State Consumer Disputes Redressal Commission
Bharti Axa Life Insurance Co.Ltd vs Pankaj Kumar Choudhary on 31 January, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/531
Instituted on : 14.07.2017
Bharti Axa Life Insurance Company Limited,
Through : Manager,
Address : Kichariya Complex, Second Floor,
Near Railway Gate, Nehru Nagar,
Bhilai, Tehsil & District Durg (C.G.) ... Appellant (O.P.)
Vs.
Pankaj Kumar Chaudhary, S/o Pramod Kumar Chaudhary,
Aged 28 years, R/o : Gram - Ward No.19,
Opposite Ashram Mandir, Rajnandgaon,
Tahsil & District Rajnandgaon (C.G.) .... Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
None for the appellant (O.P.).
Shri R.K. Bhawnani & Shri Sidharth Tiwari, Advocates for the respondent
(Complainant).
ORDER
DATED : 31/January/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 04th May, 2017 passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No. C.C./2016/446. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
(1) The O.P. will pay a sum of Rs.1,84,999.13 (Rupees One Lakh Eighty Four Thousand Nine Hundred Ninety Nine and Thirteen Paise) which is sum assured of the policy, to the complainant.
(2) The O.P. will pay interest @ 12% p.a. on the above amount from the date of filing of the complaint i.e. 25.05.2016 till realization.
// 2 // (3) The O.P. will pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards compensation for mental agony to the complainant. (4) The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the Agent / Broker of the O.P. called the complainant through mobile / phone and informed him that the office of his Company is providing loan. The complainant was in need of money for his business and he was contacting nearest bank. The agent / broker encouraged the complainant to deposit the margin money, believing on him, on 28.01.2015 & 28.01.2015 respectively, the complainant paid a sum of Rs.84,999.77 and Rs.99,999.36 through cheques issued from his saving bank account which he was having at Bank of Maharashtra, Rajnandgaon. He paid total amount of Rs.1,84,999.13 to the O.P. The O.P. sent its employee to collect cheques and he obtained signature of the complainant in the form and obtained documents from the complainant. When the complainant sought information regarding loan, then O.P. informed him that the Company is not providing loan. The complainant also contacted to the Call Centre, but no satisfactory reply was given. After lapse of a long period, the complainant received bond paper issued by the O.P. which was kept by him. At present the complainant received the telephonic call from the office of the O.P. to deposit the premium amount, then the complainant came to know that the amount which was deposited by the complainant , was deposited by the O.P. under R.D. under the scheme of depositing every year, whereas, the office of the O.P. did not obtain information regarding the income of the complainant and the O.P. and its // 3 // agent , misled the complainant and with intention to get more commission, got deposited the amount, information regarding which was received by the complainant lateron. The O.P. issued policy No.501-2822853 and 5012822846 in the favour of the complainant and the above policies were prepared by the office of the O.P. for 12-12 years without consent of the complainant. The income of the complainant is limited and due to big family and illness of the complainant, he is not able to pay the premium of the policies every year. The complainant deposited the amount in the office of the O.P. by taking money in credit. The complainant contacted to the office of the O.P. and demanded the amount, but the O.P. did not refund the amount and informed him that it is necessary to pay the premium till the completion of the above period and thereafter only amount will be refunded. The O.P. informed that due to non payment of the premium every year, as per the terms and conditions of the policy, the amount was deducted. The O.P. took the signature of the complainant and cheated with him, due to which the complainant suffered mental agony. The O.P. committed deficiency in service. The complainant sent registered notice dated 08.04.2016 to the O.P. through his advocate but inspite of receiving notice, the O.P. did not give reply thereof and also did not pay the claim amount. Hence the complainant filed instant complaint and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that after understanding the key features of the policy, the complainant had signed and submitted the proposal form for insurance. The complainant must have gone through the details of duly signed proposal forms. In the proposal forms, the Policy No., // 4 // Proposal No., Name of the Policy Holder/Life Insured, Proposal Date, Insurance Plan, Insurance Date, Premium, Frequency of premium, term, Premium payment term are specifically mentioned and it is also mentioned that the premium is payable is annual and for 12 years. Along with policy documents, all supporting documents were dispatched to the complainant and details have been sent by the speed post. The complainant retained the policy document and did not invoke the Free Look Option and did not revert within 15 days alleging any discrepancies, thereby implying that he had agreed to whatever information was provided in the proposal form and was also in agreement with the policy terms and conditions mentioned in the policy document. After more than six months from the issuance of the said policies, request for cancellation was received from the complainant vide communication dated 14.09.2015. The said request made by the complainant was duly considered and rejected by the O.P. Thereafter the complainant sent legal notice dated 08.04.2016 to the O.P. and reply was also given by the O.P. The complainant is a Graduate carrying on his own business as per the information provided by him the proposal form. Any educated and prudent person who invests huge amount of money with insurer is expected to have read and understood the terms and conditions of the policy documents. The policies were taken by the complainant through India Infoine Finance Ltd., which is a third party insurance broker. The O.P. has many agents / brokers throughout the country who are appointed by the guidelines issued by IRDA and it is at the discretion of the client to choose the policy suitable to him/her from the said agents / brokers or directly from O.P. and the complainant has in his wisdom chosen to invest through the said broker and not directly with the O.P. in respect of the said policy. The complainant was thus well aware about the terms and // 5 // conditions of the policies and had voluntarily opted for the Policies of the O.P. and the assertion that any misrepresentation was made or believed by the complainant for taking the policies is thus completely false and the said allegations are thus wrong and denied in toto. The complaint is baseless. All Insurance Brokers are governed by the provisions of IRDA (Insurance Brokers) Regulations, 2002. It is a settle principle of law that at the time of filling up the proposal form, the agent acts as agent of the insured and not of the insurer. In Section 41 of the Insurance Act, 1938 there is a prohibition clause and the District Forum has no jurisdiction to decide the matter. The complainant has failed to demonstrate any deficiency in service on the part of the O.P. In case of any grievance, the policyholder can approach the Grievance Redressal Cell and in case not satisfied he can approach the Grievance Redressal Officer and thereafter Senior Grievance Redressal Officer, but in the instant case, the complainant has not approached any Grievance Redressal Forum and filed the instant complaint before the District Forum, therefore, the complaint is not maintainable and is liable to be dismissed.
4. The complainant has filed documents. Annexure A-1 is policy bond, Annexure A-2 is policy schedule, Annexure A-3 is policy bond, Annexure A-4 is policy schedule, Annexure A-5 is letter dated 14.09.2015 sent by the complainant to the O.P., Annexure A-6 is postal receipt, Annexure A-7 is registered notice dated 08.04.2016 sent by Shri A.K. Rao, Advocate on behalf of the complainant to the O.P., Annexure A-8 is detailed Track Events for RC180113050IN.
// 6 //
5. The O.P. has filed documents. Annexure NA-1 is Policy documents, Annexure NA-2 is policy documents.
6. Learned District Forum after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. to pay the amounts to the complainant, as mentioned in para 1 of this order.
7. None appeared for the appellant (O.P.) on 12.01.2018 when the case is fixed for final arguments.
8. Shri R.K. Bhawnani & Shir Sidharth Tiwari, learned counsel appearing for the respondent (complainant) has argued that the agent of the appellant (O.P.) called the complainant through mobile phone and told the complainant that the office of the Company is providing loan. The complainant was in need of money for his business and he was contacting the nearest bank. The agent of the O.P. encouraged the complainant to deposit the margin money. On being proposal given by the agent of the O.P., the complainant paid a sum of Rs.84,999.77 and Rs.99,999.36 through cheques issued from his saving bank account which he was having at Bank of Maharashtra, Rajnandgaon. He paid total amount of Rs.1,84,999.13 to the O.P. When the complainant sought information regarding loan from the O.P., then the O.P. informed him that the O.P. is not providing loan. The complainant also contacted to the Call Centre, but no satisfactory reply was given. The complainant received the telephonic call from the office of the O.P. to deposit the premium amount, then the complainant came to know that the amount which was deposited by the complainant, was deposited by the O.P. under the scheme of depositing every year, whereas, the office of the O.P. did not // 7 // give information regarding the income of the complainant. The complainant is not financially able to pay the premium amount of Rs.84,999.77 and Rs.99,999.36 every year. The above amount was not paid by complainant towards premium, but he deposited the amount towards margin money for taking loan from the O.P. When the complainant came to know that the loan is not providing by the O.P., then the complainant demanded the O.P. to refund the amount, but the O.P. did not refund the amount and committed deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P.) is liable to be dismissed. Shri Bhawnani placed reliance on Appeal No.FA/2017/425 - Birla Sunlife Insurance Company Limited Vs. Sayed Shahid Ali, decided by this Commission vide order dated 07.09.2017; Appeal No.FA/2016/88 - Birla Sun Life Insurance Company Limited Vs. Shivlal Sahu, decided by this Commission vide order dated 29.06.2016; Appeal No.FA/2016/87 Birla Sun Life Insurance Company Limited Vs. Chiman Lal Dewangan, decided by this Commission vide order dated 29.06.2016; Complaint Case No.C.C./2017/20 Manoj Kumar Sahu & Another Vs. H.D.F.C. Standard Life Insurance Company Limited, Through Manager, decided by District Forum, Durg (C.G.) vide order dated 30.11.2017; C.C./2016/445 - Pankaj Kumar Chaudhary Vs. H.D.F.C. Standard Life Insurance Company Limited, Through Manager, decided by District Forum, Durg (C.G.) vide order dated 28.11.2017.
9. We have heard learned counsel appearing for the respondent (complainant) and have also perused the record of the District Forum.
// 8 //
10. The appellant (O.P.) took a defence in the appeal memo that the respondent (complainant) is an educated person and after reading, understanding and satisfying with the terms and conditions of the policies, he obtained the insurance policy. The respondent (complainant) did not request for cancellation of the policies within free look period and after six months of issuance of the insurance policy, the respondent (complainant) made request for cancellation of the insurance policy. The respondent (complainant) is engaged in his own business. The respondent (complainant) signed in the proposal forms and after reading, understanding and satisfying with the terms and conditions of the insurance policies, he obtained the insurance policies from the appellant (O.P.). On the contrary, the respondent (complainant) pleaded that the agent / broker of the appellant (O.P.) called the complainant through telephone and misrepresented him that the O.P. is providing loan. The complainant was in need of the money for his business, therefore, the complainant believed on the verson of the agent of the O.P. and deposited a sum of Rs.84,999.77 and Rs.99,999.36 through cheques issued from his saving bank account which he was having at Bank of Maharashtra, Rajnandgaon. The complainant paid total amount of Rs.1,84,999.13 to the O.P. The O.P. sent its employee to collect cheques and he obtained signature of the complainant in the form and obtained documents from the complainant.
11. In its written statement at para 4, the O.P. gave basic details of the duly signed proposal form, which is as under :-
// 9 // Policy No's 501-2822846 501-2822853 Proposal No. 7739977 9118278 Name of the Pankaj Kumar Pankaj Kumar Policyholder/Life Insured Proposal date 30th January, 2015 30th January, 2015 Insurance Plan Elite Advantage Elite Advantage Issuance date 31st January, 2015 20th February, 2015 Premium 99999.36 84999.77 Frequency of premium Annual Annual Term 12 years 12 years Premium payment term 12 years 12 years
12. In its written statement, at para 6 the O.P. gave dispatch details of the policy documents, which is as under :
Policy No's 501-2822846 501-2822853
Delivery details Speed Post AWB Speed Post AWB No.
No.EA777833044IN EA777833058IN
Policy th
document 09 February, 2015 09th February, 2015
dispatched on
Policy document 19th February, 2015 09th March, 2015
delivered on
13. The appellant (O.P.) has filed copy of Proposal Form, which is marked as "F" and placed at page No.63 of the record of the District Forum. In the proposal form, the signature of the respondent (complainant) is affixed. The complainant put his signature in the said proposal form. In the proposal form, employee code and basic code are also mentioned. Document marked as "N" placed at page No.71 of the record of the District Forum is Key Feature Document - Bharti Axa Life Advantage, which also bears signature of the complainant. The terms and conditions are also annexed.
14. The respondent (complainant) had filed another Consumer Complainant Case No.CC/2016/444 - Pankaj Kumar Chaudhary Vs. Future Generali India Life Insurance Company Ltd. before the District Forum, Durg (C.G.). In the above complaint also the complainant pleaded that the agent/broker of the O.P. called // 10 // the complainant through mobile phone and informed him that the office of his Company is providing loan. The pleading taken by the complainant in the instant case is approximately similar to the above case. This Commission observed vide order dated 03.01.2018 that the complainant himself deposited the amount through cheque and received the insurance policy. The complainant is entitled to cancel the policy within free look period, but the complainant did not return the policy bond to the O.P. for cancellation of the policy or for changing terms and conditions for payment of premium. The above complaint was dismissed by the District Forum and the same pleading was also taken in the above complaint. The facts of both the cases are approximately similar. The complainant Pankaj Kumar Chaudhary filed Appeal No.FA/2017/781 before this Commission against the order of the District Forum, dated 23.08.2017. Vide order dated 03.01.2018, the appeal was dismissed by this Commission. But the instant complaint was allowed by the District Forum and awarded compensation in favour of the complainant, as mentioned in para 1 of this order, whereas facts of both the cases approximately similar.
15. In the instant case, the complainant himself signed the documents i.e. proposal form, Key Feature Document and also signed explanation and information. The complainant filed document Annexure A-1 which is Policy Document - Elite Advantage in respect of Policy Number 501-2822846 in which policy details are mentioned and the Sum Assured is mentioned as Rs.12,03,051.00. The policy term is 12 years, premium received is Rs.99,999.36 and payment mode is annual. The same thing is mentioned in Policy Preamble.
// 11 //
16. The complainant filed document Annexure A-3 is Policy Document - Elite Advantage in respect of Policy Number 501-2822853 in which policy details are mentioned and the Sum Assured is mentioned as Rs.10,22,597.00. The policy term is 12 years, premium received is Rs.84,999.77 and payment mode is annual. The same thing is mentioned in Policy Preamble.
17. The complainant himself pleaded that when the O.P. sent policy No.501- 2822853 and 501-2822846 to the complainant, then he came to know regarding terms and conditions of the policies, but the O.P. did not obtain his consent for issuance of above policies.
18. The complainant did not specifically plead as and when he received the policy bonds. The complainant also did not plead whether he sent letter to the O.P. for returning the policy bonds or for cancellation of the insurance policy or for changing terms and conditions for payment of the premium within free look period.
19. In Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 Supreme Court Cases 704, Hon'ble Supreme Court observed thus :-
"6.............it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. But if the document is not signed, being merely delivered to him, then the question arises : whether the terms of the contract were adequately brought to his notice ? The terms of the contract have elaborately been considered and decided. The details thereof are not necessary for us to pursue. It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned Senior Counsel, that normally parties are bound by such contract; it is for // 12 // the party to establish exception in a suit. When a party to the contract disputes the binding nature of the singed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established."
20. In the instant case, complainant himself signed the documents i.e. proposal form, Key Feature Document and also signed explanation and information. The complainant is an educated person.
21. In Export Credit Guarantee Corpn. of India Ltd. vs. M/s Garg Sons International, II (2013) CPJ 1 (SC), Hon'ble Supreme Court, has observed thus :-
"9. The insured cannot claim anything more than what is covered by the insurance policy..... the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely."
22. In United India Insurance Company Ltd. vs. M/s Harchand Rai Chandan Lal, 2005 (1) CPR 64 (SC); Hon'ble Supreme Court has observed, thus :-
"6. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be proceeded with force of violence. If the element of force and violence is not preset then the insured cannot claim compensation against theft from the insurance company. (Para 6). It is not open to interpret the expression appearing in policy in terms of common law; but it has to give meaning to the expression reproduced the terms of the policy as also the definition of burglary and / or housebreaking as defined in the policy."
// 13 //
23. In Deokar Exports Pvt. Ltd. vs. New India Assurance Company Ltd. , I (2009) CPJ 6 (SC), Hon'ble Supreme Court has observed thus :-
"11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal, in which event three would have been no contract. The second was to accept either expressly or impliedly, the counter proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party."
24. In M/s Vijay Concerns vs. State Bank of India, Through Branch Manager & Anr., 2013 (4) CPR 165 (NC), has observed thus :-
"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.
9. The State Commission while passing the impugned order have rightly placed reliance on the orders passed by the Hon'ble Supreme Court in the case United India Insurance Co. Ltd. v. M/s Harchand Rai Chandan Lal and in the case Deokar Exports Pvt. Ltd. v. New India Assurance Co. Ltd. according to which the rights and obligations of the parties are strictly governed by the policy of Insurance and no exception or relaxation can be made on the grounds of equity. Further, a similar view has been expressed by the Hon'ble Supreme Court in the case of Suraj Mal Ram Niwas Oil Mills Private Ltd. v. United India Insurance Co. Ltd. & Anr. In which it has been observed by the Hon'ble Supreme Court as follows :-
// 14 // "The Courts should always try to interpret the "words" in the insurance contract as they have been expressed by the parties. It is not open for the Court to add, delete or substitute any words. The words used in the Insurance Contract must be given paramount importance."
25 In Narsingh Ispat Ltd. Vs. Oriental Insurance Co. Ltd. and Anr. 2017 (2) CPR 856 (NC), Hon'ble National Commission has observed that "Insurance Contract is a species of commercial transaction and it must be construed strictly like any other contract to its own terms and by itself. Insurance contract like any other contract is binding on parties and endeavour of Court must always be to construe contract in context of terms and conditions in insurance policy."
26. In A.V. Cottex Limited Vs. The Oriental Insurance Company Limited, 2017 (2) CPR 696 (NC), Hon'ble National Commission has observed that "Insurance policy is a contract between insured and insurer and its terms and conditions are to be considered as such in same spirit in which they are written and agreed upon by parties."
27. In the instant case, the complainant himself pleaded that he deposited Rs.84,999.77 and Rs.99,999.36 total Rs.1,84,999.13 through cheque of Bank of Maharashtra, Rajnandgaon with the O.P. and received the insurance policies. When the complainant received the insurance policies and he received the insurance policies, if he was not satisfied with the terms and conditions of the insurance policies, then he was free to return the policy bonds and the request for cancellation of the policies within free look period, but the complainant did not return the policy bonds to the O.P. for cancellation of the insurance policies or for changing terms and conditions for payment of premium. It shows that the // 15 // complainant himself admitted that the annual premium of the policies are Rs.84,999.77 and Rs.99,999.36. The complainant has filed copy of order dated 28.11.2017, passed by the District Consumer Disputes Redressal Forum, Durg (C.G.) in Complaint Case No.C.C./2016/445 - Pankaj Kumar Chaudhary Vs. H.D.F.C. Standard Life Insurance Company Limited, Through Manager, in which the pleading of the complainant, is approximately similar. It shows that the complainant is well acquainted with the facts that he obtained insurance policies and annual premium is payable, therefore, it can safely be presumed that the complainant read and understand the terms and conditions of the policies and accepted the same, therefore, the terms and conditions of the insurance policies are binding on the complainant. The facts of the judgments cited by the complainant are quite distinguishable from the facts of the instant case, therefore, the same are not helpful to the complainant.
28. Therefore, the impugned order dated 04.05.2017, passed by the District Forum, erroneous and is not sustainable in eye of law and the same is liable to be set aside.
29 Hence, the appeal filed by the appellant (O.P.) is allowed and the impugned order dated 04.05.2017, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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