CC No.788/2014

Filed on 26.07.2014

Disposed on 26.07.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE26^thDAY OF JULY2016

CONSUMER COMPLAINT NO.788/2014

PRESENT:

Sri.H.S.RAMAKRISHNA

                                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 26.07.2014U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay a sum of Rs.3,00,000/- towards mental agony and hardship, to pay a sum of Rs.5,000/- towards cost of this petitionand such other reliefs. 

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

In the Complaint, the Complainant had taken two policies from the Opposite Party No.2, policy bearing No.02085912& 02103458 for face value of Rs.50,000/- each on 25.08.2010 and 09.08.2010.  Both the policies were sold to him by one Mr.Manjunath.  Moreover, he was told to pay for a term of two years and after which he could withdraw the amount or continue if required.  When the complainant received the document after three months with continuous follow up with Mr.Manjunath and it was also showing the policy term as 2 years.   The policy and policy cover was shown as a different address and not the complainant’s address.  After two years, the complainant came to know that he has been cheated by tampering with his original date of birth in the pan card and change of address in senior citizen card and also there were changes in the policy documents.  As per the complainants pan card and passport, the date of birth was December 19, 1935 but it was altered to December 19, 1956.   The complainant’s spousesdate was also altered from 01.05.1943 to 01.05.1963.  The complainant paid the premium for 3 years and when the complainant went to ask for refund after 3 years, KLIC informed the complainant it cannot be refunded as the policy term was for 20 years and the premium had to be paid for 20 years.   The complainant wrote a letter to KLIC on June 2013 but did not receive any reply.   The complainant tried contacting the Opposite Party No.2, to get the documents rectified however unfortunately he did not get any response from them.   The complainant has been unable to get any positive response even after sending the Opposite Party a formal letter of complaint.  When the complainant approached voluntary organization by name Akosha at Delhi to take up this matter with the Opposite Party KLI deputed their BranschManager Mr.Raghavendra to the complainant residence and took the copy of the same and told that they cannot give the interest part as the complainant was cheated by the company and the complainant should be aware of the product and told they can provide principal part only or it is left to the Complainant whether to accept or not. On the fear of these, later complainant went to KIC Branch office at Rajajinagar and handed over all the originals with a cover note indicating protest saying the complainant was not happy with the matter and the complainant cannot fight with KLIC as his age is 79 years and clearly told them that he will escalate this matter as they are not paying the interest part.  Later amount of Rs.1,49,700/- and Rs.1,50,000/-was credited to the Complainant’s account on 19.12.2013 to his S.B.Account and to make the matter clear the Complainant had invested Rs.3,00,000/-but the refund was Rs.2,99,700/-.  Hence this complaint.  

3.      In response to the notice, the Opposite Partiesput their appearance through their counsel and filed common version.  In the version pleaded that the complaint is false, frivolous, vexatious and abuse of the process of this Hon’ble Forum.  The complaint does not raise any Consumer dispute as defined under the Consumer Protection Act.This Hon’ble Forum has no jurisdiction to entertain the present complaint.  The complainant has failed to demonstrate any deficiency in service on the part of the Opposite Parties.   Deficiency is defined under Section 2(g) of the Consumer Protection Act which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of a contract.   In the present case, the complainant has failed show that there was any deficiency in service or negligence on the part of the Opposite Parties.   The Complainant himself continued to pay the renewal premium even after he found the purported forging of the KYC documents required for issuance of the policy, this certainly implies that the Complainant has approached this Forum with unclean hands at this belated stage.   The Opposite Parties have already cancelled the policies of the Complainant and his wife and refunded the entire premium.  Since the policies have already been cancelled, there exists no cause of action in favour of the Complainant and therefore the present complaint is liable to be dismissed.  The complainant is not entitled for any interest amount as prayed in the instant complaint.  The Complainant enjoyed the benefit under the subject policies for more than three years.  To apprise this Hon’ble Forum that even though the request for cancellation was received after three years i.e. much beyond the free look period, the Opposite Parties as a matter of good will gesture and on humanitarian grounds refunded the entire premium paid by the Complainant under the subject policies.   The Complainant had not obtained the policy through any of agents/employees of this Opposite Parties. For obtaining the policy in question, the Complainant had availed the services of an independent Insurance Broker namely RR Insurance Brokers Private Limited-Bangalore.  An Insurance Broker is an independent entity licensed by Insurance Regulatory & Development Authority (IRDA), who advise their customers on their insurance needs and thereafter arrange insurance policies from any insurance company as per their own judgement and as per the customer’s choices.   The Insurance Companies do not enjoy any administrative control over the Insurance Brokers.   All Insurance brokers are governed by the provisions of IRDA Regulations, 2002 and IRDA also entertains complaints against Insurance Brokers. The Complainant has conveniently omitted to implead his own Broker as an Opposite Parties, though it was a necessary party to this complaint.   The Complainant does not seek to have made any complaint against the Insurance Broker before IRDA.   Thus the present complaint deserves to be dismissed on the grounds of non-joinder of the necessary party.  This Forum has no jurisdiction to adjudicate the present complaint.  The complainant in the instant complaint is alleging serious issue of Document tampering/forgery etc.  Such allegations cannot be adjudicated in summary proceedings.  Therefore, the present complaint should be out rightly dismissed.  The complainant had filed a complaint of similar nature before the Office of Insurance Ombudsman, Karnataka and Yanam vide letter dt.13.08.2013 to which even the Hon’ble Ombudsman reverted that they do not have any jurisdiction to adjudicate the instant complaint. The Complainant and his wife had proposed for the insurance policies by dully filling and executing the proposal forms dt.09.08.2010 and 25.08.2010 under which the Complainant had submitted all the necessary information through the insurance broker name RR Insurance Brokers Private Limited-Bangalore for issuance of the insurance policy.  The Complainant being a learned person had at the time of filling the Proposal Form, given the following declaration regarding understanding of the Policy.  The complainant had clearly mentioned the “Policy Term” to be “20 Years” and the “Premium Payment Term” to be “Full Policy Term”.  With Frequency of Premium Payment as Yearly under the Proposal Form.   The complainant also signed a Benefit Illustration dt.09.08.2010 and 25.08.2010 whereby he had agreed to the benefits and features therein.   Under the projected benefits chart appearing therein, it was clearly portrayed that the first year’s premium would not contribute any amount towards investment in the policy.  Pursuant to the particulars provided by the Complainant in the Proposal Forms through the broker, the Opposite Parties had duly generated a Policy Documents bearing policy number 02085912 and 02103458 and had sent a copy of the same to the Complainant along with a copy of proposal from and a welcome letter dt.12.08.2010 and 28.08.2010.  The policies have been issued based on the details/documents received by the Opposite Parties through the broker of the Complainant.   The Opposite Parties sent a copy of the proposal form, Benefit Illustration and Policy Terms and Conditions to the Complainant and had further allowed him to review the policy issued to him.   The Complainant was provided the right to seek cancellations of the insurance policy in case of any dissatisfaction in adherence to Regulation 6 (2) of the Protection of Policy Holders Regulations, 2002.   Under the said Welcome letter and also under Clause 17 of terms and conditions of the policy, the Complainant was provided a Free Look Period of 15 years to peruse the contract and seek cancellation thereof in case he did not agree to any of the terms and conditions therein.  However, the Complainant had not approached the present Opposite Parties for cancellation of the insurance policies under the Free Look Period of 15 days.  The Complainant has only paid first three Annual premiums for the subject policies including the subscription premium.   The premium was due on 11.08.2013 and 26.08.2013 for which a renewal reminder dt.13.07.2013 and 28.07.2013 was duly sent to the Complainant for policy No.0208512 and policy No.02103458 respectively.   As the Complainant chose not to pay the renewal premiums, the subject policy entered into the ACM mode.  In this regard ACM notices dt.16.09.2013 and 30.09.2013 were also sent to the Complainant but the Complainant did not pay any premium. On 12.12.2013, after three years from issuance of policy, the Opposite Parties received a request for free look cancellation from the Complainant with respect to the subject policies.  In this regard the Opposite Parties without admitting any liability, as a goodwill gesture and upon humanitarian grounds cancelled the respective polices and refunded the entire amount paid to the Complainant via NEFT.  Hence prays to dismissal of the complaint.

4.      The Complainant, B.K.NarayanaBhagavanhasfiled his affidavit by way of evidence and closed his side.On behalf of the Opposite Parties, the affidavit of one Mr.PritiSawant has been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

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

6.      Our findings on the above points are:-

                   POINT (1):-Affirmative

                   POINT (2):-As per the final Order

REASONS

7.POINT NOs.1& 2:       It is the case of the complainantthat on 09.08.2010 and 25.08.2010 booking two policies through Manjunath representative of Kotak Life Insurance for a term of two years and after which he could withdraw the amount or continue if required.  But this fact is denied by the Opposite Party.   So in order to establish this fact, the complainant in his sworn testimony, reiterated the same and also produced the policy deposit receipt.  As looking into these receipts bearing Voucher No.70993798 dt.21.06.2011 with respect to the policy No.02103458 with respect to premium of B.N.DevakiBhagavan i.e., wife of the complainant and Voucher No.71462403 dt.07.08.2012withrespect of policy No.02103458 and Voucher No.71462402 dt.07.08.2012 with respect to the policy No.02085912 in the name of the Complainant B.K.NarayanaBhagavan receiving a sum of Rs.50,000/-each and produced the Welcome letter addressed by the Opposite Partiesand also produced the First Premium Certificate dt.12.08.2010.  In the first premium Certificate the name of the policy holder is B.K.NarayanaBhagavan i.e., the Complainant Proposal Form No.02085912 policy No.02085912, the date of birth is 19.12.1935, Basic sum assured Rs.2,50,000/-, installment Premium Rs.50,000/- and date of commencing 11.08.2011, next Premium Due 11.08.2011, premium payment term two years, policy term two years and also produced the Welcome letter addressed by the Opposite Parties to the Complainant’s wife B.N.DevakiBhagavan and the first Premium Certificate which is dt.28.08.2010 name of the Policy Holder B.N.DevakiBhagavan Proposal Form No.02103458, policy No.02103458 the date of birth 01.05.1963, date of commencing 26.08.2011 policy term two years and total installment Premium Rs.49,900/-.  This evidence of the complainant remains unchallenged.  To discard the evidence of the Complainant, there is no rebuttal evidence, therefore it is proper to accept the contention of the complainant through one Manjunath take two policies one in his name bearing No.02085912 and another one his wife name B.N.DevakiBhagavan bearing No.02103458.

8. It is further case of the Complainant, when the Complainant received the document after three months with Manjunathand it was also showing the policy term as two years and policy cover shown as a different address.  However, after two years, the Complainant came to know that he has been cheated by tampering with his original date of birth in the pan card and change of address in senior citizen card and also there were changes in the policy documents.   The Complainant’s pan card and passport, the date of birth was 19.12.1935 but it was altered to 19.12.1956 and the Complainant’s spouses date was also altered from 01.05.1943 to 01.05.1963.  The Complainant paid the premium for 3 years and when the Complainant went to ask for refund after 3 years., KLIC informed the Complainant it cannot be refunded as the policy term was for 20 years and the premium had to be paid for 20 years.   The Complainant unable to get any positive response even after sending the Opposite Parties a formal letter of complaint.   When the Complainant approached voluntary organization to take up this matter with the Opposite Parties KLI deputed by Branch Manager Mr.Raghavendra to the Complainant residence and saw the tampered documents and took the copy of the same and told that they cannot give the interest part as the Complainant was cheated by the company and the Complainant should be aware of the product.  In order to substantiate this fact, the Complainant in his sworn testimony, reiterated the same and also produced the copy of the Senior Citizen I.D Card issued by the Department of Welfare of Disabled and Senior Citizens, Government of Karnataka.As looking into this document, the date of birth of the Complainant B.K.NarayanaBhagavan is 19.12.1935 and Smt.B.N.DevakiBhagavan, date of birth is 01.05.1943 and also the Complainant produced the Pan Card issued by the Chief Commissioner of Income Tax, Karnataka and Goa.  As looking into this date of birth of Narayana Bhagavan is 19.12.1935 and also produced the copy of the insurance policy.  In that it clearly shows that the date of birth of the Complainant is altered as 12.12.1956 and his wife Devaki Bhagavandate of birth is 01.05.1963.  This version of the Complainant remains unchallenged.   To disbelieve the version of the Complainant, there is no contra evidence.  On the other hand the defence of the Opposite Parties is that issued a policy as per the information furnished by the Complainant through the Agent, who has filling the Proposal Form.  To substantiate their defence,on behalf of the Opposite Parties, one Mr.PritiSawant has filed his affidavit and reiterated the same, no doubt in the Proposal Form the date of birth of the Complainant is mentioned as 19.12.1956 and policy terms 20 years and his wife dateof birth is mentioned as 01.05.1963.  If this contention of the Opposite Parties is true and believable how the Opposite Parties have issued First Premium Certificate and Welcome Letter addressed to the Complainant as well as his wife on 12.08.2010 and 28.08.2010 respectively.  In the first Premium Certificate mentioned the policy terms is two years and the date of birth of the Complainant as 19.12.1935 and in respect of the Smt.B.N.DevakiBhagavanwife of the Complainant as 01.05.1963 who has given this information to the Opposite Parties, if really, Opposite Parties have prepared the policy on the basis of the Proposal Form i.e., given on the information of the Complainant it is duly filled by the Agent Opposite Parties ought to have examining the Agent who have obtained the information from the Complainant but Opposite Parties have not chosen to examining the Agent as a witness, thereby, it is not proper to accept the defence taken by the Opposite Parties.  

9. In the version, the defence of the Opposite Parties is that they already cancelled the policy of the Complainant and his wife and refunded the entire premium, since the policy have already been cancelled.  In support of this PritiSawant filed affidavit and reiterated the same and also produced the letter dt.20.12.2013.  As looking in to this letter addressed to the Complainant Narayana Bhagavan and B.N.DevakiBhagavan.  By looking into this letter, it clearly that at the request of the Complainant for cancellation of the policies and proposed deposit receipt of Rs.1,50,000/- in favour of the Complainant and Rs.1,49,700/- in respect of the Complainant’s wife B.N.DevakiBhagavan has as full and final settlement by crediting in their Bank Account.  Except this, Opposite Parties have not produced any evidence to show that the Opposite Parties after cancelling the policy issued in the name of the Complainant and his wife credited the said amount of Rs.1,50,000/- and Rs.1,49,700/- in the Account of the Complainant and his wife has not produced any document.  Even in the letter dt.20.12.22013 also they have not mentioned the account number of the Complainant and his wife.  

10. On the other hand, if in the event that Opposite Parties by canceling the policy of the Complainant and his wife remitted a sum of Rs.1,50,000/- and Rs.1,49,700/- respectively to the account of the Complainant and his wife, what is necessary for the Opposite Parties by addressing a letter on 04.01.2014 informing the Complainant i.e., complaint was registered and they will be conducting a thoroughinvestigation with the same.  If really, they have remitted the amount by cancelling the policies it is not necessary for the Opposite Parties to registered the complaint lodged by the Complainant and also in the event of refund of the amount by the Opposite Parties the Complainant is not at all going to lodge a complaint, thereby it is not proper to accept the defence taken by the Opposite Parties. 

11. So from the evidence placed by the Complainant, it is crystal clear that the Opposite Parties have adopting untrade practice by giving the false assurance getting policy from the customer and they are not providing proper service to the customers like as in this case of the Complainant and his wife, thereby the act of the Opposite Parties amounts to deficiency of service on the part of the Opposite Parties. 

12. The learned Counsel for the Opposite Parties argued before us, the present complaint does not arise any consumer disputes as defined under the Consumer Protection Act Seciton-2(i)(e) of the Act defines Consumer disputes as under.

13. The ‘Consumer’ disputes means the dispute whether the person against whom thecomplained has been made denies or dispute allegation contended in the complaint, so also in the present case the Complainant made a complaintagainstthe Opposite Parties that the Opposite Parties making false promise as 2 years term policy when the Complainant ask for refund of the amount after 3 years they denied alleging that the term of the policy is for 20 years and he has to pay annual premium for 20 years thereby they denied and disputed the allegations.  Hence there is a clear case of the ConsumerDisputesas defined under Seciton-2(1)(e)of the Act.  Therefore, it is not proper to accept the argument of the learned counsel for the Opposite Parties.  On the other hand, as the evidence placed by the Complainant and the allegations made in the complaint clearly goes to show that there is a deficiency of service on the part of the Opposite Parties.  Hence, this point is held in the Affirmative.

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

ORDER

The complaintis allowed holding that there is deficiency of service on the part of the Opposite Party No.1 & 2.  The Opposite Party No.1 & 2 are directed to refund a sum of Rs.99,700/- i.e., premium amount paid by the Complainant together with interest at 12% p.a. from 21.06.2011, till the date of realization.  The Opposite Party No.1 & 2 are also further directed to pay a sum of Rs.45,000/- as compensation for causing mental agony.  The Complainant is entitled for a sum of Rs.5,000/- as cost of this litigation.  The Opposite Party 1 & 2 are jointly and severally liable to pay the aforesaid amount within 30 days from the date of thisorder. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 26^thday of July 2016)

MEMBER                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. B.K.NarayanaBhagavan, who being Complainant has filed her affidavit.

List of documents filed by the Complainant:

1. OTC Proposal Form
2. Applicant’s Declaration
3. Letter 12.08.2010
4. First Premium Certificate
5. Policy Documents, Index Sheets
6. Renewal Premium Payment Notices
7. Letters of Kotak Life Insurance to B.K.NarayanaBhagavandt.16.09.2013, 30.09.2013, 20.12.2013, 12.08.2010, 28.06.2013 and schedule,
8. Letters of Kotak Life Insurance to B.N.DevakiBhagavan dt.28.08.2010,
9. Blue Dart sheets,
10. Policy Deposit Receipts,
11. Renewal Premium Payment Notices
12. Identity Card, Pan Card, address proof card, old passport card,
13. Letters ofB.K.NarayanaBhagavan dt.28.06.2013, 13.08.2013, 12.12.2013
14. Inland letters, postal acknowledgements,

Witness examined on behalf of the Opposite Party:

1. PritiSawant,on behalf of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Parties:

                                     NIL

MEMBER                                                      PRESIDENT