CC No.1029/2018                             Date of filing:15.06.2018

                                                   Date of Disposal:23.07.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

               DATED THIS THE 23^rd DAY OF JULY 2020              

CONSUMER COMPLAINT NO.1029/2018

PRESENT:

Sri.   Venkatasudarshan  D.R.  B.Com,LL.M.,   ….  PRESIDENT

Smt.  L.Mamatha, B.A., (Law), LL.B.                ….       MEMBER

Sri.  M.B. Seena, B.A., (Law), LL.B.           ….       MEMBER

COMPLAINANTS:

Sri.T.M.Gautham Reddy

S/o Krishna Reddy,

Aged about 66 Years,

R/at Bearys Lake Side Habitat,

Flat No.0013, No.18,

ShanthivanaKodigehalli,

Sahakaranagar,

Bengaluru-560092.

(Complainant by Murthy Associates,  Advocate)          

V/s

OPPOSITE PARTIES:

1. Bharti Axa Life Insurance Company Limited

Registered office Unit 601 and 602,

Off Western Express Highway,

Goregaon(E), Mumbai-400063,

Rep by its managing Director and CEO.

2. BhartiAxa Life Insurance Company

Limited Branch Office,

No.15, Upper Ground Floor,

Corporate Court, Infantry Road,

Behind Medinova Diagnostic,

Bengaluru-560001,

Karnataka,

India Rep.by its Branch and Regional Head.

(Opposite Partyby Sri. Kapil Dixit, Advocate)

= = = = = = = = = = = =                               

Written by Sri Venkatasudarshan D.R., President

            ******

//ORDERS ON MERITS//

This complaint filed by Sri.Gautham Reddy T.N Under Section 12 of the Consumer Protection Act 1986 against M/s Bharthi Axa Life Insurance Company Limited and another, praying for a direction to the OP Parties to refund a sum of Rs.2,07,000/- being a premium amount paid by the complainant on the policy bearing No.5012173158 together with interest at 18% p.a from the date of collection up to the date of realization or in the alternative to reinstate the lapsed policy after collecting penalty or any other charges and to pay to the tune of a sum of Rs.50,000/- towards damages and compensation.

2. The brief facts of the case of the complainant as per the complaint is that, the complainant had purchased the Life Insurance Policy with the 1^st Op for the sum assured being Rs.10,93,953/- and the policy premium was to be paid annually for 5 continuous years commencing from 28.06.2014, till 28.06.2018.The annual premium was Rs.2,07,000/-The complainant paid the premium on 29.06.2014 and the policy came to be issued in his favor.The complainant had also underwent medical examination of himself prior to the issuance of the policy as per the directions of the 1^stOP.

3. It is also further case of the complainant that due to oversight he could not pay the annual premium for the 2^ndyear.However, when the 3^rdpremium payment was due, the complainant volunteered to pay the 2^ndpremium along with the penalty or interest if payable. The complainant paid a sum of Rs.2,07,095/- as premium which was initially accepted by the 1^st Op.However later due to some medical reports which was not disclosed, the 1^st OP has unilaterally terminated the policy and refunded the sum of Rs.2,07,095/- which was paid towards 3^rd premium without diverging any other details in that regard.

4. It is further case of the complainant that he started demanding the 2^nd OP to give reason for the illegal rejection of the policy or alternatively for a full refund of the 1^st premium amount or sought conversion to a single premium policy.The relevant email correspondences are dt.06.06.2016, 14.07.2016, 15.07.2016, 19.09.2016 and 14.01.2017.But there was no response from the OP. However on 16.01.2017 the 1^st OP replied that the OP would revert back to the complainant within 4 working days and reply to the query raised.

5. It is further case of the complainant that the Op did not send any proper or positive response or redressed the grievance of the complainant. The complainant approached IRDA Ombudsman, Bengaluru through a written complaint on 03.03.2017. On the receipt of the complainant, the Ombudsman office replied on 17.03.2017 that his complaint cannot be considered.According to the complainant, this was an acute deficiency in service on the part of the Ops.They have not even responded to the Legal Notice sent by the complainant, though it was served.Hence the complaint.

6. In this case, there are 2 Ops.After admitting the complaint, the notices were ordered to be issued to the Ops.Both the Ops entered appearance on 27.08.2018 and also filed version.

7. In the common version filed, Ops contend that the complaint as brought is not maintainable. That there is no consumer dispute. That this Forum has no jurisdiction.

8. It is the contention of the Ops that as prescribed in Clause-4(1) and 6(2) of IRDA (Protection of Policy Holder’s interest) Regulations 2002 the complainant was given an option to either receive or cancel the policy within the Free Look Period.The complainant had an option to seek cancellation of the policy in case he was not satisfied within 15 days from the date of receipt of the policy. It is contended that though the said condition relating to 15 days Free Look Period is incorporated in the original policy,the complainant never exercised his option either to withdraw or have the policy cancelled.Therefore, it is contended that once 15 days cooling off period is over the policy document become binding on both parties and the contents therein are also binding on both of them.It is contended that the reliefs sought by the complainant is beyond the jurisdiction of this Forum.The complainant was required to pay the premium successively for a period of 5 years.But the complainant paid premium only for one year and the 2^ndpremium remained unpaid.The complainant sent to the 2^nd premium by way of cheque for a sum of Rs.2,04,308/- dt.31.03.2016.But the complainant failed in the treadmill test and was having high blood pressure.Therefore, the 2^nd premium amount was refunded to the complainant on 17.05.2016 along with a covering letter which was encashed by the complainant.For all these reasons, it is contended that there is no deficiency of service on the part of the Ops and therefore the complaint is liable to be dismissed.Hence prays for dismissal of the complaint.

9. When the case was set down for recording evidence, the complainant filed his affidavit evidence on 11.12.2018.In spite of granting sufficient time, the Ops did not lead evidence.

10. The complainant has filed written arguments, oral arguments was not submitted by either parties.Ops have not even submitted written arguments.

11. The points that arise for our determination are:-

(1)Whether the complainant proves that there is deficiency in service on the part of the Ops?

(2)If so what is the relief to which the Complainant is entitle ?

12.    Our findings on the above points are:-

Point No.1:-Negative

Point No.2:-Does not arise for consideration

Point No.3:-As per the final order for the following

                           : REASONS :

13. POINT NO.1:- This complaint is filed by Sri.T.N.Gautham Reddy Under Section 12 of the Consumer Protection Act 1986 against M/s Bharti Axa Life Insurance Company Limited and another praying for a direction to the opposite parties to pay a sum of Rs.2,07,000/- being the premium amount paid in respect of Policy No.5012173158 together with interest at 18% p.a from the date of collection upto the date of realization or in the alternative to reinstate the lapsed policy after collecting such amount as may be payable towards penalty interest or other charges and to pay a further sum of Rs.50,000/- towards incidental charges together with damages and compensation. 

14. It is the case of the complainant that there is deficiency in service on the part of the Ops which they refused to correct and therefore the present complaint is filed.It is needless to say that the burden of proving that there was deficiency in service is on the part of the Ops is on the complainant.In order to constitute deficiency in service there must be established willful fault, imperfection, shortcoming or in adequacy in performance by the Ops.

15. The admitted facts of this case are that the complainant had purchased a Life Insurance Policy called Bharti Axa Life flexi save for an assured sum of Rs.10,93,953/-from the opposite parties..This policy was for a term of 20 years.As per the terms of the policy, the premium amount was payable only for five years annually commencing from 28.06.2014 till 28.06.2018.The annual premium being Rs.2,07,000/-.It is also not in dispute that the complainant had paid the 1^stpremium and purchased the policy.The relevant documents produced by the complainant himself are at Annexure-A to C which includes the 1^stpremium paid receipt and the policy document together with terms and conditions. It is also not in dispute that the complainant did not make payment of the 2^ndAnnual Premium which was payable on 28.06.2015.It is the case of the complainant that he somehow missed the payment of the 2^ndAnnual Premium. It is also further stated in the complaint and in the evidence that the complainant volunteered to make payment of the 2^ndAnnual Premium along with any delayed interest or penalty charges and sent the payment of Rs.2,07,095/.-It is also the case of the complainant that initially the 1^st OP accepted the premium and later terminated the policy unilaterally and refunded back only the 3^rd premium amount of Rs.2,07,095/-.without disclosing any reason.It is the case of the complainant that in spite of several requests, the Ops did not refund the balance annual Premium amount which was paid by the complainant towards the policy belatedly.

16. The Ops in their version have admitted that the receipt of Rs.2,07,095/- and have stated that the said amount was refunded to the complainant when the policy was terminated as it had lapsed.The OP does not admit the receipt of any other premium other than this Rs.2,07,095/- which was paid by the complainant only subsequent to the purchase of the policy.Thereby, the Ops have denied its liability to pay Rs.2,07,095/- which was said to be towards 2^ndAnnual Premium.As already stated above, the burden of proving the payment of two annual premiums of Rs.2.07,095/- each towards the 2^nd and 3^rdAnnual Premium after the date of purchase of the policy is on the complainant.It is more so when the Ops have denied their liability to pay Rs.2,07,000/- which is claimed by the complainant.No doubt, in this case the Ops have not let in any evidence by way of affidavit or otherwise, though sufficient members were granted.However, that does not absolve the liability or the burden on the complainant to prove or establish the payment of Rs.2,07,000/- which he is now claiming.This burden becomes more heavy because subsequent to the purchase of the policy whatever the amount the complainant had paid (as stated in Para-5 of the complaint) has been refunded by the opposite parties to the complainant while terminating the policy,

17. In this case, the complainant has not given the relevant date on which he claimed to have made any other payment other than only one payment made after the purchase of the policy which has been refunded. So also he also does not mention either in the complaint or in the evidence about the date on which he received the refund of Rs.2,07,095/-, though the complainant has admitted in clear terms the receipt of the said amount in Para-5 of the complaint.Apart from this, the complainant has not produced any document to show that he has made payment of Rs.2,07,000/- in addition to the payment of Rs.2,07,095/- after the date of purchase of the policy.If really the complainant has made payment of two premiums subsequent to the purchase of the policy, one towards 3^rdAnnual Premium and the other towards 2^ndAnnual Premium, nothing prevented him from producing the document to establish the same.The relevant documents which the complainant could have produced is the entry in the passbook of his Bank Account showing the realization of two cheques (if at all issued separately).For the reasons best known to the complainant he has not produced that document.He could have also produced a Statement of Account obtained from the Bank.That also has not been produced.Therefore, in the absence of production of such material document to substantiate case of the complainant, it has to be held that the complainant has not made payment of any amount other than a sum of Rs.2,07,095/- subsequent to the purchase of the policy which amount has been promptly refunded by the Ops when the policy was terminated.

18. If we perused the version, it has been clearly stated from Para-4 to 6 that the 2^ndAnnual Premium fell due on 30.06.2015.The complainant approached the Company in March 2016 (after 9 months) with a request to reinstate the policy and paid the 2^ndAnnual Premium of Rs.2,04,308/- by means of a cheque bearing No.32889 dt.31.03.2016.Except that no other payment was made by the complainant.It is also further stated that the said sum of Rs.2,04,308/- has been refunded when the policy was terminated.All these aspects if read together clearly show that the claim made by the complainant for refund of Rs.2,07,000/- from the Ops is baseless.Hence cannot be granted.

19.Further in the affidavit evidence the complainant has stated that he has not been refunded the 1^st annual premium in spite requests made on several occasions through email. This claim is totally in admissible. This is because the 1^st year premium when collected and policy is issued, whatever the benefits including risk benefits if any payable to the complainants or beneficiaries during that 1^st year, the opposite party was liable. That 1^st year when expired the liability if any of the opposite parties under the policy would continue only if second year premium is paid by the complainant and policy is kept intact. The policy in this case was terminated because the complainant did not make payment second annual premium in time and thus allowed it to lapse and for renewal he did not succeed in medical test. Under such circumstances the complainant cannot seek refund of 1^st year premium that too when that 1^st year expired long back merely because the policy was terminated.

20.Coming to the alternative prayer made in the complaint.The complainant has sought for reinstatement of the lapsed policy.It is needless to say that the policy was lapsed on account of the fault on the part of the complainant.If we go through the terms and conditions of the policy document we find at serial No.3 of Schedule-II containing terms and conditions which deals with “Lapsation of Policy” it is clearly stated that if the premium is not paid on the due date or during the grace period of 30 days the policy shall lapse and such Lapsation extinguish all the rights and benefits under the policy.The perusal of the version shows that the OP had sent renewal notices to the complainant on 01.06.2015, 06.07.2015.Even then the complainant did not bother to pay the 2^ndAnnual Premium and keep the policy intact. Finally when the premium was not paid for about 9 months i.e., for 270 days as per the terms of the policy the reinstatement could be only on the declaration of good health.The documents produced by the complainant themselves show that the complainant was not shown to be of good health when he was medically examined for the purpose of considering his claim for reinstatement and therefore the instatement was not done.The complainant who claims that his health condition was good and the health report based on which the Ops have terminated the policy is not on proper basis, could have produced documents to show that the medical record which was the basis for the OPs to terminate the policy or refuse reinstatement was not correct.Unfortunately, the complainant on whom such burden lies has not produced any document.Therefore, we have no other alternative but to negative the claim of the complainant also in so far as giving direction to the OPs to reinstate the policy is concerned.

21.From the discussion made above, we are of the considered view that the complainant has failed to prove that there was deficiency of service on the part of the Ops.Accordingly, we answer point No.1 in negative and against the complainant.

-:ORDER:-

The complaint filed by the complainant Sri.T.N.Gautham Reddy u/s 12 of the Consumer Protection Act against M/s Bharti Life Insurance is dismissed.  No order as to costs.

           Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on 23^rd day of JULY 2020)                                            

(M.B. Seena)       (L.Mamatha)    (D.R. Venkatasudarshan)                           Member                   Member                      President  

Witness examined for the complainant side:

Sri.T.N.Gautaam Reddy, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

• Nil -

List of documents filed by the complainant:

1. Copy of Proposal Form.
2. Copy of benefit illustration.
3. Copy of terms and conditions.
4. Copy of renewal notice and renewal reminder notice.
5. Copy of Declaration of Good Health and reinstatement Quotation.
6. Copy of re-instatement decline letter.
7. Copy of medical report.
8. Copy of reply dt.14.06.2018 to the legal notice sent by the Complainant.
9. Xerox copy of the payment acknowledgement.
10. Xerox copy of the illustration of benefits for Bharti Axa Life Flexi Save dt.20.06.2014.
11. Xerox copy of the life insurance policy vide bearing No.5012173158, dt.30.06.2014 issued by Bharti Axa Life Insurance Company in favour of Complainant.
12. Copies of the emails dt.06.06.2016, 14.07.2016, 15.07.2016, 19.09.2016, 14.01.2017 and 16.01.2017.
13. Office copy of the insurance Ombudsman vide their reply dt.17.03.2017.
14. Office copy of the legal notice dt.11.05.2018 along with postal receipts, served postal acknowledgment and Track Consignment print out.

List of documents filed by the opponent:

 (M.B. Seena)       (L.Mamatha)    (D.R. Venkatasudarshan)                           Member                   Member                      President