D.O.F. 23.03.2012
D.O.O.13.01.2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 13th day of January, 2014
C.C.No.95/2012
Mahesh C.K.,
Sreepuram,
Kolari P.O. : Complainant
Ayyallur, Mattannur (Via),
Kannur – 670 702
1. Max Newyork Life Insurance Co. Ltd.,
5th Floor, KVR Tower,
Kannur – 2
(Rep. by Adv. Sajith Kumar Chalil)
2. Max Newyork Life Insurance Co. Ltd., : Opposite Parties
Max House, 3rd Floor,
Dr. Ja Marg, Okhla,
New Delhi - 110020.
(Rep. by Adv.Premkumar Singh)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite parties to pay `80,000 including `60,000 paid by the complainant.
The case of the complainant in brief is as follows : On the instigation of Agent complainant has taken an insurance policy from opposite party. He promised that the policy can be surrendered after three years and he will be eligible for more amount than that of what he had paid. After one year of taking policy when the complainant made enquiry he received paper print of statement of account. Therein it was found that the fund value was lesser than that of the amount deposited. Opposite parties were justifying it telling that it was due to bad market condition. Moreover, they have adjusted `10000 towards expense in various items. When he made further enquiry their answer was that everything has been written in policy document. They have agreed that the policy was taken after reading the terms and conditions so that nothing can be done further. When he asked how much amount he will get if the policy will be surrendered after three years they answered that he will be given deducting rupees `10000 from the fund value. If surrendered after completing three years, 50% of the first year payment should also be given. In the policy document it was shown after completion of 3 years `61,795 will be given. But opposite party says that on 20.03.2012 `43000 only will be given since there is no growth. The illustrate page alleged to be signed by him is only with figures and letters which are not understandable by ordinary persons. Opposite party’s response to detailed enquiry is that everything will be seen in website. Hence this complaint.
Pursuant to the notice send by the Forum opposite parties made appearance and filed version contending as follows : M/s. Max Life Insurance Company has changed its name from “M/s. Max New York Life Insurance Company” to M/s. Max Life Insurance Company Ltd.’ The complainant voluntarily applied for the policy after understanding the features of the policy. Complainant has consented in the proposal form itself for the investment of his amount of premium in Dynamic Opportunities Fund. Since it is a Musket oriented fund the investment in the same was open to the market risk. The complainant is well aware of the market risk. Complainant did not raise any objection after receipt of the policy document during the free look period. Quite a long time after issuance of policy complainant called opposite party to know fund value of the policy and the charges levied in the policy. The same was informed to the complainant. On 02.08.2011 complainant sent an e-mail stating his disappointment with the company. Response was sent on 03.08.2011. On 05.08.2011 complainant sent another e-mail. On 09.08.2011 he was called and explained him by the officials of opposite party the product details and the customer was satisfied with the same and agreed to continue the policy. On 08.10.2011 complainant again called to know the due premium and the same was informed to him. On 10.10.2011 complainant sent an e-mail to get the policy surrendered and is not satisfied with the surrender charge. It was replied on 13.10.2011. Another e-mail was send by the complainant on 13.11.2011 regarding procedure surrender. The process was informed him on 16.11.2011. On 26.11.2011 complainant send an e-mail to know his surrender value and the same informed on 28.11.2011. Further he was informed that if he surrender policy, he will get the value as per the surrender clause and will have to bear a loss, but if he continues for 20 years, it will fetch him the benefits as explained by the Agent. There is no deficiency in service on the part of opposite party. Hence complaint being devoid of any merits, dismissed.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled for the remedy as prayed in the complaint?
- Relief and cost.
The evidence consists of the evidence adduced by PW1 and Ext.A1 on the side of the complainant. So also Ext.B1 to B11 marked on the side of opposite parties. No oral evidence adduced on the side of opposite parties.
Admittedly complainant is a policy holder of Max Life Insurance Co. Ltd. The main case of the complainant is that he had taken the policy on the promise of the employee of the opposite party Manoj that the complainant would get at least an amount of `76000 on surrendering the policy after 3 years. Complainant adduced affidavit evidence that there is real growth in the investment but artificially creating loss in order to cheat the consumers. Consumers are also cheated by deducting various items of expenses, which were not brought to the notice of the complainant. Company has adjusted about 20% of the amount as expenses saying that it has shown in illustration table. Complainant adduced evidence by means of chief affidavit to the effect that the average growth is 18.93% which comes to a total of `71,358. But at the same time company contended that the total value of deposit is only 55,685. Complainant alleges that the amount reduced to lesser only due to the reason of fraudulent inserting unnecessary expenses which has not been brought to the notice of the complainant at the time of taking the policy. Complainant also alleges that opposite party has not given any hit of loss.
Complainant adduced evidence in tune with the pleadings in complaint by means of affidavit. He has specifically raised allegation that he was not told of any loss if the policy is surrendered after three years. He has stated in his affidavit evidence that “മൂന്നു വർഷം കഴിഞ്ഞു surrender ചെയ്താൽ 76000/- രൂപയെങ്കിലും തിരിച്ചു ലഭിക്കും എന്ന് പറഞ്ഞതിനാലാണ് ഈ പോളിസി എടുത്തത്.” He has alleged that “മനോജ് എന്ന ഉദ്യോഗസ്ഥന്റെ നിർബന്ധ പ്രകാരമാണ് ഞാൻ പോളിസി എടുത്തത്.” The above named Mr. Manoj, employee of opposite party has not been examined before the Forum to give rebuttal evidence in order to shatter the allegations of complainant. The entire documents marked on the side of opposite party would not reveal that the negative side of the terms had been explained to complainant. Every contract there should be consensus – ad- idem with respect to the terms of contract without which a contract is not enforceable by law. The opposite party has the obligation to prove that those aspects of loss had been brought to the notice of complainant at the time of taking the policy or before hand. None of the terms that negatively affect the complaint is seen consented by complainant by obtaining his signature. If ground reality is ignored that would result the denial of justice. It is quite understandable that the agents usually explain the schemes before a customer exposing the positive side of the scheme hiding the negative aspects. When a dispute arose on such a question it is the opposite party who has to come forward and adduce evidence to the contrary. Complainant herein specifically named the person who explained him that he would get 76000 at least when it is surrendered after 3 years. If the allegation is not true opposite party should have brought that particular employee of them before the Forum and examine him in order to say whether it was true or not. Mere version denying the allegation is not sufficient to shatter the case of the complainant. Non examination of opposite party or any of the witnesses leads to assume that complainant was not made known the terms of the policy in its correct sense. Merely because putting signature in a printed Form alone cannot be taken for granted ignoring the ground reality that are going on in the case of canvassing an insurance policy that the complainant put his signature understanding the terms and conditions fully. The picture would have been different in case the above name witness adduced evidence to the contrary before the Forum. Hence we are of opinion that there is deficiency in service on the part of opposite party and they are liable to meet the consequences. Thus in the interest of justice we hold that opposite party has to pay an amount of `60000 to complainant in order to settle the claim including cost and compensation. The issues No.1 to 3 are answered partly in favour of complainant.
In the result, complaint is allowed directing the opposite party to pay an amount of `60000 (Rupees Sixty Thousand only) to complainant in order to settle the insurance claim including cost and compensation within 30 days from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Dated this the 13th day of January, 2014.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Policy
Exhibits for the opposite party
B1. Copy of policy schedule.
B2. Printout of Email dated 02.08.2011.
B2 (a) & (b. Printout of Email dated 03.08.11.
B3. Printout of Email dated 05.08.11.
B3(a). Printout of Email dated 09.08.11.
B4. Printout of Email dated 10.10.11.
B4(a). Printout of Email dated 13.10.11.
B5. Printout of Email dated 13.11.11.
B5(a). Printout of Email dated 16.11.11.
B6. Printout of Email dated 26.11.11.
B6(a). Printout of Email dated 28.11.11.
B7. Printout of Email dated 07.12.11.
B8. Printout of Email dated 17.12.11.
B9. Printout of Email dated 03.01.2012.
B10. Printout of Email dated 17.01.12.
B11. Printout of Email dated 15.02.12.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
