Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 487.
Instituted on : 13.07.2010.
Decided on : 14.01.2015.
Anita wd/o Shri Surender Singh resident of village Dobh, District Rohtak.
………..Complainant.
Vs.
- Bajaj Allianz General Insurance Co. Ltd. through its Chairman/ Managing Director Registered Office 1 DLF Industrial Plot IInd Floor Moti Nagar, New Delhi.
- Branch Manager, Bajaj Allianz General Insurance Co. Ltd. Subhash Park, Delhi Road, SCF-23,1st Floor, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.Mukesh Parmar, Advocate for the complainant.
Sh.Puneet Chahal, Advocate for the opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that husband of complainant had obtained personal accident policy having no.OG-09-0110-09901-00000004 from the opposite parties for the period of one year for sum assured Rs.500000/-. It is averred that at the time of applying the policy on 26.07.08 he has made the payment through cheque no.562643 drawn on Indian Bank, Jhajjar amounting to Rs.2809/- for which the receipt was also issued. It is averred that unfortunately husband of the complainant met with an accident and died on 29.07.08 in Delhi and FIR No.443 dated 28.07.08 was lodged. It is averred that all the documents including FIR, MLR, PMR and policy papers were submitted with the opposite parties. Complainant requested the opposite parties many times to settle the claim and also served a legal notice through registered post on 17.05.2010 but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to pay the claim amount as per policy, to pay a sum of Rs.25000/- as compensation and Rs.11000/- as litigation expenses to the complainant.
2. On notice, the opposite parties appeared and filed their written reply submitting that the period of insurance from 30.07.2008 to 29.07.2009 and the death of proposer Surender Singh as submitted on 29.07.2008, so the policy was not effective at the time of death. It is further submitted that the cheque dated 26.07.2008 was received on 30.07.2008 and the receipt dated 30.07.2008 vide receipt no.1110-00013009 is issued. It is averred that the previous dated cheque dated 26.07.08 was received on 30.07.08 by the answering opposite party. So there was concealment of facts of death of the deceased at the time of insurance cover on 30.07.08. It is denied that the payment was received on 26.07.2008 as the cheque dated 26.07.2008 was submitted to the answering opposite party on 30.07.2008. It is averred that complainant is not entitled for any claim as the policy was not effective at the time of death. All the other contents of the complaint were stated to be wrong and denied. It is prayed that the complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.CW1 to Ex.CW14 and has closed his evidence. On the other hand, ld. Counsel for the opposite party tendered affidavit Ex.RW1/A, document Ex.R1 and has closed its evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per policy schedule Ex.CW13, the husband of the complainant was insured with the opposite party for a sum of Rs.500000/-. As per the death certificate Ex.CW9, the date of death of Surender is 29.07.2008. After the death of Surender, complainant filed the claim with the opposite parties and submitted all the relevant documents but the opposite parties has not settled the claim on the ground that the period of insurance was from 30.07.2008 to 29.07.2009 and the date of death of proposer Surender Singh was 29.07.2008. Hence the policy was not effective at the time of death and complainant is not entitled to any claim.
7. On the other hand contention of ld. Counsel for the complainant is that the premium for the policy was deposited on 26.07.2008 and the formalities of issuing of policy i.e. proposal form etc. were completed on 26.07.2008 and the payment was accepted by the opposite parties through their agent on 26.07.2008. The receipt to this effect has been issued by the opposite parties and as such the policy was effective on the date of death of insured. To prove his contention ld. Counsel has placed reliance upon the receipt Ex.CW14 as per which the receipt no. is 1110-00013009 dated 30.07.2008 and the date of cheque/instrument is 26.07.2008. It is further contended that as the cheque was deposited on 26.07.2008 hence the policy was to be commenced from 26.07.2008 and not from 30.07.2008. Ld. Counsel has also placed reliance upon the law cited in 1(2013) CPJ 155(NC) titled as ICICI Prudential Life Insurance Company Ltd. Vs. Bimal Kanta Kharab whereby Hon’ble National Commission has held that: “Death claim-Repudiated on ground that accident occurred within 45 days from date of commencement of life cover-Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence revision-Cheque for insurance premium was issued by deceased on 13.12.12006, while he died on 30.01.2007-Death has occurred only after 47 days from date of deposit of amount of premium with petitioner-Life cover had already commenced form 13.12.2006 and not from 2.1.2007, when policy was issued-Repudiation not justified”, as per 2009(3)CLT100 titled as Sathavahana Sea Foods(P) Ltd. Vs.Oriental Insurance Co. Ltd. Hon’ble National Commission, New Delhi has held that: “In the absence of pleading and proof the Insurance Company who had kept the cheque from 6.11.1991 till it was presented for encashment on 25.11.1991, cannot be heard to say that the risk was not covered on 26.11.1991, when the insured vessel sank” and as per Section64-VB of Insurance Act, 1938 it is submitted that: “For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.- When the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cueque is posted, as the case may be” and “Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or dispatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty-four hours of the collection excluding bank and postal holidays. Moreover the opposite party has not placed on record the proposal form to prove that on which date the proposal for the policy was made. In this regard reliance has been placed upon the law cited in AIR 1968 S.C.1413 titled Gopal Krishnaji Vs.Mohamed Haji Latif and others, whereby Hon’ble Supreme Court of India has held that: “A party in possession of best evidence which would throw light on the issue in controversy withholding it-Court ought to draw an adverse inference against him”.
8. In view of the aforesaid law which are applicable on the facts and circumstances of the case it is observed that as per the receipt Ex.CW14 the date of cheque/instrument was 26.07.2008 and the policy was effective and risk was covered on 26.07.2008 i.e. at the time of death of life assured. As such the opposite parties are liable to pay the claim amount to the complainant as per policy. Accordingly the opposite parties are directed to pay the sum insured of policy no. OG-09-0110-09901-00000004 amounting to Rs.500000/-(Rupees five lac only) along with interest @ 9% p.a. from the date of filing the present complaint i.e.13.07.2010 till its realization and shall also pay a sum of Rs.2200/-(Rupees two thousand two hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall fetch interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
14.01.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
