Order-15.
Date-09/02/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant was searching for loan which will easy to get and will not be hardship to him when at the relevant point of time one of the agents of the OP2 approached an exciting loan offer of Rs.36,43,670/- only in the first week of September, 2014 but to know the pros and cons of the offer in question the said agent and the complainant sat together and at that relevant point time the said agent convinced to take a policy to get their desired loan and also is stated it is a unique offer for the limited person and initially complainant was not convinced and rather reluctant to take the same but at that time Mr. Avik Roy, Consult Manager & Mr. S. Das identified himself as the manager of the OP2 came to the house of the complainant along with OP4 and persuaded the complainant that they will take the whole responsibility to get his desired loan and also stated that it is the offer of OPs that one can get his expected loan if a person invests initially Rs.1,50,000/- only he can get loan of Rs.36,43,670/-.
Complainant accordingly, being convinced issued a cheque bearing no.086784 dated 22-09-2014 only in favour of OP and handed over the cheque to the agents in presence of consultant manager of OP2. Thereafter, in the mean time the consultant manager confirmed the complainant by an sms on 24-09-2014 that the loan amount will be granted in his bank account and on 07-01-2015 Mrs. S. Das, Manager of the OP2 also sent a message that the loan amount with Rs.36,43,670/- will be credited in his bank account but no such amount was credited in his bank account. In the mean time the policy has been opened but complainant had no intention to purchase any policy only being assured by the OP’s agent and consultant manager for granting of loan complainant purchased that policy but ultimately it is found that it is mis-sold by the OPs by alluring their agent and consultant manager and such an act is no doubt a false assurance and in fact by alluring the agents of the OP complainant was compelled to purchase that policy and for that complainant suffered huge loss and for which the complainant filed this policy but OP failed to refund the amount of the policy and did not pay any heed to the complainant and ultimately deceived the complainant for which the present complaint is filed.
On the other hand, OPs 1 to 3 by filing written statement submitted that the insurance agent is liable to proceed for such sort of activities because insurance company did not appoint him as agent and they are appointed by IRDA and there is no privy to what transpired between the complainant and the insurance agent and hence the answering OPs are not responsible for that policy so the policy was issued based on the duly filled and signed proposal form which just and legal. The proposal form duly filled in by the complainant is accepted on good faith by the insurance company and all transactions between the insurance company and the insured are based on the terms and conditions of the policy contract and the insurance company does not proved loan nor have instructed any of its officers to solicit insurance business in lieu of loan disbursement.
Fact remains complainant did not approach to the OP within 15 days (within free look period) with a cancellation for refund of Rs.1,50,000/- and as per letter dated 18-05-2015 received by the OP after lapse of one year, so as per terms and condition of the policy said policy cannot be cancelled.
In the above circumstances, there is no deficiency, negligent on the part of the OP for which the present complaint should be dismissed.
Decision with Reasons
On an in depth study of the entire materials on record and also considering the complainant’s complaint and written version it is apparent that at any point of time complainant did not appear before the office of OP at Kolkata for purchasing the said product that is the policy.There was no contract in between the complainant and OP Insurance Company prior to issuance of the present policy, no consent letter was placed or sent by the OP, Kolkata office the insurance company to give the complainant a chance to realize what is the terms and condition of the policy, how long the policy shall be continued and how many years the premium shall be paid and as per guideline of the IRDA the consent letter is must for all the insurer and no doubt the OP insurance company is silent about that.
Most interesting factor is that at the point of time before accepting the complaint for purchasing the policy OP or their men never contacted with the complainant, never collected any consent form from the complainant to satisfy the OP that complainant realized the terms and conditions of the policy and he shall not have to get any loan.But in the defence OP has tried to say that everything was done by the agents, so, only the agent is liable but as per guideline of the IRDA it is the duty of the OP insurance company to talk with the complainant about his satisfaction before accepting the policy and customer satisfaction is the prime consideration before the acceptance of the policy but in this case OP has not talked with the complainant to know about his capacity strength about payment and did not satisfy the complainant that he shall not have to get any loan but truth is that OP’s office situated at Kolkata and they are doing such sort of deceitful manner of trade sitting in cool chamber but their dishonest agent and consultant manager are spread all over India in rural villages and remote place far from Kolkata they are collecting one premium and telling that if he purchases the policy and pays one time premium in that case he shall get a loan and in such a manner the Private Insurance Companies have been increasing their capital and that is their business and OP knows very well that so called insured has purchased those product for their need but unable to realize what would be the fate about the loan, policy etc.In this case it is proved that OPs have their no defence but only they shifted their liabilities to the agents but fact remains agents are selling product of the OPs at different places but there is no contract in between the purchaser and the seller that is the OP.This is the situation all over West Bengal and almost all the private insurance company have adopted such an unfair practice and they are collecting one premium from the purchaser for their product and issuing the policy knowing fully well that mis-sale has been made by the agents by alluring the people at large.At the same time the insurance company knows very well that if one premium is paid and thereafter, does not pay further premium in that case that shall be forfeited and that shall increase capital of the OP but they are not thinking for the welfare of the insured person, that is their trade practice.
In this particular case OPs have their no defence, they have stated that they received the application got the premium cheque and it was filled up by applicant, so they issued it but that is not the guideline of the IRDA, IRDA has already instructed all the insurance companies not to accept any application for purchasing the policy before acceptance of the consent letter but in this case consent letter is absent and no consent letter is signed by the complainant after realizing the terms and condition of the policy and other instruction he was allured by the men of the OPs to purchase it so we are convinced to hold that everything was done by their cheat and dishonest consultant manage and agents and without agent and consultant manager OPs insurance company and other like insurance company cannot spread their business or to collect premium so by deputing cheat agents and consultant manager they are increasing their capital by selling such sort of product and in this regard agents and consultant manager are mis-selling the same by alluring the intended purchaser and the truth is that that agents and consultant manager are loitering here and there for collecting premium from the insured and in the present case no doubt mis-sale of the product is proved on the ground that complainant paid that premium only on the ground that he shall have to get the loan and truth is that complainant received a message in his mobile in this respect from Avik Roy, the consultant manager that the loan is processed and that has been credited but that was a false assurance.If complainant would be aware that the assurance was a hoax one in that case he did not purchase any policy but he was searching for a loan and when the agent and consultant manager realized that the loan was required by the complainant then they offered the complainant that the loan shall be granted if the complainant opened the said policy from the OP insurance company and for which one time policy is purchased but it was not stated by the consultant manager or agent that it was a simple policy, no loan shall be granted.
Relying upon the above facts of the record we are convinced that complainant was deceived by the agents and consultant manager of the OPs and they allured the insured (complainant) by assuring the granting of loan and in respect of granting of loan they sent messages that loan has been granted, they sent messages that such amount is credited in his account but nothing materials when complainant realize that he has been deceived by the agent and consultant manager and they mis-sold it by stating some false and hoax relief and truth is that the complainant had no intention to purchase it and everything was flashed when complainant tried to went to the office of the OP at Kolkata they stated that they are not aware of the fact and that is the only answer in almost all the cases and fact remains the present insurance company Bajaj Allianz lost its market for such sort of unfair practice and deceitful manner of trade when that is the fact then it is clear that in the application only signature of the complainant was taken by the consultant manager and further work was done by the consultant manager and the agents.So, it is clear that complainant did not get any chance to realize what would be the fate of the policies if it is purchased and he shall not get the loan after being purchasing the policy so it is proved that the allegation as made by the complainant against the OP’s agent and consultant manger is true and fact is that the version which OP has stated in his written statement that policy was taken by the agent or consultant manager so the liability of the OP cannot be fastened and as per law it is the liability of the agent and consultant manager of the OP who mis-sold such sort of product but in the present case it is proved beyond any manner of doubt that the agents and consultant manager made false assurance and no doubt that is a mis-sale for which the entire contract in respect of the policy is completely void.
Moreover, considering the materials we are convinced that complainant is a businessmen, somehow he is passing his days, somehow he requires money for the purpose of his business for which he tried to get a loan but he was not aware of the product that he shall not have to get the benefit of the loan if he would be able to realize in that case he shall not have to purchase it and not even a idiot shall have to purchase it but truth is that complainant is made an idiot by the hands of the agent and also the hands of the consultant manager and fact remains for OP’s overall mis-sale, misconduct, misrepresentation act by the agent and the consultant manager OP is liable to refund the price by cancellation of the said policy.
At the same time in the light of the above observation and also considering the IRDA guideline we are convinced that policy is a lapsed policy and as per IRDA’s guideline it is the duty of the insurance company to refund the entire deposited amount after deducting 5 to 10 percent as service charge, but that has not been followed and it shall not be followed only for the purpose for grabbing the money as the policy is lapsed and by that way the dishonest insurance company have already procured a huge capital, but their purpose for selling insurance policy to the poorer section of people is completely fake trade.
In the light of the above observation and considering the above materials there is sufficient ground to believe that the product was mis-sold by the OP’s agent and consultant manager but OPs failed to prove that the policy was issued to the complainant by accepting the consent letter from the complainant.so, the allegation as made by the complainant is proved beyond any manner of doubt.
In the above findings we are convinced that there is no such ground to disbelieve the negligence, deficiency, mis-sell of the item or product to the complainant by the OPs and for deceiving the complainant in such a manner and also for suffering of the complainant as he is deceived by the OPs, so the complainant is entitled to relief as prayed for.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with cost of Rs. 5,000/- against OPs.
OPs 1 to 3 jointly and severally are hereby directed to refund the entire deposited premium amount of Rs.1,50,000/- after deducting 5 percent as service charge and also shall have to pay a sum of Rs. 5,000/- for harassing the complainant in such a manner and for mis-selling the articles/products and accordingly OPs jointly and severally shall have to pay the entire decretal dues within one month from the date of this order, failing which for non compliance of Forum’s order, OPs jointly and severally shall have to pay penal damages at the rate of Rs. 2,000/- per month till full satisfaction of the decree.
Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
