State Consumer Disputes Redressal Commission
Aviva Life Insurance Company India Ltd. vs Jaswinder Singh on 2 February, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.881 of 2014
Date of Institution: 02.07.2014
Date of Decision: 02.02.2016
1. Aviva Life Insurance Company India Limited, Aviva
Towers, Sector Road, Opposite Golf Course, DLF, Phase V,
Sector 43, Gurgaon (Haryana).
2. Aviva Life Insurance Company India Limited, Registered
Office, 2nd Floor, Parkashdeep building 7, Tolstoy Marg, New
Delhi.
3. Aviva Life Insurance Company India Limited, 2nd Floor,
Shinghai Tower, SCO 13, Feroze Gandhi Market, Ludhiana
all through their Duly Constituted Attorney Vivek Yadav
available at Aviva Towers, Sector Road, Opposite Golf
Course, DLF, Phase V, Sector 43, Gurgaon (Haryana).
......Appellants/Opposite Parties 1 to3
Versus
1. Jaswinder Singh S/o Sh. Jeet Singh, resident of H.No. 953-A,
Near Hagobindsar Gurdwara, Village: Bagha Purana, District
Moga.
.......Complainant/Respondent
2. HDFC Bank Limited, Bagha Purana, through its Branch
Manager.
...Respondent/Opposite PartyNo.4
First Appeal against the order dated
23.05.2014 passed by the District
Consumer Disputes Redressal
Forum, Moga.
Quorum:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Smt. Surinder Kaur, Member
F.A. No. 881 of 2014 2
Present:-
For the appellant : Sh. Sanjeev Goyal, Advocate
For respondent No.1 : Sh. Vivek Goyal, Advocate
For respondent No.2 : Ex-parte
SURINDER PAL KAUR, MEMBER
ORDER
The appellants/OPs (hereinafter referred as OPs) have filed the present appeal against the order dated 23.05.2014 passed by District Consumer Disputes Redressal Forum, Moga(hereinafter referred as "District Forum") in Consumer Complaint No.15 dated 06.02.2014 vide which complaint filed by the complainant/respondent(hereinafter referred as complainant) was allowed and OP was directed to pay an amount of Rs.39,231/- within 30 days from the receipt of the copy of this order, failing which OPs were liable to pay interest @ 6% per annum on the aforesaid amount from the date of order till realization. Further, OPs were directed to pay Rs.5,000/- as compensation for mental tension and harassment and Rs.2,000/- as litigation costs.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act 1986(in short `the Act') against OPs on the averments that in the month of February, 2008 complainant visited in the office of OP No.4 (HDFC Bank) where manager of the said OP introduced him to Deepak Behal as an agent/advisor of Aviva Life Insurance. Deepak Behal and Manager advised the complainant to purchase the policy from OP No.1 to 3 for a period of three years. On their compelling complainant had purchased policy bearing No.ELP1906412 as an annual premium F.A. No. 881 of 2014 3 of Rs.25,000/-. Complainant regularly deposited the annual premium from 2008 to 2010. At the time of purchasing policy, Deepak Behal assured the complainant that he can withdraw the deposited amount along with interest @ 24% per annum after three years. After three years, complainant visited to the office of OP No.3 and made a request to release his amount thereafter, cheque bearing No.777059 dated 14.03.2013 an amount of Rs.28,269/- issued in his favour and when he asked to return his entire money i.e. Rs.75,000/- along with interest then employees of OP No.1 to 3 misbehaved with him. According to IRDA (Standardization of Terms and Conditions of ULIP Products and Treatment of Lapsed Policies) regulations 2010 OPs can deduct only 7.5% of deposited amount. Therefore, OPs had right to deduct total Rs.5625/- i.e. 7.5% of Rs.75,000/-therefore, complainant was entitled for Rs.69,375/- out of which only Rs.28,259/- was received by him. Legal notice dated 31.12.2013, was also served to OP No.1 to 3 to release his remaining amount but till filling the complaint OPs had failed to release his reaming amount. The above said act of OPs amounted to deficiency in their service. Hence, he filed the complaint before the District Forum seeking following directions against OPs:
(i) to pay Rs.41,106/- as remaining amount;
(ii) to pay Rs.20,000/- as compensation for mental tension and harassment;
(iii) to pay Rs.20,000/- as litigation cost .
3. Complaint was contested by OP No.1 to 3. They filed their joint written reply by taking the legal objections that F.A. No. 881 of 2014 4 complainant had suppressed the material facts, complainant had no locus standi to file the present complaint as the surrender value had already been sent to him. Therefore, there was no privity of contract between the parties. Moreover, complicated questions of law and facts involved in this matter, therefore, the matter should be relegated the Civil Court. Complainant had filed the false and frivolous complaint to harass OPs and that the District Forum had no jurisdiction to entertain the complaint, as complainant was not a consumer as defined under the Act. On merits, they pleaded that these OPs had no relation with OP No.4. Complainant himself interested to purchase life insurance policy of these OPs. Complainant had approached to advisor of these OPs and got entire information regarding plans and thereafter, understanding the terms and conditions policy. He opted to purchase a "Easy Life Plus" unit linked insurance policy. Complainant filled in proposal form No.NNU12103000 on 29.02.2008 and opted to pay Rs.25,000/- per annum as premium for 10 years against sum assured of Rs.2, 50,000/-. Before signing the proposal form complainant also made a declaration to the effect that he had fully understood the nature of the policy and its terms and conditions. Thereafter, through speed post "Air Way Bill" No.EHO42578418IN on 14.03.2008 insurance policy bearing No.ELP1906412 along with terms and conditions was sent to complainant and the same was duly received by him. They further pleaded that there was 'Free Look Period' in the policy i.e. policy holder can review and can get the policy cancelled within a period of 15 days from the date of receipt of the policy documents. If policy holder cancels his/her policy, the premium will be refunded after adjusting the charges. Complainant had failed to avail the free look period; means that he was agreed with the same. According to terms F.A. No. 881 of 2014 5 and conditions of unit linked insurance policy, payment benefits in this policy will vary based on the actual performance of investment fund(s) chosen by the policy holder and this plan was entirely different from traditional insurance plan. IRDA framed two regulations in 2010 named as Insurance Regulatory and Development Authority (Treatment of Discontinued Linked Insurance Policies) Regulations 2010, and Insurance Regulatory and Development Authority (Standardization of terms and conditions of ULIP Products and Treatment of Lapsed Policies) Regulations 2010. These regulations are applicable only in that situation when the competent authority issued a notification in the official gazette but in the present case the competent authority issued a notification with regard to the regulation of Insurance Regulatory and Development Authority (Treatment of Discontinued Linked Insurance Policies) Regulations 2010 on 1st July 2010, and the provision of the same regulations are applied only on that life Insurance policies which were cleared by the authority thereafter, but the IRDA till date not issued any notification with regard to the regulations i.e. Insurance Regulatory and Development Authority (Standardization of Terms and Conditions of ULIP Products and Treatment of Lapsed Policies) Regulations 2010 so the provisions of the same are not applicable in the present case in hand. They further, pleaded that fourth premium was due on 10.03.2011, but complainant had failed to pay the same within grace period as provided under the policy, therefore, the policy of the complainant was lapsed due to non-payment of renewal premium. Complainant also failed to renew the policy within two years from the date of lapse of policy, thereafter, these OPs had paid the surrender value to complainant as per terms and conditions of the policy and F.A. No. 881 of 2014 6 same was received by him. There was no deficiency in their service and prayed for dismissal of the complaint with costs.
4. On 24.02.2014, Sh. Gursharan Singh, authorized representative of OP No.4-HDFC Bank had appeared and filed authority letter. Thereafter, none had appeared on behalf of OP No.4, so, vide order dated 07.03.2014 Op No.4 proceeded against ex-parte.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of the averments, the complainant had tendered into evidence his affidavit Ex.C-1 along with other documents Ex.C-2 to Ex.C-6 and closed their evidence. On other hand OPs had tendered into evidence affidavit of Sh. Vivek Yadav, Authorized Signatory of OPs as Ex.OP-1 to 3/1 alongwith other documents Ex.OP-1 to 3/2 to Ex.OP-1 to 3/9 and closed their evidence.
7. After going through the allegations alleged in the complaint, written reply filed by OPs, evidences and documents brought on the record, the learned District Forum allowed the complaint as referred above.
8. Aggrieved against the order passed by the Ld. District Forum, OPs have preferred the present appeal.
9. We have heard learned counsel for the parties and carefully gone through the record of the District Forum.
10. It was submitted by the learned counsel of OPs that complainant had received an amount of Rs. 28,269/- on 14.03.2013 without any protest, therefore, he had received full and final settlement under the policy. It was further submitted that complainant failed to avail F.A. No. 881 of 2014 7 the free look period of 15 days, to get the policy cancelled if he was not satisfied with the terms and conditions of the policy. The policy in question was Unit Linked Policy. In these policies invested risk was borne by the policy holder and there was no guarantee of benefits under these plans. Complainant made investment after understanding the risk plan. Further, IRDA regulations 2010 are not applicable in the present case as the same were applicable to the policies purchased after the notification i.e. 01.7.2010. He relied upon the judgment of Hon'ble National Commission Ram Lal Aggarwal vs Bajaj Allianz Life Insurance R.P No.658/2012 decided on 23.04.2013. Hon'ble National Commission observed that "money of the complainant invested in the share market is no doubt a speculative gain and the speculative investment matter does not come under the Consumer Protection Act (in short the "Act") and such complainant is not a consumer". He prayed for to set-aside the impugned order and acceptance of the appeal.
On the other hand, counsel of the complainant submitted that District Forum had returned the correct findings that according to IRDA (Standardization of Terms and Conditions of ULIP Products and Treatment of Lapsed Policies) regulations 2010 OPs could deduct 7.5% of deposited amount. Therefore, OPs had right to deduct Rs.5625/- i.e. 7.5% of Rs.75,000/- and complainant was entitled for Rs.69,375/- out of which only Rs.28,269/- was received by him. Therefore, complainant was entitled to receive the remaining amount of Rs.39,231/-. He prayed for dismissal of the appeal and upheld the impugned order of the District Forum.
11. Complainant placed on record policy scheduled Ex.C-3 in which premium amount has been mentioned as Rs.25,000/- per annum and "Easy Life Plus" unit linked policy mentioned in the same. Further, F.A. No. 881 of 2014 8 proposal form Ex.C-4 which was duly signed by the complainant and one letter Ex.R-3 dated 02.05.2014 issued in the name of complainant "Welcoming the complainant to purchase the policy" and in that policy, it was specifically mentioned that complainant has 15 days free look period to cancel the policy, if its terms and conditions are not acceptable to him otherwise, he will bound by the terms and conditions of the policy. It is fact that complainant did not get it cancelled within a period of 15 days of 'free look period'. Once the document has been signed and no protest was lodged then according to the judgment of the Hon'ble Supreme Court in "Grasim Industries Ltd. vs. Agarwal Steel". 2009 (4) CCC 598 (SC), it has been observed that the person who signed the documents, there is presumption that he understood the document and only then he signed it specifically he is an educated person unless contrary is proved.
12. In case we go through the complaint it had been stated that complainant was allured by Deepak Behal agent/advisor and Manager of OP No.4. They were not made a party; therefore, any allegation against an employee of the bank cannot be accepted unless a chance was given to them to rebut these allegations. Therefore, once the documents have been signed by the complainant and received the policy documents, failed to cancel the policy now they will be governed by terms and conditions of the policy. Under the policy, which has now lapsed only fund value is admissible to the complainant. Further, case of the complainant did not fall under the IRDA Regulations 2010 as the same were applicable on the policies issued after the notification i.e. 01.7.2010. Whereas, in the present case policy was issued on 29.02.2008.
13. Another preposition has been raised by the counsel for the OPs that complainant is not consumer as he had invested the amount in F.A. No. 881 of 2014 9 Unit Linked Policy and has referred the judgment of the Hon'ble National Commission passed in "Ram Lal Aggarwal versus Bajaj Allianz Life Insurance Co. Ltd." Passed in Revision Petition No.658 of 2012 decided on 23.04.2013. In that Judgment, the judgment of 'Smt. Abanti Kumari Sahoo Vs. Bajaj Allianz Life Insurance Company Ltd" decided by the State Commission Orissa in F.A. No. 162 of 2010, it was observed that in case the money was invested in the share market, is no doubt a speculative gain and speculative investment does not come in the definition of 'consumer' and accordingly, the District Forum had dismissed the complaint holding that the complainant does not come within the purview of the Act. It was so affirmed by the State Commission and plea taken by the Revision Petitioner was dismissed by the Hon'ble National Commission. Accordingly, it has been stated that in the present case also complainant had invested the money in view of the policy, which is connected with the speculative share market; therefore, this investment was for commercial purposes to earn the profit. Against this judgment, counsel for the complainant has not cited any contrary judgment, therefore, complainant does not fall within the definition of the 'consumer'.
14. In view of the above discussion, we are of the opinion that the findings so recorded by the learned District Forum are not correct findings, based upon the proper appreciation of the pleadings and documents on the record and that the complainant also does not fall within the definition of the 'consumer' therefore, the judgment so passed by the District Forum is liable to set-aside.
15. In view of the above discussion, we accept the appeal. The order so passed by the learned District forum is set-aside. The complaint filed by the complainant is hereby dismissed on the ground that he is not a F.A. No. 881 of 2014 10 consumer without prejudice to his right to approach the appropriate Forum/Court, with no order as to costs.
16. The appellants/OPs had deposited a sum of Rs.23,500/- at the time of filing of the appeal, along with interest which had accrued thereon, if any, shall be remitted by the registry to appellant/OP No.1 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties subject to stay if any by higher Fora/Court.
17. The arguments in this appeal were heard on 25.01.2016 and the order was reserved. Now, the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN)
PRESIDING JUDICIAL MEMBER
(SURINDER PAL KAUR)
February 2, 2016 MEMBER
SK
F.A. No. 881 of 2014 11