Debasis Bhattacharya:- PRESIDING MEMBER
Being aggrieved by and dissatisfied with the services extended by the opposite parties as mentioned above viz. ICICI Prudential Life Insurance Co. Ltd. (hereinafter referred to as OP 1) and ICICI Bank Ltd. (hereinafter referred to as OP 2), in the matter of opening of two insurance policies, discontinuation of the same by the OP 1 and transfer of a dissatisfactory amount to the petitioner by cheque on discontinuation of the policy, the instant case has been filed by the complainant, u/s 35(1)(a) of the Consumer Protection Act 2019.
After trimming the unnecessary details, the fact of the case is as follows.
The complainant who had his account with opposite party no. 2, opened two Policies with the OP 1 under the name Pru-i-protect smart policy, one on 24.08.2019 and the other on 20.12.2019 for a term of 27 years each. The yearly premium in respect of the first one bearing no.45995339 was to the tune of Rs.9650/- and Rs.10,376/- in respect of the other one bearing no.63093897 and the premiums were to be auto debited from his account maintained with OP -1 in terms of the auto debit mandate given by the Complainant himself.
At the very outset it will be worth mentioning that while applying for the policies, the Complainant in spite of being a habitual smoker declared himself as a non-smoker so far as the health declaration columns of the application forms are concerned. And here lies the focus of the instant case.
However, the Complainant petitioner on 13.10 2020 sent an intimation to the OP-2 through e-mail admitting that there was a wrong health declaration while applying for the policies and he was actually a smoker.
At this, the OP Insurance Company asked the Complainant through two e-mails the first dtd.22.10.20 and the second dated 27.11.20 that being a smoker he was liable to pay ‘XRT’ amount i.e. additional yearly premium of Rs.6134/- in respect of the first policy and Rs.5635/- in respect of the second one, sign the respective consent slip accordingly and send the same to the OP Insurance Company within 30 days from receipt of the respective mails if the offers were acceptable to him.
So far as the policy bearing No.63093897 is concerned, the complainant declined to accept the offer due to his financial stringency and thus the policy got lapsed automatically. Hence any further discussion on the issue related to the first policy will be redundant.
On the other hand the Complainant accepted the offer in respect of the second policy bearing no.45995339 and sent a mail in this regard on 26.12.20 along with the consent slip.
On 03.05.21 a communication was made by the Complainant with the Grievance Redressal Committee through his Advocate stating the details but no reply to the said communication was received by him.
However on 10.07.2021 the Complainant received a letter dtd.05.07.2021 along with a ICICI Bank cheque bearing no.774684 of Rs.19,148/- issued by the Head Office of the OP 1 wherein it was clearly stated that with reference to the Complainant’s request for cancellation of Application No. OS11777735 corresponding to Policy No.45995339 for an ICICI Pru iProtect Plan, the said request was accepted and the appropriate refund was issued through a cheque.
Here the Complainant points out that in his communication made to the OP 1 he never asked for cancellation of the policy.
As regards health declarations made in the application form, the Complainant claims that the ‘agent’ of the OP 1 at the time of selling the said policies neither asked for any health check up nor enquired about any smoking and drinking habit. The Complainant claims that the onus of proof lies with the OPs in respect of any information not so recorded.
The Complainant puts stress also on the issue that there should have been a medical test before approval of the policies and copy of the proposal form, documents submitted with the form and the medical report should have been attached with the policy bond for future reference by the policy holder. The Complainant claims to have received the customer declaration and the Direct Debit form only as annexures.
The Complainant admits to have stopped the payment of premiums as the fate and status of the policies were unknown to him.
Considering the treatment extended to him by the OPs as unfair trade practice, the complainant in his petition prays for a direction to the opposite parties to refund the entire premium of Rs.10,376/- paid by the Complainant against the policy bearing no. 63093897, to pay Rs.1,50,000/- as compensation for causing mental agony, pain, anxiety and unnecessary harassment, interest @18% on the sum of Rs.1,50,000/- with effect from 13.10.2020 till payment of such amount, and Rs.25,000/- against litigation cost.
Evidence on affidavit and Brief Notes of argument submitted by the Complainant are almost replicas of the Complaint petition.
The Complainant along with the Complaint petition has submitted copies of policy documents, communications made to the OP and received from the OP, communication made to the grievance redressal committee of the OP etc.
Issues for consideration
- Whether the complainant is the consumer as defined in the Consumer Protection Act.
- Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.
- Whether there is any deficiency of service on the part of the opposite party.
- Whether the complainant is entitled to get any relief.
Decision with reason
Issue No. 1
In view of the above discussion and on examination of available records it transpires that the complainant is a consumer so far as the appropriate provisions of the Consumer Protection Act 2019 are concerned.
Issue No. 2
The complainant and the opposite party no.1 are resident/having their office address within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-
Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Issue No. 3 and 4
The issues being mutually inter-related, are taken together for convenient disposal.
OP 1 contested the case by filing written version, evidence on affidavit and Brief Notes of Argument denying inter-alia all the material allegations leveled against them and prayed for the dismissal of the instant case.
However as the OP2 never appeared before this Commission in spite of proper service of notice, the case runs ex parte against OP 2 who was actually corporate agent of OP 1.
In this connection it may be mentioned that ICICI Prudential Life Insurance Company i.e. OP 1 is a joint venture between ICICI Bank Ltd. i.e. OP2 and Prudential plc. a leading international financial services group headquartered in the United Kingdom.
OP 1 clarifies in their written version that based on the information provided by the Complainant in the application form and consent given in the duly signed Customer Declaration Forms both the policies were issued considering that the Complainant had duly understood the terms and conditions under the policies.
OP 1 further affirms that in accordance with clauses 10(1) and 8(1) of IRDA (protection of policy holders interest) Regulations 2017 policy documents was sent to the Complainant with a forwarding letter allowing a 15 days Freelook provision which allows the Complainant to approach to the Company in case of detection of any discrepancy or for any rectification or cancellation. However no request for any sort of rectification or for cancellation was received by the OP 1 and thus the subject policies continued.
In this connection the OP 1 relies upon the Judgment passed by the Hon’ble National Consumer Disputes Redressal Commission in the case of Mohan Lal Benal Vs. ICICI Prudential Life Insurance Company Ltd. (R.P. No. 2870/2012 decided on 16.10.2012) and Harish Kumar Chadha Vs. Bajaj Allianz Life Insurance Company Ltd. (decided on 07.10.2013) where it was pronounced that if the Insured/Complainant is not satisfied with the policy taken then he/she should avail the option of returning the policy within 15 days of receipt i.e. within the ‘Free Look Period’ .
OP 1 points out that after almost one year since issuance of Policy No.45995339 and ten months since issuance of policy No.63093897 informed the Company that he had declared himself as non-smoker under both the policies and the said declaration was incorrect.
Consequent upon the Complainant’s admission that his initial declaration was incorrect and actually he is a habitual smoker, the OP insurance Company enhanced the yearly premium amount and the status of the policies became as under.
Policy No.63093897:- OP insurance Company asked the Complainant to provide his consent in the matter of XRT amount of Rs.6134/- per year. However the policy got lapsed as the Complainant declined to give his consent and by the time second renewal premium which was due could not be auto-debited in absence of the said consent in spite of reminder e-mail sent by the OP to the Complainant.
Policy No.45995339:- In this case though consent was given by the Complainant but the XRT amount i.e. the enhanced premium amount eventually was not paid by the Complainant. Resultantly the policy got cancelled due to non-payment of XRT amount. Op 1 here mentions that the direct/auto debit facility availed by the Complainant was towards debit of renewal premium from his bank account and did not apply to XRT charges which were applied on the policy post issuance of the policy.
OP insurance Company claims that so far as the ECS mandate signed by the Complainant was concerned the provision was only for auto deduction of renewal premium and not for debiting any other amount through the ECS system.
The OP insurance Company claims to have acted in accordance with the terms and conditions of the policy and an insurance policy being a contract it must be strictly construed in the letter and spirit of the agreed terms and conditions of the insurance contract.
The OP insurance Company retaliates also to the proposition placed by the Complainant that one Smt. Shubhra Debnath was an agent in the matter of the policies. It is placed before this Commission that it is not that Shubhra Debnath but ICICI bank was the Corporate agent of the OP Insurance Company. It is further brought to the knowledge of the Commission that an insurance agent primarily acts on behalf of a customer and not on behalf of an Insurance Company and an Insurance Company does not have any administrative control over the Insurance agent.
The OP Insurance Company puts stress on the issue that it is also a settled principle of law that if any person signs any document, it is presumed that he/she has signed the same on proper perusal of the document.
The OP Insurance Company thus asserts that there was no deficiency of service on the part of the Respondent Company while rendering services to the Complainant.
Decision with Reasons:
Materials on records are perused. The surprising and somewhat queer aspect of the case which deserves mention here that the Complainant petitioner while seeking directions to be imposed on the OP Insurance Company by the Commission, nowhere in the respective part of the Complaint petition utters a single word about change of status of the policy or revival of the policy. The Complainant simply harps on the issues related to compensation, interest on the said compensation and litigation cost which indicates that the Complainant simply is not bothered about restoration of the policy no. 45995339.
The hard reality is that while applying for the policies, the Complainant declared himself as a non-smoker and apparently that was blatant suppression of fact even if not deliberate.
There was no reason for failure to make out the declarations made in the application form and the content of the policy documents, when the Complainant was a graduate.
The Complainant cannot take recourse to the plea that he signed the proposal form containing a false statement without either reading or understanding it. In filling up the proposal form, the so called ‘agent’ usually ceases to act as an agent of the insurer but becomes the agent of the insured and no agent is supposed to have authority from the insurer to fill up the proposal form on behalf of the applicant.
However even after having a freelook period the complainant petitioner did not feel it a necessity to approach to the OP Insurance Company for necessary rectification.
However in the direct debit application form, the Complainant’s declaration is as follows.
‘I hereby instruct the bank to debit my account and pay to ICICI Prudential Life Insurance Company Ltd. as per the demand sent by ICICI prudential Life Insurance Co. Ltd. as and when presented.’
Thus the OP Insurance Company’s argument that the additional premium amount in the form of ‘XRT’ charges could not be debited from the account of the Complainant is too hollow to be appreciated.
On the other hand the Complainant admits in para-12 of the Complaint petition that he had stopped paying premium as he ‘miserably failed to understand the fate and status of his policies’. Here the question automatically arises that how he stopped paying premiums when there was an auto debit mandate.
Moreover it is also a fact that so far as the policy no. 45995339 is concerned, the Complainant never asked for cancellation of the policy.
In all likelihood the Complainant was under the notion that the ‘XRT’ charges would be auto debited from his account.
The Commission might be inclined to impose direction upon the OP 1 to revive the policy with retrospective effect on realization of all due premiums and on observation of other required formalities had the Complainant incorporated a single sentence in the respective part of the complaint petition expressing his interest in revival of the policy.
In view of the above, this Commission is compelled to refrain from passing any direction in the matter of the revival of the policy.
The Complaint petition emanates from cancellation of the policy. Thus the focus should have been on the revival of the policy. But the Complainant astonishingly shifted the focus from revival of the policy to realization of compensations and litigation cost.
This District Commission is not expected to grant award exclusively in the form of compensation and litigation cost and thus become a source of earning easy money.
Hence it is
ORDERED
That the complainant case no.93/2021 be and the same is dismissed on contest. However there is no order as to costs. Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information and necessary action.
The final order will be available in the website www.confonet.nic.in
