State Consumer Disputes Redressal Commission
Nikolai Vachev vs Hdfc Standard Life Insu. Co.Ltd. on 24 March, 2022
CC/471/2012 D.O.D: 24.03.2022
NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 28.12.2012
Date of hearing: 08.03.2022
Date of Decision: 24.03.2022
COMPLAINT CASE NO.- 471/2012
IN THE MATTER OF
MR. NIKOLAI VALEHEV
S/o Mr. Vatio Valchev,
R/o E-23, Lajpat Nagar Part-III,
New Delhi- 110024.
(Through: Mr. Anangshatru Advocate)
...Complainant
VERSUS
HDFC STANDARD LIFE INSURANCE CO. LTD.
Through Its Manager,
Having its Branch Office at:
C-4, IRCON Building, District Centre
Saket, New Delhi- 110017.
(Through: Mr. G.L.N. Murthy Advocate )
...Opposite party
DISMISSED PAGE 1 OF 12
CC/471/2012 D.O.D: 24.03.2022
NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present Complaint has been filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by the Complainant alleging deficiency in service and Unfair Trade Practice on the part of Opposite Party and has prayed for the following reliefs:
a) Direct the respondent to refund an amount of Rs.
35,00,000/- along with interest @18% p.a. which was paid by the complainant to the respondent towards the premium of policy;
b) Award compensation for a sum of Rs.2,00,000/- to the complainant for causing mental torture and agony which the complainant suffered due to the arbitrary and unreasonable conduct of the respondent;
c) Order the respondent to pay litigation charges amounting to Rs. 30,000;
d) Any other or further order as this Hon'ble Court may deem fit and proper be passé in favour of the complainant and against the respondent.
2. Brief facts necessary for adjudication of the present complaint are that the Complainant is a NRI and was approached by the DISMISSED PAGE 2 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
representative of the Opposite Party, who suggested him for financial investment in the form of FDR. The complainant believing upon the assurance and representations made by the Opposite Party, invested a sum of Rs. 15,00,000/- in the form of FDR on the premium amount of Rs. 15,00,000/-. However, in year 2008 the complainant requested the Opposite Party to reduce the said premium from Rs. 15,00,000 to Rs. 5,00,000/-. The same was accepted by the Opposite party and made the changes in the policy. The complainant didn't get the relevant document with respect to the said investment till two months. The complainant continuously deposited the yearly premium of Rs. 5,00,000/- till 2011. In the year 2012, the complainant was in dire need of money and wanted to withdraw the amount of FDR. He asked the Opposite party to let him withdraw his deposited amount but was intimated by the representative of the Opposite party that if he withdrew money at this stage, then he will only receive Rs. 15,00,000/- despite the fact that the complainant had already paid/ invested Rs. 35,00,000/- till that time.
3. The complainant after going through the documents provided by the Opposite party, was shocked to see that the documents were not related to the FDR rather the same was related to the Saving Insurance Policy. The complainant had never agreed to invest money in form of insurance policy, infact he invested the money in the form of an FDR.
4. In this regard, Complainant made a written complaint to the Opposite party on 7.8.2012 and was assured by the Opposite party that they will resolve his grievances. Thereafter, the complainant approached to the Opposite Party and requested him to cancel the DISMISSED PAGE 3 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
policy and refund the amount alongwith the interest but was of no avail.
5. The complainant sent a legal notice dated 06.11.2012 and 08.11.2012 to the Opposite Party to refund the amount paid by him but the Opposite Party failed to refund the amount of the complainant.
6. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this commission.
7. The Opposite Party has contested the present case and had raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party contended that there is no mis-sale of policy as alleged by the Complainant. The Opposite Party further contended that the present complaint involves complicated and complex questions of fact which cannot be adjudicated under the summary jurisdiction, exercised by this Commission for disposal of the cases. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
8. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
9. We have perused the material available on record and heard the counsel for the parties.
10. The fact that the Complainant had taken a policy with the Opposite Party is evident from the evidence available on record. Premium to the extent of Rs. 35,00,000/- made by the Complainant to the DISMISSED PAGE 4 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
Opposite Party is also evident from the receipts issued by the Opposite Party, attached with the complaint. WHETHER THE COMPLAINANT FALLS UNDER THE DEFINITION OF 'CONSUMER' AS PER THE CONSUMER PROTECTION ACT, 1986?
11. Before delving into the merits of the case, the primary question of consideration before us is whether the Complainant is a 'Consumer' as defined under the Consumer Protection Act, 1986.
12. In the present case, the Complainant is an NRI who invested his money and buy an insurance policy from the Opposite party. Therefore, the question arises before this Commission, that whether an NRI will come under the definition of consumer as defined in Consumer Protection Act, 1986. Under similar circumstances, the Hon'ble National Commission, in Consumer Complaint No. 236 of 2011, titled as Ram Balakrishnan vs. Somitri Das, decided on 24.05.2018, held as under:
"9. Counsel for the opposite party has further contended that instant complaint is not maintainable because the complainant is an NRI and not a consumer as envisaged under section 2 (1) (d) of the Act as he intended to sell the subject apartment on profit. The above argument of the opposite party is misconceived for the reason that perusal of the definition of 'consumer' as envisaged under section 2(1) (d) of the Act would show that for the purpose of definition, Act do not make any distinction between the buyers who are Indian citizens or NRIs. Merely because the complainant is an NRI, it would not given rise to a presumption that he had booked the subject apartment with the intention to make profit by selling the same on a later DISMISSED PAGE 5 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
date. The opposite party has not led any evidence to substantiate the plea that the complainant had booked the flat with commercial intention to sell it at a higher rate. Therefore, I find no force in the contention".
13. From the aforesaid dicta of the Hon'ble National Commission, it flows that the definition of 'Consumer' provided under the Consumer Protection Act, 1986 does not make any distinction between the consumers as to whether they are Indian citizen or NRI's. Therefore, though Complainant in the present case is an NRI, will come under the definition of Consumer as defined in the Consumer Protection Act, 1986.
IS THERE ANY MIS-SALE OF POLICY AS ALLEGED BY THE COMPLAINANT?
14. The counsel of the Opposite Party submitted that there is no mis-
sale of policy as alleged by the Complainant. The terms and conditions of the policy, were duly explained to the complainant and after satisfying with the terms and conditions, the complainant signed the proposal form for the issuance of policy and the said policy was issued in September, 2007. Further, mis-sale has been alleged by the complainant on 7.08.2012, which is after around five years from the date of issuance of the above mentioned policy.
15. Perusal of the records show that, the complainant has duly signed the proposal form and other related documents in the year 2007 in respect of which, the complainant has also paid the premium till September, 2011.
16. To resolve this issue, we deem it appropriate to refer to the dicta of the Hon'ble National Commission in M/S Vijay Concerns vs State DISMISSED PAGE 6 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
Bank Of India & Anr decided on 16.09.2013 wherein, the Hon'ble National Commission has held as under:
"// 16 // "8. From the material on record, it is very clear that the place where the loss has occurred was not within the knowledge of the Insurance Company. Moreover, the Bank can also not be held liable for any deficiency in service, because it was the primary duty of the complainant/petitioner to obtain the Insurance Policy and to have knowledge about its terms and conditions."
17. From the aforesaid dicta of the Hon'ble National Commission, it can be inferred that it is the responsibility of the complainant to go through each and every clause of the document provided by the Opposite Party before incorporating its signatures on it.
18. In the present case, we cannot ignore one important aspect that the complainant in Para 4 of the complaint has admitted that in year 2008, the complainant requested to reduce the yearly premium from Rs. 15,00,000/- to Rs. 5,00,000/- and thereafter, had continuously deposited the premium of Rs. 5,00,000/- till 2011. Further, it is pertinent to mention here that the complainant submitted Policy Service Request Form dated 31.01.2012 to the Opposite Party, to know the surrender value of the subject policy which clearly proves that the policy issued, was within the knowledge of the complainant, thereby leaving no ambiguity for any mis-sale of policy in the matter. Therefore, the contention raised by the Opposite party that there is no mis-sale of the policy is correct.
DISMISSED PAGE 7 OF 12 CC/471/2012 D.O.D: 24.03.2022
NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
WHETHER THE PRESENT COMPLAINT CONTAINS ANY COMPLICATED QUESTIONS, WHICH BARS THE JURISDICTION OF CONSUMER COMMISSION?
19. The Opposite Party has also contended that the jurisdiction of this Commission would be barred for the reason that the present complaint has some complicated and complex question of facts which cannot be adjudicated under the summary jurisdiction exercised by this commission and therefore, the present complaint needs to be dismissed.
20. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are affected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
21. The Consumer Protection Act, 1986 defines a Consumer as follows:
"(2)(1)
(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or DISMISSED PAGE 8 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
22. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2)(g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
23. Returning to the facts of the present complaint, perusal of the record shows that the Complainant purchased a policy and entered into an insurance agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the agreement, aggrieved by which, the DISMISSED PAGE 9 OF 12 CC/471/2012 D.O.D: 24.03.2022 NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
Complainant has approached this commission. Hence, the Complainant is entitled to file the present complaint before this Commission since the Complainant is aggrieved by the deficient services of the Opposite Party, the Complainant has approached this Commission, which this Commission is authorized to adjudicate.
24. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which cannot be settled on the basis of the pleadings filed on behalf of the contesting parties.
25. Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this Commission and there is no bar with respect to the jurisdiction of this Commission to entertain cases related to the refund of amount deposited with the Opposite Party.
WHETHER THE OPPOSITE PARTY IS LIABLE FOR DEFICIENCY IN SERVICE?
26. Having discussed the preliminary objections raised on behalf of the Opposite Party, the last issue which arises is whether the Opposite Party was actually deficient in providing its services to the complainant or not. The Consumer Protection Act, 1986 defines a Deficiency as follows:
"(2)(g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;".
DISMISSED PAGE 10 OF 12 CC/471/2012 D.O.D: 24.03.2022
NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
27. Returning to the facts of the present complaint, perusal of the record shows that the complainant was provided with the detailed and adequate information in respect of policy. As a procedure after explaining all the relevant questionnaires with respect to the policy and after having understood the contents, terms and conditions of the policy, as desired by the complainant, the policy in question bearing No. 11274225 was issued in the name of Complainant and was signed by the complainant on 11.09.2007. The complainant not only signed the proposal form but also signed the form containing illustrative benefits on surrender of the policy.
28. Further, as per the terms and conditions of the policy, the documents of policy was delivered to the complainant alongwith an option to seek cancellation if he was not satisfied with the terms and conditions in the lock-in period of 30 days, but the cancellation was not done from the side of complainant during this lock-in period. Therefore, after expiry of the said lock-in period of thirty days, the cancellation could not be allowed as per the policy.
29. Perusal of the Quotation form, (having details of the policy in question) clearly shows that the policy issued to the complainant is for the maturity period of 15 years starting from 10.09.2007 (commencement date of the policy). However, the complainant asked for the cancellation of the policy in the year 2012 and demanded the withdrawal of whole amount deposited by him against the said policy. The Opposite Party on the other side, was bound by the terms and conditions of the policy and thus could not transfer the whole amount paid by the complainant till date, as the amount can only be transferred after the maturity of the said policy.
DISMISSED PAGE 11 OF 12 CC/471/2012 D.O.D: 24.03.2022
NIKOLAI VALCHEV VS. HDFC STANDARD LIFE INSURANCE CO. LTD.
30. Infact, the Opposite Party was even ready to cancel the policy in question as requested by the complainant in the year 2012 and was willing to pay the surrender value of the policy in accordance with the calculations mentioned in the terms of the policy.
31. In terms of the above discussions, we fail to find any deficiency on part of the Opposite Party. Consequently, we dismiss the complaint filed by the complainant, with no orders as to cost.
32. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
33. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
34. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
24.03.2022 DISMISSED PAGE 12 OF 12