In the District Consumer Disputes Redressal Forum, Cooch Behar.
Presence : Shri Sukumar Chakraborty, President.
Smt. Runa Ganguly Member
Shri P. K. Chattarjee , Member.
Cooch Behar, Dated, the 29.03.2011
Case No. DF 29/2010
Shri Randhir Das
S/o Lt. Surendra Kr. Das
of Rabindra Nagar, Tribrittya Sarani by lane…
P.S.-Kotwali, District-Cooch Behar…….………………..Complt.
Vs.
(1) Axis Bank.
Cooch Behar Branch,
P.O.+Dist- Cooch Behar.
(2) Metlife India Insurance Co. Ltd.,
Siliguri Branch,
Sevoke Road, Siliguri,
District- Cooch Behar.…………………..………OP.s
The case of the Complt. as per his complaint is as follow. The Complt. Shri Ranadhir Das of Tribrittya Sarani by lane, Cooch Behar has obtained a insurance policy vide policy No. 20310061 amounting to Rs. 99,000/- from Metlife India Insurance Co. Ltd., Siliguri on 27.03.2010 with the assistance of Axis Bank , Cooch Behar with the provision that the said insurance policy can be cancelled within a 15 days of receive of the policy. The Complt. received the policy on 10.05.2010 after payment the insurance premium amount at a time. Subsequently he had gone through the terms and condition of the said policy so obtained wherein it is noticed by the Complt. that he has to pay further consecutive three years of Rs. 99,000/- in every year. The Complt. is a retired person having dissatisfied of the said policy contacted with the Axis Bank on 11.05.2010 wherein he expressed his views for canceling the policy and getting refund of the said premium amounting to Rs. 99,000/- because of the fact that he is not in position at that point of time after being retired from service to continue the said policy for further 3 years for the same amount. The concerned staff of the Axis Bank advised him for making prayer addressed to Metlife India Insurance Co. for refund the amount viz-viz for cancellation the policy, The Complt. accordingly prayed before the Insurance Co. for cancellation on 17.05.2010 but the said prayer has been turned out by the Met Lifie India Insurance Co., Siliguri on 21.05.2010 duly received by him on 30.05.2010 wherein they rejected the prayer of the Complt. on the plea that its free look request time is over. The Complt. having received the same was astonished wherein it is seen that he (complt.) received the policy on 10.05.2010 and prayed for cancellation on 21.05.2010 which is within free look in time as alleged. The Complt. subsequently requested several times to the Insurance Co. but no fruit full result was achieved . Finding no other alternative the Complt. filed this present complaint on 04.06.2010 against the O.P.s seeking for relief as mentioned in the petition. Subsequently it is seen during pendency of the case from the representation of the Complt. dated 19.07.2010 that he had received an amount of Rs. 94,095/- against his prayer for cancellation of Insurance Policy vide cheque No. 519060 dated 08.07.2010.
The O.P.s have contested the case by filing W/V contending inter alia that the case is not maintainable as well as in law
The O.P.1 on the other hand stated that he has acted on good faith as a facilitator/ corporate Agent of O.P. No. 2 in the general course of business of banks as a whole for which he has no such role either in the issuance of policy or his cancellation . For which the complaint . as made by the Complt. is liable to be rejected against O.P. No. 1.
This answering O.P1 also opined that after received the policy the Complt. approached this answering O.P. with an intend to cancelled the policy. The O.P. No.1 (herein Axis Bank had no role to play and therefore guided him to apply for cancellation to O.P. No. 2 who had issued the policy and the Complt. did so.
The O.P. No. 1 further stated that the Compllt. being well conversant with the terms and conditions of the policy apply for purchasing the policy and subsequently submitted the request for cancellation of said policy for the reason best known by him (Complt.).
The O.P. No. 1 further opined that O.P. No. 2 has considered the request for cancellation of the Copmplt.’s policy and has been refunded an amount of Rs. 94,095/- by the O.P. No. 2 after deduction of some charges applicable to the policy. It is allegedly stated by the O.P. No. 1 that the Complt. is having a case that the request for cancellation was made within the freelook in period from the date of received the policy , and if so it is for the Complt. to prove that he had in fact the Insurance Co. within the freelook in period.
It is also stated that as per Sec. 230 wherein in the absence of any contract to that effect, and agent cannot personally enforce contracts enter into by him on behalf of his principle, nor he is personally bound by them. Therefore on this sold ground alone the complaint is liable to be dismissed against the O.P. No. 1. He also stated that the O.P. No. 2 has not rendered any sort of the service to the Complt., so the Complaint is liable to be dismissed only on this score along against the O.P. No. 1.
The O.P. No. 2 on his W/V denial on allegations contained in the complaint against those, which has specifically admitted herein after in his reply.
The O.P. No. 2 opined that the present complaint filed by the Complt. is an abuse for the process of law and is not maintainable as the Complt. has approached this Hon’ble Forum with uncleaned hands.
It is also stated by this answering O.P. that this instant complaint made by the Complt. observed that avertment made therein, are vague, baseeless and with malafied intention. The Complt. has made mis-conceived and baseless without any documentary evidence in support of the allegations made in the Complt.. The complaint filed by the Complt. does not fall within the definition of Consumer disputes under the Consumer Protection Act, as there is neither any unfair trade practice adopted by this O.P. nor any deficiency in service . being established against this O.P, hence the averment and /or allegation made therein are frivolous, baseless and misconceived and the complaint is liable for rejection and the same be rejected in totally. The O.P.2 further stated that the Complt. with best known reasons has not pleaded that he (Complt.) had applied for voluntarily for the said insurance policy after fully knowing well about the terms and condition of the policy .
This answering O.P. also stated that Under clause No. 6(2) of IRDA,2002 under regulation 6(1) that in forwarding the policy to the insured, the insurer shall inform by the letter that he has a period of 15 days from the date of received of the policy document to review the terms and condition of the policy and where the insured disagreed to any of those terms and conditions, he has the option to return the policy stating reason for his objection and he shall be entitled to refund of the premium pay after deducting the expenses incurred by the insurance on medical examination of the proposal and stamp duty charges. It is also stated by the O.P.2 that similar free look provision has been incorporated under clause No. 7.1 of the terms and condition of the policy taken by the Complt. which does not tally against the complaint made by the Complt. But on the contrary no request of cancellation was received within the free look period of 15 days mentioned in the policy terms and condition. The O.P.s also stated that the amount of Rs. 94,094.90 vide cheque dated 08.07.2010 bearing No. 519060 was refunded to the Complt after being cancellation of the policy with necessary reversals and deductions as per free look provision . Considering the above this answering O.P. finally concluded that the instant complaint is liable to be dismissed U/s 26 of the Consumer Protection Act with cost for being false, frivolous, vexatious and misconceived against the Complt. who has made this complaint with ulterior motive and malafied intention to cause harassment and felt to make out a prima facie case against this answering O.P and denial any deficiency in service on account of this O.P. and the instant complaint merit dismissed of the complaint with cost..
In view of the pleading of both the parties the points of determination are :
1) Whether there was any deficiency in service on the part of the O.P.S against the Complt. for non-refunding the balance deposited premium amount excluding the paid amount against cancelled the premium policy ?
2) Whether the Complt. is entitled to get further relief as prayed for ?
Decision with reason.
Perused the evidence, documents adduced by both the parties, considered,
Admittedly on 27.03.2010 the Complt. obtained a policy from Met Life India Insurance Co. Ltd. having deposited 99,000/- at a time.
The main disputes of the complt. is that he received the policy on 10.05.2010 with terms and condition laid down in the policy bearing No. 20310061 but unwilling to continue the insurance premium followed by prayer for cancellation on 21.05.2010 which in turn rejected by the Insurance Co. with the plea that free look in period has not been covered and returned/rejected the first prayer and subsequently considered the prayer and returned the paid amount deducting a portion of amount i.e. Rs. 4,905/- against the deposited amount which he claimed to pay back.
It is a fact that the Complt. entered into a agreement through application form No. 20310061 dated 27.03.2010 with Met Life India Insurance Co. Ltd., by depositing Rs. 99,000/- through D.D. No. 016406 dated 18.03.2010 with Axis Bank, Cooch Behar.
It has been stated by the Complt. That the insurance policy associated with terms and condition was duly been received by himself on 10.05.2010 through one Gopal Das and Krishanu Chatterjee of Axis Bank, Cooch Behar at home without any receiving slip.
We have considered the prayer of cancellation of the Complt. (as marking Annexure C dated 17.05.2010) duly received by Met Life India Insurance Co. Ltd. on 21.05.2010 without raising any objection regarding delivery of the said policy to the Complt. as recorded on 10.05.2010.
We have also considered the letter of Met Life India Insurance Co. Ltd. dated 25.05.2010 in response of the letter dated 17.05.2010 of the Complt. wherein special emphasis was given in connection with free look option without raising any dispute regarding date of receiving of policy delivered i.e on 10.05.2010 as recorded in the application dated 17.05.2010 of the Complt.
We have gone through the letter dated 25.05.2010 on Met Life India Insurance Co. Ltd. and thereby disagreed the petition of the Complt. with the plea that the requests was received beyond the free look period for which consideration of cancellation cannot be done under the ‘Free Look Option’.
It is out of turn to mention that the aggrieved Complt. lodged/file the case before the forum on 04.06.2010 and the notices in the regard was served on the dated 06.06.2010 and 03.08.2010 respectively on Axis bank and Met Life India Insurance Co. Ltd., Siliguri Branch which subsequently received by both of them accordingly.
We have taken into consideration the letter dated 09.07.2010 on Met Life India Insurance Co. Ltd., addressed to the complt. which runs as under :
“This is with reference to your request for cancellation of your Life Insurance Policy. It is with regret we confirm that your request has been processed and your policy stands cancelled as of May,21 ,2010, please find enclosed a cheque of Rs. 94,094.89 as a refund of your policy”.
From the above referred discussion it is a pertinent point to note that the Complt. is a senior citizen with pension holder entered into a Met Life India Insurance scheme policy with deposition of Rs. 99,000/- through instrument duly received the Insurance Policy with terms and conditions on 10.05.2010, knowing fully after gone through the conditions laid down on the said policy and that to he was not in a position to continue the policy further, due to his poor economic conditions at the flag end of life, requested to the insurer or underwriter to cancel the policy on 17.05.2010 (received by the insurer on 21.05.2010( as per record) rejected the said petition on the ground that his application for cancellation was not tally of the condition “free look option” which was subsequently taken into consideration by their letter dated 09.07.2010 followed by issuance of cheque of Rs. 94,094.90 through cheque No. 519060 dated 08.07.2010 .
It is to be noted utmost good faith insurance is a contract upon speculations. The man who desires to take an insurance policy, must disclosed the underwriter all the material facts/circumstances because the insurer knows nothing and the assured knows everything . The contract of insurance is of utmost good faith- uberrima fides. A contract of insurance is a contract of utmost of good faith. The special facts lie commonly in the knowledge of insured and the insurer trust the insurers representation. He proceeded on relief and the insure has not suppressed any fact and circumstances any knowledge and induced the insurer believe that risk does not exist Suppression of such material facts is fraud and therefore the policy is void . The duty lies on both the parties insurer as well as inured equally.
Fraud invalidates the insurance and deprived the party from all of his rights arisen out of the contract concealment or misrepresentation of material facts is fatal to the contract. However non-discloser of fact of which the insured was ignorant is not fatal to the contract. He did not mentioned what insurer knows.
Looking all the aspects as referred on prepage it is a pertinent point to record that the O.P.s allegedly not given any information against the deal (claim amount and having aggrieved by the action of the insurance company, the present Complt. filed making a claim for compensation- the insurance company held to be deficient in service for its action as it thereby denied in service to the Complt. a chance to pled and assert for the balance claim. Therefore that there is deficiency in service cannot be denied and the O.P. 2 be held liable.
Point No. 2 : The point No. 1 is decided against the O.P.2 and it is that caused deficiency in service against the complt. Therefore the complt. is entitled to get relief as prayed for in his complain.
Hence
Ordered
that the complaint dated 04.06.2010 of the Complt. be allowed on contest with cost of Rs,. 2,000/-
The O.P. 2 is directed to pay the Complt. Rs. 4,687/- ( balance amount minus stamp duty) against short payment against total deposited amount with interest @ 9% p.a from the date claim i.e. 21.05.2010 till the date of payment and also compensation of Rs. 5,000/- to the Complt. for his mental agony within 45 days from the date of this order and default a penal interest @ 9% p.a shall be levied on the unpaid amount till realization.
Dictated & corrected by me.
Member, President ,
District Consumer Forum, District Consumer Forum,
Cooch Behar. Cooch Behar.
Member, Member,
District Consumer Forum, District Consumer Forum,
Cooch Behar. Cooch Behar.