Haryana

StateCommission

CC/169/2015

SANTOSH KUMARI - Complainant(s)

Versus

AVIVA LIFE INSURANCE CO. - Opp.Party(s)

T.S.GREWAL

08 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.169 of 2015

                                                       Date of Institution: 24.09.2015                  Date of Decision: 08.05.2017

 

1.      Santosh Kumari, W/o Late Sh.Kimti Lal Kapoor, Mother of Late Sh.Pawan Kapoor (deceased), aged 75 years, R/o H.NO.B-9, 1283, Vishnu Nagar, Near Laxmi Narayan Mandir, Jagadhri workshop, Yamuna Nagar 135002.

2.      Mukesh Kapoor, S/o Late Sh.Kimti Lal Kapoor, r/o H.No.B-9, 1283, Vishnu Nagar, Near Laxmi Narayan Mandir, Jagadhri Workshop, Yamuna Nagar (Nominee of deceased Late Sh. Pawan Kapoor/Policy Holder).

…..Complainants

 

Versus

 

1.      The Branch Manager, Aviva Life Insurance Co. Ltd., SCO No.180-181-182, Sector 9-C, Chandigarh.

2.      Aviva Life Insurance Co. Ltd. Through its Managing Director Regd. Office, 2^nd Floor, Prakashdeep Building, 7 tolstoy Marg, New Delhi-110001.

3.      Aviva Life Insurance Co. India Ltd., through its Managing Director, at Aviva tower, Sector road, Opposite DLF golf Course, DLF Phase-5, Sector-43, Gurgaon, Haryana.

          …..Opposite Parties

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.T.S.Grewal, Advocate counsel for the complainants.

                             Mr.Nitin Gupta, Advocate for the opposite parties.

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          As per complainant Sh.Pawan Kapoor-Deceased Life Assured (DLA) obtained  Aviva Life Shield Platinum insurance policy from opposite parties (O.Ps.) on 19.12.2011 for Rs.50,00,000/- and annual premium to be paid was Rs.8383/-. The date of maturity was 19.12.2050.  He was working as sweeper with State Bank of India Yamuna Nagar and was getting Rs.7763/- p.m. after all deductions. Complainant Nos.1 and 2 and unmarried sisters aged 25 years were dependent upon him. He died in the month of May 2012 due to administration of wrong medicines, as mentioned in the postmortem report.   Information was given to O.ps. immediately and all the relevant papers including post-mortem report, death certificate etc. were handed-over, but, claim was not settled. Ultimately letter dated 30.06.2015 was sent to O.Ps. and it was replied vide letter dated 08.07.2015 that their claim was rejected on 31.12.2012, whereas no information was given to them. The claim was rejected on the ground of false declaration about occupation and income which was altogether wrong.

2.      O.ps. filed reply controverting his averments and alleged that at the time of obtaining insurance policy  he disclosed his income as Rs.1,81,090/- per annum and profession as supervisor in State Bank of Patiala. Whereas he was working as sweeper and getting salary of Rs.7763/- only. He made  false declaration about income and  occupation and that is why his claim was repudiated. The complaint was also time barred as per section 24 A of consumer Protection Act, 1986 (In short “Act”) because their claim was rejected vide letter dated 31.12.2012 and they filed complaint on 22.09.2015.

3.      Arguments heard. File perused.

4.      Learned counsel for complainant vehemently argued that DLA did not make false declaration while obtaining insurance policy. It was specifically told that he was working as a peon and his income was Rs.7070/-. Copy of proposal form Ex.C-1/Ex.R-1 clearly shows that there is overwriting in the column pertaining  to profession as well as annual income.  This cutting was done lateron to defeat their right.  Mr. Shantu Behal appeared as witness of O.Ps. and stated that in this case proof of age and income were collected from DLA. Had the information been wrong the same would have been brought to his notice there and then.  He further argued that the complaint cannot be considered as time barred because they were never informed about repudiation of their claim before notice dated 30.06.2015 sent by them. So they are  very much entitled for the compensation  as prayed for. In support of his arguments he placed reliance upon the opinion of  Hon’ble National Commission expressed in LIC of India Vs. K.Purushothama 2006 (2) C.P.C. 616 and opinion of State Commission Punjab expressed in Life Insurance Corporation of India Vs.Satwinder Kaur  2009 (1) C.P.J. 461. 

5.      However there is no dispute as far as opinion expressed in the aforesaid case laws is concerned, but, if we go through evidence available on file, it will be clear that DLA obtained insurance policy by concealing true facts.  Cutting against the column of designation was counter-signed by DLA, so it can be presumed that he claimed himself to be supervisor and not as a sweeper.  As far as column of income is concerned this fact is also proved from financial statement signed by DLA attached with Ex. R-1, which is as under:-

                   “Life assured annual income         Rs.181090/-.”

When this document was also signed by DLA, it cannot be presumed that cutting was made on Ex.R-1 lateron. These entries are corroborating each other.  Keeping in view the financial status of complainant, as mentioned above, this policy might have been issued, otherwise there was no question of issuing policy with such high premium. However there is no dispute as far as the opinion expressed by this Commission in the aforesaid case laws is concerned, but, the complainant cannot derive any benefit from the same because  the facts of the present case are altogether different.  In those cases bonafide of the complainant was not doubtful.  As per terms and conditions of insurance policy in case of concealment of material facts or ailments, insured is not entitled for any compensation because cardinal principle of contract of life insurance is uberrema fides i.e. utmost good faith.  When complainant has concealed the true facts from the opposite party he was not entitled for any relief as per opinion of Hon’ble National Commission expressed in revision petition No.3114 of 2014 titled as Amzad Khan Vs. Aviva Life Insurance Co. Ltd. decided on 30.01.2015. Relevant portion of which is as under:-

“It is submitted that the contract of insurance including the contract of life assurance are contracts uberrima fides and every material fact must be disclosed otherwise there is good ground for rescission of the contract.  The Apex Court Judgement of Satwat Kaur Sandu Vs. New India Assurance Co. Ltd. IV (2009) CPJ 8 (SC) has referred the term “proposal Form” as defined under the Insurance Regulatory and Development Authority, 2002 as a “Form” to be filled in by the proposer for insurance, for furnishing all material information required by the insurer to decide whether to accept or decline, to undertake the risk and in the event of  acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted and observed that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is “material fact”.  If the  proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form.  It is submitted that the complainant has no “locus standi” to claim any alleged sum assured, as the insurance policy was obtained by the DLI by mis-representation of material facts in order to defraud the opposite party.  The contract of insurance is void, and not tenable in the eyes of law as it is entered by DLI to defraud the opposite party.  In these circumstances, the complaint is liable to be dismissed in limine.”

6.      Further this complaint is also time barred. As per averments of the complainants Pawan Kapoor died in the year May 2012 and thereafter they submitted claim with O.Ps.  In this way cause of action accrued to them in the month of May 2012 and they should have been filed complaint by the month of May 2014, whereas this complaint was filed on 24.09.2015.  They should have filed complaint within two years from accruing cause of action as provided under section 24 A of the Act. When initial complaint was time barred, this complaint cannot be considered in time. It is opined by Hon’ble Supreme Court in V.N.Shrikhande (Dr.) Versus Anita Sena fernandes 2011 CTJ 1 (supreme court) CP)   qua limitation as under:-

“Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action.  In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen.    This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under section 24A (2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under section 24 a (1).  If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24a(2), the consumer Forums will have no option but to dismiss the same.”

          The present case is fully covered by V.N.Shrikhande (Dr.) Versus Anita Sena fernandes (Supra).

7.      Looking from any angle, it is clear that complainant is not entitled for compensation. Resultantly complaint is hereby dismissed.

May, 08th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.