IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE    31^st  DAY OF August  2019

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

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

CC.No.01/2014

Smt.Marykutty Cruz, aged 52 years,

S/o Jerald Joseph Cruz,

RIJ Cruz Bungalow, Chakai,                                      :                  Complainant

Thiruvananthapuram

Rep.by

Smt.Nicky Esther John,

D/o Mercy John Jacob,

Vadakevila Puthen Veedu,

Cheriyala, Alumoodu P.O.,

Mukhathala, Kollam.

(By Adv. Chathannoor N.Jayachandran )                                                                

V/S

1. The Manager,

Birla Sun Life Insurance,

Near Iron Bridge, Kollam:Opposite parties

(By Adv.S.Harikumar)

2. The Manager,

Birla Sun Life Insurance,

C/o Sechasai Business forms Pvt.Ltd.,

W-141, TTC Industrial Area, Khairane,

MIDS, Navi Mumbai,

Pin 400710.

(By Adv. S.Harikumar )

 FAIR  ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

This is a consumer complaint filed U/Sec. 12 of the Consumer Protection Act by one Nickey Esther John the power of attorney holder of the oriental complaint Mary kutty cruz.

          The averments in the complaint in short as follows.

          The complainant is an Indian Citizen residing at England.  She is represented be her Power of Attorney. The complainant‘s husband is a British  Citizen.  After the marriage the complainant along with her husband and two daughters are residing at England and occasionally visits India to see her parents.  The 1^st Opposite party is the authorized agent of the 2^nd Opposite party Birla Sun Life Insurance .  The 1^st Opposite party is having its Branch office near Iron Bridge, Kollam.  A close relative of the complainant was working as an agent of the opposite party at office of the 1^st opposite party at Kollam.  The Manger of the 1^st Opposite party procured the telephone number of the complainant through the said close relative of contacted and apprised her about the various schemes of recurring deposits.  The 1^st Opposite party made the complainant to believe that if the complainant deposits an amount that will be doubled in a period of  3 years and if she deposits a handsome  amount, the job of the complainant is relative become permanent.  In view of the above assurance and the representation of the 1^st Opposite party, the complainant caused to transfer an amount of Rs.9 Lakhs through her mother to the 1^st Opposite party Branch office and also furnished the name and address of her husband and 2 daughters to make them as nominees.

Subsequently the 1^st opposite party has informed the complainant that said amount of Rs.9 Lakhs was deposited in the name of the complainant, and the husband two daughters are made as nominees to the said deposit and she will get  back Rs. 18 Lakhs after 3 years.

          After 3 years, the complainant came back to India for receiving the matured amount of 18 Lakhs, and   approached the 1^st Opposite party demanded the matured amount.  There upon the 1^st opposite party informed that the amount was  utilized to obtain insurance policy in the name of the complainant her husband and 2 daughters in order to procure promotion for her relative. The complainant obtained the policies from the custody of her said relative.  On a perusal of the policy document it was understood  that the signature of her husband and daughters were forged and obtained policies in the name of the complainant her husband and 2 children respectively.  The amount deposited in the names of each person is Rs.99,828/-, 99,328/-, 1,02,400/-, 1,99,578/- respectively.

          The complainant was really shocked to find that the 1^st opposite party  had deposited only Rs.5,01,134/- in the name of the above 4 persons.  Out of Rs.9 lakhs entrusted the 1^st Opposite party has also very casually informed that the amount deposed were already lapsed and the complainant is not entitled to the get back the amount and now if she is surrenders two policies she will get Rs. One Lakh.  In fact by believing the misrepresentation of facts the complainant entrusted Rs.9 Lakhs to the Opposite parties.  The 1^st Opposite party has forged signature of the husband and children of the complainant with the full knowledge that foreign Citizens cannot avail insurance policy from India.  The complainant was mislead by the opposite party.  If the said amount of Rs.9 Lakhs was deposited in a Nationalized  bank, the complainant ought to have  received a handsome  amount as interest.  In the circumstances the complainant is entitled to receive the capital amount of Rs. 9 lakhs along with Rs.3,24,000/- as interest for 3 years from the opposite parties.  There is clear deficiency in  service and unfair trade practice on the part of the opposite parties and the complaint sustained mental agony and tension for which the complainant is entitled to get back Rs.9,00,000/- with interest and compensation of Rs.50,000/-.  

Hence the complaint.

          The opposite party 1 & 2  filed a joint raising the following contentions.

          The complainant is not maintainable either in law in facts.  The averments in the complainant would not indicate a consumer dispute as defined under the Consumer Protection Act.  The policies solicitude  by the complainant are Unit linked plans, which are for speculative gains and as such do not fall under the purview of the Consumer as defined under the Act.  The complainant could allege mis-selling of the policy  which cannot be adjudicated under the summary proceedings and by a civil court the present matter can be adjudicated after leading proper evidence.  The Complainant has no authority to not file complainant on behalf of the other 3 Policy Holders.  The complainant  has not submitted any power of attorney to show that she has been authorized by the rest of the policy owners to file the present complaint. 

The complainant  is not maintainable under section 24 A of the Consumer Protection Act, being barred by limitation.  Policy bearing no.3842338 & 3843146 were issued on 06.02.2010 and  policy no.3842344 was issued on 08.02.2010 and policy bearing no 3808328 was issued on 23.01.2011 to the complainant.  After receipt of the policy and policy documents in the year 2010 & 2011 itself and not paying the correct premium amounts as per the agreed terms and, now after the expiry of more than 3 years the complainant has approached this Forum seeking refund of the premium which is barred by limitation.  There is no deficiency in service on the part of the opposite parties.  The complainant herself has failed to pay the renewal premiums on the due date and kept the policies. The complainant paid only one premium under all the policies and thereafter defaulted in paying the renewal premiums under the subject policies and allowed the same to terminate due to her own omission, commission, negligence and default allowed the  policy to terminate for which the complainant herself  is liable and hence the opposite parties cannot be made accountable in any manner. 

The opposite parties as per clause 4(1) and 6(2) of the IRDA Regulations, 2002, sent the policy and policy documents along with the copy of the proposal forms to the complainant giving her opportunity to review/cancel the policy within the free look period.  Though she was in receipt of the policy and policy documents, failed to approach the opposite parties within freelook period making any grievance with respect to the policy or its terms and conditions, which would indicate that the complainant was amenable to the policy terms and conditions of the policy.  Hence the complainant  is now stopped from raising any grievance or issue relating to the policy or their terms and conditions or any information given in the proposal from or seeks refund of the premium of the policy.  The complainant is bound by the policy contract and given up/relinquished/waived her right by not exercising the freelook provision. The complainant continued to enjoy the benefit under the subject policies till its termination.  After the lapse of more than 4 years from the issuance of policies, the complainant cannot be permitted to come forward and make a complaint for refund of the premium.

          The opposite parties sent renewal/ lapsation and termination notice under all the policies from time to time informing about the due date of the payment of renewal premiums and also the date of  lapsation  and termination of the policies.

          That the present complaint is bad for non-joinder of the necessary party.  The complainant in the complaint has made allegations against the agent/advisor who stated to have sourced the subject policies, but not impleaded in the present complaint.   

          It is denied that the complainant was assured that the amount deposited by the complainant will be doubled after three years.  It is further denied that the relative of the complainant was assured permanent job in lieu of the investment made by the complainant.  It is denied that the complainant has transferred an amount of Rs.9 Lakhs through her mother.

          It is denied that the complainant was informed that 9 lakhs was deposited in the name of the complainant and/or the complainant will receive 18 lakhs after three years.

          The complainant was never assured by the opposite parties that her investment is doubled in three years.  The complainant after receipt of the policy  document kept silent and failed to pay the renewal premiums of the policies and has now approached this Forum with a cooked up story . To justify her non payment of the renewal premium.  The opposite parties received four duly filled up and signed proposal forms from the complainant seeking insurance policy for various amount totaling Rs.501134/-.  The complainant has also signed Benefit Illustration Form wherein it is clearly stated that the  policy holders are bound to pay the premium yearly under all polices.  It is further contended that other policy documents signed by the opposite party to the policyholders is the welcoming letter issued by the company which clearly mentions that in case policyholder is not satisfied with the terms and conditions of the policy he/she can withdraw/return the policy within 15 days under the Freelook period.  However  despite receipt of the policy and policy documents the complainant did not approach the replying opposite parties for any pointed out of the any discrepancy made in the proposal form or any grievance relating to the policy or their terms and conditions of the policy during freelook period.  It is clearly implying that the complainant had agreed to subject policy and their terms and conditions and were in order.  The opposite parties received one yearly premium each each under the  policies and not thereafter.  Hence the opposite party sent the premium renewal letter dated 10.01.2011 under policy no.3842338 & 3843146 wherein the complainant was informed about the due date for payment of renewal premiums.  Further reminder letters were also dispatched to the complainant for both policies vide letters dated 16.03.2011 in policy no.3843244 the renewal premium notice was sent on 10.01.2011 informing the complainant that the due date of payment of renewal premium is 08.02.2011.  For policy No.003808328 the opposite party has sent an intimation letter dated 05.03.2012 informing the complainant that the policy had lapsed on February 2012.  However, even after receipt of the said letters the complainant neither paid the renewal premium nor approached the opposite parties.  Due to the non payment of renewal premium and failure on the part of the complainant to revive the policy within two years from the date of first unpaid premium.  Policies were terminated wide letter dated 09.03.2013 and duly intimated that fact to the complainant by sending written intimations .  The complainant had paid only single premiums for  the first three policies and 2 premiums for policy No.3808328 and all the premiums that were paid by the complainant was accounted and she failed to further pay the premiums and as such has acted in contravention of the policy contract.

          It is further contented that all the above four policies are Unit Linked Insurance Plans (ULIP) and therefore premium received from the policyholder is invested in the investment fund options selected by the policyholder subject to deduction of the charges duly agreed.  After understanding the terms and conditions of the Policy contract complainant had opted a Unit-Linked Insurance Plan and also well aware of the Investment featured of the Policy Contract.  In unit Linked Products the investment risk in the investment portfolio is to be borne by the Policyholder.  A detailed description about the said Policy features including all the charges that shall be levied on the same was explained to the Complainant and the Complainant was also apprised with its terms and conditions before signing of the said Applications.

          There was no fund value with respect to the policies no. 3842338, 3843146 and 3842344.  And for Policy no.3808328 the Surrender value as on the date of termination was Rs.34,486.58 which was sent vide Cheque dated 25.02.2014 bearing Cheque no.382361.  However it has come to our notice that the same was not received by the Complainant.  The Opposite Party is ready and willing to issue a fresh cheque for the said amount with the permission of the  Hon’ble forum.

          The opposite party has acted in accordance with the terms and conditions of the policies and has not committed any unfair trade practice or deficiency in services.  The complainant is having no cause of action to file the  complaint.  The opposite party pray to dismiss the complaint with exemplary cost and compensation.

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

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get refunded Rs. 9 Lakhs with interest @ 12 % per annum ?
3. Whether the complaint is entitled to get  the reliefs and costs as prayed for?

When the case was taken up for recording evidence there was no representation for the opposite party.  Hence opposite party exparty and exparty evidence was recorded.  Complainant has filed chief affidavit by reiterating the averments in the complaint and also get marked as Ext.A1 to A7 documents.

Ext. A1 is a copy of the policy certificate  bearing No.003842338.  Ext.A2 and A3 are the copy of other policy certificate issued in the name of two daughters of the complainant.  Ext.A4 is the 1^st premium  deposited in the name of Miss.Charlotte Ann Cruz  showing that the amount of Rs.102400/- has been paid in the policy No.003842344 on 08.02.2010. Ext.A5 to A7 are photocopy of the first page of the passport issued in the name of the complainant’s husband and her 2 daughters which would indicate that they are british citizens.

Heard the counsel for the complainant.  Notes of argument is also filed on behalf of the complainant.

Point 1 to 3

For avoiding repetition of discussion of materials these 3 points are considered together. This specific case of the complainant is that the opposite parties made the complainant to believe that if she made a deposit of Rs. 9 lakhs the same will be doubled after 3 years.  By believing the above representation the complainant through had mother had filed an application signed by the complainant and also entrusted Rs.9,00,000/- to the 1^st opposite party she has also furnished the details of her husband and children to be made as nominees.  However later it is understood that opposite party has not made the fixed deposit of the above Rs.9 Lakhs as instructed by the complainant.  Instead  the opposite parties have purchased insurance policy in the name of the complainant, her husband and two minor daughters without any authorization from the complainant and other family members by forging the signature of her husband and also her minor daughters.  According to the complainant her husband and children are foreigners who are not entitled to join insurance policy in India.  Ext.A5 to A7 copy of the Passport would prove that they are foreing citizens. It is the further case of the said complainant that opposite parties have purchase insurance policy to procure promotion for the 1^st opposite party.  However it is to be pointed out that the complainant has not adduced any reliable materials to convince the forum atleast prima facie that she had entrusted Rs. 9 lakhs to the 1^st opposite party through her mother.  There is no chance of entrusting cash worth Rs. 9 lakhs to her mother.  It might have been transferred through bank account.  If that we so a statement of bank account is sufficient to  established at least prima facie that so much cash has been entrusted to the mother of the complainant.  It is further to be pointed out that the mother of the complainant has not been examined in this case nor offered any valid reasons for non examination of the complainant’s mother.  The opposite parties have not admitted to have received Rs. 9 lakhs from the mother of the complainant.  In this circumstances there is no guarantee that the mother of the complainant has entrusted Rs. 9 lakhs to the opposite parties as claimed by the complainant.

          It is clear from the materials available on record that the opposite parties have issued four insurance policies in the name of the complainant, her husband and 2 children.  The total amount invested in the above 4 policy is Rs.502134/-.  Though I have granted sufficient opportunity to adduce evidence, the complainant has not produced any reliable materials except her ipsydipsit of  the complainant to get a decree in her favour for Rs.9 lakhs and interest as claimed in the complainant, even though  all the opposite parties  remain exparty.

          The specific contention of the opposite parties  in their joint version is that the complaint is not maintainable as it is hopelessly barred by limitation and that the complainant  has not filed any separate application explaining the delay and also praying to condone delay.  Even according to the complainant the cause of action  for the complaint arose from 23.01.2010, the date on which the complainant has deposited with Rs.9,00,000/- to the opposite party and on 06.06.13 which is the date of which the complainant was knowledge that all policy except one were lapsed.  As per the averments in the complaint the complainant  caused to make a fixed deposit  of Rs.9,00,000/- with the 1^st opposite party on 23.01.2010 for a period of 3 years.  If the above claim is believed the fixed deposit will be matured on 22.01.13.  The complainant is entitled to file the complaint 2 years after the date of maturity.  If that is so the complainant is entitled to file the complaint on or before 22.01.2015.  The present complaint is seen filed only on 06.07.2013.  Hence the complaint is within the prescribed period. 

          The material available on record would indicate the 1^st opposite party has issued insurance policy for a total amount of Rs.502134/- in the name of the complainant, her husband and 2 minor children.  But according to the complainant she has not signed on the proposal form nor her husband and minor children have put their signature, that her husband and children are foreigners and they are not entitled to take insurance policy from India.  But by fully knowing that fact the opposite party has forged and fabricated documents including her signature her husband and minor children and also forged records to show that they have joined the insurance policy.  Ext.A5 to A7 copy of the 1^st page of the passport would indicate that they are foreigners.  But the same would not by itself prove any unfair trade practice or deficiency in service on the part of the opposite party No.1 & 2.

She has also furnished the details of her husband and children to be made as nominees.  However later it is understood that opposite party has not made the fixed deposit of the above Rs.9 Lakhs as instructed by the complainant.  Instead  the opposite parties have purchased insurance policy in the name of the complainant, her husband and two minor daughters without any authorization would so ever from the complainant and other family members by forging the signature of her husband and also her minor daughters.  According to the complainant herself and her husband and children are foreigners who are not entitled to join insurance policy in India.  It is the further case of the complainant that opposite parties have purchase insurance policy to procure promotion for the relative of the 1^st opposite party. However it is to be pointed out that the complainant has not adduced any reliable materials to convince the forum atleast prima facie that she had entrusted Rs. 9 lakhs at the 1^st opposite party through her mother.  There is no chance of entrusting Rs. 9 lakhs to her mother by way of cash. It might have been transferred through bank account.  If that we so a statement of bank account is sufficient to established at least prima facie that so much cash has been entrusted to the mother of the complainant.  It is further to be pointed out that the mother of the complainant has not been examined in this case nor offered any valid reasons for non examination of the complainant’s mother.  The opposite parties have not admitted to have received Rs. 9 lakhs from the complainant is from  mother of the complainant.  In this circumstances the case of the complainant that her mother has entrusted Rs. 9 lakhs to the opposite party is not believable and acceptable.

          It is clear from the materials available on record that the opposite parties have issued four insurance policies in the name of the complainant, her husband and 2 children.  The total amount invested in the policy is Rs.502134/-.  Though I have granted sufficient opportunity to adduce evidence , the complainant has not produced any reliable materials to except the ipsydipsit of  the complainant to get a decree in her favour for Rs.9 lakhs and interest as claimed in the complainant.

          The material available on record would indicate the 1^st opposite party has issued 4 insurance policies for a total amount of Rs.502134/- in the name of the complainant, her husband and 2 minor children.  But according to the complainant she has not signed on the proposal form nor her husband and minor children put their signature and they are foreigners and they are not entitled to take insurance policy from India.  But by fully knowing that fact the opposite party has forged and fabricated documents including the signature of her husband and minor children and also forged records to show that they have joined for the insurance policy.  The complainant has also not taken any criminal action against the opposite parties for the alleged forgery and fabrication records.  She has not even sent any lawyer notice intimating the above allegation of forgery and fabrication records and alleged defalcation of portion of amount by the opposite parties.  According to the opposite parties they have invested the amount obtained from the complainant in

4 policies which are Policy No.3842338 and 3843146 were issued on 06.02.2010, policy no.3842344 were issued on 08.02.2010 and policy bearing  no.3808328 were issued on 23.01.2011 and  issued policy certificate to the complainant.  However the complaint has  no case that the above policy certificate has not been issued to herself or to her mother or to the Power of attorney or  any of her relatives.   The complainant has also not taken any action against the opposite parties who  disobeyed her direction to deposit  the amount  in the fixed deposit   and defalcated a substantial portion of the amount  and purchased insurance policy in the name of complainant and her family members who are foreigners.  The allegation in the complaint is highly unbelievable since reliable  materials are lacking  at least to corroborate the case of the complainant primafascie.  The complainant who claims to have entrusted the amount has not been examined.  Similarly her alleged relative who introduced the complainant to the opposite party and persuaded her to deposit the amount has also not been examined.

It is clear from the joint version that the complainant after having understood the terms and conditions of the policy contract had opted a unit link insurance plan and she is aware of the nature of the investment and the policy contract.  It is also clear that a  detailed description about the policy features including all the charges levied on the same has been explained and appraised to the complainant before  signing the application.  According to the opposite parties there was no refund value with respect to the 3 policies and Policy No.3808328 is having surrender value as on the date of termination  amounting to Rs.34486.58/- and cheque for that much amount was sent to the complainant.  But she has not accepted the same.  The opposite party has admitted in the paragraph xii that they are ready and willing to issue a fresh cheque amount.

          According to opposite parties they after accepting the premium  under the policies has covered the risk of the life assured till the policy was terminated and therefore the complainant is not entitled to get any refund.  The opposite party would further content that the complainant has paid  only single premium in the 1^st 3 policies and  recording policy No.3808328 the complaint has paid 2 premiums only.  All the premiums paid by the complainant have been accounted in the policies.  But the complainant failed to pay the premiums  thereafter and thereby acted in contravention of the policy contract and therefore policy no.3842338 and 3842146 were terminated on 06.03.2016 and the same was intimated to the complainant vide letter dated 07.03.2013.  Similarly policy No.3842344 was terminated on 08.03.2013 and the same was also intimated to the complainant vide letter dated 09.03.13.  But policy no.3808328 was terminated only 23.02.2014 and the same was also conveyed to the complainant on 25.05.14.  In the circumstance the case of the complainant that she was unaware of the issuance of insurance policy and requirement to pay premium continuously and also the date of termination of policy cannot be believed at all.

          In view of the materials available on record we have no hesitation to hold that the complainant has  not proved any deficiency in service or unfair trade practice on the part of the opposite parties.  Therefore the complainant is not entitled to get  an order as prayed for and the complaint is only to be dismissed.  However it is made clear that the complainant is entitled to get the surrender value of the policy as on the date of termination  of the 4^th policy as stated in paragraph No.xii of the written version.

          In the result the complaint stands  dismissed with the liberty to the complainant  to receive cheque for the surrender  value  of  Rs.34486.58 relating to policy No. 3808328.  It is also made clear that if there is any forgery, cheating or breach of trust the complainant is at liability to proceed against the opposite party No.1&2 under criminal law. Parties are directed to suffer their respective costs.

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   31^st day of  August   2019.

                                                                                                            E.M .MUHAMMED  IBRAHIM:Sd/-                                                                        

                                                                                                                     S.SANDHYA   RANI: Sd/-   

                                                   Forwarded/by Order

                                                                                                                      Senior superintendent

INDEX

Witnesses Examined for the Complainant:- Nil

Documents marked for the complainant

Ext.A1:- Copy of Policy certificate

Ext.A2:- Copy of other policy certificate

Ext.A3:- Copy of other policy certificate

Ext.A4:- 1^st premium deposit

Ext.A5:- Photocopy of passport

Ext.A6:- Photocopy of passport

Ext.A7:- Photocopy of passport

Witness examined for the opposite party:-Nil

Documents marked for the opposite party:-Nil