DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No | : | 726 OF 2010 | Date of Institution | : | 23.01.2011 | Date of Decision | : | 12.12.2011 |
1. Mehar Singh son of Sh. Jai Singh resident of House No.2427, Phase XI, Mohali. 2. Tejpal Singh son of Sh. Gurcharan Singh resident of House No.2427, Phase XI, Mohali. ---Complainants V E R S U S 1. Kotak Mahindra Old Mutual Life Insurance Limited, SCO No.141-142, Sector 9C, Chandigarh through its authorized representative. 2. Kotak Mahindra Old Mutual Life Insurance Limited, Regd. Office at Godrej Coliseum behind Everard Nagar, Sion (East), Mumbai. ---Opposite Parties. BEFORE: MRS.MADHU MUTNEJA PRESIDING MEMBER SH.JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Tarun Gupta, Advocate for the complainants. Sh. Gaurav Bhardwaj, Advocate for the OPs. PER JASWINDER SINGH SIDHU, MEMBER Complainants have filed the present complaint against the Opposite Parties (hereinafter referred to as OPs for short), on the grounds that the complainant No.1 was approached by one Mr. Manoj Singh Rana, Assistant Manager, an employee of the OPs inviting him to invest in Mutual Funds. The complainant on being convinced of the advantages issued a Cheque of Rs.50,000/- on 30.11.2007 to the said employee and desired that the investment be made in the name of complainant No.2, the grandson of complainant No.1, who himself is aged 76 years. In the month of February 2008, the same employee again approached complainant No.1 saying that another Cheque is required as the earlier one had got teared due to his negligence. The complainant No.1 again issued a Cheque No.307980 dated 13.2.2008 of Rs.50,000/-. The agent of OP No.1 assured that the amount can be redeemed any time after one year. It is further mentioned that complainant No.1 did not receive any confirmation document nor the said employee came to collect or deliver any document except the above mentioned Cheque. That in order to get the money encashed and to use the same as he was not keeping a good health, the complainant No.1 visited the office of OP No.1 in the month of October 2009. At this the complainant was informed that there was no investment in Mutual fund in the name of OP No.2. Thereafter, having visited the office of OP No.2 on many occasions, the complainant finally in the month of September 2010 was handed over a receipt and was verbally informed that the money was invested in an Insurance Policy and not in a Mutual Fund. At this, the complainant was shocked to know about it and claims that being illiterate and ignorant, he was not guided properly. Thus, alleging deficiency in service and unfair trade practice on the part of OPs, the complainant has prayed for the return of Rs.50,000/- along with interest @18% per annum from the date of its receipt i.e. 14.2.2008 till its realization. The complainant demands a relief of Rs.40,000/- on account of mental harassment besides Rs.10,000/- as costs of litigation. On notice, OPs appeared and filed written statement wherein they have taken a preliminary objection that the complainant has raised various complicated questions of facts and law, which require detailed fact finding by a court of competent jurisdiction and the same cannot be adjudicated upon in a summary proceedings as contemplated under Consumer Protection Act, 1986. It is further stated that the entire complaint is based on surmises and conjectures and deserves no other fate but an outright dismissal. OPs have refuted the allegations of the complainant in their para-wise reply wherein the communication between the complainant No.1 and Sh. Manoj Singh Rana, the alleged employee of the OPs, is denied on the ground that OPs were not a privy to their communication. Hence, OPs are not answerable to anything that transpired between them. The OPs have admitted to the fact that a Kotak Smart Advantage Plan Policy was proposed by complainant No.1 in the name of complainant No.2 and as such, complainant No.1 was the Proposer and had signed on the proposal form in that capacity. The proposal form No.897559 dated 14.2.2008 is annexed as Annexure R-1 and the complainant having understood the features, terms and conditions of the plan had duly appended his signatures on the proposal form. The illustrations of the policy benefits have been annexed as Annexure R-2. OPs further state that a policy was duly raised vide No.897559 dated 20.2.2008 and was dispatched to the complainant. A copy of the same has been annexed as Annexure R-3. The OPs have categorically stated that the money received by them from complainant No.1 has been duly invested in the Insurance Plan subscribed by the complainant No.1and the documents attached with their version are an ample proof to this fact. The claim of the complainant that the money has been misappropriated stands falsified. OPs also state that the entire policy document is based on the proposal form filled up by the complainant having understood all the parameters of the policy as explained to him. Hence, OPs are not liable to answer any of his allegations, which are an afterthought. OPs have also stated that as the complainant No.1 failed to adhere to the payment deadlines of the annual premium as was incumbent upon him and there was no clause of refund of entire amount of first premium paid towards the policy, hence, the present complaint is based on surmises and conjectures. OPs further state that the said policy document is totally in consonance with the relevant regulatory provisions without which the said policy cannot be issued. Even the demand of refund of the complainant No.1 can only be entertained under the conditions of surrender of policy at the end of revival period and because the policy in question has already lapsed, a letter dated 21.12.2010 was dispatched through a registered post informing the complainant about the revival period which he could avail if he wish to do so. Rest of the averments made in the complaint are alleged to be the matter of record, which does not require any answer. Finally, the OPs pray for dismissal of the present complaint on the above mentioned facts with exemplary costs in favour of the OPs. Parties led their respective evidences. Having gone through the entire complaint, version of the OPs, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions:- (i) The fact which the complainants have mentioned in their complaint about the identity of the agent namely one Sh. Manoj Singh Rana stands addressed from the signatures as well as the contents of Page No.14 of Annexure R-1 i.e. the Proposal Form, wherein the name along with the agent code is mentioned as ‘KD 372’. Though Annexure R-1 ‘Proposal Form’ is clearly signed by the complainant No.1 as well as bears the signatures of the Life Assured i.e. complainant No.2, but the column No.6 of this document under the title ‘Particulars of Nominee/ Beneficiaries’ is left blank and appears to have been scored off by writing ‘N/A’ across it. Hence, it is evident that the Agent of OP No.1 while advising the proposer/ complainant No.1 in filling up the form has failed to follow the provisions of Clause No.3(2), 3(3) and 4(5) of I.R.D.A (Protection of Policy Holder’s Interests) Regulations 2002. The same are reproduced as follows: - “3(2) An insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest.” “3(3) Where the prospect depends upon the advice of the insurer or his agent or an insurance intermediary, such a person must advise the prospect dispassionately.” “4(5) Wherever the benefit of nomination is available to the proposer, in terms of the Act or the conditions of policy, the insurer shall draw the attention of the proposer to it and encourage the prospect to avail the facility.” According to these provisions, it was mandatory as well as important to mention the particulars of a nominee and the importance of this fact was also to be explained to the proposer by the agent of the OPs. Hence, as such, the proposal form in its present form should not have been entertained by the OPs to raise a life insurance policy. (ii) The another fact that has come to light is about the number of proposal form, which according to the OPs, is mentioned as ‘897559’ in Para No.1 at Page No.3 of their reply. At the same time, OPs also claim to have assigned the same number to the Insurance Policy. However, at the very first instance on Page No.1 of Annexure R-1, the number ‘UL 080261’ is printed in ink and we believe that this is the number of the proposal form and not ‘897559’ as mentioned in the version of the OPs. (iii) The allegations of the complainant that he has not been supplied with the policy documents and even the receipt of first premium (Annexure C-3) was handed over to him in the month of September 2010 have not been answered properly as OPs have failed to bring on record the manner in which the said documents were conveyed or delivered to the complainant so as to convince us that the complainant was in a position to exercise his option of, 15 days “Free Look Period” after the particular date on which he is supposed to have received the said document. No details of Postal/courier dispatch or receipt are produced by the OPs. (iv) There is another interesting aspect about the letter of the OPs dated 21.12.2010 (Annexure R-5) which speaks of ‘Surrendering of Policy at the end of revival period’. The said letter has been written to the complainant after he has actually filed the present complaint on 15.11.2010 and that too after the complainant had actually not paid the two premiums due towards him in the month of February 2009 and February 2010 respectively. We are surprised to note that in what manner the OPs were benefiting the complainants by inviting them to pay the remaining two premium installments and that too after the lapse of ten long months of the expiry of the third premium installment. From this episode, it is amply clear that the intentions of the OP is to collect the money only and it does not matter to them whether the same would be of any advantage to the complainant or not. (v) One more aspect that we have failed to understand is about the age of the proposer/subscriber of the policy i.e. complainant No.1 who was 77 years of age at the time of subscription and would have attained the age of 87 years at the end of the policy plan that was to end in the year 2018. The date of birth of complainant No.1 is clearly mentioned as ’05.10.1931’ as per Annexure R-4 (copy of driving license), placed on record by the OPs themselves. As such, we feel that while issuing the policy, it was important to assess the age status of the proposer or the subscriber of the policy and whether he would be within the maximum age qualification at the end of policy tenure. The OP has not addressed this question in any manner. The OPs should have brought on record some document to clear this aspect which they did not. In the light of the above observations, we find that the insurance policy issued to the complainant No.1 was not in consonance with the I.R.D.A Guidelines and the same was strictly required to be followed in toto by the OPs. Hence, we allow the present complaint and direct the OPs to refund the amount of Rs.50,000/- charged against first premium along with interest @8% p.a. with effect from the date of deposit till it is actually paid. OPs are further saddled with the costs of litigation to the tune of Rs.5,000/-. The above said order shall be complied within 30 days of its receipt; thereafter, OPs shall be liable for an interest @18% per annum on the sum of Rs.50,000/-, except the costs of litigation. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 12th December, 2011. (MADHU MUTNEJA) PRESIDING MEMBER (JASWINDER SINGH SIDHU)
| | MR. JASWINDER SINGH SIDHU, MEMBER | MRS. MADHU MUTNEJA, PRESIDING MEMBER | , | | 
