Order No. 09/01/2017
The fact of the case in brief is that the complainant on 15.07.2010 handed over a cheque of Rs.25,000/- to a Field Staff Member of the o.p. towards the premium for a policy known as Kotal Super Advantage Plan. The Field staff member explained the complainant that the said policy is an Unit Linked Policy with the benefit of flexible life cover. They also assured that the policy can be discontinued after continues payment of premium for 3 years and in that event the sum paid by the complainant would be returned after some deduction . On 29.07.2013 the complainant surrendered the policy after payment of premium for three years. The complainant claimed the amount and he found that he was provided with the amount of Rs.49,818.78 in the account of the complainant against the payment of premium of Rs.75,000/- i.e.,Rs.25,181.22 was deducted towards discontinued charges. The complainant raised his objection and demanded the balance amount which the o.p. denied resulting in filing this case praying for direction upon the o.p. for refund of the amount and also compensation of Rs.60,000/- and 10,000/- for litigation cost.
O.ps contested the case by filing written version and denied all the material allegations of the complaint. It was stated that the premium was invested in the market, the same amounts to speculative gain and the total value of investment depends upon the volatility of the market. In such cases it can be said that the customer as hired the services of the company for commercial purpose and the case is barred u/s 2(d) of the Act. The complainant after receiving the policy had the free look period but he did not exercise his option during the said period. Therefore the cancellation of the policy could have been done by the complainant at the initial stage but he choose to continue with the policy by and abided by the terms and conditions of the policy. The complainant made premium for three installments and despite the receipt of the reminders under both the policies. The complainant did not approach the o.p. for the payment of the renewal premium on the contrary the complainant surrendered the policy and accordingly surrendered value as on the date of the surrender request amounting to Rs.49,818.78 was paid to the complainant. There was no deficiency of service on the part of the o.ps and the terms and conditions of the policy are approved by the IRDA. In view of the facts and circumstances as stated above, the o.ps have prayed dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant had a policy under the o.p. ;
- Whether the complainant discontinued the policies after 3 years;
- Whether the complainant will be entitled to get the entire premium paid by him or the amount paid by the o.p. justified;
- Is the complainant entitled to get the relief as prayed for.
Decision with reasons
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
The Ld. Lawyers for the complainant argued that the field staff member approached the complainant for opening a policy under the o.p. and at the time of conversation before the the opening of the policy the complainant was assured that he can continue the policy by payment of premium for consecutive three years thereafter he can withdraw the amount. On the basis of the said assurance the complainant filled in the form. The Field staff of the o.p. explained that the said policy is an unit linked plan benefit of flexible life cover and 100% allocation of investment. The complainant paid as per the terms and conditions of the policy to the tune of Rs.25,000/- towards the yearly premium and continued to pay the said premium for consecutive three years. after the completion of three years he surrendered the policy and found that though he paid Rs.75,000/- but the amount credited to his account to the tune of Rs.49,818.78. Since the huge amount was deducted the complainant. The complainant argued that the o.ps adopted unfair trade practice and there was no deficiency in service for which the complainant had to file this case.
In support of the said contention the Ld. Lawyer for the complainant relied on a decision as reported in 2014(4) CPR Page-154 wherein it was held that narrow construction of liability clause would be repugnant to manifest pursue of Insurance Policy.
The unexplained or un-noticed exclusion clause of the Insurance Policy would not be binding to the parties.
On the basis of the facts and circumstances stated above the Ld. Lawyer for the complainant prayed for direction upon the o.ps to pay the balance amount and also for other reliefs.
The Ld. Lawyer for the o.p. argued that the clause 7 of the policy whereby the right of the policy holder to surrender the policy holder has been mentioned in Clause 7 . The said clause stated that the policy can be surrendered only after the completion of three policy years and if the premiums for the first three year policies have been paid in full.
The surrendered value applicable will be the fund value in main account less surrender charge and fund value in top up accounts. The surrendered charge as applicable on date of surrender will be applied to calculate the surrendered value. Once the surrender value is paid, the policy shall stand terminated and no further benefits are provided.
The Ld. Lawyer for the o.p. argued that if the complainant had the grievance regarding the said policy he could have cancelled the policy during the cooling off period for fifteen days provided to the policy holder as per the guideline of IRDA.
In support of the said contention the complainant relied on a judgement as decided by NCDRC in revision petition no.852 of 2013. Wherein it was held that the insured is bound by the terms and conditions of the policy since the policy being an unit linked policy and is depended on the market volatility and the value may go up or may come down depending upon the market condition. The fund switching has been strictly on the basis of the written request of the complainant in the prescribed form. As such the amount paid to the complainant was made as per the terms and conditions of the policy. Therefore there was no deficiency in service on the part of the o.ps.
Considering the submission of the respective parties it is an admitted fact that the complainant obtained a policy from the o.ps. It was also stated in the complaint that the complainant was fully aware that the policy unit linked policy i.e. the Unit Link policy is depended on the market condition. The complainant understood the condition of surrender of policy and for that purpose he continued to pay for three years. Subsequently he opted for surrendering the policy. In the terms and conditions of the policy in Clause 7 the surrendered value of the policy was also mentioned and the in Clause 14 the charges was also mentioned. In view of the Clauses in the policy itself which was approved by the IRDA and being aware of the terms and conditions of the policy the complainant surrender the policy and the o.p. after necessary deduction returned the amount. Therefore we hold that there was no deficiency in service. Apart from the said fact the complainant got the opportunity to cancel the policy during the cooling off period for 15 days but he choose to remain silent and accepted the terms and conditions of the policy. Once the terms and conditions of the policy have been accepted by the complainant it almost challenge the some making false allegation against the o.ps for adopting unfair trade practice.
Hence, ordered
That the case no.665/2013 is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
