| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION CAMP COURT AT LUDHIANA Received by way of transfer Consumer Complaint No.342 of 2018 Date of institution: 23.05.2018 Date of Decision:16.08.2021 Romesh Chand Gupta, aged about 76 years son of Shri Maghi Ram, resident of House No.1460, Urban Vihar-I, Dugri, Ludhiana. …….Complainant Versus - Kotak Mahindra Old Mutual Life Insurance Limited, 108, 5th Floor, Surya Tower, Above Ebony, The Mall, Ludhiana, 141001 through its Manager
- Kotak Mahindra Old Mutual Life Insurance Limited, Kotak Infinity, 7th Floor, Zone-4, Building No.21, Infinity Park, Opposite Western Express Highway, Gen. A.K. Valid Marg, Malad (E) Mumbai-400097 through its Chairman/Managing Director
……..Opposite Parties QUORUM: HON’BLE MR. RANJIT SINGH, PRESIDENT. HON’BLE MRS. RANVIR KAUR, MEMBER PRESENT: Sh.Devan Verma, Adv. counsel for complainant Sh. PS Gumber, Adv. For OPs
ORDER RANVIR KAUR, MEMBER - The present order of ours will dispose of the above complaint filed under Consumer Protection Act, by the complainant against the Opposite Party on the ground that In the month of April, 2009, the complainant received a telephonic call from opposite party No.1 for attending the meeting along with his wife and collect a free gift for her. On 28.04.2009, the complainant and his wife attended the said meeting where they were attended by Ms. Anju Bala, representative of the opposite parties, who advised that the complainant can avail deposit scheme with extra cover of insurance of Rs.2,00,000/- and a free gift. The said representative further assured that no deduction would be made from the deposit as the scheme is directly offered by the company. It is further apprised by the above said representative that the amount can be withdrawn after the lapse of three years, which will be more than Rs.1,00,000/- and the total time period of the policy of ten year and the complainant has to pay Rs.10,000/- half yearly as the premium for the ten years. The complainant came under the trap of representative of Ops, who lateron took the signature of the complainant on the application form and promised to complete the remaining part as per the terms for submitting the same to opposite parties for issue of policy documents of the insurance. The complainant believed on them in good faith in view of the assurance given by the representative of the responding. It was also represented that no hidden charges will be charged in this deal. It is further submitted that the opposite parties collected a post dated cheque No.922578 dated 01.05.2009 of Rs.10,000/- as half yearly installment of policy which was later on encashed by the opposite parties. The complainant, thereafter received the policy documents bearing No.01588657 on 29.05.2009 from the opposite party No.2 and the complainant was surprised/shocked to note that the policy terms were not as explained in the para 3 hereinbefore thus, the same was not acceptable to the complainant. The policy was issued in the name of complainant and Smt. Kamla Devi wife of complainant. A true copy of the policy dated 29.05.2009 is being attached. The complainant sent a registered letter dated 01.06.2009 to the office of opposite party No.2 within the free look period of 15 days and the policy is received on 29.05.2009 and the letter sent to on 01.06.2009 within two days that the terms of the policy are not acceptable to the complainant and requested the opposite parties for cancellation of the policy and to refund the amount to him. The said letter was received on 05.06.2009 according to the postal certificate obtained by the complainant from the postal authority. Infact the opposite parties willfully not act upon the request of the cancellation made by the complainant and continued the policy and when the complainant visit to the office of opposite party No.1 with request to cancel the policy or act upon the application moved by the complainant to the OPs regarding cancellation of the policy and at that time OPs told that they have not received the said application and as such they are unable to cancel the policy and further told that free look period has also been expired and now the complainant will get return the amount only after three year period with condition to deposit the atleast six premium amounting to Rs.10,000/- each half yearly and as such the complainant believed on the false representation of the accused. The complainant also came to know that on receiving the policy along with statement of account, the complainant surprised to note that one years installment of premium is kept aside to meet expenses which is not in order as per the insurance given and as such there is clear cut of deficiency in service on the part of the OPs. Thereafter, the complainant came to know that OPs in order to deficiency in service make a false statement regarding non receipt of cancellation letter, which he had already received and this facts came to know from the perusal of the certificate dated 07.07.2009 issued by post authority regarding received the letter on 5.6.2009 and certificate to this effect has also attached herewith. Thereafter, the complainant again visit to the office of OPs then the complainant showed the certificate issued by the postal authority regard to the accept the letter sent by him but they ignore the same and did not hear the request. On 15.6.2012, the complainant received a telephonic call from the opposite parties side that one Mr. Sanjeev Duggal will visit the house of the complainant along with cheque of Rs.94,210/- and ordered the complainant to keep ready ID proof, address proof, photographs. The complainant kept on waiting for the above said person but no person from the opposite parties came to the complainant in this regard. The complainant, however, vide letter dated 29.11.2012 received a cheque of Rs.19,914.99/- instead of Rs.1,00,000/- being total refund amount against the surrender value of the policy and the policy was terminated without giving any notice to the complainant and without his consent after three years. The complainant after receiving the said letter approached the office of OP No.1 and requested to refund an amount of Rs.1,00,000/- as promised by the opposite parties. However, the complainant returned the cheque dated 29.11.2012, on 12.12.2012 to the opposite party No.1 duly acknowledged. The official of the Opposite party No.1 again prevailed from the complainant to apply revival of the policy by saying that in case the complainant no revive it then they are unable to return the said Rs.1,00,000/- amount and as such the complainant found no other option agreed to said revival only with condition to return the money but said revival was again declined by the OPs vide SMS dated 24.12.2012. Thereafter, the complainant requested the official of the OPs that the surrender value given to the complainant against the policy is not acceptable to him and the complainant is ready for revival of the policy. The official of the OPs sent a vague reply dated 09.1.2013 to the complainant stating that the policy has been lapsed. The complainant again a sent letter dated 14.1.2013 that he has not received any mail. The complainant after waiting for a sufficient time approached the insurance ombudsman Chandigarh and submitted a complaint dated 12.7.2013. The Ombudsman of the Insurance Company called both the parties where the representative of the insurance company misrepresented the facts that the terms and conditions of the policy were conveyed to the complainant has not asked for the non acceptance of the policy. The insurance ombudsman dismissed the complaint on 10.03.2014 on the ground that the complainant has no availed the free look period which is totally wrong. Thereafter, the complainant approached the permanent Lok Adalat but Lok Adalat dismissed the complaint on the ground of proper jurisdiction on 01.06.2016. This Hon’ble Commission has jurisdiction to entertain, try and decide the present complaint as earlier petition was filed by the complainant was dismissed by Lok Adalat by saying that said Commission has no jurisdiction and that the payment of the policy made at Ludhiana and all the documents of the policy signed at the office of OP No.1 at Ludhiana. Infact, the parties are also residing and wrong for gain within the jurisdiction of this Hon’ble Commission. The aforesaid act of the opposite parties amounts to deficiency in service, unfair trade practice and it has caused mental as well as physical agony and also caused inconvenience to the complainant. Vide instant complaint, the complainant has sought the following reliefs:-
- To return the policy amount along with interest
- To pay Rs.2,00,000/- as compensation for damages
- To pay Rs.50,000/- for causing undue mental tension, harassment, agony, pain and deficiency
- To pay Rs.11,000/- as litigation expenses.
2. In reply, the OP No.1 has filed written reply taking preliminary submission; that the OP got its name changed, before the register of companies with effect from 3.11.2017, from Kotak Mahindra Old Mutual Life Insurance Limited to Kotak Mahindra Life Insurance Company Limited. The company is registered under the provisions of Section 3 of the Insurance Act, 1938 and the relevant provisions of the Companies Act, 1956 and is engaged in the business of providing life insurance cover to its customers across the length and breadth of the country. The allegations in the complaint, which are contrary to or inconsistent with what is averred herein are denied and that nothing in the complaint is or should be deemed to be admitted by or on behalf of the company for want of specific traverse. The averments herein are in the alternative and without prejudice to one another. OP craves leave of this Hon’ble Commission to submit any additional averments and the documents as may be required during the course of adjudication of the matter at hand. The complainant has approached initially to the office of insurance ombudsman, Chandigarh on 30.05.2013. the Hon’ble Insurance Ombudsman, Chandigarh has dismissed the complaint vide detailed order dated 10.03.2014. Copy of order 10.03.2014 is attached herewith as annexure Ex.1. Further in Para No.9 A of the complaint the complainant submit/admit that he wants to challenge the order by way of filing writ petition against the order passed by the Hon’ble Insurance Ombudsman, Chandigarh (which is right Commission to challenge the order passed by the Hon’ble Insurance Ombudsman, Chandigarh) But he could not file the same. Hence, it is clearly shows that the complainant is well aware of the process of appeal and law. Further this Hon’ble Commission does not attain the appellate jurisdiction to entertain the challenge of the ombudsman award. Hence, the present complaint is devoid of merits and is liable to be dismissed outright without going into the merit of the case. Thereafter, the complainant has approached the Hon’ble Permanent Lok Adalat on 15.6.2015. The Hon’ble Permanent Lok Adalat has taken cognizance of complaint and given fair opportunity to both parties. On receiving summons the OP company has filed the written statement and then tender evidence. After perusing the documents on records the Hon’ble PLA has passed a detailed order and dismissed the case of the complaint on merits. The Hon’ble Commission is having only original jurisdiction and has no appellate power. Since the case has already been decided by the Hon’ble Permanent Lok Adalat vide order dated 01.06.2016. So, this Hon’ble Commission has no jurisdiction to entertain the present complaint as the same is barred by the principle of resjudicata. Also the appellate jurisdiction for challenging the award passed by the insurance ombudsman as well as the order passed by the Hon’ble Permanent Lok Adalat is lying with the Hon’ble High Court. The policy in question is market linked insurance policy with incidental life cover, therefore, there is element of profit making involved in the purchase of the same and hence the complainant is not a consumer as the policy has been purchased for profit making purpose. That the present complaint is false, frivolous, vexatious and an abuse of process of this Hon’ble Commission and therefore, same is liable to be dismissed. The OPs states that the complaint is liable to be dismissed as material allegation has been made against the Broker who has sourced the said policy but he has not been impleaded a necessary party to the complaint. The complainant had procured the subject policy through an insurance broker namely corporate services. An insurance broker is an independent entity licensed by Insurance Regulatory & Development Authority of India, who advise their customers on their insurance needs and thereafter arrange insurance policies from any insurance company as per their own judgment and as per the customer choice. It is to be noted that the insurance companies do not enjoy administrative control over the insurance brokers All insurance brokers are governed by the provisions of IRDA Regulation, 2002 and IRDA also entertain complaints against insurance brokers. It is settled principle of law that a principal can be held vicariously liable for the acts of an agent, only where such act was within the scope of the agent’s authority. As per the terms of the policy contract if the policy is not suitable, the policy holder may get his/her policy reviewed by returning the policy and policy documents within 15 days from the day the policy holder received the policy. The insurance company will return the premium paid to the complainant after making certain deductions specified therein. In the present case, the complainant after the receipt of the subject policy and policy documents did not approach the Op and got his subject policy reviewed/cancelled within free look period implying that the complainant duly accepted the subject policy and its documents with its terms and conditions. The complainant never approached the answering opposite parties with any grievance pertaining to the subject policy and its terms and conditions within the free look period provided in the policies in question and has straight away filed the present complaint though he has approached the insurance ombudsman as well as the court of PLA Ludhiana, where his complaints have already been dismissed on merits. The complainant is now stopped from raising the same issues/grievances with respect to the subject policy. The complainant is bound by the policy contract and has given up/relinquish/waived his right by not exercising the free look provision. Moreover, the complainant given the major revival form in December 2012 and has paid six half yearly premium via cheques. Thus, the complaint under reply is devoid of merits and is liable to be dismissed. That in case titled as Pramod Kumar Vs SBI Life Insurance Company decided by DCDRF (North west) New Delhi, on 18.2.2014, wherein it has been held that we have heard the arguments advanced at the bar and have perused the record. The applicant has admitted that he had received the policy bond from which he had learned that he has being issued with another policy rather than the one for which he had made an complaint. If it was so the applicant had the option to reject the policy bond received by him within the free look period of 15 days. Since the applicant did not exercised the said option he cannot now raise a grievance about the same. In view of the judgment cited above, the answering OP hold that there is no deficiency in service on the part of the OP. Further it has been determind through catena of judgments passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi, in Mohan Lal Benal Vs ICICI Prudential Life Insurance Company Limited that if the insured/applicant is not satisfied with the policy taken, then he/she should avail the option of returning the policy within 15 days of receipt i.e. within the free look period. The said proposition has also clearly laid down in case Shrikant Murlidhar Apte Vs Life Insurance Corporation of India. The complainant has failed to demonstrate any deficiency in service on the part of the OP. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of a contract. In the present case, the OP has strictly acted as per the terms and conditions of the contract. Hon’ble Supreme Court has laid down the test of deficiency in service by stating that “the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and the manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the OP. The deficiency in service has to be distinguished from the tortuous acts of the OP. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the OP which otherwise do not amount to deficiency in service. In case of bonafide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed if on facts is I found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot b said that there had been any deficiency in service. If the action of the OP is found to be in good faith, there is no deficiency in service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. The present complaint is not maintainable under Section 24 A of the Consumer Protection Act, being barred by time. The subject policy was issued in April 2009 to the complainant. Now after the expiry of more than 9 years the complainant has approached this Hon’ble Commission seeking refund of the premium which is barred by limitation and complainant had also failed to seek condemnation of delay, having being filed more than nine years of the alleged cause of action. The complainant has sought a relief from this Hon’ble Commission which he is not entitled to get under the terms and conditions of the subject life insurance policy. It is submitted that the preliminary objections raised herein above with regard to the maintainability of the complaint, go to the very root of the matter and as such these objections need to be considered at the outset and the answering OP most humbly prays that this Hon’ble Commission may be pleased to dismiss the complaint summarily without going into the merits thereof. Further the complainant has availed the services of an insurance broker namely Corporate Services to source the subject policy. Further the material allegation has been made against the broker who has sourced the said policy but he has not been impleaded as necessary party to present complaint. The whole position has been explained in the preliminary objections. It is further stated that a policy bearing No.01588657 dated 21.2.2009 was issued to the complainant on the basis of the details and declarations contained in the duly filled and signed proposal form and the same was admittedly received by him and total of six half yearly premiums were paid by him. The complainant had received the policy documents along with the copy of proposal form as per Clause 4(1) and 6 (2) of IRDA Regulation, 2002, wherein the complainant had the option of cancellation of the subject policy within the free look period. It is further stated that the subject policy entered ACM mode due to non payment of renewal premium due on 21.5.2012 and was subsequently foreclosed due to depletion of fund value below one annualized premium. Hence, as per the terms and conditions of the policy fund value was refunded to the complainant. The complainant had also approached the insurance ombudsman with his grievances. After giving due consideration to the reply of the answering OP, documentary evidence put forth and arguments advanced, the Hon’ble Insurance Ombudsman was dismissed the complaint of the complainant against the answering OP. The complainant did not exercised his right to cancel the subject policy within the free look period if he was dissatisfied with the policy terms and conditions. Also admittedly he paid 5 subsequent half yearly premiums under the subject policy. It can be safely inferred from the conduct of the complainant that he was satisfied with the policy terms and conditions and the present petition is nothing but an after thought and with malafide intention seeks to wriggle money out of the answering OP. Rest of allegations made by the complainant against the answering OPs have been denied and prayed for dismissal the complaint. 3. In support of the complaint, the complainant has tendered various documents. On the other hand, the OPs also tendered certain documents in support of their version. 4. We have heard the learned counsel for the parties and have gone through the record of the file, carefully. 5. It is pertinent to mention here that the complainant has approached on 30.05.2013 the insurance ombudsman, where his complaint was dismissed vide order dated 10.03.2014. The complainant has also approached the Permanent Lok Adalat, Ludhiana, on 15.6.2015, which has dismissed his complaint vide order dated 01.06.2016 after hearing both the parties. 6. The complainant has not arraigned the broker, through whom he contracted the insurance policy and against whom he has raised many allegations, he being a necessary party. 7. The policy was issued to the complainant in April 2009, the OP after foreclosure of the policy has refunded the relevant alleged due amount (Rs.19,914.99/-) through cheque dated 29.11.2012 and the interest amount of Rs.99.97/- vide cheque dated 18.7.2014 which were not allegedly encashed by the complainant. 8. Now the complainant has been filed the complaint in the year 2018, which is undoubtedly beyond limitation. Ignorance of law is no excuse. Approaching the wrong forums one after the other, by the complainant does not seem bonafide, in the circumstances of the case. 9. Complainant does not deserve any relief on merits, his case being badly barred by limitation. However, in the light of the admission offer by the OP to be still willing to pay the refund of Rs.19,914.99/- and interest amount of Rs.99.97/- issued vide cheques dated 29.11.2012 and 18.07.2014 in the interest of justice, the complainant is hereby held entitled to said amounts from the due date with further interest @ 9% per annum till payment. In the above said circumstances, there is no order as to litigation or allegedly mental agony. Free certified copies of this order be sent to the parties, as per rules. The file be sent back to the District Consumer Commission, Ludhiana, for consigning the same to the Record Room. August 16, 2022 (Ranjit Singh) (Ranvir Kaur) RBT/ CC No.342 of 2018 Present: Sh. Devan Verma, Adv. counsel for complainant Sh. PS Gumber, Adv. For OPs Vide our separate detailed order of today, the complaint stands partly allowed. Free certified copies of this order be sent to the parties, as per rules. The file be sent back to the District Consumer Commission, Ludhiana, for consigning the same to the Record Room. August,16 2022 (Ranjit Singh) (Ranvir Kaur) | |
