Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. CC-126/2018
Sh. Balbir Singh S/o Sardar Mahendra Singh
R/o C-43, Top Floor, Som Bazaar Road,
Jeevan Park, Uttam Nagar, New Delhi ...Complainant
Versus
OP1. Punjab National Bank (through its Branch Manager)
Arya Samaj Rd, CPPC, Gurudwara Road, Karol Bagh,
New Delhi, Delhi 110005 ..Opposite Party No.1
OP2. PNB MetLife (through its Branch Manager)
B-23, 1st Floor, B1, Community Centre, Janakpuri,
New Delhi - 110058 ...Opposite Party No.2
[...OP3 - name was dropped on 30.09.2019,
she was impleaded by order dated 18.4.2019]
Senior Citizen Case
Date of filing 05.07.2018
Date of Order: 25 07.2023
Coram: Shri Inder Jeet Singh, Presiden
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1.1. (Introduction to dispute of parties) - The complainant filed complaint by making allegations of deficiency of services and unfair trade practice against OPs. The complainant received SMS as an invitation for saving plan /life insurance policy from OPs, he approached the OPs at office of OP1. The complainant was offered saving plan by appropriate persuasions, he requested for policy in his name by furnishing documentary record of Aadhar & PAN, name of his son as nominee and also furnished documentary record of his nominee asked for, apart from first premium of Rs.50,000/- was also collected by OPs from account of complainant. But policy was not issued to him but it was intentionally issued in name of his nominee/son. It was immediately objected by complaint on receipt of welcome message. The complainant had also written to all concerned to do needful including legal notice but no result.
1.2 Whereas, the case of OP2 is that complainant's son Pawandeep Singh (since Life Assured) furnished proposal form, it was acted upon and policy was issued to him and proposal form was not by complainant. The life Assured failed to get the policy cancelled despite free look period. Parties are bound by terms and conditions of policy. Lastly, complainant asked for change of policy from the name of his son to his name, which is not permissible since complainant was above 60 years of age but his son was of 30 years of age, businessman and without any ailments. Later-on, the life Assured (Pawandeep Singh) was asked that policy may be cancelled and first premium paid may be shifted to one time premium policy but Assured had not agreed thereto. Thus, there is no deficiency of services or unfair trade practice.
1.3 Initially the complaint was filed against OP1 and OP2. However, the OP2 in its written version took the objections of non-joinder of a specific party Ms Annu Nagpa through whom policy was taken. The complainant moved an application to implead Ms. Annu Nagpal, the application was allowed and she was impleaded as OP3 by order dated 18.04.2019. Ms. Annu Nagpal's address was mentioned as address of OP2. Then the OP2 was asked to furnish address of Ms. Annu Nagpal, however, it was not furnished by OP2 and for want of her address, the complainant dropped the name of OP3 by statement dated 30.09.2014, as otherwise, it would not demerit the complaint.
2.1. (Case of complainant) – The complainant, a senior citizen aged about 68 years, is in business of generators to earn his livelihood. The OP1 and OP2 are in the banking sector and they provide banking service and insurance related services to their customers at large. On 07.12.2017 the complainant received SMS from OP1 promoting PNB Metlife Guaranteed Saving Plan (briefly policy) and on the next day on 08.12.2017, the complainant approached to OP1 to verify the veracity of SMS. The complainant was addressed by an employee namely Annu Nagpal of OP1. After discussion, the complainant was asked his Aadhar Card and Pan Card for policy in his name and his son to be nominee in the said policy. The complainant was not carrying any cheque book or cash at that time and he requested for his visit on coming Monday on 11.12.2017, as 09.12.2017 and 10.12.2017 are to be closed on account of 2nd Saturday and Sunday. Ms. Annu Nagpal vehemently insisted complainant should buy the policy on that day as offer was valid till 10.12.2017 and no policy would be issued on Monday/11.12.2017. The complainant was lured by the assurances and promises extended to him on the part of OP1, he furnished his detail of PAN and Aadhar Card being necessary for filling in the application form.
In the evening of 08.12.2017 the complainant received a phone call from office of OP1 of Ms. Annu Nagpal (having mobile number 9999353212) to confirm all the details for the said policy, the complainant confirmed and informed his age etc. and it was communicated to him that policy will be in the joint name of complainant and his wife Ms. Ravinder Kaur, the nominee will be their son Pawandeep Singh. The OP1 had asked copy of Pan Card and Adhar Card details of his son Pawandeep Singh for the process of nomination, which complainant complied forthwith considering it is mere a technical formality.
2.2. On 11.12.2017 at about 2:00 pm, the complainant received a welcome phone call from OP2 enquiring about his son and to congratulate him in joining PNB Metlife. The complainant mentally agitated and shocked to hear this information from the caller while telling them that there is mistake as the policy was to be issued in the name of complainant Balbir Singh and not in the name of his son Pawandeep Singh. It was also informed that it is practically impossible that his son could purchase the policy as he was in Singapore since May, 2016, he had visited twice, till date, in January, 2017 and in October, 2017 that too for ten days. The complainant was advised by the caller to visit the Bank immediately.
Thus, on 11.12.2017 the complainant approached OPs and also enquired about the mistake and the phone call received, OP1 assured that it is just technical error and it would be rectified as soon as the premium amount of Rs. 50,000/- is paid. The complainant believed the promise and assurances given by OP1, he deposited Rs. 50,000/- in his bank account no. 0120000102594754 of PNB Karol Bagh Branch (OP1) on 12.12.2017. The amount was deducted from his account and complainant was informed that policy would be printed within 15-20 days and would be made available to the complainant.
2.3. On 02.01.2018 the complainant was shocked to received policy bond no. 22400542 in the name of his son and without any rectification correction, which was promised by OPs before the deposit of Rs. 50,000/-. On 04.01.2018, the complainant again visited the bank because of feeling aggrieved from the fraudulent acts of OP1, where employees of OP1 realized again their mistake and they guaranteed for rectification and correction of policy bond within 15 days; photocopy of policy was asked, immediately it was given to them. In the evening of 04.01.2018 the complainant received a call from phone no. 8076535983 claiming to be from PNB and directing the complainant to furnish original policy bond to the Karol Bagh Branch for necessary amendments and he was also asked to file application form for amendments. On 05.01.2018, the complainant furnish the original policy form with application for appropriate rectification and correction; he was also advised by OP1 that original rectified policy bond will reach him within 10-15 days. On 30.01.2018, after pursuing for the matter for correct policy bond, the complainant received a call from Mr. Ashish, employee of OP1 (having mobile no. 9999978105) that application for proposed amendment in the policy bond has been accepted, it is being sent for printing and will be delivered at complainant’s address within next 10-15 days. On 06.02.2018, the complainant on the same contact number enquired from Mr. Ashish of OP1 about the status of policy, since the complainant was leaving for Singapore on 08.02.2018 and also requested whether policy bond could be delivered before 07.02.2018. The complainant was assured by him by making tall claim that it is a big company and complainant would receive the policy bond.
The complainant keep on enquiring about the policy bond and he received Whatsapp message and phone call from Ms. Annu Nagpal of OP1, confirming the detail of proposed rectifications. However, policy bond was not issued/received and it was kept on the one pretext or the other that it is month of March being closing year and it was difficult for them to make required changes.
2.4. On 15.03.2018, on receiving a call from Ms. Surbhi, another employee of OP1 that amendment in the policy will be done and also fixed a meeting on 15.03.2018 in the branch of OP1 but time will be communicated and conveyed to the complainant, however, no further such call was received. Thus, for want of receiving response on 17.03.2018, the complainant felt disappointed and suspicion of acts of Bank employees, he decided to resolve the issue by visiting head office of OP2 at Janakpuri.
Complainant again furnished all information to OP2, also gave contact number of Mr. Ashish and complainant was assured to deliver him policy very soon. When OP2 called Mr. Ashish on his aforementioned phone no. 999978105, it was informed that caller was not staff of PNB. The OP2 called the complainant after 10 days.
2.5 The OPs have forged signature of complainant’s son on application form for the said policy, without his prior authorization and also made a fictitious witness, whose incomplete address is mentioned in the application form. Complainant’s son was not in India and he was also not in India on the said date and month of December, 2017, it was impossible that application form would be bearing his signature. It is matter of forgery, fraud, mis-conduct, cheating, etc.
The complainant has been requesting the OPs by all modes of telephone, written request, visits, but no amendment/rectification was done. OPs are negligent and their callous attitude shows they do not bothered for the cause. The complainant has also written email to the grievance cell of OP2 as well as to IRDA on 18.03.2018 by informing all such details of such grievances but there is no resolution of grievance till date. The complainant has 'calls recording or all conversation' which took place between the complainant and OPs. There is no response by the OPs to the legitimate request of complainant to rectify the policy bond.
2.6 On 02.06.2018, the complainant get his pass book entries updated from OP1, then it was revealed that OPs had the intention of defrauding and cheating the complainant from inception, since in the entry of 12.12.2017, amount of Rs. 50,000/- was deducted by the OPs by transferring amount in the name of complainant’s son Pawandeep Singh instead of for the complainant, as entry reads “To INS03 PAWAN DEEP 21585578”, it clearly shows mala-fide intention of OPs.
The acts of OPs are of deficiency of services and of unfair trade practices apart from arbitrary, illegal and mala-fide for which they are liable to compensate the complainant since they have harassed the complainant physically, mentally, emotionally. The complainant also served legal notice dated 05.05.2018 on them. [Some other part of complaint is argumentative and explanations with provisions of law, they are not required to be reproduced]. The complainant claims appropriate direction to the OPs to amend and rectify the policy bond and to issue a fresh policy bond in the name of complainant, to direct of compensation of Rs. 15 Lakhs for causing mental agony, torture and harassment, punitive damages of Rs. 1,00,000/- and litigation cost apart from other reliefs/directions.
2.7 The complaint is accompanied with copy of policy with welcome letter, payment receipts, etc; copy of documents received on Whatsapp from Ms. Nagpal, emails, copy of legal notice dated 05.05.2018. The complainant had also filed replication after reply of OP, the rejoinder is also accompanied with copy of passport of his son and copy of pass book, apart from filing CD of dialogue with its written transcript.
3.1 (Case of OP2)- The OP2 filed its written version/reply under the signature of Sh. Rajiv Sharma, authorized signatory. The reply is divided in the form of preliminary objections, facts of the case and para-wise reply. However, relevant and material facts are being narrated here. The complaint is opposed on various grounds. The policy was issued as per proposal form duly filled in and submitted by Pawandeep Singh, who is son of present complainant and the policy was issued accordingly. Whereas the complainant wants to get transfer the policy in his own name from the name of Pawandeep Singh, it was not feasible nor within the parameters of business Policy and norms.
The jurisdiction of Consumer Forum is not made out, since there are very complex question of law, which can be determined by the civil court, since there are allegation of forgery, cheating, fraud, criminal breach of trust and mis-appropriation of policy. The written statement reproduces definition of consumer as given in the Consumer Protection Act, 1986 to emphasize that complainant is not a consumer as per the definition, since policy was issued in the name of Sh. Pawandeep Singh and the complainant is not life Assured or policy holder. The complaint also suffers from non-joinder of parties as the policy was issued through specified person of corporate agent namely Annu Nagpal, which is also mentioned by the complainant. However, she was not made party in the complaint.
The OP2 has entered into insurance contract with Pawandeep Singh. The insurance business is carried on the basis of human life value and various factors are taken into consideration for eligibility for policy, the said Pawandeep Singh is a man of 30 years earning Rs. 4,20,000/- through his business with no medical ailments. The policy was not issued to the complainant. Moreover, as per terms of insurance policy contracts, its terms and condition are binding of the parties i.e. the OP2 and the life Assured. There is specified free look period, within that period the assured may request the insurer for not agreeing with the terms or conditions of the policy or so on then appropriate decision is taken. The policy holder had not exercised this option. The insurance policy terms are to be followed strictly.
3.2. The life assured was issued policy for a term of 10 year w.e.f. 07.12.2017 and premium paying term was 5 year for annual premium of Rs. 48,923.54. But the complainant was insisting to transfer the policy in his name, neither it is within the insurance policy terms & conditions nor within the business norms, as complainant was more than 60 years of age on the date of issue of policy.
3.3. When complaint's grievances were received in the office of OP2, besides email as well as information that complainant’s son was in Singapore or how he could sign any document for issue of policy. The OP2 had proposed a good solution to cancel the policy and transfer the amount in another single premium policy, however, it was not agreed upon by the life assured nor by the complainant, as complainant is insisting for policy in his name but it is not feasible under any circumstances.
3.4. The OP2 denies all other allegations of the complaint with request that complaint is mala-fide and it has been filed to extort money from the OP2. Neither there is deficiency of services nor unfair trade practices nor the things like cheating, forgery, illegality, fraud or criminal breach of trust or mis-appropriate of policy. The complainant approached first time in March 2018 as an after-thought. The complaint is liable to be dismissed. (The OP2 has enumerated names of many cases to derive support in its favour, however, the same need not to be referred and the same will be dealt during determination of issues in the Findings). The reply is accompanied with a copy of policy and emails.
3.5 (Case of OP1)- OP 1 failed to file reply to complaint and its right to file reply was closed vide order dated 26.10.2018
4. (Replication of complainant) – The complainant filed detailed replication/rejoinder along with documents. The complainant denies all the allegations mentioned in the written version/reply of OP2. Briefly, the complaint is bona-fide. The complaint is correct. The complainant reaffirms that he had received SMS and opted for policy in his name; his son had not signed any proposal form nor he was in India on that day nor he was to be issued insurance policy. The complaint has been filed properly. The complainant was harassed and that is why compensation is being claimed and it is wrongly asserted to be extortion of money from the OPs. The replication was accompanied with documents.
5.1. (Evidence)-In order to establish the complaint, the complainant himself led his evidence by filing detailed affidavit while referring and supplementing with the documentary record filed.
5.2. On the other side, OP2 led evidence by filing affidavit of Sh. Devendra Verma, Manager Legal the affidavit is reproduction of contents of written version/statement of OP2.
5.3. OP1 failed to file its written statement to the complaint and there is also no evidence on behalf of OP1.
6. (Final hearing)- The complainant and the OP2 filed their written arguments. The parties were given opportunity to make oral submissions. Sh. Arpit Sharma, Advocate for complainant and Ms. Lubhanshi Tanwar, Advocate for OP2 made the oral submissions and counsel Sh. Rahul Pandey, Advocate for OP1 also remained present during the phase of arguments.
7.1 (Findings)- The rival contentions of both the sides are considered, keeping in view the material on record, majority of them are documentary record, which also unfold the contemporary situations, besides considering provisions of law and case law presented.
Since, there are many issues viz. competency/jurisdiction of Consumer Forum/ Commission, complainant is a consumer or not, non-joinder of parties to complaint, insurance policy contracts, terms and condition of policy, free look period, bona-fide or mala-fide of complaint and so on. Thus, each of them will be discussed and determined one by one.
7.2.1. [Reg- Jurisdiction/competency of Consumer Forum/Commission] - The issue of competency of Consumer Forum/Commission has been raised by OP2 on the ground that issues involved in the complaint very complex in nature and it can be decided by civil court, however, the complainant has reservation thereto.
7.2.2. The OP2 contends that complaint makes allegations of fraud, cheating, forgery, criminal breach of trust, criminal misappropriation of property; the same can be adjudicated before a civil court through a proper trial and by adducing substantive evidences. The proceedings before this Forum are essentially summary in nature and adjudication of issues involve disputed factual questions. It needs detailed adjudication by way of adducing evidence. The complaint deserves dismissal, while relying upon -
(i). UCO Bank Vs S.D. Wadhwa in R.P No. 2479/ 2008 dod 24.07.2013 (NC) that "Complaint involves complicated and complex questions which require elaborate evidence, hence dispute cannot be adjudicated in summary jurisdiction, therefore, Complaint was held not maintainable
(ii) Pannalal Vs Bank of India &Others II (1992) CPJ 487 (NC) held that "it is evident from the above that the Complainant's is not a simple case of deficiency in service rendered by the Bank. It involves a determination of complex questions of facts and law which cannot be satisfactorily determined by this Commission in the time frame provided under the Act. It would be better for the complainant to seek redress of his grievances in Civil Courts if so advised."
(iii) Janta Machine Tools Vs Oriental Insurance Co. Ltd. I (1991) CPJ 234 (NC) held that " this is not a case where the Insurance Company did not take prompt and necessary steps for deciding the claim under the policies of insurance. It may be that the complainant is not satisfied with the said rejection of his claim by the Insurance Company. Having regard to the facts and circumstances of this case and the nature of the controversy between the parties we consider that this is a matter that should be adjudicated before a Civil Court, where the complainant as well as the respondent will have ample opportunities to examine witnesses at length, take out Commission for local inspections etc. and have an elaborate trial of the case.
Without prejudice to the right of the complainant to take resort to the remedy by way of civil suit before the proper court, we dismiss this petition".
7.2.3. The complainant opposes the plea of OP2 that there is nothing as such to debar the jurisdiction of consumer Forum from deciding the Complaint. There are gravity in allegations on its face against the OPs but no complicated question to be decided by the Civil Court. The present Consumer Commission is competent to decide the dispute as well as it can be decided in summary way. The complainant relies upon-
(a) Kranti Associates Pvt Ltd. & Ors. Vs. Masood Ahmed Khan and Ors. MANU/SC/0682/2010 , there was an occasion to discuss provisions of the Consumer Protection Act, 1986 to ascertain the jurisdiction of the Commission held that-
"(para 10)- the above provisions make it clear that the said Commission has the trappings of a Civil Court and is a high-powered quasi-judicial forum for deciding lis between the parties."
7.2.4. The rival submission of the parties are manifesting their respective case. The short question is, whether there exits complicated question of law and fact, which is to be determined by Civil court only and not by the Consumer Commission?. It needs to see the record.
The complaint was filed by the complainant, what he faced personally by meeting the OPs, its agents, its employee as well as on the basis of documentary record. The documentary record has also been filed. During pending of complaint, the OP2 was directed, asked and time was also granted to file original proposal form but it failed to file. Thus, when other record available can be considered and it does not involve any complicated question in the present complaint to be decided by the Civil Court. In fact, each case has its own facts and features; the facts and features of present case does not involve any complex or complicated question of facts and law. The OP2 has stated in general way that there is complicated question of facts and law, but without suggesting which fact or what law? Thus, this District Consumer Dispute Rederessal Commission/Forum is competent to decide the complaint. Accordingly, this issue is decided against the OP2.
7.3.1. [Non-joinder of parties] - This issue is also raised by OP2 in its written statement as well as in its evidence.
7.3.2. OP2 contends that complaint suffers from non-joining of Anuu Nagpal as party to the complaint, whereas she is a necessary party since complainant himself asserts that policy was taken by him through specified person. In the absence of such a party to the complaint, the complaint is liable to dismissed.
7.3.3 The contentions of OP2 are opposed by complainant. In fact, the complainant had moved an application to implead Annu Nagpal a party to complainant, it was allowed on 18.4.2019 by impleading her as OP3. Her address was required and OP2 was asked to provide the address. OP2 failed to furnish address of impleaded OP3 despite sufficient specific time was given to it and even extended period was also given, since OP2 must be having address/ particulars/ details of its employees/agents. The OP2 with-held that material assistance and ultimately statement was given on behalf of complainant to drop name of OP3, without prejudice to his rights vis a vis the OP2 is vicariously liable for the acts of its employees and agents. The complainant has also proved recording of conversion between the complainant and employees/agents of OP2, including of Annu Nagpal.
7.3.4 The submission of both the side are considered. Initially the complainant was against OP1 and OP2. OP2 took objection in the written statement. Then on the application of complainant, OP3 Annu Nagpal was impleaded, her address mentioned was as of OP2. Then OP2 was asked to furnish her address. Relationship Manager of OP2 had appeared, address of OP2 was not furnished but informed that Annu Nagpal had left the services of OP2, which is matter of record in the proceedings dated 04.06.2019. The complainant had no source of information or address of OP3 but OP2 could certainly provide it, but it failed to provide the address. It stand confirmed and admitted by OP2 that OP3 Annu Nagpal was its employee/agent that is why OP2 informed the Commission, that she left the services. It also means that OP2 had address and other particulars of OP3 but OP2 with-held it from the Commission. Then Complainant gave statement on 30.9.2019 stating that in order to avoid delay etc., name of OP3 was being dropped.
However, despite dropping the name of OP3 under those circumstances, the OP2 in its subsequent affidavit of evidence ( paragraph 9) repeated the objection of non-joinder of Annu Nagpal and to dismiss the complaint. It is again wrong and unfair on the part of OP2. Earlier it was also unfair on its part that despite OP3 was joined as party but OP2 with-hold her address; then the complainant was constraint to drop her name. The OP2 is trying to exploit the situation for its convenience. It is not acceptable. Moreover, the she was joined as OP3 by Order of Commission, the OP2 was not required not to take objection in the evidence. OP2 admits that Annu Nagpal was its employee/agent, or otherwise, to be part of Institution of OP2 at its platform, thus it would not demerit the case of complainant for want of availability of Annu Nagpal in the complaint. The objection raised by the OP2 is dismissed and it is decided against it.
7.4.1.[ Whether or not insurance contract exists between the parties?]- The rival plea of parties to complaint involves issues about insurance policy contract including proposal form, acceptance of proposal form, payment of premium, terms and conditions of policy including free look period.
7.4.2. It is contended on behalf of complainant that on 07.12.2017, the complainant had received SMS from the OPs 'for PNB Metlife Guaranteed Saving Plan and on 08.12.2917 he went to OP1 to verify it, he was apprised of said Plan by OP2 through the office of OP1 through Annu Nagpal. The complainant was put to time constraint of 10.12.2017 being last date but it was Sunday, thus he fell to their prey to take policy for him. He furnished his Adhar card and PAN besides other details, including details & record of his nominee/son.
The OP2 took stand that it had received proposal form of complainant's son for issuing policy but complainant's son never approached to OP2 for policy. It was complainant, having bank account with OP1, it was complainant who had received SMS for saving plan and the complainant had opted for saving plan. He had also deposited the premium as asked for.
During the pending of complaint, OP2 was asked to produce original application /proposal form but it failed to produce it despite number of opportunities. However, later OP2 took a new and false plea that it was on-line form in the tablet-I/pad, its record was also not produced. OP2 failed to prove that complainant's son had applied and obtained policy. Otherwise, for On-line form, physical presence of aspirant is required. Whereas, on material dates, complainant's son was out of country, the record of passport was also furnished to OP2 and also proved. In fact, OP could not led evidence beyond the pleading as it was never the case of OP2 that online application/proposal form was filled in, but OP2 attempted it. Complainant relies upon -
(a) Ram Sarup Gupta & others Vs Bishan Narain Inter College & ors. (1987) 2 SCC 555
"Para - 6..... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise.."
The OP No. 2 was given opportunity on two occasion, however, it failed to file affidavit but subsequently an affidavit dated 07.05.2019 was filed stating on oath that the Policy was issued electronically and end to end solicitation takes place through Tablet/ I pad. The OP-2 premised the affidavit as if Mr.
Pawandeep Singh approached the OPs. whereas, at the relevant time Pawandeep Singh was not in India and there is no acceptance/signature on the Customer Declaration Form by Mr. Pawandeep Singh, how there could be contract between them.
Moreover, the general rule is that contract of insurance concludes only when the party to whom offer has been made, accepts the offer unconditionally and communicates his acceptance to the person making offer as held in (a) Life Insurance Corporation of India v. Raja Vasireddy Komalavalli Kamba & Ors. reported in (1984) 2 SCC 719. Thus, Free-look period does applies for want of contract. The complainant also relies upon -
(b) Prem Singh and Ors. v. Birbal and Ors. MANU/SC/8139/2006 (Para 8), it was held that- "when a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity."
7.4.3. There are juxtaposition plea of OP2. The OP2/insurer submits that it has acted as per the mandate given in proposal form, OP2 also issued the insurance policy and took all decision in conformity of insurance terms and conditions which is concluded contract between the insurer/OP2 and the life assured, who is son of complainant. It is settled law that, the insurance terms have to be construed strictly, while referring and relying upon the following cases:-
(i) Export Credit Guarantee Corporation of India Ltd Vs. Garg Sons International [2013 (1) SCALE 4101(SC): held that while construing the terms of the contract of insurance, the Court must give paramount importance to the terms used in the said contract.
(ii) Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs United India Insurance Co. Ltd. [(2010) 10 SCC 567l (SC) held that the words in an insurance contract must be given paramount importance and must be interpreted as expressed without any addition, deletion or exclusion.
Moreover, the life assured was duly informed that in case he is not satisfied with the features or the terms and conditions of the policy he can withdraw/cancel the policy under the "Free Look Period", which is 30 days from the date of receipt of policy document. But policy holder/life assured retained the policy document and did not raise any objection or grievances to policy during "Free Look Period" with regard to policy or its terms and conditions, meaning thereby the policy holder/life assured agreed to the policy terms and conditions. OP2 places reliance upon-
(i) Mohan Lal Benal Vs ICICI Prudential Life Insurance Co. Ltd. (R.P. No. 2870/2012 dod 16.10.2012), (ii) Harish Kumar Chadha Vs Bajaj Allianz Life Insurance Co. Ltd. (dod 07.10.2013 in RP No. 3271 of 2013) and (iii) Shrikant Murlidhar Apte Vs. Life Insurance Corporation of India, RP No. 634 of 2012, dod 02.05.2013.
7.4.4 The answer to this rival plea is in the record of pleadings, documents and proceedings. The record is to be explored. It is not disputed, for want of specific reply by OP2, that the complainant had received SMS from OPs on 7.12.2017, he reported them on 08.12.2017 and furnished all his particulars with record and also particulars of his son/ nominee with documents. The OP2 put its case that it had acted strictly as per proposal form and insurance policy was issued accordingly. The insurance policy was issued in the name of complainant's son; the OP2 also filed copy of insurance policy. The complainant has also filed copy of insurance policy received along-with application form. It is also matter of record of proceedings dated 8.04.2019 that OP2 was asked to furnish original proposal form, however, for want of compliance of order, cost was also imposed. Later-on, the OP2 was asked to file affidavit for processing the proposal form, then on 28.05.2019, an affidavit was filed explaining the procedure for proposal form. What emerged is that as per Regulations, proposal form is must to be in writing (subject to exception of Marine policy). In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents.
Regulation 4. Proposal for insurance
(1) Except in cases of a marine insurance cover, where current market practices do not insist on a written proposal form, in all cases, a proposal for grant of a cover, either for life business or for general business, must be evidenced by a written document. It is the duty of an insurer to furnish to the insured free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form.
(2) Forms and documents used in the grant of cover may, depending upon the circumstances of each case, be made available in languages recognised under the Constitution of India.
(3) In filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Act. Any proposal form seeking information for grant of life cover may prominently state therein the requirements of Section 45 of the Act.
(4) Where a proposal form is not used, the insurer shall record the information obtained orally or in writing, and confirm it within a period of 15 days thereof with the proposer and incorporate the information in its cover note or policy. The onus of proof shall rest with the insurer in respect of any information not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information on any matter material to the grant of a cover.
(5) Wherever the benefit of nomination is available to the proposer, in terms of the Act or the conditions of policy, the insurer shall draw the attention of the proposer to it and encourage the prospect to avail the facility.
(6) Proposals shall be processed by the insurer with speed and efficiency and all decisions thereof shall be communicated by it in writing within a reasonable period not exceeding 15 days from receipt of proposals by the insurer.
It is basis for insurance policy contract. Now, from the record, the following conclusion are drawn-
(i) the complainant has filed copy of application/proposal form dated 08.12.2017 with the complaint (at page 65-73), which is also part of evidence. The application mandates that it should be filled in before signatures thereon (page 65); it has made mandatory to make signature at places meant for and there are specified boxes/rectangles for signatures of applicant (at page 70). But, in those two boxes for signatures, it is written manually 'N/A' (i.e. not applicable). OP2 failed to explain anything about 'blanks' in this application proved by the complainant.
This application form is showing foot-print of contemporary factual situation that there is no signature of any one or of complainant or complainant's son. The significance of putting signature/mark on application form means to endorse intention/proposal for agreement. In the body of application name of Pawandeep Singh is mentioned, but undisputedly he was not in India on that day.
(ii) there is nothing mentioned on this application form that it was on-line application/ proposal form;
(iii) when there is no proposal form by Pawandeep Singh nor it bears his signature, how or what could be accepted to make an agreement to enforceable at law,
(iv) there is no contract between the complainant's son and Pawandeep Singh, once there is no contract, its terms and conditions or free look period cannot be invoked or enforce,
(v) the case law being relied upon by OP2 would be applicable, when there is a valid and enforceable contract, but features of this complaint are distinguishable from the facts of other cases.
(vi) the OP2 is Insurer, a professional body, it has with-held the original proposal form and there was no legal or technical barrier to produce it. In fact, OP2 had never pleaded in its case that there was on-line proposal form but subsequently took this new plea, but its plea is contrary to its own case pleaded in the written statement/version. There is non-compliance of Regulations by the OP2.
(vii) the plea of online application was taken by OP2 in defence that too much after when Commission asked to produce the record but it was not produced. The OP2 itself is demonstrating its conduct that record of proposal form was not produced despite asking it. The production of record may unfold many more things. Similarly, earlier address of Ms. Annu Nagpal was not furnished.
(viii) the complainant immediately on receipt of SMS of policy, objected and protested that since he had opted for saving plan, then why message was communicated for saving plan in the name of his son. Moreover, the first premium amount was also deposited by the complainant but later when passbook entries were updated, it revealed that premium amount was used in the name of his son.
Had there been insurance policy applied by complainant's son Pawandeep Singh, the message ought to have been sent to proposer and not to complainant. But OP2 and its agents/employees were internally maintaining the record in the name of Pawandeep Singh, but communicating with complainant by projecting as if the complainant was issued the policy. Later-on, the record proved by complainant unfold the entire story and designs from beginning.
Accordingly, it is held that for want of valid contract, the free look period, the terms and conditions of policy would not be binding on the complainant or on his son.
7.5.1. [whether or not complainant is a Consumer?] - There is also another dispute whether or not complainant is a Consumer or complainant has locus standi to file the complainant or someone else is consumer?
7.5.2. This issue is raised by the OP2. The OP2 reproduces the definition of 'consumer' provided in the Consumer Protection Act, 1986 to show complainant is not a consumer, either of goods or of services, since neither he is Insured nor he has any interest in the subject matter and he was more than 60 years of age on 08.12.2017. He cannot be issued policy under institutional policy principle of OP2. There is no insurance policy contract with him. He has no locus standi to file the complaint. Moreover, policy was issued to Pawandeep Singh/Insured, considering the Human Life Value method approach, based on insurance amount cover, age factor, expectancy of life, gender, planned retirement age, occupation, annual income, employment benefits apart from other personal information of spouse and family. The insured was aged about 30 years, having earning of Rs.4,20,000/- that too without any medical ailment.
7.5.3. According to complainant, he is a consumer. He has locus standi to file the complainant. The OPs sent SMS to the complainant for saving plan. The complainant approached them for saving plan in his name. He furnished his documents for policy in his name. When he was asked to furnish name of nominee, the complainant furnished name and other details of his son Pawandeep Singh as nominee. The complainant deposited the premium amount in his account. Pawandeep Singh was not in India on that day. OP2 issued policy in the name of third person Pawandeep Singh by falsely projecting that Pawandeep Singh had approached the OP2 for policy and furnished his proposal/application. When complainant objected on receipt of first welcome message of policy in the name of Pawandeep Singh, it was projected as if mistake or error of OPs. Later-on, the complainant had recorded the voice-messages and talk, which clearly shows modus-operandi of OPs and its agents/employees to pass-over the time as well as defer the things on one pretext or the other (During submission, the transcript was also referred to fortify it case). The complainant also relies upon-
(a) V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr. (2010) 5 SCC 513 held that cases where negligence is apparent, the principle of 'res ipsa loquitur' operates,
"para 50- In a case where negligence is evident, the principle of 'res ipsa loquitur' operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence."
7.5.4 The answer to this issue is also in the record. It just needs re-look and even on cursory reading, the factual position will emerge. The OP2 is denying the complainant to be its consumer but also indicating that Insured/Pawandeep Singh is its consumer.
Now the record is being explored. First, the complainant has bank account with OP1, the complainant has proved his passbook, from which first premium was deducted by OPs but in the name of Pawandeep Singh. The account no. is 0120000102594754. It is not opposed by OPs. The OP1 had not filed its reply to the complaint. It also remained unchallenged. In fact, the OP2 was provided platform by OP1 in its branch to solicit its account holder for saving plan of OP2/PNB Metlife. That is why complainant was contacted by OPs by using details and other information of account.
7.5.5. Simultaneously, OP2 had not established that Pawandeep Singh was having bank account with OP1. It is already held that there is no application or proposal form signed by the Pawandeep Singh nor the OP2 has established that proposal form was signed and proposed by OP2. However, the policy was issued in the name Pawandeep Singh but as per pleadings of the parties, neither Pawandeep Singh has accepted the policy issued by OP2 nor Pawandeep Singh was accepting the request of OP2 to get cancelled the insurance policy since he had not applied to OP2 for that policy nor the complainant is conceding such request of OP2. Thus, when there is no meeting of minds nor any application/proposal by Pawandeep Singh for insurance policy nor tender of premium amount was by Pawandeep Singh nor he claims to be policy holder, therefore, Pawandeep Singh is not a 'consumer' under the Consumer Protection Act, 1986. The OP2 was constrained to offer to Pawandeep Singh for cancellation of policy because there were strong reasons against OP2 that on the date of filling in physical proposal form, Pawandeep Singh was not in India.
7.5.6. Now, situation is OPs contacted to complainant on telephone and complainant visited office of OP1, where he was introduced to OPs' employee/agent Annu Nagpal and complainant was introduced with the saving plan, he was induced to enter into contract of policy, for which he furnishes his details, details of family & nominee, besides documents asked for. The OP2 assured for policy in the name of complainant, despite knowing well that he was more than age for which policy cannot be issued in any circumstances on business principles of OP2 and later-on it was projected to be mistake, which will be corrected. The dialogue recorded in the CD (or transcript) proves that OP2, its employee and agents admits what had happened or what was done, including not to lodge any report with authorities when complainant warned them to report police. The policy was also not issued to complainant but in the name of his son Pawandeep Singh, who never proposed or applied for. This situation is covered by section 19 of the Indian Contract Act 1872 (void-ability of agreement without free consent) r/w sec.17(2) & (3) of the Indian Contract Act 1872. Since the complainant had furnished all information and records to the OP2 to have insurance policy, he had also deposited first premium in his bank account, which was collected by OPs, he was potential user of such insurance policy services but policy was intentionally not issued to him because of own acts & design of the OP2 through its employees/agents/represntatives. Therefore, it is held, that the complainant is 'a consumer' within the purview and scope of definition of the Consumer under the Consumer Protection Act, 1986. Complainant has locus standi to file the complaint as a consumer against OPs.
7.6.1. [Is there deficiency of services or unfair trade practice by OPs?] - There is also rival stand on the point of deficiency of services or unfair trade practice by OPs.
7.6.2. It is submitted on behalf of complainant that it is not only case of deficiency of services to the complainant prior to filing of complaint (by not issuing policy in the name of complainant but issuing policy to third party, want of rectifying the name and to issue policy in correct name, put the complaint from pillar to post and so on) but also during the pending of complaint (when OPs failed to furnish requisite record of proposal form, address of OP3, furnishing false affidavit with new plea, which was never the case of OP2 in its written statement). There is also unfair trade practice to issue policy in the name of third person and filling application form in the name third person but receiving the premium from complainant and also assuring issue of correct policy to the complainant. The complainant was visiting the offices of OPs to get policy in his name, but there were excuses one after the other by the OPs or its staff and every time it was assured, it will be delivered in time. The complainant was sent screen shots showing his names and other particulars that policy is being in the process of rectification in his name, it was all false and just projections.
7.6.3. But OP2 opposes all such submissions of complainant. OP2 has acted as per the mandate given in proposal form and issued the insurance policy and took all decision in conformity of insurance terms and conditions which is a concluded contract between the Insurer and life Assured. It is settled law that, the insurance terms have to be construed strictly hence, no case for deficiency in services is made out as there is no breach on the part of OP2. Accordingly the present complaint is liable to be dismissed while referring and relying upon the following cases:-
(i) Export Credit Guarantee Corporation of India Ltd Vs. Garg Sons International [2013 (1) SCALE 4101(SC): held that while construing the terms of the contract of insurance, the Court must give paramount importance to the terms used in the said contract.
(ii) Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs United India Insurance Co. Ltd. [(2010) 10 SCC 567l (SC) held that the words in an insurance contract must be given paramount importance and must be interpreted as expressed without any addition, deletion or exclusion.
(iii) Reliance Life Insurance Co. Ltd. Vs. Madhavacharya (RP No. 211/ 2009 NC) "since the insurance between the insurer and the insured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly construed to determine the extent of the liability of the insurer".
(iv) for similar view reliance is also placed on United India Insurance Co. Limited vs. Harchand Rai Chand Rai Chandanlal I (2003) CPJ 393 & Vikram Greentech (1) Ltd. &An. Vs. New India Assurance Co. Ltd. II (2009) CPJ 34.
Moreover , the Complaint being frivolous and vexatious is liable to be dismissed under section
26 of the Consumer Protection Act, 1986 as the complainant failed to make out case of "deficiency of services" within the meaning of the Consumer Protection Act, 1986, OP2 also relies upon-
(v) Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 wherein the test of deficiency in service by stating that "the deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it.
7.6.4 The submission of both sides are considered. On simply looking at the facts, features and circumstances of the case, is it not the case that test laid down in Ravneet Singh Bagga case (supra) squarely lies against the OP2 (?), since the OPs invited the complainant for saving plan, all information were obtained from the complainant including documents and first premium but policy was issued to third person, who had never requested for. When complainant get updated entries in passbook (which is proved by the complainant), it reflected that amount was utilized for policy of Pawandeep Singh. It reaffirms message received for policy was not a mistake but OP2 had from the inception knew that complainant more than 60 years of age, he cannot be issued the policy, which complainant appears to be not knowing, the policy was issued in the name of his son Pawandeep Singh, by procuring his information and details under the garb of requirement for nomination. When OPs were approached, it was also assured that there is mistake and it will be rectified, the complainant was also shot screen shots from desk top to show that name is being rectified by furnishing his particulars. But it was not rectified. In the dialogues recorded in CD, there is admission that policy was issued in the name of Pawandeep Singh instead of in the name of complainant. But in reply to complaint, entirely new version is projected that this was Pawandeep Singh, who approached OPs and policy was issued by acting on his proposal form. The proposal form never produced by OP2 despite opportunities.
The author of written statement is Shri Rajeev Sharma. Rajeev Sharma also filed his reply to complainant's application u/s 38(5) of CP Act 1986 r/w sec. 340 CrPC (for which a separate miscellaneous application file is being maintained). In paragraph 7 of the reply, Rajeev Sharma writes 'that said Annu Nagpal has also defrauded the respondent no.2 by submitting false and fabricated SDF and proposal form".
All this is unfair trade practice. There are completely short-coming and inadequacy of services besides non-performance of obligation, it amounts of deficiency of services. It would not dilute the allegations just by shifting obligations on others nor it would exonerate the OPs by stating that Ms. Annu Nagpal had defrauded the OP2. The conduct of OP2 just defensive, especially when her address was required, it was not furnished nor she was asked to report to Commission but on one fine day, it was apprised she had left the services/employment of OP2.
7.7.1.[whether the complaint is mala-fide] - There are allegations against the complainant by OP2 of mala-fide complaint including concealment of facts, which are opposed by the complainant.
7.7.2. The OP2 justifies that after receiving the grievances beyond the free look period provided in the policy. the OP2 considered as a gesture of goodwill and the best possible solution of cancellation of policy and transfer of funds to single premium policy was offered. However, the complainant as well as life Assured failed to appreciate OP2's efforts but filed the complaint with ulterior motive to harass the insurance company, which is a company of high repute.
The Complainant has concealed and suppressed the material and relevant facts. The complainant approached the commission with unclean hand The Complaint is devoid of any material particulars and has been filed with mala-fide. The complaint deserves to be dismissed
7.7.3. Whereas, according to complainant, the OP2 and its employees/agents are hands in glove. The OP2 is also vicariously liable for acts and deeds of its employees/agent. Ms. Anu Nagpal, an employee and its employer are acting as hands in glove, which will attract vicarious liability on the OP's. The complainant derives reasons by relying upon-
(a) In Kamla Devi v.
Metlife India Insurance Co. Ltd. MANU/CF/0469/2014 (NC), while dealing with a similar deficiency of service committed by an agent held the insurance company vicarious liable. "Para (8).. Hence, in such a situation, it was the duty of Metlife (OP-1) to inform the complainant and its other customers that the agent Net-worth is closed. The OP should have passed the information through a public notice or emails to all of its customers to avoid such cheating by their agents. It is quite surprising that after receiving first installment on 31.1.2010, the OP-3 (authorized rep. of the OP-1) again collected the 2nd installment of the said policy and also issued a receipt against Rs. 89,000 on 28.2.2011, but thereafter, trying to avoid its liability by expressing that the Net-worth is closed. It appears that the OPs are working in cahoots with each other and playing hide and seek game with the complainant. (9). Therefore, we are of considered view that, the OP-1 is vicariously liable for the acts of their agents.."
(b) Bajaj Allianz Life Insurance Company and Ors. v. Budhmani Devi MANU/CF/0205/2021, while dealing with a case of unfair trade practice committed by the insurance company liable, it was held that- "(10). According to the Petitioners/Opposite Parties the sum insured was Rs. 3,00,000 and the premium amount was Rs. 60,000 for 10 years. At an the annual premium of Rs. 60,000 for 10 years the premium amount would come to Rs. 6,00,000 for a sum insured of Rs. 3,00,000. It is, therefore, clear that frequency of the Premium was subsequently changed from "single" to "annual" by Mr. Shakti Singh, S.T.M. Both the Fora below observed that Insurance Company was vicariously liable for the wrong done by its employee Mr. Shakti Singh, STM. Insured should not be punished for the wrong act of Insurer. The Petitioners failed to prove that there was any illegality or irregularity in the orders passed by the Fora below. "
7.7.4 There is classic situation in this issue. The complainant and the OP2 are justifying their own stand and bona-fide, which is also reflecting the justification of Pawandeep Singh. OP2 was proposing to Pawandeep Singh to get the policy cancelled, so that funds may be transferred to single premium policy. It was not consented by Pawandeep Singh and the complainant Balbir Singh.
However, Pawandeep Singh has bona-fide and strong justification that when he had not applied and obtained policy, there is no insurance policy contract between OP2 and Pawandeep Singh, then why he should exercise that option of single premium policy by getting it cancelled. Otherwise it would mean that initial saving plan was opted by him and now he is getting is shifted to another single premium plan. He had also not paid premium, how he can lay claim on such premium by getting it to other plan.
Shri Balbir Singh has also proper justification that he had paid the premium for buying policy that too on the inducement of OP2, then how he can give up the policy entitled for and premium amount for third person, who happens to be his son.
In fact, the OP2 and its employees have managed to trap the complainant but actually it is OP2 stand trapped in the situation knitted by it for others. The proposal for cancellation of policy is not a gesture of goodwill but compulsion to avoid legal consequences. In fact it is mala-fide on the part of OP2. In the written version, the OP2 took plea of non joinder of Annu Nagpal as party to complaint but in reply to application u/s 340 CrPC, the OP2 asserts 'that said Annu Nagpal has also defrauded the respondent no.2 by submitting false and fabricated SDF and proposal form"
Thus, the case is crystal clear of deficiency of services and unfair trade practice, besides with-holding vital information by the OP2, how the OP2 can blame the complaint is mala-fide. Actually, the complainant has proved facts and features against OPs, the conclusion drawn in sub-paragraph 7.5.6 above also affirms that the complaint is bona-fide but OP2 had played otherwise. Accordingly, it is held that complaint is bona-fide.
8.1 [Reg- Reliefs] - Since the complainant has proved the complaint, therefore, he is held entitled for relief. However, there are also reservation by OP2. The question in what form relief is to be allowed to be appropriate in the case.
8.2. The OP2 contends that the complainant has failed to set up a nexus between the damages claimed in the and the damage suffered by him. The damages claimed are arbitrary, without basis and is an abuse of process of law. The damages are not debt and damages are required to be proved by cogent and reliable evidence by the complainant, which has not been proved and damages cannot be granted just on his asking.
8.3. Whereas, the complainant submits that whenever there is mental and physical harassment, besides other inconveniences, it amounts to injury and compensation is payable (reliance is placed on D. Kapoor Vs KLM Norhwest Airlines MANU/CF/0174/2010). In the present case the complainant is senior citizen and he was put to harassment, agony, tension and he was also constraint to visits other offices of OP2 and to marathon after them. The compensation claimed has nexus with the agony and sufferings.
8.4.1 The record is also seen. The complainant seeks directions to OPs to rectify the policy bond, which was issued in the name of Pawandeep Singh, and to issue fresh policy bond in the name of complainant Balbir Singh. However, during the course of arguments it stand cleared that OPs do not issue policy to person of 60 years and above in compliance of Regulations, therefore, the complainant cannot be issued insurance policy, since he was above 60 years, which was well known to OPs. Simultaneously, complainant has also written to his banker not to release any further premium in respect of that policy issued in the name of Pawandeep Singh. It is also cleared that complainant's son Pawndeep does not lay claim on the policy issued in his name. Therefore, the complainant is entitled for return of first premium amount of Rs.50,000/- collected by OPs from the account of complainant with OP1. The said policy no.22400542 dated 09.12.017 issued in the name of Pawandeep Singh stand cancelled.
8.4.2 The complainant has parted with his money long-back in December, 2017 by paying this amount as first premium and it is held in sub-paragraph 8.4.1. policy cannot be directed in his name because of age factor, therefore, his prayer for appropriate relief is allowed by awarding him interest at the rate of 9% pa from the date of premium deducted on 12.12.2017 from account of complainant till realisation of amount against OP2 on this amount of Rs.50,000/- [while relying upon spirit of law laid down in Karmavati Vemeers P Ltd. Vs. New India Assurance Co. Ltd. AIR 2023 SC 987, [para 10].
8.5. The complainant claims compensation of Rs.15 lakhs for causing mental agony, torture and other harassment. The complainant is a businessman, he is engaged in business of generators. He was senior citizen in 2017. The circumstances are abundantly clear about non-compliances of Regulations as well as deficiency of services & unfair trade practice. Had the complainant been disclosed that he was not entitled for insurance policy, he would not have initiated; in fact the OPs were knowing that complainant was not eligible for policy because of his age above 60 years, despite he was invited and premium was taken from him but policy was issued to third person. When he had protested issue of wrong policy, he was put to task by false promises and assurances. The OP1 is banker of complainant. The OP2 is insurance company and it also makes tall claim to be a big company. The circumstances are suggesting to award reasonable compensation which should neither be too meager to be insignificant for OP2 nor to be higher to be unjustified; thus it is quantified of double the amount first premium, to say compensation of Rs.1,00,000/- in favour of complainant and against OP1 and OP2.
8.6 The complainant also claims punitive damages of Rs.1 lakh against OPs. Whether this is a fit case to award punitive damages.
Firstly, what is punitive damages and what is its purpose? The Punitive damages (exemplary damages) are assessed and awarded in order to pinch respondent for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. Punitive damages are also imposed to reform defaulting party as well as to deter other from indulging in such wrongs. Punitive damages are generally given in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials.
It needs to refer the evidence on record, when complainant came to know on receipt of welcome message in the name of his son, he surprised but it was assured by office of OPs, it will be rectified after payment of premium. Later, again he had protested, then he was sent screen shots to show that policy is being rectified in his name and to show that efforts were being made but policy was not received in his name. He furnished original policy to OPs, then he was asked his photos etc but nothing was done and legal notice was also sent. The OPs are professional institutions and OP2 has also tall claims for itself. Thus, it is fit case to award punitive damages and the same are quantified as Rs.25,000/- in favour of complainant and against OP2, keeping in view all circumstances. It is within the discretion of OP2 to get it recovered from their defaulting officers/officials/representatives, if so advised, being its in-house arrangements.
8.7 The complainant also seeks litigation cost, he deserves so, therefore, costs of Rs.15,000/- is allowed in favour of complainant against OP1 and OP2.
9. Accordingly, the complaint is allowed in favour of complainant and against the OP1 and OP2 to pay jointly and/or severally a sum of Rs.50,000/- along-with simple interest of 9% p.a. from date of premium deducted on 12.12.2017 till realization of amount, compensation of Rs.1,00,000/- & costs of Rs.15,000/- payable within 30 days from the date of receipt of this order, apart from OP2 to pay Rs.25,000/- punitive damages to complainant.
In case the amount is not paid within 30 days of receipt of this Order, then interest rate will be 10%pa on the amount of Rs.50,000/- (in place of 9%pa).
10. Announced on this 25th July 2023 [श्र!वण 3, साका 1945].
12. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
