JUSTICE V.K.JAIN (ORAL) Complainant obtained a policy namely Jeewan Anand from the appellant Life Insurance Corporation of India for a term of 20 years. A quarterly premium of Rs. 1,69,894/- was payable by him. He paid 8 quarterly premiums for a total sum of Rs. 13,59,152 and thereafter stopped making payment. The complainant sent a legal notice to the Corporation seeking refund of the above-referred amount Rs. 13,59,152/-. The Corporation replied to the notice stating therein that the said amount was not refundable to the complainant since the policy had not become paid-up, the premium for at least three years having not been paid by him.
2. Being aggrieved from the refusal of the appellant to refund the amount which the complainant had paid to it, he approached the concerned State Commission by way of a consumer complaint.
3. The complaint was resisted by the appellant corporation primarily on the ground that in terms of the insurance policy premium was refundable to the complainant who had paid premium for at least three years which would have made policy a paid up policy.
4. The state Commission vide impugned order dated 21.02.2019 directed the insurer to refund the above referred amount to the complainant within 8 weeks failing which it had to carry interest at the rate of 9% p.a. Being aggrieved the Corporation is before this Commission.
5. Clause 4 of the insurance policy taken by the complainant reads as under:-
4. If at least three full years premiums have been paid in respect of this policy, any subsequent premium be not duly paid this policy shall not be wholly void but the sum assured by it shall be reduced to such a sum (paid up value) as shall bear the same ratio to the full sum assured as the number of premiums actually paid shall beat to the local number originally stipulated for in the policy. Provided such reduced sum be not less than Rs. 250/-. The policy so reduced shall thereafter be free from all liability for payment of the within mentioned premium. It shall not be entitled to participate in the future profits but existing vested bonus additions. If any, will remained attached to the reduced paid up policy. Notwithstanding what is above stated, if after at least there full years premiums have been paid in respect of this policy, any subsequent premiums be not duly paid, in the event of death of the life assured within 6 months from the due date of the first unpaid premium, the policy moneys will be paid as if the policy had remained in full force after deduction of (a) the premium or premiums unpaid with interest thereon to date of death, on the same terms as for revival of the Policy during the period and (b) the unpaid premiums failing due before the next anniversary of the Policy.
6. Clause 7 of the said policy reads as under:-
7. Guaranteed Surrender Value:
The policy can be surrendered for cash after the premiums have been paid for at least 3 years. The minimum surrender value allowable in this policy is equal to 30 percent of the total amount of the within-mentioned premium paid excluding the premiums for the first year and all extra premiums and/or additional premium for Accident Benefit that may have been paid. The cash value of any existing vested bonus additions will also be allowed.
7. It is evident from a perusual of the above referred two clauses that a policy becomes payable only if 3 full years premium is paid by the policyholders. If he pays full 3 years premium, though he cannot participate in future profits, the existing vested bonus additions remain attached to the paid up value of the policy. The policy can be surrendered only after paying premium for at least three years and the minimum surrender value allowed under the policy was 30% of the total amount of the premium paid excluding the premium of the first year and of extra premium and/or additional premium for accidental benefit that may have been paid.
8. The learned Counsel for the complainant has not been able to draw my attention to any clause in the insurance policy which entitles the the policy holder to claim refund of the premium paid by him even where he has paid premium for less than 3 years. The learned counsel, has drawn my attention to Regulation 4 and 5 of IRDA (Treatment of Discontinued Linked Insurance Policies) Regulations, 2010 which to the extent they are relevant reads as under: Options of a policyholder upon discontinuance of the policy
4. A policyholder shall be entitled to exercise one of the following options upon the discontinuance of the policy:
(i) Revival of the policy, or
(ii) Complete withdrawal from the policy without any risk cover. Obligations of the insurer for revival of the policy
5. Where a policy is discontinued, the insurer shall take the following steps to enable the policyholder to exercise the option as available in terms of regulation
(i) Send a notice within a period of fifteen days from the date of discontinuance of the policy to such a policyholder asking him/her to exercise the said options within a period of thirty days of receipt of such notice. Provided that where the policyholder does not exercise the option within the stipulated period of thirty days, the policyholder shall be deemed to have exercised the option mentioned at sub-regulation (ii) of regulation 4. The fund value of the policy shall be part of the segregated fundExplanation: chosen till the policyholder exercises his/her option or till the expiry of thirty days of notice period which ever is earlier. During this period the policy is deemed to be inforce with risk cover as per terms and conditions of the policy.
(ii) Where the policyholder exercises the option to revive the policy, the risk cover along with investments made in the segregated funds, less applicable charges as per the terms and conditions of the policy, shall be continued. 9. The Regulations relied upon by the learned Counsel for the complainant came to be notified on 01.07.2010. Clause 1(2) of the Regulations provides that they would come into force on the date of their publication in the official budget and shall apply to all products of linked life insurance cleared by IRDA thereafter. 10. The policy was taken by the complainant on 28.03.2005. The last premium was paid by him on 28.12.2006. The premiums payable on 28.03.2017 and for subsequent dates however were not paid. The Regulations relied upon by the learned Counsel for the complainant were not even made at the time the complainant stopped paying premium and committed default by not paying the premium which became due on 28.03. 2007. The Regulations have not been given a respective effect and in fact it being a subordinate legislation they cannot be given a retrospective effect. Therefore, the benefit of the above referred regulations, in my opinion, is not available to the complainant. 11. The State Commission while allowing the consumer complaint placed reliance on Section 74 of the Indian Contract Act which reads as under:-
When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
12. It is evident from a bare perusal of the aforesaid section that it had absolutely no application to the case in hand. The aforesaid section applies to a case where a contract contains an amount to be paid in case of breach of the contract or it contains any other stipulations by way of penalty. The contract of insurance is not a contract of the nature referred in
Section 74 of the Indian Contract Act. Therefore Reliance upon the said provision, in my opinion, was only misplaced. 13. As rightly submitted by the Learned Counsel for the appellant, the Corporation insures the risk to the life of the insured for a consideration which comes to it in the form of the premium. Had the complainant unfortunately died at any point of time before he stopped paying premium to the Corporation, the sum insured by the Corporation would have been payable to his nominee. Therefore, the Corporation incurs cost in ensuring the life of the policyholders. If it is made to refund the premium in the lifetime of the insured, in derogation of the terms of the insurance policy, it will not be possible for the Corporation to remain financially viable and it will not be in a position to grant insurance cover to the policyholders. 14. For the reasons stated hereinabove the impugned order cannot be sustained and the same is accordingly set aside. The consumer complaint consequently stands dismissed with no order as to costs. 15. It is also submitted by the learned counsel for the appellant this the consumer complaint was otherwise barred by limitation having been filed about seven years after the policy had discontinued on account of default in payment of premium. However, since on merits I find that the prayer made by the complainant cannot be granted I need not examine the plea of limitation taken by the learned counsel for the appellant. 16. The amount, if any, deposited by the appellant be refunded to it along with interest which may have been accrued on that amount. ......................J V.K. JAIN PRESIDING MEMBER
(ii) Where the policyholder exercises the option to revive the policy, the risk cover along with investments made in the segregated funds, less applicable charges as per the terms and conditions of the policy, shall be continued.
9. The Regulations relied upon by the learned Counsel for the complainant came to be notified on 01.07.2010. Clause 1(2) of the Regulations provides that they would come into force on the date of their publication in the official budget and shall apply to all products of linked life insurance cleared by IRDA thereafter.
10. The policy was taken by the complainant on 28.03.2005. The last premium was paid by him on 28.12.2006. The premiums payable on 28.03.2017 and for subsequent dates however were not paid. The Regulations relied upon by the learned Counsel for the complainant were not even made at the time the complainant stopped paying premium and committed default by not paying the premium which became due on 28.03. 2007. The Regulations have not been given a respective effect and in fact it being a subordinate legislation they cannot be given a retrospective effect. Therefore, the benefit of the above referred regulations, in my opinion, is not available to the complainant. 11. The State Commission while allowing the consumer complaint placed reliance on Section 74 of the Indian Contract Act which reads as under:-
When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
12. It is evident from a bare perusal of the aforesaid section that it had absolutely no application to the case in hand. The aforesaid section applies to a case where a contract contains an amount to be paid in case of breach of the contract or it contains any other stipulations by way of penalty. The contract of insurance is not a contract of the nature referred in Section 74 of the Indian Contract Act. Therefore Reliance upon the said provision, in my opinion, was only misplaced.
13. As rightly submitted by the Learned Counsel for the appellant, the Corporation insures the risk to the life of the insured for a consideration which comes to it in the form of the premium. Had the complainant unfortunately died at any point of time before he stopped paying premium to the Corporation, the sum insured by the Corporation would have been payable to his nominee. Therefore, the Corporation incurs cost in ensuring the life of the policyholders. If it is made to refund the premium in the lifetime of the insured, in derogation of the terms of the insurance policy, it will not be possible for the Corporation to remain financially viable and it will not be in a position to grant insurance cover to the policyholders.
14. For the reasons stated hereinabove the impugned order cannot be sustained and the same is accordingly set aside. The consumer complaint consequently stands dismissed with no order as to costs.
15. It is also submitted by the learned counsel for the appellant this the consumer complaint was otherwise barred by limitation having been filed about seven years after the policy had discontinued on account of default in payment of premium. However, since on merits I find that the prayer made by the complainant cannot be granted I need not examine the plea of limitation taken by the learned counsel for the appellant.
16. The amount, if any, deposited by the appellant be refunded to it along with interest which may have been accrued on that amount. ......................J