Delhi

New Delhi

CC/64/2016

Vijay Khatri - Complainant(s)

Versus

Kotak Life Insurance. - Opp.Party(s)

24 Sep 2022

ORDER

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.64/2016                                     

In the matter of:

 

Mrs. Vijay Khatri

R/o L-7, Kailash Colony

New Delhi-110048

IInd Floor, Back Side Flat                                ....COMPLAINANT

 

Versus

 

Kotak Life Insurance

Jeewan Deep Building, Kasturba Gandhi Marg,

Connaught Place, New Delhi-110001….. OPPOSITE PARTY

 

 

Quorum:

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmed, Member

          Ms. Adarsh Nain, Member

 

                                                                                                                                        Dated Institution: 28.01.2016                                                                                                                                                                                Date of Order   : 24.09.2022

O R D E R

BARIQ AHMED, MEMBER

1. The present complainant has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) alleging deficiency of service. Briefly stated the facts of the case are:-
2. It is stated that complainant is the policy holder of proposal no.01383316 of the insurance policy and paid of sum of Rs.50,000/- as a premium for one time only. The complainant has not received the insurance policy. It is stated that complainant received an envelope containing a cheque bearing no. 277255 dated 29.11.2011 for Rs. 5,000/-. It is alleged by the complainant that OP has not been paid the amount as assured but a sum of Rs.45,000/- was deducted from the premium paid of Rs.50,000/-. It is prayed that OP be directed to refund the principal amount along with the interest.
3. Reply was filed by OP stated the complaint is not maintainable u/s 24-A of the Consumer Protection Act, being bard by time, as the policy was terminated in the year 2011 and the case was filed on 28.01.2016 and the complainant has not raised any consumer dispute. It is stated that the complainant has sought for a Kotak Smart Advantage Plan being a Unit Linked Investment Plan (in-short ULIP) from OP. It is further stated that subject insurance policy has been issued after the receipt of duly filed and signed proposal for as well as the subscription premium received from the complainant.  The complainant never approached the OP with any request for cancellation within the freelook period and have paid only one initial premium and thereafter no premium was paid, therefore, the policy lapsed and was later on foreclosed after the expiry of the revival period of 2 years from the date of first unpaid premium as per the terms and conditions of the policy. It is stated that the policy terms and condition along with the company of the proposal for was sent to the complainant on 22.11.2008 through BSA courier and the same was received by the complainant on 24.11.2008. It is stated that since the complainant failed to pay the renewal premium under the policy, the policy went into lapse mode. The complainant was sent intimation on 17.11.2009 informing the complainant that due to non-receipt of renewal premium due on 17.11.2009 the policy has lapsed and further requested the complainant to re-instant the policy within 2 years i.e. on or before 16.11.2011 failing which the policy terminated on 16.11.2011 and the same was informed to the complainant vide letter dated 29.11.2011, the OP was also send the surrender amount of Rs. 5,000/- through cheque.
4. Vide order dated 04.02.2022, the opportunity to file CE was closed as complainant failed to file its evidence despite several opportunities being granted.
5. Complainant has filed the present complaint alleging deficiency in service but evidence was not led by complainant. The onus of proof of deficiency of service was on the complainant only, after complainant was able to discharge its initial onus the burden would shift on OP.
6.  It has been held by Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 that the initial burden of proof of deficiency in service was on complainant. The burden would shift on OP only after complainant discharged its initial burden.

It is also to be noted that Hon’ble Supreme Court also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. The relevant extract of the judgment is as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondent. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produced any evidence. in law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

 

We are of the considered view that the complainant has not corroborated the contents of its complaint.It is settled law that the onus of proof of deficiency in service is on the complainant in the complaints under The Consumer Protection Act-1986. It is fundamental principle of jurisprudence that the onus of proof lying upon the complainant is to prove his case by a preponderance of probabilities and of the evidence. Thus, the case of the complaint for grant of relief under the Consumer Protection Act,1986 was not established. Accordingly, the complaint is dismissed in limine but without any order as to costs.

Order accordingly. Office is directed to send one true copy of this order to the parties/speed post in accordance with the rules. This final order be sent to server (www.confonet.nic.in). Thereafter, file be consigned to record room.

Announced on this  24^th  Day of September, 2022.

 

(POONAM CHADHARY)

President

 

        (BARIQ AHMAD)                                                        (ADARSH NAIN)    

 

            MEMBER                                                                          MEMBER