PER:
Charanjit Singh, President;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant has purchased a life insurance policy from the opposite party on 10.8.2016 by payment of cash of Rs. 49,950/- vide Receipt No. ID 2204190 and was issued a Policy No. C191698923 for a sum assured of Rs. 4,91,000/- and premium of Rs. 49,933/- was adjusted towards the said policy and the policy document was received by the complainant on 25.5.2017. On receipt of Policy document, while going through the terms and conditions, on being not satisfied with the same, the complainant applied for the cancellation of policy in free look period on 1.6.2017 and submitted the original policy document to the policy servicing branch at Amritsar of the opposite party. The complainant was shocked to receive the policy document alongwith with the request letter she gave for cancellation of policy in free look period on 16.6.2017 vide EP422698443IN. No document regarding the acceptance or denial of request of free look cancellation was sent to the complainant. Thereafter, the complainant served a legal notice dated 14.7.2017 to the opposite party for cancellation of policy in free look period on 18.7.2017 and in response to the same, the counsel for the complainant received a reply from the opposite party vide their letter dated 10.8.2017 in which it was stated that the opposite party has dispatched the policy document to the complainant on 13.8.2016 through speed post vide receipt No. ED109873140IN. The reply to the legal notice served by the complainant is false and was on frivolous grounds. The opposite party is duty bound to pay Rs. 49,933/- under free look cancellation of the policy No. C191698923 to the complainant, as the request for cancellation of the policy in question was within the period of 15 days from the receipt of the policy in question. The opposite party illegally and unlawfully without any cause and reasons has not paid the above said amount of Rs. 49,933/- and wrongly retained the same and at the same time has also caused mental pain, agony and harassment to the complainant. The opposite party, as such, in this way is also guilt of fault, imperfection, shortcoming and inadequacy in the quality, nature and manner of performance of service and hence, is guilty of deficiency and negligence in service. The complainant has prayed the following reliefs:-
(a) The opposite party is directed to pay the aforesaid amount of Rs. 49,933/- to the complainant.
(b) Compensation of Rs. 50,000/- may kindly be granted in favour of the complainant and against the opposite party on account of mental pain, agony and harassment suffered by the complainant.
(c) Costs of the proceedings and any other relief to which the complainant is found entitled under the law and equity may also be granted in his favour.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties appeared through counsel and filed written version and contested the complaint by taking preliminary objections that the complaint under the reply is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this commission. The complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favour of the complainant and against the opposite parties to file the present complaint. The complainant i.e. Balwinder Kaur Life Assured had submitted to the opposite parties, as proposal/ application dated 10.8.2016 for the purchase of ‘TATA AIA Life Insurance Money Maxima Plan’ the proposal was accepted on the standard rates based on the information provided by the LA and consequently a policy was issued bearing No. C191698923 dated 11.8.2016 and the said policy commenced on 11.8.2016. In the above said policy the policy term was 15 years, premium payment terms was 15 years, basic sum assured was Rs.4,91,000/- and mode of payment was annual. The present complaint is an afterthought and has only been filed with the ulterior motive to harass and humiliate the opposite parties. Before acceptance of the proposal by the opposite parties the contents of the proposal/ application, illustration and addendum forms were read and explained to the LA in the language best known to him. Accordingly, after understanding all the terms and conditions of the proposal form was signed by the LA/ complainant to that effect. On the basis of the information furnished in the application/ proposal form, the proposal was processed by the opposite parties and thereafter the said policy was issued to the LA/complainant. Before acceptance of the proposal by the opposite parties, adequate information with regard to the product, nature and its significance was given to the complainant. In addition to the above, the sales literature and the necessary guidance was also provided by the concerned financial consultant / agent and were duly explained to the complainant. In view of the above submission, the present complaint deserves to be dismissed because it is not only motivated but has been made to blackmail the opposite parties with an ulterior motive. The complainant has not come to this commission with clean hands as the policy documents were dispatched to the complainant on 13.8.2016 via speed post vide receipt No. ED109873140IN dated 13.8.2016 which must have been received by her within a week time i.e. by 20.8.2016 because the said documents were not returned to the opposite parties as undelivered. In the said policy documents it was specifically mentioned that if you are not satisfied with the terms and conditions/ features of the policy you have the right to cancel the policy by providing a written notice to the company and receive the refund of all premiums paid without interest after deducting proportionate risk premium, stamp duty and medical examination cost alongwith appliable service tax , surcharge and cess which have been incurred for issuing the policy. Such notice must be signed by you and received directly by company within 15 days from receipt of policy documents by you or person authorised by you. The said period of 15 days shall extended to 30 days, if the policy is sourced through distance marketing mode, which includes solicitation through any means of communication other than a person. The act and conduct of the complainant in not returning/ surrendering the policy within the given time signified her acceptance of the terms and conditions mentioned in the said policy documents. The said option has not been exercised by the LA/ complainant within the stipulated period of 15 days, therefore, now she cannot be allowed to wriggle out of the terms and conditions of the policy and to level false allegations of deficiency in service and unfair trade practice. The allegation of the complainant that she received the policy documents only on 15.5.2017 and applied for free look period on 1.6.2017 are far away from truth. A concocted story has been manufactured by the complainant just to wriggle out of the contract of insurance and get refund of the premium because had she not received the policy documents within a reasonable time of 10-15 days from the date of application for insurance, she must have created hue and cry and must have written number of letters and communication for the receipt of policy document. Her act of keeping mum for about 10 months from the date of application for insurance and non receipt of policy documents by the opposite parties as undelivered signifies that the complainant has received the policy documents must before 25.5.2017. The complainant has filed the present complaint before this commission when the policy has already been lapsed and the complainant has already taken all the benefits of the policy for the period for which she had paid the premium. Even second premium was not paid by the complainant inspite of number of notices/ letters issued by the opposite parties when once the complainant has utilized the policy for which she had given the premium, she has no legal right to claim the refund and damages. When once the policy of insurance has already been lapsed due to the non payment of premium for the subsequent year within the stipulated period, hence, the complainant is no more a consumer within the meaning of the Consumer Protection Act. Hence, the present complaint is not maintainable against the opposite parties. The prayer of the life assured/ complainant for refund of premium of Rs. 49,933/-, compensation of Rs. 50,000/- and cost of litigation cannot be accepted at any stretch of imagination because the opposite parties issued the said policy and covered the risk upon the life of the complainant/ life assured and thereafter the policy was lapsed due to non payment of premium in subsequent year. The complainant/ life assured admitted the factum of payment of premium and issuance and receipt of policy, therefore, the complainant in no stretch of imagination can ask for the refund of the premium after the lapse of the policy and after enjoying the insurance cover other than the surrender value occurred under the policy. The present complaint is nothing but a suit for declaration in the guise. The complainant has challenged the validity of the contract of insurance on the grounds of deficiency of service and wants this commission to declare the insurance policy in question as void. However, the complainant fails miserably to prove any deficiency in service on the part of the opposite parties. Complainant herself has not acted as per the terms and conditions of the present contracts of insurance and now wants to wriggle out of the same by filing this false complaint. The present complaint is presented in such a manner so that it presents a distorted and twisted picture only with an intention to misguide and confuse this commission and to extract a favorable decision. The complainant has not presented true facts and even failed to provide any terms and conditions of the present contract of insurance to support her contentions. The present complaint is thus presented, ridden with allegations of deficiency in service and unfair trade practices, but the present complaint miserably fails to co-relate the facts and incidents in order to provide any deficiency in service and unfair trade practice. The complainant fails to prove any act as alleged in the whole of the complaint that points out any deficiency in service and unfair trade practice on the part of the opposite party. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.
4 To prove her case, the complainant has tendered in evidence affidavit of complainant Ex. C-1, copy of premium receipt Ex. C-2, copies of pre look request Ex. C-3, copy of legal notice Ex. C-4, Post receipt Ex. C-5, copy of reply legal notice Ex. C-6 and closed the evidence. On the other hands, opposite parties have tendered in evidence affidavit of Harsimran Singh Legal Manager Ex. OP1, copy of authority letter Ex. OP2, copy of proposal form Ex. OP3, Copy of sales illustration Ex. OP4, copy of premium payment notice Ex. OP5, copy of reply to legal notice Ex. OP6 and closed the evidence.
5 We have heard the Ld. counsel for the parties and have carefully gone through the record.
6 From the combined and harmonious reading of pleadings and documents are going to prove that the complainant has purchased a life insurance policy namely TATA AIA Life INsurance Money Maxima Plan from the opposite party on dated 10.8.2016 by payment of cash to the tune of Rs.46,950/- vide receipt No. ID 2204190, thereafter, the opposite party issued the policy in question on dated 11.8.2016 and the said policy was commenced on 11.8.2016. The said policy premium was 15 years, premium payment term was 15 years, basic sum assured was Rs.4,91,000/- and mode of payment was annual. As per version of opposite party, the policy documents were dispatched to the complainant on 13.8.2016 by speed post vide receipt No. ED 109873140IN dated 13.8.2016 and delivered to the life assured and provided her a period of 15 days of free look period within which she could have returned the policy to the opposite parties by stating the reasons thereof. But the complainant averred in her complaint that the said policy documents were received by the complainant on 25.5.2017 and after that going through the terms and conditions, on being not satisfied with the same, the complainant applied for the cancellation of the policy in free look period on 1.6.2017 and submitted the original policy documents to the policy servicing branch at Amritsar of the opposite party.
7 The complainant was shocked to receive the policy documents alongwith the request letter that she gave for cancellation of the policy in free look period. But no documents regarding the acceptance and denial of request of free look cancellation was received by the complainant till date. To this regard complainant served a legal notice upon the opposite parties on 14.7.2017. The opposite parties in their reply stated that the policy documents were dispatched to the complainant on 13.8.2016.
8 The whole controversy revolves around the fact that as to whether the complainant has received the policy documents on dated 25.5.2017 or earlier? The opposite parties have specifically mentioned in their reply that the policy documents were dispatched to complainant as on 13.8.2016 by speed post vide receipt No. 109873140IN dated 13.8.2016. It is presumed that the said documents would have received by the complainant after 3/4 days. It is beyond any stretch of imagination that how the complainant has received the policy documents on 25.5.2017 whereas same were dispatched on 13.8.2016 by the opposite parties through speed post. Meaning thereby, the complainant has received the policy documents after the gap of 9 months approximately which is not possible. The complainant has taken the plea that the benefit of free look period has not been given to the complainant and policy of the complainant was not canceled within Free Look Period and the amount which was incurred to purchase the policy was not refunded. We are not agreed with the complainant that she was not aware about the terms and conditions of policy. This fact is proved by the document which is placed on record by the opposite parties as Ex. OP-3. Bare perusal of this document shows that the agent i.e. Harpreet Kaur has recommended the policy to the complainant. Meaning thereby that the complainant has purchased the said policy through Harpreet Kaur as an agent. But in the proposal form at serial No. 24 i.e. detail of nominee the name of Harpreet Kaur is mentioned and relation shown in this document is ‘daughter’. So this fact can easily be proved that the said policy was done by Harpreet Kaur who is daughter of the complainant. The complainant cannot take the plea at this stage, she is not aware about the terms and conditions of the policy as it is clearly proved that the said policy was done through her daughter and both the complainant as well as her daughter are aware about the terms and conditions of the policy. Further the complainant cannot take plea that she received the policy documents too late i.e. on 25.5.2017. As per judgments of case Prema & Ors. v. Life Insurance Corporation of India IV (2006) CPJ 239 (NC) and Kishore Chandrakant Rathod v. MD ICICI Prudential Life Ins. Co. RP No.3390 of 2013 decided by the Hon’ble National Commission vide order dated 21.05.2014, the onus was on the complainant to read all the contents of both the documents i.e. policy and terms and conditions thereof. The complainant is bound by the policy contract as he gave up/relinquished/waived off his right by not exercising the “Free Look Period” option.
9 In other judgments of the Hon’ble National Commission of case Mohan Lal Benal v. ICICI Prudential Life Ins. Co. RP No.2870 of 2012 decided on 16.10.2012 and R.P. No.3271 of 2013 (Harish Kumar Chadha v. Bajaj Allianz Life Insurance Co. Ltd.) decided on 07.10.2013, it has been held that in case the insured/complainant is not satisfied with the policy taken, then he/she should avail the option of returning the policy with a period of 15 days of receipt i.e. “Free Look Period”.
10 The terms and conditions of the Insurance Policy have to be strictly construed. Hon’ble Supreme Court in the case of Export Credit Guarantee Corporation of India vs. Garg Sons International 2013 (1) SCALE 410 (SC) held in Para Nos.8 to 11 as under:
“8. It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567).
9. The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are consequently, the terms of the insurance policy, that fix the responsibility of the Insurance Company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. v. Oil & Natural Gas Company, AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran AIR 2012 SC 2829).
10. In Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd. AIR 2009 SC 2493, it was held: “An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. (See also: Sikka Papers Limited v. National Insurance Company Ltd & Ors. AIR 2009 SC 2834).”
11. Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”
11. In another case of National Insurance Co. Ltd. v. Rameshwar Lal Revision Petition No.1751 of 2017 decided on 18.09.2020 by relying upon various judgments held that the contract of insurance is to be construed as it is written in the policy documents.
12 The complainant herself has placed on record initial premium deposit receipt Ex. C-2 and in bottom of this receipt it is clearly written that if you do not receive your policy document within 45 days of signing of the application form, please call the TATA AIA Life Insurance Company Ltd. Tool Free help Line 1-800-119966 or write to us on customercare@tataaia.com. This document clearly shows that the complainant could have contacted the opposite parties within 45 days to receive the policy documents in case the complainant not received the said documents within time. The complainant has not even availed this channel and at this stage, she cannot raise the voice that she has received the policy documents on 25.5.2017 and thereafter she applied for free look period of 15 days. Otherwise, the documents placed on record by the opposite parties clearly prove that the terms and conditions were within the knowledge of the complainant but just to take undue advantage the complainant concocted the story to show that she has received the policy documents after 9 months.
13 The complainant has prayed for refund of Rs. 49,933/- as well as compensation of Rs. 50,000/- which cannot be allowed to the complainant as she was given insurance cover for one year. Since the policy was for the term of 15years and premium pay term was 15 years, as the complainant has not renewed the policy for 2nd year. So she is not entitled for any relief and cannot ask for return of premium after lapse of policy and after enjoying the insurance cover. The opposite parties in their written reply in Para No. 11 of the preliminary objection have themselves admitted that the complainant cannot ask for refund of the premium after lapse of policy and after enjoying the insurance cover other than the surrender value accrued under the policy, if any. In view of the admission made by the opposite parties in their written version the complainant is entitled to surrender value in accordance with the terms and conditions of the policy.
14 In view of above discussion, the present complaint is partly allowed and the complainant is entitled to the surrender value from the opposite parties as per terms and conditions of the policy in question. The parties are left to bear their own costs. The Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
16.06.2022
