Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/OP No. 1 challenging the judgment and order dated 27.03.2018 passed by the Ld. District Forum, Kolkata Unit—II in Complaint Case No.CC/129/2017 allowing the complaint on contest in part with cost. The OPs of the Complaint Case were directed to pay to the Complainant Rs. 8,33,000/- along with interest @ 7% p.a. from the date of filing of the case till realization along with litigation cost of Rs. 2,000/-.
The OPs were further directed to comply with the order within 30 days from the date of the impugned order failing which, as ordered, the OPs were to pay a fine of Rs. 100 per day and the cumulative amount of fine should be deposited to the Ld. District Forum.
Further, the Complainant was given liberty to put the order into execution for non-compliance of the same by the OPs.
The case of the Respondent No. 1/Complainant was that the Respondent No. 1/Complainant purchased five number of policies, total value being Rs. 8,33,000/-, sponsored by the appellant/OP No. 1 Insurance Company through the agent of the said Insurance Company, being the Respondent/OP No. 2. The policies, as alleged, were missold to the Respondent No. 1/Complainant projecting those as one time ones when, on the receipt of the policy papers, it revealed that the Respondent/Complainant was liable to pay policy premium of successive seven years and the matured value of the policies he was supposed to get on expiry of 12 years.
The Respondent No. 1/Complainant, being a retired school teacher, had hardly any capacity to pay a huge amount of Rs.8,33,000/- per year as premium. The Respondent/OP No. 2, as contended, projected a maximized financial potential of the Respondent No. 1/Complainant filing along with his policy paper a document in the form of ITR—V, A.Y. 2014-2015, unauthenticated and allegedly not signed by the Appellant/Complainant.
Sensing that some unlawful trade was practiced upon him by the Appellant/OP No.1, the Respondent No. 1/Complainant sent one petition to the Appellant/OP No. 1 for refund of the entire amount of policy premium paid to him which the Appellant/OP No. 1 refused to refund as the Respondent/OP No. 1 failed to pray for the refund within the free look period of 15 days from the date of receipt of the policy papers and also for the policies being lapsed for non-renewal of policy paying subsequent premium.
The Respondent No. 1/Complainant then approached the Consumer Affairs Department alleging the Appellant/OP No. 1 of mis-selling of policy and also of forgery of signature on the policy documents. The mediation of the Consumer Affairs Department in a meeting held on 23.12.2016 being gone in vain, the Consumer Affairs Department advised the Appellant/Complainant to refer the matter before the higher authorities.
The Respondent No. 1/Complainant then filed the complaint before the Ld. Ombudsman of the Insurance Company who dismissed the complaint issuing an award with observations that allegations of forgery and fabrication need thorough investigation and accordingly, the Complainant to approach the appropriate form.
The Respondent No. 1/Complainant, being aggrieved, resorted to the legal step filing the complaint before Ld. District Forum. Impugned judgment and order which is under challenge in the instant Appeal arose from the said Complaint Case.
Heard Ld. Advocates appearing on behalf of the contesting sides.
The Ld. Advocate appearing on behalf of the Appellant/OP No. 1 opposed the contention of the Respondent No. 1/Complainant to the effect that the Respondent No. 1/Complainant was mis-brifed about the policy conditions.
That he was aware of the policy conditions came apparent from the fact that the Respondent No. 1/Complainant took policies on different dates spanning over more than one month. A person, as he continued, could be befooled for one time only. It was not possible for a person to befool a person five times on the same issue.
The Ld. Advocate continued to submit that the last two of the five number of policies in question were issued on 29.01.2016 and the first letter intimating Respondent No. 1/Complainant’s intention of not running the policy was received on 02.04.2006 and thereafter, the refund of the premium was impressed upon.
As continued further, the policies were all lapsed due to non-payment of any subsequent premium. The Respondent No. 1/Complainant, therefore, has no claim which the Ld. District Forum failed to appreciate while passing the arbitrary impugned judgment and order which should be set aside allowing the instant Appeal.
The Ld. Advocate appearing on behalf of the Respondent No. 1/Complainant, per contra, submitted that it was not a fact that the policy conditions were properly explained to the Respondent No. 1/Complainant. Referring to the memo of Appeal at para 6 (II), the Ld. Advocate submitted that the formalities of sending of the copies of the proposal form signed and submitted by the policy holder so as to enable the policy holder to re-examine the replies to the various questions and other details as well, as referred to therein by the Appellant/OP No. 1, were never followed.
The Ld. Advocate referred further to para- V at running page 9 of the memo of Appeal and contended that the Respondent No. 1/Complainant was never called for Principal Issuance Verification (PIVC) as claimed in the said para.
Ld. Advocate also drew notice to running page 35 para 15, being the copy of the WV filed by the Appellant/OP No. 1 claiming that the Appellant/OP No. 1 had followed the Clause 6(2) of the IRDA and sent the policy documents to the policy holders under a forwarding letter when, as contended, the fact remained that policy documents were never sent to the Respondent No. 1/Complainant under any forwarding letter.
As contended, it was peculiar of the Appellant/OP No. 1 that it, at one hand, denied the liability for any action taken by its agent or broker as reflected at para 19 and para 22 in the WV filed by it before the Ld. District Forum and on the other hand, as it would reveal from the said WV at para 25, it had acknowledged receipt at the policy information and documents furnished by the policy holders in good faith through the broker. Referring further to running page 42, the Ld. Advocate pointed out that the policy issued by the Appellant/OP No. 1 recorded the name of the Respondent/OP No. 2 as its agent/employee with its broker code reflecting a distinct relationship between the Appellant/OP No. 1 and Respondent/OP No. 2. As contended, the Appellant/OP No. 1, being the principal, cannot deny the liability for the lapse made by the Respondent/OP No. 2, its agent.
Ld. Advocate referred to running page Nos. 115 and 116 being two different ITR (V) of the Respondent No. 1/Complainant for the same assessment year 2014-2015 showing therein the total income as Rs. 1,72,890/- and Rs. 16,55,000/- respectively. As contended, the signature of the Respondent No. 1/Complainant in the ITR at running page 116 was forged only to project him a person belonging to higher income group to justify the capacity of the Respondent No.1/Complainant to afford the policy premium.
With the above submission, the Ld. Advocate has prayed for the Appeal to be dismissed affirming the impugned judgment and order.
We have perused the papers on record and also taken into consideration the submissions of the Ld. Advocates appearing on behalf of both sides.
It appeared that the Appellant/OP No. 1 rejected the prayer for refund of the insurance premium mainly on the grounds as under:
- The Respondent No. 1/Complainant did not pray for cancellation of policy or refund within a period of 15 days from the date of receipt of the policy papers, the free look period.
- The policies, on expiry on the date of payment of next premium, were all lapsed because of non-payment of premiums.
It further appeared that the Ld. Ombudsman confirmed the stand of the Appellant/OP No. 1 Company on one added reasons of the Respondent No. 1/Complainant’s allegation of forgery by the Respondent/OP No. 2, being the agent of the Appellant/OP No. 1 by putting his signature on ITR-(V) showing higher income, running page 116, when the Respondent No. 1/Complainant’s income was much lower as it would be evident from running page 115 being the original ITR—V.
Further, acknowledging the fact that there was no renewal of policy through payment of subsequent policy premium and also acknowledging the fact that the Respondent No. 1/Complainant did not bring to notice his intention of cancellation of the policy or refund of the policy premium within the permissible period of 15 days, being the free look period provided as per policy conditions, we did not deny the fact that there was no proper briefing about the policy conditions to the Respondent No. 1/Complainant. The acceptance of the policy papers initiated by the Respondent/Op No. 2 whose name was recorded in the policy itself helped us arrive at a correct assessment that the Respondent/OP No. 2 was the agent of the Appellant/OP No. 1. It does not need more elaboration to assume that a retired school teacher will not adopt policies requiring payment of total premium of Rs. 8,33,000/- per year for consecutive 7 years since the date of initiation of policy to get its matured value on expiry of 12 years at an age when, even if he survives, the receivable amount will almost be of no use for him. We are, therefore, convinced with the policy conditions were either not briefed or misbriefed to the Respondent No. 1/Complainant to the Respondent/OP No. 2, the agent of the Appellant/OP No. 1 and the Appellant/OP No. 1 being the principal could not and should not avoid liability of the lapses on the part of his agent. The policies, in the above light, were absolutely one sided ones in favour of the Appellant/OP Insurance Company and should be treated as void ab initio.
As regards allegation of forgery, we could not derive any inference because in the plain vision no tangible difference could be seen between the signatures in the ITR—(V) of the same assessment year. Further the offence, if at all committed, did not leave any evidence so as to enable us ascertain the veracity of the allegation. The Appellant/OP No. 1 too denied the charge saying the papers supplied by the Respondent No. 1/Complainant himself reached it through Respondent/OP No. 2. We rule out the charge of forgery since in no case it can be an act of the Appellant/OP No. 1 who was responsible for the refund prayed for.
In view of the above, we are convinced that the premium amount should be refunded to the Respondent No. 1/Complainant but there should be some deduction from the said amount not exceeding 10% as charges for purchasing the policies. We, however, are not inclined to pay any cost and compensation nor do we intend to pay any cost for penal damage as directed in the impugned order.
Hence,
Ordered
that the Appeal stands allowed in part. The Appellant/OP No. 1 should refund an amount of Rs. 7,49,700/- within 45 days from the date of the instant order, failing which, interest @ 9% shall accrue to the above amount from the date of default till the entire amount is realized. The impugned judgment and order stands modified accordingly.
