COMPLAINT CASE NO. HDF 47 OF 2010
DATE OF FILING : 29-06-2010.
DATE OF FINAL ORDER : 27-12-2010.
Sri Dilip Dutta,
44/23, Naskar Para Lane,
District –Howrah,
PIN – 711 103. COMPLAINANT.
Versus -
1. Mr. V. Philips,
Head – Operation and Administration,
Bajaj Allianz, Life Insurance Company Limited,
118 Raja Dinendra Street ( First Flloor ), near Gauribari,
Kolkata, PIN – 700 004. ea
2. Sri Pritish Chatterjee,
agent and / or authorized representative of
Bajaj Allianz Life Insurance Company Limited,
recently residing at 26/50, Kaipukur Lane, Shibpur,
Howrah – 711 102. OPPOSITE PARTIES.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Dr. Dilip Kr. Chakraborty.
3. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Shri Debabrata Bhaduri,
Ld. Advocate.
Representatives for the opposite party no. 1
: Shri Dipak Ranjan Mukherjeei,
Smt Mitali Mukherjee,
Shri Prasenjit De,
Ld. Advocates.
Representative for the opposite party no. 2 : Smt. Atashi Bhaduri,
Ld. Advocate.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 praying for refund of his policy and praying for compensation for deficiency in service and harassment, mental agony etc.
Fact of the case, in brief, is that the O.P. no. 2, authorized agent and / or authorized representative of Bajaj Allianz Life Insurance Company Ltd. requested the complainant for taking a policy of Bajaj Allianz Life Insurance. Being pressed by the request of the O.P. no. 2 the complainant agreed to take one policy from him. Accordingly O.P. no. 2 gave a proposal form to the complainant on 30-07-2008 and the complainant handed over the proposal form to the O.P. no. 2 along with a cheque of Rs. 50,000/- no.404746 dated 30-07-2008 drawn on Bank of Baroda, Andul Road Branch, as first premium. After four days i.e., on 04-08-2008 O.P. no. 2 submitted the form and the cheque to the office of the O.P. no. 1 and O.P. no. 1 accepted the same and duly acknowledged that on the same date. On 25-09-2008 the complainant received the said Policy Documents from O.P. no. 1 through speed post. The original money receipt bearing no. A0163583692 dated 04-08-2008 for Rs. 50,000/- was supplied to the complainant on 10-09-2008 by O.P no. 2. The aforesaid amount of Rs. 50,000/- being the first premium was encashed by O.P. no. 1 on 06-08-2008 as per complainants bank statement. The complainant observed that in that document the date of commencement and date of commencement of risk was mentioned as to be effective with effect from 28-08-2008 whereas the O.P. no. 1 collected Rs. 50,000/- on 06-08-2008. Seeing this anomaly between the date of encashment of the cheque and the date of commencement of risk the complainant contacted with the O.Ps. immediately to clarify this matter. Considering the nature of the grievance of the complainant O.P. no. 2 brought Mr. Binoy Prosad Sing, Sales Manager of O.P. no. 1, on 01-10-2008 but could not satisfy the complainant for his three vital queries viz. (i) regarding the difference of dates of encashment of the cheque and the date of commencement of risk, (ii) what would be the result if the life assured person died within the vacant period from 06/08/2008 to 28/08/2008, (iii) whether the proposed nominee of assured person would get the benefit of the policy in case of happenings of the incident as described in aforesaid happenings as described in (ii). The complainant sent a letter dt.14.10.2008 to O.P. no. 1 for rectification by issuing a fresh policy mentioning the date of commencement and date of commencement of risk as 06.08.2008 or refund of the policy in question with interest. Again the complainant sent his letters on 23.11.2009 and on 08.12.2009 . Though the complainant addressed the O.P. no. 1 thrice on 14-10-2008, 23-11-2008 and 08-12-2009 with a copy of the letter to the Special Officer of Insurance Regulatory Development Authority of India to this effect by registered with A/D post but none replied. The O.P. no. 1 only responded when they received the advocates notice on behalf of the complainant on 19-04-2010 quoting the rule regarding free lock period . The O.P. no.1 informed the complainant that there is a free lock period for 15 days. The complainant sent a written notice since the Rule 15 is expressly related to only cancellation of the policy. But in his case complainant demanded for rectification, if not possible, only then refund of his premium with interest would arise. The complainant states and submits that O.P. no. 1 failed to discharge their duties properly and neglected to exercise reasonable care and skill in rendering the service in connection with the disputed policy bearing no. 0105374113. For this reason the complainant suffers a lot of disturbances and mental agony in his day to day family life. Hence the complainant prays for to enhance the effect to the date of commencement on 06-08-2008 by O.P. no. 1 and compensation and cost or any other order which the Forum deem fit and proper. Hence the application.
O.P. nos. 1 and 2 appeared in this case by filing separate written versions.
In the written version of O.P. no. 1 it is stated that the complainant went through the proposal form thoroughly and agreed to be a policy holder of Bajaj Allianz Life Insurance Company under the category of Bajaj Allianz Unit Gain Plus Gold. The complainant have given a cheque of Rs. 50,000/- dated 30-07-2008. That was Wednesday and the agent, o.p. no. 2 , collected the cheque. On Thursday O.P. no. 2 submitted the cheque to O.P. no. 1. It usually takes 24 working hours to make necessary paper works at the office before the cheque is sent for encashment. The intervening Saturday and Sunday had delayed the cheque submission process and therefore the cheque issued by the complainant was only submitted on 4th August, 2008 which was finally cleared on 6th August, 2008, wherein after the encashment was reflected in the bank statement of the complainant.
In the matter of differences on the date of the cheque encashment and the date of commencement of risk the O.P. no. 1 argues that the receipt issued against the proposal deposit clearly mentioned Insurance cover shall commence only from the date of acceptance of risk, based on proposal papers submitted and other requirements called for. In the instant case, proposal form was signed date 4th August, 2008, Branch under writer placed the requirement for MER ( Medical Report ) on date 8th August, 2008. The O.P. no. 1 received MER from life assured ( LA) on 28th August, 2008 . After the medical requirement was fulfilled by the complainant the O.P. no. 1 had processed the case for issuance on 28th August, 2008. It is further submitted by them that in case if the LA person dies within the period of proposal deposit and the date of commencement of risk of the Policy, the insurance company shall refund only the proposal deposit paid by the LA. In this case the O.P. no. 1 had rightly not entertained the demand of rectification of date of commencement of risk by the complainant. All other contentions are denied.
Counsel for O.P. no. 1 had argued that the complainant was fully aware of the terms and conditions of the commencement of the risk. The first premium deposit and the commencement of risk period are not commenced simultaneously as per terms of proposal deposit. The O.P. no. 1 sent one of their Sales Manager to the complainant’s house to make him understand but in vain. So there is no deficiency in service on the part of O.P. no.1. Most of the allegations against them are denied and some are fully matters of record. Therefore, the complaint is not maintainable and liable to be dismissed with cost and the complainant is not entitled to any of the relief prayed for.
In the written version O.P. no. 2 submits that he has admitted that the money receipt bearing no. A0163583692 dated 04-08-2008 for Rs. 50,000/- was supplied to the complainant on 10-09-2008. The complainant did not raise any dispute for the same. O.P. no. 2 has also admitted that the complainant informed him over telephone and expressed his grievances regarding the date of commencement and date of commencement of risk of the policy. Accordingly the O.P. no. 2 brought the Sales Manager of O.P. no. 1 to the complainant’s house on 01-10-2008. The complainants allegations are against the O.P. no. 1. So O.P. no. 2 prays for rejection of the allegation of the complainant against O.P. no. 2 with cost.
In view of the pleading of the parties following points arose for determination :
Is there any deficiency in service on the part of the o.ps. no. 1 and 2
Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986 ?
DECISION WITH REASONS :
POINTS NO. 1 and 2 :
Both the points are taken up together for the sake of convenience of discussion and for brevity.
It is admitted fact that complainant took one policy from the O.P.-1 and for that reason the complainant handed over a cheque of Rs.50,000/- to O.P.-2. The cheque was encashed by O.P.-1 on 06/08/2008. But from the documents the Forum has observed that the date of policy commencement is 28/08/2008. The counsel for O.P.-1 argued that due to processing and because of there are Saturday and Sunday the cheque was encashed after four days of receiving it. But the O.P.-1 could not give any satisfactory answer why the policy initiation date was 28/08/2008. The counsel for O.P.-1 argued that as the medical report i.e. M.E.R. had not been received from the L.A. upto 28/08/2008 the policy could not be issued. As the date of commencement of policy was 28/08/2008 the cover end period was also mentioned in that policy paper is 28/08/2018.
We know that M.E.R. is a vital document for this policy. From their policy document we have observed that from clause-28. In that clause it is clearly stated that Sec.-45 of the Insurance Act,1938 states that No policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by any insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any document leading to the issue of the policy, was inaccurate or false, and etc. So, it is obvious that medical report is a vital document for this type of policy. The counsel for O.P.-1 argued that they have received the M.E.R. on 28/08/2008 but the complainant argued that he has neither received any such request and / or instruction for submission of M.E.R. nor he submitted any such M.E.R. to the O.P.-1 or any one of their agencies and / or authorized representative. The complainant was never examined by any Medical Board or qualified doctor either at his own house or elsewhere. Though from that document we have seen that there is signature of the complainant but the complainant has strongly objected that it is his signature. But the counsel for the complainant never demanded for sending it to any handwriting expert.
The only relevant question is that why O.P.-1 received and encashed the cheque of Rs.50,000/- given by the complainant through O.P.-2 without receiving any medical report. If medical report is one of the most vital documents then O.P.-1, Bajaj Allianz Life Insurance Co. Ltd., should not receive the cheque or encash it. The pertinent question asked by the complainant is that the O.P.-1 withhold his cheque for 22 days unnecessarily. The counsel for complainant argued that in case if the life assured person dies within the period of proposal deposit and the date of commencement of the risk of the policy, the Insurance Company shall refund only the proposal deposit paid by the life assured. The complainant emphatically denied and disputed this vague, invalid, irresponsible and misconceived statement of the O.P.-1 when no policy has yet been prepared, question of any nominee does not arise.
From the document filed by the complainant we have observed that the proposal form for life insurance was received on 04/08/2008. From the bank statement we have observed that the cheque was encashed on 06/08/2008. The document annexed by O.P.-1 we have observed the medical examination report. In that report there is signature of the Medical Examiner whose name is Dr. S. B. Nagori (Code No.-WZ 1917 C 022). Though this document has been challenged by the complainant but as the counsel for the complainant did not demand to send it to any handwriting expert we have accepted it. But there is a stamp of Bajaj Allianz in which the date is mentioned 29/08/2008. If the medical report is accepted by O.P.-1 on 29/08/2008 why the commencement of the policy was 28/08/2008 the O.P.-1 did not give any satisfactory answer.
In the midst of hearing the counsel for the complainant filed a further petition with prayer that the policy in question being No.-0105374113 may be cancelled and the entire amount i.e. Rs.50,000/- should be paid with interest (as per bank rate) from the date of commencement till disbursement of the cheque alongwith the litigation cost. This petition is seen by the O.P.-1 without raising any objection.
Upon hearing on both sides and relying on the materials on record and
affidavit (filed by the complainant), counter affidavit (filed by the O.Ps.) Forum has come to the conclusion that O.P.-1 has certainly committed deficiency in service by encashing the cheque without receiving the medical report. The O.P.-1 mentioned the date of commencement of risk 28/08/2008 on which date Dr. S. B. Nagori also signed on the medical report. In the date stamp of O.P.-1 the date was 29/08/2008. Therefore, there are clear anomalies in the dates of the policy in question. As there is clear deficiency in service on the part of the O.P.-1 so the complainant is certainly entitled to get an an order in terms of Section 14 of the C.P. Act, 1986.
Points under consideration are accordingly decided.
Therefore, the application succeeds.
Hence,
O R D E R E D
That the consumer complaint case is allowed on contest against O.P.-1 with cost assessed Rs. 1,000/- and dismissed against O.P.-2 without cost.
That the O.P.-1 is hereby directed to refund Rs.50,000/-, which was paid by the complainant for the policy in question with interest at 8 percent p.a. w.e.f. 06/08/2008 till the date of realization.
That the O.P.-1, insurance company, is liable to comply with this order and they are directed to pay the aforesaid awarded amount and cost to the complainant within 30 days hereof, in default, the said amount shall bear further interest at 8 percent per annum from the date of order till full payment or recovery.
Let certified copies of the order be supplied to the parties, free of costs.
