DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _396_ OF ___2013_
DATE OF FILING : 30.9.2013 DATE OF PASSING JUDGEMENT: 04/08/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mrs. Kuntalika Nasker, wife of late Sadhan Naskar of Village-Uttar Ganipur, P.O Ganipur, Dist. South 24-Parganas. Kolkata-141.
-VERSUS -
O.P/O.Ps : 1. Life Insurance Corporation of India, registered office at City Branch 11, Code no.421, KMDO-1, 131/A,B.B Ganguly Street, Kolkata -34.
2. Mr. Shanti Ghosh, Agent Code no.18457412, at City Branch 11, Code no.421, KMDO-1, 131/A, B.B Ganguly Street, Kolkata – 34.
3. Debabrata Mondal CLI Agent, S/O Gopal Mondal of Village-Uttar Ganipur, P.O Ganipur, Dist. South 24-Parganas. Kolkata-141
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that her husband Sadhan Naskar ,since deceased, had taken a Life Insurance Policy namely LIC’S JEEVAN SARAL during his life time in 28.8.2009 ,wherein the complainant has been appointed as a Nominee, the death benefit sum assured under this policy was Rs.5,00,000/- and the said policy was registered as Policy No.578060138. It is the further case of the complainant that her husband during his lifetime never failed to pay the quarterly premium of Rs.6,125/- per month. The complainant has alleged that due to some problems he failed to pay premium no.87 dated28.4.2011 and contacted with the agent who assured him that the default premium could be paid with the some additional late fees. According to the agent of LIC the deceased had paid him Rs.12,250/- with a late fee of Rs.367.50 to the agent before two weeks from the death of the deceased . The insured person late Sadhan Naskar died on 18.5.2011 at 11.15 hours and the case of death was Cardio Respiratory failure in a case of Cerebrovascular Accident due to excessive heat and humidity. The death certificate was issued by the Centenary Hospital of Kolkata Port Trust signed by Dr. Biswarup Das. But the agent due to ample negligence has failed to deposit the said amount instantly and deposited it on 18.5.2011 at 12.35 hours after the death of the deceased. After demise of her husband she had sent a letter to theO.P-1 on 9.8.2011 claiming all benefits regarding the said policy and submitted forms supplied by the O.P for the fulfillment of her claims. Complainant also sent a reminder letter to the O.P along with the last premium receipt dated 21.11.2012 . But initially no reply was received and after prolong 10 months ,finding no other alternative she contacted with the O.P-2 and asked for the fate of the policy andO.P-2 has informed the complain ant that the policy has been repudiated as last premium has been paid to the LIC after the death of the insured person which is detrimental to the terms of the said policy. So, no benefit can be provided. Accordingly complainant finds that theO.ps made deficiency of service and prays for payment ofRs.5 lacs as calculated sum assured and Rs.5 lacs as accidental benefit as well as refund of Rs.1 year’s total premium of Rs.24,500/-. Apart from that interest, damages and costs have been prayed for.
The O.P-1 contested the case by filing written version and has claimed that this case is not maintainable and complainant is not a consumer. The positive case of the O.P-1 is that admittedly Sadhan Naskar since deceased took one LIC policy and premium was payable quarterly @ Rs.6125/- which is scheduled to be due in August, November and February and May of every year and the sum assured is Rs.5 lacs and the complainant is the nominee under the said policy. The case of the O.P-1 is that the deceased life assured failed to pay the premium due in November,2010 and February 2011 and due to non payment of premium the policy lapsed and was not received during the life time of the deceased life assured. It is the further case of theO.P-1 is that story made out by the complainant that premium with late fee was paid to the agent for payment is misconceived ,malafide and not admitted by the answering. The agent acting on behalf of the Policy Holders but lies no authority to collect premium from the policy holders and as per agents Rules and the settled principle of Law laid down by the Apex Court the Life Insurance corporation of India has no connection with the agents and have no responsibility whatsoever regarding the act of the agents. It is the further case of theO.P-1 that complainant has admitted that the premium with late fee was deposited on 18.5.2011 at 12.35 hours after the death of the deceased life assured at 11.15 a.m and at the time of death the policy was in lapsed condition and nothing is payable under lapsed policy. The policy was not revived during the life time of the deceased life assured. So, the claim is not payable under the policy condition which is the contract between the parties and hence, the O.P-1 prays for dismissal of the case.
The O.P-1 also filed additional written objection and has claimed that there is no pleadings regarding accidental death and how the said amount has been accrued and the life assured died in natural death and not the accident and hence complainant is not entitled to get the benefit.
The O.P-2 is contesting the case being an agent and has denied all the allegations made in the complaint save and except what are specifically admitted. It is the claim of theO.P-2 that complaint is based on fake and vexatious allegations. This answering O.P has admitted that he has introduced the Policy in question in favour of Sadhan Naskar ,since decased,wherein complainant was made as nominee. It has also admitted that policy was payable on quarterly basis which was made on 28.8.2009 and first premium was paid on 28.8.2009 .It is also admitted that insured deposited premium nos.2,3,4 and all such premium was deposited by him at City Branch Code no.421 situated at Bowbazar. Thereafter on 23.1.2011 the 5th quarterly premium amount which fell due on November 28,2010 along with late fee was handed over to this O.P and accordingly upon receipt of the said –premium amount and late fee the 5th quarterly amount was deposited on January 24,2011 at City Branch 11 Code.421 by me. Inspite of regular follow ups by this O.P the insured failed to hand over the 6th quarterly premium amount citing his financial stringency. The O.P stated that after receipt of the summon first time he came to know that insured died on 18.5.2011. The answering O.P has flatly denied that he has deposited insurance premium on 18.5.2011 at 12.35 hours and complainant intentionally and malafide suppressed the name of the alleged agent who allegedly received the amount for obvious reason and this answering O.P is in quite dark about the mystery of impleading the O.P-3 in the case who is not in any way related or connected with this O.P,nor does the O.P known to him. It is also stated that complainant has to put strict proof that decease due to which the insured has died falls within the definition of “Accidental Death” and in absence of any medical certificate and/or expert opinion the said claim of the complainant cannot exist and O.P claims for dismissal of the case.
The case is running in exparte against O.P-3 since he does not contest the case inspite of receiving the summon.
Points for decision in this case is whether the complainant has been able to prove the accidental death, whether the complainant is able to prove that premium was paid through agent after 45 minutes of the death of the insured and whether the complainant has been able to prove the deficiency of service of the O.P-1 or not.
Decision with reasons
Admittedly from the death certificate it derives that Sadhan Naskar died due to Cardio Respiratory failure in a case of Cerebrovascular accident. So, the cause of death was caused due to cardio respiratory failure. It cannot be accepted as a case of accident. If the death was caused due to due to accident then post mortem would have been done and death certificate clearly mentioned that cause of death is due to accident and Autopsy Doctor examined the deceased body and makes report to that effect. But no such occurrence took place and cause of death is respiratory failure. Thus this issue is decided in negative.
Admittedly O.P-2 used to deposit the premium as claimed by the O.P-2 in his written version categorically, but denied the disputed payment of Rs.12,250/- . But fact remains that O.P-2 used to deposit the premium and he has a strong knowledge about the deposit of the premium but he claimed that he has no knowledge about the death of the insured and he has not collected the said premium which cannot be believe, because mode of payment was from the very beginning through O.P-2. It is true that he has denied the relationship with O.P-3 as claimed by the complainant, that is why, O.P-3 did not appear as a man ofO.P-2. It is also true that O.P-2 has denied that payment of Rs.12,250/- with late fee of Rs.367.50 was paid through him as he has no knowledge but he has admitted in para 9D that “… to main and give good services to their clients /insured, the agents take this pain of depositing the premium amounts at the LIC branches” and he has also mentioned the name of branch of LIC i.e City Branch of LIC. In this circumstances, can it be believed that after death of the insured Sadhan Naskar ,is there any state of mind of the deceased family to deposit the premium amount? and answer is negative. It is the O.P-2 who has deposited the amount to the LIC office ,that is why, the deposit was made after 45 minutes of the death and he has collected the amount definitely beforehand and withhold that amount intentionally, particularly when it is not possible for the deceased family to hand over the said amount to the O.P-2 at that juncture. So, we have no reason to disbelieve that payment was made earlier by Sadhan Naskar during his lifetime ,but due to the fault of theO.P-2 it was not deposited and when he came to know of the death , he has deposited the said amount on the same day. Thus motive of the insured should be considered, who has tendered the amount beforehand. It is true that agent has no liability to deposit the same. But it is the practice by which the LIC is running his business and that is why appointed agents and Agents Regulation 1972 of LIC clearly indicates the function of agent in para 8B wherein it has mentioned that endeavour to ensure that every installment of premium is remitted by the policy holder to the Corporation within the period of gress. Again in sub para “C” it has stated that endeavour to prevent lapsing of the policy and …….. render all reasonable assistance to the claimants in filing claim form and generally in complying with the relations to settlement of claim”.
It is true that it has mentioned in sub clause 4 at page 4 that nothing contained in this regulation which shall be deemed to confer any authority on an agent to collect any money or to accept any risk for and on behalf of the Corporation or to bind the Corporation in any manner whatsoever”, provided that an agent may be authorized by the Corporation to collect and remit the renewal premium under the policy on such conditions as may be specified.
So, when there is a provision as stated above that agent may be authorized by the corporation to collect and remit the renewal premium under policy on such condition as may be specified, that is why the O.P-2 collected the money and deposited the premium from time to time which was accepted by the O.P-1 LIC. So, at this stage when there is a provision, the onus is upon the LIC to prove that he has not authorized theO.P-2 to collect the renewal premium. If that be so, why the O.P-2 received the premium . This circumstances clearly suggests that authority was given by the LIC to O.P-2 to collect and remit the renewal premium under policy, that is why,O.P-2 collected the same and when O.P-2 failed to deposit in time and death was suddenly caused due to Cardiac failure ,O.P-2 then and then deposited the same within a faction of time just after the death. So, LIC cannot save their skin on that plea, particularly when their agents function to endeavour to ensure that every installment of premium is remitted by the insured to the Corporation and we are aware that normally the agents collected the policy and they are the persons to arrange for policy. So, at this stage LIC cannot shut down the door towards the bereaved family when they have accepted the premium through agent, otherwise the premium can not be deposited within a faction of 45 minutes of the death since there is no probability by the bereaved family to rush to the LIC office and deposit the premium knowing that insured expired and policy is due. So, question of lapse of policy does not arise. If it was actually lapsed ,why the policy was accepted on 18.5.2011at 12.35p.m amounting to Rs. 12,617.50 and agent code number is mentioned there. Thus this issue is decided in affirmative in favour of the complainant.
Regarding last issue, admittedly complainant’s husband obtained one policy from O.P-1 namely Jeevan Saral policy, the sum assured is Rs.5 lacs along with accidental benefit and admittedly the complainant is the nominee.
We have already discussed at the time of deciding issue no.2 that LIC has accepted the money through his agent and it is the settled principle that a gent cannot deposit the money but there is a clause which we have mentioned above in the agent regulation of LIC that if the LIC authorized then agent can collect the premium.
Here, in the instant case several premiums were deposited by the O.P-2 and LIC accepted the same and no question arises at the LIC cash counter at the time of depositing ,why the same was not accepted since the agent had no authority. But fact remains LIC has accepted the same and lastly Rs.12,250/- was also accepted. It is true that LIC may not have any knowledge of death of the insured at the relevant point of time ,but fact remains due to providing clause we have mentioned above that agent got power, that is why, he has admittedly deposited since beginning of the policy and there is no reason to disbelieve that last premium was not deposited by the agent ,O.P nos.2 and 3 ,as the case may be, particularly when it is not possible and believable being a human being that leaving dead body of the husband ,who has expired just 45 minutes ago, or like that, complainant may arrange for depositing the premium money to the LIC and it is the fact that the money was handed over to the agent well beforehand, wherein the wife has enough knowledge ,that is why he has claimed the same.
It is also true that soon after non-settlement of the claim after lapse of 10 months of accepting the claim form, the complainant rushed to the house of the O.P-2 to know why the policy was not settled and O.P-2 informed that the policy was repudiated as last premium has been remitted after the death of the insured person. If that be so, this conduct also shows that inspite of visiting to LIC office complainant has to rush to theO.P-2 to know the settlement of the claim of the policy. ButO.P-2 denied the same and it has no basis because he used to deposit the same in all occasions which is categorically admitted by filing his written version. So, during the lifetime when the insured male member never visited the LIC to deposit the premium, can it be believed that a widow after 45 minutes journey rushed to deposit the money? All these circumstances clearly suggests that O.P-2 is the man who was duly entrusted by the LIC and he deposited the insurance money, although he collected the same earlier i.e during the lifetime of the insured. So, motive of the insured should be considered in a judicial proceedings considering the circumstances of the case as unfolded therein .
Thus the complainant partly able to prove her case against the O.Ps since accidental death is not proved and question of payment of Rs.5 lacs does not arise and refund of premiu7m also does not arise, because complainant is only entitled to get sum assured ofRs.5 lacs as well as compensation of Rs.10,000/- for her suffering mental agony and harassment and cost of Rs.5000/- which will be paid by the O.P-1 and O.P nos.2 and 3 are directed jointly and/or severally to pursue the matter for payment.
With that observation, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed in part on contest against O.P nos. 1 and 2 and in exparte against O.P-3.
The O.P-1 is directed to pay Rs.5 lacs ,the sum assured, compensation of Rs.10,000/- and cost of Rs.5000/- to the complainant within 45 days from the date of this order.
The other prayers of the complainant are hereby refused.
The O.P nos. 2 and 3 being agents are jointly and/or severally directed to pursue the matter for payment of the aforesaid amount to the complainant from the O.P-1, like persuasion for getting the policy on behalf of the O.P-1.
If the order is not complied with within the stipulated date, complainant is at liberty to execute the order through this Bench in execution proceedings.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed in part on contest against O.P nos. 1 and 2 and in exparte against O.P-3.
The O.P-1 is directed to pay Rs.5 lacs ,the sum assured, compensation of Rs.10,000/- and cost of Rs.5000/- to the complainant within 45 days from the date of this order.
The other prayers of the complainant are hereby refused.
The O.P nos. 2 and 3 being agents are jointly and/or severally directed to pursue the matter for payment of the aforesaid amount to the complainant from the O.P-1, like persuasion for getting the policy on behalf of the O.P-1.
If the order is not complied with within the stipulated date, complainant is at liberty to execute the order through this Bench in execution proceedings.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
