Date of Filing : 30.09.2021
Date of Disposal: 27.04.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. P.VINODH KUMAR., B.Sc. B.L., ......MEMBER-I
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.47/2021
THIS THURSDAY, THE 27th DAY OF APRIL 2023
1.Mr.A.Senthil Kumar,
No.1347, Golden Colony,
Anna Nagar West Extenion,
Padi, Chennai 600 050.
2.K.R.Soundaryabala,
No.1347, Golden Colony,
Anna Nagar West Extension,
Padi, Chennai 600 050. .........Complainants.
//Vs//
Kotak Mahindra Bank Limited,
Rep. by its Branch Manager,
No.2, Raj Complex,
Mogappair West Main Road, Chennai 600 037. ...Opposite party.
Counsel for the complainants : M/s.R.Saravanan, Advocate.
Counsel for the opposite party : Mr.A.R.Poovannan, Advocate.
This complaint is coming before us on various dates and finally on 11.04.2023 in the presence of M/s.R.Saravanan counsel for complainant and Mr.A.R.Poovannan counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in non-cancellation of the insurance policy along with a prayer to direct the opposite party to pay a sum of Rs.4,18,000/- towards the policy premium paid and to pay a sum of Rs.1,10,000/- towards compensation for the mental agony and hardship caused to the complainant.
Summary of facts culminating into complaint:-
It was the case of the complainants that the insurance policy was taken by them under the name of KOTAK ASSURED INCOME ACCELERATOR. The 1st complainant had paid 1st year premium amount of Rs.2,90,000/- on 21.09.2020 and the 2nd complainant had paid 1st year premium of Rs.2,09,000/- on 29.09.2020. First policy was taken on 21.09.2020 in the name of 1st complainant and the 2nd policy was taken on 29.09.2020 in the name of 2nd complainant. The free look period condition was not communicated to the complainants at the time of taking policy. The policy document was delivered to the complainant on 14.10.2020 which was after the 15 days of free look period. The complainant received the policy document on 14.10.2020. Policy document of K.R.Soundarayabala nominee was mentioned in the name of A.Senthil Kumar as a father relationship. However, in policy document of A.Senthil Kumar nominee relationship of K.R.Soundarayabala was mentioned as spouse. Thus comparing both policyholder documents relationship was entered in an incorrect manner. The complainants never intended to purchase the “KOTAK ASSURED INCOME ACCELERATOR PLAN”. At the time of insurance taken the Branch Manager of opposite party had not communicated to the complainant about the Free Look Period Condition. The complainant had not taken the insurance policies with his free will only. On instigations by the opposite party the policies were taken by them. Complainants came to know from his well known person, about the Free Look Period regarding the cancellation of the policy. After some days when he approached the Branch Manager for cancellation he rendered false information and misrepresented the complainant that he could cancel the policy at any time. The complainant was forced to take the second insurance policy in the name of his relative K.R.Soundaryabala on 29.09.2020. Therefore the complainant sent an email to the opposite party to cancel the policy but in the reply letter from the opposite party it was stated that they were unable to comply with the request. Thus the complainants sent a legal notice to cancel the insurance policy and return the premium amount paid by the complainant on 30.07.2021 but the opposite party was not willing to do so. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to pay a sum of Rs.4,18,000/- towards the premiums paid and to pay a sum of Rs.1,10,000/- towards compensation for the mental agony and hardship caused to the complainant.
Crux of the defence put forth by the opposite party:-
The opposite party filed version disputing the complaint allegations contending interalia that as per the request of the complainant, the opposite Party being the Corporate Agent of Kotak Life Insurance Company Limited, the Kotak Assured Income Accelerator Insurance Plan was given to the complainant viz, Policy No. 74403010 to A.Senthil Kumar, Policy No.74414879 to K.R.Soundaryabala by Kotak Life Insurance upon payment of a total premium of Rs.4,18,000/-. The Complainant signed up for the Insurance Policies after clearly understanding the terms and conditions of the policies and requisite documents were signed in this regard. The Insurance Policies were issued on 21.09.2020 and 29.09.2020respectively by the Kotak Life Insurance Company Limited after verification of all details, documents and acquiring the free consent of the Complainant. The opposite party only provides assistance to its customers in obtaining the insurance policies by completing the required formalities and forwarding the documents to Kotak Life Insurance. The policies were issued by Kotak Life Insurance upon independent verification of documents. Besides verification of documents, the personal verification through phone call was also done by the Kotak Life Insurance, wherein the consent of the customer for the policy was recorded. The complainant has not approached Opposite Party within the free-look period with any grievance or with the intention to cancel the insurance policies, hence the insurance policies were continued as per the Terms and Conditions agreed between the complainant and Kotak Life Insurance. Thus the Opposite party bank is not in a position to cancel the insurance policies as requested by the complainant. The same was also conveyed to the complainant vide email dated 06.05.2021 by Kotak Life Insurance company. The complainants gave consent for Kotak Insurance policy and the Complainant had opted the said insurance policy at their own free will and the formalities for the said policy was duly completed by the Complainant. The policy documents were delivered to the Complainants on 14.10.2020, 10.10.2020 respectively vide POD No. 37551570070 & 37551602955 and moreover the free look period would start from date of receipt of the Policy documents, and hence, the complainant has not raised any complaint within the free look period or within 15 days from the receipt of the Policy documents in accordance with the term and conditions of the Insurance Policy. Opposite party is not the competent authority for the decision of the complainants insurance claim and the complaint is bad of MIS JOINDER of Party and also for NON JOINDER of Necessary party. Thus there is no unfair trade practice on the part of this Opposite party in assisting the complainants in getting the insurance policy. Thus they sought for the complaint to be dismissed.
The complainant had filed proof affidavit and documents Ex.A1 to Ex.A12 were marked on their side. On the side of opposite party proof affidavit was filed but no documents were submitted on their side.
Points for consideration:-
Whether the opposite party’s Bank could be made liable for the alleged act of non-cancellation of the insurance policy when requested by the complainant?
Whether the opposite party played fraud, coercion, misrepresentation amounting to unfair trade practice and deficiency in service? If so to what reliefs the complainant is entitled?
Points No.1&2:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Complainant’s email letter regarding cancellation of Insurance policy was marked as Ex.A1;
Reply letter received from the opposite party regarding the 1st complainant cancellation of insurance policy dated 22.02.2021 was marked as Ex.A2;
Reply letter received from the opposite party regarding the 2nd complainant cancellation of insurance policy dated 23.02.2021 was marked as Ex.A3;
Reply letter received from the opposite party regarding the 1st complainant cancellation of insurance policy dated 06.05.201 was marked as Ex.A4;
Legal notice issued by the complainant to the opposite party dated 30.07.2021 was marked as Ex.A5;
Reply received from the opposite party by the complainant dated 25.08.2021 was marked as Ex.A6;
Aadhaar Card of the 1st complainant was marked as Ex.A7;
Aadhaar Card of the 2nd complainant was marked as Ex.A8;
Policy holders details of the 1st complainant dated21.09.2020 was marked as Ex.A9;
Policy holders details of the 2nd complainant dated 29.09.2020 was marked as Ex.A10;
Policy document of 1st complainant dated 21.09.2020 was marked as Ex.A11;
Policy document of 2nd complainant dated 29.09.2020 was marked as Ex.A12;
Heard both parties and we perused the pleadings and evidneces submitted by them.
The crux of the arguments raised by the complainant is that they were forced and coerced to purchase the policy. Further they were not intimated about the free look period of the policy for the purpose of cancellation of the same. The main allegation against the opposite party is that they rendered false information and misrepresented to the complainant that the policy could be cancelled at any time. Also the policy terms and condition was not properly explained to them. Due to voluminous policy document it is hard to the policy holders to understand the complexities of the policy wordings and to understand what is the exact terms and conditions. Thus the opposite party Bank as an agent of the insurance company had mis-sold the policy to the complainant and thus had committed unfair trade and deficiency in service. Thus the complainant sought for complaint to be allowed along with compensation as prayed for.
On the other hand, the arguments of the opposite party mainly targeted that the complaint is bad for non-joinder of necessary party/ the Insurance Company. It is stated by them that they were only a facilitator between the complainant and the insurance company and they have no role/service in the policy obtained by the complainant. As the complainant is having an Account with them and the premium was paid through them the opposite party cannot cancel the insurance policy as requested by the complainant. Further the policy documents were delivered to the complainant on 14.10.2020 & 10.10.2020 respectively vide POD No.37551570070 & 37551602955 and the free look period had started from the said dates and after that the complainant cannot cancel the policy unilaterally. Thus there was not fraud or coercion on their part in the complainant obtaining the policy the opposite party sought for dismissal of the complaint.
On appreciation of the entire pleading and material evidences produced by both parties we are of the view that the complaint has to be dismissed for the following reasons:
When the policy was issued by the insurance company on payment of premium no liability could be fixed upon the bank/opposite party merely for the reason that they insisted the complainant to purchase the policy.
When the proper party for cancellation of the policy is the insurance company the complaint filed without joining the insurance company as a party to the proceedings is bad for non -joinder of the necessary party.
When the complainant had alleged that the bank had coerced, misrepresented and committed fraud misleading the complainant to purchase the policy, no evidence was let in by the complainant towards the same.
The allegations of the complainant with regard to coercion, fraud or misrepresentation could not be decided by the Consumer Commission as per the established legal principle laid down by the Apex Court in various decisions as consumer commission follow a summary procedure in deciding the complaints.
Beyond the free look period the cancellation sought for by the complainant could not be entertained by the Bank and even by the Insurance company themselves;
The complainant having opted for the policy by giving their offer for the insurance contract, now cannot go back and contend that they were not aware of the terms and conditions of the policy and hence not bound by the terms and conditions.
Once the premium is paid and the policy was taken the same could not be unilaterally cancelled at the whims of the complainant when the insurance contract binds both parties and when there is no option for cancellation of the policy.
When the cancellation request was given to the Insurance Company the complaint allegations regarding non-cancellation of the policy nor no assistance was rendered by the Bank towards cancellation of the policy could not be entertained in the present case as the Bank except in canvassing and payment of premium had played no role in the issuance of the policy to the complainant.
Thus for the above reasons we find no merits in the complaint and we answer the points 1 & 2 against the complainant and in favour of the opposite party holding that no deficiency in service and no liability could be imposed on the opposite party in the procurement of the Insurance policy by the complainant and in non cancellation of the policy.
Point No.3:-
As we have held above that the complainants failed to prove that the opposite party had committed any deficiency in service to the complainants, they are not entitled any compensation from the opposite party. Thus the point is answered accordingly.
In the result the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27th day of April 2023
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MEMBER-II MEMBER –I PRESIDENT
List of document filed by the complainant:-
Ex.A1 ................ Complainant’s email letter regarding cancellation of Insurance policy. Xerox
Ex.A2 22.01.2021 Reply letter received from the opposite party regarding the 1st complainant cancellation of insurance policy. Xerox
Ex.A3 23.02.2021 Reply letter received from the opposite party regarding the 2nd complainant cancellation of insurance policy. Xerox
Ex.A4 06.05.2021 Reply letter received from the opposite party regarding the 1st complainant cancellation of insurance policy. Xerox
Ex.A5 30.07.2021 Legal notice issued by the complainant to the opposite party. Xerox
Ex.A6 25.08.2021 Reply received from the opposite party by the complainant. Xerox
Ex.A7 ............... Aadhaar Card of the 1st complainant Xerox
Ex.A8 .............. Aadhaar Card of the 2nd complainant Xerox
Ex.A9 21.09.2020 Policy holders details of the 1st complainant Xerox
Ex.A10 29.09.2020 Policy holders details of the 2nd complainant Xerox
Ex.A11 21.09.2020 Policy document of 1st complainant Xerox
Ex.A12 29.09.2020 Policy document of 2nd complainant Xerox
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MEMBER-II MEMBER- I PRESIDENT
