IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 20^thday of March, 2021

Present:  Sri. Manulal V.S. President

Sri. K.M.  Anto, Member

C C No. 178/2018 (filed on 31-08-2018)

Petitioner                                            :         Tom Joseph,

                                                                   S/o. K.V. Joseph,

                                                                    KidangathuKarottu House,

                                                                   Panachippara Kara, Poonjar,

                                                                   Kottayam.

                                                                   (Adv. Avaneesh V.N.)

                                                         Vs.                            

Opposite parties                                 :   1)  PNBMetlife India Insurance

                                                                   Company Limited.

                                                                   Represented by its M.D.

                                                                   Unit No.101, 1^st Floor,

Techniplex 1, Techniplex

Complex,

          S.V. Road, Goregaoh West,

          Mumbai – 400062.

                                                                    (Adv. Jayakrishnan R.)

                                                               2)   Susan Mathew,

                                                                   Perapoorkalayil House,

                                                                   Mudiyoorkonam P.O.

                                                                   Pathanamthitta – 689516.

                                                                   (Adv. K.A. Bijoy)

O  R  D  E  R

Sri. Manulal V.S. President

          Case of the complainant is as follows.

          The petitioner and 2^nd opposite party who is the agent of the 1^st opposite party were in acquaintance during the year 2015.  At that time the 2^nd opposite party insisted the complainant to take a medical insurance policy of the 1^st respondent through her.  The petitioner handed over the copies of the ID proof, driving licence, pan card and passport to the 2^nd opposite party at his residence. On enquiry, the 2^nd opposite party informed the complainant that no medical check-up is necessary and there is no need to affix the signature in any paper.  On 25-06-2015, the 2^nd opposite party collected 1^st premium amount of Rs.12,026/- from the complainant at his house.  It was informed by the 2^ndopposite party that the period of policy was for 10 years.  Subsequently the complainant received the policy documents through post. The complainantremitted the premium amount for the next year through the 2^nd opposite party, the sum assured is Rs.10lakhs.

          During September, 2017 complainant suffered so much irritation to his eyes and approached an Ophthalmologist in Aravind Eye Hospital at Madhura for the treatment.  At that time, the complainant had abonafied belief that he would be protected by the insurance coverage from the 1^st opposite party.                The estimate cost for the surgery to rectify his blindness was around Rs.65,000/. Immediately the matter was intimated to the 1^st opposite party through toll free number and it was informed by the opposite party that the e-mail ID was not entered in the policy and only after entering the e-mail ID, the communication would be possible.  Then the petitioner approached the branch office at Thiruvalla with copies of  PAN card, driving licence, passport and filled up the form for updation on 24-10-2017.  Though the PRO of the 1^strespondent at branch office at Thiruvalla tried for updation several times but failed due to the reason that the signature of the petitioner was not correct,which was entrusted at the time of inception of the policy.The complainant was informed that the signatures in the application form which was entered in the system and policy documents are different from that the signatures shown in the documents produced by the petitioner at the time of updation.  At that time the petitioner understood that his signatures were forged by the 2^ndopposite party in the application form and the policy documents.  It was revealed that even the name of the spouse was entered as Joseph George. As per the advice of Public Relation Officer, the complainant filed petition before the Grievance Cell of the 1^st opposite party.  On 07-11-2017, the complainant received a letter from the 1^st opposite party that the Grievance Officer will respond to his grievances.  On 15-01-18 the complainant received a letter from the 1^st opposite party stating that they will provide full refund of the policy amount remitted till date. On 09-07-18 another letter received from the 1^st respondent which states that they have highlighted the issue to the concerned team because due to the difference in signatures the 1^st opposite party was not in a position to approve his claim which would have been submitted by the complainant in future.  It is alleged in the complaint that when the petitioner approached the 1^st respondent office at Kottayam demanding refund with sufficient documents mentioned in letter dtd.15-01-2018, they refused to accept the same.

          Due to the act of agent of the 1^st respondent, the petitioner has lost the reimbursement facility for the medical expenses.  In order to get free medical treatment through the insurance policy, the complainant has joined in the health insurance policy proposed by the 1^st opposite party through the 2^nd opposite party.  Surgery of the complainant is yet to be conducted.  Due to the fraudulent act of the 2^ndoppositeparty, the complainant suffered so much financial loss and mental agony.  It is averred in the complaint that it is the duty of the 1^stopposite party to ensure the veracity of the signatures of every policy holder of proposals submitted by their agents.  According to the complainant the 1^st opposite party is liable to compensate him and they are liable for the act of their agent.  The 1^st opposite party has got unlawful gain by receiving the policy amount from the complainant.  It is averred that only due to the forged signature in the policy document and application form by the 2^ndopposite party who is an employee of the 1^st opposite party the complainant could notavail the fruits of the policy. The act of the opposite parties amounts to deficiency in service and unfair trade practice.  Hence this petitionis filed by the complainant for refund of the premium amount along with compensation for the mental agony, which was sustained by him.

          Upon notice from this Commission, opposite parties appearedand filed separate version.

          Version of the 1^st opposite party is as follows.

          Admittedly the policy was issued from the branch office of the 1^st opposite party at Mavelikkara which comes within the jurisdiction of CDRF, Alappuzha.  Thus 1^st opposite party contented that this Commission have no territorial jurisdiction to entertain this complaint.  The complaint is not maintainable since cancellation and refund request of policy submission duly accepted by the 1^st opposite party and communicated to the complaint vide letter dtd.15-01-18 subject to completion of documentary requirements at any branch of insurance company.  Even after receiving the documentary requirements registered by the 1^st opposite party, the complainant has failed to complete the documentary requirements and filed present complaint with ulterior motive to gain undue advantage.  Cancellation and refund of the policy is guided by the terms and conditions of the policy. The complainant failed to fill the documentary and procedure requirements as per the terms and conditions of the policy, thus the 1^st opposite party could not process the cancellation and refund request of the complainant.

          The 1^st opposite party only acted as per the mandate given by the complainant in the proposal form and issued the insurance policy and all decision in conformity of insurance terms and conditions.  The complainant had failed to set up a nexus between the damage claimed in the complaint and damage suffered by him.  Believing the declaration given by the complainant in the proposal form to be true, correct and complete in all respect 1^st opposite party issued the policy to the complainant.  The policy documents were sent to the communication address mentioned in the proposal form, the complainant retained the policy documents and did not raise any objection towards the policy during the free look period.  The 1^st opposite party was in respect of complaint alleging misselling of the policy duly scrutinized the records pertaining the policy and the request of the complainant was accepted as a gesture of goodwill eventhough the same was beyond thefreelook period.

          The complainant approached the 1^st opposite party and filed a complaint regarding malpractices done by some individuals in the name of the 1^st opposite party.  In respect to the same, letter dtd.09-07-18 was sent by the 1^stopposite party  assuring strict actions against such individuals.  However complainant failed to complete documentary requirements raised by the insurance company.  Hence no further action is to be taken with respect to cancellation and refund, From these, it is clear that 1^stopposite party has taken due cognizance of the complaints filed by the complainant.  There is no deficiency or unfair trade practice from the side of opposite party and complaint is liable to be dismissed.

          Version of the 2^nd opposite party is as follows.

          Allegation against the 2^nd opposite party is false.  Before issuing policy, original signature of the complainant was verified by the then Unit Manager, Sumangala S. And Sales Manager Preethi S. Pillai.  The 2^nd opposite party is unaware of the differences of signatures of the complainant in the application form and other documents.  The only documents that is the key stone of the above complaint is the policy bearing No.21614841 and its schedule revealing its terms and conditions which is not produced by the complainant before this Commission.  The name of the nominee stated in the policy is Rosamma Joseph.  The other averments with respect to the other complaint and its procedure are to be answered by the 1^st respondent.

          Any act of the 2^nd respondent is not contributed for the loss  of re-imbursement facility for the medical expenses inured by the complainant.  No fraudlent act has been done by the 2^nd respondent in order to cause financial loss and mental agony to the complainant.  The complainant is not a consumer of the 2^nd respondent.  If at all the 1^st premium was collected and paid to the 1^st opposite party, the duty of the 2^nd opposite party is over.  Accepting the said premium the policy was issued.  The 2^ndopposite party is unaware of the signature of the complainant used by him in various occasions.  The 2^nd opposite party never forged signatures in the application form and policy documents as alleged.  The complainant has not suffered any mental agony and pain as alleged.  There is no deficiency in service from the part of the 2^ndopposite party.  No cause of action arise within territorial jurisdiction of this commission.  Therefore the 2^nd opposite party praying for dismissal of the complaint.

          The complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A7 were got marked.  The 2^ndopposite party remains continuously absent from the proceedings of the case and did not adduce any evidence.  Hence the 2^ndoppositeparty is set exparte.  One Rajeev Sharma who is the Senion Legal manager of the 1^st opposite party filed proof affidavit and Ext.B1 to B3 were got marked.

          On evaluation of complaint, version and evidence on record we would like to consider following points.

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
3. If so, what are reliefs?

Point No.1

          The specific case of the complainant is that he had availed an insurance policy from the 1^st opposite party through the 2^nd opposite party, who is the agent of the 1^st opposite party.  It is submitted in the proof affidavit that on 25-06-2016 the 2^nd opposite party who is the agent of the 1^stopposite arty collected the 1^st premium of Rs.12,026/- from the complainant at his house.  Then only after the 2^nd opposite party remitted the 1^st premium of the said policy to the 1^st opposite party, the health insurance policy was issued by the 1^stopposite party in the name of the complainant for and amount of Rs.10 lakhs for a period of 10 years.  The opposite party vehemently contented that none of the cause of action of this complaint is arose within the jurisdiction of this Commission.  The 1^st opposite party admits that the issuance of the health insurance policy in the name of the complainant from the branch office at Mavelikkara.  According to the 1^st opposite party, the said branch office situates in the territorial jurisdiction of the Consumer Disputes Redressal Commission, Alappuzha.  On going through the version of the 2^nd opposite party who is the agent of the 1^st opposite party it can be seen that the 2^ndoppositeparty has not disclosed the place on which she had received the 1^st premium amount from the complainant. She is admitting the payment of the 1^st premium to her by the complainant it is also admitted by the 2^ndopposite party that the 1^st premium had been remitted by her to the 1^st opposite party in the name of the complainant.

          Section 11 of the Consumer Protection Act 1986 says about the jurisdiction of the District Forum.

 Jurisdiction of the District Forum

1. Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.
2. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business, or has a branch office or personally works for gains; or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain:
3. The cause of action, wholly or in part, arises.”

          As per Section 11 (C) of the Act, consumer complaint can be filed before the Consumer Forum if cause of action fully or partly arise within the territorial jurisdiction of that Forum.  The counsel for the 1^st respondent relied  on the decision of the State Commission Dehradoorn in LIC Vs. Harish Chandra Joshi.  However in case in hand the available evidence proves that the complainant had paid the 1^st premium for the policy to the 2^nd opposite party who is the agent of the 1^st opposite party at the house of the complainant which situates at Poonjar, Kottayam which is within the territorial jurisdiction of this Commission.  Thus we are of the opinion that, by remitting the 1^st premium for availing the health insurance policy to the 2^ndopposite party and thereby the complainant availed the service of the 1^st opposite party.  The cause of action has arose within the territorial jurisdiction of this Commission.  Thus we are of the opinion that this Commission have the jurisdiction to entertain this complaint and the complaint is maintainable.  Hence point no.1 answered accordingly.

          For the sake of convenience we would like to consider point no.2 and 3 together.

Point No.2 and 3

          There is no dispute on the fact that the complainant had availed met life India issuance premium pack before health insurance policy from the 1^st opposite party on 30-06-2015.  Ext.A1 is the copy of the said policy. Period of insurance converge was 10 years under Ext.A1 policy. There is also no dispute on the fact that a premium of Rs.11,619/- was received by the opposite party.  Admittedly the complainant renewed the policy in the next year by premium for subsequent year.  The specific case of the complainant is that when he approach the 1^st opposite party for the product of health insurance coverage for the treatment for the complainant’s in Aravind Eye hospital, Madhura it was revealed that updation of the policy documents could not be done due to the reason that the signature was not matching with that in the policy document.  It is submitted by the complainant that he came to know the differences in signatures in the policy and proposal forms only at that time.  The complainant averred that while receiving the amount for the 1^st premium the 2^ndopposite party informed him that there is no necessity for undergone any medical check-up or affixation of his signature in any documents.  When the differences in signatures noticed by the complainant he sent an e-mail on 09-10-2017 praying for rectifying for the same.  In response to the said e-mail Manager, Grievance Redressal Team of the 1^st opposite party sent Ext.A5 to the complainant accepting the acknowledgement receipt of Ext.A4 E-mail and assured that the grievance will be resolved within 2 weeks.  Thereafter the 1^st opposite party issued Ext.A6 communication to the complainant stating that 1^st opposite party accepted the request of the cancellation of the policy and will give full refund against the policy.  Apart from that vide Ext.A6 complaint is directed to furnish original policy documents and pre printed cancelled cheque along with the free look cancellation form and other documents to the nearest branch office of the 1^stopposite party.  It is evident from Ext.A6 that the 1^st opposite party has agreed to cancel the insurance policy and refundthe entire premium amount paid by the complainant to him.  Thus we are of the opinion that the opposite party cannot take the contention that the complainant failed to exercise his right to cancel the policy within the free look period.  It is submitted by the complainant that though he approached the Kottayam branch of the 1^st opposite party as directed in Ext.A6 the officials concerned in the said opposite party  refuse to accept the documents.  The 1^st opposite party evaded from the cancellation of the policy and refund of the amount as offered by them merely stating that the complainant not produced the required documents. On a thoughtful evaluation of the above discussed evidence we are of the opinion that the 1^stopposite party committed deficiency in service by non refunding the amount to the complainant as offered by them.  In this circumstances we allow the complaint and pass the following order.

1. We hereby direct the 1^strespondent to pay the amount of Rs.24,052/- to the complainant with an interest of 9% from 31-08-2018 ie. the date on which the complaint is filed till realization.
2. We hereby direct the 1^st opposite party to pay Rs.7,000/- towards compensation for deficiency in service.
3. We hereby direct the 1^st opposite party to pay cost of Rs.3,.000/-.

Order shall be complied with withina period of 30 days from the date of receipt of Order.If not complied as directed, the compensation and cost amount will carry 9% interest from the date of Order till realization.

     Dictated to the Confidential Assistant, transcribed and typed by her,corrected by me and pronounced in the Open Commission on this the 20^thday of   March, 2021.

Sri. Manulal V.S. President Sd/-

Sri. K.M. Anto, MemberSd/-

Appendix

Exhibits marked on the side of the complainant

A1  :Copy of proposal form

A2  :Op cash receipt dtd.01-09-17 from Aravind Hospital

A3  :E-mail communication dtd.09-10-17

A4  :E-mail communication dtd.20-02-18 from Tom Joseph to Grievance

          Redressal Team

A5  :  Letter dtd. 07-11-17 by 1^st opposite party to Tom Joseph

A6  : Letter dtd. 15-01-18 by 1^st opposite party to Tom Joseph

A7  :  Letter dtd. 09-07-18 by 1^st opposite party to Tom Joseph

Exhibits marked on the side of opposite party

B1  :Copy of policy and its terms and conditions

B2 :Copy of complaint dtd.07-02-18

B3  :Copy of letter dtd.28-03-2018

By Order,

                                                                                                                                                                                         Senior Superintendent