Chandigarh

DF-I

CC/271/2022

Aseem Kumar Sharma - Complainant(s)

Versus

The Managing Director Kotak Mahindra Life Insurance Co. Ltd. - Opp.Party(s)

Karan S Gill

06 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

[1]

Consumer Complaint No.	:	CC/271/2022
Date of Institution	:	02/03/2022
Date of Decision	:	06/03/2024

 

1. Aseem Kumar Sharma son of Mr. M.M. Lal Sharma, resident of #140, Sector 16-A, Chandigarh (UT).

2. Zaq Mahajan (minor) s/o Ankit Mahajan, resident of #9, Amber Gardens, Unit No.5-21, Singapore through his mother & natural guardian Mrs. Qaynat Sharma wife of Mr. Ankit Mahajan.

… Complainants

V E R S U S

1. The Managing Director, Kotak Mahindra Life Insurance Company Limited, Second Floor, Plot No.C-12, G-Block, BKC, Bandra (E), Mumbai - 400051.

2. The Branch Manager, Kotak Mahindra Life Insurance Company Limited, SCO 141-142, Sector 9, Chandigarh (UT).

… Opposite Parties

[2]

Consumer Complaint No.	:	CC/272/2022
Date of Institution	:	02/03/2022
Date of Decision	:	06/03/2024

 

1. Aseem Kumar Sharma son of Mr. M.M. Lal Sharma, resident of #140, sector 16-A, Chandigarh (UT).

2. Bhuvan Sharma son of Mr. Aseem Kumar Sharma

    At present resident of 1603-1633, Richmond BC, Corvette Way, Vancouver (Canada) and permanent resident of #140, Sector 16-A, Chandigarh (UT) through his General Power of Attorney Mr. Aseem Kumar Sharma.

… Complainants

V E R S U S

1. The Managing Director, Kotak Mahindra Life Insurance Company Limited, Second Floor, Plot No.C-12, G-Block, BKC, Bandra (E), Mumbai - 400051.

2. The Branch Manager, Kotak Mahindra Life Insurance Company Limited, SCO 141-142, Sector 9, Chandigarh (UT).

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Karan S. Gill, Advocate for complainants
	:	Sh. Mrigank Sharma, Advocate for OPs

 

Per Pawanjit Singh, President

1. By this order, we propose to dispose of the captioned consumer complaints, filed by the respective complainants, in which common questions of law and facts are involved. The facts, apart from minor variation here and there, are also almost analogous. The complainants in the above complaints have sought the relief of refund of the premium amount paid alongwith interest and compensation etc. As such, during arguments, it was agreed upon by the parties that captioned consumer complaints be disposed of by passing a consolidated order.
2. To dictate the order, facts are being taken from Consumer Complaint No.271 of 2022-Aseem Kumar Sharma & Anr. Vs. The Managing Director, Kotak Mahindra Life Insurance Company Limited & Anr.
3. It transpires from the allegations as projected in the consumer complaint that complainant No.1 is holder of “Kotak Premier Money Back Plan” (hereinafter referred to as “subject policy”). The relevant details in respect of both the consumer complaints are tabulated as under :-

S.No.	Particulars	CC/271/2022	CC/272/2022
	Policy No.	74612087 (Annexure C-1)	74563660 (Annexure C-1)
	Name of holder	Aseem Kumar Sharma
	Life insured	Zaq Mahajan	Bhuvan Sharma
	Basic sum assured	51,53,000/-	50,00,000/-
	Premium amount	7,73,378/-	7,63,738/-
	Commencement date	30/03/2021	24/02/2021
	Maturity date	30/03/2037	24/02/2037
	Policy term	16 years	16 years
	Premium payment term	08 years	08 years

 

The subject policy (Annexure C-1) was received by the complainants through email dated 2.4.2021 and on 6.4.2021 through courier.  On the perusal of the subject policy, it was observed by the complainants that there were serious discrepancies in the particulars i.e. address of the agent, policy holder and beneficiary and immediately complainant No.1 had returned the policy document to OP-2 on 9.4.2021 with the request to incorporate correct particulars and resend the corrected insurance policy.  It was also mentioned in the letter dated 9.4.2021 (Annexure C-2) that the free look period for the subject policy shall commence only after receipt of the corrected insurance policy document. Vide email dated 29.4.2021 (Annexure C-3), complainant No.1 was informed by the OPs that the necessary corrections have been made in the subject policy and the same would be despatched shortly and it was also made clear in the said email that the free look period offered under the subject policy was 30 days from the receipt of the soft copy of the policy document.  The complainants vide email dated 1.5.2021 (Annexure C-4) i.e. well within the free look period, had exercised right to choose to return the subject policy with the request to refund the premium amount after deduction of requisite charges, if any, after cancelling the subject policy. Thereafter executive of OP-2 started pressurizing and harassing complainant No.1 to change his mind and revoke the earlier letter dated 1.5.2021 and under their pressure complainant No.1 vide email dated 10.5.2021 (Annexure C-5) had requested to withdraw the letter dated 1.5.2021.  As complainant No.1 had returned the subject policy well within the free look period of 30 days of the receipt of the insurance policy, same could not have been legally revived/ reinstated or restored by the OPs.  Till date, complainants have not received the refund of the premium amount after adjustment of charges and as complainant No.1 had abundantly made clear through email dated 1.5.2021 (Annexure C-4) that he did not intend to continue with the subject policy and has not made any fresh proposal for the issuance of the new policy, OPs were legally bound to refund the premium amount. The complainants had also issued legal notice dated 17.1.2022 (Annexure C-6) to the OPs and had also filed representation dated 5.2.2022 (Annexure C-9) with the OPs with the request to cancel the subject policy and refund the premium amount and till date as nothing has been done by the OPs, the said act amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.

4. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts and jurisdiction.  However, it is admitted that the subject policy was issued by the OPs to the complainant.  It is further alleged that, in fact, complainant No.1 himself is working as an agent/ life advisor and served in the Govt. of India as IFS and he had sourced three life insurance policies in the capacity of an insurance agent for which he had received commission to the tune of ₹3,80,084/- and ₹87,000/- towards rewards.  Not only this, complainant No.1 had attended the training for obtaining licence to source life insurance policy and after clearing the exam conducted by the IRDAI, he became certified agent.  The request made by the complainant for cancellation of the policy within the free look period was withdrawn by the complainant vide email dated 10.5.2021 and in this manner the subsequent request made by the complainant for cancellation of the policy, being beyond the free look period is not sustainable.  It is alleged that complainant No.1, who sourced the subject policy being certified agent, had already received commission from the OPs for getting the subject policy in the name of complainant No.2 and has later on filed the present false complaint against the OPs just to harass them.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. Complainants chose not to file rejoinder.
6. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
7. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties in both the aforesaid consumer complaints that both the insureds i.e. complainant No.2 were minor at the time of obtaining the subject policy and have been residing abroad and complainant No.1 in both the consumer complaint, who was also a certified agent by the IRDAI, had obtained the subject policies (Annexure C-1) for the minor insureds and complainant No.1 had applied for cancellation of subject policies within the free look period by requesting OPs to refund premium amount vide email (Annexure C-4) and later on complainant No.1, on the request of the OPs, had withdrawn the said request and again vide email (Annexure C-5) requested the OPs to cancel the subject policies and refund the premium amount and, till date, the said premium amount has not been refunded by the OPs, the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in not refunding the said amount and complainants are entitled to the reliefs prayed for in the consumer complaints, as is the case of the complainants or if the complainants have failed to approach the OPs within the free look period for the cancellation of the subject policies and OPs are justified in not refunding the premium amount and both the consumer complaints, being false and frivolous, are liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the documentary evidence placed on record by them and the same is required to be scanned carefully to determine the real controversy between the parties.
   3. Perusal of the subject policy (Annexure C-1) clearly indicates that the same was issued in the name of life assured Zaq Mahajan/complainant No.2 through complainant No.1/policyholder and at that time complainant No.2 was aged 5 years and the sum assured under the policy was ₹51,53,000/- with policy term of 16 years and premium payment term of 8 years. The ‘exclusions’ under clause (xii) Part B of the subject policy clearly indicates that the participation of the insured person in any flying activity had been covered under the said exclusion clause and the relevant portion of the same is reproduced below for ready reference :-

“xii. Additional Terms & Conditions for Accidental Death Benefit :

xxx                   xxx                   xxx

                        Exclusions :

xxx                   xxx                   xxx

• Participation by the insured person in any flying activity, except as a bonafide, fare-paying passenger of a recognized airline on regular routes and on a scheduled timetable.”

 

Thus, one thing is clear on record that the insured person has been restricted from flying, except as a bonafide, fare-paying passenger of a recognized airline on regular routes and on a scheduled timetable.

4. Perusal of proposal form (Annexure C-1 at page 55) clearly indicates that the address of complainant No.2/insured has been given of Singapore (foreign country) making further clear that OPs were knowing about the fact that insured person has been residing in Singapore.  Similarly, perusal of the proposal form (Annexure C-1 at page 34) in the second complaint shows complainant No.2 is residing at Canada (foreign country).  Thus, one thing is clear that even otherwise, subject policy had been issued to complainant No.2 i.e. insured persons residing in a foreign country and the flying of such persons has already been restricted under the subject policy.  At the time of issuance of the subject policy, when the OPs were aware of the fact that both the insured persons are residing in a foreign country and their policies will be covered under the exclusion clause, OPs should not have accepted the premium amount from the complainants.
5. The consumer complaints are resisted by the OPs on the ground that complainants have not approached the OPs for cancellation of the subject policies within the free look period.  However, when it is an admitted case of the parties that the complainants had approached the OPs within the free look period by moving cancellation request vide email dated 10.5.2021, which was also acknowledged by the OPs on 12.5.2021, which fact has also been admitted by the OPs in para 8 of the preliminary objections of their written version and later on the said request was withdrawn by the complainant firstly vide email (Annexure C-5), but, after some time the complainants again requested the OPs to cancel the policy and refund the premium amount even by issuing legal notice (Annexure C-6), it is safe to hold that the complainants had approached the OPs for cancellation of the subject policy within the free look period by requesting again and again and also due to the fact that complainant No.2 in both the consumer complaints i.e. insured persons were minors at the time of issuance of the subject policy, OPs are supposed to refund the premium amount to the complainants subject to deduction of certain charges.  However, as it has not been disputed by the learned counsel for the complainants at the time of arguments that complainant No.1 was certified agent of the Insurance Company and he had obtained the subject policies from the OPs in both the cases and got commission from the OPs, complainants have no objection in case the said commission amount be deducted from the amount of premium to be refunded to the complainants. 
6. In this manner, it is safe to hold that the complainants are entitled to the premium amount after deduction of commission amount received by complainant No.1 from the OPs and since the OPs have not refunded the said amount, the said act certainly amounts to deficiency in service and unfair trade practice on their part and the present consume complaints deserve to succeed.

8. In the light of the aforesaid discussion, the both the consumer complaints succeed, the same are hereby partly allowed and OPs are directed as under :-

CC/271/2022

1. to refund the amount of ₹7,73,378/- (minus the amount of commission paid) to the complainants alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. 2.3.2022 onwards.
2. to pay an amount of ₹10,000/- to the complainants as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainants as costs of litigation.

9. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above. It is, however, made clear that the aforesaid awarded amount shall be apportioned amongst the complainants in equal share i.e. in the ratio of 50:50 each.

CC/272/2022

1. to refund the amount of ₹7,63,738/- (minus the amount of commission paid) to the complainants alongwith interest @ 9% per annum from the date of institution of the present consumer complaint i.e. 2.3.2022 onwards.
2. to pay an amount of ₹10,000/- to the complainants as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainants as costs of litigation.

10. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above. It is, however, made clear that the aforesaid awarded amount shall be apportioned amongst the complainants in equal share i.e. in the ratio of 50:50 each.
11. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
12. Certified copies of this order be sent to the parties free of charge. The file be consigned.

06/03/2024 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member