Date: 02-04-2015

Sri Debasis Bhattacharya

This appeal emanates out of Order dated 25-09-2013 in C.C. No. 14/2013, passed by the Ld. District Forum, Bankura, by which the instant complaint case has been allowed on contest against the OP Nos. 1&2.  The operational part of the impugned is appended hereunder:-

‘That the Complaint Case no. 14 of 2013 is allowed on contest against the O.P. no. 1&2 and dismissed against the O.P. no.3&4 but in the circumstances without any cost.

That the Complainant Uttam Nag Modak is entitled to get back Rs. 43,700/- along with interest @ 9% p.a. on the said amount of Rs. 43,700/- from 04-02-2012 till the date of realization and Rs. 50,000/- as Compensation for physical and mental sufferings and financial loss.

That the OP no. 1&2 are directed to pay Rs. 43,700/- along with interest @ 9% p.a. on the said amount from 04-02-2012 till full payment and Rs. 50,000/- as Compensation to the Complainant within two (2) months from the date of this Judgement failing which further interest @ 9% p.a. will be accrued on said Rs. 50,000/- from the date of this Judgement till realization.

That the Complainant is at liberty to execute the decree as per rule.

Let a copy of this Judgement be supplied to the parties free of cost as per Rule.’

Short case of the Complainant is that despite receipt of premium amount from him, the OP Nos. 1&2 have not issued policy document and all his perseverance in this regard with the OPs went in vain.  Hence, he filed the instant complaint case before the Ld. District Forum to either get the original policy document or refund of full premium amount together with some other relief(s) as per prayer of the complaint.

OP Nos. 1&2 disputed such allegation by filing a W.V. stating, inter alia, that the policy number mentioned in the petition of complaint, i.e., C069481700 was not a correct one.  As the same belonged to another person, without proper policy number, they were not in a position to deal with the case properly.

Point for consideration in this appeal is whether there is any factual/legal infirmity in the impugned order or not.

Decision with reasons

Ld. Advocate for the Appellants has submitted that the Respondent moved the instant complaint case before the Ld. District Forum with the allegation that he availed a Tata AIA Life Maha Guarantee Policy being no. C06981770 in February, 2012, but did not receive original policy documents.  He further alleged that his prayer for cancellation of the policy was also not honoured by the Appellant.  However, on scrutiny, it was revealed that the policy number mentioned by the Respondent before the Ld. District Forum was a wrong policy number. The mentioned policy belonged to another person. In absence of correct policy number, they could not give proper reply to the Ld. District Forum.  Most unfortunately, the Ld. District Forum, without asking the Respondent to provide correct policy number, allowed the complaint petition in his favour.  In absence of correct policy number, they had no other alternative but to submit their reply on the basis of the policy number provided by the Respondent.  After receiving the impugned order, following frantic search, they got hold of the actual policy availed of by the Complainant being no. C142760431.  Initially the Respondent was provided policy no. C069481770 which was subsequently changed to C142760431, written in the application form and the same was immediately informed to the Respondent at application stage itself.  Hence, the Respondent was well aware at application stage itself that the policy number got changed and his correct policy number was C142760431.  The Respondent has admitted that he was aware of the fact that his correct policy number was C142760431 in the “General Amendment Form”, which has been signed by him along with the application form.  In the said “General Amendment Form” also, he stated that he would collect the policy document from Bankura office of the Appellant No. 1.  As per the terms of the policy, the Respondent was required to pay premium @ Rs. 42,960/- for 20 years.  In the month of June, 2012, the Respondent approached the Appellant for cancellation of the policy no. C142760431 through “Policy Servicing Payout Request Form” dated 28-06-2012.  The form was duly signed by him and correct policy number was mentioned there.  However, such request was turned down by the Appellant through letter dated 09-10-2012 wherein again the correct policy number was mentioned.  It is a clear indicator of the fact that the Respondent was aware of the correct policy number, but it misled the Appellant as well as the Ld. District Forum deliberately.  The Ld. District Forum erred in ignoring the fact that the Appellant provided sufficient documents to prove that the subject policy number belonged to a person other than the Respondent.  However, the Ld. District Forum has failed to appreciate the fact that because of incorrect policy number being mentioned by the Respondent, they could not represent their case properly.  In such circumstances, the impugned order be set aside, otherwise they would suffer irreparable loss and injury.

Ld. Advocate for the Respondent has submitted that although the Appellant filed photocopy of evidence on behalf of the Appellant Nos. 1&2, but no such evidence has at all been filed by them before the Ld. District Forum though they took adjournment on four occasions for the purpose of filing evidence in affidavit.  In support of his contention, Ld. Advocate filed information slip issued by the Ld. District Forum and argued that the same is a clear testimony of the fact that Appellants have not come with clean hands before this Commission.  Drawing our attention to the photocopy of the application form, submitted by the Appellants, it is submitted by the Ld. Advocate that the same was altered by hand.  In the facts and circumstances of the case, the impugned order be upheld for ends of justice.

The Appellants have sought to impress upon the fact that Respondent has all along been aware of the correct policy number.  Yet, he deliberately mentioned an incorrect policy number and to drive home such assertion, they placed on record photocopies of certain documents.  A cursory view of the same, however, raises several eyebrows, viz., (1) how an identical policy number issued to another policyholder three days ago crept in the application form of the Respondent, (2) how did the Appellants detected such error instantaneously at the time of filling up the application form, (3) whether agents are authorized to put policy number in the application form, (4) why did the Respondent volunteered to execute the ‘Amendment to Application for Policy’ form without any provocation from any quarter, (5) why a policyholder, unlike others, would take all the pain of collecting Insurance Policy from the office of the Insurer instead of receiving the same in home comfort, (6) how come similar mistake in policy number resurfaced while filling up the ‘Amendment to Application for Policy’ form, (7) why the corrections were not authenticated by authorized official of the Insurance Company/its agent (8) why the Respondent would mention an incorrect policy number before a Consumer Forum.

Lack of clarity over so many issues induce us to look deeper into the documents on record and our findings are –

It is common practice that policy number is allotted by an Insurance Company after proper scrutiny of application form and annexed documents and at times the same is issued after realization of due premium.  The Appellants have not put forth any administrative order or other cogent document to show that they authorized their agent to put the policy number at the time of filling up the application form itself.  There being no dispute as to the fact that the application form was processed by the agent of the Appellants, if we are to accept that the Respondent was intimated about the changed policy number instantaneously, then it was obvious that the entire matter, including allotment of policy number, was handled by the agent of the Appellants.  But, in absence of any corroborative document to substantiate such fact, we are unable to accept such proposition at its face value.

On going through the photocopies of application forms in respect of policy nos. C069481770 and C142760431, it transpires that the same were filled up on 03-02-2012 and 06-02-2012, respectively, and the same contain different Branch Code, sub-office code. It sounds quite unimpressive that despite there being a three days’ gap, the error in policy number was detected instantly at the time of filling up the application form and the Respondent was informed of the changed policy number at once.     

Even for the sake of argument, if we accept that the error was detected at the time of filling up the application form of the Respondent, it defies logic as to why the Respondent would suo motu execute ‘Amendment to Application for Policy’ form when it is the responsibility of the Insurance Company to inform the correct/changed number to the Insuree.  No document is placed on record by the Appellants that the Respondent was informed of the changed policy number in writing.   Moreover, as the name itself suggests, ‘Amendment to Application for Policy’ form is meant for making amendment/changes in policy particulars.  Expressing one’s choice of place of receiving the policy bond or vouching the correct policy number in the specified space, by no stretch of imagination, however, can be construed as amendment. 

Such improbabilities surely give credence to the allegation of the Respondent, as made out in the petition of complaint, that the Appellants obtained his signature on some blank papers and subsequently, when he vigorously took up the matter of non-receipt of policy bond with the Appellants, they misled him to write an application form as per their wordings.

Admittedly, the Appellants vide their letter dated 09-10-2012, turned down the request of the Respondent for cancellation of policy made on 28-06-2012.  Clause 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002 casts a duty upon the Insurer to forward policy bond to the Insuree stating in unequivocal terms that he has a period of 15 days from the date of receipt of the policy document to review the terms and conditions of the policy and where the insured disagrees to any of those terms or conditions, he has the option to return the policy stating the reasons for his objection, when he shall be entitled to a refund of the premium paid, subject to certain deductions as specified therein.  It implies that the Insuree enjoys a free look period of 15 days from the date of receipt of policy bond to seek refund of deposited premium if he disagrees with any/some provisions of the policy bond.  In the instant case, it being not in dispute that the policy document did not reach the Respondent till 28-06-2012, when he applied for cancellation of policy, it was incumbent upon the Appellants to honour his wish, which, however, they rejected in gross violation of IRDA regulation. 

Now, coming to the issue of incorrect policy number being mentioned by the Respondent in his petition of complaint, it is alleged by the Appellants that the Respondent, despite being fully aware of the correct policy number, did not mention it for which, they had no other alternative but to file W.V. according to the policy number mentioned in the petition of complaint.  Such assertion on the part of the Appellants, however, crumbles down on the face of admitted/undisputed position of this case.  It is not in dispute that initially the Respondent was allotted policy no. C069481770 by the Appellants or their agent.  There is nothing on record to show that the Respondent was intimated of the changed policy number by the Appellants/their agent in writing.  The documents placed on record by the Appellants to show that the Respondent was apprised of the changed policy number instantly at the time of filling up the application form, being not at all trustworthy in the light of our aforesaid discussion, we cannot accept it with certainty that the Respondent was aware of the changed policy number before filing of the petition of complaint before the Ld. District Forum.  Although it is claimed by the Appellants that the Respondent mentioned the correct policy number in the ‘policy servicing payment request form’ dated 28-06-2012, no copy thereof is placed on record by the Appellants for the reasons best known to them.  In any case, even if for the sake of argument, we accept that the Respondent was indeed aware of the changed policy number, it does not bear off the fact that the Appellants were equally alive to the dispute which precipitated filing of the instant petition of complaint by the Respondent before the Ld. District Forum insofar as only few months prior to filing of the said case, the Appellants rejected the plea of the Respondent to cancel the policy in question.  More so, the Respondent clearly mentioned in paragraph no. 6 of his petition of complaint that policy no. C069481770 was initially allotted to him, which leaves no room for any doubt that the said policy number was subsequently changed.  Further, in paragraph no. 3 of the petition of complaint, the Respondent stated payment details in respect of his policy.  If the Appellants had sincerity of purpose, they could have easily ascertained the correct policy number from the payment details provided by the Respondent.  Clearly, they tried to act smart by feigning ignorance about the disputed policy. 

Taken all these facts into perspective, direction of the Ld. District Forum asking the Appellants to refund deposited sum, i.e., Rs. 43,700/- appears to be just and proper.  However, the Ld. District Forum has gone wrong in awarding both lump sum compensation as well as interest, which is not permissible in law and as such, the lump sum amount awarded by the Ld. District Forum as well as the award for further interest is hereby struck off.

In the result, the appeal succeeds in part.

Hence,

ORDERED

that the appeal be and the same is allowed in part on contest against the Respondent.  The impugned order is modified as under :-

The Appellants/OP Nos. 1&2, within 40 days from the date of this order, shall pay Rs. 43,700/- to the Respondent/Complainant together with interest @ 9% p.a. over this amount from the date of filing of the instant complaint case before the Ld. District Forum till full and final payment.  Other portion of the impugned order is hereby struck off.