State Consumer Disputes Redressal Commission
Sudesh Kumari vs Aviva Life Insurance Company Limited on 23 September, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1327 of 2011.
Date of Institution: 02.09.2011.
Date of Decision: 23.09.2013.
Sudesh Kumari S/o Sh. Ram Ji Lal Mahey S/o Sh. Khusi Ram, R/o
H.No.271, Village Khusropur, P.O. Kukkar Pind, near Khera STD,
Tehsil and District Jalandhar.
.....Appellant.
Versus
1. Aviva Life Insurance Company Limited, 5th Floor, JMD, Regent
Square, Gurgaon, Mehrauli Road, Gurgaon, through its M.D.
2. Aviva Life Insurance Company Limited, opp. Suvidha Centre,
Ladowali Road, Jalandhar through its Branch Manager.
3. Gurmeet Singh and Pardeep Kumar, agents of HDFC Bank
Limited, Civil Lines, opp. Circuit House, Jalandhar.
...Respondents.
First Appeal against the order dated
04.07.2011 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. H.S. Guram, Advocate, counsel for the appellant.
None for respondents no.1 & 2.
Respondent no.3 Exparte.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Smt. Sudesh Kumari, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 04.07.2011 First Appeal No.1327 of 2011 2 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), pleading that she is a housewife and her husband is employed in the 'Hotel President' as a purchasing man and she is an illiterate person. The appellant and respondent no.3 developed good relations as she used to visit the bank for various transactions. In the year 2007, respondent no.3 came to the house of the appellant and told that if the appellant invests Rs.1.00 lac, she will get the double amount after five years. On the assurance of respondent no.3, the appellant invested a sum of Rs.1.00 lac in the year 2008 and her husband also invested a sum of Rs.2.00 lacs in the years 2007 and 2008.
3. On 07.02.2009, the appellant obtained the copy of the policy document from Aviva Life Insurance Company vide policy no.LSU1844988 and she came to know that the money deposited by her was deducted by the company under the terms and conditions of the company. The appellant approached respondent no.3 and asked about the deductions of the deposited money, but respondent no.3 totally refused and told that he will meet respondent no.2 and inquire about the policy. The appellant also went to the office of respondent no.2, but respondent no.2 did not bother and stated that the matter will be reported to respondent no.1. The appellant visited the office of respondents no.2 & 3 a number of times, but they refused to give any claim to the appellant. In July, 2009, the appellant received a phone call from respondent no.1, stating that it will not refund the amount of deposited money, as the respondent insurance company has invested First Appeal No.1327 of 2011 3 her money in different sectors of investment and the money was deducted as the GDP of the share market was down. The appellant was not having any knowledge of the scheme and deposited the money at the asking of respondent no.3. The respondents are guilty of deficient and negligent services and they caused lot of mental tension and harassment and are liable to pay compensation along with interest @ 18% p.a.
4. It was prayed that the respondents may be directed to pay Rs.1.00 lac to the appellant as she deposited the same, along with interest @ 18% p.a., Rs.1.00 lac as compensation and Rs.10,000/- as litigation expenses.
5. In the written version filed on behalf of respondents no.1 & 2, preliminary objections were taken that the appellant has suppressed material facts and the complaint is liable to be dismissed. The complaint is devoid of any merit. The appellant is bound by the policy of the respondents and the same was duly issued after the proposal form dated 25.01.2008 was duly filled and signed by the appellant after carefully understanding the contents thereof. The policy issued by the respondents is a contract and both the parties are bound by the terms and conditions thereof. The appellant was explained all the features of the policy at the time of filling the proposal form and she was also provided with policy documents at the time of investment of the commencement of the policy, giving full details of the features of the policy along with a Right to Reconsider and the appellant had the option to get the policy cancelled within15 days of the receipt of policy document. No complaint was lodged with the respondents and the present complaint is liable to be dismissed.
First Appeal No.1327 of 2011 4
6. The policy of the appellant lapsed on account of non- payment of the insurance premium which was due on 28th November, 2008. The appellant was aware of the due date, but she did not make the payment and she has not applied for renewal of the same subsequently, but filed the present complaint by mis-representing the facts. The appellant is barred by her act and conduct from filing the complaint.
7. It was further submitted that the proposal form dated 25th July, 2008 was duly received in the office of the respondents which was duly filled and signed by the appellant after going through the 'Key Features Documents' and understanding the scope, meaning as well as the contents of the proposal form. The first premium amount was received by the respondents along with the proposal form and was credited in the account of the respondents.
8. On the basis of the proposal form and declaration made thereunder, the respondents issued the Life Saver Unit Linked Policy bearing No.LSU-1844988 to the appellant. The salient features of the policy are as follows:-
a) Commencement Date : 31st January, 2008. b) Sum assured : Rs.5,00,000/- d) Annual Premium : Rs.1,00,000/- e) Premium Frequency : Annual f) Premium as per frequency : Rs.1,00,000/-
9. The policy documents were dispatched to the appellant on 13th February, 2008 through speed post. On 25th February, 2008, the appellant was given a welcome call by the Customer Service Team of the respondents vide which it was confirmed that the policy document First Appeal No.1327 of 2011 5 has been received and she is satisfied with the terms and conditions of the policy. Thereafter, no complaint was received from the appellant.
10. On merits, it was submitted that as per the details furnished in the proposal form, she is a Graduate. She also declared that she is working and earning Rs.6.00 lacs annually. No deductions were made as alleged. The units of the policy were allotted as per NAV as on date of commencement of the policy. The appellant never approached the respondents before filing the present compliant. The appellant is not entitled to any refund of the premium. In the United Linked Policies, the company incurs heavy losses if the policy is cancelled by the policy holder in the initial years from the commencement of the policy. The various charges mentioned in 'Key Feature Documents' are as per the terms and conditions which are approved by the IRDA. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
11. Respondent no.3 did not contest the compliant before the District Forum and was proceeded against exparte.
12. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents.
13. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that whenever a person invests money to earn huge profits and transaction is speculative in nature, such a person is not a consumer. In the present case also, the appellant is investing Rs.1.00 lac per annum out of her total income of Rs.6.00 lacs per annum. It is clear that the investment is for earning more profit and the transaction is commercial and speculative in nature, because the value of the units will increase and decrease according to fluctuation in the First Appeal No.1327 of 2011 6 share market. The complaint is not maintainable as the appellant is not a consumer, and dismissed the complaint. However, it was observed that the appellant may apply separate to respondents no.1 & 2 with regard to get payment of surrender value of policy as per market rate and her request may be considered as per terms and conditions of the policy.
14. Aggrieved by the impugned order dated 04.07.2011, the appellant has come up in appeal.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellant.
16. Neither the counsel for respondents no. 1 & 2 nor anybody else appeared at the time of arguments.
17. Respondent no.3 has not contested the appeal and was proceeded against exparte.
18. In the written arguments filed on behalf of the appellant, it was submitted that the proposal form Ex.O-1 was filled under the head proposal date 25.01.2008 for a sum of Rs.5.00 lacs with annual premium of Rs.1.00 lac to be paid for a period of ten years upto 31.01.2017. Annual income was shown as Rs.6.00 lacs. In the first premium receipt, the risk commencement date is shown as 31.01.2008 and total fund value as on 31.01.2008 is shown as Rs.69,867/- against the premium of Rs.1.00 lac and in a single day, the value reduced from Rs.1.00 lac to Rs.69,867/-. It was never brought to the notice of the appellant that she is to pay the premium of Rs.1.00 lac for 10 years and no person will ever accept such a condition. The signatures of Sh. Ramji Lal were already there on the record of the company and the company has not verified the signatures of the guardian of the minor in First Appeal No.1327 of 2011 7 the policy issued to the appellant. The proposal form was signed on 31.01.2008 and the same was received by the appellant somewhere in July, 2009.
19. After the receipt of the policy in July, 2009, the husband of the appellant tried to contact the authorities of Aviva Life Insurance Company for refund of the amount of his wife, as he found that the money deposited by his wife was deducted by the said company. The appellant and her husband went to the office of respondents no.2 & 3, but they did not listen. The husband of the appellant received a phone call from respondent no.1 in July, 2009 whereby the company informed that the amount deposited will not be refunded as the company has invested the amount in different sectors of investment. It was prayed that the appeal may be accepted and the impugned order may be set aside.
20. We have considered the written submissions submitted on behalf of the appellant and have thoroughly scanned the entire record and other material placed on the file.
21. The appellant is a lady and the proposal form Ex.O-1 is stated to have filled on 25.01.2008 and in the proposal form also, the annual income of the appellant was shown as Rs.6.00 lacs and in the declaration form Ex.O-2 dated 25.01.2008, the annual income from all sources was shown to be Rs.6.00 lacs, but the sources of income were not disclosed. In Annexure to Proposal Form Ex.O-3, name of the person, who was the advisor is mentioned as 'Amit' and in proposal form, it is mentioned as 'Amit Chhabra'. As per Ex.O-8 i.e. deposit slip, Rs.1.00 lac was deposited on 25.01.2008 and first premium receipt Ex.O-9 was issued which mentions the date of commencement of the risk and the amount of premium and the sum insured as well as period First Appeal No.1327 of 2011 8 for which the premium was to be paid. The premium of Rs.1.00 lac was to be piad uptill 31.01.2017 and the sum assured was only Rs.5.00 lacs. The appellant was to pay Rs.10.00 lacs as premium and in turn, she was to have the benefit of Rs.5.00 lacs only. The appellant was never made aware that she is investing the amount in Life Saver Unit Linked Policy and the value of the amount of Rs.1.00 lac deposited on 25.01.2008 was reduced to Rs.69,867/- on 31.01.2008 itself as per Ex.O-9. Had the terms and conditions of this policy been made aware to the appellant, then the appellant would have never invested this amount. Moreover, the respondents have not placed on record any document to show that the appellant had the sources of income and she can pay the premium of Rs.1.00 lac p.a. for ten years. The agent Sh. Amit Chhabra did not satisfy himself about the sources of income, nor collected any documents from the bank or other institutions to satisfy that the appellant has income of Rs.6.00 lacs per annum. The agent only has filled up the proposal form and in order to earn his own commission, put the amount in the Life Saver Unit Linked Policy and she was never apprised of the terms and conditions.
22. In view of above discussion, the order passed by the District Forum is liable to be set aside.
23. Accordingly, the appeal is accepted and the impugned order under appeal dated 04.07.2011 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/ complainant is allowed and the respondents are directed to refund the amount of Rs.1.00 lac along with interest @ 9% p.a. from the date of deposit till realization and Rs.10,000/- as litigation expenses to the appellant within 45 days of receipt of copy of the order. First Appeal No.1327 of 2011 9
24. The arguments in this appeal were heard on 09.09.2013 and the order was reserved. Now the order be communicated to the parties.
25. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member September 23, 2013.
(Gurmeet S)