CONSUMER DISPUTES REDRESSAL FORUM

PALAKKAD, KERALA

Dated this the 25^th day of June, 2012.

Present: Smt. Seena. H, President

: Smt. Preetha. G. Nair, Member

: Smt. Bhanumathi. A.K, Member Date of filing: 19/10/2011

CC / 177/2011

1. V.Gopakumar, S/o.V.K.G.Menon,

Sugopashree, 18/641, Yakkara Road,

Near D.P.O,Palakkad- 678 014 - Complainants

(BY ADV.E.Krishnadas)

2. Sudha.M, W/o.Gopakumar,

Residing at -do-

(BY ADV.E.Krishnadas)

3. Sujith Kumar, S/o.Gopakumar,

Residing at -do-

(BY ADV.E.Krishnadas)

4. Smitha Sujith, W/o.Sujith Kumar,

Residing at -do-

(BY ADV.E.Krishnadas) Vs

1. Aviva Life Insurance Co.India Ltd,

Aviva Tower, Sector Road,

Opp.Golf Corse, DL 7, Phase-V, Sector-43, - Opposite parties

Gurgoan-122001

Represented by its Manager,

Customer Services Group.

(BY ADV.C.Madhavankutty)

2. Aviva Life Insurance Co.India Ltd,

3^rd Floor, OK Towers,

Kandath Sudevan Road, Sultanpet, Palakkad

Represented by its Manager

(BY ADV.C.Madhavankutty)

3. Aviva Life Insurance Co.India Ltd,

II Floor, Centre Point, M.G.Road,

Thrissur-680004

Represented by its Manager

(BY ADV.C.Madhavankutty)

O R D E R

BY SMT. BHANUMATHI. A.K, MEMBER

Brief facts of the complaint:

The complainant had bought an insurance policy each from the 2^nd opposite party through the Lord Krishna Bank, (HDFC Bank) Koduvayur Branch for which the complainant had paid a premium of Rs. 50,000/- each taken in the name of the complainants on 31-3-08. The complainants had made a one time payment and at the time of taking the policy, the complainant were told that these can be made paid up after 3 years and in March 2011 the complainants had completed 3 years of their initial payments. After the completion of the 3 year term the complainant approached the opposite party for the benefits under the policy. But the complainants were told that the policies have to be paid up yearly for 3 years which was never intimated at the time of taking policies. The complainants had been approached the 2^nd & 3^rd opposite parties in person and communicated with 1^st opposite party by e-mail for getting the paid up amounts of the policies, during February 2011. The opposite parties had replied vide the each as part of the investigation and finally provided a reply rejecting the claim of the complainants.

The complainants were compelled by an authorised agent of the opposite party to take up the policy and were made to sign on a blank proposal form as is the usual practice and were made to sign on the 31^st day of March, being the last date and the agent had represented that he had to login on the date itself. The agent had not even bothered to get the signature of the 3^rd and 4^th complainants on the proposal form. The agent had to filled up the proposal form and the complainants were made to believe that it was a one time paid up policy and that they would be receive benefits after completion of 3 years. The opposite parties are absolutely responsible for their authorised agent having misinformed the complainants about the premium paying tenure and also the features of the policy. The opposite parties have not disclosed all necessary information about the contract and have not obtained explicit consent of the complainants by making transparent the details under the policy. The act of opposite parties is a clear deficiency of service on their part and complainants suffered huge mental tension and agony. So the complainants are entitled to get back the amounts paid up with adequate interest of 12% per annum. So the complainants are seeking an order directing the opposite parties to pay a sum of Rs.50,000/- towards each policy along with 12% interest per annum from the date of policy till the date of payment of the amounts and Rs.20,000/- as compensation for mental agony along with the cost.

Opposite parties entered appearance and filed version with the following contentions.

After duly deliberating and understanding all the terms and conditions of the plan vide the key feature document, all the complainants filled up the proposal form and taken all these policies for an assured amount of Rs.50,000/- each. The premium amount for each policy is Rs.50,000/-. The policies were dispatched to the complainant. Each policy contained a notice of Free look where by the policy holder has a right to reconsider their decision to purchase the policy within 15 days of receipt of the policy document in case doesn't agree to the terms and conditions of the policy. The opposite party did not receive any request of Free lock. The policies were due on for the terms of 2009 for regular premium and the same was intimated to the complainants. The complainants failed to deposit the premium and due to repayment of the regular premium status of the said policies were changed to early lapse on 6-5-09. Early lapse is applicable for all post ULIP, POST AFF and Badlaav products. Wherein customer discontinues premium payment within 36 months from date of commencement of the policy and grace period also gets over. The policy holder can reinstate the policy within two years of the due date of first unpaid installments of regular premium. But this option was also not availed by the complainants.

On 14-2-11, the opposite party received an e-mail from complainant stating to return the premium amount in all four above mentioned policies. Opposite party forwarded the complaints to the concerned department and same was communicated to the complainant vide mail dated 15-2-11. On 16.2.11 opposite party received a complaint from the complainant stating the same issue and it was replied by the opposite parties vide letter dtd.18.2.11. On 16.3.11 opposite party received a complaint of complainant through IRDA and the same was replied by the opposite parties vide letter dtd.17.3.11. It was communicated to the complainant through the said letter that all policy features like the policy tenure premium payment amount etc. have been extracted from the proposal form and have been effected in the policy as per the proposal form. If the complainant dissatisfied with the policy terms and condition, the complainant can make a request for cancellation of the policy. The opposite parties have never received such a request for cancellation of the policy. There is no deficiency of service on the part of opposite parties. The complaint is liable to be dismissed.

Both parties filed their respective affidavits. Ext.A1 to A9 marked on the side of the complainants. Ext.B1 to B11 was marked on the side of the opposite parties.

Heard the complainant.

Issues to be considered are:

I. Whether the complainant is maintainable before the Forum?

II. Whether there is any deficiency of service on the part of opposite parties?

III. If so, what is the reliefs and cost?

Issue No.I

The opposite parties raised a contention that the present complaint is bad for mis joinder of complainants. That each of the complainant was issued separate policies and hence each transaction between each such complainant and the opposite party shall give rise to a separate cause of actions. When cause of actions of different complainants are separate they cannot joined as complainants in one action and they must bring separate action.

As per Consumer Protection Act Section Clause IV “ Complainant means one or more consumers, where there are numerous consumers having the same interest”. In the present case all the complainants having the same interest and cause of action. The opposite parties are also same. So this complaint is maintainable before the forum.

Issues No.II & III

Each of the complainants had taken a policy each from the 2^nd opposite party for which the complainants had paid a premium of Rs.50,000/- each. The complainant had made a one time payment and they were told at the time of taking policy that these can be made paid up after 3 years. In March 2011 the complainants had completed 3 years of their initial payments. Accordingly the complainants approached the opposite parties to get the benefit under the policy. But the complainants were told that the policies have to be paid up yearly for 3 years which was never intimated at the time of taking policies. The complainants enquired about this fact and finally received a reply rejecting the claims of the complainants. Opposite party contents that the said policy contained a notice on free look period where by the policy holder has a right to reconsider their decision to purchase the policy within 15 days of receipt of the policy document in case they do not agree to the terms and conditions of the said policy. But the opposite party did not receive any request of Free look. The complainants did not utilize the facility of Free look and Grace Period. Opposite parties say that all these terms and conditions are specified in the proposal form as well as in the policy. It is pertinent to note that all the policies were commenced on 31.3.08. The complainants say that they were compelled by an unauthorised agent of the opposite parties to take up the policy and were made to sign on a blank Proposal form, as is the usual practice, on the 31^st of March being the last date and the agent had to login on that date itself. It is true that as last day of the financial year the agents of the opposite parties are in hurry of completing their targets. It is revealed from Ext.B6 document, which is the proposal form of fourth complaint. The said proposal form is not even signed by the policy holder. Eventhough the complainant has not signed in the proposal form she has already remitted the premium amount of Rs. 50,000/-. From this itself it can be understand that the parties were not gone through the proposal form before signing the same. The opposite parties have no case that the said agent is not their authorised agent. The persons who join in such plans have to understand the terms and conditions of such policies. But it is not done in this case eventhough all the complainants are well educated persons.

It is true that nowadays many insurance companies having such plans and agents of the company will not disclose the terms and conditions of the policy to the customers. The company also responsible for the mistake done by their authorised agent. Any how the opposite parties are admitted that an amount of Rs.50,000/- each received from each complainant. Four years already passed. So the opposite parties are liable to refund the amount after deducting their stamp charges and others to each the policy holder.

In the result complaint partly allowed. The opposite parties are jointly and severally directed to refund an amount of Rs.40,000/- (Rupees Forty thousand only) each to each complainant.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

Pronounced in the open court on this the 25^th day of June, 2012

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

Sd/-

Smt. Bhanumathi.A.K

Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext. A1– True copy of first premium receipt dt.31.3.08 issued by the opposite parties to the complainants (4 in nos. A1(a) to A1(d)

Ext.A2 – True copy of E-mail dt.14/02/2011 sent by 1^st complainant to 1^st opposite party .

Ext. A3 – E-mail reply dt.14/02/2011 sent to 1^st complainant by 1^st opposite party .

Ext.A4 - E-mail dt.15/02/2011 sent to 1^stopposite party by 1^st complainant.

Ext.A5 - E-mail reply dt.17/03/2011 sent by 1^st opposite party to 1^st complainant.

Ext.A6 - E-mail dt.17/03/2011 sent by 1^st complainant to 1^st opposite party .

Ext.A7 - E-mail dt.19/03/2011 sent by 1^st complainant to 1^st opposite party .

Ext.A8 - E-mail dt.25/04/2011 sent by 1^st complainant to 1^st opposite party .

Ext.A9 – Intimation regarding re-alignment of branches sent by 1^st opposite party to 1^st complainant.

Exhibits marked on the side of opposite party

Ext.B1-Copy of Aviva Life Insurance Easy Life Plus Features.

Ext.B2-Standard terms and conditions of Aviva Life Insurance (copy)

Ext.B3- Proposal Form of Aviva Life Insurance in the name of Gopakumar dt.30/03/08(copy)

Ext.B4- Proposal Form of Aviva Life Insurance in the name of Sudha Gopakumar dt.30/03/08(copy)

Ext.B5- Proposal Form of Aviva Life Insurance in the name of Sujithkumar dt.30/03/08(copy)

Ext.B6- Proposal Form of Aviva Life Insurance in the name of Smitha Ekkanath dt.30/03/08(copy)

Ext.B7- Copies of mail communication dt.14/2/2011

Ext.B8-Copy of letter dt.18.2.2011

Ext.B9-Copy of maid dated.01/03/2011

Ext.B10-Copies of complaint dt.16/03/11 and its reply letter dt.17/03/2011

Ext.B11-Copy of e-mail dt.25/04/2011

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil