Andhra Pradesh

Chittoor-II at triputi

CC/28/2018

P.Eswara Rajasekhar, S/o Late P.Radha Krishnaiah, - Complainant(s)

Versus

The Branch Manager, The Max Life Insurance Co. Ltd., - Opp.Party(s)

P.Govindaswamy Reddy

01 Feb 2019

ORDER

Filing Date: 21.04.2018

Order Date:01.02.2019

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

FRIDAY THE FIRST DAY OF FEBRUARY, TWO THOUSAND AND NINTEEN

 

 

 

C.C.No.28/2018

 

 

Between

 

 

Sri.P.Eswara Rajasekhar,

S/o. late P. Radha Krishnaiah,

D.No.4-121/1, Srinivasa Mangapuram,

Chandragiri Mandal,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         The Branch Manager,

            The Max Life Insurance Co. Ltd.,

            No.15/295, 1^st Floor, Brindavanam,

            Nellore – 524 001.

 

2.         The Superintendent of Post Offices,

            Tirupati Division,

            Tirupati.

 

3.         The Superintendent of Post Offices,

            Nellore Division,

            Nellore.                                                                                  …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 18.01.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.P.Govindaswamy Reddy, on behalf of the complainant, and Sri.S.M.Jhan, counsel for opposite party No.1, and Sri.K.Ajayakumar, counsel for opposite parties 2 and 3,  and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12  of C.P.Act 1986, with the following allegations –

2.  The complainant has obtained Max Life Insurance Policy No.263844714 by paying a sum of Rs.14,999/-, by way of cheque through SBH, Tirupati, dt:13.11.2014, but he did not receive original policy bond till 30.08.2015. Opposite party No.1 has not complied the terms of the contract of the policy, and as such complainant sent back the original bond to opposite party No.1 with a request to cancel the policy and refund the policy amount paid by him. There is deficiency in service on the part of opposite party No.1, as they did not send the policy within prescribed time. The complainant suffered mental agony due to delay in sending the policy bond. As he was not satisfied with the services of opposite party No.1, he wanted to cancel the contract of insurance with opposite party No.1. He addressed a letter dt:01.09.2015 to opposite party No.1 through registered post and acknowledgement due, proposing cancellation of insurance policy, for which there was no proper reply from opposite party No.1. The register post was returned with endorsement “No such addressee in this office”. Again the same cover was sent by the complainant by registered post acknowledgement due vide receipt No.EN4864848791IN on 03.11.2015. But the same was returned with endorsement “as refused”. Opposite party No.1, in collusion with opposite party No.3 managed postal authorities and got returned the registered post with false endorsements. The complainant again sent cover through register post acknowledgement due cover to opposite party No.1 and this time opposite party No.1 sent letter to complainant dt:16.10.2015 stating that ‘free look period has lapsed’. The insurance policy provides only death benefits. Maturity or surrender benefits would not be paid to the customer. Opposite party No.2 replied to complainant stating that complaint made against opposite party No.2 has been forwarded to Nellore office for taking further action. The complainant finally addressed a letter dt:20.03.2017 requesting the ombudsman, Hyderabad, to arrange refund of the policy amount of Rs.14,999/- and the same was acknowledged by ombudsman. Subsequently, opposite party No.1 sent the insurance policy document after lapse of long time. It is alleged that opposite parties 1 to 3 committed deficiency in service in not discharging their legitimate duties due to which complainant suffered mental agony and as such they are liable to pay Rs.1,00,000/- towards pain and suffering undergone by the complainant. He also caused legal notice dt:24.11.2017 to opposite parties 1 to 3, calling upon opposite party No.1 to refund Rs.14,999/- and to pay Rs.1,00,000/- towards compensation. Having received the notices, they did not comply the demands of complainant and issued evasive reply. Hence the complaint to direct opposite party No.1 to refund Rs.14,999/- and to direct opposite parties 1 to 3 to pay Rs.1,00,000/- towards compensation for undergoing mental agony and physical pain and to pay Rs.10,000/- towards costs of the litigation.

3.  Opposite party No.1 and opposite party No.2 filed separate written versions, whereas opposite party No.3 filed adoption memo adopting the written version of opposite party No.2.

4. Opposite party No.1 contended as follows – Without prejudice to the defenses and contentions available to this opposite party, they wish to settle the matter amicably with the complainant by refunding the premium amount of Rs.14,999/- along with interest at 4% p.a. from 13.11.2014 till realization in favour of the complainant. However, the allegations made in the complaint are false and malicious and amounts to abuse of process of law. It is an attempt to waste the precious time of this Forum, as the complaint was filed by the complainant just to gain undue advantage. The complaint is liable to be dismissed under Section-26 of C.P.Act. The averments of the complaint are denied, as baseless and with malafide intention. The complaint does not fall within the definition of ‘consumer dispute’ under the Act, as there is neither unfair trade practice nor there is deficiency in service on the part of the opposite party. According to opposite party No.1, complainant, after completely understanding the terms and conditions of the policy, had applied for the policy by filling the proposal form. On the basis of information provided by the complainant, policy bearing No.263844714 was issued on 13.11.2014 stipulating for annual premium of Rs.14,549.87/-. Thereafter policy document was delivered to complainant on 27.02.2015. In the welcome letter it is clearly stated that incase the complainant had any objections with respect to the policy, he is entitled to request for cancellation of policy within free look period of 15 days. However, opposite party No.1 never received any complaint with respect to the said policy from the complainant within the free look period. Thus, it was presumed that a legally valid contract was concluded between the parties. The opposite party for the first time on 06.10.2015 received letter of request from the complainant, wherein it is stated that complainant was dissatisfied with the terms of the policy and sought for cancellation of the policy and to refund the premium amount. The opposite party vide letter dt:16.10.2015 declined the request of the complainant for the reason that the request was made beyond the free look period of 15 days, stated in the terms of the policy. Since the complainant did not request for the cancellation of policy within the free look period of 15 days, opposite party is not entitled to entertain any complaint in respect of the policy after the expiry of 15 days. As per the terms of the policy and as per Clause-6(2) of IRDA Regulations 2002, policyholder can request for the cancellation of policy within a period of 15 days from the receipt of the policy documents. The complainant thereafter served a legal notice on 28.11.2017 on opposite party claiming refund of premium amount along with compensation of Rs.1,00,000/-. The opposite party vide letter dt:21.02.2018 informed the complainant that as an exception, opposite party is ready and willing to cancel the policy and refund the premium amount of Rs.14,999/-, but the complainant choose to file this complaint with malafide intention to make wrongful gain. It is submitted that the compensation should be commensurate with loss and injury suffered by the complainant. The opposite party referred National Commission decision in Surendra Kumar Tyagi vs. Jagat Nursing Home and Hospital and Another reported in IV (2010) CPJ 199 (NC), and another decision reported in AIR 2000 Supreme Court 3138 between Charan Singh vs. Healing Touch Hospital and Others, in support of their case. The opposite party denied the contents of paras 1 to 9 of the complaint, and prayed to dismiss the complaint, as there is no adjudicable grievance against opposite party No.1.

5.  Opposite parties 2 and 3 contended as follows – At the outset all the allegations made in the complaint are denied. It is stated that delivery slip in respect of speed post article dt:03.11.2015 alleged to have been addressed to opposite party No.1 is not available. The preservation period of registered list / delivery slips is only 18 months, as per Postal Department Manual Annexure-A i.e. Rules and Regulations of the Department. So, said records have been weeded-out on 13.05.2017. Hence, it is not possible to trace-out the remarks of the postman made in delivery slips. Department received a legal notice on 24.11.2017 for which a reply has been given on 22.12.2017 by the Department at Nellore Office. With regard to the allegations against 1^st opposite party, this opposite party is not concerned and unaware of the same. This opposite party is an unnecessary party and for the sake of jurisdiction, opposite party No.2 is shown as party to the proceedings. There is no legal notice caused to opposite party No.2 in this case. The complainant is bound to prove the documents bearing Nos.6 and 7 relating to opposite parties 2 and 3. It is the burden of the complaint to prove deficiency in service. As the custody of document No.6 is with the complainant, there is every possibility of misuse of the same to meet his needs. There is no negligence or deficiency in service on the part of opposite party No.3. When the letter dt:03.01.2015 is returned on the ground of refusal as alleged in the complaint, it is for the opposite party No.1 to respond as to why they refused to receive the letter. As per the policy dt:13.11.2014 free look period is only 30 days i.e. till 13.12.2014, but the request was made by the complainant vide letter dt:01.09.2015 or 03.11.2015, which is beyond 11 months of free look period and the same amounts to violation of terms of contract. The complainant is therefore cannot claim any relief against the opposite parties on the ground of mental agony and suffering. The complaint is filed on 21.04.2018 and letter of refusal by opposite party No.1 is dt:16.10.2015, which is beyond the period of limitation of two years as per C.P.Act. There is no cause of action as against opposite parties 2 and 3. Hence the complaint is liable to be dismissed.

6.  The complainant filed his chief affidavit as P.W.1 and marked Exs.A1 to A19. On behalf of opposite party No.1 one Mr.Aanchal Yadav, Manager (Legal), filed chief evidence affidavit as R.W.1 and got marked Exs.B1 to B3. On behalf of opposite party No.2 one Mr.G.Srinivasa Murthy, filed chief evidence affidavit as R.W.2 and marked Exs.B3 to B5. On behalf of opposite party No.3 one Mr.Modalier Chandrasekhar, Superintendent of Post Offices, Nellore, filed chief evidence affidavit as R.W.3. No documents are marked.

7.  The point for consideration is whether there is deficiency in service on the part of opposite parties 1 to 3 as alleged by the complainant? If so, to what extent the complainant is entitled for the reliefs sought?

8.  Point:- It is not in dispute that the complainant obtained policy bearing No.263844714 from opposite party No.1, by paying premium of Rs.14,999/-, by way of cheque dt:13.11.2014 vide Ex.A1 dt:23.11.2014. According to complainant (P.W.1), he received the policy by way of registered post acknowledgement due on 31.08.2015. Not satisfying with the terms and conditions of the policy, on the very next day i.e. 01.09.2015, P.W.1 had returned the policy by post to opposite party No.1, requesting to cancel the same. Ex.A2 is letter dt:01.09.2015 addressed to opposite party No.1, requesting to cancel the policy and arrange for refund of premium amount of Rs.14,999/-. It is the contention of P.W.1 that opposite party No.1, in collusion with opposite parties 2 and 3 got managed to return the letter of complainant with false endorsement ‘No Such Addressee’ and when the returned cover was again sent to the same address by the complainant, opposite party No.1 received the same and issued reply on 16.10.2015 stating that free look period has lapsed and as such the policy cannot be cancelled. Ex.A3 is letter dt:15.09.2015 addressed by complainant to opposite party No.1 making similar request to cancel the policy and refund the premium amount. In the said letter it is mentioned that the letter dt:01.09.2015 (Ex.A2) was returned with false endorsement. Ex.A4 is letter addressed by opposite party No.1 expressing their inability to cancel the policy and refund the premium amount, as the free look period is lapsed. For this Ex.A5 was addressed by complainant to opposite party No.1 on 26.10.2015. First returned cover is marked as Ex.A6 and second returned cover is marked as Ex.A7. It is the submission of counsel for complainant that the postal department was managed by opposite party No.1, to return the covers with wrong endorsement. It is further submitted by the counsel for complainant that soon after receiving the policy on 31.08.2015, on the very next day he returned the policy bond with a request to cancel the same, as the complainant was not satisfied with the terms and conditions of the policy. Exs.A1 and A2 clearly prove that complainant had taken steps immediately to cancel the policy. No doubt opposite party No.1 had contended that free look period is 15 days after issuance of the policy. The policy is dt:23.11.2014. However the same was received by the complainant on 31.08.2015 only. The complainant counsel argued that from 31.08.2015 within 15 days the complainant had requested for cancellation of the policy, but opposite party No.1 in order to evade refund of premium amount by cancelling the policy, managed to return the cover sent by the complainant with false endorsement in collision with postal department (opposite parties 2 and 3). Opposite parties 2 and 3 denied these allegations. Ex.A8 dt:16.11.2015 shows that the complainant sent cover by RPAD through postal department – opposite party No.2. Ex.A9 is letter by complainant dt:14.12.2015 addressed to opposite party No.2 with same contents as in Ex.A8, with reference to the returned cover contending the endorsement ‘No Such Addressee’. Ex.A10 is letter addressed to opposite party No.2, wherein complainant requested to make enquiry with regard to the postal cover sent to the address of opposite party No.1, as to whether the same was received by opposite party No.1 or not, as even after 5 months there was no reply from opposite party No.1. Ex.A11 is letter from the office of the Post Master, Head Post Office, Tirupati, to the Superintendent of Post Office, Tirupati Division, Tirupati, to take further action on the complaint dt:05.04.2016 submitted by the complainant. Ex.A12 is the letter dt:05.05.2016 by complainant to the Chief Post Master General, Hyderabad, with regard to the earlier complaint dt:05.04.2016. Ex.A13 is the letter dt:20.03.2016 by the complainant to Office of Insurance Ombudsman, Hyderabad, to take further action in the matter. Thereafter legal notice was issued on 24.11.2017 by the complainant counsel to the opposite parties, demanding to refund of Rs.14,999/- towards premium amount already paid and also to pay Rs.50,000/- towards compensation. Ex.A15 is acknowledgement for Ex.A14.  Ex.A16 is letter from opposite party No.2 to the counsel for complainant stating that opposite party No.1 comes under the delivery jurisdiction of Nellore Head Post Office, which in turn comes under the administrative jurisdiction of Superintendent of Post Offices, Nellore Division, Nellore. Ex.A17 is legal notice dt:03.12.2017 issued by the counsel for complainant to opposite parties 1 and 3. Ex.A18 is letter from O/o. the Superintendent of Post Offices, Nellore, to the counsel for complainant. Ex.A19 is letter dt:21.02.2018 from opposite party No.1 to the counsel for complainant stating that as an exception and as a service gesture, they are ready to cancel the policy and refund the premium amount of Rs.15,000/- to the complainant and further requested the complainant to confirm the said proposal by return of email / letter, if he agrees for the offer as full and final settlement of his grievance, and further asked him to furnish certain documents as mentioned in the letter under Ex.A19. There is no dispute with regard to Exs.B4 and B5 filed by opposite party No.2 Postal Department in order to prove that Regd. Lists / Delivery Slips will be preserved for a period of 18 months and thereafter they would be weeded out. It is the contention of opposite party No.2 that delivery slips in respect of speed post article dt:03.11.2015 alleged to have been addressed to the 1^st opposite party is not available, as the preservation period of registered list / delivery slips is only 18 months as per Postal Department Manual Annexure-A i.e. Rules and Regulations of the Department. So, said records have been weeded-out on 13.05.2017. It is further contended that it is not possible to trace-out the remarks of the postman made in delivery slips. Opposite party No.2 contended that it is not at all concerned with the allegations made against opposite party No.1 and they are unaware of the same, and as such they are un-necessary party to the case.

9.  During hearing, opposite party No.1 counsel stated that infact opposite party No.1 is ready to settle the matter by paying the entire premium amount of Rs.14,999/- to complainant as a goodwill gesture and therefore to that extent relief can be granted to complainant. Whereas the complainant counsel argued that there is deficiency in service on the part of opposite parties 1 to 3, and therefore complainant is entitled for compensation as prayed for besides litigation expenses. So far as deficiency in service is concerned, it is the submission of opposite party No.1 counsel that even before filing the complaint itself, opposite party No.1 had addressed letter under Ex.A19 dt:21.02.2018 that they are ready to settle the matter with complainant, but the complainant is not coming forward for settlement, and filed this complaint. It is true that opposite party No.1 is ready to settle the matter with the complainant even prior to filing the complaint. The complaint was filed on 21.04.2018 and Ex.A19 is dt:21.02.2018. In view of the facts and circumstances of the case, there is no need for this Forum to go into the allegations as to collusion aspect between opposite parties 1 to 3. It is for the complainant to prove that opposite party No.1 managed with opposite parties 2 and 3, to get wrong endorsement on the returned cover. No doubt, opposite party No.1 has received the postal cover when it was sent second time to the same address. Anyhow opposite party No.1 has already expressed willingness to settle the matter with the complainant. The complainant ought not to have approached this Forum seeking compensation. We hold that it is not a fit case to grant compensation and costs to the complainant. Accordingly the complaint is allowed partly.  

10.  In the result, complaint is partly allowed directing the opposite party No.1 to refund the amount of Rs.14,999/- (Rupees fourteen thousand nine hundred and ninety nine only) within a period of one month, failing which said amount shall carry interest at 9% p.a. from the date of this order, till realization. So far as compensation and costs of the litigation are concerned, we are of the view that the same cannot be granted and hence rejected. Complaint against opposite parties 2 and 3 is dismissed.                              

 

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 1^st day of February, 2019.

 

        Sd/-                                                                                                                     Sd/-                                  

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: P. Eswara Rajasekhar (Chief affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1:  Aanchal Yadav(Evidence affidavit filed).

RW-2:  G. Srinivasa Murthy (Chief Affidavit filed).

RW-3:  Modalier Chandrasekhar(Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original copy of Max Life Insurance Policy, Policy bearing No.263844714 issued by the opposite party No.1.  Date of Proposal: 13.11.2014. Dt: 23.11.2014.
	Complaint given by the Complainant to the Opposite Party No.1 regarding the Cancellation of insurance policy No.263844714 issued by the opposite party No.1 and  Refunding of policy amount and given by the opposite party No.1 stating that unable to process due to signature mismatch, along with postal receipt. Dt: 01.09.2015.
	Resubmission of complaint Dt: 15.09.2015 along with crossed SBH cheque (20328 SBH Tirupati Main) bearing No. ‘402764’ submitted to the opposite party No.1.
	Letter addressed by the opposite party No.1 regarding ‘Response to your concern regarding policy 263844714’ to the complainant. Dt: 16.10.2015.
	Letter addressed by the complainant regarding the Cancellation of insurance policy No.263844714 to the opposite party No.1. Dt: 26.10.2015.
	Registered post returned by the opposite party No.3 stating that no such addresse in the said address filed by the complainant along with Ack. Due and postal receipt. Dt: 29.10.2015.
	Resubmission of cover to the opposite party No.1 through registered post with Ack. Due stating that the said cover was refused by the opposite party No.1. Dt: 03.11.2015.
	Letter addressed to the opposite party No.2 regarding the complaint on return of RPAD (Dt: 27.10.2015) making wrong endorsement as ‘No Such Addresse in this Office’.
	Letter addressed to opposite party No.2 about wrong endorsement.             Dt: 14.12.2015.
	Remainder issued to the opposite party No.2 regarding ‘So far  no reply is received from your office even after completion of FIVE months’. Dt: 05.04.2016.
	Original copy of Reply to the Complaint Dt: 05.04.2016 given by the opposite party No.2 to the complainant.
	Letter addressed by the complainant to the Chief Post Master General, Hyderabad regarding Complaint on return of RPAD making wrong endorsement. Dt: 05.05.2016.
	Letter addressed by the complainant to the Office of the Insurance Ombudsman , Hyderabad regarding the ‘Non Refund of Policy amount by MAX LIFE INSURANCE, Nellore Branch’ along with Ack. Due. Dt: 20.03.2017.
	Legal Notice issued to the Opposite Party No.1 to 3. Dt: 24.11.2017.
	Acknowledgement from Opposite Party No.1. Dt: 27.11.2017.
	Reply to the Legal Notice, Dt: 24.11.2017 given by the opposite party No.2.
	Notice issued to the opposite party No.3. Dt: 03.12.2017.
	Reply (Ref: Your letter dated 03.12.2017) given by the opposite party No.3. Dt: 22.12.2017.
	Reply to ‘Your Legal Notice dated 24.11.2017 regarding policy No. 263844714 belonging to your client Mr. Eswara Rajasekhar Polla ‘ from Sonu Arya, Executive-Customer Service, Max Life Insurance. Dt: 21.02.2018.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Photo copy of Max Life Insurance Policy, Policy bearing No.263844714 issued by the opposite party No.1.  Date of Proposal: 13.11.2014. Dt: 23.11.2014. Annexure-01.
	Photo copy of Acknowledgement of Receipt of Policy. Annexure-02. Dt: 27.02.2015.
	Letter addressed by the opposite party No.1 regarding ‘Response to your concern regarding policy 263844714’ to the complainant. Dt: 16.10.2015. Annexure-03.
	Photo copy of Weeded out of old record details extract of HPO, Nellore, Dt: 15.05.2017.
	Photo copy of ‘Period of Preservation details of Records’.

 

 

                                                                                                                        Sd/-       

                                                                                                                President (FAC)

    

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

 

 Copies to:-    1.  The complainant.

                        2.  The opposite parties.