ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not making the payment to the nominee of deceased policy holder Doddabasappa to his wife Sharanamma Kalavad and for payment of Rs.5,06,900/- with accrued bonus in respect of  the policy bearing No.02301840 issued on 08.10.2011 under policy “Creating Life Endowment Plan” and Rs.7,19,990/- in respect of policy No.02603199 dated 19.01.2013 and for damages of Rs.45,00,000/- from OP-1 and Rs.45,00,000/- from OP-2 for causing her mental agony and hardship and for other reliefs as the Commission deems fit.

2.     The brief facts of the complaint are that; the husband of the complainant one Doddabasappa Kalavad was having banking facility and transaction with OP-2 who is also an agent of OP-1, who is in the business of insurance. At the instance of OP-2 and under the influence and pressure of OP-2, in order to provide financial security to his wife, said Doddabasappa purchased two insurance policies from OP-1 for which OP-2 provided all the materials details and KYC available with it. All the papers were prepared, forms and confidential report were collected from OP-2 and their employees and agents.

3.     The first insurance was for a sum assured of Rs.2,53,450/- with death benefit of Rs.2,53,450/- under “Creating Life Endowment Plan” bearing No.02301840 issued on 08.10.2011, along with accrued bonus also and the period of payment of the policy term was for ten years.  

4.     OP-1 also issued another policy under “Star Life” bearing No.02603199 dated 19.01.2013 for a sum assured of Rs.2,35,460/- and the guaranteed death benefit of Rs.4,84,530/- and the period of payment of premium was for three years.  OP1 issued the policy certificate in respect of the said policies wherein his wife, the complainant, was made as nominee for both the policies.  Her husband Doddabasappa died, and upon his death complainant being the nominee of the said policies made a claim with OP1 for the benefits accrued in respect of the said policies obtained by her husband. At the time of obtaining the policy from OP1 either Doddbasappa or the complainant never wrote anything in respect of the policy proposal whereas the proposal form and other forms were filled by agent /representative of OP1 and 2 as per their wish and requirements to issue the policy by receiving the requisite premiums.

5.     It is contended that after the death claim made by the nominee i.e., the complainant, OP-1 has repudiated the insurance claim with ulterior motive of cheating and defrauding the policy holders in respect of the benefits available from the said policies. The act of repudiation of the death claim of the complainant is illegal, deficient in service and playing fraud on the policy holders and nominees in order to get enriched themselves. Hence prayed the Commission to allow the complaint and direct OPs to pay the amount as claimed.

6.     Upon the service of notice, OP-1 appeared through its advocate and filed version whereas OP-2 remained absent placed exparte and at a later date, by making application under Order IX Rule 11 CPC the order of exparte was got set aside, and it also filed separate version. 

7.     In the version filed by OP-1, it is contended that, the complaint is not maintainable either in law or on facts, it is vexatious, frivolous and liable to be dismissed. It is contended that the complainant’s husband Doddabasappa Kalavada submitted the proposal with OP for life Insurance policy under “Creating Life Child Protection Plan” and “ING Star Life.” OP issued the policy in good faith with utmost trust.  The first insurance policy bearing No. 02301840 was issued to the husband of the complainant upon the proposal date 08.10.2011 and the sum assured was Rs.2,53,450/- and the policy term was for 10 years premium payment term was 10 years and sum assured on death was Rs.2,53,450/-. 

8.     In respect of the second policy bearing No.02603199, “Exide Life Star Life” the proposal date was 18.01.2013 policy date 18.01.2013 sum assured Rs.2.35,450/-, policy term 12 years, premium payment period 3 years . The sum assured on death Rs.4,84,530/-.

9.     The said policy was issued on the policy “uberimafide” i.e. utmost good faith.

10.   It received the intimation of the death of the insured who died on  04.05.2018 due to heartattack and received the claim application on 05.06.2018. Internal investigation was conducted in respect of the claim as a routine practice, and found that, there was discrepancy of age of the assured.  As per the proposal form and the death claim form for the 1^st policy the date of birth mentioned as 20.04.1957.  and the documents relied for the age proof was school certificate. In respect of the second  policy, the date of birth of the insured was mentioned as 06.08.1958 and the document relied for the age proof was school certificate.  Since there was discrepancy in respect of the date of birth, OP further investigated and found that the Jagdguru Anndaneshwara Primary school, Mundaragi where the insured got admitted, his date of birth was entered as 01.06.1950. The policy holder has suppressed and misrepresented his correct age. The complainant has also produced the Aadchar card along with death claim form, wherein date of birth is mentioned as 1951 which means on the date of issuing of the policies, he was already 61 years and the maximum age limit for entry in respect of the first policy was 60 years, and in respect of the second policy was 55 years. Withholding of the information is material, intentional and the life assured has misguided and influenced the decision of OP to issue the policy. Upon such investigation, it was found that life assured has intentionally misguided and hence OP has no obligation to honour the claim and there is no deficiency of service and as per the terms and conditions of the policy, the insurance has become void from the commencement, and liable to be forfeited in case if the age of the life assured is found to be different from that declared while obtaining the policy and hence acting under clause 5.4 of the policy terms and condition, it has forfeited the insurance. Now the complainant wants to wriggle out the terms and conditions of a concluded contract and has intentionally twisted the facts to his advantage. There is no cause of action for the complaint to file this complaint and there is no merit or reason in the complaint and prayed to dismiss the complaint.

11.   OP-2 filed the version contending that there is no cause of action against it in filing this complaint which is liable to be dismissed. OP -2 availed insurance policy from OP-1. OP-2  being a banking company and a corporate agent, is not in the business of insurance. Mr Doddabasappa was a customer of OP-2 and intended to avail certain policies from OP-1. OP-2 assisted in obtaining the policies by explaining the terms and conditions of the policy completing the required formalities and forwarding the application to OP-1. The contract of insurance was between Doddabasappa and OP.1. The premium was also paid to OP-1.  The bonus or any other amount pertaining to the policy is to be paid by OP-1 there is no deficiency in service on behalf of OP-2.  The consideration for the insurance was paid by Doddabasappa to OP-1 to get the insurance policy.  No insurance service is obtained from OP-2. Hence complainant is not a consumer of OP-2. Hence the complaint is not maintainable and liable to be dismissed.

12.   It is further contended that, OP-2 is a corporate agent of OP-1 under the relevant IRDAI regulations. The deceased Doddabasappa was a customer of OP-2, availing banking facilities since he intended to avail certain insurance policy from OP-1, OP-2 as a corporate agent of OP-1, assisted and explaining the terms and conditions of the policy intended to avail, completed formalities pertaining to it and forward relevant documents to OP-1. The policies were sourced by Mr.Doddabasappa at his free will. Further the insurance policy was issued to Mr.Doddabasappa after obtaining his permission and approval. The role of OP.2 is limited to the extent as above. The contract of insurance was executed by OP-1 with the Doddabasappa. The premium was also paid to OP-1. After the payment made, it is the responsibility of OP-1 and OP-2 has no role to play. OP-2 is a custodian of the documents pertaining to the insurance policies. Any dispute pertaining to honouring the terms and conditions of the insurance policy is a matter between the insurer and the insured.  There is no privity of contract between the Doddabasappa and OP-2.  No documents had been produced by the complainant to show that she is the wife deceased Doddabasappa and no liability can be fastened on OP.2. 

13.   The policy was obtained by Doddabasappa voluntarily and not persuaded by OP.2.  OP.2 has explained each and every term applicable in respect of the policies and he only signed in the places in the form. The averment that the policy document was not written by Doddabasappa but was filled by OP-2 as per its wish, will, manipulation imagination requirement has been denied.  It has denied that the contents of the proposal form was falsely written by the agent, and by representatives of OP-2, and contents were manipulated by OP.2 and the statement and allegation of cheating fraud illegalities by OP-2.  The repudiation of the claim by OP-1 is its own act and OP-2 has nothing to do with the said obligation. No liability can be fastened to OP-2. There is no deficiency in service on its part. Complainant has no right of remedy against OP-2 and prayed the commission to dismiss the complaint.

14.   In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

15.   Our answers to the above points are:-

POINT NO.1:    IN THE AFFIRMATIVE

POINT NO.2:    PARTLY IN THE AFFIRMATIVE.

                        For the following:-

REASONS

POINT No.1:-

16.   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the husband of the complainant Doddabasappa was the customer of OP-2 and as per the admission made in the version of OP-2. It facilitated to provide the policy to the husband of the complainant by providing the details and the documents. In clear and unequivocal terms it is mentioned in the version as well as in the affidavit filed in lieu of evidence that “Since Doddabasappa intended to avail certain insurance policies from OP-1, OP-2 as a corporate agent assisted in explaining the terms and conditions of the policies, he intended to avail, completed formalities pertaining to it and forwarded relevant documents to OP-1.” When this is taken into consideration all the requirement to be filled up in the proposal form including that of the date of birth of the insured was provided by OP-2 only. The deceased Doddabasappa has only put his signature. The rest of the matters were filled-up by oP-2 or his agent in order to have the business.

17.   It is not in dispute that, the polices were issued by OP-1 upon accepting the proposal, upon OP-2 providing information on both occasion. It ought to have noticed the difference in the date of birth while issuing the said policies.  OP-1 kept quite all the while, and when the complainant as a legal heir of the deceased Doddabasappa made the insurance claim in respect of the said policies it has contended that it verified through an investigation that the date of birth given is false and the insured has suppressed the material facts.

18.   It has further contended that, it cames to its knowledge by obtaining admission certificate that the date of birth of the deceased Doddabasappa as per the school register is  20.04.1957 as Ex.R6 and as per the Aadhar card the year of birth is mentioned as 1951 and as per PAN card the date of birth is mentioned 30.06.1951 and as per the first policy date of birth is  20.04.1957 and as per second policy bearing No.02603199 date of birth is 06.08.1958 and when the date of birth as mentioned in PAN Card and Aadhar card is taken into consideration, along with admission register extract given by school authorities, the date of birth is 01.06.1950 and when these are all taken into consideration the age at entry level for the first policy was 60 years and for second policy 55 years, and the insurer was not at all eligible to get the insurance, and as the husband of the complainant suppressed the material facts and informed that the date of birth is 20.04.1957 for the first policy and 06.08.1958 for the 2^nd policy they have issued the insurance policy otherwise he would not have been eligible to get the policy. 

19.   It is to be noted here that the first policy the premium is to be paid for 10 years i.e. from October 2011 to October 2021. Whereas in respect of the second policy the policy term is 12 years and premium payable is for three years. The policy commenced from 2013 and the last installment premium to be payable was on 18.01.2015. That means OP-1 has received the entire premium and the period of insurance was for a period of 12 years.  In respect of the 1^st policy the policy period is 10 years and the maturity /expiry date 08.10.2021 and the last amount of premium payable is 08.10.2020.

20.   The claim has been made by the complainant immediately after the death of Doddabasappa. The death certificate is produced by the complainant shows that the insured died on 04.05.2018 which is within the said policy period. 

21.   The only contention of OP-1 in repudiating the insurance is that the husband of the complainant has suppressed the fact of his actual date of birth whereas, he has given his wrong date of birth so as to get the insurance. The said fact cannot be accepted as OP-1 has issued two insurance policies one in the year 2011 and another in the year 2013 both for a period of 12 years and 10 years wherein the date of birth mentioned is different. When such being the case, OP-1 ought to have conducted enquiry and investigation at that time itself and ought to have resorted to cancellation of the policies, if at all, it has come to the conclusion the insured has suppressed the actual date of birth. After receiving all the premium amount happily, now OP-1 is finding lame excuses and reasons to repudiate the insurance which is much against to Section 45 of the Insurance Act.  The insurance companies have made it a policy that “Repudiation is a rule and honouring the claim is an exception.” even though it has received the entire premium. Hence we are of the opinion that the rejection of the claim of the complainant upon the death of her husband even though the premium was paid regularly and death has occurred within the policy period, amounts to deficiency in service and unfair trade practice. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

22.   In the result, the complainant is entitle to the proceeds of the insurance policies issued by OP-1 in favour of the deceased Doddabasappa as a legal heir/nominee of the deceased in respect of the said policies. 

23.   In respect of the first policy, the sum assured on the death is Rs.2,53,450/- and in respect of 2^nd policy is Rs.4,84,530/- with accrued bonus and other benefits.  Further on the death of the complainant’s husband  and on the date on which the death claim form submitted to OP-1 on 05.06.2018, within a reasonable time, OP-1 ought to have allowed the claim and paid the death benefits.  Whereas as stated above, for no fault of the complainant and not taking action immediately after coming to know that the difference in the date of birth mentioned in the above two policies, repudiated the claim for which, OP-1 has to pay interest on the said amount at 12% per annum till payment of the entire amount to compensate the financial loss to the complainant. Further  the act of OP in repudiating the claim of the complainant for trivial reasons and that too, entire details of the insured has been provided by its agent i.e. OP-2, put the complainant in to mental worry and agony and also physical hardship and hence we direct OP-1 to pay a compensation of Rs.1,00,000/- and further the litigation expenses of Rs.15,000/- within 30 days failing which the said sum also shall carry interest at 12% per annum from the date of filing of this complaint and answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP-1 and 2 are jointly and severally directed to pay a sum of Rs.2,53,450/- in respect of the First Insurance Policy and Rs.4,84,530/- in respect of the Second Insurance Policy with accrued bonus and other benefits along with interest from 05.06.2018 on the said amount at 12% per annum till payment of the entire amount to compensate the financial loss to the complainant.
3. Further OP-1 and 2 are hereby directed to pay Rs.1,00,000/- towards compensation and Rs.15,000/- towards cost of the litigation and other expenses to the complainant.
4. OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^TH DAY OF JULY 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Death certificate.

Ex P2: Copy of the Insurance policy with policy schedule

Ex. P3: Copy of the acknowledgement for having made the claim.

Ex P4: Copy of the letter written by OP-1

Ex P5: Copy of the another letter dt:28.11.2018 by OP-1.

Ex P6: Copy of the Aadhar card of the complainant.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Chidanand.P, Legal Officer of OP.

RW-2: Sri Guruprasad Nayak, Associate Vice President – Legal.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1 & R2: Copies of two proposal form in respect of the two policies.

Ex R3 & R4: Copy of the terms and conditions of the policies.

Ex R5: Copy of the policy schedule.

Ex R6: Copy of the death intimation claim along with documents.

Ex R7: Copy of the transfer certificate issued by Jain Education Society.

Ex R8: Copy of the school certificate issued by school.

Ex R9: Copy of the certificate of date of birth issued by Jagadguru Annadaneshwar Higher Primary School, Mundaragi.

Ex R10: Copy of the Aadhaar Card.

Ex R11: Copy of the broacher.

Ex R12: Copy of the repudiation letter.

MEMBER            MEMBER                  PRESIDENT

RAK*