Aditya Prasad Roy vs Suresh Mahalingam

REVISION petition no. 4351 of 2014 has been filed against the judgment dated 14.10.2014 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (''the State Commission'') in S C Case no. FA/1271 of 2013.

THE facts of the case as per the petitioner/ complainant are that the petitioner took a policy from TATA AIG named as TATA AIG Life Invest Assure Flexi Plan Policy (Policy number U 070231634) from Burdwan TATA AIG office on February 3, 2009. It had a ten years policy period with an annual premium of Rs.50,000/ - with sum assured of Rs.10,00,000/ - against the petitioner''s death along with fund capital increasing like that of bank.

THE petitioner started the policy by giving a premium of Rs.12,500/ - as quarterly premium. After that the petitioner left for China. Petitioner has further stated that the policy material was not sent at the time of inception so petitioner could not see the policy papers. The respondent sent the policy material long after inception of the policy. Petitioner was provided with only first Unit statements where out of Rs.12,500/ - working fund shown to be of Rs.10,252/ - but later on the respondent denied it. Petitioner has stated that when the petitioner returned to India and approached the TATA AIG Burdwan Office for a loan, the petitioner came to know that no loan can be sanctioned. Petitioner then took a policy statement on request. The petitioner requested the respondent to return Rs.1,75,000/ - of the total premium paid, but the respondent on 08.12.2012 sent a cheque dated 01.10.2012 worth Rs.43,771.89 alleged to be the final payment towards the policy in question. Therefore, such act on the part of the respondent tantamounts to unfair trade practice, deficiency in service and negligence. Hence, the respondents have violated the basic principles of insurance.

THE petitioner therefore, prayed for the following: (a) Respondent be directed to refund the total premium paid amounting to Rs.1,75,000/ - along with statuary interest thereon;

(b) Respondent be directed to pay to the petitioner a sum of Rs.2,00,000/ - towards mental, physical pain and agony; and

(c) Any other order or orders which the petitioner be found and entitled to get in favour of the petitioner be passed against the respondent.

IN their written statement filed on behalf of the TATA AIG Life Insurance Respondent no. 1 have admitted that the petitioner on February 2009 approached the respondent company and applied for a Life Insurance Policy being TATA AIG Invest Assure Policy for himself and duly applied for the same. As per the terms and conditions of the said policy, the petitioner was required to pay quarterly premium of Rs.12,500/ - for a period of 10 years.

ON 03.02.2009, on the application of the petitioner, policy no. U 070231634 was issued to the petitioner. The original policy documents were duly dispatched to the petitioner on 06.02.2009. The said original policy documents also contained a letter wherein "option to return" clause was stated as per regulation 4 (1) and 6 (2) of the Insurance Regulatory and Development Authority (Protection of Policyholders'' Interest) Regulation 2002, which gives the policy holder the option to return the policy stating the reasons thereof within 15 days from the date of receipt of the policy document in case the policy holder is not agreeable to the provisions of the same. The petitioner did not exercise the right to cancel the said policy within the free look period which implied that he was agreeable to the terms and conditions of the policy.

THE petitioner paid 14 premiums, i.e., till the 2nd quarter of the year 2012, but failed and neglected to pay the further premiums in the said policy. Several premium notices were issued to the petitioner but the petitioner did not pay.

THE respondent company received a letter dated 07.08.2012 from the petitioner, thereby requesting to cancel the policy within free look period. The petitioner''s request for cancellation was not within the free look period, the respondent company by its letter dated 09.08.2012 informed the petitioner that they were unable to process his request.

THE respondent received a letter dated 29.10.2012 from the petitioner. The respondent company by its reply dated 02.11.2012 duly informed the petitioner that the petitioner did not pay the quarterly premium for August 2012, and as per the terms, the policy was automatically surrendered.

AS the surrender value of the policy fell below an amount equivalent to one annual regular premium, i.e., Rs.50,000/ - the policy was surrendered automatically as per the policy provisions and accordingly a surrender value cheque bearing no. 945690 dated 01.10.2012 for Rs.43,771.89 was sent to the petitioner.

THE District Consumer Disputes Redressal Forum, Muchipara, Burdwan (''the District Forum'') vide its order dated 20.10.2013 while dismissing the complaint observed as under: "In this context whether the complainant has received the terms and conditions of the policy or not, no cogent evidence is forthcoming on behalf of the complainant. As per the condition of the policy it was mandatory on behalf of the complainant to inform/to pray for cancellation of the policy within free look period but in the case in hand the complainant did not opt the said option of the policy and after lapse of more than three years the complainant requested the OP for cancellation of the policy, which is beyond the terms and conditions of the policy. During hearing the complainant has submitted that no terms and conditions were provided by the OP to him during taking out the policy and therefore, there was no scope for him for its perusal. In this context we have noticed that no case has been made out by the complainant in this context that without perusing the terms and conditions of the policy the complainant obtained the same as it was not provided to him by the OP. No case has been made out by the complainant that creating pressure upon him the OP has forcefully issued the policy in favour of the complainant keeping him dark in respect of the terms and the conditions of the policy. As the policy was accepted along with its terms and the conditions by the complainant by putting his signature, now the complainant cannot take shelter under such plea that he had no knowledge about the terms and conditions of the policy. Therefore, neither the OP nor the complainant can go beyond the said terms and conditions of the policy. In respect of non -sanctioning of loan as prayed for by the complainant we are of the view that as in the policy document no provision was there for sanctioning any loan, hence non -sanctioning of loan cannot be termed as deficiency in service as well as unfair trade practice on behalf of the OP. As the complainant has failed and neglected to pay any premium after 14th premium in spite of issuance of notice upon him by the OP, as per the terms of the policy the same was automatically surrendered. As the complainant did not seek for revival of the policy, the OP accordingly sent the surrender value cheque to the complainant without further delay. It is well settled that the Insurance Policy is totally based on utmost good faith of both parties. In the case in hand breach of contract was occurred on behalf of the complainant as he has failed to pay the premium amount after payment of 14th premium amount. In case of non -payment of premium the Insurance Company has right to cancel the policy and in that respect such cancellation or surrender cannot be termed as deficiency in service. It is pertinent to mention that for showing good gesture the Insurance Company has duly sent the surrender value cheque to the complainant.

Going by the foregoing discussion hence it is ordered that the complainant has failed to prove his case by adducing cogent document/evidence and therefore, the complaint fails on contest. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly".

AGGRIEVED by the order of the District Forum, the petitioner/ complainant filed an appeal before the State Commission. The State Commission while dismissing the appeal, observed as under: "Authorized representative of the Appellant has submitted that policy documents containing terms and conditions were not sent or given to the Appellant at the time of issuance of the policy and so the Appellant could not avail of the privilege of going through same within the free look period of 15 days to have a better understanding about the nitty -gritty of the policy. Further, the Appellant has actually paid Rs.1,75,000/ - as premium to the Respondent, as against which he was being offered a paltry sum of Rs. 43,771.89 by the Respondent, which was not taken. Furthermore, anniversary charges were deducted on monthly basis, which is a misnomer. That apart, save and except the first Unit statement, the Respondent has not sent any Unit statement to the Appellant, though it was imperative on the part of the Respondent to provide the same as per the terms and conditions of the policy.

Ld. Advocate for the Respondent has submitted that in fact, the Appellant has paid 14th nos. quarterly installment premiums and therefore, he cannot feign at this stage that he was ignorant about the terms and conditions of the policy in question and his China visit does not hold good for the purpose. Furthermore, the root cause for discontinuation of the policy by the Appellant is non -receiving of loan, which is not at all permissible under the terms and conditions of the policy and so, this is a nonentity. He did not continue with the policy since then. So, it cannot be said there is any insufficiency in service on the part of the Respondent.

Obviously and admittedly, the Appellant has paid 14th nos. quarterly premiums, which means, he continued with the policy by paying premiums for 31/2 years, and not thereafter, in any case. Therefore, the veiled plea of not having the opportunity of free -look period does not hold him in good stead. It is the common practice that the policy papers, together with relevant documents, are sent to the policy holder at the time of issuance of policy. There is nothing on record to show that he ever took up the matter of non -receipt of such papers with the Respondent during the 3 -1/2 years.

After considering the whole spectrum of the case, the Ld. District Forum has rightly come to the conclusion that the Complainant has failed to prove his case by adducing cogent document/evidence. There is nothing to dispute or disagree with the findings made on the body of the impugned order, so also the specific order made in deciding the case negatively against the Complainant. Therefore, there is nothing to interfere with the findings of the Ld. District Forum, for which, the instant appeal is liable to be dismissed.

Hence, ordered that the appeal is dismissed on contest against the Respondent, but without any cost. The impugned order is hereby affirmed".

HENCE , the present revision petition.

WE have heard the learned counsel for the petitioner and have carefully gone through the records of the case. The counsel for the petitioner could not give any evidence to prove that the State Commission had failed to exercise the jurisdiction so vested with them or acted illegally or with material irregularity. It is quite clear from the reading of the records on the file that the petitioner is a highly educated person who has availed of the TATA AIG Life Invest Assure Flexi Plan policy. It is presumed that such a well -educated person would exercise due caution and diligence as also ensure that he is well informed of the benefits and terms and conditions before taking such a policy for Rs.10 lakh and before paying fourteen quarterly premiums. His plea is that he could not see the policy papers as he had left for China. This cannot give him the right and option to cancel the policy three and a half years after the receipt of the policy and expiry of the free look period of 15 days. He has admittedly paid 14 numbers of premium and only objected to the terms and conditions after he was refused a loan as it is not permitted under this policy. A man of prudence would have seen the terms and conditions of the policy to see whether he was entitled and eligible for taking a loan under such a policy. A reading of the policy shows that he had been cautioned that: "from the third policy anniversary, the policy holder is requested to monitor the fund value periodically

On discontinuance of premium, to ensure that fund value (net of surrender charges, if any) does not fall below the amount equivalent to annual regular premium during the terms of the policy. If this happens, the policy shall terminate as specified in the policy contract document.

The fund value may fall or any reasons including withdrawals, changes in market conditions or changes in market linked returns.

Premium paid in the Unit Linked Life Insurance Policies are subject to investment risks associated with capital markets and the NAVs (Net Asset value)".

WE see from the letters of the respondent dated 09.08.2012 and 02.11.2012 that the respondent has acted as per the terms and conditions of the policy contract.

IT is well settled that under section 21 (b) of the Consumer Protection Act, 1986 (''the Act'') the scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.