PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21th day of December 2013 Filed on : 01/08/2011
Present :
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K., Member.
CC Nos.405/2011, 531/2011 and 532/2011
Between
CC No. 405/2011
Geemon Chettiyattu, : Complainant
S/o. Chacko, Chettiyattu house, (By Adv. Roy Varghese,
Mattakuzhi Kara, Varikkoli P.O., Olimolathu house, Pancode P.O.,
Thiruvaniyoor village, Ernakulam-682 310)
Ernakulam-682 305.
And
M/s. AVIVA Life Insurance Company : Opposite party
India Ltd., rep. By its Manager/M.D, (By Adv. Nithin George,
IInd floor, CC 27/2603, Pulinat Building, M/s. Menon & Menon, I.S. Press
Opp. Cochin Shipyard, M.G. Road, Road, Ernakulam, Cochin-18)
Kochi-15.
CC No. 531/2011.
Rajesh A.V., Almseath house, : Complainant
SN Jn, Eroor road, (By Adv. Roy Varghese)
Thrippunithura P.O., 682 301.
And
M/s. AVIVA Life Insurance Company : Opposite party
India Ltd., rep. By its Manager/M.D, (By Adv. Nithin George)
3rd floor,Pioneer Towers, Marine Drive,
Kochi-31.
CC No. 532/2011.
Wilson M.Y, : Complainant
Mankudiyil house, (By Adv. Roy Varghese)
Erumeli Kara,
Kumarapuram P.O.,
Ernakulam-683 565.
And
M/s. AVIVA Life Insurance Company : Opposite party
India Ltd., rep. By its Manager/M.D, (By Adv. Nithin George)
3rd floor, Pioneer Towers, Marine Drive,
Kochi-31.
O R D E R
A Rajesh, President.
The allegation of the complainants in the above complaints are similar and since the opposite parties are the same the above complaints are disposed off by this common order.
The case of the complainant in CC No. 405/2011 is as follows;
The complainant availed himself of a life insurance policy by name easy life plan unit linked policy upon payment of premium amount of
Rs. 50,000/-. The policy is valid from 26-09-2006. A receipt dated 26-09-2006 has been issued to the complainant and in the receipt it is stated that the fund value as on 27-09-2006 is Rs. 47,081/-. In the following year the complainant remitted the renewal premium of Rs. 50,000/- against renewal premium receipt for 26-09-2007 and the fund value as on that date was 1,00,501/-. Thereafter without any notice to the complainant the opposite party closed the policy. The complainant was issued a cheque for an amount of Rs. 78,128/- by the opposite party. The complainant is entitled to get the balance amount of Rs. 21,872/- from the opposite party together with total fund value of the investment as on the date of closure, compensation and costs of the proceedings. This complaint hence.
3.The version of the opposite party in CC No. 405/2011 is an under.
The above complaint does not disclose any cause of action for filing the complaint. There is no deficiency in service on the part of the opposite party. The complainant availed an easy life plan revised ULIP which is valid from 26-09-2006. The said policy was lapsed on 26-10-2007 due to non receipt of renewal premium. The said policy was reinstated on 20-02-2008. The complainant had remitted two annual premiums only. Due to non receipt of 3rd year annual premium the said policy went into lapsed mode and later the said policy was early lapsed surrender on 26-09-2010 and surrender value had been paid amounting to Rs. 78,128/- to the complainant according to the terms and conditions of the policy as full and final settlement. The opposite party had acted only in accordance with the terms and conditions of the policy and no further amount is due under the policy. The complaint deserves dismissal.
The complainant's case in CC No. 531/2011 is as under.
The complainant availed a policy by remitting Rs. 20,000/-. The policy was valid from 22-06-2006. The complainant remitted renewal premium for the three years without default. Thereafter the complainant approached the opposite party to get refund of the remitted amount of Rs. 60,000/- after the permissible deduction in accordance with the terms and conditions and insurance laws. The
complainant is entitled to get the remitted amount with interest together with compensation and costs of the proceedings.
5.The version of the opposite party in CC No. 531/2011.
The policy was issued to the complainant and was commenced from 08-08-2006. The said policy along with documents were despatched to the complainant on 09-08-2006. the complainant did not raise any objection against the policy during the free look period from 15 days from the date of receipt of the policy documents. So the complainant is not entitled for refund of the premium amounts. The complainant had remitted third year premium only and due to non receipt of the 4th year annual premium the said policy was lapsed. Thus the policy went on to auto foreclosure event and surrender value amounting to Rs. 24,915/- was paid to the complainant as per the terms and conditions of the policy. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.
The policy was issued to the complainant with effect from 22-06-2006. The policy with documents was dispatched to the complainant on 27-06-2006. The complainant has the right to reconsider his decision to purchase the policy within the free look period ie, 15 days of receipt of the policy document. The complainant had not opted for the same. The complainant had remitted three years premium and thereafter failed to remit subsequent premium and so the policy lapsed on 27-07-2009 and later went on to paid up mode on 06-08-2009. On 06-08-2009 the complainant requested the opposite party to convert the policy into zero sum assured as per the terms and conditions of the policy and accordingly the opposite party had converted the policy into zero sum assured on 08-08-2009. So the complainant is not entitled for refund of the premium amounts as claimed by him.
7.The contentions of the opposite party in CC No. 532/2011.
6.Put it shortly, the facts of the complainant's case in CC No. 532/2011.
The complainant availed the policy of the opposite party by remitting premium of Rs. 20,000/-. The policy was valid from 08-08-2006. The
complainant remitted renewal premiums for the subsequent 3 years without default. Thereafter the complainant made a written request for holding the policy, since he could not further pay the premiums. Accordingly the opposite party closed the policy and issued a cheque for Rs. 24,915/- though he had remitted a total amount of Rs. 60,000/-. The complainant is entitled to get refund of the balance amount of Rs. 35,085/- with 12% interest p.a. together with compensation and costs of the proceedings.
8. No oral evidence was adduced by the parties. In CC Nos. 405/2011 and 531/2011Exts. A1 to A3 were marked on the side of the complainants
respectively and in CC 532/2011 Exts. A1 and A2 were marked. Thereafter the opposite party requested for joint trial of the above complaints and the same was allowed treating CC No. 405/2011 as the leading case. Exts. B1to B11 were marked on their side. Heard the counsel for the parties.
9.The points that arose for consideration are as follows:
i. Whether the complaints are barred by limitation?
Whether the Forum has territorial jurisdiction to entertain this
complaint?
Whether the complainants are entitled to get refund of the premium
amounts fully?
Whether the complainants are entitled to get compensation and costs
of the proceedings?
10.Point No. i. At the threshold the opposite party contended that the complaints are hopelessly barred by limitation. The opposite party relied on the decision rendered by the Hon'ble Appex Court in Kandimala Raghavaiah and
Co. Vs. National Insurance Co. and Anr (2009) 7 SCC 768. The Hon'ble Appex Court held in para 12 as follows:
“12 Recently, in State Bank of India V. B.S. Agricultural Industries (1) MANU/SC/0420/2009 : (2009)5SCC121, this Court, while dealing with the same provision, has held:
It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed there under. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the the Forum would be committing an illegality and therefore, the Forum would be entitled to have such order set aside.”
11. In CC 405/2010 even according to the opposite party the policy went into lapsed mode and the policy was early lapsed surrender on 26-09-2010. So the cause of action for the complaint began to run from that date and the complainant approached this forum with this complaint on 01-08-2011 which is well within the time prescribed under Section 24 A of the Consumer Protection Act. Therefore the contention of limitation does not hold good. Rejected hence.
12. In CC No. 531/2011 at the out set the complainant approached the Insurance Regulatory and Development Authority to get his grievances against the opposite party redressed. The learned Authority sent Ext. A2 letter dated 08-09-2010 which reads as follows:
“We acknowledge the receipt of your complaint at the office of the Authority Your complaint has been forwarded to AVIVA LIFE INSURANCE CO. INDIA PVT. LTD for resolution of the matter at their end.
You may please note that the authority will not adjudicate the disputes between the Life Insurer and the Life Assured. If you are not satisfied with the decision of the insurer you are advised to approach quasi judicial channels i.e. Ombudsman, Consumer forums or the Civil Courts.
You are requested to quote the above referred number in all your future communications pertaining to the specific complaint.”
In furtherance of Ext. A2 the complainant knocked at the doors of this Forum with this complaint on 03-10-2011 within the limitation time stipulated in the Consumer Protection Act. The plea of limitation in this too is rejected hence for reasons mentioned above.
In CC No. 532/2011 the opposite party in their version stated that the policy of the complainant went on to auto foreclosure status on 08-08-2010 and an auto foreclosure event was passed and surrender value to the tune of Rs. 24,915/- was paid to the complainant. The cause of action for this complaint arose as on 08-08-2010 and the complainant approached this Forum on 03-10-2011 which is well within the ambit of S.24 A of the C.P. Act. The contention of the opposite party is rejected.
Point No. ii. The opposite party challenged the territorial jurisdiction of this Forum to entertain the above complaints. The said contention of the opposite party is not sustainable in law for the simple reason that cause of action for the above complaints has arisen in Ernakulam District well within the jurisdiction of this Forum as prescribed in Section 11 of the C.P. Act. The contentions of the opposite party in the above cases too are rejected.
15. The opposite party raised another contention that since the above complainants failed to disclose the date of cause of action in the complaint, the complaints are not maintainable. The learned counsel for the opposite party vehemently relied on the following decisions of the Appex Judiciary.
a. Ashar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253
b. Laxman Prasad Vs. Prodgy Electronics Ltd. And Anr. AIR 2008
SC 685.
c. Sree Narain Dhanuka Vs. Jaidev Prasad Indodria & ors Rajasthan HC 2001 (3) WLN 275.
It is to be noted that the Hon'ble Appex Judiciary rendered the above principles while dealing with Civil Procedure Code which has no direct nexus with the Consumer Protection Act and the complaints herein.
16. Point No. iii. Admittedly the complainant in CC No.405/2011 availed a policy of the opposite party with effect from 26-06-2006 and he remitted 2 yearly premiums of Rs. 50,000/- each. According to the complainant the opposite party unilaterally closed the policy and sent a cheque for Rs. 78,128/-. The opposite party maintains
that since the complainant failed to rem it the 3rd year's premium the policy went to lapsed mode and the policy was early lapsed surrender on 26-04-2010. Ext. A3 is the policy document issued by the opposite party to the complainant. Article 10 of Ext. A3 reads as follows:
10.1 Subject to Article 13, with effect from the commencement of the fourth Policy Year, the Policyholder is entitled to receive a Guaranteed Surrender Value upon the termination of this Policy for any reason (other than death or Accident Permanent Total Disability of the Insured not excluded under Article 9 above) provided that Regular Premiums have been paid for at least two full policy years.
10.2. The surrender value is equal to the value of all Initial Units at the date of surrender less the Surrender Charge on Initial Units plus the value of all Accumulation Units at the date of surrender less the Surrender Charge on Accumulation units as specified in the Schedule.
10.3. The Company has the right to charge a Processing Fee on Surrender as specified in the Schedule to cover the administrative costs of processing the Surrender as specified in the Schedule”.
17. Admittedly the complainant had paid premium for 2 full policy years amounting to Rs. 1,00,000/-. The complainant is entitled to get all the benefits as envisaged in Article 10 of Ext. A3 with interest from the date of complaint till realization after deducting Rs. 78,128/- the amount already paid to the complainant.
18.In CC No. 531/2011 the complainant had paid Rs. 20,000/- by way of premium for 3 years. According to the opposite party the complainant had not paid the 4th year premium and as per the terms and conditions of the policy the policy lapsed on 27-07-2009. Further it is stated that at the request of the complainant vide letter date 06-08-2009 the opposite party converted the policy into zero sum assured and accordingly they converted the same with effect from 08-08-2009 and so the complainant is not entitled to get refund of the premium amounts. However nothing is on record to substantiate the said contentions of the opposite party. In the absence of any evidence to the contrary the opposite party is liable to pay the surrender value of the policy as per the terms and conditions in Ext. A3 policy document if the complainant desires so.
19.In CC No. 532/2011 the complainant paid premium for 3 years totaling to Rs. 60,000/-. According to the complainant the opposite party closed the policy and sent a cheque for Rs. 24,915/- and an amount of Rs. 35,085/- is
still due from the opposite party. The opposite party contends that due to non receipt of 4th year annual premium the policy was lapsed and later changed to auto foreclosure status and on 08-08-2011 surrender value of Rs. 24,915/- was paid to the complainant. Admittedly the complainant has not raised any objection against the terms and conditions of the policy during the free look period a statutory right available to a policy holder as per IRDA Regulation. However the complainant is entitled to get all the benefits and guaranteed surrender value as per Article 14 of Ext. A2 policy document with interest from the date of complaint till realization.
Point No. iv. We do not find any deficiency in service on the part of the opposite party on the face of records. The Matters being settled with out prejudice to either parties, we feel that compensation and costs of the proceedings are of no pertinence in these cases.
In the result, we allow the above complaints in part and direct as follows:
In CC No. 405/2011 the opposite party shall pay all the benefits as per article 10 of Ext. A3./Ext. B2 policy document with interest @ 12% p.a. from the
the date of complaint till realization. It is made clear that the opposite party is at liberty to deduct Rs. 78,128/- the amount already paid to the complainant.
ii.In CC No. 531/2011 the opposite party shall pay the surrender value of the policy to the complainant as per Article 14 in Ext. B3 policy document together with interest @ 12% p.a. from the date of complaint till realization.
iii.In CC No. 532/2011 the opposite party shall pay all the benefits and guaranteed surrender value as per Article 14 in Ext. A2/Ext. B1 policy document with 12% interest p.a. from the date of complaint till realization after deducting the paid amount of Rs. 28,915/-.
The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's exhibits:
No. 405/2011
Ext. A1 : Copy of 1st Premium receipt
A2 : Copy of Policy Schedule
A3 : brochure
Opposite party's Exhibits :
CC. Nos. 405/11, 531/11 and in CC 532/2011
Exbts: B1 : Copy of policy document
B2 : policy document
B3 : Policy document
B4 : customer information report
B5 : Copy of A.D. Card
B6 : Proceedings of the insurance
ombudsman, Kochi.
B7 : Copy of value calculation in terms
of the policy documents
B8 : copy of proposal form
B9 : Customer declaration
B10 : Copy of A.D card
B11 : Copy of proposal formI
In CC.531/2011
Ext. A1 : Copy of policy schedule
A2 : copy of letter dt. 08-09-2010
A3 : Copy of brochure
In CC.532/11
Ext. A1 : Copy of policy schedule
A2 : copy of brochure
