THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
I.A.77/2014 IN CC 239/2012
Dated this the 1st day of December 2015
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
The petitioner was an NRI. He is having an SB account with the opposite party bank Calicut. His case is that the agent of the opposite party by name Smt. Megha A.T. has approached him and requested him to take an Insurance Policy of the opposite party. He was made to believe that HDFC SL CREST Policy is the best among all the single premium plans do. It was also informed that this policy is a single premium unit linked insurance policy (ULIP). Attracted by the representations made by the agent of the opposite party, he had signed a series of papers as instructed by Smt. Megha and subscribed to the said policy plan HDFC SL CREST. The lump sum premium payable was Rs.50,000/- and it was paid on17/12/2010 vide receipt No. ASG12240. The opposite party issued the Policy Certificate having Policy No. 14091649 and connected papers.
The petitioner stated that when he went through the Policy Certificate, he was shocked to see that the said policy is an installment policy and the premium paying term is for 5 years and he has to deposit Rs.50,000/- each for the next four more years. Instead of a onetime investment the opposite party had issued an installment policy, which was not suitable to his needs and requirements and it was a clear case of misselling of the insurance product with intention to extract money somehow. He had immediately contracted the agent Smt. Megha and also the opposite party through their call centre number and requested them to cancel the policy and to return the policy amount. To this he was told by the opposite party that after one year, by writing a simple application, they will convert the policy to a single premium one according to his suitability. Believing these words he didn’t give cancellation request during the Free Look Period. But the opposite party committed volte-face and instead of facilitating the conversion as offered, they have send a letter reminding him about the due date for the payment of the 2nd premium. When he approached the opposite party there was no-one to listen his problems.
The petitioner further stated that evenafter sending e-mail and complaint in writing, the opposite parties have not converted the policy to a onetime policy as offered and instead they have issued a letter stating that since they have not received the cancellation request within the Free Look Period, they are unable to process the refund of the premium paid and the payment got disrupted and that culminated into lapsing of the policy. According to the petitioner at the time of taking the policy, he was not informed about the true features of the policy. The act of the opposite party is arbitrary and illegal. His financial condition at present does not permit him to carry on the policy by paying Rs.50,000/- for another four more years. Because of the gross negligence from the part of the agent as well as the opposite parties he had suffered huge financial loss mental agony and other difficulties. The said act of the opposite parties amount to unfair trade practice and also deficiency in service on their part. Hence this petition is filed to direct the opposite parties to refund the amount of Rs.50,000/- with 12% interest per annum and to pay Rs.10,000/- as compensation for the inconvenience and other difficulties suffered by him and also cost of the proceedings.
The opposite parties filed version denying all the statement made by the petitioner except the issuance of the insurance policy. They have a specific case that this petition is not maintainable before this Fora as the policy in question is a Unit Linked Policy. In this policies the investment is for getting gain and hence its purpose is of commercial in nature.
The opposite party filed an IA.77/2014 challenging maintainability of this petition before this Fora. So before going to the merits of this petition we took the IA for hearing as a preliminary issue for decision.
Heard both sides. The learned counsel for the opposite parties argued that the policy taken by the petitioner is a United Linked Insurance Policy (ULIP). It is of speculative in nature and the investment is for gain and as such these policies are subject to different risk factors. The risk factor in the policy is to be borne by the insured. This was stated in the policy conditions also. Here the invested amount will go directly to the share market and the investment option is chosen by the insured himself. They argued that the guidelines for the issuance of ULIP products are laid down by the IRDA and their policies are conform to these guidelines.
It was also argued that during the period the policy was in force, the petitioner has also enjoyed the benefit of life insurance coverage. After enjoyed the benefit for all these time one cannot claim that he is entitled to refund the premium paid. Moreover the insured had the option to return the Policy Certificate within the Free Look Period of 30 days after receiving the policy document if he is not satisfied with its terms and conditions. Here the petitioner has not exercised this option also. The reasons stated by the petitioner for non-cancelling the policy during the Free Look Period is unacceptable in the absence of evidence in this regard.
The opposite party placed reliance on the case between Ram Lal Aggarwala V/s. Bajaj Allianz Life Insurance Co. Ltd. 2013(2) CPR389(NC) decided by the Honm’ble National Commission. Where in it is held that “the petitioner/complainant policy in question is an Unit (marked) Linked Policy and law is now well settled that such policies are speculative in nature and the same are taken for investment purpose and as such the policy holder of such policies are not consumers and disputes relating to such policies are not sustainable before the Consumer Forum”.
It is admitted by the petitioner in his petition that the policy taken by him is a Unit Linked Policy. As per the terms and conditions of the policy there is chance of risk in these policies as the invested amount is directly going to the share market and its purpose is to gain profit. Whether profit or loss depends on the market volatility and value may go up or come down depending on the market conditions. Here it is found that the premium investment is of commercial in nature and so the petitioner is not a consumer as envisaged under Section 2(1)(d) of Consumer Protection Act.
In view of the facts stated above and relying on the decisions of Hon’ble National Commission, we are of the opinion that the petitioner is not a consumer and hence this petition is not maintainable before this Forum. So we are not going to the merits of this petition.
In the result, the IA allowed and the original petition is dismissed as not maintainable. The petitioner can approach proper Forum having authority to hear and decide the matter if he wants so. No order as to cost.
Dated this the 1st day of December 2015.
Date of filing: 31/05/2012
SD/-MEMBER SD/- PRESIDENT SD/- MEMBER
//True copy//
(Forwarded/By order)
SENIOR SUPERINTENDENT
