Punjab

StateCommission

FA/12/749

Surinder Kumar Sharma - Complainant(s)

Versus

The Aviva Life Insurance Company Ltd. - Opp.Party(s)

R.K.Shukla

19 Mar 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No.   749 of 2012

                                                           

                                     Date of institution: 5.6.2012 

                             Date of Decision:19.3.2015

 

Surinder Kumar Sharma Aged about 65 years S/o Sh. Kundan Lal, R/o # 11, Malwa Colony, Patiala.

Appellant/Complainant

                                      Versus

1. The Aviva Life Insurance Company Ltd., Branch Office, SST Nagar, Opposite Narayan Hospital, Patiala through its Branch Manager/I.C.
2. Mr. Shushant Kumar Sharma S/o Sh. Subhash Chandar # 104, Ranjit Nagar, Near Ghuman Nagar, Sirhind Road, Patiala agent of Ops.
3. The Aviva Life Insurance Company Ltd., registered Office II Floor, Parkash Deep Building, 7 Tolstoy Marg, Delhi 110 001, India through its Chairman/Managing Director.

Respondents/OPs

 

First Appeal against the order dated 26.4.2012 passed by the District Consumer Disputes Redressal Forum, Patiala.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

          For the appellant             :         Sh. R.K. Shukla, Advocate

          For respondents No.1-3   :         Sh. Puneet Tuli, Advocate

          For respondent No.2        :         Ex.-parte.

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant (hereinafter referred as “the complainant”) has filed the present appeal against the order dated 26.4.2012 passed by the District Consumer Disputes Redressal Forum, Patiala(hereinafter referred as “the District Forum”) in consumer complaint No.46 dated 17.1.2011 vide which the complaint filed by the complainant was dismissed being barred by limitation.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short the Act) against the respondents/opposite parties(hereinafter referred as the OPs) on the allegations that OP No. 2 an agent of OP No. 1 approached the complainant that there was a policy for 5 years and the complainant had to deposit 5 installments on yearly basis for Rs. 40,000/- each i.e. total Rs. 2 lacs and after 5 years upon which Ops would pay a refund of Rs. 2.50 lacs and there will be insurance cover for 5 years. Accordingly, he purchased the policy in which his wife Sita Rani was nominee. The complainant paid three instalments of Rs. 40,000/- each in December, 2006, December, 2007 and December, 2008 and in all paid a sum of Rs. 1,20,000/-. However, the complainant was shocked to receive the account statement in which the fund value of his amount was just Rs. 90,490/-. Then he requested the OPs to refund the amount. After long persuasion OPs sent a cheque of Rs. 40,000/- and a sum of Rs. 80,000/- was outstanding.  Hence, the complaint was filed for the refund of that amount alongwith interest @ 18% p.a., a sum of Rs. 10,000/- as compensation and Rs. 5500/- as litigation expenses.

3.                The complaint was contested by OP Nos. 1 to 3 in which they took the preliminary objections that the complaint filed by the complainant was based upon conjectures and surmises; it was false, frivolous, vexatious and malafide as there was no deficiency in services on the part of the Ops, therefore, liable to be dismissed under Section 26 of the Act; the complainant had not approached the Forum with clean hands; no consumer dispute was involved in this complaint. The Ops had issued the policy on the basis of the proposal form submitted by the complainant and as per the terms and conditions of the policy after receiving the document; the complainant had a right to reconsider wherein  within free look period of 15 days, he could cancel the policy but no such right was exercised by the complainant. Further he had purchased Unit linked product and policies, which are market linked policies and are on fluctuations and that the complainant had paid three premiums and after that he did not approach the Ops for more than three years, therefore, the complaint was not maintainable at this belated stage, therefore, barred by limitation. On merits, the issuance of the policy as per the proposal form has been admitted. The complainant failed to exercise his right to reconsider during the free look period. Now the parties are to be governed by the terms and conditions of the policy. Other requirements as stated in the preliminary objections were reiterated. It was submitted that the complaint was without merit and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, statement of A/c Ex. C-2, letters Exs. C-3 to 5, postal receipt Ex. C-5, cheque Ex. C-6, pension details Exs. C-7 & 8. On the other hand, Ops No. 1 & 2 had tendered into evidence affidavit of Gaurav Malhotra, Manager Legal Ex. RW-1/A, proposal form Ex. R-1, standard terms and conditions Ex. R-2.

6.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint was dismissed by the learned District Forum.

7.                We have heard the learned counsel for the parties.

8.                In the grounds of appeal, it has been contended by the counsel for the complainant that the complaint was wrongly dismissed by the learned District Forum being barred by limitation. It has been observed by the learned District Forum that the policy was purchased in the year 2006 whereas the complaint was filed on 18.1.2011, therefore, barred by limitation. The cause of action to file the complainant arose on the date, the policy was purchased and on subsequent events with regard to the policy. Therefore, while taking the cause of action or considering the complaint for the purpose of limitation all the facts alleged in the complaint are to be considered and not only one fact that the policy was purchased in the year 2006 and the complaint was filed in the year 2011. 2006 is the year when the policy was purchased but in the year 2010, when he received the statement of account, he found his fund value as Rs. 90,490/- against the payment of Rs. 1,20,000/- and accordingly, vide letter dated 19.2.2010, he requested for the refund of the amount deposited by him. The said letter is Ex. C-2 and then notice asking for refund of the amount is Ex. C-3 and it was replied on 2.3.2010 (Ex. C-4) that his case is being investigated and they would get back to him at the earliest. Vide letter dated 6.3.2010 (Ex. C-6), refund of Rs. 40,000/- was given to the complainant. In case according to Ex. C-2 as on January, 2010, the fund value was Rs. 90,490/- then how a sum of Rs. 40,000/- only was refunded to the complainant. Therefore, cause of action will accrue to the complainant when notice of refund was issued and when deficient amount of Rs. 40,000/- was received without giving any explanation how this amount was arrived by the Ops and in case balance amount has not been paid then it will be a continuous cause of action. The counsel for the respondents was unable to rebut this preposition, rather, impliedly admitted that that in view of the facts stated above, the complainant had a continuous cause of action, therefore, the complaint filed by the complainant was within limitation. Apart from the date of the issuance of the policy, other facts have not been appreciated by the District Forum to return the findings how the complaint filed by the complainant was beyond limitation. Therefore, legally the order so passed by the learned District Forum is not sustainable and is hereby set-aside.

9.                In view of the above discussion, we accept the appeal. The order of the learned District Forum is set-aside. It is held that the complaint filed by the complainant is within limitation. The complaint is remanded back to the District Forum to decide the case on merits.

10.              The parties through their counsel are directed to appear before the learned District Forum, Patiala on 29.4.2015. Copy of the order alongwith record of the District Forum, Patiala be sent back forthwith.

11.              The arguments in this appeal were heard on 17.3.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

12.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

March 19, 2015.                                                      (Harcharan Singh Guram)

as                                                                                                Member