- (Rupees Two Thousand only) with interest of 10% as the cost of this case to the complainant from the date of the order.

        Declared in the Open Forum on this the 30^th day of January, 2015. 

                                                                          (Sd/-)

                                                       P. Satheesh Chandran Nair,                

                                                                               (President)

Smt. K.P. Padmasree (Member – I)        :      (Sd/-)

Smt. Sheela Jacob (Member – II)           :      (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Kuriakose Mathew

Exhibits marked on the side of the complainant:

A1  :  Policy Certificate dated 11.01.2013 issued by the 1^st opposite  

         party in the name of the complainant

A2  :  Returned Registered Notice

A3  :  Photocopy of the advocate notice dated 18.02.2014 sent by  

         the complainant to opposite party.

Witness examined on the side of the opposite parties:

DW1  :  Varghese. N.G.

Exhibits marked on the side of the opposite parties:

B1  :   Authorization letter issued by CEO. 

B2  :   Photocopy of Policy Schedule. 

B3  :   Photocopy of terms and condition of the policy. 

B4  :   Photocopy of Proposal Form.

                                                                                    (By Order)

                                    (Sd/-)

                                                                        Senior Superintendent.

Copy to:- (1) Kuriakose Mathew, Elavinamannil, Omalloor.P.O.,

                    Pathanamthitta – 689 647.

               (2) Managing Director and CEO, ING Vysia Life Insurance 

                    Co. Ltd., Gold Hill Square, 1^st Floor – 690,

            Hosur Main Road, Bangalore 560 068.

               (3)  ING Vysia Bank Ltd., MGM Towers,

            Opp. KSRTC Bus Stand, Pathanamthitta.

       (4)  The Stock File.