IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Wednesday the 06th day of August, 2021
Filed on 08 .07 . 2020
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R, BA, LLB(Member)
In
CC/No.149/2020
Between
Complainant:- Opposite parties:-
Sri. Carlose.A.J 1. M/s HDFC Standard Life
Arasseril House Insurance Co. Ltd
Arthunkal.P.O Coporate Office,Trade Star
Cherthala, Alappuzha 2nd Floor, A Wing , Junction of
Pin.688530 Kondivita and M.V.Road,
(Adv. Sri. K.B Harshkumar) Andheri-Kurla Road,
Andheri East, Mumbai
Pin. 400059
2. The Branch Manager
HDFC Standard Life
Insurance Co. Ltd
2nd Floor, J.P.Tower,
VCSB Road,
Near District Court Bridge
Alappuzha
(Adv. Sri. Saji Isaac K.J for Ops)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Material averments briefly discussed are as follows:-
1st opposite party is a branch office of insurance company having registered office at Mumbai and functioning various branches all over India. The 2nd opposite party is the Alappuzha Branch Manager of the 1st opposite party. 1st opposite party provides various kinds of insurance facilities to the public and functions as registered company with various branches all over India.
Complainant is a policy holder of the opposite party having no.12873980 with client Id No.55071298 from 18/4/2009 onwards. As per the terms of policy the complainant has to remit Rs.12,000/- per month as premium to the policy and the policy period was for 10 years. Complainant had remitted an amount of Rs.1,30,000/- towards the premium and thereafter due to certain financial crisis, he could not pay monthly instalments by which the policy got freezed and fell into the category of surrendered policy. Soon after this complainant had approached the company on various occasions to seek whether he can continue the policy with further payments or can he withdraw the amount already paid towards premium. The complainant was mislead by the company that premium remitted can only be released after 10 years as the policy period is till that.
On believing the words of the opposite parties complainant had patiently waited for 10 years and by 2019 when he approached the company for said amount, they informed that he is not entitled to claim for the same and the whole sum got elapsed. As per the terms and conditions of the policy company has to pay back the amount paid by the policy holder as premium. Complainant sent a legal notice on 30/5/2020 claiming the amount and it was received by them on 2/6/2020. Due to the act of the opposite parties complainant had sustained a loss of Rs.1,30,000/-. Hence the complaint is field for realizing an amount of Rs.1,30,000/- along with interest and for cost.
2. Opposite parties filed a version mainly contenting as follows:-
The complaint is not maintainable and he has not approached with clean hands. The complaint is barred by the law of limitation and is liable to be dismissed in limine. The policy was taken in 2009, defaulted payment of premium after the 1st year and the policy lapsed due to the nonpayment of premium in 2010. The Complaint is filed in 2020 ie, after a period of 9 years after lapse of policy and hence the complaint is barred by limitation.
As per the terms of the policy monthly premium was Rs.12,000/- payable till 27/3/2019. The allegation that the complainant approached the company seeking clarification and he was mislead is false. Contract of insurance is a contract based on the terms and conditions of the policy and the opposite parties are liable only according to the terms and conditions. The policy availed by the complainant had a free look provision whereby if the complainant did not agree to any of the provisions stated in the policy and the details in the proposal form he could return the policy to the opposite parties stating reasons thereof within 15 days from the date of receipt of the policy. The non-exercise of the free look provision and payment of premium can only be deemed to be an acceptance of the terms and conditions of the policy. Hence the complainant is bound by the terms and conditions.
As admitted the complainant had only paid the premium for 1st year and had subsequently defaulted premia. The complainant was aware that the policy fell into the category of surrendered policy. The terms and conditions of the policy clearly provide that if any premium remains unpaid for 15 days after the due date the policy will be automatically surrendered or paid up. If any premium remains unpaid during the first 3 years of the policy, the policy will lapse and will be automatically surrendered. A surrender charge as specified in the schedule of charges will be deducted by cancellation of units. On automatic surrender due to a lapse, all benefits will be cancelled. Since the complainant had not paid the 1st annualized regular premium the surrender charge would be 100% of the fund value as per the schedule of charge of policy. Hence the complainant is not entitled for any amount.
The allegation that complainant had sustained loss of an amount of Rs.1,30,000/- is false. Opposite parties had sent letter on 23/1/2012 for reviving the policy to which the complainant did not respond. Complainant was duty bound to pay the premiums stipulated under the policy. Opposite parties had acted only in accordance with the terms and conditions of the policy. Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.
3. On the above pleading following points were raised for consideration:-
1. Whether the complainant is entitled to realize an amount of Rs.1,30,000/- along with interest at the rate of 12% from the opposite parties?
2. Reliefs and costs?
Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A6 from the side of the complainant. Opposite parties have not adduced any oral evidence. Ext.B1 was marked during cross examination of PW1.
4. Point No.1:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A6. Ext.B1 was marked during his cross examination.
PW1, the complainant in this case took an insurance policy from the opposite parties. Ext.A1 is the policy document which shows that the policy commenced on 27/4/2009 and the term was 10 years. The maturity date was on 27/4/2019. The monthly premium was Rs.12,000/- and the annual premium was Rs.1,44,000/-. PW1 could remit only Rs.1,30,000/-. When contacted opposite party informed that he will get the paid amount after the term of policy ie, after 10 year. When contacted during 2019 it was informed by the opposite parties that the policy has lapsed and so he is not entitled for any amount. Ext.A5 legal notice was sent on 26/5/2020. However since in evoked no response the complaint was filed to realize an amount of Rs.1,30,000/- along with interest. Opposite parties filed a joint version admitting the policy. However according to them PW1 paid only Rs. 1,30,000/- where as the annual premium was Rs.1,44,000/-. Thereafter he did not pay any amount. As per the terms and conditions the policy become lapsed and PW1 is not entitled for any relief. Complainant got examined as PW1 and Ext.A1 to A6 were marked. Opposite party did not adduce any evidence. However during cross examination Ext.B1(Ext.A1) the policy document was marked.
It is an admitted case that on 27/4/2009 PW1 joined the policy as per Ext.A1(Ext.B1) policy document. The monthly premium was Rs.12,000/- and the annual premium was Rs.1,44,000/-. It is also an admitted case of PW1 that he could pay only Rs.1,30,000/-. In other words he could not pay even the annual premium of 1st year. In the version it is contented that the policy lapsed during 2010 due to nonpayment of premium and the complaint filed in 2020 ie, after a period of 9 years is barred by limitation. It is true that the complaint is filed on 8/7/2020. However it is to be noted that as per Ext.A1 the expiry/maturity date of policy was on 27/4/2019. According to PW1 as per the advice of the opposite parties waited till the expiry date of policy to file the complaint. In said circumstances the contention that the compliant is barred by limitation is unfounded.
In the complaint the case of PW1 is that he took policy No.12873980 on 18/4/2009 and the monthly premium was Rs.12,000/-. The policy period was 10 years. He could remit only Rs.1,30,000/- and thereafter he could not pay any amount. In the chief affidavit he has stated that there was another policy for him during 2009 as No.12730240 and the monthly premium was Rs.17,000/-. After paying two premia he realized that he was unable to pay such amount and so he took another policy with monthly premium of Rs.12,000/-. However such a contention is conspicuously absent in the complaint. Now it is well settled by various judicial pronouncements that
Parties cannot go outside the pleadings and set up a new case.(1958 KLT721 Supreme Court) Moran Mar Basselios Catholicos. Vs. T.P. Avira & Others.
(1984 KLT 606 Elizabeth Vs. Saramma.)
So the contention of PW1 in the chief affidavit that he had an earlier policy cannot be looked into. Ext.A2 is the receipt showing payment of Rs.17,000/- on 14/7/2009 for the earlier policy. As per Ext.A1 it can be seen that this policy commenced on 27/4/2009. The only prayer in the complaint of PW1 is to return Rs.1,30,000/- along with interest. The contention taken by the opposite parties in the version is that as per the terms and conditions of Ext.A1(Ext.B1) if the policy lapses before one year the entire amount will be surrendered and the policy holder is not entitled for any amount. To substantious such a contention the learned counsel appearing for the opposite parties read out the conditions in Page No.6 which reads as follows:
“ No surrender charge will be levied for any policy that pays the Original Regular Premium when due for the first five years of the contract.
Before the payment of the premium due on the 1st policy anniversary, the Surrender Charge is 100% of the Fund Value. Thereafter the Surrender Charge applicable is shown in the table below”
Herein this case admittedly the monthly premium is Rs.12,000/- and the annual premium is Rs.1,44,000/- . PW1 could pay only Rs.1,30,000/- and so it is pellucid that he could not pay even Rs. 1,44,000/- ie, premia for one year. In said circumstances as per the terms and conditions in Ext.A1 the surrender charge is 100% and so PW1 is not entitled for any amount.
In this context we are also enlightened by the decision of the
Hon’ble Supreme Court reported in 2013 KHC 4040 (Export Credit Guarantee Corporation of India Ltd. vs. M/s Garg Sons International. It was held “Consumer Protection Act, 1986-S2, S.14 ,S.19- Insurance Claims – Rule of strict interpretation – Held, terms of insurance policy have to be strictly construed in order to determine the extent of the liability of the insurer- it is not permissible for the Court to substitute terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance – Insurance Law”.
As discussed earlier the terms and conditions of Ext.A1(Ext.B1) is very clear and if a policy holder is unable to remit premium for one year the surrender premium is 100%. Admittedly PW1 could pay onlyRs.1,30,000/- whereas the annual premium is Rs.1,44,000/-. It was pointed by the learned counsel appearing for the complainant that PW1 was not aware about the terms and conditions. Ext.A1 was produced by PW1 and so he cannot turn round and say that he was not aware about the terms and conditions. Moreover from Ext.A3 letter which was also produced by complainant it can be seen that intimation was given to him that the premium dated on 27/3/2010 remains un paid. It was also intimated that if the premium is not renewed within the stipulated time the policy will be lapsed without a value. So the contention of learned counsel appearing for PW1 that complainant was not aware about the terms and conditions is without any foundation. Hence applying the principles laid down by the Hon’ble Supreme Court and in the light of the above discussion it can be seen that PW1 is not entitled for any amount and so this point is found against the complaint.
5. Point No.2:-
In the result complaint is dismissed with cost of Rs.2000/-
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 6 th day of August, 2021. Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Carlose.A.J(Complainant)
Ext.A1 - Policy document
Ext.A2 - Renewal Premium Receipt
Ext.A3 - Letter did.30/3/3010
Ext.A4 - Renewal Premium Receipt dtd.8/3/2010
Ext.A5 - Legal Notice dtd. 26/5/2020
Ext.A6 - Postal Receipts with AD Cards
Evidence of the opposite parties:-
Ext.B1 - Policy Document(Witness)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
Br/-
