D.O.F. 28.06.2012
D.O.O. 19.12.2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 19th day of December, 2013.
C.C.No.188/2012
Dhanendran M.V.,
Mothiravalli House (Kelu Nivas), : Complainant
‘Theroth Madappura Road,
P.O. Kakkad,
Kannur – 5
(Rep. by Adv. K.K. Balaram) )
Ranjithkumar P.,
Branch Manager,
TATA AIG Insurance Company Ltd., : Opposite Party
2nd Floor, Dawn Town Shopping Mall,
Nr. Koyli Hospital,
Talap, Kannur
(Rep. by Adv. Saji Isaac K.J.)
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to pay `1,50,000 as compensation with cost of this litigation.
Complainant took Insurance policy from opposite party. Opposite party assured complainant that if he pay premium `20,000 yearly he will get `1,00,000 after three years. He was also made believe that he will be able to pay his housing loan withdrawing of `1,00,000 from the Insurance Department after completion of three years. Policy was taken on these conditions. But on completion of three years when the complainant approached opposite party he was told that he was entitled to get only `31,000. So complainant could not clear his house loan. Hence this complaint.
Pursuant to the notice opposite party filed version denying the main allegations of complainant. The case of the opposite party in brief are as follows : Opposite party had issued policy to complainant as requested by the complainant in the proposal form. The complainant had invested in the company for three years is false and hence denied. The policy opted by the complainant was a unit linked policy coverage. The benefit of the policy of the complainant was non-guaranteed. The actual benefit payable will depend on the actual performance of the underlying assets of the fund. The performance of the fund is not guaranteed and the fund value may be less than the premiums invested and are subjected to market fluctuations. The complainant had accepted the policy and had paid the premiums for three years without any default. Due to the fluctuations in the share market, the value of the funds went down. This might have prompted the complainant to submit this complaint. The allegation that the complainant had invested in the company on the assurance that an amount of `1,00,000 will be paid after three years is false. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency on the part of opposite party?
- Whether the complainant is entitled for the remedy as prayed in the complaint?
- Relief and cost.
The evidence consisted of oral evidence adduced by PW1, DW1 and Ext.A1 to A13 on the side of complainant and Ext.B1 on the side of opposite party.
Admittedly complainant took Tata AIG Life Insurance Policy from opposite party. Complainant adduced evidence by way of chief affidavit that opposite party assured him that he will get `1,00,000 if he could pay `20,000 each in a year for a continuous period of three years. Complainant stated that he had remitted `20,000 each in a year for a continuous period of three years. It is of this assurance, that he will get `1,00,000 instead of `60,000 on withdrawal of amount after completion of three years, complainant deposited the premium amount with the opposite party even without making payment for his housing loan. But when he enquired with the opposite party after the said three years period they told him that he was entitled only for an amount of `31,000. Complainant stated further that because of the unfair declining of the opposite party he could not pay his housing loan and happened to face the threat of RR proceedings. Complainant continued to state that it is not true to say that opposite party informed him all the terms and conditions. It is also false that he was aware of the fact that it was unit linked policy and there was investment risk. The contention of opposite party that he was aware that the entire benefit cannot be guaranteed and the fund value would be changed in accordance with the market fluctuation is also false. Complainant stated that it was only when he received the policy he came to know of the free look period. By the time complainant had deposited two premiums. In short complainant’s definite case is that the real terms and conditions were not explained and convinced him before taking the policy, whereas opposite parties were instigated him to take the policy by assuring him that he would be able to withdraw `1,00,00 instead of `60,000 on paying the premium `20,000 each for continuous three years.
Opposite party on the other hand contended that only after being convinced of the terms and conditions the complainant has submitted the proposal. Opposite party contended further that Insurance is a subject matter of solicitation and the agent solicits that policies after briefing the customer of the terms and conditions of the policy. It is interesting to note that particular agent was not examined before the Forum. Ext.A1, the initial premium deposit receipt goes to show that Lasy Rajeev M. was the agent. So, it is he, who is really eligible and competent speak of the fact whether complainant was briefed of the terms and conditions of the policy. But opposite party did not cite him as a witness. Moreover, the responsible servant of the opposite party who was examined as DW1 deposed that he does not know who is Lasy Rajeev. DW1 was examined to speak of complainant’s policy. As per the contention of opposite party briefing of opposite party is a must. If that be so DW1 is expected to know who did brief complainant for the purpose of taking the policy. DW1 could not speak of the agent. Then opposite party should have taken necessary steps to examine the then agent of opposite party in respect of the complainant’s policy. In absence of examination of concerned agent it is not possible to ignore the allegations of the complainant that he was unaware of the terms and conditions of policy before remitting the initial premium. It is also not possible to say that such an offer of `1,00,000 after three years had not been made to complainant in order to persuade himto take the policy. There is no justification for non-examining the best witness before the Forum. At least opposite party should make clear what all prevented opposite party from examining the then agent Lasy Rajeev. DW1 who is examined deposed that he was quite unaware of the affairs that had taken place in the concerned branch. What he deposed in cross examination is that “ I do not know the things happened in Kannur Branch office during 2009”. Moreover, he had also deposed thus “ I don’t know what is transpired between complainant, opposite party and the agent during 2009”. That means the witness who adduced evidence for and on behalf of opposite party was totally ignorant of the affairs of transaction of particular policy of complainant in question. He do not know what all happened in between the complainant and Manager of the branch and Agent. Opposite party failed to adduce rebutting evidence against the complainant. The available evidence goes to show that the contention of opposite party remained idle without support of evidence. They failed to prove their material contentions.
Complainant adduced evidence by means of affidavit evidence that he has renewed policy document only after receiving the initial premium deposit and renewal premium. Opposite party could not prove it otherwise. Opposite party failed to prove the exact date when the policy was delivered to complainant. When complainant makes allegation that the policy was delivered much later and he was not given opportunity to understand the policy terms and contentions before taking the policy. It is the bounden duty of the opposite party to prove that the same is not correct by adducing proper evidence. Until and unless opposite party comes forward and prove with sufficient evidence that complainant was properly briefed and understood the terms and conditions of the policy before taking the policy Forum is not in a position to say there is no substance in the allegation of the complainant since he had adduced evidence in support of his allegation by means of oral and documentary evidence. Complainant was elaborately cross examined. In his cross examination complainant deposed that opposite party is the Branch Manger and they approached complainant in his office for taking policy. He further deposed that “പോളിസിയുടെ വ്യവസ്ഥകൾ പോളിസി എടുക്കുന്നതിനു മുമ്പെ പറഞ്ഞു തന്നിട്ടില്ല.” He further stated that it was orally assured him that he will get `1,00,000 one year after remitting the premium for a period of continuous three years. When complainant adduced evidence so, opposite party has to give rebutting evidence showing that terms and conditions were clearly explained to complainant and he has put his signature on relevant documents after understanding the content thereof. Mere obtaining of signature is not sufficient to prove that such signature has been given understanding the content thereof. That has to be proved. The person who had briefed the content should have been examined. The document containing signature on related terms should be produced. No document would show that such and such terms were explained to complainant and thereby obtained signature on these terms separately. On absence of such sort of evidence on the part of opposite party it is not justifiable to discard the evidence adduced by complainant and disbelieve them.
Taking into consideration the facts and circumstances of the case there is no reason to disbelieve the complainant and we hold that there is deficiency in service on the part of opposite party to make aware of the complainant the terms and conditions of the policy. Moreover, in absence of non-examination of persons who allegedly persuaded the complainant with assurance of a return of `1,00,000 after one year of completion of three years payment of premium, it cannot be disbelieved the complainant to say that there was no such assurance. It is pertinent to note that opposite parties have not say about what were actually attracted complainant to take policy in absence of such an alleged promise. The nature of evidence adduced by opposite party naturally leads to presume that there is substance in the allegation raised by the complainant. Hence we hold that opposite party is liable to pay an amount of `1,00,000 to complainant as insurance amount. He is also entitled for an amount of `1,000 as cost of this litigation.
In the result, the complaint is allowed directing the opposite parties to pay an amount of `1,00,000 (Rupees One Lakh only) as insurance amount together with `1000 (Rupees One Thousand only) as cost of this litigation within one month from the date of receipt of this order failing which complainant shall be entitled for the said amount with interest @ 8% from the date of filing of this complaint till realization of the amount. Complainant is also at liberty to execute the order after the expiry of 30 days of this order as per the provisions of Consumer Protection Act.
Dated this the 19th day of December, 2013.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Initial premium deposit receipt dated 06.01.2009.
A2. Renewal premium deposit receipt dated 18.05.2009.
A3 to A11. Policy deposit receipts.
A12. Renewal premium deposit receipt dated 01.03.2011.
A13. Statement of account dated 07.11.2012.
Exhibits for the opposite party
B1. Policy
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. P.B. Ganapathy
/forwarded by order/
SENIOR SUPERINTENDENT
