Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 480.
Instituted on : 02.09.2011.
Decided on : 12.07.2016.
Amit Kajal s/o Sh. Satyawan Singh R/o H.No.26/209 Subhash Nagar, Rohtak.
………..Complainant.
Vs.
- Max New York Life Insurance through it Branch Manager of Local Branch Delhi Road, Opposite power House, Rohtak.
- Manjinder Singh Virk s/o Sh. Balihar Singh R/o Dera Kaithal Road, Asandh, Distt. Karnal, the then Branch Manager, Max New York Life Insurance.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.K.S.Dangi, Advocate for the complainant.
Sh.Rajesh Sharma, Advocate for the opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that opposite party no.1 approached through opposite party no.2 on 31.08.2009 for getting its policy at Rohtak. It is averred that complainant purchased a policy and paid Rs.50000/- as installment of one year as the mode of payment was chosen by the complainant as annual. It is averred that regarding this opposite party no.2 got filled up the form of insurance and got the signature of the complainant. It is averred that the complainant was surprised when he received the copy of policy no.758665368 and it was found that the mode of payment has been shown as quarterly and the installment also has been shown Rs.50000/- quarterly i.e. the complainant has to pay Rs.200000/- yearly. It is averred that not only the signature of the complainant on policy and writing on form has also been forged one. It is averred that complainant approached the opposite parties and asked them to correct the mode of policy and amount of installment i.e. Rs.50000/- annually. It is averred that opposite party no.2 admitted that there is a misselling and he will get the policy cancelled within 60 days but the opposite party did not get cancel the policy and the complainant had to written to the opposite party No.1 but despite assurance given by the opposite parties, grievance of the complainant are stands till. It is averred that the act of opposite parties of misselling and forgery is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to refund the deposited amount of Rs.50000/- alongwith interest or to regularize the policy by fixing the installment of Rs.50000/- yearly and also to pay compensation of Rs.50000/- on account of deficiency in service and causing mental agony and harassment to the complainant.
2. On notice, the opposite parties appeared and filed their written reply submitting therein that on 31.08.2009 after understanding all the terms and conditions of the policy, the complainant filled up a proposal form bearing no.758665368 for a “Max New York Life-Smart Xpress(ULIP-3 Pay) Plan giving all relevant details and information in the prescribed form for an assured sum of Rs.1000000/-(Rupees ten lac only). It is averred that original policy document was received by the complainant on 15.09.2009 however the opposite party received the policy cancellation request only on 23.07.2010 which was much outside the freelook period. It is averred that during this period the opposite party had also sent premium payment notice and policy lapse intimation but there was no single complaint from the complainant regarding the alleged mis-selling or the non-receipt of the policy document for which the complainant be put to strict proof of it. It is averred that during the investigation it was found that the original policy document was duly delivered to the complainant on 15.09.2009 and therefore the request of complainant to cancel the policy and refund the premium amount was declined by the opposite party. It is averred that there is no deficiency in service on the part of opposite parties. As such the dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the Complainant in his evidence has tendered affidavit Ex.CW1/A, Ex.CW2/A, documents Ex.CW1/B to Ex.CW1/Q as well as Ex.C1 to Ex.C19 and has closed his evidence. On the other hand, ld. Counsel for the opposite parties tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R14 and has closed his evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per the proposal form Ex.C1 the complainant had availed policy from the opposite parties and had deposited an amount of Rs.50000/- as premium. The contention of ld. Counsel for the complainant is that the complainant was misguided by the opposite parties about the policy premium and after coming to know about the fact of policy and premium, complainant applied for cancellation of policy as he was unable to pay the huge premium. It is averred that the complainant had received the policy document in the month of July 2010 and as such he has requested the opposite parties to refund the alleged amount but the same was not refunded. On the other hand, contention of ld. Counsel for the opposite parties is that the policy bond was delivered to the complainant on 15.09.2009 however the opposite party received the policy cancellation request only on 23.07.2010 which was much outside the freelook period, as such he is not entitled for any relief.
7. After going through the file and hearing the parties it is observed that complainant had applied for cancellation of policy but the opposite party has not cancelled the same on the ground that the complainant had not applied for the same within 15 days of free look period from the date of issuance of policy. As per the letter Ex.R3 the policy bond was delivered to the complainant on 15.09.2009 through Tracon Couriers Pvt. Ltd. but to prove this fact opposite party has not placed on record any document e.g. acknowledgment, dispatch number, receipt number etc. Hence by merely placing on record copy of letter, the delivery of the policy document to the complainant is not proved on file. As such the opposite parties cannot take the benefit of the terms and conditions of the insurance policy. In this regard reliance has been placed upon the law cited in III(2014)CPJ 96(Punj.) titled SBI Life Insurance Company Ltd. Vs. Amrit Kaur & Ors. whereby Hon’ble Punjab State Commission, Chandigarh has held that: “Complainant had not received insurance policy with full terms and conditions-No evidence on record as to when insurance policy was dispatched to the complainant by OP No.1-No question of taking the benefit of free look period clause thereof by complainant-Unfair trade practice established-OP No.1 is actually beneficiary of insurance policy and its liability has to be fixed jointly and severally with OP Nos. 2 and 3” and Hon’ble National Commission in 2014(2)CLT 305 titled The Oriental Insurance Co. Vs. Satpal Singh & Ors. has held that: “ Insured not bound by the terms and conditions of insurance policy unless it is proved that policy was supplied to the insured by the insurance company-Onus of proof that terms and conditions of the policy were supplied to the insured lies upon the insurance company”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the opposite parties have failed to prove that the policy was delivered to the complainant. Hence the plea taken by the opposite parties regarding applying for refund of amount within free look period is not applicable to the complainant. As such the opposite parties are liable to refund the premium amount to the complainant. Moreover as per application for settlement dated 29.05.2014, opposite party is ready to pay the amount of Rs.50000/- to the complainant.
8. In view of the facts and circumstances of the case it is observed that opposite parties shall refund the amount of premium of Rs.50000/-(Rupees fifty thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 02.09.2011 till its realisation and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
12.07.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
……………………………………
Ved Pal, Member.
