BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 378 of 2015
Date of Institution: 09.06.2015
Date of Decision: 27.07.2016
Akshit Kakkar son of Dr.Sandeep Kakkar, resident of House No.116, B-Block, Ranjit Avenue, Amritsar through his authorized representative Dr.Sandeep Kakkar.
Complainant
Versus
TATA AIG LIFE INSURANCE COMPANY LIMITED, having its registered and corporate office at Delhi 8, Wing 5th and 6th Floor, Peninsula Towers, Peninsula Corporate Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 service through its Local office at District Shopping Centre, Ranjit Avenue, B-Block, Amritsar, through its Branch Manager/ Principal Officer.
Opposite Party
Complaint under section 11/ 12 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant: Sh.Naresh Kumar Soni, Advocate
For the Opposite Party: Sh.Mohan Arora, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Akshit Kakkar has brought the instant complaint under section 11 and 12 of the Consumer Protection Act, 1986 on the allegations that the complainant has gone to Dubai and as such, he is unable to file the present complaint personally and he has given authority letter dated 13.4.2012 in favour of his father Dr.Sandeep Kakkar authorizing him to file the present complaint and to do other acts necessary in connection with the prosecution of the present complaint on his behalf. As such, the complainant is filing the instant complaint through his authorized representative. One Gopi Kapoor son of Ashok Kapoor who was the then employee of Opposite Party came in contact with the complainant and allured him to obtain insurance policies and explained very excellent features of the same to the complainant. Having been allured by the said then employee of the Opposite Party, the complainant agreed to the proposal of the Opposite Party and obtained the insurance policies bearing No.U152767000 for Rs.1 lac, policy No.C181896133 for Rs.9984/-, policy No.U15276614 for Rs.5 lacs, policy No. C181902166 for Rs.49155/- and policy No.C181895736 for Rs.39585/- in his name from the Opposite Party through its aforesaid employee in January, 2011. In all, the complainant paid total amount of Rs.6,98,724/- to Opposite Party against the aforesaid policies. Thus, the complainant having hired the services of the Opposite Party for valuable consideration fall within the definition of consumer as defined under the Consumer Protection Act, 1986 as amended upto date and has right and locus standi to file this complaint. At the time of obtaining the aforesaid insurance policies, the complainant was made to understand by the Opposite Party and its aforesaid employee that these policies are single premium policies and the same will mature after three yeas and the complainant is not to pay any further premium and under this bonafide impression, the complainant had obtained the aforesaid polices from Opposite Party. The complainant surprisingly received message from the Opposite Party in the month of January, 2012 asking the complainant to pay the premium of insurance policy No.C181896133 for Rs.9984/-, policy No. C181902166 for Rs.49,155/- and policy No.C181895736 for Rs.39,585/-. The complainant visited the office of Opposite Party and made enquiries and it revealed that the aforesaid employee of the Opposite Party has affected single premium policies in respect of insurance policies of Rs.5 lacs and Rs.1 lac, but with respect to the remaining policies, the premium thereof is payable for three years on annual basis and these policies have been wrongly made of three years premium. Thus, it is clear cut case of mis-selling of insurance policies. The complainant brought to the notice of the Opposite Party that their aforesaid employee has misrepresented him by mis-selling the insurance policies by assuring that these policies are of single premium policies, but despite such blunder misdeed committed by Gopi Kapoor, the Opposite Party has not taken any action against said erroring employee. From the aforesaid act, conduct and mis-deeds of the Opposite Party and their official, the complainant is fully fed up and there is every apprehension on his mind that the money deposited by him with Opposite Party is not secure and safe. As such, the complainant does not want to continue his aforesaid insurance policies with Opposite Party. After the aforesaid incident, the complainant visited the Opposite Party on numerous occasions and requested them to return their hard earned money of Rs.6,98,724/- which was deposited by him on allurement and misrepresentation of the Opposite Party and their employee, but the Opposite Party has been procrastinating the matter on one pretext or the other and till date, the hard earned money of the complainant has not been returned back to him. As the Opposite Party is illegally and unlawfully withholding the aforesaid amount of the complainant, therefore, the Opposite Party is also bound to pay interest @ 18% per annum from the date of deposits till refund of entire amount to the complainant. The aforesaid act of the Opposite Party in not returning back the aforesaid amount to the complainant coupled with interest thereon, amounts to deficiency in service, unfair trade practice as well as gross negligence which has caused mental pain, agony, harassment and inconvenience to the complainant which also entitles her to claim compensation of Rs.50,000/- from the Opposite Party. The cause of action arose in favour of the complainant and against the Opposite Party a day before yesterday when the Opposite Party finally refused to return back the entire amount of the complainant with interest thereon. The complainant has sought the following reliefs vide instant complaint:-
a) Opposite Party may kindly be directed to return the entire amount of Rs.6,98,724/- to the complainant with interest @ 18% per annum from the date of deposits of premium till refund of entire amount to the complainant.
b) Opposite Party may also be directed to pay rs.50,000/- to the complainant as compensation.
c) Costs of litigation and counsel fee be also awarded to the complainant.
d) Any other relief to which the complainant may be found entitled under the law equity and justice may also be awarded to the complainant.
Hence this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complainant had earlier filed a complaint i.e. CC No. 313/2012 titled as Akshit Kakkar Vs. TATA AIG Insurance Company Limited and the same was dismissed as withdrawn in view of the statement made by Sh.Sandeep Kakkar, authorised representative of the complainant on the ground that the present complaint is not segrigatable due to the fact that certain policies relate to ULIP matter and other are investment policies as such there are technical defects in the present complaint he may be permitted to file a fresh complaint after removal of the technical defects in the complaint. However, a fresh complaint has been filed by the complainant on the same grounds and revealing the same facts and qua the same policies including the unit linked policies, hence fresh complaint is not maintainable on the same cause of action and on the same grounds, therefore, the same is liable to be dismissed. Copy of the order dated 9.2.2015 in CC No.313 of 2012 titled as Akshit Kakkar Vs. Tata AIG Life Insurance Company Limited is attached. At the very outset, the Opposite Party deny all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non traversal of any paragraph should be read as categorical denial; the complaint filed by the complainant is not legally maintainable and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Forum and as such, the complaint is liable to be dismissed on this ground alone; it is submitted that present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits whatsoever. It appears that the present complaint has been filed to gain undue publicity and bring disrepute to a well known company and hence it is liable to be dismissed on this ground; from the perusal of the proposal forms/ policies it is quite evident that the investment has been made by the complainant in the Unit Linked Policies to earn more and more profits within overnight. The transactions between the complainant and the Opposite Party being commercial in nature, therefore, the complainant does not come within the definition of consumer and the complainant does not fulfil the ingredients of a valid complaint in terms of section 2(C) of the Consumer Protection Act, hence the Forum has no jurisdiction under the Consumer Protection Act to try and decide the present complaint, therefore, the same is liable to be dismissed; that the complaint is not legally maintainable and is liable to be dismissed as no cause of action ever arisen in favour of the complainant and against the Opposite Party to file the present complaint and hence the complaint under reply is an abuse of the process of law and as such, is liable to be dismissed with exemplary costs; that the complainant is guilty of suppression of the material facts from this Forum to avoid the payment of next premiums, false complaint has been filed by the complainant against the replying Opposite Party, hence the same is liable to be dismissed; that the answering Opposite Party submits that the complainant has created a false story in his complaint to mislead this Forum by concocting and distorting the facts and circumstances of the present case; that the present complaint is not legally maintainable as per provisions of section 2(1)(g) of Consumer Protection Act, for the reason that one FIR under section 420 IPC has been got registered with the police of P.S.Civil Lines, Amritsar on the statement of father of the complainant against the employees of the Opposite Party and the matter is under trial before the Criminal Court and therefore, the present complaint is incapable of being investigated and tried in the summary proceedings under the Consumer Protection Act; that the present complaint is not signed and verified by the competent person, as such the complaint is liable to be dismissed; the complainant has not come to this Forum with clean hands as the policy documents delivered to the LA provided him a period of 15 days within which he could have returned the policies to the Opposite Party by stating the reason thereof. The act and conduct of the complainant in not returning/ surrendering the policies within the given time signified his acceptance of the terms and conditions mentioned in the said policy documents. Hence the present complaint deserves to be dismissed with special costs. Moreover, the receipt and issuance of policy has been admitted by the complainant; that the complainant has filed the present complaint before this Forum when the policy has already been lapsed for non payment of premium for subsequent years and the complainant has already taken all the benefits of the policy i.e. life insurance cover for the period for which he had paid the premium. When once the complainant has utilised the policy for which he had given the premium, he has no legal right to claim the refund, interest and damages; that 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 & wants this Forum to declare the insurance policy in question as void. However, the complainant fails miserably to prove any deficiency in service on the part of Opposite Party. Further, the complainant himself has not acted as per the terms and conditions of the present contract of insurance and now wants to wriggle out of the same by filing this false complaint. Opposite Party further submit that such a relief is beyond the scope of relief that can be granted by this Forum while exercising its jurisdiction under the Consumer Protection Act. The complaint is, therefore, not maintainable; that 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 Forum and to extract a favour 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 his contentions. Present complaint thus fails on this ground as well. On merits, the facts narrated in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case, complainant tendered into evidence his duly sworn affidavit Ex.CW1\A in support of the allegations made in the complaint and also produced copies of documents Ex.C1 to Ex.C6 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence the affidavit of Sh.Harsimran Singh Ex.OP1 alongwith copies of documents Ex.OP2 to OP62 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record. The complainant has also furnished written synopsis of arguments which were also gone through by this Forum.
6. It has vehemently been contended by ld.counsel for the complainant that the complainant was allured by Gopi Kapoor employee of the Opposite Party and the complainant agreed to the proposal of the Opposite Party and obtained the insurance policies bearing No.U152767000 for Rs.1 lac, policy No.C181896133 for Rs.9984/-, policy No.U15276614 for Rs.5 lacs, policy No. C181902166 for Rs.49155/- and policy No.C181895736 for Rs.39585/- in his name from the Opposite Party through its aforesaid employee in January, 2011. In all, the complainant paid total amount of Rs.6,98,724/- to Opposite Party against the aforesaid policies. Thus, the complainant having hired the services of the Opposite Party for valuable consideration fall within the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986 as amended upto date and has right and locus standi to file this complaint. At the time of obtaining the aforesaid insurance policies, the complainant was made to understand by the Opposite Party and its aforesaid employee that these policies are single premium policies and the same will mature after three yeas and the complainant is not to pay any further premium and under this bonafide impression, the complainant had obtained the aforesaid polices from Opposite Party. The complainant surprisingly received message from the Opposite Party in the month of January, 2012 asking the complainant to pay the premium of insurance policy No.C181896133 for Rs.9984/-, policy No. C181902166 for Rs.49,155/- and policy No.C181895736 for Rs.39,585/-. The complainant visited the office of Opposite Party and made enquiries and it revealed that the aforesaid employee of the Opposite Party has affected single premium policies in respect of insurance policies of Rs.5 lacs and Rs.1 lac, but with respect to the remaining policies, the premium thereof is payable for three years on annual basis and these policies have been wrongly made of three years premium. Thus, it is clear cut case of mis-selling of insurance policies. The complainant brought to the notice of the Opposite Party that their aforesaid employee has misrepresented him by mis-selling the insurance policies by assuring that these policies are of single premium policies, but despite such blunder misdeed committed by Gopi Kapoor, the Opposite Party has not taken any action against said erroring employee. From the aforesaid act, conduct and mis-deeds of the Opposite Party and their official, the complainant is fully fed up and there is every apprehension on his mind that the money deposited by him with Opposite Party is not secure and safe. As such, the complainant does not want to continue his aforesaid insurance policies with Opposite Party. After the aforesaid incident, the complainant visited the Opposite Party on numerous occasions and requested them to return their hard earned money of Rs.6,98,724/- which was deposited by him on allurement and misrepresentation of the Opposite Party and their employee, but the Opposite Party has been procrastinating the matter on one pretext or the other and till date, the hard earned money of the complainant has not been returned back to him. As the Opposite Party is illegally and unlawfully withholding the aforesaid amount of the complainant, therefore, the Opposite Party is also bound to pay interest @ 18% per annum from the date of deposits till refund of entire amount to the complainant. The aforesaid act of the Opposite Party in not returning back the aforesaid amount to the complainant coupled with interest thereon, amounts to deficiency in service, unfair trade practice as well as gross negligence which has caused mental pain, agony, harassment and inconvenience to the complainant which also entitles her to claim compensation of Rs.50,000/- from the Opposite Party.
7. However, from the appreciation of the facts and circumstances of the case it becomes evident that policies bearing No.U152767000 for Rs.1 lac and No.U15276614 for Rs.5 lacs are Unit Linked Insurance Policies. The complainant can not be termed to be a consumer with regard to aforesaid two policies because the investment has been made by the complainant for earning more and more profits. Reliance in this connection can be had on authority of our own Hon’ble State Commission, Punjab, Chandigarh in case titled as Paramjit Kaur Vs. Aviva Life Insurance Company Limited decided on 4.7.2014 in First Appeal No. 407/2011 wherein it has been laid down that the investment made by the petitioner/ complainant was to gain profit. Hence it was invested for commercial purposes and, therefore, the petitioner/ complainant is not a consumer under the Opposite Parties. Further in The State Commission Orisha in First Appeal No. 162 of 2010 in the case of Smt.Abanti Kumar Sahoo Vs. Bajaj Allianz Life Insurance Company Limited it has been held that the money of the petitioner/ complainant invested in the share market is no doubt a speculatdive gain and the speculatdive investment matter does not come under the Consumer Protection Act and accordingly, the State Commission dismissed the appeal. Dissatisfied with that order the petitioner filed a revision before the Hon’ble National Commission. It was held that there was no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting inference and the revision was dismissed. It becomes very much clear from this judgement that complaint in respect of the claim under Unit Linked Insurance Policy is not maintainable under the Act; the money having been invested in a speculative business. As such it is held that the claim of the complainant with regard to Unit Linked Insurance Policies is not maintainable before the Consumer Foras and the relief qua those insurance policies fails and is dismissed accordingly.
8. Not only that the claim of the complainant for refund of the premium paid of policies i.e. policy No.C181896133 for Rs.9984/-, policy No.C181895736 for Rs.39585/- and policy No. C181902166 for Rs.49155/- is also not maintainable. The complainant earlier filed a complaint i.e. CC No. 313/2012 titled as Akshit Kakkar Vs. TATA AIG Insurance Company Limited which was dismissed as withdrawn vide order of this Forum on 9.2.2015 in view of the statement made by Sh.Sandeep Kakkar, authorised representative of the complainant on the ground that the present complaint is not segrigatable due to the fact that certain policies relate to ULIP matter and other are investment policies as such there are technical defects in the present complaint he may be permitted to file a fresh complaint after removal of the technical defects in the complaint. Resultantly, that complaint was dismissed as withdrawn. However, the complainant was permitted to file a fresh complaint after removing the technical defects. But however, while filing the present complaint, the complainant did not remove any alleged technical defect, earlier complaint in verbatim has been pressed into service for decision of this Forum. The complaint as such is not maintainable.
9. Not only this, the present complaint has been filed when the policy has already been lapsed for non payment of premium for subsequent years and the complainant has already taken all the benefits of the policy i.e. life insurance cover for the period for which he had paid the premium. Now the policies have been lapsed for non payment of premium. Moreover, the complainant could exercise his volition within 15 days i.e. within ‘free look period’ for cancellation of the policies from the date(s) of their receipts. But however, for the reasons best known to the complainant, no such volition has been exercised by the complainant. It has come to our notice that the complainant has filed a case under section 420 IPC against the aforesaid employee as well as TATA AIG Insurance which is pending disposal before Criminal Court at Amritsar. The complainant has also levelled charges that mis-representation and mis-selling against the company as well as its former employee in relation to aforesaid insurance policies. The questions raised by the complainant vide instant complaint are intricate questions of law and fact which are incapable of disposal in summary proceedings. In such type of cases because voluminous evidence is required besides lengthy cross examination of the witnesses which is not permitted in the summary proceedings before the Consumer Forum. Even on that account, the instant complaint is not maintainable. Even on merits, instant complaint is not maintainable. The polices in dispute have lapsed on account of non payment of premium and therefore, relationship of consumer and service provider inter se parties has also snapped and no complaint in the matter under section 11 and 12 of Consumer Protection Act is maintainable before this Forum.
10. Taking the case from any angle, it becomes amply clear that the present complaint is not at all maintainable. First two polices are Unit Linked Insurance Policies while remaining three policies detailed above, have already been lapsed on account of non payment of premium of subsequent years, by the complainant. The complainant has not exercised his volition within the ‘free look period’ of 15 days of the receipt of the insurance policies, therefore, the complaint filed by the complainant at this stage for refund of the premium amount is not all at maintainable. However, the complainant, if so desired, could approach the Civil Court or other appropriate Forum/ Authority for getting his grievance adjudicated in accordance with law. The instant complaint fails and the same is ordered to be dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 27.07.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
hrg
