Complainant:             Shri. Dyamappa

                                          S/o Andappa Upadhya

                                          Age:69 Yrs, Occ:Rtd. Employee

                                          R/o Abbigeri, Kalakashi

                                          Tq:Ron, Dist:Gadag.

                                              (Rep. by Sri.B.V.Neeraloti, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER

The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019 for refund of insurance amount of Rs.4,00,000/-  with an interest @ 18%  p.a., Rs.50,000/- towards mental agony and cost of litigation. 

2. The brief facts of the complaint are as under:-

 The complainant has obtained policy from OP on 28.09.2019 Canara HSBC Oriental Bank of Commerce Life Insurance Titanium Plus Plan, bearing policy No.0098331220. The duration of the policy is 10 years, and Rs. Rs.2,00,000/-.    installment per year. The complainant has paid first installment Rs.2,00,000/- on 28.09.2019 and second installment of Rs.2,00,000/- dtd:28.09.2020 in all Rs.4,00,000/-. At the time of paying the third installment, on 28.09.2021 OP has informed through Phone message that, he has paid total amount of Rs.4,00,000/-,  but the closing balance amount is Rs.3,95,313/- only. The complainant has personally visited the OP office and requested to pay Rs.4,00,000/- as the bank balance shown is less than actual amount paid. But OP has not given satisfactory reply. Then, on 13.01.2022 complainant has issued legal notice to OP. But, OP did not reply. Therefore, Ops has committed the deficiency of service.  Hence, filed this complaint.  

          3.      After admitting the complaint, notices were issued to the OP, who has appeared through counsel and filed the written version.

          4.       The brief facts of written version filed by OP No.2 are as under:

          OP denied the various allegations and contended that, the policy was issued on the signed consent who on understanding all the terms and conditions of the policy. The policy bearing No.0098221220 was issued in favour of LA with risk commencement date being 28.09.2019 and the policy document containing detailed terms and conditions were dispatched to the LA’s address vide Bluedart Via Air bill No.36855892802 and same stands delivered on 14.10.2019.   A free look period of 15 days was provided to the LA to review the policy contract and to request for cancellation of the policy in case, the LA was not satisfied with terms and conditions. Complainant did not request for alteration or cancellation of the policy. On 27.05.2022 complainant wrote a letter seeking cancellation of the policy after two years from the date of policy. So, Op is not liable to entertain the request to cancel or refund the premium amount. The said subject policy is unit linked investment policy, the fund value was subject to market performance it was communicated to complainant on 06.06.2022.  So there was no deficiency of service committed by the OP and no cause of action arose to file the complaint. Hence, prays for dismissal of the complaint.

          5.      To prove the case, the complainant has filed affidavit evidence and was examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-2 and Sri. Arindam Mishra for Op filed affidavit evidence and was examined as RW-1 and no documents got are marked.

6.      Complainant filed written arguments. Heard on both sides.

          7.      The points for our consideration arose are as under:

          i)        Whether the complainant proves that, there is                    a deficiency of service committed by the OP?

          ii)       Whether the complainant proves that, he is                        entitled for the relief?

          iii)      What order?

          8.      Our findings on the above points are as                     under:       

                   Point No.1: In affirmative.

                   Point No.2: In partly affirmative. 

                   Point No.3: As per final order.

REASONS

          9.       Point No.1 & 2:- The points are taken together to avoid the repetition of facts. In the written argument stated that,  as per evidence of PW-1 and Ex.C-1 & Ex.C-2 Complainant proved the case. The learned counsel for Op argued that, no deficiency of service is committed by the Op.

          10.    On careful perusal of the materials placed before us, PW-1 has filed affidavit in-lieu of his chief examination and reiterated the contents of the complaint.  PW-1 has stated that, The complainant has obtained policy from OP on 28.09.2019 Canara HSBC Oriental Bank of Commerce Life Insurance Titanium Plus Plan, bearing policy No.0098331220. The duration of the policy is 10 years, and Rs. Rs.2,00,000/-.    installment per year. The complainant has paid first installment Rs.2,00,000/- on 28.09.2019 and second installment of Rs.2,00,000/- dtd:28.09.2020 in all Rs.4,00,000/-. At the time of paying the third installment, on 28.09.2021 OP has informed through Phone message that, he has paid total amount of Rs.4,00,000/-.  But closing balance amount is Rs.3,95,313/- only. The complainant has personally visited the OP office and requested to pay the Rs.4,00,000/- as balance shown is less than actual amount paid. But OP has not given satisfactory reply. Then, on 13.01.2022 complainant has issued legal notice to OP. But, OP did not reply. Therefore, Ops has committed the deficiency of service.

          11. Per contra, RW-1 has filed affidavit and reiterated the contents of the written version filed by OP. RW-1 has stated that, the policy was issued on the signed consent who after understanding all the terms and conditions of the policy. The policy bearing No.0098221220 was issued in favour of LA with risk commencement date being 28.09.2019 and the policy document containing detailed terms and conditions were dispatched to the LA’s address vide Bluedart Via Air bill No.36855892802 and same is stands delivered on 14.10.2019.   A free look period of 15 days was provided to the LA to review the policy contract and to request for cancellation of the policy in case, if the LA was not satisfied with terms and conditions. Complainant did not request for alteration or cancellation of the policy. On 27.05.2022 complainant wrote a letter seeking cancellation of the policy after two years from the date of policy. So, Op is not liable to entertain the request to cancel or refund the premium amount. The said subject policy is unit linked investment policy, the fund value was subject to market performance it was communicated to complainant on 06.06.2022.  So there was no deficiency of service committed by the OP and no cause of action arose to file the complaint.

          12. At the very outset, Op is not disputing that, the complainant insured and obtained a policy bearing No.0098331220 on 28.09.2019 and also paid two installment Rs.2,00,000/- each and also wrote a letter for seeking cancellation of the policy on 27.05.2022. Main contention of Op is that, complainant did not approach with any discrepancies regarding terms and conditions, neither did approach for cancellation of the policy during Free Look Period. So, Op is not liable to entitled the request to cancel the policy or refund the premium amount.  Ex.C-2 well come letter dtd:08.10.2019 issued by the Op contains the terms and conditions and it is not disputed by the parties. Ex.C-1 legal notice issued by complainant to the Op is also not disputed. Anyhow, as per Ex.C-2 they have admitted the policy. No doubt in Ex.C-2 Free Look Period, is mentioned. After paying the two installments of Rs.4,00,000/- complainant stopped paying further installments with intention that, as the fund value at the end of the second year was lesser than premium amount. PW-1 has stated that, Op did not explain each terms and conditions of the policy on the good faith having with OP, he has simply put the signature on proposal form. RW-1 has stated that, as complainant being an educated and was working as Dean of University it is deemed that after knowing the contention and understanding, he has put the signature. So, terms and conditions of the policy are binding upon him. No doubt complainant being retired Officer and fully well-versed in English.  Whether, Op read and explained each terms and conditions and obtained the signature of complainant and he put the signature in good faith with Op Company is important aspect.

          13. As the policy document containing detailed terms and conditions were dispatched to LA’s address vide Bludart Via Airway bill No.36855892802 and stands delivered on 14.10.2019. Ops have not produced any documents to show that the complainant had received the said documents in time and for that reason he was unable to utilize the Free Look Period option.  On perusal of Ex.C-2 it contains 28 pages printed with small words, such being the case, normally it is not possible to read the entire 28 pages and put the signature by any person. Even, after stopping the payment of further installments, Op did not inform in writing to the complainant to pay the further installments otherwise they will cancel the policy. Op No.2 contend that, the subject policy is Unit linked investment policy, the fund value was subject to market performance and that was duly communicated to the complainant with reason vide letter dtd:06.06.2022. But Op has not produced annexure No.1 & 2 as stated in their objections as they have communicated to the complainant. Even after letter issued to Op for cancellation of policy they did not reply or refund to the complainant.

          14. In the written version, relying the decisions, Export Credit Guarantee Corporation of India Ltd. V/S Garg, Sons International 2013(1) Scale 410, Suraj Mal Ram Niwas Oil Mills (P) Ltd., V/s United India Insurance Co. Ltd., (2010) 10 SCC 567), General Assurance Society Limited V/s Chandumull Jain & Anr (1966) 3 SCR 500, United India Insurance Co. Limited V/s Harchand Rai Chand Rai Chandanlal I (2003) CPJ 393 & Vikram Greentech (I) Ltd. & Anr. V/S New India Assurance Co. Ltd., II (2009) CPJ 34, Bharti Knitting Company V/s DHL, Worldwide Express Courier (1996)  SCC 704, Vipin Kumar V/s ICICI Prudential Appeal No.95/2013, Mohan Lal Benal V/s ICICI Prudential Life Insurance Co. Ltd. (R.P. No.2870/2012 decided on 16.10.2012) and Harish Kumar Chadha V/ Bajaj Allianz Life Insurance Co. Ltd., (Decided on 07.10.2013 in R.P. No.3271 of 2013), Shrikant Murlidhar Apte V/s Life Insurance Corporation of India, Revision Petition No.634 of 2012, decided on 02.05.2013, SGS India Ltd., V/s Dolphin International Limited arising out of Civil Appeal No.5759 of 2009 decided on 06.10.2021, M/s Grasim Industries Ltd. & Anr. V/s M/s Aggarwal Steel 2010(1) SC 33.

          On careful perusal of above decisions, with due respect of the ratio, that, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then, he has affixed his signatures thereon, otherwise, no signature on a document can ever be accepted.

          Facts and circumstances, of the above decisions, are not similar with case in hand, and ratio is not applicable, as Op failed to prove that, policy issued without force, miss-representation or fraud.

          15. Complainant relying a decisions in Rajeev Goel V/S Aviva Life Insurance Company Ltd., in CC 231/12 dtd:20.07.2022, on the file of the Delhi State Consumer Disputes Redressal Commission, wherein para No. 14 observed as under:

          “ Now the question arises whether the complainant can exercise his right of cancellation after the expiry of free look period. To deal with this issue, we deem it appropriate to refer to the case of ‘Reliance Life Insurance Co. Ltd., And Ors. V/s K.S. Eshwarappa and Ors’ reported as ‘III (2015) CPJ 56 (NC)’ where the Hon’ble National Commission held as follows:”. 7. ….Thus, it becomes clear that, he received policy document well in time but either he intentionally did not read it PARTLY ALLOWED PAGE 6 OF 8 CC.NO.231/2012 SHRI RAJEEV GOEL V/S AVIVA LIFE INSRUANCE CO. LTD. & ANR. D.O.D:20.07.2022 or if read, for the purpose of taking benefit he denied that on account of good faith, he did not read the document. As per policy, free look period was provided to the complainant and in case this policy was not issued as per his instructions or he was not interested in continuing the policy, he could have availed free look period and could have requested for cancellation of policy and refund of permission”

          Further, Balajit Kaur V/s Aditya Birala Health Insurance Company in CC. No.862/19 dtd:01.02.2022, on the file of Additional Bench, State Consumer Disputes Redressal Commission, Panjab, Chandigrarh, Dr. Virendra Pal Kapoor V/S Union of India in R.P. 8879 (M/B) of 2013 the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench. 

                  As per decision, Civil appeal No.407/2022 dtd:20.05.2022, in Gurmelsingh V/s The Branch Manager National Insurance Company. Ltd., Wherein, it is held that;

                  “While settling the claims, insurance company should         not seek documents which are beyond the control of     insured to furnish”.

                   Further, held that, insurance company should not be to     technical and ask for the documents, which, the insured          is not in position to produce due to circumstances     beyond  his          control.  It is found that the insurance    companies are refusing the claim on flimsy grounds       and on technical grounds”.

                  The facts, circumstances and ratio of the above decision is aptly applicable to case on hand, as insurance company repudiated the claim on flimsy grounds.

                   16. For the above, complainant has proved that, OP has committed the deficiency of service and he is entitled for the installment amount of Rs.4,00,000/- paid to the Op. Complainant is claiming interest at the rate of 18 % p.a., which  is on higher side.  So, as per rate of interest in the Nationalized Bank, it is proper to award interest @ 9% p.a. from the date of writing the letter dtd:27.05.2022 for cancellation of policy. Complainant has suffered mental agony. So, complainant is entitled for a sum of Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of the complaint. Accordingly, we answer point No.1 in the affirmative and point No.2 in the partly affirmative.

          17.    POINT No. 3: In the result, we pass the following:

//O R D E R//

The complaint filed U/Sec.35 of the Consumer Protection Act, 2019, is partly allowed against Op.

Complainant is entitled from OPa sum of Rs.4,00,000/- with interest @ 9% p.a. since 27.05.2020 till realization.

Further, the complainant is entitled for Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of litigation.

Op is directed to pay the above entire compensation within two months from the date of this order

Office is directed to send the copies of this order to the parties free of cost.

         (Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Court on this  9^th day of December-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Shri. Dyamappa S/o Andappa Upadhya

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 :Legal notice dtd:12.01.2022      

Ex.C-2:Insurance Policy

EVIDENCE ON BEHALF OF OP:

RW-1:Arindam Mishra S/o Late Mr. Vijaya Mohan Mishra.

DOCUMENTS ON BEHALF OF OP:

                NIL

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER