CC No.1180.2014

Filed on 02.07.2014

Disposed on 17.10.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 17^th DAY OF OCTOBER 2016

CONSUMER COMPLAINT NO.1180/2014                                                                                                                                                                                                                                                   

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

               PRESIDENT

                        Smt. L.MAMATHA, B.A., (Law), LL.B.

                                 MEMBER

                                          V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.07.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to close/cancel policy and return amount of paid by the Complainant along with compensation of Rs.3,19,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant agreed to take Opposite Party’s Life Insurance Policy on 28.12.2011, the application and other required forms/documents were duly filled by the agent, after due formalities, Complainant paid a sum of Rs.2,16,809/- as policy amount on the same day.   After payment, the Opposite Party assured the Complainant that the policy document will reach him through post within fifteen days.  After lapse of one month, original policy document was not delivered to the Complainant as assured by the Opposite Party.   Again after 2 weeks of time, the Complainant approached the Opposite Party agent to get the policy document, but he postponed the same for one or other reasons, finally he told the Complainant to visit the branch office, as per the advice of the agent, the Complainant approached the branch office and made the representation in writing on 02.08.2012, but there was no response from Opposite Party, the Complainant repeatedly approached the Opposite Party personally and over phone, finally after long lapse of 15 months, the branch officials vide letter dt.24.10.2013 asked the Complainant to comply certain terms and conditions for issue of duplicate policy document by paying requisite fees for processing of the duplicate policy document.   Again the Complainant agreed for the same, with an intention to get the duplicate policy document.  The Complainant complied those conditions and paid the requisite amount through demand draft on 30.10.2013 also executed the Indemnity bond on 05.11.2013.  Again the Complainant brought this issue to notice of the Manager, State Bank of Mysore, Cunningham Road Branch, who appreciated the fair transaction of the Complainant and issued a letter dt.18.01.2014 to the Opposite Party to solve the problem as early as possible.  The Complainant’s repeated visits to the Branch Office, the Opposite Party officials sent the duplicate policy document through post on 03.03.2014.  After 4 days receipt of the duplicate policy, the Complainant approached the Opposite Party officials to cancel the policy and requested the Opposite Party to refund the amount paid by the Complainant.  Again the Opposite Party officials postponed it for the one or the other reasons. The Complainant approached the branch officials to cancel the policy and refund the policy premium amount paid by the Complainant, but no one of the Opposite Party’s official is ready to resolve problem of the Complainant.   The Complainant sent letter dt.16.06.2014 to the Opposite Party demanding to close the said policy and to return the amount paid by the Complainant.   After receipt of the demand letter of the Complainant, the Opposite Party sent a letter dt.19.06.2014 and stated that the problem will be solved in fifteen days’ time.  After a week time the Opposite Party sent an untenable reply dt.23.06.2014 to the Complainant.  The reply of the Opposite Party for the Complainant’s letter itself clearly shows the negligence and deficiency of service by the Opposite Party, causing a lot of mental agony and hardship.   Hence this complaint.  

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that the Opposite Party has issued the policy based on the proposal form duly signed by the policy holder has not raised any issues regarding the terms and conditions of the policy during the free look period and continued with the policy.  Hence the complaint is liable to be dismissed.  The allegations made in the complaint require a thorough investigation and examination and Cross-examination of witnesses which are beyond the purview of the Hon’ble District Forum.  Only Civil Courts are competent to handle such cases because the proceedings before a District Consumer Dispute Redressal Forum are summary in nature.   Hence, the complaint be dismissed for want of jurisdiction.   The Complainant has never approached the Opposite Party regarding the non-receipt of the policy document till August 2012.  The policy bearing No.57004930702 was issued on the life of the Complainant having date of commencement of risk as 30.12.2011, at the registered address stated in the proposal form.   The Complainant is complaining the non-receipt of the policy document after 8 months.  The allegation of non-receipt of the policy document is sheer an afterthought and hence the present complaint is liable to be dismissed as frivolous. The Complainant had to choose an intermediary of their choice among the scores of Insurance intermediaries available around.  What transpired between the Complainant and the Agent is totally a private transaction and the Opposite Party was never a party to it.  The Opposite Party SBI Life Insurance Company has acted as per the proposal form duly filled and signed by the Complainant and based on that the policy was issued with Utmost Good Faith.  A person who asserts the fact should substantiate the same with documentary evidence and should prove it absolutely.  A mere allegation against the Company without supportive evidence does not shift the burden of proof to the company.   The Complainant has failed to prove any deficiency on the part of the Opposite Party and as such the complaint perverse and illegal and should be dismissed.   The Opposite Party had dispatched the original policy document at the registered address of the Complainant on 31.12.2011 and the same was not returned undelivered at the office of the Opposite Party.   Hence, it was presumed that the same must have been received by the policy holder.   The Complainant was silent till August 2012 and had never raised any objection regarding the non-receipt of the policy document.   Any prudent will not keep quiet for eight months after investing the huge amount of Rs.2,16,809/-.  He should have immediately approached the Opposite Party in the month of January 2012, if even the policy document was not received by him.   The Complainant is demanding to cancel his policy after the issuance of the duplicate policy that too after eight months’ time which is not maintainable.  There is no deficiency in service on the part of the Opposite Party and the complaint per se is baseless and liable to be dismissed.   The Complainant does not come within the purview of Section 2(1) (b) of the Consumer Protection Act, 1986.  The Opposite Party had received Proposal Form for SBI Life Smart Maney Back Plan, Option 3 vide proposal form No.57QA585020 dt.22.12.2011 in the name of the Complainant, Mr.Ebrahim Alijan along with an initial proposal deposit of Rs.2,16,809/- with regular yearly mode of premium payment for a term of 20 years and Basic Sum Assured of Rs.30,00,000/-.  The Complainant was also explained plan with a sample benefit illustration.   Based on the information furnished in the duly filled in and signed proposal form of the Complainant, the Opposite Party issued a policy in good faith bearing No.57007930702 with date of commencement as 30.12.2011 for a term of 20 years.  The said policy is in lapsed status due to nonpayment of renewal premium due on 30.12.2012 and onwards.   The proposal form is the basis of the contract of insurance.   Under the Doctrine of Utmost Good Faith, the insurer can rely on the information given in the Proposal form.  The policy was dispatched to the Complainant’s mailing address as stated in the proposal form, on 31.12.2011 through Blue Dart Courier vide AWB No.44905683480 and the same was not returned undelivered at the office of the Opposite Party.   It is clear that the said policy was very much received by the Complainant as he had not raised any allegation regarding the non-receipt of the Original Policy Document till August 2012.   In the said policy document, on the first page itself the Free Look Cancellation clause is mentioned.  If the Complainant had not agreed with the terms and conditions of the policy, he should have cancelled the policy under free look period.  But in the instant case, the Complainant did not exercise this option and continued the policy which means that he had agreed to the terms and conditions of the policy.  The Opposite Party received first letter dt.02.08.2012 from the Complainant requesting for the change of address and stating non-receipt of the policy bond.  As the Opposite Party had dispatched the original policy document at the registered address of the Complainant on 31.12.2011 and the same was not returned undelivered.   After one year, the Opposite Party received another letter dt.24.08.2013 from the Complainant requesting to close the policy as the same was sent to wrong address i.e., D2 APMCR Huskur Road instead of D-20 APMCR Huskur Road.  On verification of the records, the Opposite Party found that as stated in the proposal form duly signed by the Complainant, the address of the Complainant was mentioned as Fruit Merchant & Commission Agent, No.D2, APMCR Huskur Road, Hosur Main Road Cross, Singena, Agrahara, Bangalore-Karnataka, Pin code 560100.  The said policy document was sent at the same address.  Hence the contentions of the Complainant raised in the said letter were not correct.  The Complainant applied for issuance of duplicate policy bond by submitting the Duplicate policy bond questionnaire and indemnity bond. The Opposite Party issued duplicate policy bond and dispatched the same along with a letter dt.27.02.2014.  The Opposite Party received a complaint dt.16.06.2014 regarding cancellation of policy and refund of premium, it was replied vide a letter dt.23.06.2014.  Hence, there is deficiency of service on the part of the Opposite Party.   Hence prays to dismissal of the complaint.

4.      The Complainant, Sri.E.Alijan has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Neelam Singh, working as Authorized Representative has been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):- Negative

                POINT (2):- As per the final Order

REASONS

7.   POINT NO.1:- on perusal of the complaint and version, it is undisputed fact on 28.12.2011 the Complainant agreed to take Policy and duly filled Application Form and documents and he had paid a sum of Rs.2,16,809/-.  Now it is the case of the Complainant that the Opposite Party assured the Complainant that the policy document will reach him through post within fifteen days, but even after lapse of one month, original policy document was not delivered to the Complainant.  The Complainant approached the Branch Office of the Opposite Party and made the representation in writing on 02.08.2012.  To establish the same, the Complainant in his sworn testimony, reiterated the same and produced the letter dt.02.08.2012 addressed by the Complainant to the Opposite Party.  As looking into this document, it is received by the Opposite Party on 03.08.2012.  In the letter informed the Opposite Party he has not received the original policy bond No.570049307024 and further in the evidence of the Complainant, he clearly stated that there was no response from the Opposite Party.  Even though the Complainant repeatedly approached the Opposite Party personally and over phone only after lapse of 15 months.  The Branch Office official letter dt.24.10.2013 asking the Complainant to comply certain terms and conditions for the issuance of the duplicate policy.  In support of this, the Complainant also produced the letter dt.24.10.2013 addressed by the Opposite Party to the Complainant.  By looking into this letter, it is clear that the Opposite Party had clearly mentioned that with regard to the letter dt.24.08.2013, they informed the Complainant that the policy was issued on the basis of the proposal form which was duly signed by the Complainant and policy document was dispatched to his registered address on 31.12.2011 through Blue Dart consignment number 44905683480.  The same is not undelivered back to them and to following process for the issuance of duplicate policy.  So from this letter, it is very clear only on the basis of the letter dt.24.08.2013 of the Complainant for requesting of duplicate policy.  The Opposite Party have clearly informing the Complainant that the original policy bond was dispatched to his address on 31.12.2011 through Blue Dart which was not returned to the Opposite Party’s office.  So the Complainant is not placed any evidence to show that he has not received the original policy bond which was dispatched to his address on 31.12.2011. 

8. The defence of the Opposite Party is that, they have dispatched the original policy bond through Blue Dart on 31.12.2011 to the Complainant’s address and it was not returned to them undelivered.   To substantiate this defence, one Sri.Neelam Singh reiterated the same and also produced the Proposal Form duly filled by the Complainant.  As looking into this Proposal Form, the Complainant furnished his address as Fruit Merchant & Commission Agent, No.D2, APMCR Huskur Road, Hosur Main Road Cross, Singena, Agrahara, Bangalore-Karnataka, Pin code 560100 and produced the letter dt.30.12.2011 addressed to the Complainant by the Opposite Party to his address No.D2 APMCR Huskur Road, Hosur Main Road Cross, Singena Agrahara, Bangalore-560100, welcoming to become the members of the SBI Life Family and also produced the letter dt.03.08.2012 addressed to the Complainant informing the Complainant, he has request the Opposite Party change existing address Fruit Merchant and Commission Agent, No.D2 APMCR Huskur Road, Hosur Main Road Cross, Singena Agrahara, Bangalore-560100, Karnataka, India into  New Address No.203, 11^th Cross, 29^th Main, 1^st Phase, 2^nd Stage, BTM Layout, Bangalore-560076, Karnataka, India. So even from this letter, it is very clear that the Complainant has mentioned in the Proposal Form and also requested by the Complainant, the Opposite Party informing the Complainant regarding the change of address from D2 APMCR Huskur Road, Hosur Main Road Cross Singena Agrahara, Bangalore to No.203, 11^th Cross, 29^th Main, 1^st Phase, 2^nd Stage, BTM Layout address.  Even as looking into the duplicate policy issued to the Complainant, which was produced by the Complainant himself it clearly reveals that the address of the Complainant as Fruit Merchant and Commission Agent No.D2 APMCR Huskur Road, Hosur Main Road Cross, Singena Agrahara, Bangalore-560100.  So as the address given by the Complainant, the Opposite Party dispatched the original policy bond to his given address of the Complainant to the address as mentioned in the proposal form as D2 APMCR Huskur Road, Hosur Main Road Cross, Singena Agrahara, Bangalore to No.203, 11^th Cross, 29^th Main, 1^st Phase, 2^nd Stage, BTM Layout but the Complainant only on 24.08.2013 by addressing a letter to the Opposite Party mentioning that since the original policy bond was wrongly sent to his wrong address as No.D2 APMCR Huskur Road instead of to D-20 APMCR Huskur Road, before that he never disclosed i.e., correct address is D20 APMCR Huskur Road, as mentioned in the letter dt.24.08.2013 if really correct address is D20 APMCR Huskur Road, the Complainant ought to have mentioning the same in the Proposal Form.  But in the Proposal Form, he clearly mentioned his address as D2 APMCR Huskur Road.  The Complainant has produced any evidence to show that his address is D20 APMCR Huskur Road.  Due to that reason, the Opposite Party has sent the original policy bond to the said address as mentioning in the Proposal Form, the original policy bond is not returned undelivered.  This clearly goes to show that the Complainant received the original policy bond, but since he is taken the defence that his address is D20 and for that reason he wants to cancel the policy bond that does not amounts to deficiency of service on the part of the Opposite Party.  On the other hand, as per the request made in the Proposal Form and the amount paid by him the Opposite Party had issued the policy bond.  Thereby, the Opposite Party had perform his duty in accordance with procedure, if really the Complainant has not received the original policy bond what is necessary for him to request the Opposite Party office to issue a duplicate policy bond.  Even in the indemnity bond furnished by him to obtain the duplicate bond.  In the indemnity bond, it clearly mentioned that the original policy bond No.57004930702 for a sum of Rs.30,00,000/- has been lost, misplaced.  This clearly goes to show that if he has not received the original policy bond it is not necessary for him in his indemnity bond mentioning that the original policy bond lost, misplaced.  Thereby, while shifting of his residence the Complainant may be misplaced the original policy bond whey shifting his residence from D2 APMCR Huskur Road, BTM Layout thereby he requested for issuing the original policy bond and after that he wanted to cancel the policy bond.  It is not fair on his part alleging that he has not received the original policy bond.  Therefore, there is no deficiency of service on the part of the Opposite Party.  The Complainant failed to prove that there is deficiency of service on the part of the Opposite Party.  Hence, this point is held in the Negative. 

9. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed. No costs.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 17^th day of October 2016)

         MEMBER                                        PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.E.Alijan, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of representation dt.02.08.2012
2. Copy of letter dt.24.10.2013
3. Copy of Demand Draft & Indemnity
4. Copy of letter dt.18.01.2014
5. Copy of duplicate policy dt.03.04.2014
6. Copy of letter dt.16.06.2014
7. Copy of letter dt.19.06.2014
8. Copy of reply dt.23.06.2014

Witness examined on behalf of the Opposite Party:

1. Sri.Neelam Singh, on behalf of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Proposal Form
2. Copy of the Benefit Illustration
3. Copy of the Policy document
4. Copy of letter dt.03.08.2012
5. Copy of letter dt.24.08.2013
6. Copy of letter dt.24.10.2013
7. Copy of Duplicate Policy bond questionnaire
8. Copy of indemnity bond
9. Copy of letter dt,27.02.2014
10. Copy of complaint dt.16.06.2014
11. Copy of acknowledgement letter
12. Copy of reply

       MEMBER                                                    PRESIDENT