State Consumer Disputes Redressal Commission
Branch Manager, Icici Prudential Life ... vs G. Chandra, W / O. S.Ganesan, Vallam, ... on 17 February, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.194/2018
(Against the order made in C.C.No.39/2014 dated 12.01.2018 on the file of
the District Commission,Thanjavur.)
FRIDAY, THE 17th DAY OF FEBRUARY 2023
1. The Branch Manager,
ICICI Prudential Life Insurance Company Limited,
Survey No.2849/1B, Ward No.46,
Nanjikkottai Road, Near Canara Bank,
Thanjavur. 1st Appellant/1st Opposite Party
2. The Manager,
ICICI Prudential Life Insurance Company Limited,
Vinod Silk Mills Compound,
Chakkaravarthy Ashok Nagar,
Ashok Road, Kandivali,
Mumbai-400 101. 2nd Appellant/2nd Opposite Party
-Vs-
1. G.Chandra,
W/o S.Ganesan, 1st Respondent/1st Complainant
2. S.Ganesan,
S/o Subramaniyan Nadar, 2nd Respondent/2nd Complainant
Both are Residing at
No.17 A, Samuthirakulam Street,
Near Lord Jesus Matriculation School,
Vallam, Thanjavur Taluk,
Thanjavur District.
Counsel for Appellants-1&2/Opp.Parties-1&2 : M/s. V.Sankaranarayanan, Advocate.
Counsel for Respondents-1&2/Complainants-1&2 : Mr.P.Vadivel, Advocate.
This appeal coming before us for final hearing on 15.12.2022 and upon
perusing the material records, this Commission made the following:
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ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved with the order passed by the District Consumer Disputes Redressal Forum, Thanjavur made in C.C.No.39/2014 dated 12.01.2018 the opposite parties insurance company preferred this appeal.
2. The facts of the complaint is as follows:
The complainants are husband and wife. As per the inducement of the first opposite party they have taken "Investment Shield - Cash Back Plan Policy". It was informed that the annual premium was Rs.16,500/- and they have to pay three annual premiums and after the payment they may get upto Rs.1,00,000/-. Believing those promises they joined this scheme and paid premium for three years. Afterwards, they ask for the refund of the amount the opposite parties informed that they are eligible to get only Rs.34,500/- and they were not entitled to get any other amount, alleging deficiency in service this complaint is filed to direct the opposite parties to refund Rs.49,500/- paid by the complainant with 12% interest, and the complainants to receive pay back amount Rs.1,00,000/- through Investment Shield- Cash Back Policy and also Rs.1,00,000/- towards compensation for mental agony.
3. The opposite parties in their written version have stated as per the terms of the policy the maturity amount and benefits were varied according to the market conditions. Moreover, this is not only insurance but, investment in share market as such the policy holder is not a consumer and the purpose of the policy was commercial in nature. Moreover, as per the policy condition they are entitled to surrender the policy only after payment of three premiums and they will get back the share value cum surrender value alone prevailing at the time. As per terms they 3 are entitled to deduct service charge, and recovery charges. Accordingly, the amount of Rs.33,273.46/- was refunded via NEFT to the bank account provided by the policy holder on 21.07.2014. As such there is no deficiency in service. Hence, the complaint is to be dismissed.
4. The District Commission after receiving the proof affidavit and marked Ex.A1 to A5 and Ex.B1 to B4 found the opposite parties/insurance company was deficiency in service and directing the opposite parties jointly and severally liable to refund of Rs.49,500/- with interest at the rate of 9% as well as to pay Rs.1,00,000/- towards compensation for deficiency in service and mental agony.
5. Aggrieved with above order the appeal has been preferred by the opposite parties on the following:
Grounds: That, the District Commission order was erroneous and it is against the terms and conditions of the policy. The District Commission failed to take note that the transactions between the complainant and the opposite parties were only commercial in nature and the policy was subject to the share market risk. Inspite of that they were ordered by the District Commission to pay the policy amount and also compensation which are all against law and liable to be set aside and the appeal may be allowed.
6. The written arguments of appellants alone filed and we perused the same.
7. Now the point for consideration is:
Whether the appeal is to be allowed or not?
Point: It is an admitted fact that, the complainants took a policy on 27.11.2007 by paying annual premium of Rs.16,500/-. It is also an admitted that 4 they paid only three annual subscription i.e., Rs. Rs.49,500/- While claiming the maturity value they were informed that they are eligible for Rs.34,500/-. So, the complainant alleged deficiency in service in not returning the premium amount paid by them. So, the question before us whether the complainants as per the terms of the policy entitled to get back the premium amount paid by them. As per the Apex Court Judgement as well as National Commission Judgement the terms of the contract must be given due waitage and the Consumer Fora did not have any right to vary or alter the conditions governing the contract of insurance.
8. Admittedly, in the policy documents which are marked as Ex.A1, and Ex.B1 and B2 nowhere it was prescribed the right to get back entire premium amount pay. Moreover, in the policy documents itself it has been clearly mentioned in the heading itself that this policy, the Investment Risk in Investment Portfolio is Borne by the Policy Holder.
9. Though, the District Commission give a finding that the policy and the terms and conditions were in English, but the opposite parties failed to prove that those conditions were explained to the complainant in Tamil and having understood by the complainant. This finding is not acceptable to us, since it is not the case of the complainant that without informing the terms they were forced to sign the documents. Moreover, the policy was sent to the complainant and they are having a free look period and they are having an option to withdraw from joining the policy scheme. So, without any pleadings the District Forum concluded that the policy was signed without knowing the conditions by the complainant. 5
10. Having signed the contract the complainants are bound by the terms of the contract and no right to get back paid up premium amount. They are entitled to surrender after three years, and after deducting the service and recovery charges, the prevailing value alone to be refunded. Moreover, the opposite parties in their written statement clearly informed that Rs.33,273.46ps was paid through NEFT transfer to the policy holder's bank account on 21.07.2014. This fact was not denied by the complainant. Importantly the complainant himself submitted a letter to get back the amount which is marked as Ex.B4. So, after sending the Advocate notice the complainant submitted a letter to get back the surrender value and the amount was also credited into his account. So, there is no deficiency committed by the opposite parties much less, the opposite parties acted as per the terms and conditions entered between the complainant and opposite parties. So, we found there is no deficiency in service on the part of the opposite parties and the opposite parties also paid what is legally entitled by the complainant. The finding of the District Commission is erroneous and based upon presumption. Hence, it is liable to be set aside.
11. Apart from that the complainant joined the policy after knowing the market risk and expected profit. In this connection The National Commission has held in the case "Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd. & Anr. reported in 2013(III) CPJ-203 (NC) as under:
"The investment made by the petitioner/complainant was to gain profit. Hence, it was invested for commercial purposes and, therefore, the petitioner/complainant is not a consumer under the opposite parties. The State 6 Commission Odisha in First Appeal no.162 of 2010 in the case of Smt. Abanti Kumari Sahoo .Vs. Bajaj Allianz Life Insurance Company Ltd., have held that the money of the petitioner/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 and accordingly, the State Commission dismissed the appeal. "Further In yet another case: The National Consumer Disputes Redressal Commission in Life Insurance Corporation Of ... .Vs. Anil P. Tadkalkar on 8 November, 1995 Equivalent citations: 1 (1996) CPJ 159 NC has held as follows:
"Moreover, we have not been able to understand how the Complainant can claim refund of all the premium paid by him during the period of the policies remained alive and the LIC had covered the risk. If during this period the Complainant had died (an event which did not occur) the insurer i.e. LIC would have had to pay the full amount due under the policies even though only some fraction of the premium would have been realized by that time by the insurer. Hence on cancelling the policies the Complainant is only entitled to the surrender values of the two policies. It is immaterial what circumstances prompted him to cancel the policies
12) As per the above verdict, we inferred that the Life Insurance Corporation is not a bank and the premium paid to the policy is not amounted to any deposit. The opposite party is doing a business of insurance which covers some risk and contingencies. For example during the period of premium paid if the assured died then the Life Insurance Corporation is liable to pay the insured sum. Such a coverage and risk factor involved in the contract of insurance. Moreover the, 7 Supreme Court in the case of, Vikram Greentech (I) Ltd..Vs. New India Assurance Co. Ltd.(2009) 5 SCC 599, while dealing with the contract of insurance held as under:-
An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberrima fides i.e. good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract. The four essentials of a contract of insurance are:
(i) the definition of the risk, (ii) the duration of the risk, (iii) the premium, and (iv) the amount of insurance. Since upon issuance of the insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of the risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer.
"The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract of substituting the terms which were not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy".
13. But, without considering this aspect, the District Forum ordered to refund the premium amount which is liable to be set aside. After all Insurance Companies made profit only from the premiums received by it by the lapsed policies. So, in every respect there is no deficiency in service committed by the opposite parties. Hence, the finding and award of the District Commission warrants our interventions, and we 8 hereby set aside the District Commission order and dismiss the complaint without any cost.
14. In the result, (1) The appeal is allowed.
(2) The order passed by the Learned District Commission, Thanjavur, made in C.C.No.39/2014, dated 12.01.2018 is hereby set aside and the complaint is dismissed.
(3) No order as to costs in this appeal.
(4) The Registry is directed to refund the mandatory deposit to
the appellants/opposite parties with accrued interest thereon duly discharged in favour of the appellants/opposite parties. Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 17th day of February 2023.
Sd/-xxxxxxxxx Sd/-xxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected