IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC/35/2013.
Date of Filing: 20.03.2013 Date of Final Order: 27.02.2015
Mamtaz Bibi,
Of Vill.: Rawjapara Dakhin,
P.O.- Dafarpur,P.S.- Raghunathganj,
District.- Murshidabad. …………………………………………… Complainant.
-Vs-
1).Zonal Manager
Tata AIA Life Insurance Company Limited,
Zone Office, Chowrangee Court 55,
Chowrangee Road, Kol.-71
2).Atarul Sk, S/o Eeasin Ali Biswas,
Vill. Rawjapara, P.O. Dafarpur,
P.S. Raghunathganj, District.- Murshidabad. …………….…..……............ Opposite Parties.
Atindra Upadhyay & Nilabja Dutta, Ld. Advocates ………………………… for the complainant
Sri Siddhartha Sankar Dhar, Ld. Advocate …………………………………….. for the Opposite Party No.1
Present: Anupam Bhattacharyya………………….President.
Samaresh Kumar Mitra ………………….Member.
Pranati Ali ……………….…………………….Member.
FINAL ORDER
Samaresh Kumar Mitra, Member.
The facts of the complaint as enumerated in the complaint petition is that the complainant being advised by OP No.2 insured her life before the OP No.1 Company for her own care, safety and security. That after prolonged consultation with OP no.2 and going through different schemes of OP No.1 agreed to insure her life in accordance with the terms and conditions as envisaged on the scheme in which the matured value was settled at Rs.2,67,766/-for a premium of Rs.50,000/-per year for 10 years. After paying the first premium of Rs.50,000/-, the policy being No.U160671557 was issued in her favour. Due to some avoidable circumstances, the complainant could not pay further premiums for which the policy got stalled. After that the complainant approached the OP No.1 for returning the amount so paid and other benefits available under the rules. The OP No.1 instead of making the entire amount paid, yields to pay a meagre amount. So, the complainant assailed that under the Insurance Act she is eligible and entitled to get back whole amount along with other benefits. The OP No.1 having taken the advantage of its position grab the legitimate amount, the complainant is entitled and eligible to get back and the act of OP No.1 is tantamount to unfair trade practice coupled with deficiency of service with fragrant violation of prevailing laws for which, the complainant took shelter of this Forum for redressal as prayed for in the prayer portion of the complaint.
The OP No.1 appeared by its Agent, filed Written Version on 16.09.2014 and denied the allegation as leveled against it. This answering OP averred that the complainant approached the OP and expressed her willingness to avail the policy being “Tata AIG Life Apex Pension 10”. After going through the Application Form the complainant filled up the application form, as a result, the policy was issued with an annual premium of Rs.50,000/ for a term of 10 years. The complainant failed to pay the second premium which was due in the month of January 2011. So, this OP served reminder notice upon her which is marked as Annexure C. Due to non-payment of premium, the policy so issued got auto-surrendered in accordance with the clauses as mentioned in the Policy. As the policy got auto-surrendered, the surrendered value of Rs.11,277.37/-was sent to the complainant. This answering OP also submitted that original policy documents contained Option Form i.e. cancellation of the policy within 15 days from the date of receipt of the policy i.e. “Free Look Period”. After the lapse of said period, the complainant did not apply for cancellation of the policy within the Free Look Period. This answering opposite party assailed that due to fault on the part of the complainant the policy got auto-surrendered and the complainant is entitled to get only surrender-value as per policy contract. So, the complainant filed this complaint, raising false and frivolous allegations for illegal gain, which is liable to be dismissed.
The OP No.1 filed written argument in which he submitted that complainant failed and neglected to comply with the terms and conditions stipulated in the policy documents and failed to pay the premium within stipulated period even after receiving premium payment notice. And the policy got auto surrendered and the premium proceeds already sent to the complainant so he has no deficiency in service and the complainant is not entitled to get any reliefs as prayed for in the petition of complaint. This answering OP referred a few case references in support of his claim namely: i). Claim not admissible where there is material breach of policy condition [ National Insurance Co. – Vs- Usha Devi & Anr. 2011 (3) CPR 231 (NC) ] ii). Insurance claim of complainants cannot be allowed where no evidence led showing payment of premium towards the insurance policy [ Dy. Director of Fund Organisation – Vs.- Sashi Pavel 2011 (3) CPR 1 (SC)] iii). Where there is fundamental breach of terms and conditions of the Insurance Policy, insurer would not be liable to pay compensation [ Lokh Ram – Vs- New India Assurance Co. 2011 (3) CPR 19 (SC)] iv). Any violation of terms and conditions of policy by insured entitles Insurance company to repudiate claim [HDFC Standard Life Insurance Co.-Vs- Smt. Jaya Laxmi 2011 (1) CPR 243 (NC) ].
Despite receiving notice, OP No.2 did not turn up so the proceeding runs ex-parte against him.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant Mamtaz Bibi is a ‘Consumer’ of the opposite party?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
- Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
1).Whether the Complainant Mamtaz Bibi is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant insured her life before the OP No.1 with the advice of OP No.2 which is mater of record and also admitted by OPs in dispute, so she being the customer of OP No.1 is entitled to get service from the OPs.
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad. The complaint valued at Rs.50,000/-ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that she being the customer of OP No.1Insurance Company insured her life following the advice of OP No.2 as per terms and conditions as envisaged in the policy namely ‘Tata AIG Life Apex Pension 10’. After perusing the policy details she put her signature in the Application Form for getting such policy. It appears from the documents as produced by the OP No.1Insurance Company i.e. General Amendment Form dated 25.01.2010,in which she stated that the DOB as 01.01.1960 as per Voters Identity Card, Mamataz Bibi and Mamtaz Bibi is same and identical person that Atarul Sheikh is the Agent/Broker of OP No.1 and he put his signature for identifying the complainant. So it can be presumed that complainant after knowing all the terms and conditions of policy accepted the policy. Thereafter she failed to pay further premiums after the 1st premium as a consequence the policy of the complainant surrendered automatically.
In the ‘Tata AIG Life Apex Pension 10’ Plan in the column of heading ‘Default’ it is stated that after payment of the first Regular Premium, failure to pay a subsequent Regular Premium on or before its due date will constitute a default in premium payment. Also in the heading ‘Grace Period’ it is stated that ‘A Grace period of thirty one days from the due date will be allowed for all modes of payments of each subsequent Regular Premium. The Policy will remain in force during the grace period. If any Regular Premium remains unpaid at the end of its Grace Period, the policy shall lapse from the due date of the first unpaid premium except as may be provided under the Discontinuance of Premium Provisions.’
Further it is stated in the heading, ‘DISCONTINUANCE OF PREMIUM AFTER PAYING AT LEAST THREE CONSECUTIVE YEARS PREMIUM’ that ‘If we do not receive your request to continue the policy with the appropriate deductions within the revival period of two years from the due date of the first unpaid Regular Premium, the policy will be deemed Surrendered and any remaining Total Fund Value, subject to deduction of the Surrender Charge, will be paid, at the end of the revival period’.
Lastly in the column of Surrender Charge it is stated,
Surrender Charge
The applicable surrender charges are as given below:
Policy Year at surrender | As % of Regular Premium Fund Value |
1 | 100% |
2 | 75% |
3 | 50% |
4 | 25% |
5 | 10% |
6+ | 0% |
There are no Surrender Charges applicable on the Top-up Premium Fund Value.
The OP No.1 send premium payment notice (Annexure -C) dated 30.12.2010 to the complainant for the premium due date as 29th January,2011 being amount Rs.50,000/- stating the premium payment options.
So from the above statements and discussions we are in a considered opinion that the complainant after knowing everything regarding the terms and conditions of policy/scheme accepted the policy by putting her signature in the ‘Proposal Form’ and paid the first premium for insuring her life before the OP Insurance Company in which the OP No.2 is merely an agent. In accordance with the complaint petition the complainant after paying first premium due to some problem could not pay further premiums as a consequence her policy was auto surrendered following the terms and conditions as envisaged in the brochure. During that period she never tried to revive her policy as per the norms of the policy but remained silent.
OP No.2 is merely an agent of OP No.1. He convinced the complainant to take the policy & collected the money and deposited the same before the OP No.1. So, his liability regarding the refund is ousted.
As the complainant has failed and neglected to pay any premium in spite of issuance of notice(Annexure-C)by the OP No.1and as per terms of policy it was automatically surrendered. As the complainant did not seek for revival of the policy within the time framed as per terms, the OP No.1 accordingly sent the surrender value cheque to the complainant. It is the general principles that the insurance policy is based on uberrimae fidei i.e. utmost on good faith in between the parties. In this case breach of contract was done by the complainant as she failed to pay premiums after the first premium and she is fully aware regarding the consequence of nonpayment of premiums in accordance with the terms. She did not continue with the policy after 1 year. So it cannot be said that there is deficiency in service on the part of OP No.1. In case of non-payment of premium the Insurance Company has right to cancel or policy may be auto surrendered so such surrender cannot be termed as deficiency of service. By sending the surrender value in time the contested OP showed good gesture upon this complainant. The case references supplied by the OP No.1 as it is stated in the Written argument are in consonance with the averment of the OP.
From the foregoing discussion we are in a considered opinion that the complainant has failed to prove her case by adducing cogent documents/evidence beyond reasonable doubt so the complaint fails on contest.
So her claim of getting reliefs is not tenable. She is entitled to get only the premium proceeds of 1st installment/premium i.e. deducting the surrender charge as admissible.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is not able to prove her case beyond any reasonable doubt. So, the Opposite Party is not liable to compensate the Complainant.
ORDER
Hence it is ordered that the complaint be and the same is dismissed as no order as to cost. The Opposite Party No.2 is exonerated from his liability.
So, we direct the Opposite Party No.1 to pay the complainant only the premium proceeds of 1st installment/premium i.e. deducting the surrender charge as admissible including the interest accrued thereon, if the complainant is not received the auto surrendered amount within a period of 45 days from the receipt of this order. No other relief (s) is awarded to the complainant. At the event of failure to comply with the order the Opposite Party No.1 shall pay cost @Rs.50/-for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the State Consumer Welfare Fund.
Let plain copy of this order be made available and be supplied, free of cost, to the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgement/ be sent forthwith under registered post with A/D to the concerned parties as per rules, for information and necessary action.
Dictated and corrected by me.
Member, President,
District Consumer Disputes District Consumer Disputes
Redressal Forum, Murshidabad. Redressal Forum, Murshidabad.
Member, Member,
District Consumer Disputes District Consumer Disputes
Redressal Forum, Murshidabad. Redressal Forum, Murshidabad.
