BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of January 2018
Filed on : 30-09-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.738/2014
Between
Bindu Mary Joseph, : Complainant
W/o. Judy Joseph, 6B, (By Adv. T.C. Krishna, Azad road,
Chakolas Bayside, Kaloor, Ernakulam)
Chakolas Colony, Perumanoor,
Thevera, Kochi-682 002.
presently res. at 830, Chatham road,
glenview IL 60025,
United States of America,
rep. by her power of attorney
holder Jaise Mathew Peter,
S/o. K.M. Peter, P
uthenparambil house,
CC/25/1323 – B,
Varu Viadayar Road,
Moolamkuzhi, Cochin-682 002.
And
1. M/s. Axis Bank, : Opposite parties
41/419, Ground Floor, (By Adv. Madhu Radhakrishnan,
Chicago Plaza, Rajaji road, Radhakrishnan & co., Door No.
Kochi-682 025, 39/4285-A, Manikkiri Cross road,
rep. by its Manager. Near Pallimukku, Kochi-682 016)
2. M/s. Metlife India Insurance
Co. Ltd., 2nd floor, M.K.K. Nair road,
Thadikkaran Centre,
Palarivattom, Kochi-682 025.
rep. by its Manager.
O R D E R
Cherian K. Kuriakose, President.
Complainant's case
Believing the offers given by one Mr. Ajay Ghosh and Mr. Pious Mathew attached to the 2nd opposite party insurance company, the complainant, an NRI, residing in USA, purchased one policy in her name with an yearly minimum premium of Rs. 5 lakhs and another policy in the name of her minor son, Varun Joseph with an yearly premium of Rs. 2.5 lakhs. She had made arrangements with M/s. Axis Bank, the 1st opposite party and the 2nd opposite party, Met Life Insurance Company to pay the premium of both the policies from her account in the 1st opposite party bank The policies were in the year 2008 before her leaving from India. She had signed certain papers and the employees of the opposite parties had assured her that the copy of the policy would be forwarded to her. However, the complainant did not receive any copy of the policy. After 2009, there was no information from the opposite parties regarding the insurance policies and the 1st opposite party did not transfer any amount to the 2nd opposite party by way of premium. The opposite paries did not intimate the complainant about the non payment of the amount. When the complainant came to India during 2011 she was asked by the 2nd opposite party to undergo a medical checkup and to pay the 3rd yearly premium before undergoing the medical check up. After one year, she received a telephone call from the 2nd opposite party stating that both policies were cancelled due to “medical report mismatch” and she had some policy to cancel for nonpayment of the yearly premium. The complainant had issued several e-mails seeking clarifications on the matter and in spite of repeated e-mails she was not given any proper reply. During December 2012 an amount of Rs. 5 lakhs collected from her on 15-07-2011 was returned along with Rs. 6,52,498.38 as against the payment of Rs. 10 lakhs towards the two yerarly premium of the policy in the complainant’s name and Rs. 4,53,614.38 against payment of Rs. 5 lakhs paid towards the policy in the name of the complainant’s son. Both policies were cancelled. However, the complainant was kept at dark as to why the policy was cancelled. During February 2014, the complainant was provided with a copy of medical report which stood in her name . The complainant was surprised to note that a medical report of 2008 in her name was also enclosed, whereas, she had never undergone any medical checkup during 2008. During 2008 the complainant was not in India and she did not go for any medical checkup. Smelling foul play, the complainant took up the matter with the opposite parties and requested them to investigate the matter and demanding the refund of the entire amount paid by her. The complainant was provided with deficient service by the employees of the opposite parties . The complainant therefore seeks for refund of the entire amount with interest and costs and compensation.
2. Notices were issued to the opposite parties and the opposite parties appeared and resisted the claim by filing their respective versions.
3. The 1st opposite party bank contented in their version that the 1st opposite party was not provided any insurance service to the complainant and the complaint is not maintainable as against the 1st opposite party. There was no cause action for the complainant against the 1st opposite party. The opposite party no. 1, bank was only a facilitator and the actual insurance policy was issued by the 2nd opposite party and further that there was no privity of contract between the complainant and the 1st opposite party bank, so that the 1st opposite party was entitled for exoneration.
4. The 2nd opposite party insurance company in their written statement contented that the complaint is barred by Section 24 A of the Consumer Protection Act as it was filed beyond the limitation period of 2 years. The policies were issued in the year 2008 and the complaint was filed in 2014, after a period of 6 years. The delay having not been condoned the complaint is liable to be dismissed. The complainant had voluntarily applied for insurance of policy by filling up the required proposal form . The complainant did not pay the subsequent premium due on 27-04-2010 and thereafter. The amount of Rs. 5,00,000/- paid by the complainant was kept in suspense account for want of medical records from the complainant for reinstating the policy. Later basing on the medical reports the reinstatement was declined and Rs. 5,lakhs was returned to the complainant. The policy as foreclosed on 31-12-2010 and the foreclosure amount was promptly paid to the complainant. The policy became lapsed for want of payment of continuous premium . On 31-08-2012 the opposite party received an e-mail from the complainant disputing foreclosure of the policy . Since the e-mail was not from registered ID, the opposite party requested the complainant to sent e-mail from the registered email I.D. Subsequently the foreclosure was disputed by the complainant from her registered email ID. and it was replied by the opposite party. In consonance with the provisions of the policy the status of the policy was changed and it became lapsed . The complainant was provided with the admissible amount after the policy getting lapsed. The complainant is therefore not entitled for any reliefs as prayed for and the complaint is sought to be dismissed.
4. On the above pleadings the following issues were settled for consideration
Whether the complaint is barred by limitation U/s. 24A of the C.P. Act?
Has the complainant proved any deficiency of service on the part of the opposite parties?
Reliefs and costs.
5. The evidence in this case consists of the oral evidence of PW1 and Exbts. A1 to 15 on the side of the complainant and the oral evidence of DW1 and Exbts. B1 to B8 on the side of the opposite parties.
6. Heard both sides.
7. Issue Nos. i and ii. PW1 is the Power of Attorney holder of the complainant. According to PW1 the opposite parties had falsely alleged that a bogus medical certificate was obtained in the name of the complainant on 22-2-2008. The policy of the complainant got cancelled due to certain foul play played in the office of both the opposite parties. There was an implied contract for fair dealing and that was not done by the opposite parties. It was also the case of the complainant that the 2nd opposite party did not sent the policy conditions and the policy certificate to the complainant even within the 1st 2 years of the policy period. However, no documents were produced by the complainant to prove such allegations of deficiency in service. If the complainant did not get the policy within 2 years and if she was adhered of such deficiency in service, she should have complaint before this Forum within a period of 2 years from that date. That is not seen to have been done by the complainant. PW1, admitted that no instruction was given to the 1st opposite party bank to forward the premium amount for the 3rd year of the policy period to the 2nd opposite party. PW1 gave evidence that the complainant presumed that the 1st opposite party would pay the premium as there was sufficient money in her account in the bank. PW1 was giving evidence on the basis of the instructions given by the complainant , who is abroad. PW1 also admitted that this policy was a unit linked policy . there is no disclosure in the complaint that the policy taken by the complainant were unit linked policy. However, PW1 had candidly admitted that the policy was Unit linked. The complainant produced Exbts. A1 to A15 documents to support her case. However, she did not produce a copy of the policy certificate to prove her case of alleged deficiency. What the complainant produced were only the communications between her and the opposite parties. Exbt. A14 series are regarding ht medical reports pertained to the complainant taken during 2011. PW1 having admitted that the policy taken by the complainant was unit linked and the complainant having admitted partial refund of the amount of premium paid by her, we are liable to find any deficiency in service on the part of the opposite parties. It is to be remembered that the life of the complainant and her child was assured during the 1st two years after taking the policy. She was give back a portion of the amount paid by her as premium after deducting the proportionate amount towards the insurance coverage of the life of the two policy holders. By not producing the details of the policy and the policy certificate with terms and conditions along with the complaint we find that the complainant has not approached the forum with clean hands. Exbt. B6 produced by the opposite party would go to show that the medical examination of the complainant was required on 19-01-2008 by the opposite parties. We therefore find the issues against the complainant.
8. Issue No. iii. Having found issue number 1 and 2 against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 30th day of January 2018.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : True Copy of Power of Attorney
A2series : True copy of e-mail, statement etc.
(3 in numbers)
A3 : True copy of e-mail dt. 18-05-2014
A4 : True copy of e-mail dt. 09-06-2014
A5 : True copy of e-mail dt. 20-05-2014
A6series : “ “ dt. 20-05-2014
(3 in numbers)
A7 : True copy of e-mail dt. 31-01-2014
A8 : True copy of e-mail dt. 31-01-2014
A9 : True copy of e-mail dt. 29-01-2014
A10 : True copy of e-mail dt. 28-01-2014
A11 : True copy of e-mail dt. 25-01-2014
A12 : True copy of e-mail dt. 23-03-2013
series (2in nos.)
A13series : True copy of e-mail dt. 31-08-2012
(2 in nos)
A14 series : True copy of letter, results etc. (18
in nos.)
A15 : Copy of passport
Opposite party's exhibits:
Exbt. B1 : True copy of application for
Life insurance
B2 : True copy of application for Life
Insurance
B3 : True copy of letter dt. 18-12-2012
B4 : Copy of e-mail dt. 31-08-2012
B5 : Copy of questionnaire for non
resident Indian and Person of
Indian Origin
B6 : Copy of medical examination/Lab
Tests dt. 19-01-2008
B7 : True copy of medical examination
report
B8 : Certificate under the bankers book
evidence act dt. 05-12-2017
Depositions
PW1 : Jaise Mathew Peter
DW1 : Ms. Sreeja R
Copy of order despatched on By Post: By Hand:
