MRS. FIROZA KHATOON, PRESIDENT
The facts of the case is that the complainant took a Insurance policy through agent of the opposite parties which commenced on and from 22.02.2019 and the maturity date is 22.02.2032 being policy no.03505329 for 15 years and Mr. Jugal Kishore Dhar is the nominee of the policy. The allegation made by the complainant is that the agent of opposite parties wrongly guided him suppressing the terms and conditions of the policy. On receiving the bond of the policy, the complainant came to know the policy was not the same which was revealed to him by the agent of the opposite parties. So, the father of the complainant Mr. Jugal Kishore Dhar informed the opposite parties that he is not willing to continue the policy. It is also alleged that the information written in the policy bond and his signature therein are false. In spite of the request to cancel the bond by Mr. Jugal Kishore Dhar it has not been done by the opposite parties.
It is further stated that the said agent on false representation made the mother of the complainant Mrs. Anita Dhar to take a policy for 24 years which was also not cancelled by the opposite parties.
So, Mr. Jugal Kishore Dhar lodged complaint before Insurance Ombudsman on behalf of his wife Mrs. Anita Dhar and son, the complainant herein.
The Insurance Ombudsman on hearing the issues gave direction to opposite parties to cancel the policy of Mrs. Anita Dhar and to refund the entire premium amount but directed the complainant to continue his policy. In spite of several correspondences, the opposite parties have not responded to cancel the policy and refund the paid premium amount to the complainant. Hence this case.
The opposites parties by filing written version dispute and deny all allegations made against them. The opposite parties submit that as per clause 4(1) and 6(2) of the IRDA Regulations, 2002, the policy documents along with proposal form were sent to the complainant through registered post on 25.02.2017 giving him opportunity to review/cancel the policy within the free look period of 15 days from the date of receipt of the policy and the same was accordingly received by the complainant. The complainant did not raise any objection despite receipt of the policy bond along with aforementioned papers and remained silent for almost 13 months and paid the second renewal premium which implies that the complainant had no issue with the policy and in order to continue the same policy, paid the second premium. The complainant is a well educated person and he is estopped from raising any grievance relating to the policy as he himself waived such right with his own act.
It is categorically stated that cancellation request of the policy of Mrs. Anita Dhar was submitted on 21.11.2016 and the complainant obtained this policy on 22.02.2017. So, it clearly indicates the plea taken by the complainant is untrue. There is no deficiency in service or negligence on the part of the opposite parties as such the complaint case is liable to be dismissed.
Points for decision
- Is there any deficiency in service by the opposite parties as alleged ?
- Is the complainant entitled to get relief as prayed for ?
Decision with reason
For the sake of brevity and convenience both the points are taken up together for consideration and discussion.
On scrutiny of the record, we find that on 09.02.2022 a handwritten petition was filed on behalf of the complainant by his advocate on the prayer to treat the pleading i.e. complaint application and photocopies of the documents annexed thereto to treat as evidence. The petition was neither verified or support by affidavit. That a part, it does not bear the signature of the complainant. The copy of such petition was not supplied to the opposite parties to the case.
On perusal of order no.9 dated 09.02.2022 it appears that the erstwhile President and Member of the Commission without any hearing of the above mentioned petition allowed the same in contrary to the provision of section 38(9)(c) of the Consumer Protection Act, 2019.
Section 38(9)(c) of the Consumer Protection Act, 2019 read as follows:-
38. Procedure on admission of complaint.-
“(9) For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely-
(a) .........................................................
(b) .........................................................
(c) receiving of evidence on affidavits;
(d) .........................................................
(e) .........................................................
(f) ..........................................................”
When a statute describes or requires a thing to be done in a particular manner, it should be done in that manner or not at all.
Be that as it may, it is the basic principle of law that pleading cannot be accepted as evidence. Section 38(9)(c) of Consumer Protection Act, 2019 expressly describe that parties should submit evidence as per the procedure laid down in the Code of Civil Procedure.
During argument this point raised but the Ld. Advocate for the complainant has not prayed for any adjournment to rectify the same.
Therefore, it is apparent on the face of the record that the complainant has not submitted any affidavit in chief but we find the complainant has submitted reply to the questionnaire of the opposite parties on affidavit.
In reply the complainant admitted that he is an educated person. With regard to question no.4 “Is it true that the contents of the proposal form were explained to complainant and he has furnished the information after fully understanding the contents thereof and after understanding the terms and conditions of the plan? The complainant answered on oath ‘Never complaint to me’. Such answer of the complainant does not bear any meaning nor the answer denies the contents of question No.4.
With regard to question no.5 “It is suggested that the complainant was well aware of the terms and conditions. True ?” The complainant answered on oath “There is no allegation against the terms and conditions of the policy but only allegation is that the policy is vague and baseless”.
The answer of the complainant to question no.5 is self contradictory. If the complainant has no allegations against the terms and conditions of the policy, how can the policy be termed as vague and baseless ?
The opposite parties submitted affidavit in chief and stated that in accordance to clause 4(1) and 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002 the policy documents were dispatched through registered post on 25.02.2017 via airway bill no.R.K.805277322IN which was received by the complainant. Despite receipt of the policy terms and the copy of proposal form, the complainant failed to approach the opposite parties within the free look period of 15 days from the date of receipt of the policy and other documents. So, the policy continued as per terms and conditions of the policy. That a part the complainant also paid the second premium and the next premium which fell due on 22.02.2019 remained unpaid and the policy lapsed. As per terms and conditions the complainant had option to revive the policy within two years from the date of first unpaid premium i.e. on and before 22.02.2021 but the complainant did not taken any steps to revive the policy within the time limit. Therefore, the only option left is to surrender the policy and on surrender the opposite parties shall pay surrender value as per terms and conditions 4.4.2 of the policy.
Such evidence of the opposite parties remained un-rebutted and unchallenged in cross examination by the complainant.
Considering the elaborate discussion made above we are of the opinion that there is no deficiency in service on the part of the opposite parties. Moreover, the opposite parties admitted to act as per terms and conditions 4.4.2 of the policy. Thus the complainant is not liable to get relief as prayed for.
Therefore, both the points are decided against the complainant.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
Dictated and corrected by me
...............................................
President
