Chandigarh

StateCommission

A/125/2015

M/s Max New York Life Insurance Co. Ltd, - Complainant(s)

Versus

Raj Kumar Gandhi and anr. - Opp.Party(s)

Rajneesh Malhotra & Vandana Malhotra, Adv.

22 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	125 of 2015
Date of Institution	:	01.06.2015
Date of Decision	:	22.07.2015

 

Max New York Life Insurance Company Limited, through its Chairman C/o Max House, 1, Dr.Jha Marg, Okhla, New Delhi 110020

……Appellant/Opposite Party No.1

 

V e r s u s

1. Raj Kumar Gandhi son of Late Sh.Sat Pal Gandhi, resident of H.No.76, Bakshi Niwas, Dhangu Road, Pathankot (Punjab).

              ....Respondent No.1/complainant

2. Yes Bank, through its Manager, Sector 9-C Branch, Chandigarh.

....Respondent No.2/Opposite Party No.2

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh. Varun Chawla, Advocate for the appellant.

                   Sh.Anil Mehta,  Advocate for respondent No.1

                   Service of respondent No.2 dispensed with vide order dated                10.07.2015.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 27.02.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1) and directed Opposite Party No.1 (now appellant), as under:-

“So, holding the Opposite Party No.1 liable to pay the surrender/Fund value to the complainant, as per terms & conditions of the policy, we allow this complaint and direct Opposite Party No.1 to pay the complainant as under:-

i)  The surrender/Fund value of the policy, as per terms & conditions of the policy.

ii) Rs.20,000/- for deficiency in service and unfair trade practice.

iii) Rs.10,000/- as cost of litigation.

The order shall be complied with within a period of 53 days from the date of its receipt, failing which they shall be liable to pay the decreed amount along with interest @9% per annum from the date of order till its realization, besides the cost of litigation.

The Opposite Party No.2 is only an agent, who has facilitated the issuance of the policy to the complainant, no relief is due from him.  Hence, the complaint against Opposite Party No.2 is dismissed”.

2.        The facts, in brief, are that the complainant opted for a Life Maker Platinum Unit Linked (Non-Participating) Plan, issued by the Opposite Parties, on payment of premium of Rs.1,50,000/-. It was stated that the terms and conditions of the Policy, were not supplied to the complainant, at the time of signing the proposal form.  It was further stated that after about one year of issuance of the said Policy, the complainant found that the terms and conditions thereof, did not meet his requirement, and, as such, he made a request to the Opposite Parties, in writing, for cancellation of the same (Policy). It was further stated that, thereafter, the complainant, visited the office of the Opposite Parties, a number of times, with a request to cancel the said Policy, and refund the amount paid by him, but to no avail.
3.        It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.1.50 lacs; pay compensation to the tune of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.35,000/-.
4.        Opposite Party No.1, in its written version, stated that the complainant subscribed to the Policy, by filing in and signing the proposal form dated 06.09.2007, annual premium whereof was Rs.1 lac. The premium payment term was 25 years. The sum assured was to the tune of Rs.24,03,270/-. It was further stated that, on the basis of proposal form, filled in and signed by the complainant, he was issued the Policy, in question. It was further stated that the Policy, in question, and the terms and conditions thereof alongwith the welcome letter, were sent to the complainant, who duly received the same. It was further stated that in the welcome letter, it was made clear, that in case, the complainant was not satisfied with the terms and conditions of the Policy, he could seek cancellation thereof, with 15 days of the receipt thereof. It was further stated that Opposite Party No.1 had received cancellation request, in respect of the Policy, in question, on 23.07.2008 and 19.08.2008, i.e. much beyond the free look period of 15 days, from the date of receipt of the same. It was further stated that the complainant vide letters dated 06.08.2008 and 03.09.2008 Annexure A-4 and A-6 respectively, was informed that the Policy, in question, could not be cancelled beyond the free look period of 15 days and therefore, the amount deposited by him, towards the same, could not be refunded. It was further stated that, however, the request was made by the complainant, for change of address and change in the mode of payment of premiums, which was acceded to, by Opposite Party No.1. It was further stated that, as such, the complainant was required to make payment of premiums, to the tune of Rs.25,000/- on quarterly basis, for rest of the period of Policy. It was further stated that, however, after making payment of Rs.50,000/-, over and above the amount of Rs.1 lac, the complainant failed to make any further payment of instalments of premium, in respect of the Policy, in question. It was further stated that the complainant was also issued notice, for making payment of premium, followed by reminder dated 21.03.2009, but since despite that he failed to do so, the Policy stood lapsed. It was further stated that, intimation in this regard was sent to the complainant, vide letter dated 21.04.2009 (Annexure A-11). It was further stated that the Policy did not acquire any surrender value as per the terms and conditions thereof. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5.        Opposite Party No.2, in its written version, pleaded that the consumer complaint was barred by limitation.  It was admitted that the Policy, in question, was obtained by the complainant, through Opposite Party No.2, being Agent of Opposite Party No.1. It was stated that alongwith the Policy documents, welcome letter was also sent, wherein, an option was given to the complainant, that, in case, he was not satisfied with the terms and conditions of the Policy, he could return the same, during the free-look-period of 15 days, from the date of receipt of the same, and ask for cancellation thereof. It was further stated that the complainant failed to make a request for cancelling the aforesaid Policy, within free-look period of 15 days, from the date of receipt of the same, and, as such, the request made by him, at a later stage, for cancellation, could not be accepted. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6.        The Parties led evidence, in support of their case.
7.        After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, against Opposite Party No.1, in the manner, referred to, in the opening para of the instant order. 
8.        Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
9.        Service of respondent No.2, which was Opposite Party No.2, in the District Forum, was dispensed with, for the purpose of this appeal, as the complaint was dismissed against it.
10.        We have heard the Counsel for the appellant, respondent No.1, and, have gone through the evidence, and record of the case, carefully. 
11.        Admittedly, the complainant subscribed to Life Maker Platinum Unit Linked (Non-Participation) Policy Plan, by filling in and signing the proposal form dated 06.09.2007, annual premium whereof was Rs.1 lac. The premium payment term was 25 years. The sum assured was to the tune of Rs.24,03,270/-. It is also not disputed that the complainant had paid Rs.1 lac, as annual premium, for the first year, towards the said Policy. It is also not disputed that a request was made by the complainant to Opposite Party No.1, for change in the mode of payment of premium, which was acceded to by it. Thus, he was required to pay Rs.25,000/- quarterly, instead of Rs.1 lac lump-sum annually, regularly for the entire Policy period. It is also not disputed that thereafter, the complainant had paid only Rs.50,000/- towards two quarterly instalments, for the second year of inception of the Policy and thereafter, did not pay any amount towards the same, on the ground that the terms and conditions of the same (Policy) were not acceptable to him. It may be stated here, that the Policy, in question, was received by the complainant, on 22.09.2007. Alongwith the said Policy, Annexure-C, welcome letter, was also sent to the complainant, wherein, it was, in clear-cut terms stated that, in case, the terms and conditions of the same were not acceptable to him, then he could request for cancellation thereof, within 15 days, from the date of receipt of the same. However, the complainant did not apply for cancellation of the Policy, within a period of 15 days, from the date of receipt of the same. First request, which was made by the complainant is dated 23.07.2008, vide letter, copy whereof is at page 103 of the District Forum file, followed by another request vide letter dated 19.08.2008, copy whereof is at page 106 of the District Forum file. Certainly, these requests were not made within the free-look period of 15 days, from the date of receipt of the Policy documents. It, therefore, can be said that the complainant, in respect of the Policy, in question, did not make a request for cancellation thereof, within the free-look period of 15 days, from the date of receipt of the same. Since, request for cancellation of the Policy, aforesaid, was not made by the complainant, within the free-look period of 15 days, from the date of receipt of the same, Opposite Party No.1 refused to cancel the same. Refusal of Opposite Party No.1, in cancelling the aforesaid Policy, on the basis of the request made after the expiry of free-look period of 15 days, therefore, could be said to be legally justified. Opposite Party No.1 was thus, not deficient, in rendering service, on this score.
12.        The next question, that falls for consideration, is, as to whether, the Policy, in question, acquired any surrender value, after the payment of only one premium of Rs.1 lac for the first year and, thereafter, only Rs.50,000/-by way of two quarterly premiums of Rs.25,000/- each.  For the purpose of deciding this question, reference to the terms and conditions of the Policy, at page 88 of the District Forum file, is required to be made. Clause 4.1 of the terms and conditions of the Policy, reads as under:-

              “4. Surrender

4.1 You may by giving us a prior written request, surrender this policy, at any time after the third policy anniversary, provided an amount equal to three ATPs has been paid by You.”

13.        It is evident from the afore-extracted Clause that the Policy could be surrendered after the third Policy Anniversary provided an amount equal to three ATPs had been paid by the insured. Thus, the Policy could acquire the surrender value, only after the premiums had been paid for at-least three Policy years. Since, in the instant case, as stated above, only one annual premium of Rs.1 lac, as also Rs.25,000/- each, towards two quarterly premiums of the second year, in respect of the Policy, in question, had been paid by the complainant, the same did not acquire any surrender value. The parties were bound by the terms and conditions of the Policy, and could not go beyond the same. Since, the Policy had not acquired the surrender value, as per the terms and conditions thereof the complainant was not entitled to any amount, under the same. Opposite Party No.1, therefore, by not paying anything, to the complainant, on the ground that the Policy had not acquired any surrender value, was not at all deficient, in rendering service. The District Forum was wrong, in holding to the contrary. The findings of the District Forum, in this regard, being perverse, are liable to be reversed.
14.        Since, there was no  deficiency in rendering service by Opposite Party No.1 to the complainant, the question of grant of compensation and cost of litigation, did not at all arise. The District Forum was wrong in awarding compensation and cost of litigation to the complainant. The findings of the District Forum, in this regard, being perverse are reversed.
15.        No other point, was urged, by the Counsel for the appellant and respondent No.1.
16.        In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
17.        For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
18.        Certified copies of this order, be sent to the parties, free of charge.
19.        The file be consigned to Record Room, after completion

 

Pronounced.

July 22, 2015_

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg

 

 

 

STATE COMMISSION

(First Appeal No. 125 of 2015)

 

Argued by: Sh. Varun Chawla, Advocate for the applicant/appellant.

                   Sh.Anil Mehta,  Advocate for respondent No.1

                   Service of respondent No.2 dispensed with vide order dated                10.07.2015.

 

Dated the  22^nd day of  July  2015

 

ORDER

 

                Alongwith the appeal, an application for condonation of delay of 54 days, as per the applicant/appellant (as per the office report 53 days) in filing the same (appeal) has been moved, by the applicant/appellant, stating therein, that since, its (applicant/appellant) Regional Office is located at Gurgaon, necessary documents, alongwith the certified copy of order, were required to be sent there, for consideration and approval of the Competent Authority, to file an appeal. It was further stated that after receipt of the said documents, from the Head Office, Counsel was engaged, who prepared the appeal and filed the same on 01.06.2015, in this Commission. It was further stated that, in these circumstances, the delay of 54 days, (as per the office report 53 days) in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.

2.             Notice of this application, was given to respondent No.1/complainant, who filed reply, stating therein, that the application deserved to be dismissed, as no sufficient cause, was constituted, for condonation of delay.

3.             No doubt, there is delay of 54 days, as per the applicant/appellant (as per the office report 53 days) in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/appellant. Before discussing this question, let us have a look at law, laid down by the Hon'ble Supreme Court and the Mumbai (Maharashtra) High Court, regarding the condonation of delay.  In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-

                   (i)     The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                 (ii).          Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

                (iii).          Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                 (iv).          Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.             In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses."

5.             In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day's delay in filing the appeal. The later judgments of theApex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353”.

 

6                     The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome official procedure, which was required to be followed, to obtain approval for filing the appeal. After receipt of certified copy of the order impugned and the necessary documents, in the first instance, were sent to the Head Office at Gurgaon, for consideration, and seeking approval of the Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. Otherwise also, the delay of 54 days, in filing the appeal, cannot be said to be so huge, as to deny the substantial justice. Even otherwise, it is settled principle of law, that normally every lis should be decided on merits. When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application. thus, deserves to be accepted.

7.             For the reasons recorded above, the application for condonation of delay of 54 days, as per the applicant/appellant (as per the office report 53 days) in filing the appeal, is allowed, and the delay is, accordingly, condoned.

8.           Admitted.

9.           It be registered.

10.          Arguments, in the main appeal have already been

heard.

11.          Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs.

12.         Certified copies of this order, be sent to the parties, free of cost.

 

Sd/-                                              Sd/-                                    Sd/-

(DEV RAJ) MEMBER

(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.