Order-19.
Date-17/04/2018.
Shri Anupam Bhattacharyya, President.
The instant complaint has been filed by the complainants u/s.12 of the C.P. Act, 1986 praying for refund Rs.3,35,155/- along with interest at the rate of9 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 is a School Teacher and being convinced by the OP3, agent of OPs 1 and 2 trusted him and on his oral assurance he issued eight cheques of Rs.19,696/-, Rs.11,733/-, Rs.17,660/-, Rs.49,074/-, Rs,49,074/-, Rs,49,040/-, Rs.35,416/- and Rs.98,306/- for one-time investment scheme with an intention and expectation to get assured return like monthly income scheme, by premature encashing the Fixed deposit and taking loan of Rs.1,80,000/- at the interest of 13 percent from the Teachers’ Co Operative Society complainant paid those premiums. Complainant put his signature over the prescribed papers in a very hurried manner on the basis of the oral assurance of the OP3. After lapsed of several months Policy documents had not reached to the complainant even after enquiring and contacting the OPs at their Park Street Office. At last in the middle of September, 2012 when complainant went to the office of OP2 one person came and tried to convince the complainant that on and from Middle of October 2012 he would get his monthly interest but, thereafter, he received eight renewal information in his mobile in the form of messages of eight policies and the said policies have to be paid up to 5 to 15 years and the premium is Rs.3,35,155/- per year which is impossible. But on repeated requests no policy certificate was handed over to him in any manner. The signatures of the said policies were obtained in blank form. The complainant no.1 is a School Teacher and his monthly income is Rs.49,820/- after all sorts of deduction at present but at the time of taking the policy his income was Rs.36,000/- per month. Complainant moved to the Ombudsman but they got no redress therefrom but the liberty was given to file the case. 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. Based on the proposals received from the complainant the OP Company issued 8 policies premium amounting to Rs.19,066/-, Rs.11,994/-, Rs.17,992/-, Rs.49,997/-, Rs.49,997, Rs.49,962/-, Rs.36,082/- and Rs.1,00,154/- and after lapse of substantial time complainant issued a letter dated 12-10-2012 alleging mis-sale of policy and praying for cancellation of policies and for refund of total premium. Complainant is a High School Teacher and after reading and understanding the terms and conditions applied for availing the policies. Policy was issued to the complainant in March, 2012 and the same was received by the complainant in April, 2012. The complainant after passing of substantial time raised allegation of mis-sale of policies. Due to non-payment of subsequent premiums the policies got lapsed. Complainant cannot pick and choose the terms suitable to him above the others. 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.
OP3 has not entered appearance and the case is taken up for hearing against OP3 ex party.
Considering the pleading of both sides the following points have been raised for disposal of this case.
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. Rs.3,35,155/- 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 complainant’s main case is that complainant was convinced by the OP’s men to sign and issue eight cheques four single premium policies. Long after verification made by the complainant, complainant received four 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 five to fifteen 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, OPs 1 and 2’s main case is that complainant is a High School Teacher and after reading and understanding the terms and conditions applied for availing the policies. Policy was issued to the complainant in March, 2012 and the same was received by the complainant in April, 2012 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. Due to non-payment of subsequent premiums the policies got lapsed. Complainant cannot pick and choose the terms suitable to him above the others. 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.
To prove the case both the parties 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.
Admittedly the complainant is a school teacher and it is also admitted that he has not availed the benefit of freelook period.
The complainants’ main case is that the policy is mis-sale being convinced as a single premium policy. Both the complainants applied for cancellation of the policies and refund of Rs.3,35,155/- towards premium of two policies.
From the documents filed by the complainant it appears that at the time of filing the policy the income of the complainant was Rs.36,000/- p.m. and admittedly from the documents filed by the complainant before Ombudsman it appears that the term of the policy is from 5 to 15 years and the premium to be paid for Rs.3,35,155/- annually where the monthly income was Rs.36,000/- at the time of commencement of policy and from this income he has to maintain his wife and minor school going daughter and that income annually comes to Rs.4,32,000/- where the annual premium is about Rs.3,35,155/- which is impossible.
The Ld. Lawyer for the complainant has advanced argument that this is a case of mis-selling and by misrepresentation the complainant 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 a school teacher and earned Rs.4,32,000/- annually, which was not possible at the time of taking the policy to pay the premium of Rs.3,35,155/- 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 School Teacher. 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.4,32,000/- where the premium is to be paid is Rs.3,35,155/- 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 refund of of Rs.3,35,155/- 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.239 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.3,35,155/- 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.
