Ld. Advocate(s)

                                    For Complainant: Ajay Sana

                                    For OP/OPs :Saptarshi Datta

            Date of filing of the case                      :01.11.2021

            Date of Disposal  of the case              :31.01.2024

Final Order / Judgment dtd.31.01.2024

          The pith substance of the case of the complainant is that  the complainant Sima Das went to the UBI presently PNB VCKV Branch  to withdraw money deposited by her mother Late Sulekha Das and met with the cashier  who

(2)

CC/89/2021

asked her to talk to Sumana Singha Roy an agent of HDFC who was sitting  on another table of the bank. She told her that if she invests in pension scheme at a time she will get pension after 7 years believing  in the banking official she invested Rs.80,000/- to the HDFC Life Plus  and signed as per the direction of the said agent vide policy no. 21854874, client I.D A1350544. The complainant  could not understand the contents of the agreement. In the last week of the November, 2020 the complainant  realised  that she had fallen in dupe as Amit Babu introduced her as the head of the Berhampore Zone  of HDFC Life asked her to deposit the  premium  of Rs.80,000/- within 30.11.2020 otherwise  she would not get the previous investment  of Rs.80,000/-. Then she was astonished . Knowing  her situation  her relatives  helped her and deposited  Rs.80,000/- to HDFC Life in the office of Krishnagar  on 30.11.2020. When she asked  the officials about the  method of getting back the said  money  she was informed  that if she calimed her fixed deposit before 7 years she will get only 45,000/-  out of Rs.1,60,000/-. She became puzzled  and could not find anything  as to how she would repay  the public loan . Therefore,  the present case  is filed. The OP has thereby misguided  the complainant in which the complainant suffered mental agony. The complainant  prayed for an award for a sum of Rs.1,60,000/- and litigation cost.

Out of 4 opposite parties  only the OP NO.1 HDFC Life Plus  contested the case and OP No.2 Suman Singha Roy, OP No.3 Cashier of UBI presently PNB Manager and Manager of UBI presently PNB proved  not to contest the case and accordingly, the case  is heard ex-parte against OP No.2 ,3&4.

The OP No.1 contested the case by filing W/V wherein  they denied  the major allegations  challenging  that the case is not maintainable  and the complainant is not a consumer. The positive defence case  of the OP No.1 in short is that in 2019, the complainant  alone  approached HDFC  Standard  Life Insurance  Company  Limited  and having understood  the terms and conditions of the policy purchased the HDFC Life Sanchay  Plus  Policy at her own will , having understood  the terms  and conditions  without any undue coercion  or force. She submitted  the proposal  form and purchased  it on 17.09.2019 by paying  only premium  of Rs.83,600/- for a terms of 5 years  and assured  a sum of Rs.10,16,000/- with the name of nominee  of her sister Mrs. Jhuma Das . She signed the customer consent document. After all confirmation the said policy  was issued.  The complainant  had option  to return the policy within free look  period. The complainant successfully completed  PCVC. The  complainant could have  returned  the policy under the ground “option  to return” within 15 days  of receipt of policy document  in case she is not agreeable . The look in clause  has been provided  as per IRDA regulation , 2002. The complainant  paid two

(3)

CC/89/2021

premiums  for a total sum of Rs.1,60,000/- and thereafter,  stopped paying  the annual premiums. Despite several requests  she did not pay any further premium  on the plea of financial  crisis. Subsequently, the complainant asked  OP No.2 for getting back the entire amounts  but the OP did not refund  back due to restriction lock in period. However,  on humanitarian ground the OP NO.2 was willing to pay Rs.45,000/- before completion  of the lock in period due to financial  crisis  of the complainant  but she refused  the same . The said policy bond is lying  with the complainant.  The complainant  is a well educated  person so she cannot say that she did not understand  the terms and conditions  of the policy. As per IRDA guidelines  the complainant  is not entitled to get any money. She did not contact with the  OP for cancellation of the policy within free look period within 30 days. The OP claimed that the complainant is not entitled to get any relief and the case is liable OP dismissed with cost.

Having  considered the pleadings  of both the parties  and in view of the conflicting  points raised  by both the parties the Commission  considers its necessary to ascertain  the following points  for  proper  adjudication  of the case.

Points for Determination

Point No.1.

          Whether the  case is maintainable  in its present form and prayer.

Point No.2.

          Whether the complainant  is entitled to get any relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

It is the admitted position that the complainant purchased the said insurance policy  under OP NO.1 being policy no. 21854874. Thus the relations between the complainant and the OP is like purchaser and seller. Both the opposite parties reside within the

(4)

CC/89/2021

jurisdiction of this Commission. The Amount of relief  claimed falls  within the  pecuniary  jurisdiction of this Commission.  So,  having considered factual  as well as  legal aspect  the Commission views that there is no impediment  to hold  that the present case is maintainable  and not barred by any point  of law.

Accordingly, point no.1 is decided in favour of the complainant.

Point No.2&3.

The complainant in order to substantiate  the case proved  the following documents:-

                   No.1.

                             Proposal form in the name of Mrs. Sima Das.

                   No.2.

                             Customer consent documents dated 17.09.2019.

No.3.

                             Aadhar Card.

No.4.

                             Pre-conversion  verification.

                   No.5.

                             Duplicate premium  receipt.

                   No.6.

                             Terms & conditions receipt.

Both the points no.2&3 under this heading are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion. The complainant  alleged that when she  went to OP No.2 bank to withdraw money  deposited by  her mother  Late Sulekha Das  and met with the cashier  he asked to  talk with the OP No.2 Suman Singha Roy. She told her that if she invests the said money in the pension scheme she will get pension after 7 years. Accordingly,  having believed  her she invested  Rs.80,000/- to HDFC Life Plus.

 The OP could not fully deny the said contention  in as much as,  as per para 8 of W/V it is matter of record.  If we consider the materials  in the record  it would be found that the complainant

(5)

CC/89/2021

answered against the interrogatory filed by the OP. As per question no.5 the complainant  answered  as to “on which  date your mother had purchased the said Insurance Policy”, she answered  that her mother did not buy it.

The complainant  alleged that she was duped by the  said Suman Singha Roy as she was  under the impression   that she was the staff of the OP Bank .

OP No.2 did not contest the case and as such the allegation against  the said OP No.2 and other OPs  stand controverted.

That apart  the OP also stated  in W/V that it is denied that  OP NO.2 tried to convince  the complainant to invest  in HDFC.

It is not explained  as to how the OP NO.1 could deny the allegation  against OP No.2 unless there is any  relation between  OP NO.1&2.

The complainant further alleged  in complaint  and evidence  on affidavit  that she was  misguided by the cashier  of the bank and the Manager  of the bank and agent who did not tell  her that 5 premium of Rs.80,000/- is to be paid continuously  for 5 years.  She told her that she had to invest Rs.80,000/- at a time  only.

The OP No.1 could not controvert the said allegation.  On the contrary  the complainant confirmed  during cross-examination  in question no.7 that did you  understand  the terms and conditions stated in the proposal form before purchasing  the policy, she answered  that no proposal form had been seen.

In answer no.8 against the question how much money did you  pay to the insurer till date  against the  said insurance policy, she answered  Rs.1,60,000/-.

In answer no.9 against the question  of OP the complainant  answered  in cross-examination  that have you understood  the clause  of option  to return  while  purchasing the said insurance policy she answered that it is unknown  to hear  about the clause  of option  of return.

Ld. Advocate for the complainant argued that the complainant  is less educated  and she could not verify  the contents  , her mother already died how she could bring her mother  to the office. The said kit of policy details came to her after three months so she could not enjoy the provision of free look period. Thereafter, the whole process is defective.

(6)

CC/89/2021

The argument has reasonable  force  in as much as the complainant specifically  answered against question no.11 in cross-examination  as to when  did he receive the said policy  to which the complainant answered that after three months.

An answer  given in cross-examination  has a special effect.  It means that the complainant categorically  stated  in cross-examination  that after three months  she received  the original policy.

Consequently,  the complainant could not avail the benefit  of free look period to take her decision

  The Ld. Defence Counsel  argued that there is no valid  contract between the insurer and the insured.

The argument is not acceptable  because from the pleadings  and the evidence  it is found  that the complainant  purchased  the insurance policy  of OP No.1 as per persuasion of the other OPs.  Except the OP No.1other OPs  did not deny the contention of the complainant. On the contrary  the complainant  affirmed  most of the negative  facts challenged  by the OP No.1 in the cross-examination.

Ld. Defence Counsel  for OP No.1 drew the attention  of this Commission as to answer  no.9 and 11 of the questionnaires put by the OP.  He argued  that these answers  are contradictory .

Ld. Advocate for the complainant counter argued that it is not contradictory.

As per question no.9 the complainant was asked as to did you understand  the clause  of option to return  while purchasing  the insurance policy. She answered it is unknown to me about clause of option  to return.  In answer no.11 against question as to did you receive  the original policy paper and if so  when,  the complainant  answered  after three months. So, it cannot be said that these are contradictory  in as much as  there is nothing  to show  that complainant signed any document within the  free look period or to show  that she understood  the contents  thereof  and it was served upon him within three months. The free look period  is 30 days  but the complainant  answered  that the policy  was served  upon  her after three months.

Ld. Defence Counsel  further argued that the complainant did not produce the original policy.

(7)

CC/89/2021

In fact it is found from the case record that the complainant never  filed any  petition before this Commission demanding  the original  policy to be produced  by the complainant. That apart the OP No.1  is also supposed  to have the counterpart  of the original policy with them. The OP No.1  could have  produced  the said original policy from their custody.

It is also  admitted position  that the complainant first paid the said two premium.

From the answer  given by the  OP No.1 against the cross-examination put by the  complainant  it is also disclosed  that OP No.1  stated in question no.3 that after complainant  purchased  the insurance policy  there are some formalities  for the purpose of  issuance  of the policy for which it took some time  to send the policy bond   and it was sent to the complainant  through courier .

So , the OP No.1 could not confirm  that the said policy  was sent to the complainant  within due time  and as such  the complainant  was deprived  of enjoying  the free look period.

The Ld. Advocate  for the complainant  argued that unless there was nexus  between the  OPs how could the OP No.1 agreed to return  the Rs.45,000/-.

The OP could not answer  satisfactorily  against the  said point . It is found from the case record that OP NO.1 in its W/V stated in para 6/G inter-alia  that on humanitarian ground the OP No.2  was willing to  pay an amount of Rs.45,000/- before the said completion  of the look in period by considering  the financial crisis  of the complainant.

This pleading  has two parts first OP No.1 had knowledge that OP No.2 was willing to return  Rs.45,000/- to the complainant. Secondly , if there was no provision to make any payment during the lock in period  then how the OP No.2 agreed  to return Rs.45,000/- within  that period. Any such payment would be  against  the guidelines  of IRDA. So , if  Rs.45,000/- could be returned  then the OP could also have returned  the entire money . so the allegation of the complainant  that the OP No.2 misrepresented  the complainant  has very strong basis and it is accepted.

Ld. Advocate for the  complainant further argued  that the OP had misguided   the complainant  as well as this Commission because

(8)

CC/89/2021

when the policy was registered  her mother  was expired.  How did the mother of the complainant who passed away  in 2018 (11.07.2018) approached  the company  in 2019.

The case record  and the documents filed  by the complainant  show that in 2019 the complainant approached  to OP No.1 for the said insurance  policy. It means  that at the time the mother of the complainant expired, the OP No.3 of the bank advised her  to contact with OP No.2 for investment  in the pension scheme. All the allegations  against OP No.2,3&4 stand unchallenged and uncontroverted  in as much as  the case is heard ex-parte  against OP No.2,3&4. The complainant  categorically  alleged that  she was represented  about the policy by  a person who kept  the complainant in dark . Ld. Advocate  for the  complainant also argued  that OP NO.3&4 cannot avoid  their responsibility  as banking  personnel . How a person  who is not involved  in the bank  could drew the customer  as an agent.

The argument has reasonable force. So  all the OPs cannot  escape  their liabilities.

Ld. Defence Counsel  referred  to a decision  reported  in WP (c) no.18367, 2007 in the high court of Kerala downloaded from Manupatra wherein it was held  that when the contract itself  provided in any eventuality  it could not be  considered has opposed  to public  policy under section 23 of Contract Act . So the Lokadalat was justified  to hold that the petitioner  is entitled  to get only surrender value.

The case law is not applicable  and does not help the OP in as much as the complainant   only claimed the premium paid by  her  under the said policy  and not any matured  value . Principles set forth in that decision does not match with the facts and circumstances  of the present  case.

Thus having  assessed  the entire evidence in the case record  and the observation  made hereinabove the Commission comes  to the findings  that the opposite parties  acted in a manner  with the  complainant  which tantamount  to unfair trade practice and deficiency in service in which the complainant suffered  mental pain and agony.

(9)

CC/89/2021

In the backdrop  of the aforesaid  discussion it is held that  the complainant  successfully  proved  the case upto the hilt.

The point no.2&3 are accordingly answered  in affirmative  and decided  in favour  of the complainant.

Consequently,  the complaint case succeeds on contest  with cost.    

Hence,

                              It is

Ordered

that the complaint case no.CC/89/2021 be and the same is allowed on contest  with cost of Rs.10,000/- (Rupees ten thousand). The complainant do get an award  against the OPs jointly and severally  for Rs.1,60,000/- (Rupees One lakh sixty thousand) towards the refund  of actual policy money  Rs.10,000/- ( Rupees ten thousand) towards mental pain and agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost. OPs are directed  to pay Rs.1,80,000/- (Rupees one lakh eighty thousand) to the  complainant  jointly and severally  within 30 days from the date of passing this final order failing which the entire award money shall carry an interest  @ 8% p.a from the date of final order till the date of its realisation.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.                

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                                    ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                                       (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

........................................                                                 

          MEMBER                                                                

(NIROD  BARAN   ROY  CHOWDHURY)