This consumer complaint was filed at Barasat Commission u/s 12 of the Consumer Protection Act 1986 and transferred subsequently to Rajarhat commission as per order of Hon’ble State commission, West Bengal dated 24.01.2020

The complaint petition of Sri Kartik Nayek s/o Late Sridam Nayek of Chaipata, Daspur, Paschim Medinipur was filed on 17.01.2017 against PNB Metlife Insurance Co. Ltd. at Kankurgachi, Kolkata – 700054 (OP1) and one Nil Mukherjee, Refine Group of Company, Salt Lake, Kolkata - 700091 (OP2) and the case was transferred at the stage when OP 1 filed Written Version on 12.07.2017. The case has been running ex-parte against OP 2 vide order dated 04.01.2019 of Barasat Commission. The case was heard on 20.10.2022 in full with arguments from the complainant and the contesting parties i.e. OP1.

The case as averred by the complainant in a capsulated form is that the complainant stated in complaint petition and evidence having been running a small scale business for earning livelihood. The complainant was allegedly induced by the OP 2 to surrender his existing Tata AIG Life Insurance Policy in the promise to avail a loan of Rs. 80,00,000/- and so he was induced to purchase a policy for a premium of Rs.4,00,000/- that was opened on 02.12.2014 with policy no. 21433872 from PNB Metlife i.e. OP 1. The OP 2 allegedly asked the complainant to open another policy of “Kotak Mahindra” with an annual premium of Rs. 55,000/- in order to facilitate processing of the said loan of Rs. 80,00,000/- and the complainant being a simpleton had taken loan from the market at higher rate of interest to buy this policy with an assurance to get the said loan as induced by the OP 2. Thereafter, the complainant approached the OPs to pursue sanction of the said loan of Rs. 80,00,000/- but of no avail. The complainant alleged that the OP 2 got some blank papers and forms signed by the complainant under the disguise of formalities for processing the said loan. But no policy certificate was handed over to the complainant by the OP 2 till second week of April, 2015 as alleged. The OP 2 again asked the complainant to deposit a further sum of Rs. 5,00,000/- for arranging sanction of the said loan of Rs. 80,00,000/- from the insurance company which did not materialise. So the complainant sent a written representation to the insurance company (OP 1) on 09.01.2016 for refund of entire premium amount by cancellation of all the policies, as he felt deprived. The complainant also averred having deposited a total sum of Rs. 4,00,000/- in 2014 but no policy certificate or any other allied document been furnished to the complainant which he claims to be an unfair trade practice u/S 2(1)(r) and 2(1)(g)of the C.P. Act, 1986 . In concise, the complainant felt that while the policy certificate was not supplied to him, his repeated requests for cancellation of the policy and refund of Rs. 4,00,000/- went in vain due to deliberate negligence of the OPs. The complainant filed written complaint against OP2 at local P.S, at Electronic Complex, Salt Lake to cancel the policy and refund of money. On 08.06.2016 the complainant filed complaint at Consumer Affairs Department, Government of West of Bengal which was disposed of on 23.09.2016 with a direction to proceed with this Commission. The complainant submits not being supposed to pay the premium of the policy of the subsequent years as the same was never asked for. Complainant also claims that the OPs have obtained his signatures in the policy proposal form in blank position, thereby adopting fraudulent measures and by misrepresentation of facts, leading to unfair trade practices. The complainant, therefore prays for cancellation of the existing policy, refund of entire premium of Rs. 4,00,000/- along with interest @8% p.a. till realization, Rs. 1,00,000/- for damages and mental agony, compensation of Rs. 50,000/-, litigation cost of Rs. 20,000/- , miscellaneous expenses Rs. 1,00,000/- and again a compensation of Rs. 50,000/- for the whole. The complainant filed ‘firisti’ dated 17.03.2017 of the Exhibits like Bank passbook copies-Annexure A (running page 11-15), Written complaint to local PS and to Insurer company- Annexure B (running page 16-18 and 19-20), Correspondences with Consumer Affairs dept.-Annexure C (running page 21-22) and other correspondences by Consumer Affairs department (running page  23-30).

The OP 1 being the life insurance company (PNB Metlife India Insurance Co. Ltd.) adduced evidence alongwith exhibits, all unnumbered, listed as: copy of proposal form (annexure OP-1; page 1-6), copy of policy ‘welcome letter’ issued or reprinted on 27.07.2016 (page 7), copy of policy part A (page 8-9), policy copy part B (page 10-11), part C (page 12-13) part D (page 14-16) part E (page 17), part F (page 18-20), part G (page 21-23), first premium receipt dated or printed on 27.07.2016 (page 24), proposal form copy signed by complainant cum insured (page 25-29) alongwith policy conditions comprising of Sec 38, Sec 39  and Sec 45 (page 30-33), complain letter from insured received by insurer dated 09.01.2016 (Annexure OP-2; Page 34-35) and  Insurer’s reply to Insured dated 15.01.2016 (annexure OP3; page 36) refusing refund of premium. The moot points as per the Evidences, Replies to Questionnaire, BNA and other records from OP1 states in a consolidated manner that the cause of action to file complaint could have arisen at the time of submitting proposal by the complainant at proposal stage and latest during issuance of policy but not at any later stage. The insurance policy was issued on 28.11.2014, despatched to the complainant and duly received by him when the free look period expired in December, 2014. Therefore, filing the complaint beyond two years is untenable as per Limitation Act as cited by them about Apex Court order in the matter of Kandimalla Raghavaivhab and Company Vs. National Insurance Company (2009) CPJ 75 (SC) which states inter-alia that u/S 24A of the Consumer Protection Act 1986, it bars any Forum from admitting a complaint unless it is filed within 2 years from the date of cause of action. The claim of the complainant for refund of premium is against established laws and rules relating to life insurance, as it is a trite law that the premium is given by an insured to cover the risk for given period and the insurer covers the risk for the period for which the premium has been paid. It is not the case that this complainant was not covered for the period of premium payment and hence there is no question of refund of premium as per settled law on insurance. The OP 1 also submits that according to Clause 6(2) of the IRDA (Protection of Policy Holders Interests) Regulation, 2002, every policy document sent by the insurance company is to be accompanied by a forwarding letter clearly mentioning that the policy holder, if not satisfied, can invoke his/her right to withdraw/return of the policy within 15 days of free look period. But the complainant in this case, though received the said policy, did not opt to withdraw/return the policy within such period, when the complainant retained the policy for more than three years after elapse of free look period, neither did return the same to OP 1 for cancellation within free look period, thereby implying that the complainant agreed to the terms and conditions of the policy. In support the OP1 cited the same judgement of Supreme Court as referred by the complainant in the matter of Kandimalla Raghavaivhab and Company Vs. National Insurance Company (2009) CPJ 75 (SC) . The OP 1 also relied upon few case decisions in support of their contentions that (a) Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International (2013)1 stating inter-alia that the court must give paramount importance to the terms of the contract (b) Suraj Mal Ram Nivas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Limited (2010) 10 SCC 567 stating inter-alia that insurance contract must be given paramount importance without addition, deletion and exclusion of the condition (c) Reliance Life Insurance Company Limited Vs. Madhavacharya (R.P. No. 211/2009) of NCDRC stating inter-alia “since the interest 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”.

Few more judgements were relied upon by the OP with similar contentions that the complainant received the policy documents and is well aware and familiar enough with the terms and conditions of the policy and insurance procedure. Hence, it was alleged being an act of afterthought by complainant to take undue advantage from the OP to gain unjustified advantage from the insurance company and hence the complaint should be dismissed since OP 1 has acted as per mandate given by the complainant in the proposal form and issued an insurance policy in terms of insurance conditions as concluded in the contract between the insurance company and the insured. Hence it is settled law that insurance term is to be followed strictly and no reliefs beyond such terms and conditions of the insurance policy can be granted.

The OP 1 also stated that OP2 being an agent with his licensing from IRDA Authorities and functions, are independent of any insurance company. As the primary function of the insurance agent is to service the insurance industry for the customer and not on behalf of the insurance company, hence OP 1 cannot be held responsible for any vicarious liability as it is not having any administrative control over the insurance agent. It is important to mention that insurance company received filled up proposal form signed by the complainant for issuance of insurance policy for the life term filled by the complainant including declaration that the policy has been explained to him in presence of his witness as expressly declared at Clause G. The complainant is educated being a graduate and signing the declaration in vernacular in presence of one Shri Gopal Das stating inter alia that the contents of the proposal been explained to him and accordingly the Policy No. 21433872 for the life assured was issued for insurance policy namely “Met Endowment Saving Plan” with model premium of Rs. 3,95,284.17 /- (yearly) issued on 28.11.2014 with risk commencement date of 22.11.2014 for a term of 15 years for paying premium with a coverage term of 15 years for a sum assured of Rs. 61, 42,183/-. As per Clause 6(2) and 4(1) of the IRDA (Protection of Policy Holders Interests) Regulation, 2002, the insurance company sent policy documents to the complainant stating the policy terms and conditions along with a forwarding letter mentioning the ‘free look’ provision (part D ; Cl 1 of the policy) along with a copy of proposal form which was despatched to the communication address as provided in the proposal form duly delivered and never disputed by the complainant at that point of time. It was claimed by OP1 that the policy document was despatched on 02.12.2014 by Speed Post as per Courier Tracking No. EK490171951IN shown as “duly delivered”. In the para 10 of Reply dated 12.06.2017 by OP1 to Questionnaire of complainant, it is stated ‘the complainant has failed to deposit the annual renewal premium of Rs. 3,95,284.17 /- for a premium term of 15 years, after paying only the first premium in violation of the proposal and policy terms and conditions’ In para 18 page 20of BNA of OP1 it is stated ‘the complainant also paid one premium in 2015 but did not pay the annual premium thereby denoting that the complainant was duly satisfied with the subject policy otherwise he would not have paid the renewal premium at subsequent years’. Moreover, after issuance of policy, the complainant sent an e-mail dated 23.07.2015 requesting the insurance company to share the office address of Cochin for paying premium, which was provided by the insurance company to the complainant on 25.07.2015. Thereafter the complainant approached the insurance company on 09.01.2016 claiming that the policy was mis-sold to him with false assurance of sanction of loan which was responded by the OP 1 insurance company by a letter dated 15.01.2016 denying the allegation and contending that the policy was issued by the insurance company to the complainant as per duly filled and signed proposal form and policy document, duly delivered, without raising any objection by the complainant during the free look period.

Heard learned counsels of both the parties. Also examined the records of the case and pleadings of the parties coupled with evidences led on record to determine this controversy. All the points are taken up together for the sake of brevity and clarity. The Complainant intimated intention to cancel policy to insurer admittedly on 09.01.2016 and getting no relief, filed instant consumer complaint on 17.03.2017 alleging mis-sale of the said policy issued on 28.11.2014. It is observed that complainant represented before the Insurer vide communication dated 09.01.2016 seeking cancellation of said insurance policy when his request was rejected vide letter of insurer dated 15.01.2016. As the grievance of the complainant about non receipt of the said policy to enable to invoke the right to cancel the said policy during free look period was not redressed, the cause of action continued and having such element of ‘continuous cause of action’ in the complaint case, it is not getting barred by the Limitation Act for the case in hand. The complainant claimed having deposited only one premium of Rs 4,00,000/- (Cl 16 of running page 7 of complaint petition) but the OP1 in BNA and in ‘parawise reply of Written version dated 12.06.2017 (point no 10) stated “in reply to the contents of para 14 it is submitted that the complainant under the said policy remitted only one premium amounting to a total Rs.3,95,284/- and thereafter failed to remit further premium under the said policy and as a result the policy lapsed” But in BNA of OP1(page 20, para 18) it is stated that ‘that the first premium was paid by the complainant at the time of proposal for subject policy. That thereafter complainant also paid one due in year 20115/did not paid any renewal premium/ annual premium for the policy. Thus making it evident on the face of it that complainant was duly satisfied with subject policy. Had the complainant would not have been in agreement with the policy terms and conditions, he would not have paid the renewal premiums’. These 2 statements of OP1 are self-contradictory and hence this point is not substantiated.  Further, upon examination of proposal form and elements as present therein, it transpires that the proposal form was filled up admittedly under signature of the complainant with mention of age as 36 years, educational qualification as ‘graduate’ and annual income as Rs.8.01,580/- as per IT return. Reference to reply dated 02.06.2022 from OP1 in para 5, the complainant has not contested OP1’s contention that the gross total income of complainant during 2014-15 was Rs.8,01,580/- and Rs 7,14,000/- in 2013-14, total asset as Rs.37,70,000/- as per Chartered Accountant’s certificate and model premium was assessed as Rs.3,95,284.17/- with Sum Assured as Rs.61,42,183/- (ITR not exhibited by either party) for taking the insurance policy under the name and style of ‘Met Endowment Savings Plan’ – Regular with a coverage term of 15 years with mention of premium payment frequency as ‘annual’. The proposal also contains payment of Rs. 4,00,000/- by cheque no 000019 dated 21.11.2014 drawn on Bank of India, Bowbazar branch signed by an witness namely ‘Gopal Das’ , Salt Lake, Sector V, Kolkata on 21.11.2014 with a declaration stating inter-alia that the details and contents of the insurance policy application form has been fully explained in the language understood by the applicant. The proposal is signed by an ‘agent’ of the Insurance company (OP1) as “Ayush Keshan” with mention of broker code but not the OP2 Mr. Nil Mukherjee, as alleged. As the OP2 happened to be a different person than that of the recorded agent as per proposal form of insurance policy and as no document from police, ad-interim or final report, about the complaint on OP2 is cited, hence the OP1 can’t be held responsible for any vicarious liability of an unconnected person, not in their record. In the Evidence by complainant, it is stated that a Kotak Mahindra policy was also purchased for an annual premium of Rs. 55,000/- alongwith the current policy of PNB Metlife by making payment of RS. 4,00,000/- on 24.11.2014 alongwith premium of another Bajaj Alliance policy, which exceeds his annual income as per ITR. But this is not getting reflected in proposal form, which is filled up by himself and it is next to impossible for the OP1 insurance company to find out his other investments unless declared and disclosed voluntarily at the point of sale. The complainant alleged about mis-selling of policy by misinterpretation about Rs.4,00,000/- as a single premium policy which turned out later to be an annual premium with 15 year tenure. However complainant has failed to file any cogent proof in this regard except mere averment of himself. No specific violation about the IRDA 2002 guidelines in respect of the filling up of policy forms or otherwise is raised by the complainant. The alleged violations of IRDA guidelines 2017 are referred by the complainant but the instant policy was sold in 2014.

The claim of complainant about policy documents having not received and postal consignment no EK490171951IN not being supported with postal track report to establish acknowledgement as proof of receipt was examined. The consignment details were provided by Insurance company on affidavit. The track report might not be suitably available after 5 years or so being system generated and for a limited period. But no rebuttal proof like enquiry letter or so from the complainant is filed about alleged non receipt of policy even during entire next 1 year, though complainant spent Rs.4,00,000/- on 24.11.2014 as premium for policy, otherwise there must have been some mail or letter or document about utilisation of such an hefty sum. The complainant also claimed to be an illiterate person to understand the policy matters whereas as per the proposal form signed by him denotes himself as a graduate as per his declaration therein and hence the plea of ignorance about the said policy is not established. The policy is issued as per signed proposal form alongwith payment of first premium from the insured and the requirement of explaining the same to the insurer is in presence of witness and signed by the applicant/insured is available in record. From the sequel of documents, nothing contrary to the claims of OP1 could be established about the bonafide of the Insurer at the point of sale and there is no inconsistency in the proposal form. In the light of the above observation, we are convinced to hold that complainant had full knowledge to purchase said policy in question and put up proposal/application accordingly. As the request for cancellation of the said policy was received by insurer from the insured after more than a year which is beyond the ‘free look period’ of 15 days, hence his request for cancellation of policy could not be accepted. The complainant did not file any cancellation application within free look period. So, there is no question of mis-sale of policy and the question of refund of amount should not arise and the allegation of mis-sale could not be established.

From perusal of terms and conditions of the contract of insurance, we find no substance in the contention of counsel for the complainant. It is settled principle of law that parties are bound by the terms and conditions of contract of insurance in stricto sensu. The Apex Court has held in "United India Insurance Co. Limited Vs. M/s Harchand Rai Chandan Lal" 2004(2)CPC-686 as under :-

“Insurance policy. Contract of insurance. Terms and conditions of insurance policy. Definition. It is only the terms and conditions specifically prescribed in the insurance policy which will govern the contract between the parties. Terms of insurance policy have to be given the same definitions, as provided in the policy and will be interpreted with reference to the same not any other laws."

On the basis of law laid down by the Apex Court in the above authority, we are of this view that parties are strictly bound by the terms and conditions of contract of insurance, as it is. The courts can neither add nor subtract any terms and conditions therein. The case of the complainant is not proved, because the terms and conditions of the contract of insurance entered into by the parties disprove it. The terms and conditions of the contract of insurance nowhere prove the case of the complainant. Mere oral evidence of the complainant cannot be taken into account to contradict the written terms and conditions of the contract of insurance. No amount of oral evidence can be looked into to contradict the terms and conditions of the written contract of insurance between the parties under law.

We find no substance in the case of the complainant that OP1 assured him to give an amount of loan directly or through agent or intermediary. The stand of Insurance company is without any flaw or blemish. We have not come across any illegality or perversity in the contention of the insurance company under challenge calling for any interference order.

ORDER

As a result of above discussion, we find no merit in this complaint petition and the same is hereby dismissed.

There will be no order as to costs.

Let a plain copy be handed over to both the parties as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER