BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 17/04/2009

Date of Order : 30/09/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 218/2009

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :

On 17-03-2003, the complainant availed himself of a life insurance policy from the 1^st opposite party and his wife Mrs. Santha Achuthan was the nominee in the policy. On 12-03-2003, the complainant's wife availed herself of a policy and the complainant is the nominee. Both the policies were for a period of 10 years with 6% guaranteed return and the complainant paid 6 years premium promptly. Lured by the assurances and promises of the 3^rd and 4^th opposite parties, the complainant agreed to switch over the said policies to a new scheme. For which on 08-08-2008, the complainant signed in an application 'Forum 'A'. After a couple of days, the complainant received the new policy information wherein the name of the insured persons in both the policies had been changed to that of his daughter Radhika Achuthan aged only 21 years. On verification of records, it is revealed that the signatures of the complainant have been forged in the application form and the 2^nd and 3^rd opposite parties had switched over the policies without properly convincing the complainant and had taken illegal advantages in the transaction. Thus, the complainant cancelled the newly converted scheme within the free look period and the same has been acknowledged by the 3^rd opposite party. Aggrieved by the fraud committed by the opposite parties on 17-09-2008, the complainant caused to issue a lawyer notice. The opposite parties sent a reply stating untenable and unwarranted contentions. Thus, the complainant is before us seeking the following directions against the opposite parties :

1. To reinstate the previous policies.

2. To direct the opposite parties to refund the entire amounts paid towards two policies with 12% interest form the date of original policy till realisation.

2. Version of the 1^st opposite party :

The complaint is barred by the doctrine of election, since the complainant has taken up the matter before the Insurance Ombudsman as well. The complainant was holding 2 flexi policies, one for self and another in the name of his spouse which were taken in 2003. Based on the complainant's request, both the policies were converted to 'gold plus' plan by the 3^rd and 4^th opposite parties after meticulously elucidating the complainant, all the specifics vis-a-vis the scheme and making him the policy owner and his daughter as the life insured. The complainant is not entitled for any of the reliefs as prayed for. The 1^st opposite party requests to dismiss the complaint.

3. Despite service of notice from this Forum, the 2^nd, 3^rd and 4^th opposite parties opted to remain absent, during the proceedings for reasons of their own. The complainant was examined as PW1, Exts. A1 to A10 were marked on his side. Neither oral nor documentary evidence was adduced by the 1^st opposite party. The counsel for the 1^st opposite party filed argument notes. Heard the counsel for the complainant and the 1^st opposite party.

4. The points that arise for consideration are :-

1. Whether the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get the previous policies revived?

3. Whether the complainant is entitled to get refund of the entire amounts paid in the policies with interest?

5. Point No. i. :- Admittedly at the threshold, the complainant approached the Insurance Ombudsman to get his grievances redressed. According to the complainant, the Hon'ble Insurance Ombudsman directed the complainant to approach this Forum. Neither the party has produced the claimed order. The Hon'ble National Commission held in Kamaleshwari Prasad Singh Vs. National Insurance Co. Ltd. (2005) CPJ 107 (NC) that though the claim of the complainant was rejected by the Insurance Ombudsman, the complaint is maintainable under the Consumer Protection Act. So, the contention of the 1^st opposite party that the complaint is barred by doctrine of election does not hold water.

6. Point Nos ii. and iii. :- According to the complainant, the 3^rd and 4^th opposite parties had approached him and had mislead him if he switched over the original policies to a new scheme, there would be 10% assured guaranteed return. It is stated that the agents of the 1^st opposite party had mislead the complainant and obtained a wrongful gain from the complainant and so caused wrongful loss to the complainant and had obtained illegal monitory advantages.

7. On the contrary, the 1^st opposite party vehemently contended that at the request of the complainant and having been fully convinced him of the new scheme he was entrolled in 'gold plus' scheme.

8. Admittedly, the complainant and his wife were holding Exts. A1 and A2 policies with effect from 17-03-2003 and 12-03-2003 respectively. Exts. A3 and A4 receipts go to show that both the complainant and his wife had remitted premium for for 6 years. Whatever be the reasons for the fresh policy the complainant opted to cancel the same by sending Ext. A5 series free look cancellation dated 06-09-2008. Ext. A6 would show that the 1^st opposite party had received Ext. A5 application. But later vide Ext. A8 letter dated 06-10-2008, the 1^st opposite party intimated the complainant as under :

“We regret to inform you that your signature does not tally with our records.”

In the mean time, the 3^rd and 4^th opposite parties sent Ext. A9 letter dated 30-08-2009 in which they stated as under :

“We would sincerely apologize for what we had done.”

9. No explanation is forthcoming on the part of the 1^st opposite party as to what, they really meant for or their shortcoming is for which they have evidently expressed their apologies. Matters being so, it is not brought before this Forum what the opposite parties differ from against the complainant which seemingly and evidently in the absence of substance to the contrary. The above conduct of the opposite parties go to show that the entire dispute has been caused only due to the deficiency in service on the part of the 3^rd and 4^th opposite parties who are the employees of the 1^st opposite party unnecessarily so. Evidently, the subsequent change of the polices to 'gold plus' scheme is not necessarily voluntary as claimed by the opposite parties and naturally the complainant is entitled to get the earlier policies revived especially so, because as per the Insurance Regulatory and Development Authority Rules, an insured is legally entitled to quit out of the policy during the free look period in the present case, the complainant opted to do so.

10. In the result, we partly allow the complaint and direct that,

1. the 1^st opposite party shall revive Ext. A1 and A2 policies by accepting the premium amounts without charging any interest there on and abiding by the same terms and conditions OR

2. the 1^st opposite party shall refund the entire amounts received from the complainant together with interest @ 12% p.a. from the date of each receipts till payment.

3. The above clauses shall be made to the choice of the 1^st opposite party since it is obvious that discretion is the better part of volour.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of September 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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Date of Despatch of this Order ::

By Post ::

BY Hand ::