Versus
Max Life Insurance Co. Ltd., 11th Floor, DF Square Building, Jacaranda Marg, DLF City Phase II, Gurugram (Haryana) -122002 through its CEO, Director, Chief Manager. …..Opposite party
Complaint Under section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Gaurav Saggi, Advocate.
For OP : Sh. Gurjeet Singh, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Succinctly put, the facts of the case are that the complainant is a Doctor by profession and on the representation of the representative of the opposite party, the complainant got himself insured from the opposite party vide policyNo.857408769 dated 19.12.2011 for a period of 20 years. The premium of Rs.99,998.32 was to be paid in installments on 19th December of every year for a period of 6 years, which was payable for a period of 6 years from the effective date of coverage and thereafter, no further premium was required to be paid for remaining duration of coverage as per schedule. As such, the complainant paid Rs.5,99,989.92 till 19.12.2017 i.e. paying regular premium for 6 years @Rs.99,998.32 per year. The complainant stated that in the year 2020, during Covid-19 pandemic period, he was forced to surrender the policy on 27.06.2020 after 10 years due to family circumstances and he was refunded Rs.4,60,177.80 instead of whole premium of Rs.5,99,989.92 and the balance amount of Rs.1,39,811.52 had been wrongly retained by the opposite party without any rhyme and reason. The complainant sent a legal notice dated 15.05.2021 to the opposite party which was responded by an evasive reply by the opposite party. Hence this complaint whereby the complainant has sought relief for issuing direction to the opposite party to refund the amount of Rs. 1,39,811.52 along with compensation of Rs.1,00,000/-.
2. Upon notice, the opposite party appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of concealment of material facts; lack of cause of action; the complainant has no locus standi maintainability of the complaint etc. According to the opposite party, the complainant purchase Max Life Gain Plus 20 years 6 pay plan policy, which was issued on 19.12.2011 and premium was paid till 19.12.2017. The opposite party shared the calculation of surrender value as on surrender effective dated 27.07.2020. As per the policy contract under General Provisions Section (sub Section: Cash Value), the policy will acquire cash value if it has been in force for at least three years and provided all the premiums that have fallen due have been received. The Guaranteed cash value in this policy will be 30% of the Premium(s) (Excluding the first year's Premium) received. After the policy has acquired Cash Value, the complainant may opt to surrender this policy. The surrender value payable will be subject to the condition that the Policy is in full force and that there are no statutory or other restrictions to the contrary. The Surrender Value payable will be equal to Cash Value less any loan including interest accrued to date of surrender, which is reproduced as under:-
Guaranteed Cash Value/Surrender Value (GSV) = 30% of total premiums
paid (Excluding first year:-
= 30% (98,476.86*(6-1)
= 30% 4,92,384.30
+ Rs. 1,47,715.29
Non-Guaranteed Cash Value/Surrender Value=4,60,177.00
The opposite party further stated that at the time of sales, as per the signed illustration in the Schedule, the illustrated Non-Guaranteed surrender value at assumed return of 6% was Rs.4,50,305/- and at assumed return of 10% was Rs.5,60,356/- at the end of 9th policy year. As per the opposite party the actual surrender value (Rs.4,60,177.80) ascertained by the system look reasonable when compared to the illustrated surrender value at lower and higher assumed investment return as the guidelines of IRDA. The illustrated assured interest rate of 6% and 10% are not the minimum or maximum scenarios under the plan but illustrative expected outcomes at a lower and higher fund returns. The complainant surrendered the policy on 27.07.2020 and the amount of Rs.4,60,177.80 had been credited in his account on 27.07.2020 through NEFT and no more amount is payable to the complainant. The opposite party further stated that the complainant is a doctor by profession and the policy was purchased by the complainant after reading the terms and conditions of the policy and now he cannot take benefit of ignorance. Moreover, there is no relation between the complainant and opposite party after the policy is surrendered by the complainant and refund is made to him.
On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
3. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents i.e. Ex. C1 is the copy of policy schedule page, again Ex. C1 is the copy of proposal form, Ex. C3 is the copy of legal notice dated 15.05.2021, Ex. C3 is the copy of reply to legal notice dated 16.08.2021 and closed the evidence.
4. On the other hand, counsel for the opposite party tendered affidavit Ex. OP1/1 of Ms. Aanchal Yadav, Senior Manage, Legal of the opposite party along with documents Ex. OP1/2 is the copy of reply to legal notice dated 16.08.2021, Ex. OP1/3 is the copy of welcome letter and policy documents and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.
6. Admittedly, the complainant obtained a policy No.857408769 dated 19.12.2011 for a period of 20 years by paying a premium of Rs.99,998.32 which was payable for 6 years only. During the time of Covid-19 pandemic, the complainant himself surrendered the policy for which an amount of Rs.4,60,177.80 was paid to the complainant. The only grievance raised by the complainant is that because he had invested Rs.5,99,989.92 (the amount of premium paid for 6 years) and he has been paid less amount of Rs.1,39,811.52. He had also served a legal notice dated 15.05.2021 Ex. C3, which was duly replied upon by the opposite party vide Ex. C3 dated 16.08.2021. The opposite party in its reply had explained the criteria of determination of surrender value, the operative part of which reads as under:-
"As mentioned in the policy contract under Genera Provisions Section (Sub-Section: Cash Value). This Policy will acquire cash value if it has been in force for at least three years and provided all the Premium that have fallen due have been received. The guaranteed cash value in this policy will be 30% of the Premium(s) (excluding the first year's Premium) received. After the Policy has acquired Cash Value, you may opt to surrender this Policy. The Surrender Value payable will be subject to the condition that the Policy is in full force and that there are no statutory or other restrictions to the contrary. The Surrender Value payable will be equal to Cash Value less any loan including interest accrued to date of surrender.
Here,
Guaranteed Cash Value/Surrender Value (GSV) -30% of total premiums paid (Excluding first year-
=30%. (98,476.86*(6-1)
= 30% 4,92,384.30
+ Rs. 1,47,715.29
Non-Guaranteed Cash Value/Surrender Value = 4,60,177.00
Further at the time of sales, as per the signed illustration in the schedule, the illustrated Non-Guaranteed Surrender value at assumed return of 6% was Rs.4,50,305 and at assumed return of 10% was Rs.5,60,356 at the end of 9 Policy year.
The actual Surrender Value (Rs.4,60,177.80) ascertained by the system look reasonable when compared to the illustrated surrender values (stated above) at lower and higher assumed invested return."
In spite of receiving the details of calculations, the complainant opted to file the present complaint. Perusal of Ex. C1 shows that the premium payable Rs.98,476.86 subject to usual taxes. It appears that while calculating the surrender value account amount, the complainant has not taken into account the taxes paid while paying the premium. Further, the complainant could not point out any terms and conditions of the policy which entitles the refund of taxes as well. The initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.
7. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-
19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and 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 wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-
"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."
The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.
8. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
9. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra)
Member Member President
Announced in Open Commission.
Dated:16.08.2023.
Gobind Ram.
Dr. Pritpal Singh Vs Max Life Insurance Co. CC/22/260
Present: Sh. Gaurav Saggi, Advocate for the complainant.
Sh. Gurjeet Singh, Advocate for the OP.
Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra)
Member Member President
Announced in Open Commission.
Dated:16.08.2023.
Gobind Ram.
