ORDER
25.07.2023
Ms. Nipur Chandna, Member
- A complaint filed by Sh. Inderjeet Singh (hereinafter referred to as “complainant”) under section 12 of Consumer Protection Act 1986 (hereinafter referred to as “Act”) against Max New York life ins. Co. Ltd. (hereinafter referred to as “OP”).
- In brief the facts are that complainant is the police man and the officials of the OP approached the complainant for investing his money in Max New York Fortune Builder plus plan bearing No. 770918225 and second policy of Max Life Shiksha Plus Plan bearing No. 770918233. It is stated that the OP never told the complainant for the termination clause in the policy i.e. when the fund value of the policies equal to the annual premium. It is stated that both the policies for annual premium was Rs. 30,000/- consequently the complainant had paid Rs. 60,000/- of both the policies regularly without any delay of three consecutive years.
- It is stated that in the month of June, 2013 the complainant received a letter from the OP in which it was stated that both the policies of the complainant were terminated because fund of the policies were equal to the annual premium of the complainant policies therefore, the OP rendered the complainant a cheque of Rs. 30,000/- against policy NO. 770918225 on 06.06.2013 and a cheque of Rs. 30,000/- against the complainant policy No. 770918233 on 17.07.2013. It is pertinent to mention that the complainant has paid without delay the annual premium for three consecutive years and has received only Rs. 60,000/- thus rest of Rs, 1,20,000/- is still outstanding on the part of OP for both the policies.
- It is stated that when the complainant approached to the OP agent he assured that the amount will be refunded to the complainant if corresponded to the appropriate department. As per the advise the complainant approached OP vide letter dated 25.06.2013, ticket bearing no. 11408394, on 30.07.2013 vide ticket no. 11662803 and on 11.11.2013 vide ticket no. 11662874 thereby asking the OP to clarify on the point of decrease in the fund value of the policy in question.
- It is alleged by the complainant that despite repeated visits/requests and follow up no satisfactory reply was given by the officials of the OP. As such, the complainant sent a legal notice to the OP on 04.07.2014 through his counsel to refund the remaining outstanding amount deposited by the complainant i.e. Rs. 1,20,000/-. OP neither reply to the legal notice nor had comply the same being aggrieved by the conduct of the OP complainant lodged consumer complaint before DCDRF- East. Vide complaint bearing NO. 330/2014 titled as Inderjeet Singh Vs Rajesh Sud & Anr. However, the same could not be pursued by the complainant as his earlier counsel could not appear time to time before the Hon’ble consumer Forum as such the same was dismissed in default on 17.02.2015 without adjudication of the claim of the complainant and due to non-prosecution.
- It is alleged by the complainant since DCDRF –East does not have the territorial jurisdiction the complainant file the present complaint before this Commission for redressal of his grievance.
- Complaint has been contested by OP. OP filed its WS wherein it denied any deficiency in service on its part. OP has raised the preminary objections challenging the maintainability of the present complaint on the ground that the present complaint is barred by law of Res-judicata and limitation. It is further stated that complainant is liable to be dismissed since as per agreed term, they have revive of the premium amount as collection by complainant is not feasible which has contrary to basic terms of the policy and referred to judgments of Life Ins. Corporation Of India Vs. Siba Prasad Director & Anr. It is stated that complainant at this stage cannot take claim of ignorance the terms of policy where it was specifically mentioned the sections of payment of premium and termination of policy. It is further stated that the regular payment of premium is sole responsibility of the policy holder. It is stated that the policy as such are in speculative nature and taken. Therefore complainant is not a consumer and dispute is also no disposable before consumer forum and referred to the case of Smt. Abanti Kumari Sahoo Vs. Bajaj Alliance Insurance co. Ltd (Fa no. 162/10).
- It is stated that the complainant has duly received and encash the policy amount in both the policies after termination therefore nothing survives under the aforesaid policies. It is stated that there is no deficiency of service or unfair trade practice on the part of OP. Therefore present complaint is liable to be dismissed.
- The OP made preliminary submissions stating that on 23.02.2010 duly filed and signed proposal form bearing no. 770918225 and 770918233 dated 10.02.2010 received on behalf of complainant. Accordingly, as per the proposal the policies commenced from 28.02.2010 thereby assuring complainant life for a sum of assured of Rs. 3,00,000/- and Rs. 4,50,000/- responsible after the payment of annual premium Rs.30,000/- each as per the term and conditions in both the policies. The policies were provided to complainant. It is stated that all the relevant documents have filed on record. It is further stated that as per the policy terms and conditions review period was given to the insured to reconsider his decision to purchase the policy within 15 days( free look in period) of receipt of the policy. However, in the present case complainant despite receipt of policy documents did not make any cancellation request within free look in period.
- It is stated that in March, 2012 complainant made request for change of mode of payment of premium annual or semi-annual to both the policies. After this change was effected in both the policies the complainant failed to make payment of any premium. It is further stated that complainant on 13.02.2013 made deactivation of ECS request which was provided and duly integrated to complainant. Thereafter, in the absence of complainant making payment of the further premium under both the policies on 28.02.2013 as a sequence policies lapse with effect from 28.02.2013 and complainant was intimated. It is stated that finally the policies were terminated on 21.05.2013 and on 02.06.2013 respectively as per clause 14 (termination of policy) and complainant was paid Rs. 30,000/- through cheque bearing no. 982233 under policy no. 770918225 which was duly encashed on 19.06.2013 another cheque was paid for Rs. 30,000/- bearing no. 28900 under policy 770918222 which was duly encashed on 18.07.2013. The legal notice was duly replied by OP. In these circumstances there is no deficiency of service or unfair trade practice. Therefore, all the allegations are baseless and complaint is liable to be dismissed.
- On merit all the allegations made against the OP are denied and the facts mentioned in the preliminary objections and preliminary submissions are retreated.
- Complainant filed replication and denied the preliminary objections and preliminary submissions . The complainant has reiterated all the facts mentioned in the complaint.
- Complainant filed evidence by way of affidavit and again reiterated the contents of the complaint and relied on copy of policy documents exhibit CW-1 of 1 but copy of letter dated June, 2013 exhibit CW 1 of 2, copy of letter dated 25.06.2013 exhibit CW 1of3 , copy of letter dated 11.11.2013 exhibit CW 1 of 4, copy of legal notice dated 04.07.2014 exhibit CW 1 of 5 and reply of OP to the notice exhibit at over this.
- OP filed evidence by way of affidavit of Sh. Gurvinder attorney of OP company and relied on power of attorney dated 20.03.2015 exhibit RW 1 of 1. Proposals forms exhibit RW 1 of 2 (colly) copy of policy schedule policy exhibit RW 1 of 3 (colly) exhibit RW 1 of 4. The copy of benefit illustrations exhibit RW 1 of 5 and copy of relevant form of law and responsibility of respondent exhibit RW 1 of 6 (colly).
- Written arguments filed on behalf of complainant as well as OP. We have heard Sh. Nitin Prakash counsel on behalf of complainant. Ms. Simran Verma counsel for OP and perused the record.
- The OP has strongly challenged that the present complaint is barred by law of Res-judicata, as admittedly, earlier the complaint was filed by the complainant with DCDRF, Saini Enclave, East Delhi and the same was dismissed in default on 17.01.2015. Since the present complaint was not decided on merit the principle of Res-judicata does not apply as alleged by OP. OP has strongly challenged the issue of limitation, hence, needs to be decided first.
As per section 24(A) of Consumer Protection Act, 1986 : -
- The District Forum, the state commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
- Notwithstanding anything contained in subsection (1). A complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the state commission or the National Commission , as the case may be, that he had sufficient cause for not filing the complaint within such period: provided that no such complaint shall be entertained unless the National Commission , the State Commission or the District Forum,
as the case may be records its reason form condoning such delay.
On the point of limitation, we are guided by the Hon’ble Apex Court in the case title State Bank of India Vs. M/s B.S. Agriculture Industries 2009 STPL 6945 SC – in that case in para 12 the Hon’ble Supreme Court has held as under :-
“As a matter of law, the consumer forum must deal with the complaint on merit 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 reason recorded in writing. In other words, it is the duty of the consumer Fora to take notice of section 24 A and give effect to it.
- Admittedly, the cause of action for filing the present complaint arose in the month of June/July, 2013 when the complainant received the amount from the OP Ins. Co. against the policy in question. The complainant had approached this Commission on 09.09.2015 i.e. after 26 months of the accrual of the cause of action. The complainant had placed on record the certified copy of the daily order sheet of the present complaint case filed before DCDRF-East, the bare perusal of the order sheet makes it clear that the present complaint case was dismissed by Ld. District Forum due to non-appearance of the complainant, the complainant failed to satisfy this Commission why he had not taken recourse to the legal remedies available with him after dismissal of the complaint and had file the present complaint before this Commission that too after two years and two months of the accrual of cause of action, hence, the present complaint is barred by limitation.
18. As regard the merit of the present complaint, admittedly, the complainant received the policy in the year 2010. He had also paid three premiums against the policy in question. The complainant received the policy documents in the year 2010 if he was not satisfied with the policy than he ought to have approached the OP for the cancellation of the same. After three premiums, the complainant failed to pay the further premium and as such the policy moved to lapse status. .
19. As per policy terms and conditions, due to non-payment of further premium, policy moved to lapse status and as such the OP cancelled the policy and sent the surrender value to the complainant The OP Ins. Co. also handed over to the complainant two cheques bearing no. 770918225 dated 19.06.2013 for a sum of Rs. 30,000/- and cheque bearing no. 770918222 dated 18.07.2013 for a sum of Rs. 30,000/- against the terminated policy. The surrender value was calculated by the OP as per the terms and conditions of the policy. Insurance is a contract between the insured and insurer and both the parties are bound by the terms contained therein. The Hon’ble NCDRC in the matter of National Insurance Co. Ltd. vs. Vinod Puri as reported in I [2014] CPJ 341 (NC) is pleased to hold as under:
Insurance contract has to be construed like any other contract on basis of its terms and conditions and outside aid for construction of insurance policy is impermissible.
20. The Hon’ble Apex Court in the case of Oriental Insurance Co. Ltd. versus Sony Cheryan reported in (1999) 6 SCC 451 is pleased to hold as under:
The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy.
21. Similarly in the case of General Assurance Society Ltd. vs. Chandumull Jain and Anr., reported in (1996) 3 SCR, 500, the Constitution Bench has observed that the policy document being a contract and it has to be read strictly. It was observed:
In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover floor, cyclone etc. had come into being.
22. The Hon’ble NCDRC in the matter of Ind Swift Ltd. versus New India Assurance Co. Ltd. reported in IV[2012] CPJ 148 (NC) is pleased to rule as under:
Construction of the policy is to be construed strictly as per the terms and conditions of the policy document which is binding contract between the parties and nothing can be added or subtracted by different meaning.
23. Similarly in LIC versus Banwarilal Yadav reported in IV[2013] CPJ 38 (NC) the Hon’ble NCDRC observed as under:
“Forum has no jurisdiction to go beyond terms and conditions of the Policy.”
24. The NCDRC in yet another matter in the matter of Morien Chemicals Ltd. versus UCO Bank reported in III [2013] CPJ 261 (NC) is pleased to hold as under:
“Insurance Company is not liable to pay damages which are not covered under the policy.”
25. Having regard to the facts and circumstances of the case and discussion heard, we are of the considered view that there exists no infirmity in the decision of the Insurance Company as the surrender value was calculated as per the terms and conditions of the policy. Moreover, the complainant in the present case has mislead this Commission by concocting the false story of termination of policy on the basis that the fund value of the policies in question were equal to the annual premium of the complainant policies whereas the policies in question were terminated by OP Ins. Co. due to non payment of the further premium by the complainant and fund value of the policy in question on the date of termination were handed over to the complainant by OP in the year 2013 hence, no cause of action as alleged accrued in favour of the complainant and against the OP. The above cited judgments are squarely applicable in the present case.
- In view of the above discussion, we are of the considered opinion that the present complaint is devoid of merit, hence, dismissed.
- Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.
Announced in open Commission on 25.07.2023.
SANJAY KUMAR NIPUR CHANDNA RAJESH
PRESIDENT MEMBER MEMBER
