Order by:

Sh.Amrinder Singh Sidhu, President

1.           The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that there is a delay of 2 years and 140 days in filing the present complaint for which separate application for condonation of delay under Section 69 of The Consumer Protection Act is filed. Reason for the said delay is that earlier complainant has no knowledge that opposite parties has fraudulently issued the insurance policy by giving wrong and misleading information to the complainant that same was FD with maturity period of 5 years, but when on 16.03.2021 complainant had visited to the bank of opposite parties to know about the maturity date of his F.D and then it came to know that officials of opposite parties by playing misrepresentation and fraud and by giving wrong and misleading information to complainant had issued the insurance policy no.22066746 instead of FD with maturity period of 5 years. So when the complainant has received the above said knowledge that fraud has been committed with him then he immediately filed the present complaint, So, delay is bonafide and has occurred due to the above mentioned reasons, so the ends of justice required that the same may please be condoned. Further alleges that complainant is uneducated person and having Bank Account no.1905000100076883 in the bank of opposite party no.1. On 23.12.2016 the complainant approached to the bank branch of opposite party no.1 for open his F.D for the amount of Rs.50,000/- for 5 years and at that time some of officials of opposite parties attended him and also got singed the various papers from complainant with an excuse that same was required for opened his F.D for 5 years. Thereafter said officials of opposite parties informed to complainant that above said amount of Rs.50,000/- will be deducted from the above mentioned bank account of complainant and then an amount of Rs.49,999/- has been deducted from account of complainant. Thereafter on 16.03.2021 complainant visited the bank of opposite party no.1 to know about the maturity date of his above said F.D and then it is utter surprised for complainant when he came to know that officials of opposite parties by playing misrepresentation and fraud and by giving wrong and mislead information had misused such documents (which was got signed from complainant under the pretext of opening the above mentioned F.D) and mis-sold an insurance policy no.22066746 of 2016 to complainant without his due consent. Thereafter complainant approached to opposite parties and made a request to them to look into the matter as officials of opposite parties by playing above said fraud and misrepresentation and just to get the commission has mis-sold the above mentioned alleged policy after misusing such documents but they did not listen anything. Thereafter on 17.03.2021 complainant had send registered applications to opposite parties and made request to them to send the above said policy to complainant so that complainant takes the necessary action in this regard, but till today no such alleged policy has been send to complainant. In this regard number of complaints were made by the complainant to opposite parties, but opposite parties did not bother to attend the complaints of complainant. Complainant also sent legal notice dated 31.03.2021 through his counsel to opposite parties and requested them to send the above mentioned alleged policy to complainant within 15 days from the receipt of notice so that complainant takes the legal action as per law and through said notice it was further requested to cancel the above said policy and also refund the amount of Rs. 49,999/- with interest, but opposite parties did not bother to reply to said legal notice. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite parties may be directed to return/refund the amount of Rs.49,999/- for mis-sold an insurance policy no. 22066746 instead of FD along with Interest @ 12% per annum from the period of 24.12.2016 till the realization of above said amount.

b)      To pay an amount of Rs.1,00,000/- as compensation on account of mental tension and harassment suffered by the complainant.

C)      To pay an amount of Rs.5500/- as litigation expenses.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Party No.1 appeared through counsel and contested the complaint by filing written version taking preliminary objections therein inter alia that the present complaint is not maintainable against the answering opposite party. The complainant is not consumer of answering opposite party. The opposite party No.1 has not sold the policy as alleged in the complaint. Moreover, the opposite party No.2 is a separate agency which is doing the business of insurance and opposite party No.1 has no concern with the business of opposite party No.2. So the present complaint is not maintainable against the answering Opposite Party. The complainant has not approached to this Commission with the clean hands and concealed the material facts. In fact complainant is well educated person and he voluntarily purchased the policy from the opposite party No.2 and opposite party No.1 has only made the insurance premium from the account which is maintained with the opposite party No.1 on the direction of complainant. So the answering party has not liable to pay any compensation/claim as alleged in the complaint. This Commission has no jurisdiction to try and decide the preset complaint. In the present complaint, complainant alleged that fraud has been played with the complainant by the opposite parties so to prove the fraud voluminous evidence and cross examination is required, so the complaint is liable to be dismissed on this score. On merits, it is submitted that all other facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint is made.

3.       Opposite Party No.2 filed written version taking preliminary objections therein inter alia that the complaint being frivolous and vexatious is liable to dismissed as the complainant has failed to make out a case of "Deficiency of Service" as alleged or otherwise within the meaning of Consumer Protection Act hence the present complaint is not maintainable. At the very outset, the opposite party denies the contentions, averments made by the complainant as the same are baseless and without any merit and the complainant be put to strict proof of the same and submit the complaint deserves to be dismissed. The present complaint is bad for non-joinder and mis-joinder of necessary parties. The complainant has concealed and suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and complainant has not only concealed the material facts from Commission but has also twisted and distorted the same to suit his own convenience and to mislead this Commission. The complainant with malafide intention did not disclose the true and correct facts before this Commission and filed a false complaint only to get undue benefit at the cost of the company. The present complaint is clear cut misuse of the Consumer Protection Act. It is submitted that the complainant has acted in bad faith with respect to subject of this complaint and has approached this Commission with unclean hands; hence in view of the doctrine of clean hands-"one who comes unto equity must come with clean hands". The contract of the Insurance between the company and complainant is governed by its Policy terms and conditions. Opposite parties put reliance on citations of Hon'ble Supreme Court of India in case titled "Export Credit Guarantee Corporation of India Vs M/s Garg sons International 2013 (1) CPC 192,  Vikram Greentech (I) Ltd and another Vs New India Assurance Co. Ltd." 2009(4) CLT 313, Deokar Exports Pvt. Ltd. Vs New India Assurance Co. Ltd" 2009 (2) CLT 15 and LIC of India and others vs Mahendra Singh" reported as 2011(4) CLT 39 Hon'ble National Commission. Further alleges that the complaint is devoid of any material particulars and has been filed merely to harass the opposite parties and hence the complaint deserves to be dismissed in limine. Further alleges that the answering Opposite Party is entitled to get the special cost of Rs.25,000/- from the Complainant for unnecessarily dragging the answering respondent into uncalled litigation. Further alleges that based on the answers, statements, premium amount, premium paying term opted and declarations made in the proposal form duly executed and submitted by the Complainant, the Opposite party Company had issued the following Policy along with the terms and conditions governing the Policy and a Welcome Letter. The details of the same are reproduced herewith for kind perusal of this Commission:-

The above policy documents were dispatched through speed post by the opposite party vide POD No. 'EA582978602IN' on 03.01.2017 at the given address of complainant and the same was duly delivered to the complainant on 12.01.2017. The complainant and life assured had signed the declaration & agreement contained in the proposal form only after proposer/life assured was explained all the terms & conditions of the policy and signed the proposal form after accepting the terms & conditions mentioned therein. The policy schedule filed by complainant itself states the premium paying term under the policy was of "5 years" and as such he was fully aware of the minimum premium paying term and also about the premium payment being regular in nature. Moreover, during welcome call complainant regarding the subject policy did not raise any concern. The complainant has received the policy documents and all the applicable charges, premium paying terms, benefits etc., are duly mentioned in the policy as such he was fully aware about all the terms & conditions and benefits. As per section 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002, insured can avail free look cancellation or modifications within 15 days of the receipt of the policy document. The said clause is duly mentioned on the first page of the policy document. Since the complainant had duly received the policy document and therefore was fully aware with the terms and conditions governing the policy but did not opt for free-look cancellation after the receipt of policy meaning thereby he has accepted the terms & conditions of the policy. The complainant cannot wriggle out of the terms & conditions of the policy and declarations, which were duly signed by him. In the present case, opposite party has never received any request for cancellation of policy during the Free Look Period. In view of aforesaid fact in present case the opposite party had already provided insurance cover on the life of the Life Assured under the policy and had availed the insurance benefit and after lapse of almost 3 years and by not availing free look period option. That any such further demand by the complainant is uncalled for and not acceptable by any provision of law or on equity. It is stated that contract concluded between the parties and both parties are governed by them. On merits, it is submitted that the complaint is hopelessly time barred. The averments in the application for condonation of delay are false & baseless and the contents of the reply to the application for condonation of delay filed by Opposite party may kindly be read as part of this para of complaint. Further submitted that Ludhiana Branch of the company received the proposal application no.212602931 wherein complainant proposed for life insurance policy in his name under PNB MetLife Endowment Savings plan. In the proposal form / application form, the complainant declared his Education Qualification as 10th pass and his annual income Rs.3,20,000/- per annum from occupation as agriculturist. The detail of policy plan, policy term & paying premium terms was duly mentioned in the proposal form. The complainant appointed his wife Lakhvir Kaur as his nominee under the policy. The complainant also submitted the details of his Bank Account, Adhaar details etc in support of age & address proof. The complainant signed the proposal form in English after admitting & understanding the contents thereof to be correct. The complainant paid the premium through cheque dated 23.12.2016 of Rs.49,999/- for PNB MetLife Endowment Savings plan. After receiving the proposal form & documents, the company issued policy no.22066746 dated 29.12.2016. The said policy was sent through speed post and same was duly received by the complainant. The complainant also confirmed through tele-calling regarding the subject policy. Since, the complainant duly received the policy and if he was not satisfied with the terms & conditions of the policy, then he can opt for cancellation of the same within free look period of 15 days but complainant did not opt for the cancellation of the same meaning thereby he accepted the terms & conditions of the policy. The complainant received the policy via Speed post bearing no. EA582978602IN delivered on 12^th Jan, 2017. Further, a reminder notice dated 27.01.2018 was also sent to the complainant regarding the payment of premium amount of subject policy. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint is made.

4.       To prove his case, complainant tendered in evidence  application of condonation of delay Ex.C1, affidavit of application Ex.C2, his affidavit Ex.C3 alongwith copies of documents Ex.C4 to Ex.C12.

5.       To rebut the evidence of complainant, Opposite Party no.1 tendered in evidence affidavit of Smt.Jyoti Bhatia, Branch Manager Ex.OP1/1 alongwith copies of documents Ex.OP1/2 & Ex.OP1/3. Whereas, Opposite Party No.2 tendered in evidence affidavit of Sh.Arijit Basu, Senior Manager Legal Ex.Ex.OP2/A alongwith copies of documents Ex.OP2/1 and Ex.OP2/2.

6.       During the course of arguments, ld. counsel for both the parties have mainly reiterated the same facts as narrated in the complaint as well as written version. The case of the complainant is that complainant is having Bank Account no.1905000100076883 in the bank of opposite party no.1. On 23.12.2016 the complainant approached to the bank branch of opposite party no.1 to open his F.D for an amount of Rs.50,000/- for 5 years and also got singed the various papers from complainant with an excuse that same was required for opening his F.D for 5 years. Thereafter on 16.03.2021 complainant visited the bank of opposite party no.1 to know about the maturity date of his above said F.D and then he came to know that officials of opposite parties had misused such documents which was got signed from complainant under the pretext of opening the above mentioned F.D and mis-sold the insurance policy no.22066746 of 2016 to complainant without his due consent. Thereafter complainant approached to opposite parties and made a request to them to look into the matter as officials of opposite parties by playing above said fraud and misrepresentation and just to get the commission has mis-sold the above mentioned alleged policy after misusing such documents but they did not listen anything.

7.       Ld. counsel for the opposite party no.1 has repelled the contentions of ld. counsel for the complainant on the ground that the opposite party No.1 has not sold the policy as alleged in the complaint. Moreover, the opposite party No.2 is a separate agency which is doing the business of insurance and opposite party No.1 has no concern with the business of opposite party No.2. So the present complaint is not maintainable against the answering Opposite Party. Further alleges that he voluntarily purchased the policy from the opposite party No.2 and opposite party No.1 has only made the insurance premium from the account which is maintained with the opposite party No.1 on the direction of complainant. On the other hand, ld. counsel for opposite party no.2 contended that based on the answers, statements, premium amount, premium paying term opted and declarations made in the proposal form duly executed and submitted by the Complainant, the Opposite party Company had issued the Policy namely PNB Met Life Endowment Savings along with the terms and conditions governing the Policy and a Welcome Letter. The policy documents were dispatched through speed post by the opposite party vide POD No. 'EA582978602IN' on 03.01.2017 at the given address of complainant and the same was duly delivered to the complainant on 12.01.2017. The complainant and life assured had signed the declaration & agreement contained in the proposal form only after proposer/life assured was explained all the terms & conditions of the policy and signed the proposal form after accepting the terms & conditions mentioned therein. The policy schedule filed by complainant itself states the premium paying term under the policy was of "5 years" and as such he was fully aware of the minimum premium paying term and also about the premium payment being regular in nature. Moreover, during welcome call complainant regarding the subject policy did not raise any concern. The complainant has received the policy documents and all the applicable charges, premium paying terms, benefits etc., are duly mentioned in the policy as such he was fully aware about all the terms & conditions and benefits. As per section 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002, insured can avail free look cancellation or modifications within 15 days of the receipt of the policy document. The said clause is duly mentioned on the first page of the policy document. Since the complainant had duly received the policy document and therefore was fully aware with the terms and conditions governing the policy but did not opt for free-look cancellation after the receipt of policy meaning thereby he has accepted the terms & conditions of the policy. The complainant cannot wriggle out of the terms & conditions of the policy and declarations, which were duly signed by him. In the present case, opposite party has never received any request for cancellation of policy during the Free Look Period. In view of aforesaid fact in present case the opposite party had already provided insurance cover on the life of the Life Assured under the policy and had availed the insurance benefit and after lapse of almost 3 years and by not availing free look period option.

8.       We have perused the rival contentions of ld. counsel for the parties and have also gone through record. Ld. counsel for the Opposite Party No.2 contended that complainant knowingly and willingly purchased the policy in question. If for the time being, the contention of ld. counsel for the Opposite Party No.2 is presumed to be correct, the next plea raised by Opposite Party No.2 is that they duly delivered the policy in question to the complainant, through Speed Post. But they have not produced any iota of evidence on record to prove this fact that they ever supplied the insurance policy to complainant. The other plea of Opposite Party No.2 is that as per terms and conditions of the policy, insured was provided a period of 15 days within which he could have returned the policy to the Opposite party No.2 by stating the reason thereof. The act & conduct of the complainant in not returning/surrendering the policy within the given time signified his acceptance of the terms & conditions mentioned in the said policy documents. However, the Opposite Party No.2-Insurance Company could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the 13 insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further 14 argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the 15 policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

9.       We are of the view that if the policy document alongwith terms and conditions were not ever supplied to complainant, then how complainant could avail the benefit of free look period. If the policy document alongwith terms and condition were to be supplied by Opposite Party No.2 to complainant within time, then in that case he can opt to avail the free look period of 15 day and got cancelled the policy. But however, the Opposite Party No.2 failed to do so, which amounts to deficiency in service on the part of Opposite Party No.2. Moreover, there is privity of contract between complainant and Opposite Party No.1 as complainant applied and got the insurance policy from Opposite Party No.2. Hence, there is no deficiency in service or unfair trade practice on the part of Opposite Party No.1.

10.     In view of the aforesaid facts and circumstances of the complaint, the present complaint against Opposite Party No.1-Punjab National Bank stands dismissed and we partly allow the complaint of the Complainant against Opposite Party No.2-PNB Met Life Insurance Company Ltd and direct Opposite Parties No.2- PNB Met Life Insurance Company Ltd to refund an amount of Rs.49,999/- (Rupees Fourty Nine Thousand Nine Hundred Ninety Nine only) deposited by the complainant with them. The compliance of this order be made by Opposite Party No.2- PNB Met Life India Insurance Company Ltd within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. All the applications pending, if any in this District Commission also stands disposed off. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission