Orissa

Rayagada

CC/15/35

Smt. Jhans Lakshmi - Complainant(s)

Versus

The Manager, ICICI Prudential Life Insurance Co. Ltd., - Opp.Party(s)

Self

19 May 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 35 / 2015.                                  Date.      19   .     5  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,              President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

(1)Smt.  Jhansi Lakshmi, W/O:  K.Rusi Naidu,  At: Aravind Nagar, B.C.Road, Po:  J.K.Pur,      Dist:Rayagada  (Odisha)                                     

(2)Sri  K.Rusi Naidu,  At: Aravind Nagar, B.C.Road, J.K.Pur,      Dist:Rayagada  (Odisha)                                                                                          …. Complainants.

Versus.

The Managert, ICIcI  Prudential life insurance Co. Ltd., ICICI Prulife  Towers, 1069, Appasaheb Maratha Marg, Prabhadevi, Mumbai- 400  025.

                                                                                                            .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps   :- Sri  Sri B.S.Banthia, Advocate, New Delhi.

.

JUDGMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund  of the deposited amount in the policy No. 12519462, and Policy No.13497930 for which  the complainant  sought compensation  inter alia  for redressal of the grievances raised by the complainant.

On being noticed the O.P  appeared through their learned counsel and filed written version refuting allegation made against them.  The O.P   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P. Hence the O.P    prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                               

         FINDINGS.

            On perusal of the record it is revealed that there is no dispute that the complainant was a policy holder bearing No. 12519462  in the name Jhansi Lakshmi   under  Smart Kid  New unit linked RP  U 41  policy and another policy No.13497930 was in the name of Sri K.Rusi  Naidu under  ICICI Pru life stage pension Ad. U66 policy.   Further  there is no disputes the  above  policy  term and premium payment term   is 10 years.   Again  there is no dispute the complainant No.1  has  paid total premium Rs. 20,000/-  for the period from September, 2009  till September, 2010 towards  02  Nos.  yearly  premium  @ Rs. 10,000/- each premium  towards  policy  bearing No. 12519462  in the name Jhansi Lakshmi.

          Further      there is no dispute the complainant  No.2  has  paid total premium Rs. 20,000/-  on Dt. 27.2.2010  towards  01  No.  yearly  premium  @ Rs. 20,000/- each premium  towards  policy No.13497930 was in the name of Sri K..  Rusi  Naidu.

The main grievance of the complainant  No.1  was that  she has received a sum of Rs.1,386.85 against the  payment of Rs. 20,000/- less than the amount paid by him i.e. Rs. 18,614/- towards  policy No. 12519462. (Copies of the cheque  is in the file which is marked as Annexure-I)

The grievance of the complainant  No.2  was that  he has received a sum of Rs.3,075.84 against the  payment of Rs. 20,000/- less than the amount paid by him i.e. Rs. 16,925/- towards  policy No. 13497930. (Copies of the cheque  is in the file which is marked as Annexure-2).

The complainants when asked the reason the O.P. has  stated  that the said policy was foreclosed due to non payment of premium by  the complainant and the said payment towards foreclosure was made as per the terms and conditions  of the policies  and the complainants  are  not entitled anything more. Hence the  C.C. petition filed by the complainant  to get  the  balance amount.

          In a recent judgement on  Dtd. 23.4.2013  the Hon’ble National Commission has held that “such policies involve speculative gains through trading in shares in the stock market and hence are commercial in nature. So a consumer complaint for a grievance regarding such policies would not be maintainable”.   In Ram Lal Aggarwalla Vrs. Bajaj Allianz life insurance Co. Ltd. & ors   it has been held that  “the investment made by the complainant was to gain profit.  Hence, it was invested  for commercial purposes and therefore, the complainant is not consumer under  the O.Ps”.   In another case of  Smt. Abanti Kumari Sahoo  Vrs. Bajaj  Allinz Life Insurance Co. Ltd. the Hon’ble State Commission, Odisha where  in observed in First Appeal No. 162/2010 held that the money if the complainant invested in the share market is no doubt a speculative gain and the speculative investment does not  come under the C.P. Act., 1986.   It is submitted that the present policies in question are Unit Linked policies and law is well settled that such policies are speculative in nature and the same are taken  for  investment purpose.  Therefore the policy holders of such policies are not consumers and disputes relating to such policies are not sustainable before the consumer forum.

          The  O.Ps in their written argument  mentioned that  the complainant  No.1  was  paid  premium 02 Nos.  yearly @ Rs.10,000/- in each premium on Dt.7.9.2009 and on Dt.9.9.2010 after which the complainant  has not paid and continued the   said policy  No. 12519462 as on 09.09.2011.  It is pertinent  to note  here  that the foreclosure  form clearly mentioned the terms and conditions stating that the foreclosure amount of the said policy will be payable after deduction of the allocation charges based on the effective NAV rates and also mentioned the  foreclosure amount of Rs.1,386.85 that will be payable to the complainant. No.1 . The complainant while submitting  the said policy form had duly signed it as on Dt. 07.09.2009.  Hence when a person signs any document, it is presumed that he had read and understood the document and consented to its content.  which is marked as Annexure-3.

          The  O.Ps in their written argument clearly  mentioned that  the complainant  No.2  was  paid  premium 01 time  yearly @ Rs.20,000/- in each premium on Dt. 27.02.2010 after which the complainant  has not paid and continued the   said policy  No. 12519462 as on 27.02.2011.  It is pertinent  to note  here  that the foreclosure  form clearly mentioned the terms and conditions stating that the foreclosure amount of the said policy will be payable after deduction of the allocation charges based on the effective NAV rates and also mentioned the  foreclosure amount of Rs.3,075.84 that will be payable to the complainant. No.2  The complainant while submitting  the said policy form had duly signed it as on Dt. 24.02.2010.  Hence when a person signs any document, it is presumed that he had read and understood the document and consented to its content  which is marked as Annexure-4.

          Again the O.Ps argued  that the allegation of the complainant regarding less Foreclosure amount paid is  groundless and against the policy terms and  conditions,.

          It is to reiterate that the policy documents as  well as  the above policy clearly stated that the foreclosed amount will be payable after  deduction of the allocation  charges and the O.Ps had duly  paid the  appropriate foreclosed  value a sum of  Rs. 3,075.84 towards policy No.13497930 in the name of the complainant No. 2 on dt. 27.2.2013  in shape of cheque bearing No.  A 304423 Dt. 27.2.2013  to the complainant. Another  policy No. 12519462 in the name of the complainant No.1  foreclosed on Dt. 10.9.2012 and the O.P. has paid a sum of Rs. 1,386.85 to the complainant  in shape of  cheque bearing  No. 574756  Dt. 20.3.2014.   

          The O.P. in their written argument  para No.3 clearly  contended that  the proposal form  was received from the complainant to issue the said policies bearing Nos. 12519462 and  13497930  were received by the  complainant on Dt. 7.9.2009 and  Dt.24.2.2010 respectively.   According to the proposal form the said policies were  issued by the  O.P  on Dt. 9.9.2009 and 27.2.2010.   The said  policy No. 12519462 was dispatched to the complainant’s  address  stated on the proposal form  through  speed post on 19.9.2009 and policy bearing No. 13497930 was dispatched  on Dt. 8.3.2010.

          The O.P. in their written argument  para No.4 clearly  contended that only one premium has been paid under the policy  No. 12519462 and under  policy No. 13497930 two premiums have been paid by the complainant. The complainant can not make O.P. responsible for his own negligence of not reading the policy terms and conditions and not approaching the O.P. during free look period for refund of premium amount.

          The present case in hand  this forum observed  In fact, the original policy bonds were with the  complainants, it was mentioned that the policy was related  to the share market.  As per the terms and conditions of the policy, 15 days time was given to the complainant, which is known  as “Free Look period” as per the guidelines of IRDA and if he/she want to say anything  with  regard to the terms and conditions, and if those were not  acceptable to him, he could ask for the cancellation of the policy but the complainant failed to exercise that option.

          The O.P. in their written argument  para No.8 contended that the complainant had sent a notice Dt. 8.9.2014 and the same was duly replied by the O.P. vide Letter Dt.24.9.2014 thereby answering all the allegations of the complainant (Copies of the Letter  Dt. 24.9.2014 is in the file which is marked as Annexure-5).

          The O.P. relied judgement it is held in R.P. No. 2870/2012  in the case of Mohan Lal Benal Vrs. ICICI prudential life insurance Co. Ltd.  decided on 16.10.2012 and Harish Kumar Chadha Vrs.  Bajaj Allianz life insurance Co. Ltd(Decided on 7.10.2013 in  R.P. No. 3271 of 2013 where in the  hon’ble National  Commissioner observed  “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”. The said proposition has also been clearly laid down in the case of  Shrikant Murlidhar Apte Vrs. Life Insurance Corporation of India in R.P. No.  634 of 2012, decided  on  2.5.2013.   Further the National commission concurred with the findings of Maharashtra State C.D.R.Commission,Mumbai that “Once 15 days ‘cooling off’ period  is  over, policy documents become binding on both the parties and the contents therein are also binding on both of them”.  Thus in concurrence with the proposition settled in the catena of cases, the present complaint deserves to be dismissed on this ground.

          Again It is held and reported  in CPJ 2008(4) page No.156 the hon’ble  National Commission where in observed  at para-5 “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 lapsed, under no provision of terms of policy or law, could any for a  direct for refund of any premium for the simple reason, as already stated, that the risk stood covered for the period for which premium had been paid”.

          Further  It is  held  in R.P. No. 3390 of 2013  decided on 21.5.2014 in the case of Kishore Chandrakant Rathod Vrs.  The M.D., ICICI Prudential Life Insurance Co. Ltd. & another  where in the  hon’ble National Commission observed “It must be borne  in mind that the petitioner is an educated person. He was supposed to read each and every terms and conditions of the policies. There  are   no oral rules and conditions of the policy. One has to act in accordance with the frame work of the policy.  The complainant is not a gullible person who could have been taken up garden path. It appears that he did not act prudently. He used the ink but not his brain.  It is well settled that man may   tell lies but the documents can not.   Everywhere he has mentioned that he was informed by a bank official. The name of the bank official did not see the light of the day.  His story does not just stack up.  No deficiency can be attributed to the O.P. They have acted in accordance with the law  on the other hand the complainant swallowed the bait”.

 

          Again  in  the case of Shrikant Murlidhar Apte Vrs. Life Insurance Corporation of India in R.P. No.  634 of 2012, decided  on  2.5.2013 the hon’ble  National C.D.R.Commission, where  in observed  “Learned State Commission while dealing  at length rightly observed as under”.

          “The  insurance Agent is a Facilitator between the Insurance Co. and the prospective policy  purchaser. He is an agent of  consumer as well as Insurance Co. He is not exclusive agent of Insurance Co.  Moreover,  he   can not bind the insurance Co. if he given  quotation of any policy    at lesser monthly or yearly premium than prescribed by the underwriting  Insurance Co.  So in the instant case, even if there was difference between the quotation of monthly or yearly premium in respect of 7 policies out of 11 policies purchased by the complainant  from  LIC through  Mr. Divakar Patkar, Insurance agent, that does not mean that  LIC is bound to issue policies to the  complainant at the rate quoted by the insurance agent quoting wrong rate of premium on the part of the  insurance agent.  Under such circumstances, there is no jurisdiction to District consumer forum to pass an order of rectification and to direct  LIC herein appellant to charge the premium  in respect of the 7 policies directly in accordance with the estimation of premium given by Mr. Divakar Patkar, Insurance Agent which was lesser than LIC  had  fixed premium for certain policies.  The agent can not bind LIC  in this  way. We have already  mentioned above that LIC agent is a  facilitator, he acts independently to   help the consumer to procure insurance policies and he helps LIC to promote business and gets  commission but his agency does not in any way bind LIC if he misquotes rates of premium in respect of fe policies.”

          Further it is held and reported in CPJ 2006(4) page No. 239  the hon’ble National CDR Commission wherein observed “In sofar  as the filing of proposal forms is concened, Manjunath was a lineman in K.E.B at Davangere.  As such, the State commission  was justified in taking the view that it was reasonable to believe that he would have the minimum knowledge of these matter.  Consequently it could not be believed  that he had  simply put his signatures on different  on proposal forms without understanding the contents of the relevant  items.  Besides, it may be mentioned   that in terms of LIC  Vrs. M. Gowri’s  and  ors  the judgement referred to by the State Commission the  agent who got the proposal form could be  an agent of the person seeking insurance policy. The plea that the insured was not aware of the requirement to give correct answer  and about contents   of the answers given cannot be accepted”.

          Again it is held and reported in SCC 2000(1) page No. 66 where in the  Hon’ble Supreme court laid down that the test of deficiency in service by  stating  that  “The deficiency in service  can not be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is  required to be performed  by a person in pursuance of a contract or other wise in relation to any service.  The burden of proving the deficiency in service is upon the person who alleges it.  The complainant   has, on  facts,  been found to have not  established  any willful  fault, imperfection, shortcoming or inadequacy  in the service   of the  respondent.  The deficiency in service has to be distinguished from the tortious act of the respondent. In the absence of deficiency in service the aggrieved  person may have a remedy under the  common law to file a suit for damages but can not insist for grant of  relief  under the Act for the alleged acts of commission and omission attributable to the respondent   which otherwise do not  amount to deficiency in service. In case of bonafied disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be  informed . If on facts it is found that the person or authority rendering service had taken all precautions   and considered all relevant facts  and circumstances in the course of the transaction and that their action or the final  decision was in good faith, it can not be said that there had been  any deficiency in service.  If the action of the respondent is found  to be in good faith, there is no deficiency of service entitling  the aggrieved person to  claim relief under the Act. The rendering of deficient  service  has to be considered and decided   in each  case according to  the  facts of that case for which no hard and fast rule can be laid down Inefficiency, lack of due care, absence of bonafides, rashness, haste or omission and the like  may be the factors to ascertrain the deficiency in rendering the service”.

          Further  it is held in R.P. No. 211 of 2009 in the case of  Reliance life insurance Co. Ltd. Vrs. Madhavacharya   where in the hon’be National CDR Commission   observed  “Since the insurance between the insurer and the insured is a contract between   the parties, the terms of the agreement  including applicability of the provision   and also its exclusion had to be strictly construed to  determine the extent of the liability of the insurer”.

          Again  it is held and reported in CPJ-2010 (1) page No. 33 where  in the hon’ble Supreme Court observed  “When  a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it  and only then  he has affixed his signature thereon, otherwise, no signature on a document  can ever be accepted”.  

 

          Afore-mentioned facts establish  that nothing  is either  due or legally recoverable by the complainant from the O.Ps and O.Ps have duly complied with the terms and conditions of the policy  contract.  In the ligjht of above facts and contract no cause of action ever arose against  the O.Ps as the present  complaint does not  raise any “Consumer Dispute” and there is no deficiency  on the part of the O.Ps.  The  complainant  has neither a legal  basis nor a  valid cause of action  against the O.Ps to file the present complaint, before the  forum. Hence this forum has no jurisidiction to entertain the present complaint. That the modus operandi of the O.Ps  is different from any insurance sectors and it earnestly follows the rules and  regulations passed by the IRDA and further  functions of its business are carried in accordance with the settled principles of law.  

We are completely agreed with views taken in written version   and  the documents filed by the O.Ps in  the present case. Hence  this forum  feel the complainant is not entitled any  relief from this forum and   liable to be dismissed.

To meet the ends of justice the following order is passed.

 

ORDER.

In  resultant the complaint petition is hereby  dismissed. Parties are left to bear their own cost.    Accordingly the case  is disposed of.

Dictated and corrected by me               Pronounced on this        19   ^th.   Day of   May,  2018.

 

 

Member.                                             Member.                                                             President