Haryana

Karnal

CC/251/2018

Vijay Bhatnagar - Complainant(s)

Versus

Kotak Mahindra Life Insurance Company Limited - Opp.Party(s)

V.K. Sharma

12 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                          Complaint No. 251 of 2018

                                                          Date of instt.01.10.2018

                                                          Date of Decision 12.09.2019

Vijay Bhatnagar, age 64 years wife of Shri Surinder Mohan Bhatnagar, resident of House no.603, Sector-6, Urban Estate Karnal.

                                                                                …….Complainant

                                                Versus

1. Kotak Mahindra Life Insurance Co. Ltd. SCO no.250, 1^st floor, Sector-12, Urban Estate, Karnal through its Manager/authorized person.

2. Kotak Mahindra Old Mutual Life Insurance Ltd. now Kotak Mahindra Life Insurance Co. Ltd., Regd. Office 2^nd floor, plot no.C-12, G-Block, BKC, Bandra (E), Mumbai-400051.

                                                                        …..Opposite Parties.

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

      Dr. Rekha Chaudhary……Member

 

Present:  Shri V.K. Sharma Advocate for complainant.

                 Shri Vineet Rathore Advocate for opposite parties.

 

                   (Jaswant Singh President)

 

ORDER:                    

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant is an old customer of Kotak Mahindra Bank and also have as many as three saving accounts and three investment accounts in her name and in the name of her husband as well as her daughter. The husband of the complainant has also purchased two insurance policies from the OPs. As detailed below:

 

Sr.         A/c no.            Name of a/c holder                           Nature of account

1.         979564             Mrs. Vijay Bhatnagar                         Investment account.

2.         971827             S.M. Bhatnagar                                     -do-

3.         1013513           Mrs. Prairna                                         -do-

4.         5511226963      Mrs. Vijay Bhatnagar                            saving a/c

5.         0011232902      S.M. Bhatnagar                                    -do-

6.         4811809180      Mrs. Prairna                                         -do-

7.         09515574         S.M. Bhatnagar                                Insurance policy

8.         09558998         S.M. Bhatnagar                                   -do-

 

At the time of opening of above accounts and purchase of policies, photocopies of Aadhar card, PAN card and other documents were supplied to the bank for the purpose of identity proof and residence proof as it was mandatory as per the rules of the bank, showing their address House no.603, Sector-6, Urban Estate, Karnal. On 02.01.2018 Shri Abhishek agent of OP no.1 approached the complainant and advised the complainant to purchase a policy known as “Kotak Platinum” and assured that on the completion of period of policy, the complainant will get a handsome dividend, to which the complainant agreed. The agent of OP no.1 asked the complainant to submit the ID proof and residence proof being mandatory and put her signature on the printed performa and stated that he will himself fill-up the performa in his office in spare time. On believing the version of agent complainant put his signature on the printed performa and submitted the required documents with the agent of the OPs. Thus, the complainant purchased an insurance policy known as “Kotak Platimum” bearing policy no.9781299 for a sum of Rs.7.50 lakhs and annual premium of the policy was Rs.1.50 lakhs per annum. The complainant paid a sum of Rs.1.50 lakhs through cheque no.31 dated 02.01.2018 of the Kotak Mahindra Bank, Karnal in favour of the OP no.2 and the said cheque was got encashed and a sum of Rs.1.50 lakhs got debited in the account of the complainant and transferred to the account of the OPs.

2.             Further, the agent of the OPs told the complainant that there is a free look period in which policy holder is offered 15 days from the date of receipt of policy document. The complainant did not receive the policy till date and the complainant requested the OPs to send the policy but OPs did not send the policy so the complainant was yet to avail the opportunity of considering her decision to hold this policy or to return the same in freelook period. Then husband of complainant sent e-mails on 01.05.2018, 07.05.2018, 14.05.2018, 21.05.2018, 23.05.2018, 27.06.2018 and some other e-mails on various dated to OPs and Insurance Regulatory and Development Authority alongwith letter to the office of Insurance Ombudsman but the dispute has not been resolved as yet. OPs sent reply to the e-mails stating therein that they have sent the policy at the address of some Jeevan Jyoti, ITI Chowk, Karnal as the complainant was never lived at the said address contrary to the proof of resident and identity submitted by the complainant.  Complainant had chosen to return the policy and requested the OPs to return the amount alongwith interest as she has been deceived and cheated by the OPs by not sending the policy to the complainant with a view to deprive of her valuable right to reconsider the decision to hold or to return the policy in freelook period. Lastly on 20.09.2018 complainant approached the OPs and requested them to return the amount alongwith interest but OPs refused to return the amount. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to jurisdiction; cause of action and non-joinder and mis-joinder of necessary parties. On merits, it is pleaded that complainant has levelled serious allegations of forgery and cheating in the present complaint and therefore such issues cannot be tried under summary proceedings by this Forum and can only be adjudicated in a Civil/Criminal Court after holding a proper trial and leading substantive evidence. It is further pleaded that the policy holder has a period of 15 days i.e. Freelook Period during which if the policy holder is not satisfied with the applicable provisions of the subject policies, he/she may return the policy to the company, and seek a refund of premium, subject to such deductions as are lawfully allowed under the IRDAI. It is further pleaded that all the allegations mentioned therein are against Agent Mr. Abhishek and complainant has failed to add Mr. Abhishek as a necessary party to the proceedings. It is pleaded that due to non-receipt of policy documents, hence prayed for cancellation of policy and refund of premium. It is further pleaded that in the present case OPs have acted as per detailed filled up by the Proposer in the proposal form and it was specifically mentioned in the proposal form to deliver the policy document at office address mentioned in the proposal form and further the policy documents were dispatched and delivered at the address mentioned by the proposer in the proposal form. The policy documents were dispatched the OPs vide speed post bearing no.ED584564872IN on 9.1.2018 and the same were delivered to the complainant on 12.01.2018 which clearly states complainant was in receipt of the policy document and the present complaint filed by the complainant is afterthought to grab money from company in legal way.  It is further pleaded that complainant has placed a request for address change which was received by the company on 03.03.2018. The address as per the request was successfully changed and letter dated 05.03.2018 to that effect was sent to the complainant. The complainant for the first time vide email dated 1.5.2018 has complained about non-receipt of policy document and hence requested for cancellation and refund of premium and also specifically mentioned in email that complainant would be unable to pay future premium as well. OPs vide email dated 8.5.2018 has replied to complaint stating that the policy was dispatched on 9.1.2018 through speed post at registered mailing address updated in record of the company and the same was received by the complainant on 12.10.2018. Hence after 15 days of freelook period the request for cancellation of the policy is not acceptable. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C13 and closed the evidence on 3.9.2019.

5.             On the other hand, OPs tendered into evidence affidavit of Shakil Ahmad Ex.OP1/A and documents Ex.OP1 to Ex.OP9 and closed the evidenced on 9.8.2019.

6.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.             The case of the complainant, in brief, is that complainant purchased a “Kotak Platimum” policy for a sum of Rs.7.50 lakhs and annual premium of the policy was Rs.1.50 lakhs per annum. The complainant did not receive the policy till date and the complainant requested the OPs to send the policy but OPs did not send the policy so the complainant was yet to avail the opportunity of considering her decision to hold this policy or to return the same in freelook period. Then husband of complainant sent various emails to the OPs regarding not sending the policy. OPs sent reply to the e-mails stating therein that they have sent the policy at the address of some Jeevan Jyoti, ITI Chowk, Karnal as the complainant was never lived at the said address contrary to the proof of resident and identity submitted by the complainant.  Complainant had chosen to return the policy and requested the OPs to return the amount alongwith interest as she has been deceived and cheated by the OPs by not sending the policy to the complainant with a view to deprive of her valuable right to reconsider the decision to hold or to return the policy in freelook period. Lastly on 20.09.2018 complainant approached the OPs and requested them to return the amount alongwith interest but OPs refused to return the same.

8.             On the other hand, the case of the OPs is that the policy documents were dispatched and delivered at the address mentioned by the proposer in the proposal form. The policy documents were dispatched the OPs vide speed post bearing no.ED584564872IN on 9.1.2018 and the same were delivered to the complainant on 12.01.2018 which clearly states complainant was in receipt of the policy document and the present complaint filed by the complainant is afterthought to grab money from company in legal way. Hence after 15 days of freelook period the request for cancellation of the policy is not acceptable.

9.             Admittedly, the complainant purchased two insurance policies from the OPs. It is also admitted that annual premium of the policies were Rs.1.50 lakhs and the complainant had paid the said amount through cheque. As per version of the complainant, at the time of purchasing the said policies, he had given his address as house no.603, Sector-6, Urban Estate, Karnal. As per complainant the policies’ document supposed to be delivered by the OPs on his above stated address. The learned counsel for the OPs argued that as per the terms and conditions of the policy, after receiving the policy documents, the policy holder has a period of 15 days i.e. freelook period, during which if the policy holder is not satisfied with the applicable provisions of subject policies, he/she may return the policy documents to the company and seek a refund of premium, subject to such deductions as are lawfully allowed under the IRDAI Regulations but complainant has failed to avail that facility within freelook period and now the complainant has no right to claim the refund because freelook period has already explained.

10.            Learned counsel for the complainant submitted that no policy documents sent by the OP, on making repeated requests and reminders so the question for refund the premium amount within the freelook period does not arise. Learned counsel of complainant further argued that the OPs have claimed that the policy documents sent to the complainant then why the receipt or other documents in support of contention have not placed by the OPs.

11.            Learned counsel for the complainant further submitted as per proposal form Ex.OP1, the complainant had given his permanent/residential address as House no.603, Sector-6, Karnal but OP alleged that policy sent on the mailing address i.e. office address as Jeevan Jyoti. The complainant has no concern with Jeevan Jyoti and said address has not given by the complainant. Moreover, the complainant has signed only last page of Ex.OP1 and OPs have fill-up alleged emailing address on his own. The learned counsel for the complainant further submitted that all the proposal form was filled up by the agent of OPs and policy in question also taken on the assurance of the agent/representative of the OPs.

12.            On the other hand, learned counsel of the OPs submitted that OPs is not liable for the acts done solely by the agent in his personal capacity. In this regard we can rely upon the judgment Branch Manager, Central Bank of India Versus Bagwan Vishnoo Mahadeshwar 1(2004) CPJ 193, National Insurance Co. Ltd. Vs. Risheendran Nambiar and others in Revision Petition no.2153 of 2010, decided on 14.03.2018 and Post Office & Anr. Vs. Akhilesh Grover in Revision Petition no.1278 of 2016, decided on 06.10.2017.

13.            The question is arising that whether the opposites parties are liable for the wrong acts of its employees. In Branch Manager, Central Bank of India’s case (supra) wherein deposits were regularly paid to the Agent, under Mini Deposit Scheme. Entries were made in the pass book evidencing payment. Agent Committed fraud and did not deposit the amount in bank. Under those circumstances, it was held by Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai that the bank was accountable for the misconduct of the Agent. In Risheendran Nambiar’s case (supra) the insurer shall be responsible for all the acts and omissions of its agents including violation of code of conduct specified under clause (h) of sub section (3) and liable to a penalty which  may extend to one crore rupees.  In Akhilesh Grover’s case (supra) not delivering the speed post article to its addressee clearly constituted a willful act of deficiency in service of their part. Keeping in view that the ratio of the law laid down in the abovesaid judgments and facts and circumstances of the present case, we are of the considered view that the OPs are liable for the wrong acts of their agent.

14.            It has been proved from the written version of the OPs and correspondence made by the complainant, the policy document has not delivered to the complainant. If the policy document has received by the complainant then why he requested the OPs for supply the duplicate of the same. Moreover, if the OPs had sent the policy documents to the complainant and same has been received by the complainant then OPs must produce the receipt or document in support of contention that policy document delivered to the complainant. In this regard we can rely upon the authority M/s Gati Ltd. Versus M/s Synergetic Automationa 2017 (I) Law Herlad (SC) 565 (NC) in which it is held that Courier company failed to produce any receipt or document in support of contention that goods were delivered to said consignee-Courier company held liable to pay compensation to complainant. Thus, act of the OPs are amounts to deficiency in service.

15.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the policy amount of Rs.1,50,000/- to the complainant with interest @ 9% per annum from the date of deposit  till its realization. We further direct the OPs to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.09.2019                                                                       

                                                                      President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

        (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member