D.O.F. 06.11.2010
D.O.O.01.03 .2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 1st day of March 2012
C.C.No.257/2010
O.K.Ibrahim Kunhi,
O.K.House,
Chirakkal,
Kannur. Complainant
(Rep. by Adv.T.P.Sabu)
1. Manager,
Bajaj Allianz Life Insurance Company Ltd.,
Cherooty Road, Kozhikode.
2. The Branch Manager,
Bajaj Allianz Life Insurane Co. Ltd.
Kannur. Opposite parties
(Rep. for Ops 1 & 2by Adv.M.Govindankutty)
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay an amount of `50,000 as compensation and to return an amount of `10,000 received from the complainant with cost.
The case of the complainant in brief is as follows: Complainant took life insurance policy under the plan Bajaj Alliance Capital Unit Gain on 28.1.2007 by paying `10,000. The opposite party assured that on completion of three years period the complainant can surrender or revive the policy by paying dues and in any case he will get benefits of the amount invested. Complainant could not pay the next two yearly premium due to reasons beyond his control. When contacted the opposite party it was promised that complainant can surrender the policy or revive the same on completion of three years and in any way he would get the benefit of the amount invested. Believing the assurance given by 2nd opposite party complainant had submitted the surrendering form along with the original policy on 28.1.2010.But it was rejected stating that the policy was terminated and the complainant was not entitled for surrender. The branch manager did not permit the complainant to revive the policy as stipulated in the conditions of the policy. Lawyer notice was sent to both parties to permit to surrender or to revive the policy. But no reply sent by them. Hence this complaint.
In Pursuance of the notice opposite parties entered appearance and filed version jointly denying the allegations of complainant. The case of the opposite parties in brief is as follows: The date of commencement of policy is 28.1.2007 and the complainant failed to pay annual premium subsequently for 2 years. The complainant did not contact opposite parties after taking the policy till 28.1.2010. The petition submitted to surrender the policy was rejected since the policy was terminated and complainant was not eligible for surrender. Due to non payment of renewal premium from the 2nd policy years the policy was lapsed and not revived the policy within the revival period. As per the provisions of clause 37(f) stats that if at least 3 full years regular premiums have not been paid, surrender charge will be 100% of the value of the capital units. This being the fact complainant cannot raise a grievance. The lawyer notice was received and complainant was contacted. Complainant came to the office of the opposite arty and discussed in length and convinced the policy conditions. Complainant is the defaulter and there is no deficiency of service on the part of opposite parties. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Parties?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral evidence of PW1,DW1 and Exts.A1 to A6 marked on the side of complainant.
Issue Nos.1 to 3
Admittedly complainant was a policy holder under opposite party by paying an amount of `10,000. Complainant could not make payment of second and third annual installments. On 28.1.2010 complainant surrendered the policy and the same was rejected by opposite party on the ground that it is against terms and conditions of the policy.
Complainant adduced evidence by way of chief affidavit in tune with the pleadings. Complainant alleged that he was assured that he can surrender the policy or he can revive the policy within two years from the date of due. Complainant adduced evidence by affidavit evidence that at the time when he approach the opposite party while he was not able to pay the amount of annual installments opposite party assured him that complainant can surrender the policy or revive the policy paying the due amount. In cross examination complainant deposed with respect to this visit to the office thus: “ ]n¶oSv Ft¸m-gmWv OP 2hnsâ office t]mb XobXn F¶p HmÀ½-bn-Ã. policy 3 hÀj-¯n-\p-ti-jT surrendersN¿mt\m ]pXp-¡mt\m Ign-bp-sa¶pofficese staff ]d-ªn-cp¶p”. When did complainant visited the office of the opposite party is not sure. So also who told him about the surrender and revival is also not clear. However, DW1 in his cross examination deposed that “ policy FSp-¡p-t¼mÄ tFXp agent BWv policysb Ipdn¨v ]d-ªp-sI-Sp-¯-Xp-F-¶-dn-bnÃ. Version -]-cmXn¡mc\p terms and conditions ]d-ªp-sIm-Sp¯p F¶p ]d-bp-¶Xp tI«-dn-hm-Wv. . Policy terms and conditions consumer H¸n« t]¸À Fsâ ssIh-i-ap-v. His evidence reveals that DW1 is not sure who was the agent explained the policy details to complainant. Moreover, he deposes that his knowledge with regard to the contention that the terms and conditions were explained to complainant is hearsay. He has no direct knowledge. He has also deposed that he is in possession of the paper containing terms and conditions wherein complainant has put his signature. But he has not produced that document, though very important. That document if produce the signature to the respective terms and conditions would have been proved to be explained to the complainant at the time when the policy was taken by him. Non production of the concerned document makes suspicion that there is failure on the part of the opposite party with respect to the question of making aware of complainant about the risk of his policy and of surrender and revival. Opposite parties have the legal liability to prove that the complainant was well explained the risk and of other relevant terms and conditions he is supposed to face. The presence of consensus ad idem’-the common consent between the parties is highly essential, without which it is not at all possible to draw a conclusion that the respective terms and conditions were made known to the complainant. In practical life in the usual course of dealings, the papers wherein the terms and conditions were printed in very small letters in many pages with complicated construction of compound sentences is not most probably intended to be read by the individual policy holders but it was meant only to avoid legal consequences. Under such a situation it is a must to ensure whether opposite party has clearly explained to the risk of policy holder and the condition adversely affecting his interest so as to draw a conclusion to determine the deficiency in service.
The complainant has the case that at the time of taking the policy nothing was told complainant that he is not eligible for any amount or he is not entitle to revive the policy if he has defaulted the next two premium. Complainant specifically name the insurance agent Mr.Souda Rasheed and Mr.Arun Bhaskar, the sales manager of opposite party and alleged both these persons gave him assurance that he can surrender the policy or revive the policy within two years from the date of due.Ext.A1 carries the names of these persons. PW1 has stated in cross examination that he is in possession of the paper wherein the complainant had signed. But it was not produced. None of the document will show that the partial terms and conditions that has supposed to be adversely affect the interest of policy holder/complainant has been consented by the complainant. The document in the possession of PW1 has not been produced. The above named persons who were allegedly given assurance to complainant has not been examined.Ext.A1 makes it clear their relation with the policy in question. Complainant has quite clearly alleged those persons assured him that the complainant can surrender the policy or revive the policy paying the due amount. DW1 made it clear he was unaware of the fact who explained the policy details to complainant. Opposite party has to explain why they excluded these persons from the witness list. So also non production of the document of terms and conditions signed by the policy holder also creates doubtful situation. It is also important to see that opposite party did not reply to the legal notice of complainant. Opposite parties if interested to explain the facts as contended by them they might have utilized the opportunity to reply the notice detailing the actual state of affair. Non reply of notice itself is a deficiency in service as far as this case is concerned. The available documents and evidence does not prove that opposite party has explained the terms and conditions to policy holder and convinced him the risk factor. Hence there is deficiency in service on the part of opposite party and is liable to refund the amount paid by the policy holder. Opposite parties are also liable to pay the cost of the litigation. Hence the issues 1 to 3 are found in favour of complainant.
In the result, the complaint is allowed partly directing the opposite parties to pay a sum of `10,000 (Rupees Ten Thousand only) the amount paid by the complainant together with `1000 (Rupees One thousand only) as cost of this litigation to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled for also interest @12% p.a from the date of the order till realization of amount. Complainant is at liberty to execute the order as per the provisions of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1.Policy and its terms and conditions issued by the OP
A2.Policy servicing request form dt.281.10
A3. Copy of the lawyer notice sent to OPs
A4.Postal receipts
A5 & A6.Postal AD
Exhibits for the opposite party: Nil
Witness examined for the complainant
PW1.complainant
Witness examined for the opposite parties
DW1. Chanchal Prabhath.K
/ forwarded by order/
Senior Superintendent
