Punjab

Fatehgarh Sahib

CC/245/2013

paramjit Singh - Complainant(s)

Versus

Kotak MOhindra old mutual Life insu.comp - Opp.Party(s)

Sh Surinder Mohan

16 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                                                          Consumer Complaint No.245 of 2013

                                                        Date of institution:  27/11/2013     

                                                       Date of decision   :  16.09.2015

Paramjit Singh son of Harjinder Singh resident of village Nogawan, Tehsil Bassi Pathana and District Fatehgarh Sahib.

……..Complainant

Versus

1. Kotak Mahindra Old Mutual Life Insurance Company Ltd. Branch Office- 2^nd Floor, Purewal Complex, Samrala Chowk, G.T.Road Khanna, through its Branch Manager.
2. Kotak Mahindra Old Mutual Life Insurance Company Ltd. Regd. Office- 9^th Floor, Godrej Coliseum, Behind Everard Nagar, Sion (E), Mumbai 400022, INDIA, through its MD/Chairman.

…..Opposite parties

Complaint under Sections 12 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                                       Smt. Veena Chahal, Member                                                   Sh. Amar Bhushan Aggarwal, Member     

Present :    Sh. H.S.Bhutta, Adv.Cl. for the complainant.                                          Sh. M.L.Singhi, Adv.Cl. for the OPs.

ORDER

By Sh. Ajit Pal Singh Rajput, President.

                  Complainant, Paramjit Singh son of Harjinder Singh resident of village Nogawan, Tehsil Bassi Pathana and District Fatehgarh Sahib, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.               The complainant purchased a life insurance policy bearing No.02178796 of OPs named Kotak ACE on 30.11.2010 and paid three premiums of Rs.2,00,000/- each i.e. Rs.6,00,000/- in total.  The policy in question was sold by agent of OPs namely; Avtar Singh, and at the time of offering the policy the complainant was assured by the said agent that if the complainant pays first three premiums then the complainant will be entitled to get back all the premiums paid by him along with 9% interest p.a. on demand at any time. Accordingly, the complainant signed few blank forms and papers.  It was also assured that the OPs will send original policy documents to the complainant within 90 days but even after the expiry of the said time they failed to send the policy documents in spite of repeated requests and visits on the part of the complainant.  On 25.05.2011 the complainant gave a written application to supply the policy documents but instead of giving the policy documents, the said agent assured that the policy documents will be sent in three months but the OPs again did not send the policy documents to the complainant.  Thereafter, in the first week of October 2011, the said agent handed over only photocopy of annexure A-1 i.e. first premium certificate.  On 29.08.2012 the complainant again gave a written application to OP No.1 to supply the policy documents but in vain. Thereafter, except supplying policy deposit receipts the OPs did not supply any policy documents to the complainant.  Thereafter, the complainant sent a legal notice dated 02.09.2013 through his counsel, requesting them to refund the premium paid plus up to date interest within 30 days but the OPs neither sent any reply nor made any payment, which amounts to deficiency in service and unfair trade practice on the part of the OPs. Hence, this complaint for giving directions to the opposite parties to pay Rs. 6,00,000/- as premium amount along with Rs.93,000/-, as interest and Rs.50,000/-, as compensation and litigation expenses.

3.               The complaint is contested by opposite parties No.1 and 2, who filed joint written reply. In reply to the complaint it took preliminary objections that the complaint is barred by the period of limitation as mentioned under Section 24 of the Consumer Protection Act; the present complaint is not maintainable and this Forum has no jurisdiction to entertain the present complaint. The OPs stated that the complainant had submitted a duly filled up and signed proposal for insurance and on the basis of information and declarations provided in the said application form, the premium as per the underwriting rules/guidelines of the company, the proposal was accepted by the company at standard rates and policy was issued. The said policy documents were dispatched to the complainant through speedpost via AWB No.EM615008885IN on 27.12.2010. The policy terms and conditions along with a copy of proposal form were also sent with the policy documents and the same were duly received by the complainant. The complainant retained the policy document and did not approach the company with any discrepancies regarding premium payment, benefits, foreclosure, surrender and the policy terms and conditions, neither did he approach the company for cancellation of the policy during the free look period thereby implying that he had agreed to all the terms and conditions of the policy.  The complainant had also signed a benefit illustration after fully understanding the terms and conditions of the policy from which it is clear that the complainant very well aware about all the terms and conditions of the policy.  Apart from the subject policy, the complainant had also applied for other policies from the OP company, from this it is clear that he had complete knowledge about the features and nature of the insurance business.  As per current status, the policy in question is in force but under notice period as per the IRDA discontinued guidelines 2010, since the complainant had not paid due premium on 22.12.2013 and the OPs had informed the complainant about the notice period, vide a letter dated 21.01.2014. It is further stated that insurance being a contract between the policyholder and the company and both are governed by the terms and conditions mentioned in the policy document and all the benefits are payable strictly as per the policy terms and conditions. It is further stated that as on 14.02.2014 current fund value in the said policy is Rs.6,13,043/-. The fund value will vary since the same is based on the NAV of the units on the prevailing date of surrender. The benefit under the policy can be availed as per Clause III Benefits on discontinue of policy under the Head (C) Benefits Payable or the situation or case may be. After denying the other averments made in the complaint, they prayed for dismissal of the complaint.

4.               In order to prove the case, the complainant tendered his affidavit Ex. C-8, attested copy of first premium certificate Ex. C-1, attested copy of policy deposits receipts Ex. C-2 & Ex. C-3, attested copy of letter dated 25.05.2011 Ex. C-4, attested copy of letter dated 29.08.2012 Ex. C-5, copy of legal notice Ex. C-6, postal receipt Ex. C-7 and closed the evidence. In rebuttal the OPs tendered in evidence affidavit of Priti Sawant, Chief Manager(Legal) Ex. OP1/1, copy of proposal form Ex. OP1/2, true copy of letter dated 23.12.2010 along with agreement and schedule, definition, other conditions etc Ex. OP1/3, true copy of letter dated 21.01.2014 Ex. OP1/4, true copy of application for fund switch bearing dated 20.05.2013 Ex. OP1/5, true copy of application dated 12.07.2013 Ex. OP1/6, true copy of application dated 23.09.2013 Ex. OP1/7, copy of detail of various charges Ex. OP1/8 and closed the evidence.

5.               The ld. counsel for the complainant has submitted that the main controversy involved in the present case is whether the insurance policy was supplied/sent to the complainant or not. He has submitted that the OPs have not produced any postal receipt, acknowledgement, postal certificate, dispatch register or delivery report, showing the fact of sending the original policy documents. The ld. counsel pleaded that the complainant had been sending requests to the OPs to supply the Policy documents but the OPs failed to supply the same as it is evident from request letters i.e Ex.C-4 and Ex.C-5. There is not a single documentary evidence of the OPs in this regard. The ld.counsel also stated that the present complaint is within the territorial jurisdiction of this Forum as the proposal form i.e Ex.OP1/2 was signed and executed at Fathegarh Sahib, therefore part of cause of action arose in favour of the complaint to file the present complaint before this Forum. He has argued that in view of number of judgments of Hon’ble Supreme Court and Hon’ble National Commission in the present case also adverse inference may be drawn as the OPs have failed to prove whether policy alongwith the terms and conditions were supplied to the complainant. The ld. counsel relied on the judgment of Hon’ble National Commission in case titled as The Oriental Insurance Co. Ltd Vs Satpal Singh & others,2014(2)CLT 305 (NC),wherein it has been observed in para no. 9 that “ We are of considered view that, onus of proof lies upon OP Nos.1 to 3 to prove that policy, along with terms and conditions, was supplied to the complainant. OPs had not produced any cogent evidence in this regard. The counsel for the Petitioner drew our attention to the relevant portion of the cover note, which reads as:- “The insurance under this policy is subject to conditions, clauses, warranties, exclusions, IMTs and OIC endorsements, mentioned herein above, which are available on Company’s website: The ld. counsel further argued that the present complaint is also covered by the aforesaid judgment of Hon’ble National Commission and in view of the judgment, terms and conditions of the Policy are not applicable to the complainant as he was never supplied with the same.

6.               On the other hand, the ld. counsel for the OPs submitted that the submissions of the ld.counsel for the complainant cannot be considered by this Forum as this Forum does not have the territorial jurisdiction to adjudicate upon the present case. The ld. counsel stated that the OPs are not having any branch office within the territorial jurisdiction of this Forum as enumerated in Section 11 of the Act.

7.               After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that there is force in the submissions made by the Ld. Counsel for the complainant. The evidence tendered Ex.C-8 i.e. affidavit of complainant, copy of receipts of premium payments i.e Ex.C-1 to Ex.C-3, copy of letters i.e Ex.C-4 & Ex.C-5, alongwith copy of legal notice Ex.C-6, and postal receipt i.e Ex.C-7 clearly proves the case of the complainant. The OPs have not been able to rebut the case of the complainant. The OPs have failed to place on record any document which can prove that the policy documents were delivered to the complainant at his postal address. This Forum has the territorial jurisdiction as the Proposal form was got signed at Fatehgarh Sahib as it is evident from Ex-OP1/2. Moreover, the OPs have themselves not disputed the territorial jurisdiction as per para no.6 of the written statement. In view of the above discussions and the case law titled as The Oriental Insurance Co. Ltd Vs Satpal Singh & others,2014(2)CLT 305 (NC) (Supra) we find that the policy documents were not supplied to the complainant and OPs have committed deficiency in service by not supplying the original policy documents to the complainant despite his repeated requests. With regard to refund of the premiums paid by the complainant, it has come to the notice of this Forum that Hon’ble National Commission in the case of Life Insurance Corpn.of India and Ors Vs Siba Prasad Dash(Dr.) and Ors. IV(2008)CPJ 156 (NC) has observed that “they are unable to appreciate as to on what ground the District Forum and State Commission could direct refund of premium? The  Premium is given by an insured to cover the risk for a given period, and the insurer covers the risk for the period for which the premium has been paid. It is not the case of the complainant that the risk was not covered for the period for which the premium was given. If after that the policy lapsed, under no provision of terms of policy or law, could any fora direct for refund of any premium for the simple reason, as already stated, that the risk stood covered for the period for which premium had been paid”.

8.               Accordingly, we partly accept the present complaint against the OPs for being negligent for not supplying of the original policy. We direct the OPs to make the payment of the surrender value to the complainant, as he had deposited three premiums, alongwith 9% interest p.a from the date of payment of third premium i.e. 09.01.2013. Further the complainant is also directed to complete all the formalities required for payment of surrender value within 45 days from the date of receipt of this order and the OPs shall pay the surrender value within 30 days from the date of receipt of surrender value form. The complainant is held entitled to a sum of Rs.10,000/- on account of suffering of mental agony and harassment in the matter of non delivery of original policy documents by the OPs. The complainant is also held entitled to a sum of Rs.5000/-, as litigation cost. The OPs are directed to comply with the order of this Forum within a period of 45 days from the date of receipt of this order, in case the OPs fails to comply with this order with regard to costs, the OPs shall also be held liable to pay 6 % interest till its realization.

9.               The arguments on the complaint were heard on 08.09.2015 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:16.09.2015                                                                  (A.P.S.Rajput)                                                                                                                            President

(Veena Chahal)                             Member

(A.B. Aggarwal)                           Member