State Consumer Disputes Redressal Commission
1. Exide Life Insurance Company Limited ... vs Mahesh Inderpal Singh Ahluwalia on 21 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 331 of 2014 Date of Institution : 17.10.2010 Date of Decision : 21/10/2014 1. Exide Life Insurance Company Limited (Formerly known as ING Life Insurance Co. Ltd.), SCO No.166-167, Sector 9-C, Chandigarh, through its Manager. 2. Exide Life Insurance Company Limited (Formerly known as ING Life Insurance Co. Ltd.), ING Vysya House, 5th Floor, #22 Mahatma Gandhi Road, Bangalore 560001 through its Managing Director. Appellants/Opposite Parties V e r s u s Mahesh Inderpal Singh Ahluwalia, resident of House No.124, Sector 40-A, Chandigarh. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Jatin Kumar, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 29.08.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
In view of the above resume, we find merit in the complaint and the same is allowed. OPs are directed:-
i) To refund the amount of Rs.2,50,000/- to the complainant with interest @9% p.a. from the date of payment i.e. 25.2.2013 till realization.
ii) To make payment of an amount of Rs.40,000/- as compensation to the complainant for unfair trade practice and deficiency in service on the part of the OPs.
iii) To make payment of an amount of Rs.10,000/- to the complainant towards litigation expenses.
This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that an agent of the Opposite Parties, approached the complainant, for taking a Life Insurance Policy, by paying one time premium. The complainant gave him a cheque for an amount of Rs.2,50,000/-, on 25.02.2013, which was duly encashed by the Opposite Parties, as is evident from the entry made in the bank account statement Annexure C-1 of the complainant. It was stated that proposal form No.100501 was duly got signed from the complainant and it was assured that the receipt of payment alongwith the Policy and its terms and conditions would be sent to him. However, the Insurance Policy, as also the terms and conditions thereof, and the receipt were not sent to the complainant, despite the fact that he waited for a sufficient longer time. The complainant also visited the office of Opposite Party No.1, whereupon, he was told that the Policy had already been dispatched to his address. It was further stated that, however, Opposite Party No.1, failed to provide any courier or postal receipt. The complainant also lodged complaints with the Customer Care Centre of the Opposite Parties, as also sent an email Annexure C-2 to the said Centre, but to no avail. Subsequently, Opposite Party No.1 disclosed Policy No.02631303 to the complainant, in the month of December, 2013. The complainant gave a written request on 16.12.2013 (Annexure C-3) to Opposite Party No.1, to deliver the original Policy. However, the Opposite Parties, forced the complainant to submit an indemnity bond to obtain the duplicate Policy. It was further stated that the complainant approached the Opposite Parties, through every possible means to redress his grievance, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.2,50,000/-, alongwith interest @9% P.A., from the date of deposit; pay compensation, to the tune of Rs.1 lac, for deficiency, in rendering service, and adopting unfair trade practice; and cost of litigation, to the tune of Rs.33,000/-.
3. The Opposite Parties, in their joint written version, stated that the complainant had submitted a proposal form, to them, on 25.02.2013, for obtaining a Life Insurance Policy. It was stated that ING Secured Income Insurance Plus Plan was offered by the Opposite Parties, to the complainant, which was duly approved by the Insurance Regulatory Development Authority (IRDA). It was further stated that the features of the said Policy plan, were duly explained, in detail, to the complainant. It was further stated that, after understanding the features of the said Policy, in its entirety, the complainant opted for the said Policy. The premium opted by the complainant was to the tune of Rs.2,50,000/-, which was to be paid annually for a term of 7 years and the sum assured was to the tune of Rs.12,29,610/- for the tenure of 15 years. It was further stated that the Opposite Parties had issued the Policy bearing No.02631303, on 28.02.2013 alongwith terms and conditions and a welcome letter to the complainant, which were sent to him, at the address provided by him, on 23.03.2013 through Blue Dart Courier vide AWB No.43223280435. It was further stated that the said Policy documents, were duly delivered to the complainant on 26.03.2013. It was further stated that, however, the date 27.03.2014, mentioned on the welcome letter, was the date, on which a copy of the same was reprinted for the purpose of producing it before the District Forum. It was further stated that the date 27.03.2014, was not the real date, which the original welcome letter bore, which was issued to the complainant. It was further stated that as per Regulation 6(2) of (Protection of Policyholders Interest) Regulation 2012 issued by the IRDA, the Policy holder had the option to cancel the Policy, within 15 days of receipt of the same, whereafter, the Opposite Parties were liable to refund the premium, after deducting the proportionate risk premium etc. It was further stated that the complainant approached the Opposite Parties, on 20.11.2013, with a complaint regarding non-receipt of the Policy document, as also the terms and conditions thereof. It was further stated that after ascertaining the facts, reply Annexure OP/3 was sent to the complainant. It was further stated that the complainant did not raise any objection or file any complaint during the free look period of 15 days, from the date of receipt of the Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7. We have heard the Counsel for the appellants, at the preliminary stage, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants, submitted that the Policy was purchased by the respondent/ complainant, after filling up the proposal form dated 23.03.2013. He further submitted that the Policy and the terms and conditions thereof were sent to the complainant on 26.03.2013, through Blue Dart Courier vide AWB No.43223280435. He further submitted that alongwith the Policy and the terms and conditions, welcome letter was also sent to the complainant. He further submitted that date 27.03.2014 on Annexure OP/2, i.e. the welcome letter was the one, on which the same was reprinted, from the computer, for producing the same, before the District Forum, and was not the original date of the same (welcome letter), which was actually issued to the complainant. He further submitted that, in case, the Policy had not been received by the complainant, he could protest immediately, after the date of commencement of the same, but he did not do so, and after a long time, he raised such a question. He further submitted neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
9. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Undisputedly, the agent of the Opposite Parties, obtained a sum of Rs.2,50,000/-, from the complainant, on 25.02.2013, towards premium for Life Insurance Policy. As per the version of the complainant, he never received the Policy alongwith the terms and conditions thereof, as also the receipt of the premium amount paid, despite waiting for a considerable time and making visits to the office of the Opposite Parties. He ultimately, sent an email dated 18.11.2013 Annexure C-2 and notice dated 17.12.2013 Annexure C-3, to the Opposite Parties. No doubt, it was the case of the Opposite Parties that the Policy alongwith its terms and conditions, were sent to the complainant on 23.03.2013, through Blue Dart Courier vide AWB No.43223280435. However, no documentary proof, in regard thereto, was produced, on record, by the Opposite Parties. Under these circumstances, in our considered opinion, the averment of the complainant, to the effect that the Policy and its terms and conditions were never supplied to him, by the Opposite Parties, therefore is correct. In M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. I (2000) CPJ 1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of Insurance Law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all material facts, in their knowledge, since obligation of good faith applies to both equally. It was, thus, the duty of the Insurance Company/Opposite Party to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of it, to apprise the complainant, of the benefits of the insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the Insurance Policy and the terms and conditions thereof, including the exclusions and warranties to the insured, so as to enable him, to go through the same, and understand the Clauses contained therein. In United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr.,III (2009) CPJ 246 (NC), it was observed that being aware of the existence of Policy, is one thing, and being aware of the contents and meaning of the Clauses of the Policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, since, neither the Policy terms nor the conditions of the same, including the exclusions and warranties were supplied to the complainant, nor the exclusions and warranties Clauses were made known to him, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
10. As far as the submission of the Counsel for the appellants/Opposite Parties, that had the Policy alongwith the terms and conditions thereof, been not supplied by the Opposite Parties, to the complainant, he would not have remained silent for a long time, and, in that event, he was required to write to them to supply the same to him, is concerned, it may be stated here, that, in paragraph number 7 of M/s Modern Insulators Ltd.s case (supra), it was recorded by the Honble Supreme Court, that the National Consumer Disputes Redressal Commission observed that it was equally the responsibility of the respondent, to call for these terms and conditions, even if, the same were not sent by the appellant, as alleged, to understand the extent of risks covered under the Policy, and the associated aspects. However, the Honble Supreme Court, in paragraph number 9 held that the view expressed by the National Consumer Disputes Redressal Commission, was not correct. In other words, the Honble Supreme Court did not approve of the view, taken by the National Consumer Disputes Redressal Commission, that it was the responsibility of the insured to call for the terms and conditions of the Policy, if the same had not been supplied to him, by the Insurance Company. In this view of the matter, the submission of the Counsel for the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
11. Coming to the case of the Opposite Parties that the Policy and the terms and conditions thereof were sent to the complainant on 23.03.2013, through Blue Dart Courier vide AWB No.43223280435, alongwith the welcome letter, it may be stated here, that the documents produced by the Opposite Parties, to prove this stand, falsified the same. Copy of the welcome letter Annexure OP/2 which bore the date 27.03.2014, was produced by the Opposite Parties. No doubt, the Counsel for the Opposite Parties submitted that the date 27.03.2014 was, in fact the date, on which the said welcome letter was reprinted, for the purpose of producing it, before the District Forum. The submission of the Counsel for the Opposite Parties, in this regard, does not merit acceptance, and was rightly not accepted by the District Forum. If the reprint of welcome letter already bearing the date, was taken from the computer, it would bear the date already printed on it, and not the date of its reprint. Not only this, if the plea of the Opposite Parties, to the effect that the date 27.03.2014 on the welcome letter OP/2 produced by them, was a reprinted date, is accepted then copy of the first premium receipt, produced by them (Opposite Parties), alongwith the welcome letter should also have borne the same date i.e. 27.03.2014. On the other hand, the said receipt bore the date 28.02.2013. So the District Forum was right, in holding that the welcome letter, in question, was manufactured, on 27.03.2014, by the Opposite Parties, during the pendency of the complaint, before it. So the plea of the Counsel for the Opposite Parties, to the effect that the Policy, as also the terms and conditions thereof, were sent to the complainant, on 23.03.2013, was falsified by the documentary evidence, produced by them, before the District Forum. The District Forum, thus, was right in rejecting the claim of the Opposite Parties, that the Insurance Policy, as also the terms and conditions thereof were sent to the complainant on 23.03.2013. The findings of the District Forum, in this regard, being correct, are affirmed
12. No doubt, the complainant could exercise the option of cancellation of the Policy, during the free-look-period of 15 days, from the date of receipt of the same. However, in the instant case, as stated above, the Policy, as also the terms and conditions thereof, were never supplied to the complainant, as is proved from the aforesaid discussion. Since, the Policy, as also the terms and conditions thereof, were never supplied to the complainant, the question of exercising the option, during the free-look-period of 15 days, from the date of receipt of the same, did not at all arise. Such an eventuality could only arise had the Policy, as also the terms and conditions thereof, been supplied to the complainant.
13. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.
Pronounced.
October 21, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 331 of 2014) Argued by: Sh. Jatin Kumar, Advocate for the appellants.
Dated the 21st day of October 2014 ORDER Alongwith the appeal, an application under Order XLI, Rule 27 (1) (aa) of the Civil Procedure Code, for placing on record, copy of the letter dated 13.09.2014, Annexure AD-1, received from Blue Dart Express Limited, by way of additional evidence, was moved by the appellants, on the ground, that the same are essential for the just decision of appeal.
2. Arguments on the said application have been heard.
3. It may be stated here, that the letter dated 13.09.2014, Annexure AD-1, sought to be placed, on record, by way of additional evidence, could have very well been procured from Blue Dart Express Limited, and produced before the District Forum, by the Opposite Parties/appellants, when they were leading evidence, in the Consumer Complaint. No plausible reason has been assigned, as to what prevented the appellants/ Opposite Parties, from procuring this document and producing the same, on record, in the District Forum. In case, at this stage, the application for placing, on record, copy of the letter dated 13.09.2014, Annexure AD-1, is allowed, that will delay the disposal of appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of Consumer Disputes. Not only this, even the authenticity of this document cannot be vouchsafed. Letter AD-1 bears the name of the consignee as Mahesh Singh, whereas the name of the insured is Mahesh Inderpal Singh Ahluwalia. Address of the consignee is also not mentioned in the letter AD-1. Thus, there is no justification, whatsoever, to allow the application, for placing on record copy of the letter dated 13.09.2014, Annexure AD-1, by way of additional evidence, at this stage. The application is accordingly dismissed.
4. Arguments, in the main appeal, already heard
5. Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum has been upheld.
6. Certified copies of this order, as also of the main order be sent to the parties, free of charge.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg.