BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.138/2014
 

Date: 20^th day of October, 2016

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

03) Shri.Shravanakumar.D.Kadi                               Member…

                        M.Com.LL.B.  (Spl)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) seeking direction to Ops to refund the amount he has deposited with OP-Company along with interest at 21% p.a. from the date of deposit, till the realization. Rs.25,000/- towards mental agony and harassment caused to the complainant, Rs.5,000/- towards cost of the proceedings, any other reliefs as the Forum deems fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant had taken policy from the Ops on 17.09.2008 for yearly installment premium Rs.5,600/- for period of cover end date 17.09.2048. After collecting the 03 premium, the OP declares that if anybody deposits successive deposits then he is eligible for surrendering the Policy.

3.      The complainant has paid 03 premium totally he had paid Rs.16,800/- to the Ops. As the complainant not ready to continue the policy due to unavoidable circumstances, he claimed the Ops for payment of entire premium amount as the Terms and Conditions of the Policy provided refund the premium amount which was paid by the insured from the date of commencement after 03 years. Therefore, he was constrained issue a legal notice dated: 01.10.2013 to the Ops calling upon them to refund the amount RS.16,800/- inspite of receiving the notice, the Ops neither replied the same nor refunded the amount. The agent of the Ops-Company at the time of taking the policy assured to refund the policy amount as and when demanded by the complainant, but the 1^st and 2^nd Ops have not refunded the said amount which amounts to deficiency in service their part. Hence, the complainant filed the present Complaint for the reliefs as prayed for the Complaint.

4.      After issue of notice Ops appeared through Counsel and filed their Written Version. The Ops stated in this Written Version that those averments of the complainant which are specifically admitted on traversed rest are deemed to have been denied all the allegations made in the Complaint are false are not maintainable either in law or on facts. The complainant is misconceived and misconstrued and contrary to be contract between the parties. The complainant is barred by limitation. If the money can be invested in share market for the speculative gain, the matter does not come under the purview of the facts. Here the Policy valid by the complainant is a Unit Linked Policy wherein complainant has invested the same in the Bajaj Allianz assets allocation liquid fund as such this Forum had no jurisdiction to try the Complaint. The Policy valid by the complainant is a Unit Linked Policy and as per Terms and Conditions of the policy, the provisions of the Insurance Law with regard to the Unit Linked Policy risk of investment in the market under the Policy has to be borne by the policyholder. The premium amount is the consideration for taking risk of life of insured and premium so paid takes risk for the period for which the premium has been paid and Company has covered risk of the complainant till the date of foreclosure of the policy. Hence, the complainant prays for refund of entire premium amount along with other prayer is unsustainable in law. Since the premium is appropriated for the period of risk no rider or equity arises in favour of the insurer/complainant for seeking refund of premium amount. Now here in the Policy Terms and Conditions it is agreed that complainant is entitled for refund of entire premium amount paid by him. If the complainant is unable to continue policy, there is no deficiency in service on the part of the Ops. The complainant is not entitled for any of the reliefs as prayed for. Therefore, the complaint has to be dismissed with costs.

5.      To prove the case, the complainant filed his affidavit evidence which is marked as PW1 and got marked 07 documents as EX P1 to EX P7. On behalf of Ops one Sri.Virupaxagouda Patil, Branch Manager of OP-Insurance Company filed his affidavit which is marked as RW1.

6.      The Written Arguments filed by the complainant as well as Ops and heard the oral arguments on both sides.

7.      The main points that arise for our consideration are:

8.      After considering the evidence tendered by both parties and on careful consideration of the points urged during the course of arguments, our findings for the above points are as follows:

Point No.1 – In the negative,

Point No.2 – In the negative,

Point No.3 - As per the final order.

R E A S O N S

 9. POINT NO.1:  The complainant has filed this Complaint u/s 12 of C.P. Act, 1986 against the OP-Company alleging that one of the Agent of the Ops approached him and offered one of its policy products namely Unit Linked Policy. At the time of issuing the Policy to the complainant was told that after continuation of first 03 years of policy, the policy would be refunded the amount after 03 years. The complainant accepted the offer as explained by the Agent filled the Proposal Form and paid the first yearly installment amount of Rs.5,600/- on 17^th September, 2008. The complainant went on remitting premium from the date of policy that the 17^th September, 2008 till 17^th September, 2010 geninenessly without any break according to the complainant he denied the policy for 03 years, later he discontinued the remittance of regularly half yearly premium due to unavoidable circumstances. Hence, he is claiming the Ops to refund the amount which was paid by him. As the OP fail to repay the amount he issued legal notice to them on 01.10.2013 and 12.08.2014. But no avail alleging that offer said acts amount to deficiency in service on the part of Ops, the complainant has failed that instant Complaint.

10.         On receipt of notice issued by the Forum OP appeared though its counsel and he filed Written Version praying dismissed of the Complaint being not maintainable in the wake of Judgement. The Hon’ble Supreme Court of India in Life Insurance Corporation of India V/s Sindhu (2006) 5 SCC 258) has clearly held that the policy is a contract entered into between the LIC and the policyholder and the Terms and Conditions of the policy would be binding on the parties and the same cannot be Re-Written in exercise of writ Jurisdiction of this court.

The Hon’ble State Commission, Odisha. Cuttak in Appeal No.907/2012 has setting aside the order passed by the DCDRF, Koraput, in CC No.27/2012 has clearly observed that:       

           “As per Section 227 of Contract Act, 1872, when an gent does more than he is authorized to do and when the part of what he does - which is within his authority – can be separated from the part which is beyond his authority, so much only of what he does as is within his authority, is binding as between him and his principal. So, the agent should have explained the terms and conditions of the policy truly to the respondent, if at all, he induced the respondent of getting huge profit in case he invests the money in the aforesaid policy, the appellants would not be responsible for the act of his agent. Particularly when there is no allegation that the appellants instructed the agent to give false assurance to the respondent.”

11.         That the complainant signed the Proposal Form for the purchasing of Unit Linked Policy known as Bajaj Allianz Family Assured Account for speculative gain in pursuance of which policy No.108824885 was issued by the OP it has been alleged that the said policy is Unit Linked Policy thereby the investment by his main through Share Market or speculative transactions and main motive for investments is for profit and gain.   

12.         This Ops submitted that there is no deficiency in service on the part of Ops as per Revneet Singh Bagga V/s KEM Royal Dutch Airlines (2000) 1 SCC 66 where the Hon’ble Supreme Court laid down that the test of deficiency in service by stating that “The deficiency in service cannot be alleged without attributing fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the OP. The deficiency in service has to be distinguished from the tortuous acts of the OP. In the absence of deficiency in service the aggrieved person may have a remedy under th common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the OP which otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the OP is found to be in good faith, there is no deficiency in service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona-fide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”

Hence, Complaint is liable to be dismissed.

13.         We have gone through Written Argument submitted by the parties and heard the arguments addressed by the learned counsel.

14.         There is no dispute between the parties regarding insurance policy and payment of 03 yearly premiums EX P1 and EX P2 proves the payment of the premium to the Ops. The Ops also not denied this payment.

15.         We have given thoughtful consideration on the Proposal Form perusal of copy of the Proposal Form as EX P3 as well s shows that policy purchased by the complainant is Unit Linked New Family. It is made clear in the standard policy provisions that the policy of the complainant is a regular premium Unit Linked Life Insurance Policy being Unit Linked Policy. The policy will participate in the investment performance of the funds of the OP-Insurance Company chosen by the complainant to the extent of the Assets allocated units.

16.         All the Unit Linked Policies are different from traditional insurance policies and are subjected to different risk factors. In the said policy investment risk in investment portfolio is borne by the policyholder. The copy of the Judgement dated: 23.04.2013 in Revision Petition No.658/2012 titled as Ramlal Agarwala V/s Bajaj Life Insurance Company Limited and other (supra) shows that the dispute was regarding Unit Linked Policy and the claimed under that policy was disallowed by the District Forum by the making following observations. In the investment made by the Petitioner or complainant was to gain profit. Hence, it was invested for commercial purpose and therefore the Petitioner or complainant is not a Consumer under the Opposite Parties. The Hon’ble State Commission, Odisha in first Appeal No.162/2010 in the case of Smt.Abantikumari Sahoo V/s Bajaj Allianz Life Insurance Company Limited have held that the money of Petitioner or complainant invested the Share Market is no doubt speculative gain and speculative investment matter does not come under the C.P. Act, 1986 and accordingly the Hon’ble State Commission dismissed the Appeal.

17.         Pertinently gain the order of District Forum, the complainant filed an Appeal before the Hon’ble State Commission which was dismissed dissatisfied with that order, the complainant filed the Revision Petition before the Hon’ble National Commission, the Hon’ble National Commission did not find any jurisdiction error illegality or infirmity in order passed by “Hon’ble State Commission warranting interference the matter relating to Unit Link Policy was also agitated in Smt.Paramjeet Kaur V/s Aviva Life Insurance Company Limited (Supra) decided by Hon’ble State Commission Punjab on 04.07.2014 and Met Life India Insurance Company V/s Gurjitsingh (Supra) on 22.09.2014 and it was held that the complainant in respect of claim under Unit Linked Insurance Policy is not maintainable under the C.P. Act, 1986. Money having been invested speculative business. Hence we are of the opinion that in view of the Law laid down in the above cited Rulings the present Complaint filed by the complainant is not maintainable.

18.         For the above reasons recorded above since the Consumer Complaint filed by the complainant is not maintainable. Deficiency in service cannot be attributed by the complainant against the OP-Insurance Company. Accordingly, this point answering to negative.

19.  POINT NO.2: As the complainant filed to prove the deficiency in service against the Ops is not entitled for the reliefs is prayed in it. Accordingly, we also answer this point in negative.            

  20.  POINT NO.3:  In view of our findings recorded to Point No.1 and 2, we proceed to pass the following:

//ORDER//

1. The Complaint filed by the complainant is hereby dismissed.

2. No order as to costs.
3. Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 20^th day of October, 2016)