Chandigarh

DF-I

CC/250/2015

Prabh Dyal Wadhwa - Complainant(s)

Versus

Kotak Mahindra Old Mutual Life Insurance Ltd. - Opp.Party(s)

In person

21 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/250/2015
Date of Institution	:	23/04/2015
Date of Decision	:	21/09/2015

 

Prabh Dyal Wadhwa #1177, Phase-5, Sector 59, Mohali 160059, SAS Nagar.

…..Complainant

V E R S U S

1.      Kotak Mahindra Old Mutual Life Insurance Ltd., Branch Office 141-142, Sector 9-D, Chandigarh through its Manager.

2.      Corporate & Regd. Office : 4^th Floor, Vinay Bhavya Complex, 159A, CST Road, Kalina, Santacruz (E), Mumbai 400098.

……Opposite Parties

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                                                                       

                       

ARGUED BY	:	Complainant in person
		Sh. Mrigank Sharma, Counsel for OPs.

                       

PER P.L.AHUJA, PRESIDENT

1.         Sh. Prabh Dyal Wadhwa, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Kotak Mahindra Old Mutual Life Insurance Ltd. & Anr., Opposite Parties (hereinafter called the OPs), alleging that one Mr. Vikram Sharma, Sales Manager of the OPs approached him for an insurance. The complainant agreed and issued him a cheque of Rs.40,000/- as one time investment for continuous three years with three years locking period.  However, when the complainant received the policy dated 31.3.2009, he found a few terms were different than those told to him and further that a two page letter dated 30.3.2009 attached to the policy was not signed by him and the same was forged.  The complainant immediately handed over a letter dated 24.4.2009 to the OPs within the free look period explaining the position and requested to file an FIR against their staff. When nothing was done, the complainant himself lodged an FIR with the police station, Phase 1, SAS Nagar on 15.7.2009. Thereafter the officials of the OPs approached the complainant to bear with them for three years and after which he would get the full paid/invested amount with interest and profits.  However, after three years, the officials of the OPs refused to make the full payment. The complainant also approached the Ombudsman, but, his complaint was dismissed on 6.12.2013.  The complainant has averred that on the asking of Dr. Mangrish Rangnekar (DCM) of the OPs, he went to the office of OP-1 and submitted letters (hand written as well as typed) dated 13.2.2014. However, the OPs, despite getting confirmation from their centralized team and handwriting expert that the signature of the complainant on the consent letter were forged, credited only an amount of Rs.1,20,000/- into his account without any interest and profits. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 
2.         In their joint written statement, OPs have taken a number of preliminary objections including that the complainant is not a consumer as the policies had been purchased for profit making purpose.  It is has been averred that as per clause No.3 of the proposal form, the complainant had voluntarily opted for the policy term of 10 years; premium payment term to be of full policy term and the frequency of premium payment to be yearly.  Based on the details provided, the subject policy was issued on 31.3.2009 and the policy documents were despatched to the complainant. It has been pleaded that the complainant despite receipt of the policy documents did not approach the OPs with any request for free look cancellation within the free look period. It has been stated that since the complainant had made the payment of three annual premiums and did not make any further payment of premiums, consequently the policy entered the ACM mode. It has been averred that after a period of more than 3 years of issuance of policy, the complainant suddenly started making allegations of mis-selling and forgery vide letter dated 1.2.2013, which were dutifully answered vide letter dated 7.3.2013. It has been submitted that the amount of Rs.1,20,000/- was refunded to the complainant as a goodwill gesture. It has been contended that the complainant is an educated and insurance minded person with a keen sense of investing in mutual or market linked insurance plans. It has been further contended that the complainant has raised serious allegations of fraud, which cannot be gone into in the summary procedure before this Forum. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         In his replication, the complainant has controverted the stand of the OPs and reiterated his own. It has been contended that the complainant had approached the OPs within the free look period. It has been pleaded that there was no goodwill gesture and the complainant was forced to approach the Ombudsman and the police. 
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence and heard the arguments addressed by the complainant in person and learned Counsel for the OPs. 
6.         The complainant has argued that when he received the policy dated 31.3.2009 on 16.4.2009, he found a two page consent letter which was not signed by him and somebody had forged his signature and he immediately contacted the Senior Sales Manager.  He has further argued that he handed over a letter dated 24.4.2009 within the free look period wherein it was specifically mentioned that his signatures had been forged.  He has submitted that on the request of the officials of the OPs, he paid the installments for three years and after completion of three years, the OPs refused to make full payment of Rs.1,20,000/- so invested.  He has further argued that after a confirmation from the handwriting expert that his signatures on consent letter were forged, the OPs credited an amount of Rs.1,20,000/- only on 24.3.2014.  The complainant has vehemently argued that the act and conduct of the OPs points out towards deficiency in service and indulgence in unfair trade practice. 
7.         On the other hand, the learned counsel for the OPs has argued that the complainant had purchased a unit linked policy whereby the investment was made through share market/speculative transactions and main motive for investment was for profit and gains and has vehemently argued that the complaint in respect of the claim under unit linked insurance policy is not maintainable under the Consumer Protection Act; the money having been invested in speculative business. The learned counsel for the OPs has further argued that as per clause No.3 of the proposal form, the complainant had voluntarily opted for the policy term of 10 years and the frequency of premium amount to be yearly.  He has further argued that the OPs never received any request for free look cancellation or any grievance relating to the said policy within the mandate period of 15 days.  He has further argued that the complainant after making the payment of three annual premiums did not make the payment of next renewal premium due to which the policy entered the auto cover maintenance mode w.e.f. 31.3.2012.  He has also argued that finding no force in the contention of the complainant the Ombudsman dismissed the complaint of the complainant. However, the OPs being a customer centric company as a goodwill gesture refunded an amount of Rs.1,20,000/- vide NEFT dated 24.4.2014 in the account of the complainant.  He has submitted that the complainant never raised any protest or request for one year and his demand of interest is an afterthought.
8.         We have given our thoughtful consideration to the rival contentions.  The copy of the Kotak proposal form (Annexure R/1) itself shows that the complainant affixed his signature on the same and had ticked on “unit linked”.  The complainant has nowhere denied that the said insurance policy is a unit linked policy whereby the investment is made through share market/speculative transactions. Pertinently, all unit linked policies are different from traditional insurance policies and are subject to different risk factors. In the said policy, the investment risk in investment portfolio is borne by the policy holder. A perusal of judgment Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd., Revision Petition No.658 of 2012 decided on 23.4.2013 by the Hon’ble National Commission shows that in that case the dispute was regarding unit linked insurance policy and the claim under that policy was disallowed by the District Forum by making following observations :-

“The investment made by the petitioner/ complainant was to gain profit. Hence, it was invested for commercial purposes and, therefore, the petitioner/ complainant is not a consumer under the opposite parties. The State Commission, Odisha in First Appeal No.162 of 2010 in the case of Smt. Abanti Kumari Sahoo v. Bajaj Allianz Life Insurance Company Ltd., have held that the money of the petitioner/complainant invested in the share market is no doubt a speculative gain and the speculative investment matter does not come under the Consumer Protection Act and accordingly, the State Commission dismissed the appeal.”

Importantly, against the order of the District Forum, the complainant filed an appeal before the Hon’ble State Commission which was dismissed. Dis-satisfied with that order, the complainant filed a revision petition before the Hon'ble National Commission and the Hon'ble National Commission did not find any jurisdictional error, illegality or infirmity in the order passed by the Hon’ble State Commission warranting interference.  The matter relating to unit linked policies was also agitated in Smt. Parmajit Kaur Vs. Aviva Life Insurance Company India Limited, consumer complaint No.96/2011 decided on 4.7.2014 and Metlife India Insurance Co. Vs. Gurjit Singh, First Appeal No.40/2011 decided on 22.9.2014 by the Hon’ble State Commission, Punjab and it was held that the complaint in respect of the claim under unit linked insurance policy is not maintainable under the Consumer Protection Act; the money having been invested in a speculative business. 

9.         In view of the law laid down in the above cited rulings, the complainant does not fall within the definition of consumer as defined in Section 2(1)(d) of the Consumer Protection Act.  As the complainant is not a consumer under Consumer Protection Act, therefore, this Forum has no jurisdiction to try this complaint.
10.         Apart from the above legal position, it is worth noting that the complainant in his complaint has alleged that his signatures on the two page letter dated 30.3.2009 were forged by somebody from the office of the OPs.  Forgery, fraud and cheating require detailed evidence, production of documents and cross-examination of witnesses which are beyond the purview of summary jurisdiction of this Forum.  Such questions can only be adjudicated in the civil court. 
11.         For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed leaving the parties to bear their own costs.  Needless to say, complainant shall be at liberty to avail the other remedies available to him before any other appropriate Court/Forum. 
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
21/09/2015	[Suresh Kumar Sardana]	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	Member	President