Punjab

StateCommission

A/904/2015

M/S Kotak Mahindra Old Mutual Life Insurance Company Ltd. - Complainant(s)

Versus

Shamsher Singh - Opp.Party(s)

Karandeep Singh Cheema

17 Feb 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.904 of 2015

 

                                                          Date of Institution: 14.08.2015

                                                          Order Reserved on :16.02.2017

                                                          Date of Decision:   17.02.2017

 

1.      M/s Kotak Mahindra Old Mutual Life Insurance Co. Ltd, First   Floor, Building Adjoining Electricity Sub Station, Banga Road,       Nawanshahr, through its Branch Manager.

 

2.      M/s Kotak Mahindra Old Mutual Life Insurance Co. Ltd.,           Registered Office 9th Floor, Godrej Coliseum, Behind Everad   Nagar, Sion (East) Mumbai 400 022, through its Branch       Manager.

 

 

                                                                   Appellants/Opposite parties        

             Versus

 

Shamsher Singh s/o Sh. Jhalman Singh, resident of village Ghamour, Tehsil Balachaur, District Shaheed Bhagat Singh Nagar.

 

 

                                                                    Respondent /Complainant

 

First Appeal against order dated 09.06.2015 passed by the District Consumer Disputes Redressal Forum,  SBS Nagar.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

         

Present:-

          For appellant                : Sh.K.S.Cheema, Advocate

          For respondent            : Ex-parte

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants have directed this appeal against order dated 09.06.2015 of District Forum SBS Nagar, accepting the complaint of respondent  of this appeal by directing appellants to pay the amount of Rs.99,999/- along with interest @ 9% per annum w.e.f 06.06.2009 till payment, besides Rs.10,000/- as litigation expenses and Rs.10,000/- as compensation for mental harassment. The respondent of this appeal is the complainant in the original complaint before District Forum and appellants of this appeal are OPs therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on inducement of agents of OPs namely Sudhir in June 2009, the complainant was persuaded to invest Rs.1 lac each in five equal installments, which would be doubled, as premium after five years with the option to withdraw it after two years with interest @ 12% per annum. The complainant paid first premium on 05.06.2009 and was issued policy bearing no. 01610033. He was misrepresented by the agents of OPs and rather was issued policy for 20 years. He paid second premium in ignorance in June, 2010. He came to know about said misrepresentation practiced upon him at the time of payment of third premium in June, 2011. He approached Ops for refund of the amount of premium with interest, but to no effect. After expiry of  year, complainant contacted officials of OPs and came to know that his money has been invested into Kotak Market Scheme by OPs without his consent. The OPs agreed to return the amount after one year i.e. June 2011, but they failed to do the same. The complainant has, thus, filed complaint against OPs in this regard.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. Preliminary objections were taken in the written reply that complaint is barred by time and is not competent under Section 24-A of CP Act. The Forum has no jurisdiction to entertain the present complaint in the absence of any deficiency in service on the part of OPs. Any misrepresentation allegedly practiced upon complainant was vehemently denied in the written reply by OPs. The complaint is alleged to be not maintainable. It was averred that complainant willfully went in for policy by paying premium. The policy documents were dispatched to him on 13.06.2012 through speed post, vide AWB No. ED864169045IN and same was received by him and this fact is not disputed. He failed to exercise the option of free look period to opt out of policy within 15 days  period therefrom.  It was further averred that the complainant paid premium of policy, which was issued for 20 years and he also paid second premium in June 2010. The premium has been invested by OPs in the market and it amounts to speculative gain. On merits, it was averred that term of policy was 20 years. Lock in period was three years and policy stood lapsed after two years for non-deposit of third premium by the complainant. As per policy's terms and conditions, the policy was not got revived by the complainant. OPs controverted the averments of the complainant on merits and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.CW-1/A   along with copies of documents Ex.C-1 to Ex.C-2.  As against it; OPs tendered in evidence affidavit of Shakil Ahmad Senior Manager Legal Manager of Kotak Mahindra Old Mutual Life Insurance Ltd Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-7.  On conclusion of evidence and arguments, the District Forum SBS Nagar accepted the complaint of the complainant by virtue of order dated 09.06.2015. Dissatisfied with the order of the District Forum SBS Nagar dated 09.06.2015, opposite parties now appellants, carried this appeal against the same.

5.      The complainant being respondent of this appeal was set exparte in this appeal, vide order dated 15.09.2016.

6.      We have heard counsel for appellants at considerable length as respondent in this appeal is exparte and have also examined the record of the case. Firstly, we touch the point, as to whether the detailed policy terms and conditions were received by the complainant in this case or not. The District Forum answered this question in the negative by observing that policy terms and conditions were not supplied to the complainant. The counsel for the appellant has challenged the findings of the District Forum on this point being erroneous and against facts. The submission of counsel for the appellant is that pleadings are the foundations of the case of the parties and it carries weightage. The parties are strictly bound by their respective pleadings and they cannot lead any evidence beyond the pleadings. It is evident from perusal of para no.3 of the complaint, wherein complainant specifically admitted this fact that he was issued policy no. 01610033. This admission made by the complainant contained in para no.3 of the complaint is that he has received the policy on 05.06.2009 in this case. The admission of the complainant contained in the pleadings is substantive evidence and can be relied upon by the Forum to determine the rights and liabilities of the parties. No evidence contrary to this admission by the complainant is of any consequence. This admission has not been withdrawn nor proved to be erroneous being against facts by the complainant in this case. The District Forum overlooked this specific admission of the complainant, contained in para no.3 of the complaint admitting this fact that policy was issued to him. The affidavit of the complainant produced on record to the contrary loses its significance in the presence of this pleading in the complaint. The complainant himself filled in the proposal form Ex.OP-1 with regard to Unit Linked Policy. The proposal form Ex.OP-1, as produced by OPs is duly signed by complainant in English. A person who signs in English is supposed to be conversant with the terms and conditions of the document. There is nothing on the record proving any misrepresentation, other than bald submission of the complainant on the record. This is not sufficient in our opinion to prove the contention of the complainant, unless it is corroborated by other evidence aliunde. The complainant signed Unit Linked Policy proposal form Ex.OP-1 in English and also suffered declaration in this regard. Ex.OP-2 is receipt of total payment of premium of Rs.99,999/- by the complainant to OPs. Ex.OP-3 is renewal premium payment notice. Ex.OP-3/A  is lapsation of policy terms and conditions for not reviving it for payment of third premium. Ex.OP-4 is foreclosure intimation of policy at end of revival period sent to complainant. Ex.OP-5 is notice sent to complainant. Ex.OP-6 is letter addressed to complainant giving the option for exercising the option of free look period of 15 days from the date of receipt of policy. Ex.OP-7 is letter sent by OPs to complainant with regard to cancellation of the policy.

7.      From appraisal of above-referred evidence on the record and hearing respective submissions of counsel for parties, we conclude that Unit Linked Policy was taken by the complainant as per own pleadings, when he paid first premium on 05.06.2009. There is admission of the complainant that he paid second premium in June 2010 and third premium was due in June 2011. The complainant approached the OPs in June 2012 for refund of the amount by means of withdrawal of this policy. The letter to this effect is Ex.OP-7 dated 11.09.2012, that policy has been issued in accordance with requirements, as per proposal of complainant duly signed by him. The policy contained free look period of 15 days for its cancellation at the option of the offerer. The OPs regretted their inability to consider the request of the complainant for cancellation of the policy, as policy had lapsed for non-payment of premium. In the presence of admission of complainant contained in para no.3 of the complaint, as well as, in the affidavit that policy terms were issued to him, we do not find any force in the case of the complainant that policy was not issued to him till 2012 by the OPs. On the other hand, OPs also specifically stated in the written reply that policy documents were dispatched to the complainant 13.06.2012 through speed post, vide AWB No. ED8641690451N. There was no question of depositing second premium by complainant, had policy not been received by him and he wanted to have it cancelled. We can raise  this inference from this fact that when complainant had already deposited two premium, he was in receipt of policy's terms and condition, otherwise there was no question of payment of second premium by the complainant to OPs in the year 2010. The OPs again supplied policy on 13.06.2012 on insistence of complainant. From perusal of terms and conditions of policy clause 4 lays down that in case the premiums for the first three policy years are not paid within the grace period, policy lapses from the due date of the first unpaid premium. Clause 6 pertains to surrender:policy can be surrendered only after completion of three-policy payment of annual premium, which is lock-in-period. IRDA Regulations 2010 would not be applicable in this case, because policy pertains to 05.06.2009 and above Regulation has not applicability with retrospective effect from 01.07.2010 when they were published in the official gazette. The complainant cannot get benefit of these regulations, which would not be applicable with expost facto. Consequently, we hold that on account of lapsation of the policy, the complainant is not entitled to refund of the entire premium amount with interest and the compensation for mental harassment and litigation expenses as awarded by District Forum. The order of the District Forum is, thus, against the own admission of the complainant contained in para no.3 of the complaint, wherein he admitted  this fact of issuance of policy to him and payment of first premium on 05.06.2009 and payment of second premium in June 2010. The fault was committed at the time of payment of third premium in June 2011 by the complainant. Policy stood lapsed and subsequent letter for cancellation of policy by complainant  loses its significance. The parties are strictly bound by the terms and conditions of the policy document and they cannot get out of the same.

8.      As a result of our above discussion, order passed by District Forum is not sustainable in this appeal and same is revered in this appeal. Appeal of the appellant is accepted by setting aside the order of District Forum resulting into dismissal of the complaint.  

9.      The appellant no.2 had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.99,000/- in compliance of the order of this Commission, vide receipt dated 30.09.2015. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant no.3 of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.

10     Arguments in this appeal were heard on 16.02.2017 and the order was reserved. Copies of the order be communicated to the parties as per rules.

11     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                              (J.S GILL)

                                                                               MEMBER

 

                                                                                                         

February `17, 2017                                                             

(ravi)