State Consumer Disputes Redressal Commission
Jagdish Singh vs M/S Aviva Life Insurance Company India ... on 7 September, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1070 of 2013
Date of institution: 8.10.2013
Date of Decision: 7.9.2015
Jagdish Singh wife of Shri Sodhi Singh r/o Koloniestr, 237, 47057 Disburg,
Germany through Special Power of Attorney Jarnail Singh son of Bhagat
Singh r/o Village Alipur, Tehsil Garhshankar, Distt. Hoshiarpur.
Appellant/Complainant
Versus
1. M/s Aviva Life Insurance Company India Ltd., Branch Office,
Chandigarh Road, Nawanshahr through its Branch Manager.
2. HDFC Bank Limited, Banga Road Branch, Nawanshahr, through its
Branch Manager.
3. Shri Ankur Dhuria, Ex-Manager, Centurion Bank of Punjab Limited,
Nawanshahr Branch, presently posted as Manager at Royal Bank of
Scotland, Jalandhar, Mid Land Financial Center, Ground Floor, 21,
22, GT Road, Jalandhar.
Respondents/OPs
First Appeal against the order dated 13.9.2013
passed by the District Consumer Disputes
Redressal Forum, Shaheed Bhagat Singh
Nagar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
First Appeal No. 1070 of 2013 2
Present:-
For the appellant : Sh. Sarju Puri, Advocate
For respondent No.1 : Sh. Sandeep Suri, Advocate
For respondent No.2 : Sh. Sunil Narang, Advocate
For respondent No.3 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as "
complainant") has filed the present appeal against the order dated 13.9.2013 passed by the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar (hereinafter referred as the District Forum) in consumer complaint No.54 dated 4.4.2013 vide which the complaint filed by the complainant was accepted against OP No. 1 with the direction to pay the surrender value as per the terms and conditions of the policy, failing which the OP will be liable to pay interest @ 9% p.a. from the date of filing the complaint till realization.
2. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/OPs(hereinafter referred as OPs) on the allegations that the complainant is a non-resident, settled in Germany. She alongwith her husband were having an NRI Saving Bank Accounts with OP No. 2 Nos. 02661060003813, 13311010005279 & 02661010001964 out of which the complainant and her husband had two joint accounts. Earlier these accounts were with the Centurion Bank of Punjab, which lateron merged with OP No. 2. In the month of April, 2010, OP No. 3 contacted the complainant on phone at Germany and advised her to First Appeal No. 1070 of 2013 3 purchase the policy from Op No. 1, which was for 5 years and as per the policy scheme, the complainant had to pay 3 annual premiums in equal instalments and on completion of 5 years, the complainant will receive double of the amount and accordingly, the complainant agreed to invest Rs. 10,00,000/- per annum for 3 years and accordingly, he purchased policy from OP No. 1 for a sum of Rs. 6 lacs. Since the complainant was in Germany at that time, therefore, he did not sign any document much less the proposal form. As she was told that her signatures were not required to purchase the policy. In the month of June, 2012, the complainant came to know from her brother-in-law Jarnail Singh about the fraud of Ops with their customers and thereafter, the complainant made an inquiry from OP No. 1 and came to know that a fraud was played upon the complainant by way of mis-representation of facts as they issued the policy to the complainant for a period of 20 years, which will mature in the year 2030 and she had to pay an amount of Rs. 6 lacs per annum, which was not within the financial limits of the complainant. In March, 2013, the complainant came back to India and made a request to OPs to return back the amount of Rs. 12 lacs as deposited by her with them but they failed to pay this amount, which was taken fraudulently and illegally by way of mis-representation. The complaint was filed within 10 months from the date of knowledge, therefore, it was within limitation. The action of Ops for not refunding the amount taken by them by way of mis-representation, amounted to deficiency in services as well as unfair trade practice. Hence, the complaint First Appeal No. 1070 of 2013 4 seeking direction against Ops to pay a sum of Rs. 12 lac alongwith interest @ 12% p.a. and also pay Rs. 50,000/- as compensation.
3. The complaint was contested by Ops. OP No. 1 in its written reply took the preliminary objections that the complaint was barred under Section 24A of the Act. In case it is mis-selling of the policies then cause of action arose in May, 2010 when the said policy was issued to the complainant whereas the complaint was filed in March, 2013. The complaint was false, malicious and malafide, therefore, liable to be dismissed under Section 26 of the Act; there was no deficiency in services on the part of Ops; the complaint was based upon surmises and conjectures and no cause of action had arisen in favour of the complainant to file this complaint. The complainant was given a free look period of 15 days to go through the policy and cancel it in case terms and conditions are not suitable to her but no such objection was raised during the said period, therefore, now she was not entitled for refund of the amount when she had enjoyed the life coverage for a period of more than 3 years and after understanding the terms and conditions of Aviva New Pension Elite policy. The complainant had signed the proposal form on 21.5.2010. It is on the said declaration and information provided in the proposal form bearing No. NNU16075300 dated 21.5.2010 was issued in favour of the complainant with date of commencement 29.5.2010. The policy schedule alongwith terms and conditions was despatched to the complainant on 1.6.2010 through Blue Dart Courier serial No. 43646956253 but it was not delivered and OP again on 14.6.2010 despatched the documents through speed post bearing First Appeal No. 1070 of 2013 5 No. #EH140848101IN and the same did not return, therefore, it was presumed that the same was delivered. The complainant had also signed the declaration of the benefits and illustrations from the policy and premium term was 20 years and the policy holder/complainant after receiving the policy documents did not raise any complaint/objection regarding the policy document within a period of 15 days, therefore, the contract of insurance attained finality and Ops continued to provide coverage to the complainant and after the expiry of free look period policy terms and conditions permitted only a surrender value on completion of 3 years, which was payable according to the terms and conditions of the policy. The first regular premium was due in May, 2012. On 13.11.2010, Ops had received a complaint from the complainant with a request to the OP to cancel the policy, which was duly replied vide letter dated 19.11.2010 that the policy cannot be cancelled at this stage because it was not got cancelled within the free look period. Another letter dated 6.12.2010 and 8.1.2011 were received from the complainant, which were replied on 8.12.2010 and 12.1.2011. Then on 25.3.2011, an e-mail was received, which was replied vide e-mail dated 30.3.2011. It was replied that the passport and immigration documents provided by the complainant reflect in the passport that she arrived at New Delhi on 12.10.2009. On merits, issuance of the policy on the basis of proposal form and declaration was admitted to the complainant. It was admitted that the complainant was having a Saving and Joint Bank Account with her husband with OP No. 2 and the policy documents were despatched to the complainant and she never raised First Appeal No. 1070 of 2013 6 any objection with regard to the terms and conditions of the policy within the free look period and premium plan of the complainant was Rs. 6 lacs per annum and further instalment was due on May, 2012, which was not paid by the complainant even within the grace period and status of the policy was changed to early lapse on 28.6.2010 and the policy could be reinstated within 2 years from the due date of first premium unpaid instalment of regular premium after paying the charges as specified in the schedule. The lapse of the policy so communicated to the complainant. There was no deficiency in services on the part of OP No. 1. Complaint was without merit and it be dismissed.
4. OP No. 2 in its written reply took the preliminary objections that the complaint was not maintainable as the complainant had no locus-standi to file the complaint; complaint was barred by act and conduct of the complainant; complainant had not come to the Forum with clean hands and that this OP has been unnecessarily dragged into this litigation. The insurance services were availed only from Op No. 1, therefore, no cause of action to file this complaint against this OP. On merits, averments stated in the complaint were denied. No merit in the complaint. It be dismissed.
5. Whereas OP No. 3 was ex-parte.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of her allegations, the complainant had tendered into evidence her affidavit Ex. C-1, policy Ex. C-2, SB A/c statement Ex. C-3, passport Ex. C-4. On the other hand, OP No. 1 First Appeal No. 1070 of 2013 7 had tendered into evidence affidavit of Watan Kumar Bhajanka, Sr. Executive Legal Ex. OP-A, proposal form Ex. Op-2, terms and conditions of policy Ex. Op-3, letter Ex. Op-4, letters dt. 8.12.2010 and 12.1.2010 Ex. Op-5, letter dt. 30.3.11 Ex. OP-6. Op No. 2 had tendered into evidence affidavit of Amit Kaushal Ex. RW-2/1.
8. After going through the allegations in the complaint, written reply filed by Ops, evidence and documents brought on the record, the complaint was allowed against Op No. 1 as referred above.
9. We have heard the learned counsel for the parties.
10. In the appeal, it has been argued by the counsel for the appellant that the findings so recorded by the District Forum are contrary to the facts and law. The proposal form was never filled in by the complainant as she was in Germany and her signatures were fabricated by Ops and she has made a reference to her passport, which makes it clear that the complainant had returned to India on 12.10.2009, left India on 30.10.2009 and then came to India on 15.4.2011 whereas these facts were not discussed by the learned District Forum.
11. The counsel for the complainant has made a reference to the passport Ex. C-4 placed on the record and the passport will reveal that she had come to India on 12.10.2009 as per the receipt of Immigration India on 21.10.2009 whereas the proposal form as per the version of the OP was filled up on 21.5.2010. The passport does not make it clear that on that day she was in India. Therefore, it is doubtful that the proposal form was duly signed by the complainant. First Appeal No. 1070 of 2013 8 She has stated that directions were sought from her when she was in Germany to purchase this policy. As per her version, the policy was for 5 years and she was to deposit three consecutive instalments and after the end of 5 years, she was to get double of the amount. In these circumstances, the delivery of the policy document is very important. As is clear from the pleadings of Ops, the policy document was firstly despatched on 1.6.2010 through Blue Dart Courier bearing receipt No. 43646956253 but it was not delivered and again it was despatched vide speed post bearing No. #EH140848101IN but no such postal receipt has been placed on the record. Therefore, to prove the service of delivery of the policy documents alongwith terms and conditions, it was necessary for the Op to give a proof for despatching the policy documents alongwith terms and conditions to the complainant. When she came to know through her brother-in-law Jarnail Singh that the policy document is not according to the information given to her, he has also to file a similar complaint then she wrote a letter. The said letter was not placed on the record by the complainant but OPs have produced some letters on the record i.e. Ex. Op-4 dated 19.11.2010, it is vide which her compliant, which was received with OP on 12.11.2010 regarding non-receipt of policy documents or to cancel the policy, vide which they replied that the policy document was sent on 14.6.2010 through speed post vide Airway bill No. #EH140848101IN and the same was not returned undelivered as per their record and that their request was not received within the free look period as per the policy, therefore, her request for cancellation was declined. There is another letter dated First Appeal No. 1070 of 2013 9 8.12.2010 in which it was again reiterated that the policy document was sent to her through speed post dated 14.6.2010 vide Airway bill referred above. There is another letter dated 30.3.2011(Ex. Op-6) in which her complaint was again declined. These documents shown that in the letter received in November, 2010, the complainant had made a request to cancel the policy. Whereas Ops had rejected her claim to cancel the policy that the request was not made within free look period.
12. Now the question arises from which date the free look period will start; certainly, from the date of receipt of the policy documents. Whereas Ops have failed to place on the record any document regarding despatch of the policy document to the complainant. In case the policy documents were not despatched to the complainant then how she will come to know the nature of the policy document, premium duration and the maturity amount etc.. She can give her option to cancel or accept the policy mainly after receipt of the policy and as and when she came to know that policy documents are according to the instructions sought from her and when she come to know through her brother-in-law Jarnail Singh, then she made a request to cancel it, therefore, on receipt of this complaint, Ops should have cancelled the policy because the plea of free look period does not arise as Op failed to prove on record that policy documents were despatched to the complainant. These facts have not been properly appreciated by the District Forum and they have given observations that as per terms and conditions of the policy, she is entitled to only the surrender value. However, in case First Appeal No. 1070 of 2013 10 the policy documents were not received by the complainant then she has a right to get it cancelled as and when she had come to know that the policy was mis-sold to her and in these circumstances, Ops should have accepted the cancellation. In these circumstances, the order so passed by the learned District Forum requires modification.
13. In view of the above, we accept the appeal. Impugned order is modified. Instead of surrender value, the complainant will be entitled to the premium amount paid by her alongwith interest @ 9% from the date of deposit till its payment. No amount towards compensation and costs have been awarded and some amount towards compensation and costs should have been awarded to the complainant. Accordingly, the complainant is awarded Rs. 10,000/- as compensation and Rs. 5,000/- as litigation expenses; pay within one month from the receipt of copy of the order.
14. The arguments in this appeal were heard on 31.8.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
15. 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 September 7, 2015. (Surinder Pal Kaur) as Member