Chandigarh

StateCommission

A/130/2015

Bajaj Allianz - Complainant(s)

Versus

Sarabjit Singh - Opp.Party(s)

Varun Chawla, Adv.

10 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	130 of 2015
Date of Institution	:	08.06.2015
Date of Decision		10.08.2015

 

Bajaj Allianz through its Branch Manager, SCO No.215/217, 4^th Floor, Sector 34-A, Chandigarh

(through Mr. Rajinder Singh Kalsi, Zonal Legal Manager (North), Bajaj Allianz Life Insurance Co. Ltd., SCO-215-217, Sector 34, Chandigarh).

 ……Appellant/Opposite Party No.1

Versus

(1)    Sh. Sarabjit Singh son of Sh. Karnail Singh r/o Nano Majra, #21, Tehsil and District Mohali, Punjab.

…..Respondent/Complainant.

(2)    Mandeep Kaur, Agent (Agent Code) 1000226278, Bajaj Allianz, SCO No.215/217, 4^th Floor, Sector 34-A, Chandigarh.

Now: Resident of H.No.695, HIG Flats, Phase IX, Mohali.

(Service of respondent No.2 dispensed with vide order dated 14.07.2015).

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

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

 

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

                SH. DEV RAJ, MEMBER.

               

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

Sh. Devinder Kumar, Advocate Proxy for Sh. Jagseer 

 Singh Jassi, Advocate for respondent No.1.

Service of respondent No.2 dispensed with vide order  

dated 14.07.2015.         

 

PER DEV RAJ, MEMBER

            This appeal is directed against the order dated 10.4.2015 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant (now respondent No.1) and directed Opposite Party No.1 (now appellant) and Opposite Party No.2, as under:-

“13]      In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs jointly & severally. The Opposite Parties are directed jointly & severally as under:-

[a]  The Opposite Party No.1 is directed to comply with the provisions of Clause No.9 of the Treatment of Discontinued Unit Linked Insurance Policies Regulation dated 1st July, 2010 in case of Policy bearing No.0056580860 issued in the name of the complainant;

[b]  The Opposite Party No.1 is also directed to refund an amount of Rs.1,99,025/- along with interest @9% per annum since the date of its receipt till it is paid to the complainant;

[c]   The OPs No.1 & 2 are saddled with consolidated amount of compensation to the tune of Rs.25,000/- and litigation expenses of Rs.5000/- each.

            The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount payable to the complainant as per sub-para [a] from 1.7.2010 till it is paid; on the amount of Rs.1,99,025/- from the date of its receipt till it is paid as well as on the compensation amount of Rs.25,000/- from the date of this order till it is paid, apart from paying litigation expenses of Rs.5000/-.”

2.         The facts, in brief, are that the complainant an agriculturist, by profession, had sold his property and got some money. It was stated that Opposite Party No.2 approached the complainant and told him about the Policy with only one time payment. It was further stated that the complainant believed the representation of Opposite Party No.2, as well as brand name of Opposite Party No.1 and, as such, paid Rs.2,00,000/- as one time payment for the Policy (Annexure C-1).  It was further stated that Opposite Party No.2, told that it was only one time payment and the complainant would receive double of the deposited amount after three years.  It was further stated that when the complainant asked for the Policy document, he was told to take another Policy by making payment of Rs.1,00,000/-, which he took under pressure. 

3.         It was further stated that the complainant never knew one identifier on the said Policy, who signed it as “Dyal”.  It was further stated that there was no regular income of the complainant and he had some money  due to the sale transaction he made. It was further stated that Opposite Party No.2 pocketed Rs.2,00,000/- of the complainant with Opposite Party No.1, as there was no Policy in the name of the complainant for Rs.2,00,000/- and only one Policy of Rs.1,00,000/- was in the name of complainant bearing No.0056580860.  It was further stated that when the complainant visited the office of the Opposite Parties, for getting the amount of Rs.2,00,000/- deposited by him, in the name of Opposite Party No.1, as well as the Policy money, he was threatened and told that no amount was to be returned to him.  It was further stated that the complainant sent legal notices dated 01.04.2013 (Annexures C-3 & 4) to the Opposite Parties, but no avail. It was further stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

4.         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, seeking directions to the Opposite Parties, to refund the amounts already deposited by the complainants alongwith interest; not to compel  the complainant to pay any further premium; pay Rs.1,00,000/- as compensation for mental suffering besides any other direction, which the District Forum deemed proper, in the facts and circumstances of the case.

5.         Opposite Party No.1, in its written version, stated that the complainant, being a prudent man, himself approached it and after fully understanding the investment risks of Unit Linked Insurance Plan, himself out of his free will, proposed for the said Policy (Capital Unit Gain) and opted to pay regular yearly premiums @Rs.1,00,000/- for premium paying term of 19 years carrying sum assured of Rs.9.50 lacs. It was further stated that the complainant admittedly received the Policy document containing the terms & conditions of the contract. It was denied that the complainant was ever assured that the Policy was a single premium Policy or a one-time premium Policy.  It was also denied that any amount of Rs.2.00 lacs was received from the complainant by Opposite Party No.1 and, therefore, the question of issuance of Policy did not arise. It was further stated that the proposal for insurance was signed by the complainant in English language and he had signed in the presence of a witness.  It was further stated that it was for the complainant to prove that he did not know the name of the person who stood as his witness in the proposal for insurance submitted by him only.  It was further stated that the proposal No.0057397432 dated 11.7.2007 submitted by the daughter of the complainant namely Harmeet Kaur was rejected due to non-compliance of the mandatory requirements. An amount of Rs.1,99,205/- after deducting Rs.975/- from Rs.2 Lacs, received as proposal amount, from Harmeet Kaur, was refunded to her vide Cheque No.15265, dated 22.1.2008. 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.

6.         Opposite Party No.2, did not turn up despite service, hence proceeded exparte by the District Forum vide order dated 28.2.2014.

7.         The Parties led evidence, in support of their case.

8.         After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, against the Opposite Parties, as stated above, in the opening para of the instant order. 

9.         Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

10.       Since, respondent No.2, who was Opposite Party No.2, in the District Forum, was exparte, therefore, her service was dispensed with, by this Commission, for the purpose of the present appeal, vide order dated 14.07.2015.

11.       We have heard the Counsel for the appellant Proxy Counsel for respondent No.1, and have gone through the evidence, and record of the case, carefully.

12.       The Counsel for the appellant/Opposite Party No.1, submitted that the District Forum gravely erred, in law, while passing the impugned order, wherein the relief granted to respondent No.1/complainant, was beyond the terms and conditions of the contract entered into between the parties as well as the guidelines issued by the IRDA from time to time. He further submitted that the District Forum failed to appreciate that the Treatment of Discontinued Unit Linked Insurance Policies Regulations dated 1.7.2010 (hereinafter to be referred as Regulations of 2010) were applicable to the policies/product approved by the IRDA after 01.07.2010 whereas the Policy No.0056580860 with commencement date as 21.08.2007 was issued much prior to the date of Notification dated 01.07.2010. He further submitted that the District Forum, thus, wrongly directed it to refund the amount to the complainant, under the said Policy as per Regulations of 2010. He further submitted that the contract of insurance was terminated in accordance with the terms and conditions of the Policy and nothing was liable to be paid towards surrender value.

13.       He further submitted that the District Forum also failed to appreciate that Ms. Harmeet Kaur, who was major and competent to enter into contract, had submitted a proposal bearing No.0057397432 on 11.07.2007 for insurance dated 20.11.2007, on her life, but the said proposal was subsequently rejected and an amount of Rs.1,99,025/- i.e. (Rs.2,00,000.000 minus   (-) Rs.975.00 as medical expenses) was refunded to her vide cheque No.15265 dated 22.01.2008, which was encashed on 24.04.2008 as per the Bank records of the appellant/Opposite Party No.1. He further submitted that the District Forum, wrongly concluded that the appellant/Opposite Party No.1 did not submit any proof of dispatch or any conclusive proof of refund of the said amount of Rs.1,99,025/- whereas Ms. Harmeet Kaur did not deny receipt of the aforesaid amount. He further submitted that respondent No.1/complainant even did not file any affidavit of Ms. Harmeet Kaur that she did not encash the said cheque. The Counsel placed reliance on Grasim Industries Ltd. Vs. Aggarwal Steels, (2010) 1 SCC 83, The Oriental Insurnace Co. Ltd. Vs. Sony Cheriyan, (1996) 6 SCC 451, General Assurance Society Ltd. Vs. Chandumull Jain and Anr., (1966) 3 SCR 500, Surajmal Ram Niwas Oil Mills Pvt. Ltd. Vs. United India Insurance Company Ltd., 2010 (10) SCC 567, Life Insurance Corporation of India and others Vs. Shiva Prasad Dass (Dr.) and others, 2008 (4) CPJ 157 NC.  

14.       The Counsel for respondent No.1/complainant submitted that the Regulations of 2010, were applicable to the Policy bearing No.0056580860, in question, as it (Policy) continued after the aforesaid Regulations of 2010 came into force, on 01.07.2010. He further submitted that, as such, the District Forum rightly directed the appellant/Opposite Party No.1 to comply with the provisions of Clause No.9 of the Regulations of 2010 in respect of this Policy. He further submitted that since the appellant/Opposite Party No.1 failed to bring, on record, any proof with regard to payment of Rs.1,99,025/-, in respect to the second proposal form, the District Forum rightly ordered it (appellant/Opposite Party No.1) to refund the said amount with interest. He further submitted the order of the District Forum, being legal and valid, is liable to be upheld.

15.       It is evident from the Policy Schedule (Annexure C-2) that respondent No.1/complainant subscribed to Policy No.0056580860, namely Bajaj Allianz Capital Unit Gain, commencing from 21.08.2007, for a period of 19 years, for the sum assured, to the tune of Rs.9,50,000/-, with yearly premium of Rs.1,00,000/-, meaning thereby that he was required to pay a sum of Rs.1,00,000/- yearly, for a period of 19 years regularly, from the date of inception of the same (Policy). It is also not disputed that the complainant had paid only first yearly premium of Rs.1,00,000/- and, thereafter chose not to pay the renewal premiums, as a result whereof, the said Policy lapsed on 20.8.2010.

16.             The question, that falls for consideration, is, as to whether, the Policy, in question, acquired any surrender value, after the payment of first yearly premium, in respect of the Policy, in question. For the purpose of deciding this question, reference to the terms and conditions of the Policy Annexure R-7, at page 59 of the District Forum file, is required to be made. Clause 6 (c) of the terms and conditions of the Policy, read as under:-

“(c). Surrender value.

1. The Surrender Value if any, is payable only after first three Policy years.
2. The surrender value payable will be equal to the Regular Premium Fund Value and the Top-up Premium Fund Value less the Surrender Charges as per Section 37(f).
3. The Company shall thereafter terminate the Policy upon payment of the full surrender value.”

It is evident from the afore-extracted Clauses 6 (c) of the Policy that the surrender value, if any, was payable only if the premiums for the first three Policy years were paid. However, in the instant case, respondent No.1/complainant, admittedly, paid the first yearly premium of Rs.1,00,000/- and did not pay the future premiums. As such, the Policy, in question, did not acquire any surrender value and respondent No.1/complainant was not entitled to any amount qua this Policy.

17.             The District Forum relied upon the provisions of the Treatment of Discontinued Unit Linked Insurance Policies, Regulations dated 1^st July 2010, for coming to the conclusion that the appellant/Opposite Party No.1, was required to comply with the provisions of Clause 9 of the Regulations of 2010 in the case of Policy No.0056580860. It may be stated here, that perusal of the Policy Schedule (Annexure C-2), clearly goes to show that the same had been issued, in favour of the complainant, in July/August 2007. Whereas, on the other hand, perusal of the aforesaid Regulations of 2010, clearly shows that the same came into force, on 01.07.2010, the date of publication thereof. Thus, the said Regulations had no retrospective effect, and, the same had prospective effect i.e. w.e.f. 01.07.2010. Under these circumstances, since the Policy had been issued before these Regulations came into force, the same could not be dealt with, under the same (Regulations 2010). The District Forum, was, thus, wrong in holding that Clause 9 of the Regulations of 2010 was squarely applicable in case of Policy No.0056580860 and the failure on the part of the appellant/Opposite Party No.1 in intimating respondent No.1/complainant about the status of the Policy, in question, was deficiency, in rendering service. The findings of the District Forum, in this regard, being perverse, are reversed. 

18.       As regards another Policy, the Counsel for appellant/Opposite Party No.1 on 17.07.2015, stated at the bar that since the proposal form, filled in by Ms. Harmeet Kaur daughter of Sh. Sarabjeet Singh submitted on 11.07.2007, was rejected on some grounds, and an amount of Rs.1,99,025/-, out of the total paid up amount of Rs.2 Lacs, was refunded to her (Ms. Harmeet Kaur), in support whereof, it had placed, on record, of appeal file, Cheque Paid Certificate (Annexure A-1) issued by the HDFC Bank Ltd. vide letter dated 04.06.2015, according to which, cheque bearing No.15265 in the name of Miss Harmeet Kaur for Rs.1,99,025/- was paid on 24.04.2008 from Account No.00070350001123. This certificate/confirmation was issued at the specific request of the appellant/Opposite Party No.1. The Counsel for the appellant also submitted at the bar, which submission was incorporated in the order dated 17.07.2015, that the amount of Rs.1,99,025/-, aforesaid, was credited to the account of Ms. Harpreet Kaur in Axis Bank, SCF No.113-114, Phase 7, Mohali. On the other hand, respondent No.1/complainant, filed affidavit of Ms. Harmeet Kaur, in the appeal to the effect, that she never opened any account in AXIS Bank, SCF-113-114, Phase 7, SAS Nagar, Mohali, Punjab till date and she did not receive any amount from the appellant/Opposite Party No.1. No affidavit in rebuttal to the affidavit of Ms. Harmeet Kaur was filed by the appellant/Opposite Party No.1.

19.       The Counsel for the appellant/Opposite Party No.1 submitted that being an old case, no record is available with the appellant/Opposite Party No.1, as to by which mode, the cheque/demand draft was sent to Ms. Harmeet Kaur and on which date. Further, no affidavit in support of Cheque Paid Certificate dated 04.06.2015 (Annexure A-1), placed, on record, by the appellant/Opposite Party No.1, has been filed by the Bank particularly the Issuing Officers viz. Rachna Godha, Deputy Manager and Rajesh Shiravale, Manager, in support of the said certificate. Even otherwise, no importance can be given to this certificate, in the absence of any proof with regard to the mode and date on which the cheque, in question, was sent to Harmeet Kaur. In our considered opinion, the appellant/Opposite Party No.1, has failed to conclusively establish that an amount of Rs.1,99,025/-, out of the total paid up amount of Rs.2 Lacs, was actually refunded to Ms. Harmeet Kaur. Thus, respondent No.1/complainant was very much entitled to this amount alongwith interest, which the District Forum rightly ordered vide the impugned order.

 

20.       However, the consolidated amount of compensation to the tune of Rs.25,000/-, awarded by the District Forum, against Opposite Parties No.1 and 2, being on the higher side, needs to be suitably reduced. In our considered opinion, consolidated compensation in the sum of Rs.15,000/-, if granted, would be just and adequate, to meet the ends of justice. The litigation expenses to the tune of Rs.5,000/-, awarded by the District Forum, are just and adequate. To this extent, the impugned order passed by the District Forum needs to be modified.  

 

21.       Further, the interest @18% per annum allowed by the District Forum, in the event of non-compliance of the order within the stipulated period of 45 days, is also on the higher side. In our considered opinion, interest @12% per annum, if awarded, shall be just and adequate. To this extent also, the impugned order passed by the District Forum needs to be modified.    

 

22.       No other point was urged by the Counsel for the parties.

23.       In view of the aforesaid discussion, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified to the extent as under: -

(i)      The appellant/Opposite Party No.1, is directed refund an amount of Rs.1,99,025/- alongwith interest @9% per annum, from the date of receipt till actual payment to respondent No.1/complainant, within a period of 45 days from the date of receipt of a certified copy of the order,

(ii)     The appellant/Opposite Party No.1 & Opposite Party No.2 are directed to pay consolidated amount of compensation of Rs.15,000/-, instead of Rs.25,000/- awarded by the District Forum, within a period of 45 days from the date of receipt of a certified copy of the order,

(iii)    The appellant/Opposite Party No.1 & Opposite Party No.2 are also directed to pay Rs.5,000/- to respondent No.1/complainant, as cost of litigation, as awarded by the District Forum.

(iv)     The order shall be complied with by the appellant/Opposite Party No.1, and Opposite Party No.2, within the aforesaid stipulated period of 45 days from the date of receipt of its certified copy, failing which, the appellant/Opposite Party No.1 shall be liable to pay the amount mentioned at Clause (i), above, alongwith interest @12% p.a., instead of 18% p.a., from the date of filing the complaint i.e. 22.05.2013 till realization whereas the amount of compensation viz. Rs.15,000/-, as mentioned at Clause (ii) above, shall be payable by the Opposite Parties, alongwith the same rate of interest @12% per annum from the date of default till it is paid, besides payment of cost of litigation of Rs.5,000/-.

(v)  All other directions given, and reliefs   granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.

24.       Certified copies of this order, be sent to the parties, free of charge.

25.       The file be consigned to the Record Room, after due completion.

Pronounced.

August 10, 2015

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

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STATE COMMISSION

(First Appeal No.130 of 2015)

 

 

[Bajaj Allianz Vs. Sh. Sarabjit Singh and another]

 

 

Argued by:

 

Sh. Varun Chawla, Advocate for the appellant.

Sh. Devinder Kumar, Advocate Proxy for Sh. Jagseer Singh Jassi, Advocate for respondent No.1.

Service of respondent No.2 dispensed with vide order dated 14.07.2015.            

 

Dated the 10^th day of August, 2015

 

ORDER

 

                Alongwith the appeal, the appellant/Opposite Party No.1 had moved an application under order XLI Rule 27 read with Section 151 of CPC for placing, on record, additional evidence in the shape of Annexure A-1, to establish that an amount of Rs.1,99,025/- on account of rejection of the proposal form, in question, was paid to Ms. Harmeet Kaur daughter of respondent No.1/complainant.

2.             Reply to the aforesaid application, was filed by respondent No.1/complainant, stating therein that the aforesaid amount was never received by Ms. Harmeet Kaur and, as such, the said amount is still payable by the appellant/Opposite Party No.1.

3.             Arguments, on the application aforesaid, were heard.

4.             We are of the considered view that the document sought to be placed, on record, by the appellant/Opposite Party No.1 by way of additional evidence i.e. Annexure A-1 is necessary for the just and proper decision of the case. The same is, accordingly, allowed and the document aforesaid, sought to be placed, on record, are taken on record.      

5.             Arguments, in the main appeal, already heard.

6.             Vide our detailed order of the even date, recorded separately, this appeal has been partly accepted with no order as to costs. The order of the District Forum has been modified.

 

 

Sd/- (DEV RAJ) MEMBER

Sd/- (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

 

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