Punjab

Nawanshahr

CC/82/2015

Ms Neeraj Sharma - Complainant(s)

Versus

Kotak Mahindra - Opp.Party(s)

NAVNEET LATH

15 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR. 

 

Consumer Complaint No    :   82 of 27.07.2015 

Date of Decision              :   15.01.2016      

Ms.Neeraj Sharma wife of Kamal Kishor Resident of Near Sharma Cold Drinks, Satnor Bus Stand Garhshankar, Tehsil Garhshankar District Hoshiarpur.

                                                          ….Complainant

Versus

1. Kotak Mahindra Old Mutual Life Insurance Company Limited, First Floor, Building adjoining Electricity Sub. Station, Banga Road, Nawanshahr, Through its Branch Manager.
2. Kotak Mahindra Old Mutual Life Insurance Company Limited, Registered Office, 9^th Floor, Godrej Coliseum, Behind Everard Nagar, Sion (East) Mumbai 400022, Through its Branch Manager.

…Opposite parties

Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:         

SH.G.K. DHIR, PRESIDENT

MS.SUSHMA HANDOO, MEMBER

COUNSEL FOR THE PARTIES

For Complainant           :         Sh.Navneet Lath, Advocate.

For OPs                         :         Ex parte.

 

ORDER 

PER G.K. DHIR, PRESIDENT

1.       Complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as Act) against the Opposite Parties (hereinafter referred to as “OPs”) by alleging that she is a rustic villager with rural background.  On allurement of agent of OPs namely Rajan Sharma to the effect that amount invested will go double after five years, the complainant invested the amount of Rs.20,000/- initially.  First premium was paid on 31.03.2010 and the second on 29.04.2011 and the third on 29.04.2012 through receipts.  Complainant did not notice at the time of investment of first premium installment that agents had misrepresented her by getting issued policy for 20 years.  The second and third premium installment was paid in ignorance by complainant.  After lapse of three years in 2013, complainant approached representative of OPs for refund of amount paid as premium alongwith interest, but they procrastinated the matter.  After the expiry of a year, when complainant contacted officials of OPs, then she was astonished to know as if the amount has been invested in Kotak Market scheme without her consent.  So it is claimed as if fraud committed with complainant.  A notice was also served on OPs for calling upon them to make payment of fixed deposit, but to no effect and that is why by pleading adoption of unfair trade practice on part of OPs, Rs.20,000/- on account of compensation and Rs.20,000/- on account of litigation expenses claimed in addition to refund of amount paid with interest.    

2.       OP No.2 filed written statement by pleading inter alia that complaint is false, frivolous and vexatious; complainant has approached this Forum after five years for refund of the premium amount and as such complaint is barred by limitation and otherwise also is not maintainable.  Besides it is claimed that in view of serious allegations of fraud leveled by complainant, this Forum has no jurisdiction because those allegations can be probed by a Civil or Criminal Court after appreciation of evidence.  OPs acted as per terms and conditions of the policy contract.  The deficiency in service cannot be alleged without attributing fault, imperfection, short comings in the quality, nature and manner of performance.  Deficiency in service has to be proved by complainant, but the facts in regard thereto have not been pleaded.  The agent who allegedly allured complainant has not been impleaded as party and as such complaint alleged to be bad for mis-joinder of necessary party.  As per terms and conditions of policy, if the policy is not suitable to the policyholder, then he/she may get the same reviewed within 15 days of free look period after receipt of the policy documents.  That option not exercised by complainant within free look period and as such she is estopped by her act and conduct also  from claiming refund of premium amount with interest.  The unit linked insurance policies cannot be the subject matter of consumer Forums and as such in view of hiring of services of OPs for commercial purposes, the complaint is not maintainable.  The policy was sourced by Mr.Rajan Sharma, an relative/acquaintance of complainant herself and as such allegations of mis-selling alleged to be concocted one.  Complainant has not approached the Forum with clean hands.  Complainant herself submitted proposal form under her signatures while purchasing policy No.01961940 in her name on 31.03.2010 for term of 20 years by paying premium amount of Rs.20,005/-.  The sum assured was Rs.2,00,000/-.  Policy documents were dispatched to complainant on 13.04.2010 through speed post via Waybill No.EM112940913IN.  Every policy documents sent is always accompanied with forwarding letter, which clearly mentions that in case the policyholder is not satisfied with the features or terms and conditions of the policy, then he/she can withdraw from the policy within 15 days of free look period.  Admittedly, premium of Rs.60,015/- in all has been received till date through automatic cover maintenance (ACM).  Due date for payment of next renewal premium was 31.03.2013, but complainant failed to make payment of the same and that is why the reminder dated 09.03.2013 was sent to complainant for advising her to pay the renewal premium on due dates. ACM intimation letter dated 06.05.2013 was also sent to complainant. 

3.       OP No.1 did not appear despite service and as such was proceeded ex parte vide order dated 17.09.2015.     

4.       Counsel for complainant to prove his case tendered affidavit Ex.CW1/A of complainant alongwith documents Ex.C-1 to Ex.C-6 and then closed the evidence.

5.       On the other hand, none turned up for OP No.2 at the time of producing evidence, hence he was proceeded ex parte.

6.       Ex parte written arguments not submitted by counsel for complainant, but oral ex parte arguments of counsel for the complainant were heard and records gone through minutely.

7.       Welcome letter Ex.C-1 as well as Ex.C-5 dated 31.03.2010 has been produced by complainant herself to show that she was intimated about the policy in question through this letter itself.  Policy Number alongwith details of free look period option were specified in Ex.C-1 itself.  Rs.20,005/- was deposited by complainant as premium through receipt dated 31.03.2010 and thereafter two more premiums of the same amount of Rs.20,005/- each were deposited by complainant on 19.04.2011 and 29.04.2012 through receipts Ex.C-3 and Ex.C-4.  First premiums certificate Ex.C-6 also has been produced by complainant to show that policy is for term of 20 years, but basic sum assured is Rs.2,00,000/-.  If the terms of Ex.C-6 taken into consideration, then same itself reflects as if premiums of Rs.20,005/- for 19 years will be payable by complainant against the assured sum of Rs.2,00,000/-, which perhaps may not be acceptable to anyone.  Complainant had put her signatures in English on complaint as well as on affidavit and the submitted Vakalatnama and as such complainant cannot be treated as an illiterate.  The terms and conditions of the policy are binding and as such they are to govern the case of the parties, even if the terms of the policy may be somewhat unreasonable.  It is so because nothing can be added or subtracted to the terms and conditions of the contract as per law laid down in cases of Indo Swift Limited Vs New India Assurance Company Ltd and others IV (2012) CPJ 148 (NC); United India Insurance Company Ltd Vs Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC) and Deokar Exports Pvt. Ltd Vs New India Assurance Co. Ltd 1(2009) CPJ 6 (SC).  

8.       Op-2 submitted through written statement that complaint in respect of the claim under Unit Linked Insurance Policy is not maintainable under the Act.  Reliance for the purpose is placed on case titled as Ram Lal Aggarwalla Advocate and Notary Vs Bajaj Allianz Insurance Co. Ltd. & Ors. Decided on 23.04.2013 through R.P. No.658 of 2012 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi.  After going through that case, it is made out that when number of policies purchased at commercial scale for earning profit only, then the concerned complainant will not be a consumer.  However, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Life Insurance Corporation of India Vs Sudhi P.P. and another 1 (2014) CPJ 326 assumed jurisdiction for deciding case of Unit Linked Policy on merits by holding that surrender value payable will be fixed value of units held by policyholder.  So the litmus test will be as to whether the policyholder purchased policies at commercial scale for earning profit or not.  In this case complainant is not habitual of purchasing Unit Linked Policies for carrying commercial transactions, so she is a consumer within the meaning of Consumer Protection Act.

9.       In case of Jayantilal Keshavlal Chauhan V. The National Insurance Co. Ltd. 1994 (1) CPR 396, it has been held that if fraud is alleged, then it is desirable that the complainant should be directed to approach Civil Court because investigation about fraud required to be done by that Court.  In view of the deep investigation being required qua allegations of fraud, the complainant, if advised may approach the Civil Courts.

10.     The policy in question was duly licensed by IRDA. So IRDA Regulations of 2013 to come to the rescue of complainant, because payment after due deduction has not been made as per these regulations.  Deficiency in service is to this extent alone.   As per Regulation-13 of Insurance Regulatory & Development Authority (Linked Insurance Products) Regulations -2013, insurer on discontinuance of policy is under obligation that the charges levied on the date of discontinuance (as a percentage of one annualized premium) do not exceed the specified limits given in Regulations.  For policies having single annualized premium below Rs.25,000/-, deduction at lower of 0.5% (SP or FV/policy account value) subject to maximum of Rs.1,000/- is permissible, where the policy is discontinued during Fourth year of policy.  That discontinuance took place in Fourth year of policy in this case because three premiums stood already paid.   So complainant entitled to refund of the amounts with deduction charges as per Regulation 13 read with Regulation-15 of IRDA Regulations-2013.   

11.     It is submitted by the OP-2 in written statement that the policy terms and conditions specifically provides for a free look period of 15 days, during which period the policyholder is entitled to review the policy’s terms and conditions or can request for a cancellation, if dissatisfied with the same.  We find that the complainant never raised any question regarding the said policy within that period.  Non raising of question on the policy after payment of three premiums regularly proves fatal to case of complainant because of rule of estoppel. Thus, the complainant cannot wriggle out of the valid contract between her and the OPs. So, the claim for the refund of the amount deposited by the complainant under the terms of the policy is unsustainable in the eyes of law.  Hence, the complainant is entitled for surrender value only, as per specifications of IRDA, 2013.

12.     Therefore, as discussed above, the present complaint is disposed of exparte and the OPs are directed to pay amount to complainant after deduction of discontinuance charges as per IRDA Regulations-2013.  No order as to costs.

13.     Let copies of the order be sent to the parties, as permissible, under the rules.

Dated 15.01.2016                                                         

 

 

(Sushma Handoo)                                                        (G. K. Dhir)

Member                                                               President