Haryana

Yamunanagar

CC/412/2012

Atul kumar S/o Ramesh Chand - Complainant(s)

Versus

The SBI Life Insurance Co.Ltd. - Opp.Party(s)

G.C.Verma

29 Apr 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 412 of 2012.

                                                                                                Date of institution: 27.04.2012

                                                                                                Date of decision: 29.04.2016.

Atul Kumar aged about 26 years son of Sh. Ramesh Chand, resident of House No, 1098, Sector-17, HUDA, Jagadhri, Tehsil Jagadhri, Distt. Yamuna Nagar.                                                                                                                                                            …Complainant.

                                    Versus

1. The SBI Life Insurance Co. Ltd. SCO 126-127, Commercial Belt Sector 17, HUDA, Jagadhri through Branch Manager.
2. Regional Director, SBI Life Insurance Co. Ltd. SCO No.109-110, 1^st Floor, Sector-17B, Chandigarh.
3. SBI Life Insurance Co. Ltd. SCO No.304, 2^nd Floor, Sector 9, Panchkula( Haryana).      

                                                                                                                                                                       …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  G.C.Verma, Advocate, counsel for complainant.

              Sh. BrijeshChauhan, Advocate, counsel for respondents.

 

ORDER

 

1.                     Complainant Atul Kumar has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to make the refund of Rs. 50,000/- alongwith interest and damages and to pay Rs. 40,000/- as compensation for the monetary loss and mental and physical agony and torture as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant purchased a SBI Life ShubhNivesh Policy bearing No. 35016424008 dated 21.12.2011 on the assertion of the agents i.e. Ashish Sharma and Mr. Harpreet Singh who had told that the OPs are from branch of State Bank of India and for this the complainant paid a sum of Rs. 50,000/- to the agents of OPs as per document supplied. This policy was received by the complainant on the inducement of agents of Ops they had induced the complainant at Jagadhri to pay this amount and had assured the following terms:

 1.        That one gold coin of 2 grams shall be given as incentive.

2.         That SBI Life Insurance Company is a branch  of State Bank of India.

3.         That this amount of premium can be got refunded at any time.

4.         That this policy is for three years only.

All the above terms and conditions turned out to be false as the 2 gms coin was never given to the complainant and also it came to light that there is no such collaboration between the State Bank of India and OPs. The OPs are using the logo of State Bank of India only with an ulterior motive to misrepresent innocent persons to invest their hard earned money in the company of OP and the OP derived unlawful gain for themselves by misguiding the citizens. After going through the terms and conditions of the policy sent by OPs afterwards, these terms and conditions, as contained in the policy, were contrary to the terms and conditions told verbally by the agents of Ops to the complainant. The Ops’ agents misrepresented to the complainant. Therefore, the complainant does not repose confidence on the OPs and when telephoned, the attitude of OPs was negative. Complainant did not accept this policy so, he sent a letter on 22.2.2012 under registered post asking the OPs to make refund of the premium amount of Rs. 50000/- alongwith interest @ 12% per annum alongwith appropriate damages within 15 days but the Ops instead of complying with the terms of the above letter, sent false and evasive reply which has absolutely no sanctity in the eye of law.  Hence this complaint.

3.                     Upon notice, OPs appeared and filed its written statement jointly by taking some preliminary objections such as no jurisdiction, bad for non joinder and mis-joinder of parties, no cause of action to raise any dispute and file the present complaint. It has been further alleged that the Crux of the complaint is against Mr. Ashish Sharma and Mr. Harpreet Singh. The OPs are not aware of the said persons and do not have any dealings of whatsoever nature with the individuals named. It has been submitted that the OPs are not responsible for the acts of commission or omission on the part of any third persons. The OPs have issued the policy based on the proposal form duly signed and submitted by the complainant. The allegations made in the complaint require a thorough investigation and examination and cross examination of witnesses which are beyond the purview of Hon’ble District Forum. Only civil Courts are competent to handle such cases because the proceedings before a District Consumer Disputes Redressal Forum are summary in nature.  The claimant should have filed a suit and in a regular proceeding the matter could be gone into. The OPs have issued the policy based on the proposal form duly filled and signed by the complainant. The complainant did not raise any issue regarding the terms and conditions of the policy during the free look period. If the complainant feels cheated by the agent/ third parties, he should have initiated separate proceedings against the agent/ third parties and the complainant should not have dragged the OPs to the litigation. The OPs Life Insurance Company has acted as per the proposal form duly filled and signed by the complainant and based on that the policy was issued on the ground of UTMOST GOOD FAITH. It has been specifically submitted that the Ops have not received the Free Look Cancellation request within the stipulated time alongwith the original policy document. Mere allegation against the company without supportive evidence does not shift the burden of proof to the company. The complainant has failed to prove any deficiency on the part of SBI Life and as such the complaint per se is perverse and illegal and should be dismissed in limine. On merit, it has been admitted that they have received a proposal form for SBI Life ShubhNivesh Policy bearing No. 35QB872125 dated 21.12.2011 alongwith an initial proposal deposit of Rs. 49679/- opting for regular yearly mode for a term of 5 years. It has been further submitted that the proposal form is the basis of the contract of insurance. The complainant had declared in the proposal form point No.17 that I hereby declare that the foregoing statements and answers have been given by me after fully understanding the question and the same are true accurate and complete in every manner and that I have not withheld or omitted to give any information. Further, I have not provided any false information in reply to any question. I understand and agree that the statements in this proposal constitute warranties. I do hereby agree and declare that these statements and this declaration shall be the basis of the contract of assurance between me and SBI Life Insurance Co. Ltd. On the basis of information furnished in the proposal form, the OPs have issued a policy in good faith bearing No. 35016424008 with date of commencement as 25.12.2011.  The said policy was dispatched to the complainant’s mailing address on 27.12.2011 through speed post No. EM081108155IN and the complainant never complained about the non-receipt of the said policy, which clearly indicates that the said policy was duly received by the complainant. In the said policy document, on the first page itself the Free Look Cancellation clause is mentioned which read as “ in case you are not satisfied with the Terms and conditions as mentioned in the policy document, you have the option to return the policy to SBI Life Insurance Co. Ltd. and cancel the cover within 15 days of receipt of the policy document. In such an event, the initial premium payments will be refunded as per terms and conditions of this policy and in accordance with the Insurance Act, 1938 and Regulations made there under “ The same has also been mentioned under clause 13 of Part III, terms and conditions of the policy. If the complainant had not agreed with the terms and conditions of the policy, he should have cancelled the policy under free look period.  In the present case, the complainant did not exercise this option and continued the policy which means he has agreed to the terms and conditions of the policy. In parawise reply reiterated the stand taken in the preliminary objections as well as on merit and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of letter dated 23.2.2012 regarding complaint dated 23.2.2012 as Annexure C-1 Photo copy of letter dated 22.2.2012 requesting for refund of policy amount as Annexure C-2and also adopted all documents tendered by OPs as Annexure R-1 to R-4 as C-3 to C-6 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the Ops tendered into evidence affidavit of V.Srinivas son of Sh. Late V.M. Somayajulu as Annexure RW1/A and documents such as Photo copy of proposal form as Annexure R-1, Photo copy of letter dated 26.12.2011 as Annexure R-2, Photo copy of letter dated 22.02.2012 for cancellation of policy as Annexure R-3, Photo copy of letter dated 29.02.2012 as Annexure R-4 and closed the evidence on behalf of OPs.

6.                     It is not disputed that complainant obtained a SBI Life ShubhNivesh bearing policy No. 35016424008 dated 21.12.2011 (Annexure C-4/R-2) and paid Rs. 49679/- to the agent of the OPs Insurance Company and submitted the proposal Form for the same (Annexure C-3/R-1). It is also not disputed that complainant lodged his complaint for cancellation of policy and refund of Rs. 49679/- with the OPs Insurance Company on 22.02.2012 vide registered post mentioning therein that the terms and conditions as contained in the policy supplied to the complainant are contrary to the terms and conditions told verbally by the agent of the OPs Insurance Company to the complainant which is evident from copy of letter dated 22.02.2012 (Annexure C-2).

7.                     The only plea of the Ops Insurance Company is that complainant has lodged his complaint after two (2) months for cancellation of policy i.e. after a free look period of 15 days from the date of issuance of insurance policy to the complainant on 21.12.2011 and which was forwarded to the complainant vide letter dated 26.12.2011 (Annexure C-4/R-2) in which it has been specifically mentioned/ disclosed that “ Free Look Option” In case you are not satisfied with the terms and conditions as mentioned in the Policy Document, you have the option to return the policy to SBI Life Insurance Co. Ltd. and cancel the cover within 15 days of receipt of the policy document. In such an event, the initial premium payments will be refunded as per terms and conditions of this policy and in accordance with the Insurance Act, 1938 and Regulations made there under:  As the complainant has cancelled the policy in question on 22.02.2012 i.e. after a period of 2 months from the date of purchase of policy i.e. on 21.12.2011, so the request of the complainant has been rightly rejected by the OPs Insurance Company as per terms and conditions of the insurance policy in question and referred the case law titled as Life Insurance Corporation of India Versus SurinderKaur& Others Civil Appeal No. 5334 of 2006, SLP ( C) No. 7865-7866 of 2005) , First appeal No. A/11/300 in LIC of India Vs. AshishAggarwal, in which it has been held that it is not material who fills the proposal form, it is material to give the correct information and it is the responsibility of the insured. Further referred the case law titled as United India Insurance Co. Ltd. Versus Subhash Chandra R.P. No. 469/2006, General Assurance Society Limited Vs. Chandumall Jain & Another reported in (1966) CSCR 500. 

8.                     On the other hand, counsel for the complainant hotly argued at length that the complainant has cancelled the policy in question within a period of 15 days after receipt of the documents of the insurance policy in question as the documents including policy in question was received by him on 12.02.2012 personally. Learned counsel for the complainant further argued that after going through the terms and conditions of the insurance policy, the same were contrary to the terms and conditions told verbally by the agent of the OPs. So, the complainant does not repose confidence on the OPs, hence he cancelled the Insurance policy in question and requested to refund the entire money but the Ops flatly refused to do so. Hence, there is a deficiency in service and unfair trade practice on the part of the Ops and referred the case law titled as Dr. Mahesh Hukmani Versus ICICI Bank Credit Card and Others 2010 (1) CPC page 553 Union Territory, Chandigarh wherein it has been held that Consumer Protection Act 1986-Section 14(1)(d) – Insurance Policy- Non payment of premium- Appellant/OP failed to prove that any insurance policy was obtained by the respondent/complainant from appellant or complainant had paid any premium for the same-Appellant unnecessarily tried to impose a policy on respondent which amount as unfair trade practice on part of appellant- Appellant should be penalized for raising any illegal amount of premium when respondent had never accepted any offer made by the appellant- Complaint cannot be dismissed on a technical objection that complaint was not filed by complainant himself but through another person- Complaint made through an attorney is not against any legal provision- Technical objection has no force- Respondent/Op is directed to refund the amount of premium with 6% interest and compensation with cost amounting to Rs. 55,000/- for causing mental agony-Appeal allowed. Further referred the case law titled as Dr. Virendra Pal Kapoor Versus Union of India & Others, Writ Petition No. 8879 (M/B) of 2013 decided on 29.5.2014 passed by the Hon’ble High court Allahabad, Lucknow.

9.                     After hearing the parties at length, we are of the considered view that there is a deficiency in service on the part of OPs Insurance Company as the OPs Insurance Company has totally failed to prove by filing cogent evidence that policy in question was delivered to the complainant on 26.12.2011, not on 12.02.2012 as alleged by the complainant. Mere filing the forwarding letter dated 26.12.2011 (Annexure R-2), it cannot be presumed that policy documents were handed over or delivered to the complainant on the same day. OPs Insurance Company has not placed any postal receipt or dispatch register through which the policy documents were dispatched to the complainant. Even, no affidavit of any agent or officials has been placed on file mentioning therein that he handed over the policy documents to the complainant on such date i.e. 26.12.2011. As the complainant has cancelled his policy in question through written letter dated 22.2.2012 (Annexure C-2) and the same has been acknowledged by the Ops Insurance Company which is evident from the letter dated 23.2.2012 (Annexure C-1). So, we are of the considered view that complainant has duly exercised his option for cancellation of the policy in question in Free Look Period. The law cited by the counsel for the Ops are not disputed but not helpful in the present case.

10.                   In the circumstances noted above, we are of the considered view that the OPs Insurance Company has wrongly rejected the request of the complainant for cancellation of the policy in question and has not refunded the premium amount of Rs. 49679/- after deducting the stamp duty charges, the cost of medical expenses, and administrative charges, if any, as applicable in the case of cancellation of the policy under Free Look Period which is evident from the terms and conditions of the insurance policy (Annexure C-4/R-2) under clause-13.

 11.                  Resultantly, we partly allow the complaint of complainant and direct the OPs Insurance Company to refund the premium amount of Rs. 49,679/- to the complainant after deducting the stamp duty, service charges, medical expenses, administrative charges, if any, alongwith interest at the rate of 7% per annum from 23.2.2012 i.e. from the date of request for cancellation of policy till its realization. Further the OPs are directed to pay Rs. 2000/- as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.29.04.2016.

 

                                                (S.C.SHARMA)                        (ASHOK KUMAR GARG)

                                                MEMBER                                  PRESIDENT.