Order-19.
Date-12/04/2018.
Shri Anupam Bhattacharyya, President.
The instant complaint has been filed by the complainants u/s.12 of the C.P. Act, 1986 praying for direction upon the OP Insurance Company to pay the premium amount of the policy of Rs.5,99,999/- along with 9 percent p.a. interest and compensation of Rs.3,00,000/- for harassment, mental pain and agony and for unfair trade practice and Litigation cost of Rs.1,00,000/-.
The complainants’ case, in brief, is that the complainant no.1 is a retired employee and is getting pension through ICICI Bank and being convinced by the OP3 trusted him and on his oral assurance he issued two cheques amounting to Rs.99,999/- and Rs.5,00,000/- for two policies, by premature encashing the Fixed deposits, the said two cheques were encashed. After a few days one person came to his house and fled away after handing over the said two policies. The said policies have to be paid up to eighteen years and the premium is Rs.6,00,000/- per year which is impossible. The signatures of the said two policies were obtained in blank form. The complainant no.1 is a retired and pension holder and his annual income is Rs.3,00,000/- and from his income he has to maintain his wife and minor school going daughter. The OPs induced complainants with the fraudulent intention and got all the forms filled up according to their choice and whims and compelled them to make payment of premiums. If the complainants knew these facts that each and every year they have to pay such excessive amount of premiums then they would reject the said proposal. OP by misleading/misrepresenting the facts and circumstances allured the complainant to open those policies by an unfair trade practice. Hence, the instant complaint case.
The written version filed by the OPs 1 and 2, in brief, is that after duly ascertaining and agreeing the policy terms and conditions complainant signed the application form. Complainants received verification calls and duly approved during the verification call about their understanding of the terms and conditions of the policy. Complainants were further informed about the option of submitting the policies so issued within the free-look period but complainants never approached the OPs1 and 2 for cancelling the policies. The complaint filed by the complainant is gross misuse of the process of law and the same is without any cause of action and these OPs prayed for dismissal of the case. Hence, the written version of the OPs1 and 2.
The written version filed by OP3, in brief, is that after receipt of duly filled up and signed proposal form together with premium cheque from the complainant, OP3 forwarded the same to the concerned Insurance Company and thereafter further steps were taken by the Insurance company regarding issuance of policy and sending the original policy documents to the complainant. This OP has no authority regarding processing, issuance or sending of original policy documents. Complainants have not come up before this Forum with clean hands and have no cause of action against this OP. This OP has prayed for dismissal of the case. Hence, the written version of the OP3.
Considering the pleading of both sides the following points have been raised.
Points for Decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the case?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- What other relief/reliefs the complainant is entitled to get?
Decision with Reasons
Point Nos.1 to 5 . All the points are taken up together for the brevity of discussion and convenience.
The instant complaint is for payment of the policy premium of Rs.5,99,999/- along with 9 percent p.a. interest and compensation of Rs.3,00,000/- and Litigation cost of Rs.1,00,000/-.
The complainant’s main case is that complainant was convinced by the OP’s men to sign and issue four cheques one of Rs.99,999/- and Rs.5,00,000/- for two single premium policies; one for the complainant no.1 and other for complainant no.2. Long after verification made by the complainant, complainant received two policies where they found all the descriptions made by the OP are fake and untrue and the said policy premiums have to be paid up to eighteen years which is an impossible event. OP illegally by misrepresentation and by false inducement and unfair trade practice compelled the complainant to sign the proposal form and for that he has suffered irreparable loss.
On the other hand, OP3’s main case is that after receipt of duly filled up and signed proposal understanding the terms and conditions of the policy form together with premium cheque from the complainant, OP3 forwarded the same to the concerned Insurance Company and, thereafter, further steps are taken by the Insurance company/OPs 1 and 2 regarding issuance of policy and sending of original documents to the complainant. OPs 1 and 2 received the application and informed the complainant about the option of submitting the policies so issued within the free-look period but complainants never approached the OPs1 and 2 for cancellation of the policies. Complaint filed by the complainant is gross misuse of the process of law and the same is without any cause of action and these OPs prayed for dismissal of the case
To prove the case both the parties including OP3 have adduced Evidence on Affidavit and they have filed questionnaires and replies vis-à-vis along with relevant documents in support of their respective case.
In this case, the Ld. Lawyer for the OPs 1 and 2 in the BNA as well as during course of hearing argument has advanced argument that the complainant got the policy for investment purpose in the equity market and to that effect he has referred a reported decision in Ram Aggarwal vs. Bajaj Allianz Life Insurance Co. Ltd. & Anr. III 2013 CPJ 203(NC), the Ld. National Commission where has been held has held that “The investment made by the complainant was to gain profit and it was invested for commercial purposes and for that the complainant is not a consumer under the OPs.
Both the complainants applied for cancellation of the policies and refund of Rs.5,99,999/- towards premium of two policies.
The Ld. Lawyer for the complainant has advanced argument that this is a case of mis-selling and by misrepresentation the complainant retired person has been convinced to buy the policies and they put the signature in the blank form and in this way, they were cheated.
He has also advanced argument reiterating that the complainant being retired person having pension of Rs.3 lacs annually is not possible to pay the premium of Rs.5,99,999/- after maintaining his family.
On the other hand, the Ld. Lawyer for the OP Insurance Company has advanced argument that there is no such case of misrepresentation, coercion and inducement in the petition of complaint and without pleading the same in the complaint petition the complainant cannot advance such argument.
He has also advanced argument that in this case no such presumption can be drawn on the basis that the complainant is a retired person. He has put his signature understanding the same and he has not availed the benefit of freelook period.
He has further advanced argument that there is no specific case as to forgery of signature and also there is no prayer from the side of the complainant for Handwriting Expert and that being so, there is no scope to consider the case of the complainant as to cheating or misrepresentation.
In this particular case considering the facts and circumstances from the materials on record adduced from all sides we find that this is a case for mis-selling and there is a question of impossibility to continue the payment of such huge amount by a retired person whose annual income is Rs.3 lakhs where the premium is to be paid is Rs.5,99,999/- and for that in this case there is only prayer to get refund of the premium deposited along with compensation for mis-sale of policies and for that we can safely conclude that this is not a case of mere investment of equity share and if that be so, they could have continue the same and question of refund would not arise.
Considering the above facts and circumstances we can safely conclude that the complainant is entitled to get refund of the premium deposited along with interest at the rate of.7 percent p.a. from the date of filing of this case till realization.
According to settled principle the interest being allowed, the complainant is not entitled to get any further compensation. Complainant is entitled to get litigation cost of Rs.2,000/-.
On the basis of the above discussion we find that all the points are disposed of in favour of the complainant in part and, as such, the complainant is entitled to get the refund of premium of Rs.5,99,999/- along with interest at the rate of7 percent p.a. from the date of filing of this case till realization and litigation cost of Rs.2,000/-.
Hence,
Ordered
That the instant case no.221 of 2017 be and the same is allowed in part on contest against the OPs.
OPs are jointly and severally liable to pay the awarded amount.
The OPs are directed to pay Rs.5,99,999/- along with interest at the rate of7 percent p.a. from the date of filing of this case till realization and litigation cost of Rs.2,000/- within 30 days from the date of this order, in default, the OPs to pay fine at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.
