FINAL ORDER / JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 35 of CP Act 2019 filed by the complainant against the OP M/s Aditya Birla Sun Life Insurance Co. Ltd.
The fact of the case in brief is that the complainant purchased a policy from the OP Insurance Co. under the name and style ABSLI Guaranted Annuity Plus vide policy No. 008569418 dated 15.09.2021 on payment of the required premium. It was a policy of one time premium amounting to Rs. 2,95,220/-. It is a new and separate policy. Thereafter, after getting the policy certificate along with documents, the complainant sent a letter dated 01.10.2021 to the OP insurance Co. within free look period as per terms and conditions of the policy that he is not interested to continue the policy and he prayed for refund the one time premium of Rs. 2,95,220/- and requested to credit the same to his saving bank account No. 0148111017418 of Canara Bank, Govindpur Branch, Kolkata-700141. On receipt of the same from the customer care of the OP Insurance Co., sent a letter to the complainant through email which was received on 05.11.2021 and by that letter the OP rejected the prayer of the complainant in fact repudiated his prayer on the plea that the op insurance co. received the request letter of the complainant for cancellation of the subject policy after expiry of free look period. But it is the case of the complainant that he received original policy document on 30.09.2021 and sent the letter of cancellation on 01.10.2021 that was received by the OP Insurance Co. on 13.10.2021 which was well within the free look period then the complainant requested the OP-1 to refund of Rs. 2,95,220/- paid by him for the subject policy but the OP insurance Co. repudiated the claim. Such conduct of the OP Insurance Co. caused harassment, mental pain and agony to the complainant who is a senior citizen for which the complainant compelled to file the case with a prayer to give direction upon the OP- 1 to cancel the subject policy No. 0008569418 (ABSLI Guaranty annuity plus) and also give direction to the OP- 1 to refund back the premium amounting to Rs. 2,95,220/- paid by the complainant along with interest @ 18 % p.a. and also prayed for compensation Rs. 2,00,000/- for negligence, harassment, mental pain and litigation cost of Rs. 40,000/-
The OP-1 has contested the claim application by filing a WV denying all the material allegation levelled against him. The name of the other parties have been struck out by this commission vide order dated 07.03.2022.
The contested OP-1 alleged that the petition of complaint is misconceived one false baseless and filed without any cogent reason. Admittedly, the complainant had applied for the policy of ABSLI by submitting application form bearing No. A71101673 of life insurance and it is also admitted fact that he purchased the subject policy being No. 008569418 by transferring fund by existing policy bearing No. 007110568 and the onetime premium of policy of Rs.2,90,000/- . The said policy was taken in an immediate annuity plan and they are monthly paid Rs. 1369.66 on 15th day of every month as annuity. The annuity is payable for life with return of purchase price on death of annuity.
It is further stated by the OP -1 that the complainant received 08 monthly annuity pay out of Rs. 1369.66 since Oct 2021 till May 2022 respectively and did not raise any question in this regard. The complainant has received one third amount of Rs. 1,41,774/- on 15th Sept of 2021 against policy No. 007110568 and rest of two third amount has been vested in annuity plan which is subject policy for purchase of Rs 2,90,000/- .
It is also admitted fact that the complainant has requested for free look cancelation dated 01.10.2021 to every ASLI that was received by the OP-1 on 29.10.2021 that is beyond free look period and the policy was delivered on 30.10.2021.
It is also contesting OPs case (OP-1) that the subject policy is not applicable for free look cancelation as per the terms and conditions of the policy. Accordingly the free look clause in the policy, free look option stated above cannot exercise if the policy has been purchased from funds which are arising of any of the pension plan under which annuitizing is compulsory and open market option are not available .
It is further case of the OP-1 that the complainant was the advisor for the policy No. 007110568. So, he is well aware about the terms and conditions of the policy contract and he invested in the said policy consciously. So, he is now estopped from claiming free look cancellation (Annexure-2 collectively).
It is further stated by the OP-1 that the complainant approached the Hon’ble Insurance Ombudsman and the Ombudsman was pleased to dismiss the complaint of the complainant on the ground that the policy was an annuity policy and as per terms and condition. No free look cancellation is available in the policy (Annexure-3).
It is the case of the OP-1 that the complainant has no cause of action to file this case and as per terms and conditions of the subject policy as claimed has no basis at all so there is no deficiency in service on the part of the OP-1 and question of harassment or negligent from the end of the OP-1 to the complainant does not arise at all. Thus, the petition of complaint has filed by the complainant is clearly fabricated, misconceived motivated, unsubstantiated and not sustainable at all. Thus, the same is liable to be dismissed with exemplary cost.
In view of the above fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
It is nobody case that this commission has no jurisdiction either territorial or pecuniary to try this case. Moreover, on a close scrutiny of material on record as well as position of law, it is found that this commission has got territorial and pecuniary jurisdiction to try this case.
The complainant has filed this case within the period of limitation from the date of cause of action and he claimed the refund of paid premium of Rs. 2,95,220/- only in respect of the subject policy 008569418 which he paid as the required one time premium for the subject policy (ABSLI Guaranted Annuity Plus) and requested the OP-1 Insurance Co. to cancel the subject policy. He sent a letter or request on 01.10.2021 within free look period to the OP-1 with a prayer to refund the paid premium (one time ) Rs. 2,95,220/- only which was duly received by the OP-1 Insurance Co. and they repudiated the claim of the complainant vide email dated 05.11.2021 and complainant filed the case on 24.02.2022 which is well within the period of limitation.
From the aforementioned discussion, it is crystal clear that the complainant has/had sufficient cause of action to file this case.
It is also admitted fact that the complainant purchased the subject policy from the OP-1 Insurance Co. being policy No. 0008569418 dated 15.09.2021 on payment of one time required premium of Rs. 2,95,220/- to the OP-1 Insurance Co. The OP-1 issued the policy certificate to the complainant to that effect which was received by him (complainant on 30.09.2021).
On careful observation of certificate and document along with terms and conditions of the subject policy, the complainant found that he got only Rs. 1369.66 only per month as pension then he sent a letter dated 01.10.2021 to the OP-1 Insurance Co. with a request to cancel the subject policy and to refund the paid premium amounting to Rs. 2,95,220/- in this regard the OP-1 Insurance Co. stated in his WV that the free look period for cancelation of the subject policy as per terms and conditions is not applicable in the instant policy because free look option stated above cannot be exercised if the policy purchased from the funds which are arising from any of their pension plans under which annuity is compulsory and open market is not available.
The OP-1 further argued that the policy No. 007110568 is an Empower Pension Plan. The purchase price of Policy of Rs. 2,90,000/- has been taken from fund transfer of this policy. Thus, free look cancelation is not possible for the subject policy as per terms and condition because the complainant himself was the advisor for the policy No. 0071150568 and he consciously invested in the subject plan and thus he estopped from claiming free look cancellation, but from the pleadings of the OP-1 as he pleaded in its WV and also from argument and money receipt as filed by the complainant as available on the record, it is palpably clear that the complainant paid a sum of Rs 2,95,220/- only for purchasing the subject policy from the OP-1 Insurance Co. on 15.09.2021. He received the document and policy certificate on 30.09.2021. So, argument and pleadings of the OP-1 that the complainant purchased the subject policy on payment of Rs. 2,90,000/- instead of 2,95,220/- is not acceptable.
The OP-1 argued in his written argument that as the complainant invested the premium of subject policy from another pension policy. The free look cancelation could not be applicable in the subject policy. It is not acceptable by this commission because when admittedly the complainant paid one time premium of Rs. 2,95,220/- for purchasing the subject policy (ABSLI Guaranted Annuity Plus) No 007110568 instead of Rs. 2,95,220/- then he is entitled to get back the amount paid by him amounting Rs. 2,95,220/- only . It is not the natural justice or law of land that a person admittedly who purchased a policy on payment of required premium amounting to Rs. 2,95,220/- only will not get the refund of the amount on the event of cancelation of the subject policy on a prayer within the free look period and the huge amount of Rs. 2,95,220/- will be forfeited only on technical ground. It is the view of apex court in its observation so many case that Judicial forum should not be hyper technical and it is the responsibility of the judicial forum to give justice to the aggrieved person if he or she could be able to prove his case beyond all reasonable doubts.
In the instant case when it is admitted by the OP-1 Insurance Co. that the complainant purchased the subject policy (ABSLI Guaranted Annuity Plus) on payment of required one time premium of Rs. 2,95,220/- as per money receipt issued by the OP-1 and thereafter due to his inconvenience request to the OP -1 to cancel the subject policy in writing within the free look period in that case, the OP-1 Insurance Co. cannot repudiated the claim of the complainant only on the technical ground. It is also admitted by the OP-1 that the complainant on several occasion requested the OP-1 Insurance Co. to reconsider his prayer and to refund the amount of Rs. 2,95,220/- only which he paid as one time premium for the subject policy but the OP-1 did not recognise his prayer and repudiated the claim on a baseless ground which should be considered by this commission as negligence and deficiency in service on the part of the OP-1 Insurance Co. which caused harassment, mental pain and agony to the complainant who is a senior citizen also.
The consumer commission is meant for giving redressal to the consumer like the present complainant if he /she could be able to prove his case beyond all reasonable doubt. In the instant case the senior citizen complainant could be able to prove that he is a consumer within the ambit of CP Act 2019 and the mis-conduct of the OP-1 Insurance Co. caused his harassment, mental pain and agony as the OP-1 repudiated his claim to refund the paid premium of Rs. 2,95,220/- only on the event of cancelation of subject policy on his prayer.
From which it can be held by this commission that the complainant could be able to prove his case beyond all doubts successfully and is entitled to get relief as prayed for.
In view of discussion made above, this commission is of view that the complainant successfully proved his case beyond all reasonable doubts and is entitled to get relief as prayed for.
All the points are thus decided and considered favourably to the complainant.
Thus the case is properly stamped.
Hence,
Order
the case be and the same is decreed on contest against the OP-1 with cost of Rs. 5,000/-.
The OP-1 is directed to refund the paid premium in respect of the subject policy being No. 008569418 amounting to Rs. 2,95,220/- only with interest @ 9 % p.a. from the date of filing of this case till realisation after deducting 10 % as service charge within 45 days from this date of order.
The OP-1 is further directed to pay compensation to the complainant of Rs. 30,000/- along with litigation cost of Rs. 7,000/- within 45 days from the date of this order id the complainant will be at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as per mandate of the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.
