Tamil Nadu

StateCommission

CC/174/2014

Dr.Capt. S. Srinivasan, - Complainant(s)

Versus

Managing Director, Corporate Office, Kotak Mahindra Old Mutual Life Insurance Ltd, - Opp.Party(s)

M/s.P.T.Geotom

21 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                        PRESIDENT

               TMT. S.M.   LATHA  MAHESWARI,                                      MEMBER  

 

C.C.No.174/2014

MONDAY, THE 21^st DAY OF FEBRUARY 2022.

 

                                                                           Complaint filed on: 11.11.2014        

                                                                           Orders Pronounced on: 21.02.2022

 

Dr. Capt. S. Srinivasan,

Flat No.100,  C Block,

AWHO Parameswaran Vihar,

No. 67, Arcot Road,

Saligramam,

Chennai – 600 093.                                                                                                                                                Complainant    

 

                                       Vs

 

1.    Managing Director,

       Corporate Office,

       Kotak Mahindra Old Mutual Life Insurance Ltd.,

       4^th Floor, Vinay Bhavya Complex,

       159-A, CST  Road,

       Kalina, Santa Cruz (E),

       Mumbai – 400 098.  

 

2.    Regional Manager, 

       Kotak Mahindra Old Mutual Life Insurance Ltd.,

       1^st Floor, Smith Road,

       Anna Salai, Chennai – 600 002. 

 

3.    Branch Manager,

       Kotak Mahindra Old Mutual Life Insurance Ltd.,

       1^st Floor,  Smith Road,   

       Anna Salai,

       Chennai – 600 002.                                                                                                                                           Opposite Parties    

      

Counsel for the Complainant              :   M/s. P.T. Geotom,   Advocate.   

Counsel for the Opposite Parties 1 to 3:   M/s. A.S. Kailasaam,  Advocate.                                                

           This complaint is coming before us for final hearing on 17.12.2021 and on hearing the arguments of both sides, on perusing the material records and having stood over for consideration till this day, this Commission made the following ;-

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.   

 

1.           This complaint has been filed by the complainant under section 17,  r/w section  12 of the Consumer Protection Act, 1986 against the opposite parties 1 to 3  for a direction to return Rs.99,900/- with interest at the rate of 12% per annum and also to pay compensation of Rs.20,00,000/- for mental agony suffered and Rs.5,00,000/- for physical stress and Rs.50,000/- for economical loss suffered by him and Rs.20,000/- as litigation expenses.       

2.            The facts which are necessitated the complainant to make a claim is as follows;-   The complainant being a doctor by profession, retired from military service and is presently working as a Professor-cum-Surgeon in Arupadai Veedu Medical College, Pondicherry.  In order to take insurance policy for the benefit of his grandson, he visited the website by name and style of “policybazaar com”. Even to obtain information from the said website, it is mandatory to enroll himself / herself by furnishing details such as name, mobile number etc. Accordingly, the complainant furnished the required details.  Thereafter, in August 2013, the complainant was contacted by one Sunitha Suresh, an agent of the opposite parties insurance company and claimed her Agent Code Number as 60143732  and told the complainant that she had obtained information about him from the above mentioned website, “policybazaar com” thereafter the said agent approached the complainant in person. The said agent of the opposite parties insurance company explained the complainant about the various insurance policies. The complainant evinced interest in taking a policy styled as “Kotak Child Advantage Plan (UIN – 107N008VO1)”. The plan was described as “Endowment Assurance for Children”. Thereafter, the agent requested the complainant to sign some blank application form to enroll him in the insurance policy.  When the complainant asked the agent as to why the form was not filled up, the agent had replied that she would fill it up later.  In good faith, the complainant had signed the document and also issued a cheque No.686321 dated 27.09.2013, drawn on Oriental Bank of Commerce, Vadapalani Branch for a sum of Rs.99,900/- as premium for the first year of the policy.  After a week, the above said Sunitha came to the residence of the complainant to update him about the stage of the certificate relating to the policy that he had taken. At that time, she further requested the complainant to make another payment of Rs.50,000/- and requested him to take another insurance policy for the premium of Rs.50,000/- per year.  Accordingly, the complainant issued a cheque No.686321, dated 03.10.2013 drawn on Oriental Bank of Commerce , Vadapalani Branch for Rs.50,705/- as requested by the said agent. Thereafter, the policy was issued to the complainant by the opposite parties within one month on submissions of the form by the said agent with the premium of Rs.99, 919/ per year for 15 years.  Upon receiving the certificate of policy, the complainant was shocked to find that in the policy certificate, it had been wrongly mentioned the name of insured and the insurer by interchanging them.  Upon noticing the same, the complainant immediately contacted the said agent through her Mobile No.9884672345 and she assured that the error would be rectified as soon as possible.   Thereafter, the complainant requested the said agent by repeated calls and to correct the error but she did not take any steps to rectify the same instead she started to avoid the calls deliberately.  Subsequently, her phone remained switched off once and for all.  In such a situation, dissatisfied with the attitude of the said agent, the complainant approached the branch office of the opposite parties at Chennai  and met the Branch Manager and requested him to cancel both the policies and refund the premium amount of Rs.1,50,000/- paid by him. But, the 3^rd opposite party, Branch Manager requested the complainant not to cancel the policy in which he had already enrolled and agreed to refund the premium amount in respect of the other policy. Further, the Branch Manager promised the complainant that all his grievances would be rectified immediately.  It is the specific case of the complainant that the Child Advantage Policy, as stated above, which states that after the demise of Parent/Guardian, the child is the beneficiary, instead the policy names him as the beneficiary in the event of death of the Child, Lohith Krishna.V.   After much persuasion by the officials and the apology tendered by them for the behavior of the above said Sunitha, the complainant decided to continue with the policy as it was promised to be carried out in the policy. In spite of promise given, no action was taken by the 2^nd sand 3^rd opposite parties till date.  The opposite parties’ have not made required changes in the insurance policy as promised by them. After suffering untold mental agony and physical and economical strain, the complainant had insisted the opposite parties insurance company officials to close the policy and return the amount invested by him with interest.  But, there was no response from the opposite parties. Hence, finally, the complainant issued a legal notice on 23.09.2014 and the same was received by the opposite parties but there was no reply.  Thus the opposite parties 1 to 3  have committed gross negligence and deficiency in service hence the complainant has come forward with this consumer complaint claiming the reliefs as stated supra.   

3.       The complaint was resisted by the opposite parties 1 to 3 by filing a common written version wherein they have contended inter alia that the complaint does not disclose any cause of action against the opposite parties.  The dispute raised in the complaint, only pertains to the amount of Rs.99,900/- and the complainant just to bring within the pecuniary jurisdiction of this Commission, has arbitrarily sought for exorbitant compensation of Rs.20,00,000/- and other reliefs without any basis.  The complaint is bad for non-joinder of necessary parties viz., Suresh Sunitha, agent with whom the complainant had interacted regarding the subject matter and transaction and as such she is a necessary and proper party for adjudicating the present complaint.  In the absence of the said agent, no effective order can be passed in the matter. The complainant failed to seek cancellation of the subject policy bearing No.2810036 within freelook period, thus as per the terms and conditions of the policy,  the insurance contract is binding on the complainant and hence the complainant is not entitled for refund of the amount of Rs.99,900/- as claimed in the complaint.  On request of the complainant, the company issued the following three policies to the complainant.  

 

_________________________________________________________________________________

Policy  No.                2810036                    02817383                  02849044  

Proposer Name         Srinivasan                  Srinivasan                  Srinivasan

Life Insured Name     V. Lohith Krishna        V. Lohith Krishna        V. Lohith Krishna   

Plan Name                Kotak Child                Kotak Child                Kotak Child  

                               Advantage Plan           Advantage Plan         Advantage Plan

Proposal Received     25.09.2013                30.09.2013                24.12.2013

Date

Policy Issue date       29.09.2013                08.10.2013                31.12.2013 

Term of policy          15 Years                     30 Years                    12 Years

Premium amount      Rs.99,919/-                 Rs.50,720/-               Rs.50,772/-

Premium                  Annually                     Annually                    Annually 

Frequency                  ___                             ___                            ___

Premium paying        15 Years                     15 Years                    12 Years  

term  

Name of Agent        Suresh Sunitha            Suresh Sunitha            Suresh Sunitha  

 

______________________________________________________________________________

 

In accordance with the Clause 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interest) Regulations 2002, every policy documents sent by the company to the policy holders is accompanied by a letter which clearly mentions that in case the policy holder is not satisfied with the terms and conditions of the policy, he/she can withdraw/return the policy within 15 days i.e., under the Freelook Period”.  Further, as per clause 4 (1) of the Insurance Regulatory and Development Authority, (Protection of Policy Holder’s Interest) Regulation Act 2022,  copy of proposal form duly signed by the policy holder was also sent along with the policy document to the policy holder. In the present case, the company sent the policies and the policies document to the complainant and the same were duly received by the complainant. In respect of policy No.2810036, on 30.09.2013 the policy document was dispatched through Blue-Dart courier vide AWB No. 32656370633 but it was returned undelivered with the report consignee out of station on 07.10.2013.  Again, the said document was dispatched on 23.10.2013 which was duly received on 28.10.2013 at the address given by the complainant.  In respect of  policy No.02817383, on 09.10.2013 the company dispatched the policy document through Blue-Dart Courier vide AWB 32656916902 but the same was returned undelivered with the report consignee out of station on 17.10.2013.  Again, the said document was dispatched on 24.10.2013 vide Blue-Dart AWB No.44091883651, but again it was returned back with the report of house locked on 05.11.2013.  Again, the documents were re-dispatched on 12.11.2013 through Speed Post vide AWB No.EM 9126869571N which was duly received by the complainant. In respect of policy No.02849044, the company dispatched the policy document through Blue-Dart courier vide AWB No. 32756862946 which was duly received by the complainant on 04.01.2014.  Hence, all the above policies have been duly received by the complainant and the same have been admitted in the complaint. Thereafter, the company received a letter, dated 29.11.2013 and also freelook alteration form from the complainant on 16.12.2013 wherein it has been mentioned that he wanted to change his policy term to 12 years instead of 15 years under the policy No.2810036 as his retirement is earlier.  The company rejected the said request of freelook alteration/cancellation on 16.01.2014 stating that as the request was outside freelook period, they were unable to process the same. It is pertinent to note from the records that the complainant in his own email dated 11.11.2013, filed a complaint which shows that the complainant never pointed out that the policy certificate was wrongly issued by mentioning the name of insured and the insurer by interchanging them. The complainant submitted freelook cancellation/ alteration form, dated 16.12.2013 and also a letter dated 16.12.2013 to the company mentioning therein that he had taken the policy bearing No.02817383 under the Kotak Assured Income Plan which he wanted to change into the plan Kotak Child Advantage Plan and submitted the required documents.  Upon receipt of the said request, the company cancelled the policy bearing No.02817383 and transferred the proceeds of the same, issuing the policy bearing No.02849044 under the Kotak Child Advantage Plan to the complainant. Copies of the request letter dated 16.12.2013, cancellation request form and other documents have been enclosed.  As per clause 3 of the Proposal Form the complainant had voluntarily opted for a policy term, premium payment term and frequency of premium payment.  At the time of filing of the proposal form, the complainant opted to become the policy holder under the policy and had stated the name of his grandson Mr. Lohith Krishna V. as life insured, subsequently, based on the details specified and the documents submitted, the policies were issued in the complainant’s name, wherein the complainant was the policy holder and grandson Mr. Lohith Krishna V. as life insured which is evident from the proposal form and the policy documents. The complainant has never mentioned about the interchanging of the name of insured and insurer and it is nothing but afterthought of the reply.  Therefore, absolutely, there is no negligence or deficiency in service on the side of the opposite parties and hence the complaint has to be dismissed.

4.         In order to prove their case, the complainant and the opposite parties  have filed their respective proof affidavit.  On the side of the complainants, Exhibits A1 to A16 were marked and Exhibits B1 to B5 were marked on the side the opposite parties.

5.      Heard the submissions of both sides and perused the materials available on record.  Though very many contentions have been raised on either side, it is the main grievance of the complainant that in August 2013, he was contacted by the agent of the opposite parties insurance company who explained about the various insurance policies of their insurance company to the complainant. The complainant evinced interest in taking the policy styled as “Kotak Child Advantage Plan “UIN – 107N008VO1)” and the said plan was described as “Endowment Assurance for Children”.  Thereafter, the said agent requested the complainant to sign in some blank application forms to enroll himself in the insurance policy.  In good faith, the complainant had signed the blank application form and issued cheque for Rs.99,900/- as premium for the first year of the policy and later when received a copy of the insurance policy,  he found that instead of mentioning that  after the demise of the Parent or Guardian the Child is the beneficiary it has been wrongly mentioned in the policy that the complainant is as the beneficiary in the event of  death of his grandson, the child,  Lohith Krishna V.  This was brought to the knowledge of the officials of the opposite parties insurance company to make the requisite changes in the policy and the officials of the opposite parties promised the complainant necessary changes would be done and requested him not to cancel the policy.  But, thereafter they have not done anything.   It is also the case of the complainant that though he had insisted the opposite parties to close the policy and return the policy amount with interest and even for that no response was made till date by any of the opposite parties. Therefore, there is deficiency in service on the part of the opposite parties.  But, according to the counsel for the opposite parties, any request for changes in the policy should have been made by the complainant within the freelook period of 15 days from the date of receipt of the policy.  But the complainant neither made nor did putforth any request within the freelook period. Moreover, the complainant has neither undergone any economic loss nor had he suffered any physical stress when he took these policies with the opposite parties, but wants to unjustly enrich himself by filing this complaint before this Commission and thus they sought for dismissal of the complaint.    

6.        It is evident from the factual aspects of the case that the agent of the opposite parties has committed a blunder mistake while filling-up the proposal form instead of mentioning that after the demise of the Parent or Guardian, the child is beneficiary, but the policy names the complainant as the beneficiary in the event of death of the child, Lohith Krishna V.  It is the common knowledge that the complainant who is grandfather of the child would have taken the policy only for the welfare of the child.  Without knowing the fact, a  mistake has been committed by the agent in filling up the proposal form which would have naturally caused sufferings and mental agony to the complainant for which the opposite parties are liable to pay compensation. That apart, we also find from the factual aspects that the complainant had approached the opposite parties on several occasions to cancel the policy and refund the amount paid by him.   But, the complainant was made to run pillar to post but nothing fructified. If the policy could not be cancelled after a free look period of 15 days, the opposite parties could have informed the same at the initial stage itself to the complainant. Here, in the instant case, the complainant was made to believe by the agent as if the mistake which crept in the policy would be rectified but finally wriggled out without doing anything.  Further, it is a common knowledge that nobody would like to continue the policy by having the name as beneficiary in the event of death of his grandson.  Therefore, in our considered view, the opposite parties have committed gross-negligence in their duty by wrongly mentioning the complainant’s name in the policy as beneficiary in the event of demise of his grandson and further failed to return the amount after cancellation of the said policy and thereby committed deficiency in service as against the complainant for which they are liable to pay compensation to the complainant besides refund of the amount paid by him. Therefore, the complainant is entitled for the relief as decided supra.  

7.          In the result the complaint is allowed in part and the opposite parties 1 to 3 are directed jointly and severally to refund the amount of Rs.99,900/- after duly cancelling the said policy with interest at the rate of 9% per annum from the date of issuing cheque  on 27.09.2013, to the opposite parties insurance company till the date of payment in respect of the insurance policy No.02810036 and also to pay a sum of Rs.5,00,000/- as compensation for mental agony and hardship undergone by the complainant with cost of Rs.10,000/- to the complainant. 

                 Time for compliance; Two months from the date of receipt of copy of this order, failing which the amount of compensation of Rs.5,00,000/- shall carry interest at the rate of 9% per annum from the date of order till its realization.

 

 

 

 

 

S.M. LATHA MAHESWARI,                                                                                                                     R. SUBBIAH,

           MEMBER.                                                                                                                                          PRESIDENT. 

 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Feb/2022