Order-17.
Date-12/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant married a German Lady in April, 1974 and he took German Nationality since 1961 and now retired. He also possesses overseas citizenship of India almost equivalent to Indian citizenship. In fact, he started social works in India with his wife many years ago and founded an organization in memory of his parents in 2001 namely Deb Jyotsna Seva Pratisthan and engaged themselves with social works in India, specially in West Bengal to help the needy people. Complainant lost his wife in 2007 and after her death complainant wanted to give more time and absorb himself with this kind of social works with the saved money of his late wife and himself.
In the year 2007 he came to know that there is a branch of the Deutsche Bank in Kolkata and as they had a good relation with Deutsche Bank in Germany, he opened an account in Kolkata Branch and wanted proper guidance from them how to keep the money properly for his intended social work in India and the Bank sent one acquisition Manager for advisory services named Priyanka Ghosh who told her about his plans and programs and his intention to come back to India in 3-4 years to engage himself fully for the social works. As the complainant was a senior person aged about 68 years then the bank employee said that he would not need to go to bank himself to collect money, bank statement, anything else, the complainant will get everything brought home by him.
In March, 2008 complainant was prepared to go back Germany after passing his holidays ended in India but he had still lot of things to do and was busy with this and as there was enough money lying in the saving account of Deutsche Bank the said lady of the bank told him not to keep the money in fixed deposit form as it will not bring more than 10 percent return but to invest the money by one Birla Sun Life Insurance Life Insurance Company for three years with a yearly premium of Rs.10,000/- only which will bring certainly 20 to 25 percent yearly benefit and relying upon the assurance of the said lady and agreed with her proposal complainant signed some documents and went back to Germany in March, 2008 and before coming back to India in November, 2008 and sent a big amount of money to his account to the Deutsche Bank, Kolkata from his German Bank Account and the same lady of the Deutsche Bank, Kolkata came again and assured that whenever he needed anything from the Bank the complainant need only give her a call and she will come whenever it is necessary. Complainant wanted to open one another Bank Account for their charity organization Deb Jyotsna Seva Pratisthan with the Deutsche Bank and the employee of the Deutsche Bank tried earnestly to open a new account and for it she needed many documents, for which she had to visit the complainant often.
In December, 2008 the said Priyanka Ghosh brought another one Lady Miss Moumita Ghosh, an Yes Bank employee and introduced her as her very childhood friend of OP1 Priyanka Ghosh and told that if complainant had any objection, she comes with her and complainant did not object it and in this way Moumita Ghosh became slowly very acquainted with the complaint and one day again just few days before the complainant was getting ready to go back to Germany when he was very busy with his preparations and receiving relatives for farewell, marketing packing etc. and this time being so depressed to go back alone where his wife will not receive him anymore, at this mental stage, OP4 brought with her another one lady and introduced him as her friend Pinkey Dey (OP5) who works with Max New York Life, who told that there is a very good investment opportunity which will bring more than 20 percent return and it is only for three years duration and the OP4 who was very known to the complainant and OP5 begged almost for the investment and allured by them complainant handed over them a cheque No.927174 of SBI for Rs.1,00,000/- on 16-03-2009 and they told to the complainant that there is a medical check up necessary but that is just for a formality, physician will come to his place and the company will bear the cost and the doctor came next day for the check up.
Later on 18-03-2009 complainant left for Germany and policy book reached at his address what he could not read. Complainant again sent a very high amount from Germany to the Deutsche Bank Account in Kolkata and came again on 12-10-2009 to Kolkata, when Priyanka and Pinky came to him and requested the complainant very humbly to invest again a bigger amount of Rs.1,60,000/- and complainant paid it by Deutsche Bank Cheque No.572085 with the faith in OPs4 and 5 that the money will be matured after 3 years with a very good return which will be useful for his intended work. In fact complainant since his young age had no idea of Indian short and long term policies and as the OPs have not mentioned about any premium the complainant took it as a fixed deposit for a company for three years. The premium for the policy no.389902271 became due in next year in March, 2010 they revealed it to the complainant that he should pay a premium of same amount for the policies every year and it was still a three years term policy to understanding of the complainant, believe them that they will get matured after three years and paid the premium of Rs.1 lakh of it with a cheque of Deutsche Bank No.415181 dated 28-03-2010.
On 30-03-2010 three Max New York & Yes Bank employee came to the complainant’s house to settle a dispute regarding a Bank Statement taken by one Monoj Halder who was not known to the complainant, neither he had signed on the letter also the person Monoj Halder was not known to him and complainant lodged a police diary for it to find out the person behind it. Before the visitors left the complainant’s house, one Mr. Goutam Das of them told the complainant that there is another one policy which belongs to his and since the last premium of it was not yet paid, it was lapsed which is of Rs.15000/- and further he told that if the complainant pay the premium of this policy now, it will be active again. Complainant was quite surprised about this policy as he had no idea or information about it. There is no policy papers of it sent to him and he did not even know who sold this policy to him. In March, 2008 when the policy was sold to him either Miss Moumita Ghosh of Yes Bank or Miss Pinkey Dey who are known to him. Only Miss Priyanka Ghosh of the Deutsche Bank used to come to the complainant alone at that time but as an employee of the Deutsche Bank she was not legitimate to sell Max New York policy. Anyway, complainant gave Mr. Goutam Das not only the due premium but also for the next and last premium of March, 2011 altogether with a cheque no.006716 of Rs.30,000/- of SBI with a hope that the policy will be matured after one year i.e. in March, 2012 and he will get the maturity amount. During this visit Mr. Goutam Das brought a typed copy on a paper mentioning policy nos., customer name, premium, starting date renewal date, maturity date of the three policies as the complainant wanted to have note the same in details. On receipt that complainant was very glad and he took it as an authentic document and believed everything the OPs regarding maturity.
The cheque of the complainant was given to Mr. Goutam Das as premium for the policy 338922339, the due and coming premium for next year (Rs.30,000/-) which was then cashed by the company on 06-04-2010 but they refunded the money with a cheque of Yes Bank No.888767 on 26-07-2010 amounting to Rs.30,154/- after about four months, they asked the complainant to produce a witnessed health check up get down before paying the premium in the accompanied letter and the complainant was by that time already more than three months back went to Germany. Again complainant came to India in November, 2010 and after reaching he asked the OPs4 and 5 about the reason of the same but they told the complainant that they did not know the exact reason but if the company wants to have a medical report then it is only a formality and the company will bear the cost. Complainant was ready for medical check up but few days later he was told that he has to pay the cost of the check up from his own pocket ultimately he denied the medical check up on his own money. In fact, policy paper of this policy no.338922339 has not been received perhaps it could be detected from the handwriting who sold the policy to him.
Complainant also paid premium of Rs.1,59,860.40 for the policy No.800847055 with a Deutsche Bank cheque No.29-12-2010 and sometime in January, 2011 complainant came to know with the help of one finance advisor that the policies are all life term policies and will get matured after his death or after 100 years of his age and will not be matured after three years. For the policy no. 800847055 the premium shall be Rs.1,59,860-40 per year for 31 years i.e. Rs.49,60,000/- whereas sum insured is Rs.12,95,097/- plus bonus uncertain if declared, another policy No.389902271 the premium shall be Rs.1,00,000/- per year for 32 years i.e. Rs.32,00,000/- when sum insured is Rs.8,50,917/- plus bonus uncertain, if declared at all in case the insured survives for 100 years. Mathematical calculation goes like that the financial Advisor pointed out, and not after 3 years as the OPs told him. Complainant could understand that he has been trapped by the OPs by false representation telling untrue fact and committed breach of trust for wrongful gain of the OPs and that tantamounts to unfair trade practice. Complainant contacted the regional head Mrs. Srivastav and she came to the complainant’s house sometime in Feb/March 2011 to know about the grievance of the complainant, Mrs. Srivastav who verbally convinced the complainant to refund the monay and promised she try her best to refund the money and advised the complainant to contact her after the complainant come back in November, 2011. But subsequently it was found that the OPs deducted premium through ECS from his account without his knowledge and another occasion bank denied to pay due to shortage of fund in the account. It is true that complainant requested Pinkey Dey to destroy the ECS form but she had not done it and in this way they collected also the third premium but complainant wanted not to continue any policy instead he wanted the paid money back from the company but ultimately company did nothing and subsequently complainant received a letter dated 12-06-2014 from Max Life Insurance Company for NEFT payouts and submission of AML/KFC documents and all the documents they wanted were sent to them immediately after receiving the letter on 09-07-2014 but nothing has been matured or no amount has yet been returned. In this circumstances, complainant has prayed for relief for selling such items with misrepresentation by their men and agent and also for not lapse of the policies as OP for refund of the said disputed amount that is Rs.15,000/- against policy No.338922339, Rs.2 lakhs against policy no.389902271 and Rs.4,80,605-84 against policy No.800847055 and other relief.
On the other hand OPs1 and 2 by filing written statement submitted that OP1 received duly filled up and signed proposal form sent by the complainant on 30th October, 2009 and after necessary verification the policy was issued to the complainant on November 16, 2009 which was sent to the complainant vide speed post on 17-11-2009 and after receipt of ECS instruction was sent to the complainant’s bank account by the complainant the ECS was honoured and a receipt to that effect was generated on 03-11-2009 at his address provided by him on 22-10-2010. The ECS instruction which was sent was dishonoured due to the reasons “funds insufficient” and same was in the knowledge of the complainant but after waiting for a considerable time the OP1 through its Head office sent a lapse intimation to the complainant regarding abovementioned policy on 28-11-2010 and complainant after acknowledging the said renewal premium of Rs.1,59,860-40 vide cheque No.415186 and on receipt of the premium amount the OP1 issued an insurance premium receipt and the same was sent to the complainant. Thereafter, a request letter dated 16-02-2011 was sent by the complainant to change the nominee i.e. the complainant seek and therefore requested to insert the name of her sister Kasturi Dutta and on receipt of the same OP acceded to such request of the complainant and a letter of confirmation acceding such request dated 17-02-2011 was sent to the complainant and on 23-10-2011 an ECS instruction was sent to the complainant’s account and accordingly after necessary compliance a receipt was generated to the effect and that was sent to the complainant on 03-11-2011 and on 06-11-2012 complainant called on a toll free number to check the plan details and was informed appropriately regarding the same.
On January 27, 2012 after expiry of 27 months and for the first time the complainant alleged that the policy was mis-sold to him and after receipt of such allegation a reply was sent to the complainant on 09-02-2012, thereafter, by a letter dated 09-05-2012 which was received by the OP1 dated 15-05-2012, complainant contended that he want his money back on account of misspelling and in reply to the same the OP1 contended that since the cancellation was sought after the expiry of free look period and on earlier occasion the complainant had contended that the policy which was sold to him by forging his signature, therefore, without investigation of the entire case the refund was not possible and to that effect reply was sent on 12-07-2012. On 20-10-2012 a bonus statement was sent to the complainant along with an ECS instruction to the complainant’s account on good faith as the ECS so sent should have been honoured and a receipt was generated to that effect on 04-11-2012 and was sent to the address of the complainant towards the bonus statement along with the copy of ECS instruction which got dishonoured due to insufficient fund and customers was notified for the same.
In respect of policy no.389902271 OP states that OP received a duly filled and signed proposal form on 18-03-2009 and after necessary verification for the same the policy was issued on 26-03-2009 and same was despatched to the complainant’s address as noted in the polity on 20-03-2009 and on 22-10-2009 customer called to check the policy details and was informed accordingly. On 14-02-2010 a renewal premium notice regarding the above mentioned policy was sent to the address of the complainant and on 30-03-2010 complainant paid the renewal premium of Rs.1,00,000/- vide cheque No.415181 and on receipt of the said renewal premium on the next date a premium receipt was sent to the complainant.
On 19-11-2010 complainant called on followed by another call on 25-02-2010 to check the policy detail and was informed accordingly. On 14-02-2011 a renewal premium notice was sent to the complainant and getting no response the OP1 on 21-03-2011 made a renewal reminder to the complainant but no result.
On 02-03-2011 complainant made a request for the change regarding the nomination in form of letter to the OP and 25-03-2011 a letter confirming change of nomination was sent to the complainant by the OP1. On 15-04-2011 a lapse intimation was sent to the customer and on 27-01-2012 complainant for the first time raised an allegation of mis-selling of the policy.
In respect of policy No.338922339 it is submitted that OP received a duly filled and signed proposal form sent by the complainant and a policy was despatched at the address of the complainant and on 08-02-2009 a renewal premium notice was sent on 15-03-2009 and on 08-04-2009 a policy lapse intimation was sent to the complainant and having no response OP sent a letter dated 08-05-2009 to the complainant asking him to revive the policy followed by a reminder letter dated 08-07-2009 and on 06-04-2009 OP1 received a sum of Rs.30,000/- vide a cheque No.006716. Since the premium sent b the customer being a deficit amount a letter was sent by the OP1 to the complainant intimating short premium and a cash payment of Rs.154/- was made by the complainant on 13-04-2010.
On 31-07-2010 the premium of Rs.30,154/- was refunded to the complainant as the OP1 did not receive the reinstatement requirements and as the policy was in a lapsed mode for more than 180 days and so the same amount was refunded.
It is further submitted that the allegation of the complainant is false and fabricated in view of the fact complainant was agreed to invest his money and thereafter, handed over a cheque drawn on SBI for Rs.1 lakh on 16-03-2009. Since all the policies are insurance policy same is subjected to mortality values and the complainant being a senior citizen, thus a medical check up was a mandate at all materials times. It is further stated that OP1 received duly filled and signed proposal forms one in 2008 and other in 2009 and as per as per said duly filled in form the policy was proposed and was signed by the complainant and no doubt complainant was provided with the insurance coverage for this period could have met its obligations in case it was required to do so and also denied all other allegations but they have stated that he is a well known person and knowing fully well purchased it by paying premium through ECS by his banker and that was done. Thereafter, complainant paid money by issuing cheque so, in fact it was not a mis-selling and moreover the complainant filed a complaint before Ombudsman but Ombudsman dismissed the complaint as his claim for mis-selling was not substantiated but told to approach before proper Forum. Accordingly complainant filed this complaint with false allegation. It is further submitted that customer is highly educated person, he has agreed he was approached by agent to procure insurance policy which he readily agreed to take up and paid initial premium later on realizing that policy is lapsed he intentionally paid renewal premium however, by the time he paid policy was already lapsed and to re-instate the policy medical certificate were required as per re-instalment clause. So, there was no negligence. During free look period this cancellation was not made so, complainant is not entitled to get any relief in this regard.
Decision with Reasons
On proper consideration of the complaint and the written version and also relying upon the argument as advanced by the Ld. Lawyer of both the parties including complainant who is present personally before this Court. It is clear that complainant in respect of policy No.338922339 paid Rs.15,000/- against policy No.389902271 paid Rs.2 lakh and in respect of policy No.800847055 paid Rs.4,80,605-84. Undisputed fact is that the status of all the policies are lapsed but considering the entire facts and materials it is found that complainant is completely a man with spiritual belief and he is dedicated for the upliftment of the poorer children and after considering the entire complaint and the written version it is found that practically he used to reside at Germany permanently. Time to time he came along with his wife for social work and to observe the progress of the “Deb Jyotsna Seva Pratisthan” no doubt for protection of the society he deposited some money in Deutsche Bank and considering his fund employees of the Deutsche Bank invariably went to the complainant and practically as a social worker and spiritual man he relied upon those people i.e. Moumita Ghosh, Pinkey Roy, Sumita Srivastav etc. and in fact, he intended to invest the money for protection of their social organization “Deb Jyotsna”. Truth is that complainant is residing at Germany since 1961 and worked there having his passport with duel nationality as German and Indian. Fact remains he relied upon the employees of the Yes Bank and the Max New York Life Insurance company and they invariably assured the complainant that he shall have to get such relief against investment after 3 years on maturity and with such hope practically cheques were collected by Goutam Das, Pinkey Dey and some other agents. He signed in blank form because he was always busy in social work and the common practice of all the insurance company purchased to hunt the senior citizen and, in fact in the present case the age of the complainant was more than 67 years. Another factor is that one address that was given in the said application was the address of the complainant in India but truth is that most of the part of the year he used to reside at Germany. In the present case no doubt all the policies are lapsed policies and as per IRDA Guideline already published in 2012 and 2014 we have gathered that in case of general policy if it is found that policy is lapsed in that case insurance company shall have to refund the entire amount after deducting 5 to 10 percent as service charge but insurance company has no authority to forfeit the entire amount but this IRDA Guidelines is not followed by the OPs. In the present case we have realized that complainant has been cheated by the employees of the insurance companies we are of view that there is no doubt to believe the contention of the complainant and the allegation as made by the complainant. On the other hand OPs have not denied the overact of the other OPs that is OPs 3, 4 and 5. Another factor is that in the policy date of birth of the insured in that application is 12-06-1941 but it is the case of the OP that policies was purchased in the 2008 or 2009 that means the policies was purchased at the age of 67 as per OP but no medical examination was made but subsequently, OPs asked for medical examination but that is not the position of law but it is mandatory to open any new policy in respect of any senior citizen who is already crossed 60 years. So, apparently, it is found that without applying the mandatory provision of medical check up of senior citizen at the time of opening the policy shall not violated but somehow or otherwise and to misleading the complainant their staff OPs 3,4 and 5 managed to procure signature in separate forms without giving him any chance to realize what would be the fate.
Another factor is that duration of the policy is up to 16-03-2041, if we consider this condition then it can be said that the policy maturity period is in the year 2041 when the complainant shall have to cross century of his age, such a condition is completely void in view of the fact that the condition is completely with absurd condition and no reasonable and prudent man shall have to purchase such policy if he thinks that he shall have to pay premium up to 100 years of his age and that is the maturity date.
Considering all these conditions we are convinced that all these policies were mis-sale. No chance was given to the complainant to realize what would be the fate if he purchases the policy once. Another factor is that no reasonable and prudent man shall have to purchase any policy till completion of his age 100 years. Another factor is that no consent letter of the complainant was taken prior to opening of the policy by the insurance compnay but that is mandatory as per IRDA guidelines and in the present case it is proved. Many tactics are adopted by the insurance company to allure the customer in such a manner by alluring a person managed to procure the signature and collecting some premium open the policies as per their choice and in the present case it is found that the present insurance company never met the complainant or never saw the complainant to fill up the application form but after considering the entire matter it is found no doubt it is a mis-sale and it was done by their employees OP3 to 5 and they are in the market and fact remains through those employees they are running their business and cheating the public at large. At the same time after thorough study of the materials we find that complainant had no intention to purchase an insurance policy for protecting his life but he intended to invest some money for the purpose of that Seva Pratisthan and in the proposal form the name of the Seva Pratisthan is also noted and what we have gathered from the entire materials that the complainant is not devoted about worldly affairs so, he had no intention to purchase policy for his own security and safety of life or protection of his life because he is childless and his wife died and everything is done by him for the benefit of the said Seva Pratisthan “Deb Jyotsna” and we have learnt from the record that Deb Jyotsna is already in the field of social service for the interest of poorer sections of child they already established relations with Ramkrishna Mission and some other Pratisthan and considering such sort of act of the complainant we are convinced that he is a man who is thinking for socially retarded child, poor child, spastic child for which he is intended to fix some amount for 3 years for such benefit for rendering proper fund to that Seva Pratisthan not for his own purpose and for his protection of life or not for getting any benefit for him or his family member. It is most surprising that OPs have tried to convince that everything was done with the knowledge of the complainant but the complainant did not at all apply his mind but relied upon the alluring words of the employees of the OPs that is OPs 3 to 5 and issued cheque and signed some papers and that was converted in fact. Complainant had no intention to purchase any life insurance policy for protection of his life but only intended to invest some amount for the protection of Seva Pratisthan so that after a short period i.e. after 3 years he shall get a better interest and that shall be invested for the betterment of the Seva Pratisthan to serve the poorer section of the child in the society.
After taking all the materials including the purpose of the complainant for investment we are convinced that OPs and their employees managed to procure signature by alluring the complainant and stating some false fact of maturity etc. and opened the same and it is no doubt a mis-sale and such sort of mis-sale is rampant and in most of the cases the retired persons are being deprived at first because all the insurance companies officers, dalals, brokers are hunting after the retired person because after retirement they have some lucrative amount and retirement benefit. So, they assured that after 3 years the amount would be heavy but in the meantime entire amount is forfeited by the insurance company and in this case similar incident happened. So, we are convinced that it is no doubt a mis-sale. No positive information regarding the fate of merit regarding payment of premium etc. was properly ventilated and that is the common feature in respect of private insurance. In this context we may express with any hesitation that till now we have not received any complaint against LICI that any mis-sale is made for last 4 years. In the present service in this Forum we have never received any such complaint against sale of product against the LICI and that is also an example in the case which must be followed by all the insurance companies but we have gathered that the private insurance companies shall have to close their doors if their cheater dalals and brokers are found not rectified and follow the policy of LICI and truth is that ICICI Prudential, Bajaj Allianz, the present OP company, DHFL and all other insurance companies have floated cheat financial advisor/agent through out the market daily for collecting premium because it is their business to collect premium anyhow knowing fully well that ultimately customer will not continue such premium in future when they would declare the policy as lapsed and that is the capital of the private insurance companies. In the present case also having followed the same path they deceived the complainant in all respect. Knowledge does not work always because sometimes we rely upon the sellers and their words at the time of purchasing any article and relying upon such facilities customers purchase it for that reason that sale cannot be treated as genuine sale but such sort of sale is always found mis-sale and the present case mis-sale is proved and in this regard it is to be mentioned that insurance company has not made allegation against OPs 3, 4 and 5 that means they swallowed the allegation against OPs3 to 5 who are related with the present insurance company.
Considering all the above materials and findings we are convinced to hold that as per IRDA Guidelines of the year 2012 and 2014 in respect of lapsed policies insurance company shall have to refund the entire amount after deducting 5 to 10 percent as service charge and when in the present case the policies are already lapsed policy then OPs shall have to pay back the entire amount of Rs.6,95,605/- after deducting 5 percent over the said amount as service charge to the complainant along with litigation cost in view of the fact OP can easily refund the same as per IRDA Guidelines but that has not been followed and, in fact, the entire business as continued by the OPs, are completely a deceitful mater of trade.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OPs 1 and 2 and dismissed against other OPs without any cost.
OPs 1 and 2 are hereby directed to pay the entire amount of Rs.6,95,605/- as against the said three lapsed policies after deducting 5 percent from the said amount along with litigation cost of Rs.5,000/- within one month from the date of this order to the complainant failing which for non-compliance of the Forum’s order OPs 1 and 2 are jointly and severally shall have to pay penal interest at the rate ofRs.10 percent p.a. over the said amount till full satisfaction of the decree and even if it is found the OPs are reluctant to comply the order then OPs1 and 2 shall be prosecuted u/s.25 read with Section 27 of the C.P. Act for which further penalty and fine shall be imposed.
