FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The instant consumer case in brief that the complainant entered into and became the policy holder of the six policies namely,Kotak Life Family with endowment and saving plans policy.The complainant as a proposer became a policy holder of the OPs 1 to 4.The son of the complainant was working as life advisor/ commission agent under OPs 1 to 4.Keeping in mind the career of his son in the field the complainant agreed to entered into six policies by paying the premium. The details of the six numbers of policies issued by the OPs 1 to 4 in favour of the complainant ..
Sl.No-Policy No.-Issue date-Premium paid yearly(Rs)-Premium paid Quarterly(Rs)- Life Assured
01. 03931043 20.01.2018 16519/ 4208/ Sukla Kundu
02. 03931043 20.01.2018 16573/ 4222/ Sukla Kundu
03 03931045 20.01.2018 16625/ 4235 Sukla Kundu
04 03931046 20.01.2018 3400/ 4249 Sukla Kundu
05 09826949 19.02.2018 21641/ 21177/(lapsed) Abir Kundu
06 09827081 19.02.2018 20900/ 20450/ (lapsed) Abir Kundu
The complainant was listed as a proposer on the first four policies.Smt.Sukla Kundu,the wife of the complainant was incorporated as the life insured person.In the last two policies the complainant was listed as the proposer but his son Abir Kundu was added as life insured person.The premium of the six policies were paid through cheques.OP5 (Bank Of India) represents the first four policies and OP6 (State Bank Of India) represents the last two policies.
1.Cheque No.014667 of policy no.03931043 dated..20.01.2018 (Bank Of India)
2. Cheque No.014667 of policy no.03931044 dated..20.01.2018 (Bank Of India)
3.Cheque No.014667 of policy no.03931045 dated..20.01.2018 (Bank Of India)
4.Cheque No.014668 of policy no.03931046 dated..20.01.2018 (Bank Of India)
5. Cheque No.136185 of policy no.09826949 dated..16.02.2018 (State Bank Of India)
6.Cheque No.136185 of policy no.09827081 dated..16.02.2018 (State Bank Of India)
The first four policies have been paid through the OP5 and second two policies have been paid through the OP6 by giving ECS mandate.The complainant stated that they came to know the some irregularities in the affairs of the running of the six number of policies by OP 1 to 4,he decided to close the policies stating the reason of financial problem and disabled the ECS mandate.The complainant was harassed many a times by the OP2 but on 10.12.2018 the OP2 and on 27.12.2018 the OP1 received and deactivated the auto instruction of six numbers of policies of the complainant confirming that further no ECS or any kind of amount to be debited from the account(s) of the complainant lying with OP 5 and OP6. On all of a sudden,the complainant received a debit messages from State Bank of India OP6 on 31.03.2019,15.05.2019, and on 31.05.2019 wherefrom he came to know that an amount of Rs.59/ for four times(total Rs.236) on 31.03.2019 an amount of total Rs.1180/ and further same amount has been debited from the account of the complainant on 15.05.2019. The complainant wanted to know the reason for such illegal and unlawful debit/deduction from the accounts without the instruction from the complainant. But the OP 1 to 4 paid no heed to the utter cry of the complainant but issued a notice dated 28.03.2019sent through registered post with a statement dated 05.04.2019 stating that the annual premium of the policies have been changed to quarterly mode though the policies were closed on 27.12.2018.The complainant never gave any consent for change of mode of operation from yearly to quarterly.The complainant has been to the office of the OPs 1 to 4 in Kolkata on several occasions but non of them shown interest to the grievances to the complaint.The final deactivation of the ECS mandate for the last two policies and first four policies of Sukla Kundu as a life insurer occurred on 27.12.2018 despite adequate documentation being provided by the OP1.The complainant further stated that the OP 1 to 4 are trying to grab the entire money.The complainant was a customer under OP no.1 to 6 and presentely suffering from immense hardships due to the illegal and unlawful acts and severe negligence from the OPs 1 to 4.The OP 1 to 4 did not refund the insured amount to the complainant which were lying with the said policies even after deactivation of the same.The OP6 also deducted charges for insufficient balance in the account of the complainant as the complainant could not be able to deposit the amount in fear of deduction of amount by the OPs 1 to 4. The cause of action arose on 27.12.2018,08.03.2019,15.05.2019 and llast on 31.05.2019 and still continuing.
The complainant prayed for refund of the amountof Rs,1,08,741/(Rupees One lakh eight thousand seven hundred forty one) only received on 19.01.2018 and 20.02.2018 from the complainant but without any interest and other all deduction made after 27.12.2018.A compensation of Rs.1 Lakh for mental agony, harassment and pain and unfair trade practice during this period. Directing the OPs 1 to 4 that no such policy as mentioned above hereinafter are in force in the name of the complainant. Litigation cost of Rs,50,000/.
OPs 1 to 4 have contested the case by filing Written Version and denied all the material allegations of the complainant.The present complaint is false,frivolous,and vexatious and gross misuse of process of law.It is stated that the present complaint proceeding is of non joinder of parties and is liable to be dismissed as the Kotak Mahindra Life Insurance Company Limited has not been made a party.It is stated that the complainant was not compelled to purchase any policies of the OPs insurance company.The policies were sourced to the complainant by his son who was an agent with the company post undergoing exhaustive trainings after clearing the IRDA examination.Further stated that all the policies were purchased by the complainant’s son during the period he was working as an advisor and as such the agency benefits/financial benefits/commissions of the policies was also received by the complainant’s son.The complainant’s son was well aware of the process adopted for cancelling the ECS mandate.In the ECS mandate a certain amount has been mentioned which can be debited from the bank account above which no amount could be withdrawn,the allegation to grab the money of the complainant is out and out false.The OPs further stated that the complainant had failed to produce any substantial proof of any irregularities on the part of OPs.OPs stated that in accordance to Clause 6 (2) of the IRDA,Regulation 2002 every policy document accompanied by a welcome letter which clearly mentions that in case the policy holder is not satisfied with the features or the terms and conditions of the policy he can withdraw the policy under “Free Look Period” provision. The complainant retained the policy document and did not raise any objection towards the policy during the said “Free look period “with any of his grievance regarding the policy and its terms and conditions. The complainant has failed to demonstrate any deficiency in service on the part of the OPs.Deficiency is defined under section 2(g) of the CP Act.The prayer of the complainant is to refund the premium in the present case which is completely against the established law in relation to life insurance. It is submitted by the OPs that when the premium is not paid within the grace period as provided in the policy anytime during first three policy years, the policy along with benefits lapses. The subject policies are currently in the lapse mode. As per clause 5 policies with premium payment term of greater than or equal to 10 years shall acquire surrender value only on payment of premium for consecutive three years which in present case the complainant has failed to do.Thus, if the policies are not revived the same shall be foreclosed without any surrender value.It is also been stated that the policy is in lapsed mode and if the policy is not revived within two years from the date of lapse the policy shall stand forfeited and all benefits available under the policy shall cease.It is stated that the complaint filed by the complainant is an absolute misconceived one and ought to be dismissed with heavy cost.
OP-5 contested the case by filing the WV.On their written Version he strongly denied the allegations leveled against him.He stated that the said petition is barred by waiver,estoppels ,acquiescence,misjoinder of unnecessary party.OP5 mentioned that as soon as the OP5 received the instruction of deactivation of ECS mandate from the complainant ,he consulted with his higher authorities diligently deactivated the auto debit mode by way of ECS.Once it is deactivated there is no slightest chance for the OPs 1 to 4 to deduct any amount from the OP5.The complainant has never raised any fault on the part of the OP5 as he acted in clean hand giving importance to the wish of the complainant by acting according to his instructions.
OP-6 also contested the case by filing the WV contending interalia that the allegations against them are absolutely frivolous, vexatious,misconceived,and
harassing.The complainant have no cause of action and hence needs to be dismissed.OP 6 submits that the order of ECS has been passed with the consent of the complainant and it has no authority to deduct any value for the purpose of payment of insurance premium or any other purpose.OP6 merely act as per the instruction given by its customers and here there is no deficiency in service against the OP6.So the case may be dismissed with exemplary cost against the complainant.
Points for Determination
In the light of the above pleadings, the following points have necessarily come up for determination.
1) Whether there are deficiencies of service on the part of the OPs.
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 4:-
All the points are taken up together for the sake of convenience and brevity in discussion.
All parties have tendered their Evidence supported by affidavit. They have filed replies to the questionnaire set forth by their adversaries. They have also filed their BNAs.
We have travelled over all the documents placed on record.
Facts remains that the complainant became a holder of the six policies of Kotak Life Family with endowment and saving plans policy.The first four policies incorporated Smt.Sukla Kundu wife of The complainant and last two policies shri Abir Kundu son of the complainant as life insured.Cheques were issued for ECS mandate to pay premium of six insurance policies to the OP-5 and OP-6 Banks.It is mentioned by the complainant that there were certain irregularities because of the administration of the six policies by the OP-1 to 4 that’s why it compelled the complainant to withdraw/close them by citing financial hardship and accordingly he disabled the ECS mandate on 10.12.2018.The complainant unable to produce any relevant document which shows the irregularities on the part of the OPs.Before closing of the policies the complainant not even informed what the irregularities he was facing regarding the policies.It was the unilateral decision taken by the complainant.
But as a matter of fact that the complainant submitted the Deactivation of Auto Debit instruction request on 10.12.2018 and on 27.12.2018 and the OPs have acknowledged by issuing proper receipts as annexed by the complainant.The complainant further stated that the policies were closed by the OPs,Kanak Branch on 27.12.2018 and therefore debit instruction of six policies of the complainant would no more deducted from the complainant’s accounts lying with the OPs-5 and 6.The whole narrative as written and explained by the complainant in his complaint letter to The Branch Manager KLIF Branch Kolkata-700071 against Madam Sulagna Baksi a senior Life advisor and Mr.Prasanta Patra,a life Advisor.This letter was sent by post on 25.03.2019.
It is evident from the documents available that there was deficiency of service on the part of the OPs.They failed to settled the issue whenever they received the deactivation request from the complainant.They intentionally or unintentionally delayed the issue.
Secondly,as per the complainant’s statement and documents annexed the mode of premium of policies changed from yearly to quarterly though the policies were closed on 27.12.2018 as per the request of the complainant and receipt annexed.The complainant at no point of time made any representation or gave consent for change of mode of operation.The OPs failed to submit any documental evidence which proved that the OPs informed the same to the complainant.It also leads to deficiency of service on the part of OPs 1 to 4.
It is a fact that the complainant had suffered due to negligence attitude of the OPs.
But the prayer of the complainant is to refund the premium in the present case.In relation to that the Hon’ble National Consumer Dispute Redressal Commission has observed in the case of Life Insurance Corporation of India Vs Siba Prasad Dash,reported as IV (2008) CPJ 156(NC),at Para 5 as follows “The Premium is given by the 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 no.2 that the risk was not covered for the period for which the premium was given/paid by his father.If after the policy lapsed under no provision of terms of policy or law could any Fora to 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”
In a decision reported in 1996 (6) SCC 451 (Sony Cherian Vs. Oriental Insurance Company Ltd.) the Hon’ble Supreme Court held as follows:-
“The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”
In view of the above mentioned orders passed by Hon’ble National Consumer Dispute Redressal Commission and Hon’ble Supreme Court of India,we are also in view of that under no provision or law the premium of a policy be refunded for the simple reason as already stated that the risk stood covered for the period for which premium had been paid.
So the prayer of the complainant for refund the amount of the premium of the policies is rejected .
Going by foregoing discussion, we are of the view that the complainant is not entitled to get the refund of the premium amount as claimed although some relief can be given to the complainant for the pain and mental harassment.Thus, all the Points under determination are disposed of.
In result, the case succeeds.
Hence, ordered,
The consumer complaint is allowed in part in contest directing the OPs 1 to 4 as follows-
1.OPs 1 to 4 are directed to pay an amount of Rs,30,000/(RupeesThirty thousand) only as compensation for harassment and mental agony.
2. OPs 1 to 4 are directed to pay Rs,10,000/ (Rupees Ten thousand) only as litigation cost.
The case is disposed of without any cost against OP-5 and OP-6.
