DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Gurdial Singh Sarao, aged 91 years, s/o Sh. Dalip Singh, R/o H.No. 2393, Sector 35-C, Chandigarh.

              ---Complainant

Vs

[1]  Max New York Life Insurance Co. Ltd., 11^th Floor, DLF Square, Jacaranda Marg, DLF, Phase-II, Gurgaon.

[2]  Sh. Ganesh Corporate Services Ltd., Panckhula. {Deleted vide order dated 6.3.2012}

[3]  Max New York Life Insurance Co. Ltd., SCO No. 36-37-38, 1^st Floor, Madhya Marg, Sector 8-C, Chandigarh. 

---- Opposite Parties

BEFORE:    SH. LAKSHMAN SHARMA             PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Sarabjit Singh, Counsel for Complainant.

Sh. Rajneesh Malhotra, Counsel for Opposite Parties No.1 and 3.

Opposite Party No.2 Deleted.

PER JASWINDER SINGH SIDHU, MEMBER

1.        Allured by the rosy picture, projected by the representative of the Opposite Parties, about the benefits of the policy floated by the OP-Insurance Company, the Complainant purchased Policy No. 701290637, by paying the requisite premium/installment as required by the representative of the Opposite Parties. It is alleged that he was delivered the policy documents & literature at a belated stage and on going through the same, the Complainant realized that he was misled, misinformed & kept in dark by the said representative; and the benefits/ promises, as made by the said representative, were totally false. Since the policy documents were not supplied to the Complainant well in time, it is claimed that he could not exercise the option to cancel by the policy during the look-in-period. The Complainant, tried to contact the said representative, but when he could not be contacted, upon inquiry from the office of the Opposite Parties, the Complainant was told that the said representative, who sold the policy in question, had left the job. Eventually, the Complainant served a legal notice dated 6.4.2011 upon the OPs, for the refund of the amount deposited. As the amount has not been paid, the Complainant has filed the instant complaint, with a prayer that the Opposite Parties be directed to refund the premium of Rs.20,000/-, along with compensation of Rs.50,000/- for rendering deficient services and indulging in unfair trade practice, besides Rs.5500/- towards cost of litigation.

         The complaint of the Complainant is duly supported by his detailed affidavit.

2.        Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.        Opposite Parties No.1 and 3 have contested the claim of the Complainant by raising preliminary objections to the effect that the Complainant has no locus standi to file the present complaint; this Forum does not have the territorial jurisdiction to try and decide the present complaint; the present dispute involves a disputed question of facts & law and hence, this Forum has no power to adjudicate the same under the summary procedure provided under the Consumer Protection Act, 1986; the complaint is liable to be dismissed on the ground of mis-joinder & non-joinder of necessary parties and there is no deficiency in service on their part as the Complainant after understanding all the benefits under the terms & conditions of the insurance policy agreed to purchased the policy by filling up the proposal form and that after the receipt of the insurance policy, the Complainant did not exercise the free look period option.

          On merits, the Opposite Parties have repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. It is pleaded that the Complainant called the Broker (Opposite Party No.2) for issuance of the Insurance Policy and after understanding all the benefits under the terms & conditions of the insurance policy agreed to fill up the proposal form No. 701290637 dated 17.12.2008 for issuance of the insurance policy (Annexure R-1). Subsequently, he wrote letter dated 19.12.2008 (Annexure R-2) expressing his desire to change the mode of premium and also gave a new cheque. Meanwhile, on the basis of the said proposal form, the insurance policy dated 25.12.2008 (Annexure R-3) was issued, along with the terms and conditions. It is denied that the policy documents & literature of the said policy was delivered to the Complainant at a belated stage. It is claimed that the no specific date has been mentioned by the Complainant as to when the policy was received by him. It is also claimed that after receipt of the insurance policy, the Complainant failed to exercise the free look period option. While admitting the receipt of legal notice dated 6.4.2011, it is pleaded that the same was duly replied by the answering Opposite Parties vide reply dated 19.4.2011 (Annexure R-4). Denying all other allegations of the Complainant, Opposite Parties have prayed for dismissal of the complaint.  

          The reply of the Opposite Parties is duly verified, and is supported by a detailed affidavit of Juhi Kulshestra, Assistant Manager (Customer Care), Max New York Life Insurance Co. 

4.        On a separate statement given by the learned counsel for the Complainant to the effect that he do not press the complaint against Opposite Party No.2, the name of Opposite Party No.2 was ordered to be deleted from the array of Opposite Parties vide order dated 6.3.2012.

5.        Having gone through the entire complaint, version of the Opposite Parties No.1 & 2, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

6.        The Complainant who had subscribed for a Life Insurance Policy, by filling up a proposal form no. 701290637 on 17.12.2008, claims that he received policy document at a much delayed stage; thus, denying him an opportunity for a free look-period. The Complainant also claims that the representative of the Opposite Parties created a rosy picture about the benefits of the said policy, but the same is not reflected in the policy document received at his end. The Opposite Parties have categorically admitted that the said policy was actually cancelled on the request of the Complainant which was received by them on 19.12.2008, through which the Complainant had desired a change in the frequency of premium. The Opposite Parties in para 2 of the reply  claim that the said policy was not even sent to the Complainant, as the request for a change was received by them on 19.12.2008. The Complainant was given a new number for the reason that the old policy bearing proposal no. 701290637 was cancelled. However, the Complainant has brought on record the original policy document bearing Proposal No. 701290637, which was raised on 25.12.2008 which confirms the acceptance of the premium amount of Rs.20,000/- given by the Complainant for this policy, as the proposal form tendered by the Opposite Parties mentions the cheque no. 033252 dated 17.12.2008 payable at Central Bank of India, Sector 35-D, Chandigarh. The Opposite Parties, while declaring that the said policy stood cancelled, has failed to make it clear as to what was the fate of the premium paid by the Complainant through Cheque No. 033252, dated 17.12.2008. At the same time, there is also no information about the fate of the subsequent Cheque bearing No. 033253, received by the Opposite Parties, as the Complainant while making a request for amendment in the original policy claims that he had stopped the payment of the premium through first cheque bearing No. 033252.   

7.        The Opposite Parties in order to substantiate that the request of the Complainant for necessary amendments was entertained and another policy bearing No. 702317496 was raised, have brought on record the said second policy at page -45 of their reply, Annexure-R3. Claiming that as there is no fault on their part the claim of the Complainant of loss suffered by him does not deserve to be entertained. We have perused the document bearing Policy No. 702317496, though it bears the date 1.1.2009, but it does not contain the Proposal Form, on the basis of which this Policy was raised. It is also interesting to note that both the copies of the Policies bearing No. 701290637 and 702317496 bear the No. as 1 to 38 at their bottom end, meaning thereby that the entire policy documents in both the cases contained only 38 no. of pages. However, the original policy document of the Policy No. 701290637, tendered by the Complainant, contains 44 Pages, meaning thereby that the documents tendered by the Opposite Parties purported to be the copy of the original, as per their records, is altogether wrong. 

8.        The Opposite Parties while denying the request of the Complainant for the cancelation of the Policy, through their communication, dated 19.4.2011, once again, mention the No. of the Policy as 701290637. Meaning thereby, that as far as Opposite Parties are concerned, this Policy still existed in their records, and the same was not cancelled till the date of writing of this letter. Meaning thereby that the request of the Complainant dated 19.12.2008, was not at all entertained by them, and even though this request was made much before the raising of the Policy on 25.12.2008.   

9.        The Opposite Parties has failed to prove that at what point of time, these policies were dispatched to the Complainant and were duly received by him. So that his request for a free look period became valid. The Opposite Parties have also failed to mention the date of request for the cancellation in their communication dated 19.4.2011, through which the cancellation request of the Complainant was ignored.   

10.       From the documents on record, it is abundantly clear that the first policy bearing No. 701290637 was not cancelled, and the Opposite Parties used the subsequent Cheque bearing No. 033253 for raising the Policy bearing No. 702317496, and that too, without a Proposal Form for it. The act of the Opposite Parties of encashing the second Cheque for raising the second policy, bearing No. 702317496, is totally uncalled for, and amounts to deficiency in service and unfair trade practice. As the Opposite Parties have failed to confirm the date of dispatch of the second policy also, to our mind, as the Complainant is not in the knowledge of second policy, he is totally ignorant of the fact that his both the cheques have been used by the Opposite Parties for raising two different policies. The Opposite Parties have also not proved that the subsequent Cheque bearing No. 033253 was returned to the Complainant, for the reason that the premium paid for the first policy, was adjusted, while raising the subsequent policy, after cancelling the first policy.  The Opposite Parties have not substantiated that they have not used the second Cheque bearing No. 033253 for raising the fresh Policy by bringing on record that in what manner the premium paid for the first Policy was returned to the Complainant or if the second cheque dated 18.12.2008 was not used and was duly returned and was received by the complainant.

11.       Hence, it is conclusively proved that the policy bearing No.701290637 issued on 25.01.2009 to the Complainant after his request dated 19.12.2008 for necessary amendments was not cancelled but was effective date without the changes requested by the complainant which is a bad practice on the part of the Opposite Parties and at the same time, raising another Policy bearing No. 702317496, without any valid written  request, by way of a Proposal Form, is a much bigger mistake on their part. Thus, we feel that the Opposite Parties do not have any right to retain the consideration amount received by them against both these Policies.      

12.       In the light of above observations, we are of the view that the Opposite Parties No.1 and 3 are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 & 3, and the same is allowed. The Opposite Parties No.1 & 3 are jointly and severally directed, to:-

[a]  To refund the amount of Rs.40,000/- received by them through Cheques bearing No.033252 dated 17.12.2008  and No.033253 dated 18.12.2008; 

[b]  To pay Rs.25,000/- as compensation on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c]  To pay Rs.5,000/- as cost of litigation;

13.       The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 & 3; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 12 above, apart from cost of litigation of Rs.5,000/-, from the date of institution of this complaint, till it is paid.  

14.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

03^rd December, 2012.                                             

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER