FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT      

This is an application u/s.12 of the C.P. Act, 1986.

 Briefly stated the facts of the case  are  that being convinced  by the representative of the OP-3, Infosite Services Private Limited, complainants issued two cheques bearing Nos. 017388 and 017391 dated 14.01.2015 and 19.02.2015 worth Rs.1,83,173/- and Rs.3,12,939/- respectively in favour of OP-1 / Kotak Mahindra Old Mutual Life Insurance Limited for investment. Complainants received Policy Bonds  on 30.03.2015 and 23.04.2015 through  Postal Service. The authorised representative of the OP-3 misguided the complainants, purchased Non- Participating Anticipated Endowment Assurance instead of terms and conditions as canvassed verbally.

Further case of the complainants is that immediately they requested the OP-3 to cancel those policies. Mr. Amit Bhattacharya, an employee of OP-3 collected original bonds, welcome letter and policy documents on 30.03.2015 and 23.04.2015 with an assurance that  they will  process for cancel the policies but the OP-3 did not  take any steps for cancellation of the policies being Nos. 03160693 and 03146396. In spite of repeated request  and reminder the OP-1 did not refund the invested amount. The OPs by making misrepresentation compelled the complainants to purchase  the policies. There is deficiency in service and / or unfair trade practice on the part of the OPs. Hence, the complainants have approached this Forum by way of consumer complaint seeking reliefs as per prayer.

            The OP-1 has contested the case by filing Written Version denying all the material allegations made out in  the compliant.  The specific case of the answering OP is that complainants purchased the policies through the OP-3 and the subject policies lapsed due to non-payment of  renewal premiums. The policies are not revived within the stipulated period. The original policy documents were duly dispatched to the complainants. As per Insurance Regularity and Development Authority Regulations, 2002 which gives the policy holders the option to return the policy stating  the reasons thereof within 15 days from the date of receipt of the policy holders are not agreeable to provisions of the same. The complainants did not exercise their right to cancel those policies within free look period which implied that they are agreeable to the terms and conditions  of policies. The Consumer Disputes Redressal Forum have no authority  to settle  the alleged dispute as there are several other Forums such as IRDA and Insurance Ombudsman to settle the dispute. There is   no malpractice and unfair trade on the part of the answering OP. Accordingly,   the answering OP has prayed for dismissal of the complaint with cost.

In this context, it is pertinent to mention here that in spite of given several opportunities the OP-1 did not file E/Chief in the form of affidavit.

Initially, OP-2 appeared through Advocate but failed to file W.V. As such, the case has proceeded ex parte against the OPs.

DECISION WITH  REASONS                                               

We have travelled over the petition of complaint coupled with its annexure thereto including the evidence of the complainant-2 and given a thoughtful consideration to the argument advanced before us.

Fact remains that complainant-2 Ranjan Kumar Das purchased two Life Insurance Policies bearing Nos. 03146396 and 03160693 in the name of complainant-1 Rahul Kumar Das against payment of Rs.1,83,173/- and Rs. 3,12,393/- respectively being convinced by the representative of OP-3, Infosite Services Private Limited. The OP-1 issued Non-Participating Anticipated Endowment Assurance Policies instead of terms and conditions as canvassed verbally. Terms of both the policies are 30 years. Immediately, complainants requested the OP-3 to cancel those policies and Mr. Amit Bhattacharya, an employee of OP-3 collected  those policies with an assurance to process for cancellation of policies. On account of cancellation request, the complainants did not pay annual premium of those policies.

The dispute cropped up when the complainants requested the OP-1 to refund the entire invested amount but the OP-1 refused to pay the amount. Here, the factual aspect of the matter is not at all disputed. In a decision of the Hon’ble NCDRC in Dr. Aditya Prasad Ray -Vs.- Mr. Suresh Mahalingam, CEO & Managing Director, TATA  AIG  and others reported in 2015 (i) CPR 204 (NC) where the Hon’ble NCDRC has been pleased to observe that when complainant has failed and neglected to pay annual premium as per terms of the policy the same was automatically surrendered. In the instant case, the OP-1 did not cancel the subject policies on non-payment of the premium and never credit the refund amount to the Bank Account of the policy holders.

It is true that as per condition of the policy, it is mandatory to the complainants to inform or to pray cancellation of the policy within free look period but in the present case the complainants did not opt the said option within the free look period but after lapse of free look period of the policies submitted their grievances against the policy Nos. 03160693 and 03146396 with a request the OP-1 to refund the invested amount which is beyond the terms and conditions of the policies. It is the case of the complainants that they are induced by the authorized representative of OP-3 to purchase the policies instead of terms and conditions as canvassed verbally. Non-payment of annual premium of the policies automatically treated as surrender and it is obligatory on the part of the OP-1 to credit the surrender value of the policies to the complainants. Even the OP-1 never requested the complainants to provide NEFT particulars along with cancelled cheque in order to credit surrender value of the policies to the Bank Account of the complainants directly. It is well settled the insurance policy is totally based utmost good faith of both parties. In the instant case breach of contract is occurred on the behalf of the complainants as they failed to pay annual premium. In case of Non-payment of premium it is the obligatory duty of the insurance company to cancel the policies and remit the surrender amount to the complainants. There is no attempt on the part of the OP-1 to remit the surrender value of the policies to the complainants. Therefore, there is malpractice and unfair trade on the part of OP-1.

Nobody can dispute that the insurance agents take the signature of the insured on a dotted line, most of the terms and conditions of the insurance policies contain various provisions and exclusion clauses which could not be understood easily even by the experts in the field of occasions and ambiguous, the terms and conditions which are meant for understanding by the insured are mostly in a small print which would require strenuous   reading by insured, if at all he is vigilant, insurance company have not simplified their proposal form or the form of insurance policies for reasons  best known to them, insurance companies are not keen to publish the insurance proposal forms or the policies in the regional languages which could be understood by the insured or a layman, and exclusion clauses are never highlighted or explained by the agent or the Development Officer to the insured.

It does not need more elaboration to assume that policy holder Ranjan Kumar Das (complainant-2) is aged about 63 years as it appears from the annexure R/2 of the W.V. The terms of the policies are 30 years. Being an aged person complainant-2 will not adopt policies requiring payment of total amount of Rs. 4,96,112/- per year for consecutive 30 years since the date of inception of policies to get its matured value on expiry of 15 years at an age when even he survives the receivable amount will almost be of no use for him. We are therefore, convinced with the policy conditions were either not briefed or mis-briefed by the agent of OP-3 to the complainant-1. The OP-1 being the principal could not and should not avoid liability of the lapses on the part of their broker/agent. The policies in above light were absolutely one sided ones in favour of the OP-1/insurance company and it should be treated as void ab-initio.

            OP-3 is the broker and the authorized representative of OP-1 misguided the complainants for purchasing the subject policies for their own gain and profit. Such false inducement is obviously unfair trade practice on the part of the OP-3.

            The OPs did not turn up to controvert the version of the complainant-2 as adduced in his evidence through affidavit. The evidence  of the complainant-2 remains unchallenged. In absence of any contrary materials on record, we think that the complainants have been able to prove their case against the OPs.

            In view of the above discussion, it is clear that the OPs are reluctant to provide promised service and they are deficient in rendering services to the complainants. They sold the policies to the complainants fraudulently. Therefore, the complainants are entitled to get relief against the OPs.

            Regard being had to the entire facts and circumstances of the case coupled with evidence and documents on record, we are of the opinion that there is deficiency in service and unfair trade on the part of the OPs. Therefore, the complainants are entitled to get relief against the OPs.

In result, the case succeeds in part.

Hence,

Ordered

            That the complaint case be and the same is allowed on merit against the OP-1 and also allowed ex parte against the OPs 2 and 3 with litigation cost of Rs.5,000/- (Rupees Five thousand) only.

            The OPs 1 & 2 are directed to refund Rs.4,96,112/- (Rupees Four lakh Ninety-Six thousand One hundred twelve) only to the  complainant-2 within 45 days  from the date of this order along with litigation cost after deducting 10 percent as administrative and other charges of the total policy amount i.d, they are liable to pay interest  at the rate of 6 percent per annum on the decreetal amount till  realization.

            OP-3 is directed to pay compensation of Rs.50,000/- (Rupees Fifty thousand) only for causing mental pain, agony and harassment to the complainant-2 for  misrepresentation, false inducement  and unfair trade practice within 45 days from  the date of this order.

            OP-3 is also directed to deposit Rs.5,000/- (Rupees Five thousand) only as punitive damage to  this forum for unfair trade practice within  the stipulated period.       

Liberty be given to the complainants to put the order in execution, if the OPs transgress to comply the order.