Date of Filing:14/02/2011

        Date of Order:13/04/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  13^th DAY OF APRIL 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.297 OF 2011

Vijay Kumar Ayalam,

Apartment 301, 3^rd Floor,

Richmond Pride, 29/2,

Serpentine Street, Richmond Town,

Bangalore-560 025.

….  Complainant.

V/s

Metlife India Insurance Company Limited,

‘Brigade Seshamahal, 5,

Vani Vilas Road, Basavangudi,

Bangalore-560 004,

Rep. by Attn: Ms.Sangeeta Barauh,

Grievance Cell.

…. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.5,20,016/- along with interest @ 12%, are necessary:-

Ms. Shilpa Pai and Ms. Sarika Bhagat from Axis Bank and Mr. Adithya and Mr. Manish from the opposite party have met the complainant in the year January-2010 and made him to subscribe to the opposite party’s Metlife Insurance Policy.  During the course of discussion the complainant made it clear that in the policy “exit clause” should be included in the plan which gives him an option to exit at any time without any penalty and an illustration should be include as part of the policy document.  The said persons told the complainant that once the complainant pays the amount towards the premium the necessary documents will be sent along with the policy document.  By the end of January-2010 only certain documents were received and not the agreed one when they questioned they replied that it will come from Bombay.  The complainant telephoned and also met the opposite party several times but there is no response from them.  The complainant purchased the policy on the above said assurance, but the intention of the opposite party is only to collect the premium and then wash off their hands.  It amounts to cheating intention to cheat.  After waiting for eight months the complainant made a telephone calls and when there was no response he contacted the Customer Service of the opposite party on 27.09.2010 and one lady Ms. Sapna told the complainant that she was not aware of the promises made by the representatives and it is not her problem, the complainant cannot exit from the policy, if he exit he will lose the entire amount paid Rs.5,20,015-15 and gave an alternative that if the complainant pay the premium for the next three years then they will consider exiting at the end of the fourth year there they will pay 30% of the premium paid.  That means if the complainant pays Rs.1,500,000-00 he will receive only Rs.5,00,000/-.  The complainant visited the opposite party on 28.09.2010 at Kasturba Road Office and met Customer Service Officer there.  He asked the complainant to write this to opposite party itself.  The Axis Bank has clearly stated that the people have changed and further they said that they no longer represent the opposite party.  The complainant also wrote to the IRDA Grievance Cell.  Hence the complaint seeking refund of Rs.5,20,016-00 along with interest.

2.       In brief the version of the opposite party are:-

The complainant has come to the Court with unclean hands.  The allegations are baseless made with malafide intent.  This is not a consumer dispute.  The Fraud and Cheating cannot be gone in to by this forum as held in the case of N.Shivaji Rao –V/s- Daman Motor Company, I (1993) CPJ 88 and the complaint is also bad as per Clause 6(2) of the policy.  The prayers sought for in the complaint cannot be given in view of the law laid down by the Hon’ble Supreme Court in the case of Bharti Knitting Company –V/s- DHL Worldwide Express Courier (1996) 4 SCC 704.  The complaint is bad for non-joinder of necessary party i.e., Axis Bank.  The complainant himself intended to purchase the life insurance policy under the plan namely Met Monthly Income Plan and approached the opposite party through Axis Bank and enquired about the same, with the representatives of the opposite party and Axis Bank in course of usual business practice.  After understanding the terms and conditions the complainant made the application No.302992750.  After carrying out necessary underwriting opposite party processed the policy bearing No.20232417 and issued it to the complainant on 15.01.2010.  Accordingly the complainant has to pay an annual premium of Rs.5,20,015-55 for a period of five years.  The policy had the coverage amount of Rs.28,80,000/-.  There was no issue of exit clause and illustration raised by the complainant at the time of application of insurance policy.  Policy documents along with the welcome letter, receipt of the first premium paid, were sent to the complainant on 20.01.2010.  It was received by the complainant in the end of January-2010.  The complainant never requested to provide the missing documents.  On receipt of the policy documents if the complainant was dissatisfied with respect to any of the terms and conditions he ought to have intimated by way of written or oral complaint within the Free Look Period to opposite party.  If he had done so the policy would have been cancelled.  The representatives/officials of the opposite party and Axis Bank in course of usual business practice might have explained the insurance policy plan.  However the final decision to take the policy was made by the complainant himself.  The complainant after receipt of the policy, for the first time he raised the instant issues with opposite party on 28.09.2010.  The said request was made beyond the Free Look Period contained in Clause 6(2) of the Insurance Regulatory and Development Authority (Protection of Policyholder’s Interests) Regulations, 2002 and Clause 6.1 of the terms and conditions governing the said policy.  The complainant by way of accepting the policy terms in not exercising the option of free look within 15 days he has lost the right under the exit.  He was communicated vide several e-mails and replies.  Clause 4.5 stipulates the surrender clause or exit clause.  The e-mail correspondences are admitted.  All the allegations to the contrary are denied.  Hence the complaint be dismissed. 

3.      To substantiate their respective cases, the complainant has filed written statement and stated that may be read as his affidavit.  The opposite party has filed his affidavit.  The opposite party counsel was absent.  The matter was heard.

4.      The points that arise for our consideration are:-

:- POINTS:-

1. Whether the complaint is bad for non-joinder of necessary parties?
2. Whether the complaint is not a consumer dispute?
3. Whether there is unfair trade practice for the offence committed by the opposite party?
4. What Order?

5.      Our findings are:-

Point (A)    :        In the Negative

Point (B)    :        In the Negative

Point (C)    :        In the Positive

Point (D)    :        As per the final Order

                          for the following:- 

-:REASONS:-

Point A to D:-

6.  Reading the pleading in conjunction with the evidence both orally and documentary on record it is established that the opposite party is an insurance company connected with Axis Bank through which they where marketing their insurance policies and now the Axis Bank has disassociated from the opposite party.  It is also established that the complainant has made an application for insurance with the opposite party on 12.01.2010.  The complainant has stated and sworn to that at the time of application Ms. Shilpa Pai & Ms. Sarika Bhagat from Axis Bank and Mr. Adithya & Mr. Manish from opposite party have met him and they have discussed regarding the policy.  Accordingly he wanted an exit clause included in the plan which gives an option to exit at any time without penalty and illustration should be included as part of the policy.  This has not been specifically denied by the opposite party.  The said persons have not filed any affidavit stating that there was no such discussion or this was not agreed by them on behalf of the opposite party.  Hence it means only on the assurance that an exit plan is to be included with an illustration so that the complainant can exit from the policy at any point without paying any penalty is agreed to between the parties.  As per the said assurance the complainant has subscribed and paid the first premium Rs.5,20,015-15 to the opposite party and the policy has to start on 14.01.2010.

7. Further it is established that the opposite party has issued the policy on 15.01.2010 and by the end of January-2010 the complainant has received the policy.  In the policy the exit clause as stated by the complainant was not there.  The complainant requested the opposite party in the matter and the opposite party has not responded to it.

8. It is contended by the opposite party in the version and in the affidavit that for the insurance policy there is a free look period of 15 days and within 15 days if the complainant wanted the policy to be not acted upon and wanted return of the amount he could have stated so, if he were to be not satisfied with the conditions of the policy and as he has not done so he is not entitled to surrender the policy or receive the money.  This is an untenable contention.  The policy is not made for the whole life policy, in case the complainant dies after paying the first premium the opposite party will not pay the welcome amount of Rs.28,80,000-00 to the complainant or as it is forfeited or if the complainant dies in the second or third or fourth year they cannot say they will not pay the insured amount if they say so, it is against the IRDA policy.

9.  Even otherwise opposite party contends that according to the policy if the complainant wants to surrender the policy he has to wait by the end of fourth year then they will pay 30% of the surrender value of the policy.  That means if the complainant pays Rs.15,00,000/- he will get back 30% i.e., about Rs.5,00,000/- this is against the public policy and it is against all the norms of IRDA.

10.  The complainant admittedly has written to the opposite party on 28.09.2010 within eight months from the date of receipt of the policy, that he don’t want to continue with the policy and he wants entire amount back.  In this letter the complainant has clearly stated that he had contacted the opposite party several times from February-2010 till September-2010.  He has also stated about promise made by Ms. Shilpa Pai & Ms. Sarika Bhagat from Axis Bank and Mr. Adithya & Mr. Manish from opposite party.  There is no specific reply to this letter denying these allegations.  But however the opposite party has declined to return the money.

11.  The opposite party has already earned interest on this amount and it has not lost anything, but denying is nothing but an unfair trade practice committed by opposite party.  The complainant might have written as cheating or fraud but actually it is an unfair trade practice committed by the opposite party.  We are not trying an offence under penal code for cheating we are concerned with the deficiency in service or unfair trade practice.  The act of the opposite party is nothing but an unfair trade practice.

12.  The insurance is made it can help him at the time of need so that it can come to the rescue of the men.  The insurance companies are the service providers with a little amount of earning profit.  Here with the amount of the complainant they have earned interest.  There is no loss to the opposite party if they returned whole amount.  But they wanted whole amount to be forfeited which is against the public policy which is nothing but unfair trade practice.

13.  Here the dispute is between the complainant as a consumer and the opposite party is a trader and hence it is a consumer dispute.  The decision cited by the opposite party in the version is in no way applicable to the facts and circumstances of this case.

14. The Axis Bank is no way concerned with this case.  There were the agents of opposite parties and now they are not.  Hence they need not be parties to this case.  Opposite party can answer the claim.  Hence it is not bad for non-joinder of necessary parties.

15.  Hence if we order the opposite party to pay a sum of Rs.5,20,016-00 to the complainant with interest and if it is not paid then if we order the opposite party payment of the amount with compensation, we think that will meet the hands of justice.  Hence, we hold the above points accordingly and proceed to pass the following:-            

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite party is directed to pay Rs.5,20,016/- with interest @ 12% per annum from 28.09.2010 until payment within 60 days from this order.
3. The opposite party is also directed to pay the costs of this litigation Rs.2,000/- to the complainant.
4. If for any reason, the opposite party failed to pay the amount as ordered at Nos. 2 & 3 above within 60 days, then the opposite party shall pay the said amount along with compensation of Rs.15,000/-
5. The opposite party is directed send the amount to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.   
6. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
7. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 13^th Day of April 2011)

MEMBER                                  MEMBER                        PRESIDENT