For the Complainant - Mr. Debasish Nath, Advocate
For the OPs - Ms. Sanhita Saha, Advocate
FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the Complainant Sri Animesh Sen surrendered his existing policy no. 005922163 to subscribe for a new policy for better return being convinced by Sri Dibyendu Chanda and Ayon Mallick who happens to be the Insurance Agents of the OPs. The new policy under the name Fortune Elite Plan had been proposed with premium paying term of 5 years with 4% to 8% additional return. It was also told to the complainant that as per IRDA Mandate two years premium payment is mandatory. After wards he realised that only two years premium would go to the discontinuous fund and would not meet the benefits as proposed by the Agents. The new policy bond bearing no.007509735 had been issued on 14.03.2018 and reached the complainant on 27.03.2018. The complainant was out of station from 23.03.2018 to 07.04.2018 in order to discharge his official duties and could not go through the terms and condition of the policy within the Free look period of 15 days from the date of receipt of the policy document. After being dissatisfied with the terms and conditions of the policy he desired to cancel the new policy through e mails and whats app which was formally declined by the OPs. vide letter dated 31.5.2018 Cause of action arose from that date i.e. 31.05.2018 only. The complainant now wants to get refund of Rs.12,20,000/- with 12% interest along with Rs.1,00,000/- as compensation, Rs.90,000/- as Mental agony and Rs.10,000/- as litigation charges.
The OPs have contested the case by filing W/V contesting inter-alia that the complaint petition is false and vexatious and liable to be dismissed as per section 26 of the C.P.Act,1986 and there is no deficiency of service on the part of the OPs -for which the case is liable to be dismissed on this ground alone The complainant has not approached the OPs within the freelook period for cancellation of the policy by retaining the policy documents with him and did not raise any objection towards the policy during the freelook period. Moreover the complainant is an existing policyholder of the OP Insurance Company having around 10 policies out of which 3 policies have been surrendered and 7 policies are in active mode. This indicates that the complainant is well aware of the terms and conditions and there is no iota of mis selling as the present complaints is not substantiated with any documentary proof. The application for insurance was online processed, the central KYC was signed by the complainant, the complainant received the Benefit Illustration over the email address provided by him. The complainant shared the OTP and upon confirmation of the OTP the application of the said policy was processed. Along with the proposal form, the benefit illustration stating the premium paying term which is 5 years for the policy in question and the policy term which is 30 years have been mailed to the complainant’s registered email address. Nowhere it has been mentioned that the complainant needs to pay 2 years mandatory premium. Regarding refund of premium the OPs have referred one case law of Hon’ble NCDRC in the case of LIC of India vs. Siba Prasad Dash, reported as IV(2008)CPJ 156(NC), As per the judgement “the premium is given by an insured to cover the risk for a given period and the insurer covers the risk for the period for which the premium has been paid. It is not the case of the complainant that the risk was not covered for the period for which the premium was given. If after the policy lapse, under no provision of terms of policy or law could any Fora direct for refund of any premium for the simple reason, as already stated, that the risk should covered for the period for which premium had been paid.” The OPs have also stated that it is well settled principle of law that at the time of filling up of the proposal form, the agent acts as the agent of the insured and no agent can be assumed to have authority from the insurer to promise something beyond the terms and condition of the subject policy or to write the answers in the proposal form. If an agent nevertheless does that he becomes merely the amanuensis of the insured and his knowledge of the untruth and inaccuracy of any statement contain in the proposal form does not become the knowledge of the insurer. The aforementioned proposition has been propounded by the Hon’ble NCDRC in the case of Prema and others vs.LIC of India, reported as IV(2006) CPJ 239(NC). The complainant signed on the customer declaration form for E-application submission with his own will and consent which contained the following declaration amongst others:-
“I/we confirm that post my meeting with said insurance agent. I/we have read relevant documents/information shared with me and understood the product features, benefit/sales illustration. I/we have submitted and authenticated the E- application using one time password received on my registered mobile number to buy this product online. I/we hereby confirm that – I have filled up the E-application Form on my own and/or helped by the above referred insurance agent to fill in the details in the E-application Form in my/our presence and in accordance with the information provided by me/us. I further understand that besides the policy benefits as specified in the relevant product document, there are no other benefits attached with this policy.”
The application was on-line processed only upon post confirmation of the OTP shared by the complainant. The complainant also applied for ECS as he selected the option of ECS in Application form which clearly proofs the fact that customer is aware of paying renewal premiums and no person will opt for ECS mode if he wants to pay only one renewal. As per the policy discontinuance clause under Clause 9(A), “ if all the due instalment premiums for the first five policy years are not paid fully then choose one of the following option.
- Revive the policy within the revival period by paying all the due installment premiums and continue the policy.
- Completely withdraw from the policy.
If we do not receive any intimation from you within 30 days from the receipt of the notice then at the end of the 30 days you shall be deemed to have chosen the option to completely withdraw from the policy. On discontinuation of the policy the risk cover will cease and the policy fund value less the discontinuance charge will be transferred to the linked discontinued policy fund. The linked discontinued policy fund will earn the actual return within (less a fund management charge of 0.50% p.a.) or a minimum guaranteed interest rate (which currently is 4% p.a.) whichever is higher.
If you have chosen the option to completely withdraw from the policy or there is a deemed withdrawal then the policy will be terminated on the date corresponding to your fifth policy anniversary and the policy proceeds from the linked discontinued policy fund will be payable to you.
In the unfortunate event of death of the life insured while the policy is discontinued and not yet revived, we will pay the policy proceeds from the linked discontinued policy fund immediately and terminate the contract. “
On the pleadings of both the parties the following points have necessarily come up for determination:-
- Whether the subject Policy No. 007509735 issued to the complainant was mis-sold
by the OPs,
- Whether there is any deficiency in service on the part of the OPs,
3) Whether there is any unfair trade practice on the part of the OPs,
4) Whether the complainant is entitled for the relief as prayed for.
Decision with Reasons
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered their evidence on affidavit, reply to the questionnaire set forth by their adversaries. They have also filed their BNAs. We have travelled over all the documents placed on record. The OPs have also cited some case laws in support of their contention.
Facts remain that the complainant purchased a Policy under BSLI Fortune Elite Plan bearing No. 007509735 from Aditya Birla Sun Life Insurance Co. Ltd. being the OP Nos. 1 & 2 where the date of policy issue is 14.03.2018, premium amount is Rs.12,20,000/-, premium paying term is 5 years, policy term is 30 years and mode of premium payment was annual and sum assured is 1,83,000,00/-. From the available documents, it is observed that the said policy was issued on processing an E-application which was duly completed and submitted and authenticated by the complainant using one time password which was made known to him by the OPs through his registered mobile number for buying the above product online.
Amongst other declaration the following declaration is very much relevant. “I/we hereby confirm that – I have filled the E-application Form on my own and/or helped by the above referred insurance agent to fill in the details in the E-application Form in my/our presence and in accordance with the information provided by me/us. I further understand that besides the policy benefits as specified in the relevant product documents, there are no other benefits attached with this policy.” Based on the said information provided in the application form and declaration as per underwriting norms of the company the OPs issued the subject policy to the complainant. As the application was online processed, the complainant received the benefit illustration over the complainant’s E-mail ID and the OTP was also shared by the complainant. Only upon post confirmation of the OTP the application of the said policy was processed. .. The policy was issued on the basis of the IT return of the complainant for the assessment year 2017-18. As such, in the matter of selling the policy, we do not find any deficiency of service on the part of the OPs and also no unfair trade practice has been found adopted by them. Question of mis selling as such does not arise. The complainant also opted for ECS mode for payment of other renewal premiums. It is also worthwhile to mention that a normal person will not opt for ECS mode if he has a mind to pay one single renewal premium. Since the premium paying terms is 5 years the complainant opted for the ECS mode. We also have not found any document wherefrom it could be established that the insurance agent or anybody from the insurance company has mentioned or promised that the complainant needs to pay 2 years mandatory premium. From the policy benefit illustration it is clearly mentioned that premium paying term is 5 years whereas the policy term is 30 years. The complainant is a loyal policy holder of the OP Insurance Company for having 10 policies out of which 3 policies have been surrendered and 7 policies are in active mode. From the said fact, it is very much established that the policy holder is well aware of the terms and conditions of the policies. Moreover, the complainant is an educated person and the policy taken is financially justified from the IT return of the complainant for the Assessment Year 2017-18 where the gross total income has been assessed to Rs.1,08,36,205.00. The complainant is harping on the issue that he was convinced by the agent that as per IRDA guidelines the complainant needs to pay 2 years mandatory premium. In that respect he has failed to produce any document either from IRDA or from the insurance agent. The Forum finds it difficult to believe that the complainant was convinced about the said feature of the policy without any valid document. A simple verbal assurance of the agent, if at all assured, without a valid document is not sufficient enough to purchase a policy where the huge amount of premium is involved. If it was at all the only issue, the complainant should have confirmed the same from the office of the OPs before finally giving his consent for issuing the policy. So afterthought proposition on the part of the complainant in this regard cannot be ruled out. More over, the serious issue of non fulfilment of his expectation has not been properly taken care of by the complainant as per the usual procedure which is very much known to him as he is the owner of 7 active policies of the same Insurance Company. As the complainant has not filed his unwillingness to continue the subject policy within the Free Look period of 15 days from the date of receipt of the policy as per regulation 10 (1) of the Insurance Regulatory and Development Authority (protection of policy holder’s interest) Regulations, 2017 he has missed the bus and lost the opportunity for availing the option of cancellation of the said policy.
The Ld. Lawyer for the OPs has cited one case law of the Apex Court in the matter of United India Insurance Co. Ltd. vs. Harchand Rai Chand Rai, Chandanlal I (2003) CPJ 393 & Vikram Greentech (I) Limited and another vs. New India Assurance Co. Ltd. II (2009) CPJ 34 wherein it has been stated that an insurance policy is to be construed strictly as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added or subtracted to by giving a different meaning to the words mentioned therein. Once 15 days ‘cooling of’ (free look) period is over, policy documents become binding on both the parties and the contents therein are also binding on both the Insurer and the Insured.
In view of the above facts and circumstances, we are of the considered view that the complainant has failed to establish his case against the OPs.
In the result, the complaint fails.
Hence,
Ordered
The complaint case be and the same is dismissed on contest against the OPs without any cost. But the complainant is very much entitled for the benefits as per Discontinuance Clause of the said policy.
