IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE    29^th DAY OF FEBRUARY 2020

Present: -              Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

                   Smt.S.Sandhya   Rani. Bsc, LLB ,Member

                                Sri.Stanly Harold, B.A.LLB, Member   

CC.No.245/2016

1.  Kochummen Tharakan,

           S/o Pappy Tharakan,

         Vilayil Veedu, Puthoor,

          Kottarakkara, Kollam.

          (By Adv.T.S.Sreekumar)                                     :               Complainants     

2. Anusha Tharakan(minor),

         12 years, D/o Kochummen Tharakan,

          Vilayil Veedu,

         Puthoor, Kottarakkara, Kollam.

          (By Adv.T.S.Sreekumar)

       V/S

1. The Manager,

         Bajaj Allianz Life Insurance Company Ltd.,

         GE-PLAZA, Airport,

        Yerawada, Pune-411006.

      (By Adv.P.Deepa)

2. Bajaj Allianz Life Insurance Company Ltd.,

​          1^st Floor,N.P.Tower,                                              :         Opposite Parties

         Guruvayoor Road,

        Near Keralavarma College Junction,

        West Fort, Thrissur- 680004.

        (By Adv.P.Deepa)

3. Bajaj Allianz Life Insurance Company Ltd.,

​           2^nd Floor,Palakkottu Complex

           Pulamon P.O.,

          Kottarakkara 691531.

         (By Adv.P.Deepa)

FAIR  ORDER

Smt.Sandhya Rani, B.SC, LLB, Member

This is a case based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

                The averments in the complaint in short are as follows.

                Complainant is a business man, who has taken Bajaj Alliance Capital Unit Gain policy No.0039977214 in favour of his minor daughter Anusha K.Tharakan from 1^st opposite party through 3^rd opposite party, the authorized agent of 2^nd opposite party.  By attracting the offers and assurances advanced by the 3^rd opposite party the complainant has remitted Rs.1,00,000/- on 23.02.2007 as first installment but he was unable to remit the other two installments due to financial crisis.  As per the policy conditions the amount should be withdrawn by the policy holder after three years.  But when he approached 3^rd opposite party to get refund the remitted amount it was replied that the account is now nil.  Though the complainant approached 1^st and 2^nd opposite parties several times he didn’t get the remitted money, which is a flagrant violation of conditions and assurance given by the opposite parties.  There is deficiency in service and unfair trade practice on the part of opposite parties and which caused mental agony and monitory loss to the complainant.  Hence this complaint.  Claiming to direct the opposite parties to retain the remitted amount of Rs.1,00,000/- along with rupees twenty five thousand as compensation and costs.

                Contentions raised by 3^rd opposite party on behalf of 1^st and 2^nd opposite parties are as follows:-

                This Forum has no jurisdiction to entertain this case because in this case money of the complainant can be invested in share market for a speculative gain and in such a situation this matter does not come under the purview of Consumer Protection Act.  Another contention is that the complainant has paid the premium amount Rs.1,00,000/- towards the policy in February 2007 and if there was any kind of deficiency in service on the part of opposite parties, then the complainant ought to have approached this Forum within two years from the date of alleged deficiency, hence this complaint is liable to be dismissed on the ground of delay and latches. It is further contented that the allegations in the complaint are mainly against the agent but the complainant has failed to include the agent in the party array so the company would not be responsible for the act of their agent when there is no such allegation that the company instructed the agent to give false assurance to the policy holder, hence the complaint is liable to be dismissed in liminie.  Again it is contented that complainant was well aware of the terms and conditions of the said policy that his policy was a Regular Premium Policy where in the complainant was under an obligation to pay at least three full years Regular Premiums to keep the Insurance Policy in active mode and avail the benefits of Insurance Policy or else the surrender charge will be 100% of the value of the capital units.  In this case, as the complainant has failed and neglected to pay the renewal premiums, the policy issued to him became lapsed and fore closed as per clause 5 of the Terms and conditions of Bajaj Alliance Life Insurance Policy.  Hence there exists no relationship between the complainant and opposite party as on date of complaint.

Another contention made by the opposite parties is that as per the principle of “allegation contra factum nonest admittenda”  that all the  allegations and statements made in the complaint are contrary to the terms and conditions of the policy documents.  So the complaint to be dismissed on the principle of “”nullus commodum capere potest ex sua injuria propria” that the complainant  cannot derive an advantage from his own wrong.  Since the premium is appropriated for the period of risk, the complainant has no right or equity for seeking refund of the premium amount.  Therefore the complaint is untenable in law.  Hence it is to be dismissed.

                In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled to get refunded Insurance claim Rs.1,00,000/- from opposite parties?
3. Reliefs and Costs?

Evidence on the side of complainant consists of oral evidence of PW1 and Ext.P1 series 3 in numbers, Ext.P2 and Ext.P3 series documents.Evidence on the side of opposite parties consists of oral evidence of DW1 and Ext.B1 and B2 documents.Both parties have filed notes of argument.

Heard both sides.

Point No.1 & 2

                For avoiding repetition of discussion of materials these 2 points are considered together.  The specific allegations of the complaint is that he has  taken Bajaj Alliance Capital Unit Gain Policy for Rs. 1,00,000/- in favour of his minor daughter Anusha K.Tharakan .  The said policy was taken through the 3^rd opposite party who is the agent of the 2^nd opposite party.  According to the complainant  he had taken the policy by believing the offers and assurances made by the 3^rd opposite party regarding the maturity amount and he had remitted only the  first installment Rs.1,00,000/- on 23.02.2007.  As per Ext.P1 policy premium has to be paid annually at the rate of  Rs. one lakh for a period for 20 years and in such event the policy holder will get the sum assured which is 10 lakhs only.  It is highly unfortunate to  point out that a policy holder regularly paying premium at the rate of  Rs.1,00,000/- per year will get only Rs.10,00000/- as sum assured.  Hence the above assurance made by the insurance company is highly unfair and injustice to the policy holder who is expected to remit Rs.20,00,000/- during the period of 20 years.  But the sum assured is only 10,00,000/-.

                It is true that the opposite parties have offered fund value as the maturity benefit.  In order to obtain fund value the insurance company has to deposit the premium or any part of the premium amount collect from the complainant in any particular fund.  But the oral evidence of DW1 show that they have not purchased any share in the name of the policy holder nor deposited the amount or nay part of the amount in any particular fund.  According to DW1 the insurance company will purchase shares in the name of the policy holder.  But in this case no share has been purchased in the name of the policy holder which is clear from the answer to a specific question  put during cross examination of DW1 that ‘policy holder choose  sN¿p¶  share  FSp-¡p-¶Xv R§Ä hgn-bm-Wv.  Sn sjbÀ kÀ«n-^n-¡äv \n§Ä¡v lmP-cm-¡mtam? A{]-Imcw particular share certificate CÃ.’

                In view of the above admission of DW1 it is crystal clear that no share has been purchased in the name of the complainant or in the name of beneficiary by utilizing Rs.1,00,000/- or any portion of said amount.  It is true that the complainant has defaulted in paying 2^nd installment of the policy premium and thereby policy has been lapsed.  Even if the policy was lapsed the insurance company is not expected to sallow the entire amount of Rs.1,00,000/- deposited poor policy holder.  The maximum that can be utilized by the insurance company is the expenses incurred for issuing the policy including the commission given to the agent.  It is true that no materials are available before the forum to know the expenses incurred by the opposite party insurance company in this behalf.

                The learned counsel for the opposite party has argued that the complaint is hopelessly bared by limitation.  According to the opposite parties the complaint ought to have been filed on or before March 2010 but the present complaint has been filed on 29/09/2016.  Hence there is inordinate delay in filing the complaint.  But in view of the materials on record, we find no force in the above contention.

It is vehemently  argued on behalf of the opposite party that this forum has no jurisdiction to entertain the complainant since the amount of policy collected from the complainant has been invested in share market for speculative gain.  Hence the matter does not come under the purview of Consumer Protection Act.  However the opposite parties have miserable failed to adduce any reliable materials including share certificate if any purchased in the name of the complainant or in the name of the minor beneficiary.  In the circumstances the contention of the opposite parties that the policy amount has been invested in the share market is highly  unbelievable and hence we find no merit in the contention of the opposite parties that since the amount can be invested in speculative business Consumer Forum has no jurisdiction . It is clear from the available materials that the opposite parties by claiming that the 1^st premium amount has been invested in the share market, the insurance company has misappropriated the entire amount by claiming the policy holder has failed to pay regular premium for 3 years.  In the view of the materials discussed above it is crystal clear that the opposite party insurance company has committed deficiency in service  and unfair trade practice by misappropriating the amount of premium paid by  the complainant without purchasing any share or investing in any fund by alleging that the complainant has defaulted in the payment of the 2^nd installment onwards. In the circumstances the complainant is entitled to get back the said amount of Rs.1,00,000/- after deducting the initial expenses for issuing policy and payment of agents commission etc. The points answered accordingly.

Point No.3

   In the result complaint stands allowed in the following terms:-

                Opposite parties are directed to pay Rs.75% of the premium amount of Rs.1,00,000/-collected from the complainant with interest at the rate of 9% per annum from the date of complainant till realization along with costs Rs.10,000/- within 45 days from the date of receipt of a copy of this order.  As the main relief is granted in part the prayer to grant compensation stands declined.

Dictated to the  Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   29^th day of  February  2020.

                                                                                                                    E.M .MUHAMMED IBRAHIM:Sd/-

                            S.SANDHYA   RANI:Sd/-

                                                                                                                                                                                STANLY HAROLD: Sd/-

                                                                                                                                                                    Forwarded/by Order

                                                                                                                                                                           Senior Superintendent

INDEX

Witnesses Examined for the Complainant:- Kochummen Tharakan

Documents marked for the complainant

Ext.P1 series :- Insurance Policy

Ext.P2:- Acknowledgment card

Ext.P3 series:- Reg.notice dated 14.06.2016 & copy of insurance schedule

Witness examined for the opposite party:-Pratheesh K.C.

Documents marked for the opposite party:

Ext.B1:- Photocopy of Policy account statement

Ext.B2:- Photocopy of proposal form for life insurance