T.S.Mekala,

W/o.Late.T.K.Subramani @ Subramanian,

57, New Teachers Colony,

Thiru.Vi.Ka.Nagar,

Erode- 638 011. .. Complainant.

/Vs/;

1) AVIVA Life Insurance Co.Limited.,

Registered Office, II Floor,

Prakashdeep Building 7,Tolstoy Marg,

New Delhi 110 001.

2) AVIVA Life Insurance Co.Limited.,

AVIVA Towers, Sector Road,

Opp.: Golf Course, DLF Phase V,

Sector 43, Gurgoan-122003,

Hariyana.

3) AVIVA Life Insurance Co.Limited.,

Asirwad Towers, Plot No.22,

Old No.182, 3rd Floor,

Nungampakam High Road,

Chennai 600 034.

4) AVIVA Life Insurance Co.Limited.,

2nd Floor, Akil Plaza,

Perundurai Main Road,

Erode 638 011. .. Opposite parties.

This complaint came up for final hearing on 22.12.2009, before this Forum, in the presence of Thiru.S.Subramaniam, B.A, B.L., Advocate for the complainant, Opposite parties 1 to 4 having appeared through counsel Thiru.D.Chandrasekar, B.A., B.L., have been set exparte on 3.11.09 for non appearance and not filing counter, and upon hearing the arguments of complainant’s side

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and on perusal of the records and having stood for consideration till this day, this Forum passed the following :- ORDER

Complaint filed under section 12 of the Consumer Protection (Amendment) Act 2002. The averments in the complaint are as follows : - The 1st opposite party is Registered Office. The 2nd and 3rd opposite parties are Branches at Hariyana and Chennai. The 4th opposite party is the local Branch office. Complainant’s husband T.K.Subramani @ T.K.Subramanian insured his life with 4th opposite party by paying Rs.10,000/- as annual premium on 25.9.06. The 3rd opposite party issued the policy for the said amount. The insured paid the 2nd premium of Rs.1000/- on 22.12.07, by way of Axis Bank cheque vide No.313955 dated 22.12.07 to the 4th opposite party. The 4th opposite party received the premium amount paid by the insured, stating that though there is a marginal delay, it can be accepted as per the provision of the Insurance Company and presented the same for collection which has been honoured on 31.12.07. The insured died on 26.2.08 within the validity period of the policy. As per the terms and conditions of the policy issued by the 3rd opposite party, the complainant is entitled to claim the sum assured, Rs.1,90,000/- from the opposite parties. The complainant submitted the claim form along with the required documents with the original, to 4th opposite party on 18.4.04 and also on 22.4.08 respectively. The 4th opposite party accepted the same and forwarded to the 3rd opposite party. But the opposite parties did not give any reply to the complainant regarding her claim.

2) Therefore the complainant sent reminder to the 1st opposite party on 28.7.08, claiming the policy amount and the same was received on 11.8.08 by the 1st opposite party. But the opposite party did not give any reply to that letter also. Therefore, the complainant enquired the 4th opposite party in person, and the 4th opposite party, gave anti dated, 28.4.08 letter issued by the 2nd opposite party, only after receiving the letter dated 28.7.08. In the letter the 2nd opposite party has stated that the policy of the insured lapsed on 16.11.07 as premium was not deposited by the insured both within the due date and even during grace period which also ended 16.12.07. Subsequently, the 2nd opposite party issued another letter, dated 26.9.08, to the complainant stating that the

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policy has been lapsed on 25.9.07 itself, since the premium was not paid by the insured, both within the due date and even during the grace period, which ended on 25.10.07. The contents of both the letters contradicting each other with regard to the last date for the payment of the premium and further stated that the premium for renewal of the policy has been received by this office on 11.2.08 and the said premium amount has been returned back to insured by way of another cheque vide letter dated 14.2.08. It is obvious that the delay has been accepted by the 4th opposite party and received the payment by way of cheque. After receiving the cheque from the insured the 4th opposite party presented the same for collection an the same has been honoured on 31.12.07 for which the statement of accounts from 1.12.07 to 29.2.07, issued by the Axis Bank has been produced by the complainant. Hence it is clear that the policy of the insured was deliberately in force on 26.2.08.

3) The complainant, the nominee and wife of the insured deceased is entitled to receive Rs.1,90,000/- in case of the death of the policy holder. But the same has been denied by the opposite parties simply on the ground that the policy period has been lapsed. The complainant has put to untold mental agony since the opposite parties denied the sum assured and also failed to give any proper reply and thereby the complainant was left to wander here and there without any fruits for her claim which caused a great mental agony, for which the complainant is entitled to claim a sum of Rs.1,00,000/- as compensation. The service of the opposite parties to the complainant is defective. Therefore the complainant issued legal notice dated 22.12.08 demanding the policy amount of Rs.1,90,000/- from the opposite parties 1 and 2. The 1st opposite party received the said notice on 27.12.08. The 2nd opposite party received the notice on 23.12.08. The 2nd opposite party gave a reply with false allegations. Again the complainant issued another legal notice dated 16.2.09 along with the cheque issued by the 2nd opposite party for the sum of Rs.10,000/- towards premium amount paid by the insured. The copies of the same have been served on the opposite parties 3 and 4. The complainant did not receive acknowledgement card or returned postal cover from the 1st and 2ndopposite parties. The 2ndopposite party herein once again returned back the cheque

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for Rs.10,000/- to the complainant on 23.3.09 but this complainant has returned the said cheque to the 2nd opposite party on 24.3.09 demanding the entire claim amount. The opposite parties did not pay the sum assured so far and are simply denying without any reasonable excuse. Hence the complainant has presented this complaint before this Forum claiming Rs.1,90,000/- with interest at the rate of 12% from the date of complainant till realization from the opposite parties, towards policy amount and claiming Rs.1,00,000/- of compensation for mental agony and loss suffered by the complainant. The complainant prays to allow the complaint awarding the above said reliefs.

4) Opposite parties 1 to 4 entered appearance after receipt of notice on 11.6.09, through, Thiru. D.Chandrasekar, Advocate. Even after the statutory period of 45 days, the opposite parties did not file their counter till 10.11.09. On 10.11.09 the opposite parties 1 to 4 called absent and no representation for them and posted for appearance of opposite parties 1 to 4 and counter, giving last chance on 17.11.09. The counsel for the opposite parties 1 to 4 filed petition, requesting extension of time and allowed and posted to 30.11.09 giving last and final chance. Inspite of it, opposite parties 1 to 4 did not file their counter, opposite parties 1 to 4 called absent and set exparte.

5) On the basis of the complaint averments, and the documents produced by the complainant, the following issues have been framed for consideration :-

1) Whether there is any deficiency in service on the part of the opposite parties 1 to 4?

2) Whether the complainant is entitled to the reliefs as prayed for?

6) Complainant Tmt.T.S.Mekala filed her proof affidavit and recorded as P.W.1 and Exhibits A1 to A22 have been marked.

7) Issues 1 and 2 : The complainant’s husband viz., T.K.Subramani @ T.K.Subramanian has insured his life for Rs.1,90,000/-, on 25.9.06 paying an annual premium of Rs.10,000/- with the 4th opposite party. Original policy has been produced along with claim form on 22.4.08 to the 4th opposite party. With the endorsement of the 4th opposite party, the xerox copy of the policy has been marked as Exhibit A1. The policy Exhibit A1 has been issued by the 3rd opposite party on 25.9.06. The regular

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annual premium amount has been mentioned as Rs.10,000/-. The insured T.K.Subramani paid the 2nd premium of Rs.10,000/- on 22.12.2007 by way of Axis Bank cheque vide No.313955 dated 22.12.09 in favour of the 4th opposite party. The 4th opposite party received the premium amount paid by the insured, stating, though there is a marginal delay, its has been accepted as per the provisions of the insurance company and presented the cheque for collection and the same has been honoured on 31.12.07 in Axis Bank. The Statement of Accounts dated 21.7.08 has been marked as Exhibit A5. As per Exhibit A5 the cheque No.313955 has been encashed on 31.12.07. In the mean time, the insured T.K.Subramani died on 26.2.08. The xerox copy of the Death Certificate of insured T.K.Subramani has been marked as Exhibit A3. The xerox copy of the Legal Heir Certificate of insured T.K.Subramani has been marked as Exhibit A4. As per the Legal Heir Certificate, complainant Tmt.Mekala, Daughter Anisha and Mother of the insured Tmt.Pappathi has been shown as legal heirs. In Exhibit A1 policy itself, the complainant has been mentioned as nominee for the insured. The complainant submitted her claim form along with required documents with original policy to the 4th opposite party on 18.4.08 and again on 22.4.08. The 4th opposite party accepted the same and forwarded to the 3rd opposite party. But the opposite parties did not give any reply to the complainant, regarding her claim. Therefore the complainant sent reminder to the 1st opposite party on 28.7.08 claiming the policy amount with copy to the 4th opposite party. The letter dated 28.7.08 has been marked as Exhibit A6. In Exhibit A6 the claim form filed by the complainant on 22.4.08 has been shown in the 2nd reference. The 1st opposite party has received the letter Exhibit A6 on 11.8.08 and the acknowledgement card served to the 1st opposite party has been marked as Exhibit A7. The same has been served to the 4th opposite party on 2.8.08 and the acknowledgement card has been marked as Exhibit A8. Even after receipt of the Exhibit A6 notice, the opposite parties 1 and 4 neither replied nor complied with the notice.

8) Therefore the complainant approached the 4th opposite party in person and the 4th opposite party gave on anti dated, 28.4.08 letter issued by the 2nd opposite party to the complainant, after the receipt of the letter from the complainant Exhibit A6

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dated 28.7.08. Letter given by the 2nd opposite party dated 28.4.08 has been marked as Exhibit A12. In Exhibit A12 it has been stated that, the policy went in to lapsation on 16.11.07 as the premium was not deposited by the life assured both within the due date and even during grace period which also ended on 16.12.07. It has been further stated that in spite of the fact that the premium notice was sent to the deceased life assured on 17.8.07 and the life assured failed to deposit the premium in time which resulted in his policy getting lapsed. The xerox copy of the claim form submitted by the complainant on 18.4.08 to the 4th opposite party has been marked as Exhibit A2. Since there was no response from the opposite parties regarding the policy claim of her husband deceased T.K.Subramani. The opposite parties did not reply to the complainant immediately. Hence the complainant has sent a reminder letter dated 28.7.08 to the 1st opposite party with the copy to the 4th opposite party and the same has been received by the 1st and 4th opposite parties as per Exhibit A7 and A8. Till then the opposite parties did not come forward to pay the policy amount of Rs.1,90,000/- to the complainant. Even though the original policy, Death Certificate of the insured and Legal Heir Certificate of the deceased T.K.Subramani were submitted along with the claim form. Hence the complainant has sent a reminder letter as per Exhibit A6 dated 28.7.08 and the same has been received by the 1st and 2nd opposite parties. Till then there was no reply from the opposite parties regarding the claim of the complainant. Only after receipt of the notice dated 28.7.08 as per Exhibit A6 when the complainant approached the 4th opposite party in person, Exhibit A12 anti date letter dated 28.4.08 has been handed over to the complainant, in order to get over the delay. Exhibit A12 has been handed over by the 4th opposite party to the complainant in person the dated 28.4.08 of the 2ndopposite party.

9) The complainant has sent another reminder letter dated 6.9.08 to the 1st opposite party with copy to the 4th opposite party and the copy of the letter has been marked as Exhibit A9. The 1st opposite party received the same on 10.9.08 and the 4th opposite party received the same on 8.9.08 and the acknowledgement cards to that effect has been marked as Exhibit A10 and A11. After receipt of the letter of the complainant

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Exhibit A9 dated 6.9.08, the 3rd opposite party has sent a letter dated 26.9.08 to the complainant and the same has been marked as Exhibit A13. Exhibit A13 reads,

“The Policy went into Lapsation w.e.f. September 25, 2007 as the premium was not deposited by the deceased Life Assured both within the due date and even during grace period which also ended on October 25, 2007.

The renewal premium was received by us on February 11, 2008 but the same was returned to the deceased life assured vide our letter dated February 14, 2008 (copy enclosed) as the outstanding information was not received by us.

We have noticed that the said premium refund cheque has not been encashed till date. Please find enclosed new cheque no.213153 dated September 24, 2008 drawn on Axis Bank towards the refund of premium.”

The complainant has clearly stated that a 2nd premium of Rs.10,000/- was paid by way of Axis Bank cheque vide No.313955 dated 22.12.07 to the 4thopposite party. While receiving the premium amount by way of cheque the 4thopposite party has stated that there is a marginal delay it can be accepted as per the provisions of the insurance company. After receipt of the cheque the same has been presented for collection in Axis Bank and the same has been honoured on 31.12.07 as per the statement of accounts Ex. A5 dated 21.7.08. But in Ex. A13 it has been stated that the premium was received on 11.2.08 and the same was returned to the life assured as per letter dated 14.2.08. But as per the complaint the cheque in favour of the 4th opposite party has been handed over to the 4th opposite party on 22.12.07 and the same has been encashed on 31.12.07 itself. If the policy has already been lapsed on 25.7.07, the 4thopposite party should not have accepted the cheque which has been honoured on 31.12.07 itself. The cheque was not returned by the opposite party. Hence the anti dated letter dated 28.4.08 has been given by the 2ndopposite party directly to the complainant when the complainant approached the 4thopposite party to enquire about her claim. The opposite parties also appeared through their counsel, did not file counter till 30.11.09 and has been set exparte for non appearance of the opposite parties 1 to 4 and no representation. The opposite parties did

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not come forward to set aside the exparte order dated 31.11.09 till date. Hence the opposite party miserably failed to establish their case as per Exhibit A12 and A13. The advocate notice issued by the complainant to the opposite parties 1 and 2 dated 22.12.08 has been marked as Exhibit A14 with copy to the 4th opposite party. The acknowledgement cards for the receipt of the same by the opposite parties 1 and 2 dated 27.12.08 and 23.12.08 has been marked as Exhibits A15 and A16 respectively. The 2nd opposite party has given a reply dated 27.1.09 to the complainant’s counsel and the same has been marked as Exhibit A17. In Exhibit A17 it has been stated that, the Company was in receipt of the premium on 28.12.07 but the same was returned vide letter dated 14.2.08 with refund cheque No.178066 drawn on Axis Bank. In Exhibit A17 it has been stated that, the premium amount has been encashed by the 4th opposite party on 31.12.07. Hence the refund of the premium amount by the company on 28.12.07 is not acceptable. The Insurance Company has been set exparte for not filing counter to establish their defence case. After receipt of the letter Exhibit A17 from the 2nd opposite party , the complainant issued reply notice dated 16.2.09, the office copy of the same has been marked as Exhibit A18. The acknowledgement cards dated 18.2.09 and 17.2.09 for the receipt of the notice by the opposite parties 3 and 4 have been marked as Exhibit A19 and A20. After receipt of the letter Exhibit A18, the 2nd opposite party has given another letter dated 24.2.09 to the complainant and the same has been marked as Exhibit A21. Along with Exhibit A21 cheque No.213153 dated 24.9.08 drawn on Axis Bank towards the premium has been sent to the complainant. The complainant has returned the cheque with his letter dated 24.3.09 to the 2nd opposite party. The Postal receipt and the letter copy have been marked as Exhibit A22.

10) The opposite parties having entered appearance through their counsel in spite of several opportunities as last and final chance given, failed to file their counter stating their defence case to repudiate the claim of the complainant. Hence the complainant as a nominee of the insured deceased T.K.Subramani is entitled to receive the life assured amount of Rs.1,90,000/- with interest at the rate of 9% p.a. from the date of complaint till the date of realization, the complainant has claimed Rs.1,00,000/- as compensation for her mental agony and loss, which is on the higher side. We come to the

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conclusion, that compensation of Rs.10,000/- is enough to the mental agony suffered by the complainant.

11) In the result, the complaint is allowed, directing the opposite parties 1 to 4 jointly and severally, to pay the policy amount of Rs.1,90,000/- to the complainant with 9% interest from the date of complaint, till the date of realization, to pay a compensation of Rs.10,000/- towards mental agony suffered by the complainant and to pay Rs.2500/- towards cost of the proceedings, within two months from the date of this order.

Dictated to the Assistant/Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum this the 24th day of December 2009.

Complaint Case No.:509 of 2009
Date of Inst: 15.04.2009

Date of Decision:22.01.2010

Chander Kanta Dhawan House No.1638/1, Sector 40-B, Chandigarh-160036.

---Complainant
V E R S U S
1. Indus-Ind Bank Ltd., SCO No.53-54, Sector 8-C, Madhya Marg, Chandigarh-160018 through its Manager/Dealing-in-Charge.
2. Aviva Life Insurance Company India Ltd., Aviva Tower, Sector Road, Opp. Golf Course, DLF-Phase-V, Sector 43, Gurgaon-122003 though its Manager/Dealing Incharge.
---Opposite Parties



QUORUM SHRI LAKSHMAN SHARMA PRESIDENT

SHRI ASHOK RAJ BHANDARI MEMBER

PRESENT: Complainant in person.

Sh.Arun Dogra, Adv. for OP-2.

OP-1 Exparte.

---



PER LAKSHMAN SHARMA, PRESIDENT

Smt.Chander Kanta Dhawan has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to refund a sum of Rs.7919/- along with interest.

2. The admitted facts of the case are that the complainant obtained pension plus unit linked policy for a sum of Rs.1 lac. She filled the proposal form. On the basis of the said proposal form, the Pension Plus Unit Linked Policy No.APG 2161855 dated 21.09.2008 was issued to her. The said policy was sent to her on 14.09.2008 along with the terms and conditions. The complainant was given an option to reconsider the policy. She was given right to cancel the policy within the free look period of 15 days in case she was not in agreement with the terms and conditions of the policy. The complainant opted to cancel the insurance policy. So a sum of Rs.92081/- was refunded to her on 01.10.2008.

The case of the complainant is that at time of filling up the proposal form, she was told that in case, she opted to cancel the policy within 15 days of its issuance, only a sum of Rs.200/- will be deducted and the remaining amount be paid to her. According to the complainant, the deduction of Rs.7919/- instead of Rs.200/-, amounts to deficiency in service. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3. In the reply filed by OP-2, it has been admitted that the complainant has right to reconsider the terms and conditions of the insurance policy and has right to opt for cancellation of the policy in case she was in disagreement with the terms and conditions of the insurance policy. It was also made clear to the complainant that in case she opted to cancel the policy, the premium will be refunded to her after adjusting for adverse movement in unit prices less charges incurred on account of stamp duty and medical expenses, if any. The case of OPs is that a sum of Rs.92081/- was refunded to the complainant. The break up of the said amount is as under:-

“Rs.92,081/- = Rs.8,224 (Fund Value) + Rs.10,000/- (Unallocated Premium) + Rs.57/- (Adjusted charges)- Rs.200/- (Stamp Duty).”

According to OP, the amount of Rs.92,081/- has been rightly refunded as per IRDA rules and regulations and terms and conditions of the insurance policy. In these circumstances, there is no deficiency in service on their part and the complaint deserves dismissal.

4. We have heard the complainant in person and learned counsel for the OP No.2 and have gone through the entire record including documents, Annexures, affidavits etc.

5. In the letter under the heading “Right to Reconsider” (Annexure ‘A’), it has been mentioned as under:-

“Dear Mrs.

Your application for life insurance with Aviva Life Insurance has been accepted

You have 15 days from the date of receipt in which to reconsider your application.

Do you understand what your policy will do for you?

Before you signed the proposal you would have received a key features document and in case you chose to use our complimentary Financial Health Check Service, you would have received personalized details of how the plan will work for you. If there is anything, which is still unclear, please contact our Customer Help Line on 18000-180-2266/0124-2709046 or your financial planning adviser.

If you do not agree with any of the terms and conditions of the policy what should you do?

Aviva Life Insurance will repay you the Fund Value on the date of cancellation plus the un-allocated premium(if any) plus any charge deducted by cancellation of units, after deducting a proportionate risk charges till the date of cancellation and expenses incurred on your medical examination and stamp duty. In case the allocation rate under this policy is more than 100% then Aviva will also deduct the amount of extra allocation.

If you wish to proceed with the policy, what should you do?

Ignore this notice.”

6. From the letter mentioned above, it is apparent that the amount of Rs.92,081/- has been refunded to the complainant after adjusting for adverse movement in unit prices less charges incurred on account of stamp duty and medical expenses, if any. Face value of Rs.90,000/- on the date of its refund was Rs.82,224/-. In addition to this, the complainant was given Rs.10000/- on account of unallocated premium and Rs.57/- on account of adjusted charges whereas a sum of Rs.200/- has been deducted being the price of the stamp duty. Thus a total a sum of Rs.92,081/- was sent to the complainant.

7. To our mind, the amount of Rs.7919/- has been rightly deducted as per the terms and conditions of the insurance policy and as per the rules and regulations of IRDA.

8. Thus, the complainant has failed to make out a case of deficiency in service on the part of OPs. Hence, this complaint is dismissed with no order as to costs. The parties are left to bear their own costs.

9. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.