Order-19.
Date-22/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that he is an Ex-Service Man and after his retirement he thought of investment of some of his hard earned money in a reputed finance organization for his future need. On 23-08-2012 a person named Ganesh Dhara having Mobile No.9143223101 posing himself to be an agent of the OP visited the residence of the complainant and approached the complainant with a proposal to invest in Kotak Endowment Plan policy floated by OP assuring that such investment would fetch for some return upon maturity and also assured the complainant that he would get more than that of post office savings or other savings. The complainant, as such, persuaded by the said agent agreed to invest in the aid Kotak Endowment Plan and accordingly issued a cheque of SBI, Dum Dum Branch bearing No.590116 dated 23-08-2012 amounting to Rs.75,000/-. The said agent, thereafter, fulfilled all the formalities and received all the documents which were required for such investment. After a few days the complainant received the policy document with first premium certificate which reveals that the said Kotak Endowment Plan is for a term of 10 years. The complainant was surprised to see that the name of the agent is also printed as Corporate Service, VIP Rod, Kolkata instead of Ganesh Dhara and secondly it has been mentioned that the payment was made through HDFC Bank Madhyamgram Branch Cheque No.029038 dated 214-08-2012 although complainant made payment through a cheque of SBI, Dum Dum Branch bearing No.590116 dated 23-08-2012. The complainant was very much disturbed and went to the nearby OP office and OP office assured that it should not be any problem as the premium certificate is issued in the name of the complainant. In the middle of the year 2013, the son of the complainant got selected for higher studies in B.Tech in Marine Engineering and the complainant was required to arrange for a sum of Rs.2,25,000/- per year. The complainant for the betterment of the future of his son preferred not to invest any such plan. He on 22-05-2013 wrote a letter to the OP for refund of the deposited amount of Rs.75,000/- but the complainant did not receive any reply. The complainant, thereafter, wrote another letter on 20-06-2013 but to no good. Finally, the complainant wrote a letter dated 17-09-2013 to the Senior Vice President and Head operation of the OP for either refund of the paid amount or to continue the policy by reducing the amount of Rs.5,000/- per year for the purpose of extending finance help for the study of the complainant’s son. The said letter was duly received by the OP. OP vide a letter dated 23-09-2013 informed the complainant that OP is unable to process the further request as the policy has not completed 3 years to attain the surrender value. He is also informed that in the event if during first 3 years, any premium is not paid within the days of grace, the policy lapses without any cash value. OP alleges deficiency on the part of the OP. Hence, this case.
OP has contested the case by filing written version contending, inter alia, that the case is not maintainable in fact or in law. It is stated that the present complaint does not raise any consumer dispute as defined under C.P. Act and the complainant has failed to demonstrate any deficiency of service on the part of the OP. it is also stated that the complainant was very well aware that he was required to make the payment of premium of Rs.75,000/- only for 10 years in order to avail the benefit of the policy and the complainant admittedly discontinued the payment after making the payment of first premium instalment. Thus the policy entered the lapse mode and has been subsequently foreclosed. It is stated that OP has acted strictly as per the terms and condition of the policy contract. It is also stated that the complainant has received and read written the policy document and did not raise any objection towards the policy in during the said freelook period. It is also alleged that the cheque issued by the complainant along with the proposal form drawn on HDFC Bank was not cleared when presented for payment stating reason for dishonour as ‘account closed’. The same was duly intimated to the complainant and complainant, thereafter, issued a cheque of Rs.75,000/- bearing no.590116 dated 29-08-2012 drawn on SBI Bank which was duly encashed by the OP. It is stated that this OP caused no harassment to the complainant and he is not entitled to any amount from the OP. This OP has prayed for dismissal of the present complaint.
Point for Decision
- Whether the OP is deficient in rending service?
- Whether the OP complainant is entitled to get the relief as prayed for ?>
Decision with Reasons
We have browsed over the documents on record viz. photocopies of Ex-Service Man Identity Card, allotment number in the name of the complainant, reference letter of the OP, policy document and other documents on record as filed by the complainant. We have also perused the documents filed from the side of the OP namely Kotak Proposal Form, cheque of HDFC Bank issued by the complainant, cheque drawn on SBI India by the complainant, renewal premium note dated 31-07-2013, Copy of lapsation intimation dated 25-08-2013, pre-foreclosure intimation dated 25-06-2015 and other documents on record.
From the documents on record it appears that the complainant is at present 70 years old. He is also an Ex-Service Man pensioner and non-tax payee. The complainant purchased Kotak Endowment Plan being No.2059894 from OP. It is stated that one Ganesh Dhara who claimed to be an employee of the OP approached the complainant but in the proposal form the agent’s name is Corporate Services. It appears that the OP issued the insurance policy to the complainant when the complainant was 66 years old. We think that at such advanced stage, it was not possible on the part of the complainant to afford annual premium of Rs.75,000/- per year for the next 10 years. We think that OP has not tested the financial capacity of the complainant at the time of issuance of the policy. The OP also did not scrutinize the proposal form and all particulars of the complainant to justify such a policy at such advanced age for such a long span of period of 10 years. It is the duty of the OP to evaluate the financial capacity of the complainant whether the complainant can continue the policy or whether the complainant can pay the premium or not for the years together. From the documents on record we find that the income of the complainant is recorded as Rs.8 lakhs but we did not find any basis of such income. But virtually as we find that the complainant is a non-tax payee pensioner. We are afraid OP has not been able to justify the issuance of the policy in favour of the complainant. We think that OP is deficient in services on this score alone. It also appears that the complainant is an old man and he had an understanding that the premium of Rs.75,000/- is a one-time premium for 10 years. It appears that the policy is likely to be matured when the complainant would be of 76 years. We find that the complainant made several representation to the OP and even proposed to give a new policy of premium of Rs.5,000/- by letter darted 17-09-2013 but the OP has not taken any cognizance of the same. Be that as it may, considering the facts and having regard to the materials on record we think that issuance of policy to the complainant at the age of 66 amounts, of course, to deficiency of service on the part of the OP. OP has not also considered the financial status or the capability of the complainant whether he would be continued the policy for 10 years or not. OP has not also considered the factum of age of the complainant. It is also questionable whether an Insurance policy like Kotak Endowment Plan Policy can be sanctioned in faour of an old person of 66 years old like that of complainant. OP we think has insured the policy without considering the age, income and other concomitant factors in favour of the complainant. OP, in our considered opinion has been deficient in service for the whole consequences. A person may apply for insurance policy but it is the duty of the insurance company to decide whether such policy can be sold to a person or not. OP has sold the policy to the complainant without considering his eligibility for such policy and, as such, OP has to face the ultimate consequences. OP is deficient in service. We think that complainant is an old man and a pensioner and strict compliance of the terms and condition of the insurance policy will not bestow justice upon the complainant. Complainant as such is entitled to get the relief in terms of the operating portion of the order which follows.
In result, the case succeeds in part.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP with cost of Rs.5,000/-.
OP is directed to refund the premium amount of Rs.75,000/- with 20 percent deduction thereof as non-standard basis within one month from the date of this order.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- to be paid to this Forum till full and final satisfaction of the decree.
