BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 20/2013.
THIS THE 29th DAY OF NOVEMBER 2013.
P R E S E N T
1. Sri. Prakash Kumar B.A. LLB. PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Shri. K.Devanna Nayak S/o. Dullayya Nayak,
age 59 years, Occ: Advocate R/o. H.No. 6-5- 125, near BRB College, Raichur.
//VERSUS//
RESPONDENTS :- 1. The Manager, Birla Sun Life Insurance
Company Ltd., One Indiabulls Centre
Tower-1,15th & 16th, Jupiter Mill
compound,841, Senapati Bapat Marg, Elphistone road, Mumbai-400013.
2. The Customer Service Officer, Birla Sun Life Insurance Company Ltd., G.Corp. Tech Park, 5th and 6th Floor, Kasar Wadavai Ghodbunder road, Thane- 400 061. NAVI- MUMBAI-4000614.
Date of institution :- 14-03-2013.
Date of disposal :- 29-11-2013.
Complainant represented by Sri. Abdul Hafeez, Advocate
Respondent Nos-1 & 2 represented by Sri. Y.Srikanth, Advocate
ORDER
By Sri. Prakash Kumar, President:-
The complaint is filed by the complainant against the Respondents U/sec. 12 of Consumer Protection Act 1986.
2. The complaint in brief is that, the complainant obtained insurance policy from the Respondents Company by paying sum of Rs.50,000/- to the Respondents towards premium, in the month of October-2010. The period of said policy is five years. As the complainant did not receive policy documents he wrote a letter to the Respondents on 25-08-2012 to cancel the policy for which the Respondents have replied to the complainant vide letter dt. 19-10-2012 stating that the original policy has been sent to the complainant on 12-11-2010 through Blue Dart Courier Airway Bill No. 44150470475. The complainant gave reply to it on 05-11-2012 with a request to cancel the policy and to arrange for refund of amount with interest as the complainant had not received the original policy from Blue Dart Courier. To the said letter the Respondents sent letter dt. 28-11-2012 stating that Free Look Option benefit cannot be opted as the same is to be opted within 15 days from the receipt of the original policy. The complainant sent another letter to the Respondents on 10-12-2012 with a request to send the xerox copy of the Blue Dart Courier to ascertain the fact of delivery of original policy to him. But the Respondents have not responded to it and they wrote a letter 27-12-2012 to the complainant stating that the complainant should submit indemnity bond and valid address for claiming the duplicate policy and once again repeated the same fact that Free Look Option facility is not applicable to duplicate policy document. Since the beginning the complainant was insisting the respondents to supply the original policy. But they did not. This amounts to deficiency in service on their part. Hence the complaint seeking reliefs as prayed for.
3. The Respondents have filed their written version stating that all the allegations made in the complaint except those which are specifically admitted are denied. The complaint is false, malicious, incorrect and malafide and is an abuse of the process of law and is liable to be dismissed. The complaint is not maintainable either in law or on facts. There was no negligence or deficiency in service on the part of the Respondents in dealing with the concerned policy. The complaint lacks cause of action. The complaint is based on mere surmises and conjectures. The policy terms and conditions provides for a Free Look period of 15 days during which period the policy owner is entitled to review the policy terms and conditions and request for cancellation if dissatisfied with the terms and conditions of the policy. The policy owner can only raise the said request of the Free Look period only after the issuance and receipt of the policy contract. In the instant case the policy was issued in the year 2010 and was delivered to the complainant on the address as mentioned in the application on 12-11-2010. The Respondents have not replied any query nor a complaint during Free Look period. The complainant inspite of the receipt of the policy documents has not raised any objections or made complaint during Free Look period and hence it was presumed that the contract of insurance with the complainant was legally concluded. It is only through the instant complaint the complainant has raised the issue for the first time. The proposal form have been signed by the complainant after understanding the terms and conditions and further the complainant signed the declaration of the proposal form that he has read the proposal form. As such the complainant is estopped from the challenging the terms and conditions of the concluded contract. Only in the month of September-2012 for the first time the Respondents received a request for cancellation of the policy. On receipt of the said request the Respondents evaluated the policy contract and informed the complainant that as per the records the documents were sent to address of the complainant on 12-11-2010 through Blue Dart Courier and hence request for cancellation of the policy contract is beyond Free Look period of 15 days. The complainant has not approached the Forum with clean hands and he has mis-represented the facts. The contents of para-2 to 4 of the complaint do not merit any comments. The contents of para- 4 to 7 of the complaint are false and denied totally. Hence the complaint be dismissed with cost.
4. Complainant to prove his case filed his affidavit which is marked as PW-1 and relied on nine documents which are marked as Ex.P-1 to Ex.P-9. The Respondents to prove their case filed their affidavit evidence which is marked as RW-1 and relied on three documents which are marked as Ex.R-1 to Ex.R-3.
5. Arguments heard on complainant’s side.
6. The points that arise for our consideration are:
1. Whether the complainant proved deficiency in service on the part of the Respondents against him.?
2. Whether the complainant is entitled for the reliefs prayed for.?
3. What order?
7. Our answer on the above points are as under:
(1) In the affirmative.
(2) Partly in the affirmative.
(3) As per final order:
REASONS
POINT NO.1 :-
8. It is not in dispute that the complainant made proposal for Insurance policy for which the annual premium payable was Rs.25,000/- and the Respondents accepted the said proposal and the complainant paid Rs.50,000/- premium towards his proposed policy. It is the further case of the complainant that even after lapse of two years he did not receive the policy documents and therefore he wrote a letter to the Respondents for cancellation of the policy and to refund the amount paid towards premium which they did not do. On the other hand, it is the contention of the Respondent that they had sent the policy documents to the complainant through Blue Dart Courier on 12-11-2010 itself which was served at the address of the complainant, which fact is denied by the complainant. The Respondents to prove their contention that they had sent the policy documents along with policy to the complainant’s address through Blue Dart courier, has not produced any evidence to that effect. If they had sent the policy documents with the policy through Blue Dart Courier there should have been receipt issued by the said courier agency to the Respondents’ company and the Respondents could have very well produced it before this Forum to prove their contention that they had sent the policy documents through Blue Dart Courier to the address of the complainant. But the same is not produced by them. Further if the policy documents with the policy were delivered at the address of the complainant definitely there must be an acknowledgement for the receipt of the same either from the complainant or his authorized agent and the same could have been produced by the Respondents to prove that the policy documents were actually received by the complainant. But the same is also not produced. Further had the Respondents had actually sent the policy documents along with policy the copy of the same must be there in their office maintained as office records. If it is so they could have produced the copy of the policy documents and the policy before us in order to prove their contention that they had sent the policy documents with the policy to the complainant. But no such copies are produced by the Respondents to prove their contention. This shows that the complainant was right in alleging that the policy documents were not sent to him and therefore he had asked for cancellation of the policy and for refund of the amount paid by him towards premium.
9. When the complainant asked for the cancellation of the policy said to have been issued in his favour and to refund the premium amount paid by him, the defence taken by the Respondents is that at this stage the policy cannot be cancelled and the complainant should have opted for the said option within Free Look Period of 15 days which was available to him when he received the policy documents along with policy. But his contention raised by the Respondents cannot be upheld or looked into because when the complainant never received the policy documents and the policy the question he using the option of 15 days Free Look Period to return the policy documents if he was not satisfied with the terms and conditions of the policy and its benefits does not arise. The non furnishing of policy document along with policy deprived the complainant of using the Free Look Option period to return the policy if he was not satisfied with the terms and conditions of the policy as well as benefit offered by it. Therefore there is no stuff in the contention of the Respondents that as the complainant failed to use Free Look period within 15 days of the service of policy documents he is not entitled to surrender the policy and ask for refund of the amount paid as premium. It seems that the Respondents have not actually sent the policy documents to the complainant and now to save their skin they blindly offered to say that they had sent the policy documents to the complainant through Blue Dart Courier service. The non supply of the policy documents to the complainant by the Respondents amounts to deficiency in service on their part for which they are liable to compensate the complainant.
10. Further it is the simple rule and logic of trade and business that when a party intending to buy a goods or intending to avail services from other person by paying the money for the said goods or services as consideration and if the person who received the money promising to supply goods or offer services fails to do so the money received by him has to be refunded to the payer. This logic is applicable to this case also and the Respondents are liable to repay the amount of Rs.50,000/- paid by the complainant as premium as the Respondents have failed to issue policy documents to the complainant. Besides this, the Respondents are also liable to compensate to the complainant for deficiency in service. Accordingly this point is answered in the affirmative.
POINT NO.2:-
11. As the complainant has proved that the Respondents are liable to refund the amount of Rs.50,000/- paid by him towards the premium for the proposed insurance policy he is entitled for the said amount from the Respondents with interest compensation for deficiency in service and cost of the proceedings which shall be as per final order. Accordingly, we answer this point partly in affirmative.
POINT NO.3:-
12. As per order below:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to recover sum of Rs.50,000/- from Respondents.
The complainant is also entitled to recover interest at the rate of 6% p.a. on total sum of Rs.50,000/- from the date of the complaint till realization of the full amount.
The complainant is also entitled to recover sum of Rs.5,000/- towards compensation for deficiency in service from the Respondents.
The complainant is also entitled to recover sum of Rs.1,000/- towards cost of the proceedings from the Respondents.
Respondents are given one month time from the date of this order for making payment of the above said amount.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 29-11-2013)
Smt.Pratibha Rani Hiremath Sri. Gururaj Sri. Prakash Kumar
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
