Jammu and Kashmir

Jammu

CC/219/2017

SUDHIR SHARMA - Complainant(s)

Versus

MAX NEW YARK INSURANCE - Opp.Party(s)

NITYAM DUTTA

06 Oct 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No              380/DFJ         

 Date of  Institution   :  30-12-2016

 Date of Decision      :    11-09-2018

 

Sudhir Sharma,

S/O Late Sh.Ved Parkash Sharma,

R/O 239 Sector-D Sainik Colony,

Jammu.

                                                                                                                                        Complainant

       V/S

1.Max New York Life Insurance,

  Head office S.C.O.No.101,102,103,

  2^nd Floor,Batra Building,Sector 17-D,

Chandigarh-160017.

2.Branch Manager,

  C/O Plot No.62^nd Floor,Fruit Market Complex,

Transport Nagar,Narwal,Jammu.

                                                                                                                                          Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)      President

                  Ms.Vijay Angral                                                              Member

                  Mr.Ghulam Sarwar Chauhan                                        Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Nityan Dutta,Advocate for complainant, present.

Nemo for OPs.

 

                                                             

                                                       ORDER

                            Facts relevant for the disposal of complaint on hand are that; complainant is said to have obtained a Policy of Max New York Life on,26-08-2010 under policy No.774401921 against the monthly premium of Rs.4,000/-against which the complainant will get the benefit of Rs.4,80,000/against the completion of time period of the policy,i.e.in the year 2021(copy of policy is annexed as Annexure-A) That in lieu of the same complainant had deposited total amount of Rs.80,000/-till October,2012.According to complainant, after depositing the last premium in the month of October,2012 because of the death of his father and due to some other domestic problems, complainant was not able to deposit the remaining premium of the insurance policy. It is further submitted due to which the policy was lapsed. Complainant further submitted that in the month of March,2013 he approached OP2 i.e. Branch of Max Life Insurance and discussed the details of the problem of non depositing of the premium, who in turn made some verbal promises in order to renew the policy within few days, but after expiry of one month when he did not get any response from OP2 then he again visited OP2 for the same and again same assurance was given to him, then at last complainant approached OP1 telephonically and OP1 also gave assurance that OP will look into the matter and try to sort out the same in his favour.Allegation of complainant is that after waiting a long, finally complainant again approached OP2 with a letter dated 07-08-2014 in which he discussed his grievance and hardships, but no reply was ever given by OP2 till date,(copy of letter is annexed as Annexure-B) and after waiting ,complainant again approached OP1 in order to settle his grievance through e-mails and in the reply through e-mail it is stated that the policy of complainant is  surrendered in the records of OP1  and policy cannot be renewed because the revival end date was 28-02-2014(copy of same is annexed as Annexure-C).Further allegation of complainant is that the lapse in the premium of policy was not deliberate or intentional, but it is due to circumstances which are beyond control and if the policy of complainant is lapsed one, there is no condition that the same cannot be renewed. The condition No.12 of the policy clearly deals with the Revival of policy in case of lapse. It is further submitted that the condition itself declares that any lapsed policy can be renewed within 24 months that means the last premium given by complainant was October,2012the policy of complainant can be renewed  till October,2014.It is further submitted that the reply in e-mail received by complainant it is mentioned that the status of the policy is surrendered in the record of OP1.It is important to mention here that Condition No.10 deals with the condition of surrender of a policy and the same is as under:

              The policy holder may by making a written request surrender the policy at any time after the first policy anniversary provided atleast two annual premiums have been paid. On receipt of request for surrender off the policy, the policy shall terminate and surrender value prevailing on the date of surrender shall be paid. No further benefit will be paid.”(copy of terms and conditions is annexed as Annexure-D).

Constrained by the act of OPs complainant sent a legal notice to OPs on,25-10-2016 and in reply to notice, it is mentioned that to this effect, we express our inability to cancel the policies and refund the premium paid.Also,this policy cannot be revived and cannot be surrendered. It is further submitted that the Ops have refused to make payment of premium, which act of omission and commission on the part of Ops constitutes deficiency in service,therefore,complainant seeks direction to Ops for making payment of premium amount of Rs.80,000/-and in addition also prays for compensation of Rs.40,000/-including litigation charges.

                             Notices were sent to the OPs alongwith copies of complaint through registered covers with acknowledgment due and also through publication in newspaper in State Times Dated,07-10-2017, but they did not choose to represent their case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so their right to file w/v stands closed by this Forum and  complainant was ordered to produce evidence by way of affidavits in support of the complaint.

               Complainant adduced evidence by way of duly sworn evidence affidavit  and affidavit of Shallu Sharma.Complainant has placed on record, copy of proposal form, copy of premium payment details, copy of letter,, copy of mail, copy of schedule, copy of terms and conditions, copy of legal notice copy of reply and clipping of newspaper published in State Times dated 07-10-2017.

            We have perused record and heard complainant and L/C for Ops.

                        Specific allegation of complainant is that; he had obtained a Policy of Max New York Life on,26-08-2010 under policy No.774401921 against the monthly premium of Rs.4,000/-against which the complainant will get the benefit of Rs.4,80,000/against the completion of time period of the policy,i.e.in the year 2021 and  in lieu of the same complainant had deposited total amount of Rs.80,000/-till October,2012,but, after depositing the last premium in the month of October,2012 because of the death of his father and due to some other domestic problems, hewas not able to deposit the remaining premium of the insurance policy and the policy  was lapsed. Complainant further submitted that in the month of March,2013 he approached OP2 i.e. Branch of Max Life Insurance and discussed the details of the problem of non depositing of the premium, who in turn made some verbal promises in order to renew the policy within few days, but after expiry of one month when he did not get any response from OP2 then he again visited OP2 for the same and again same assurance was given to him, then at last complainant approached OP1 telephonically and OP1 also gave assurance that OP will look into the matter and try to sort out the same in his favour.Allegation of complainant is that after waiting a long, finally complainant again approached OP2 with a letter dated 07-08-2014 in which he discussed his grievance and hardships, but no reply was ever given by OP2 till date and after waiting ,complainant again approached OP1 in order to settle his grievance through e-mails and in the reply through e-mail it is stated that the policy of complainant is  surrendered in the records of OP1  and policy cannot be renewed because the revival end date was 28-02-2014.Further allegation of complainant is that the lapse in the premium of policy was not deliberate or intentional, but it is due to circumstances which are beyond control and if the policy of complainant is lapsed one, there is no condition that the same cannot be renewed. Constrained by the act of OPs complainant sent a legal notice to OPs on,25-10-2016, and in reply to notice, it is mentioned that to this effect, we express our inability to cancel the policies and refund the premium paid.Also,this policy cannot be revived and cannot be surrendered. It is further submitted that the Ops have refused to make payment of premium, which act of omission and commission on the part of Ops constitutes deficiency in service.

                        The complainant in his own affidavit and  affidavit of Shallu Sharma have supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving his case as narrated by him in the complaint. The complaint is fully supported by the affidavit of complainant, and affidavit of Shallu Sharma,so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments of complainant in complaint. This is a case of deficiency in service. The Ops despite service of notice, sent by the Forum through registered cover, as well as, through publication have not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the Ops in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OPs omits or fails to take any action to represent their case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OPs omits or fails to taken any action to represent their case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                      Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                       Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                       In addition complainant has also supported the averments contained in the complaint by duly sworn his own affidavit and affidavit of Shallu Sharma which are corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by Ops.

                      Therefore, in view of aforesaid discussion, the complaint filed by the complainant for redressal of his grievance is allowed and Ops are directed to refund  Rs.80,000/-(i.e. the premium amount paid by the complainant to OPs)alongwith interest  7% w.e.f.01-10-2012 till its realisation to the complainant. Complainant is also entitled to compensation of Rs.10,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.10, 000/-, respectively. The Ops  shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

    11-09-2018                                                                       Jammu.

Agreed by

                                                               

 Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member