State Consumer Disputes Redressal Commission
Pnb Metlife India Insurance Company ... vs Tarsem Singh on 21 August, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 873 of 2014
Date of institution: 1.7.2014
Date of Decision:21.8.2015
1. PNB MetLife India Insurance Company Ltd., Brigade Seshamahal, 5
Vani Vilas Road, Basavanagudi, Bangalore - 560 004 Karnataka.
2. PNB MetLife India Insurance Company Ltd., Tanda, Tehsil Dasuya,
District Hoshiarpur Through its Branch manager.
Appellants/Op Nos. 1 & 2
Versus
1. Tarsem Singh S/o Surjit Singh R/o H. No. 292, Village Bains Awan,
Tehsil Dasuya, District Hoshiarpur.
...Respondent No.1/Complainant
2. Deepak Kumar (Code 11071849) Agent PNB MetLife India
Insurance Co. Ltd. Tanda Tehsil Dasuya, District Hoshiarpur.
3. Satvir Kaur (Code 11069481) Agent PNB MetLife India Insurance
Co. Ltd. Tanda Tehsil Dasuya, District Hoshiarpur.
Respondents Nos.2&3/Op Nos. 3 & 4
First Appeal against the order dated 22.4.2014
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Karan Nehra, Advocate
For respondent No.1 : Sh. C.S. Marwaha, Advocate
First Appeal No. 873 of 2014 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellants/OP Nos. 1 & 2 (hereinafter referred as "OPs") have filed the present appeal against the order dated 22.4.2014 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur (hereinafter referred as the District Forum) in consumer complaint No.189 dated 2.9.2013 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as the complainant) was partly accepted with the direction to Ops to refund Rs. 3,00,000/- with interest @ 9% p.a. w.e.f. 1.2.2011 and also refund Rs. 10,00,000/- alongwith interest @ 9% p.a. w.e.f. 12.4.2011 till realization and also pay RS. 20,000/- as litigation expenses.
2. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the OPs. However, vide order dated 20.12.2013, the names of Op Nos. 3 & 4 were deleted from the array of OPs. It was averred in the complaint that in the month of January, 2011, OP No. 3 visited the complainant and explained fixed deposit plan of Op Nos. 1 & 2 to the complainant and allured him to purchase F.D. Policy for a sum of Rs. 3 lacs, which would become double in 5 years and accordingly, he deposited a sum of Rs. 3,00,046.98p and thereafter, policy No. 20492257 dated 1.2.2011 was issued to the complainant. Then Op No. 4 pursued the complainant to invest Rs. 10 lacs in the abovesaid scheme, which will be only for a limited period. Accordingly, he paid Rs. 9,97,126.70p to OP Nos. 1 & 2 at the instance of Op No. 4 and First Appeal No. 873 of 2014 3 policy No. 20564634 dated 12.4.2011 was issued. It was also assured that the amount will become double in 5 years. However, the complainant was shocked when he received a call from OPs after one year to pay the premium of Rs. 3 lacs and Rs. 10 lacs, respectively. The complainant immediately approached Op no. 2 and informed the mis-selling of the policies in question fraudulently by Op Nos. 3 & 4 but Op No. 2 did not pay any heed. Thereafter, the complainant had been making complaints orally as well as in writing to Op No. 1 and to their higher officers but with no result. The Ops mischievously and intentionally had cheated the complainant by mis- selling this policy, which amounted to unfair trade practice and deficiency in services on the part of the Ops. Hence, the complaint was filed with a direction to Op Nos. 1 & 2 for refund of Rs. 13 lacs alongwith interest @ 24% p.a. from the date of deposit till realization. The direction be also given to pay Rs. 5 lacs as damages and Rs. 25,000/- as cost of the litigation.
3. The complaint was contested by the Ops, who took the preliminary objections in the written reply that the complaint was false, malicious, incorrect and malafide and was nothing but an abuse of process of law, therefore, it be dismissed with special costs; the averments made in the complaint were vague and baseless. Neither there was any unfair trade practice adopted by OPs nor deficiency in services, the complainant had voluntarily applied for the insurance policy fully knowing about the terms and conditions of the policy. That free look period provision was incorporated in the terms and conditions i.e. Clause No. 6.1 and in case the terms and conditions First Appeal No. 873 of 2014 4 were not to his satisfaction, he had a right to cancel the policies within 15 days after the receipt of the policy documents but this option was not exercised by the complainant. The policies were issued on the basis of information supplied by the complainant. In his proposal form, the premium under the said policy was for a period of 5 years. The complainant after first premium did not pay any further premium, therefore, the benefits as alleged by the complainant were not admissible, it would have been in case he had completed the premium plan. On 10.8.2012, Ops had received a letter from the complainant for the change of the beneficiaries, same was processed and confirmation was sent to the complainant. On account of non- payment of further premium, the policies had lapsed on 27.1.2012 and 31.3.2012 as per the terms and conditions of the policy and after that the complainant failed to revive the same within the revival period. Now the parties were to be governed according to the terms and conditions of the policy. He has referred to the judgment of the Hon'ble Supreme Court i.e. "General Assurance Society Ltd. v. Chandmull Jain" [1996] 3 SCR 500 wherein it was observed as under:-
"In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves."
The complainant has also failed to set-up the nexus between the damages claimed and the alleged injury. On merits, issuance of the policies was First Appeal No. 873 of 2014 5 admitted. Otherwise the stand taken in the preliminary objections was reiterated. It was submitted that after receipt of the policies and its terms and conditions, the complainant did not exercise any option to cancel the same within the free look period and after that he had no right to get it cancelled. He did not pay further premium. The policies had lapsed. He failed to revive it, therefore, he was not entitled to any claim as alleged by him in the complaint. The complaint was without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, emails Ex. C-2, IRDA complaint Ex. C-3, complaint regarding misspelling Ex. C-4, policy document Ex. C-5. On the other hand, the OPs had tendered into evidence affidavit of Udaiyakumar Jain Ex. Op-1/A, proposal forms Exs. Op-1 & 2, benefit change confirmation Ex. Op-3, email Ex. OP-4.
6. After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/OPs have filed the present appeal.
8. We have heard the learned counsel for the parties.
9. In the appeal, it has been argued by the counsel for the appellants that the complaint filed by the complainant has been allowed by the District Forum on the ground of mis-selling of the policies. The learned District Forum has failed to appreciate the First Appeal No. 873 of 2014 6 pleadings, terms and conditions of the policies and evidence on the record. He has contended that on the basis of proposal form filled in by the complainant, both the policies were issued. For the first time, the proposal form was filled in on 25.1.2011, its copy has been placed on the record as Ex. Op-1. Alongwith that he had submitted the declaration that he had read/explained the application, and furnished the information, after fully understanding the contents thereof, and have also understood the terms and conditions of the plan that I have applied for and that he had made complete, true and accurate disclosure of all facts to the best of my knowledge and belief and that he had not withheld any information. Accordingly, the policy No. 20492257 dated 1.2.2011 was issued in the name of the complainant in which it was mentioned premium paying term 5 years, policy term 20 years, premium amount of Rs. 3,00,046.98 and next premium was due as on 27.1.2012. It was further mentioned that he had requested to go through the terms and conditions thereof and report any description or dis-agreement within 15 days from the receipt of the policy. The next proposal form is Ex. Op-2, which was filled by him on 21.3.2011 and on the basis of that proposal form, policy document dated 12.4.2011 was issued. According to that policy No. 20564634, the premium paying term was 5 years, policy term 20 years and premium amount Rs. 9,97,126.70 and similar terms i.e. free look period was incorporated in the terms and conditions of the policy. The terms and conditions have also been placed on the record. It has been pleaded in the complaint by the complainant that the policies were mis-sold to the complainant as OP Nos. 3 & 4 while First Appeal No. 873 of 2014 7 selling the policy had represented that the amount once deposited will become double after 5 years. However, after filing the complaint, OP Nos. 3 & 4, who were the agents of Op Nos. 1 & 2 and had sold the policies in favour of the complainant were got deleted by the complainant, therefore, the version of Op Nos. 3 & 4 has not come on the record. Otherwise, in case the complainant alleged cheating and forgery on the part of the agents then this matter cannot be investigated by the Consumer Fora and he should have approached the Civil Court to get the findings whether there was any element of cheating, fraud or forgery of the documents, otherwise these facts are not corroborated on the basis of evidence on the record.
10. As is clear from the pleadings, he had received the policy documents, he does not deny that he had not received the terms and conditions of the policy. The proposal form was signed by him in English, which shows that he is not an illiterate person, knows the English, therefore, he could very well go through the contents of the proposal form as well as policy document. Then he had a correspondence with the Op Exs. C-3 & 4 and person cannot have email correspondence with the Ops in case he is not an educated person. It was alleged by the counsel for the respondent/complainant that the forms are duly filled in by the agents and he was made to sign these documents. However, in case any person approaches the agent, the agent does not know of the facts. No doubt that the form must have been filled in by the agent on the basis of information given by the complainant. Once the person, who is an educated person signs it, there is presumption that he knows the contents of First Appeal No. 873 of 2014 8 the document. A reference has been given to the judgment of the Hon'ble Supreme Court in case "Grasim Industries Ltd. Vs. Aggarwal Steel", 2010 (1) SCC 83 wherein it was held that 'when a person signs the document, there is presumption, unless there is proof of force or fraud that he has read the document properly and understood it and only then he has affixed his signature thereon, otherwise no signature on a document can ever be accepted.' Moreover, during the course of arguments, the counsel for the respondent/complainant was unable to pin-point whether any fact recorded in the proposal form was incorrect. When the proposal form was filled up, account statement of ICICI Bank was furnished by the complainant to the Op. Therefore, in view of these circumstances, it cannot be said that the complainant was not knowing the nature of the policy documents after receipt of the policy documents. In the policy documents itself as well as in the terms and conditions, it was specifically asked by the complainant that he should go through the terms and conditions and in case he is not satisfied with the terms and conditions of the policy then he has a right to cancel it within a period of 15 days but no such option was exercised by the complainant during the free look period, therefore, on the basis of documentary evidence, it cannot be construed that the policy was mis-sold by OP Nos. 3 & 4 by stating that the amount will become double in 5 years. If it was not so then certainly, he would have cancelled the policy within a free look period of 15 days after receipt of the policy documents, but no such option was exercised by the complainant.
First Appeal No. 873 of 2014 9
11. The District Forum gave the findings in favour of the complainant on the basis of mis-selling, which is not correct findings in view of our discussion referred above.
12. Now we have to go by the terms and conditions of the policy and the Consumer Fora cannot create its own terms and conditions as held by the Hon'ble Supreme Court in above referred judgment i.e. "General Assurance Society Ltd. v. Chandmull Jain". According to the terms and conditions of the policy, the surrender value is available according to Clause 4.4, in case regular premium for alteast 3 years have been paid. Then the policy acquires surrender value as per Section 4.5 whereas in the present case, the premium was paid only for one time, therefore, it will not acquire any surrender value as per the terms and conditions of the policy. In that event the complainant will not be even entitled to the surrender value.
13. In view of the above, we are of the opinion that the order passed by the learned District Forum is not in accordance with the terms and conditions of the policies, therefore, it is not sustainable. Accordingly, we accept the appeal. The impugned order is set-aside. Consequently, the complaint of the complainant is hereby dismissed. No order as to costs.
14. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 6,50,000/- in compliance with the order dated 8.7.2014. These amounts with interest accrued thereon, if any, be remitted by the registry to appellant No. 1(as per affidavit & vakalatnama) by way of a crossed cheque/demand draft after the expiry of 45 days, from the First Appeal No. 873 of 2014 10 despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. Intimation of the amount be also given to appellant No. 2.
15. The arguments in this appeal were heard on 10.8.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member August 21, 2015. (Surinder Pal Kaur) as Member