District Consumer Disputes Redressal Forum, Near FCI Godowns, Muradpura, Tarn Taran (Punjab)
Consumer Complaint No : 17 of 2016
Date of Institution : 11.2.2016
Date of Decision :19.7.2016
Davinder Singh (now deceased) through L.Rs.
- Smt. Manjinder Kaur, wife
- Gursahib Singh (minor son) through his mother, Smt. Manjinder Kaur, both residents of village Jhamke, Tehsil and District Tarn Taran.
…Complainants
Versus
- Birla Sun Life Insurance Co. Ltd. one India Bulls Centre Tower, 1, 15th and 16th Floor, Jupiter Mill, Compound, 841, Senapati Bapat Marg, Elphinestone Road, Mumbai
- Birla Sun Life Insurance Co. Ltd. Branch Tarn Taran, through its Branch Manager.
…Opposite Parties.
Complaint Under Section 11, 12 of the Consumer Protection Act.
Present:
Quorum: Sh. A.K. Mehta, President
Ms. Jaswinder Kaur, Member
For the complainants Sh. Updip Singh Advocate
For Opposite parties Sh. Rajbir Singh Sandhu Advocate
A.K. Mehta, President
1 Complainant Davinder Singh has filed the present complaint under section 11 and 12 of the Consumer Protection Act (herein-after called as ‘the Act’) against Birla Sun Life Insurance Company Ltd. etc. Opposite Parties (O.Ps.) on the allegation of deficiency in service and negligence on the part of the opposite parties with request to direct the opposite parties to reimburse the insurance claim and benefits and besides Rs. 50,000/- as compensation and Rs. 10,000/- as litigation expenses.
2 The case of the complainant in brief is that Darshan Kaur mother of the complainant took life insurance policy bearing No. 005035539 dated 9.8.2011 issued on 9.8.2011 under Platinum Advantage 2010 scheme and tenure of policy was 10 years with 5 years payment period and total sum assured was Rs. 4,55,000/- and annual premium amount was Rs. 65,910/-; that opposite parties verified the documents submitted by Darshan Kaur and then issued client I.D. No.2594629415 and Darshan Kaur nominated the complainant as her nominee in the policy; that Darshan Kaur paid first premium which was accepted by the Opposite Parties without any objection but unfortunately Darshan Kaur died on 29.8.2011 leaving the complainant as his only legal heir; that after the death of Darshan Kaur, complainant being nominee was entitled to the benefits of insurance policy as per terms and conditions of policy; that the complainant contacted the opposite parties many times and requested to reimburse sum assured and benefits but the opposite parties delayed the matter on the one pretext or the other and finally repudiated the claim of the complainant vide letter dated 11.10.2011 and 23.12.2011 on the ground that date of birth of the insured Darshan Kaur was given wrong; that the opposite parties are guilty of deficiency in service and this act of the opposite parties caused harassment, inconvenience and agony to the complainant and as such, the complainant is also entitled to compensation of Rs. 50,000/- and is also entitled to litigation expenses besides policy amount but the opposite parties have not paid the same to the complainant inspite of repeated visits and requests. Hence, complaint was filed.
3 After formal admission of the complaint, notice was issued to the Opposite Parties. Opposite Parties appeared through counsel and filed the written reply contesting the complaint on the preliminary objections that complaint is not maintainable and complainant has no cause of action to file the present complaint. It was asserted that opposite parties floated the insurance schemes for general public after prior approval of “IRDA” and all terms and conditions of polices were set by “IRDA”; that complainant has not come to the Forum with clean hands and has suppressed material facts; that intricate questions of law and facts are involved in this case which requires the examination of witnesses which is not possible under the Consumer Protection Act, as the proceedings under Consumer Protection Act are of summary nature and as such, complainant should file a civil suit for the relief sought in the complaint; that Darshan Kaur concealed the material facts and misrepresented the Opposite Parties and induced the Opposite Parties to issue the insurance policy on false and incorrect information and as such, there is no deficiency in service on the part of the opposite parties and complainant is not a consumer as defined under the Act and as such, this Forum has no jurisdiction to try this complaint; that complainant is estopped from filing the present complaint by his own act and conduct; that the insured did not disclose correctly her age and as such, committed breach of fundamental principle of utmost good faith on which insurance agreement depends and the opposite parties have rightly repudiated the claim of the complainant under Section 45 of the Insurance Act 1938 and complaint is liable to be dismissed. On merits, it was asserted that the insured after getting information regarding all plans of the Opposite Parties opted to purchase Platinum Advantage plan policy from the Opposite Parties and applied for the same vide application No. A43800731 dated 3.8.2011 and all the contents of the application were read over and explained to the insured and after understanding the same, insured signed the application; that insured stated her date of birth as 1.1.1943 and filed self attested Voter ID No.PB/03/022/285637 issued by Election Commission of India on 1.6.1995 wherein her age was stated as 51 years and as such, the age of insured at the time of filing the application was 67 years and insured disclosed her annual income as Rs. 3 Lacs. The insured opted policy terms as 10 years and premium payment term as 5 years and basic premium as Rs. 65,000/- per annum and basic sum assured as Rs.4,55,000/- and mode of premium payment as semi annually and as such, life assured paid first installment of premium as Rs. 32,955/- by cash; that after receiving the application and believing the contents of the application as true and correct and after assessing the risk to be undertaken and on the basis of said information, policy No. 005035539 dated 9.8.2011 was issued to the insured and all the policy documents alongwith terms and conditions were sent to the insured and were received by her on the given address. It was admitted that complainant is nominee under the policy. It was admitted that life assured died on 29.8.2011 and opposite parties received claimant statement dated 21.9.2011 on 26.9.2011 alongwith death certificate; that complainant is nominee of the life assured under the policy but does not fall within the ambit of Consumer under the Act; that the complainant filed the claim under policy being nominee on 21.9.2011 and filed all the documents alongwith it; that life assured died within a very short span of 19 days from the date of issuance of policy and after receiving the claim from complainant, the opposite parties conducted the investigation in the said death claim and during investigation, opposite parties procured a Ration Card issued in 2006 which reveals the age of life assured as 70 years in 2006 and as such, the life assured was 75 years in 2011 when life assured applied for policy; that Electoral List issued by Election Commission of India in 2011 shows the age of life assured as 80 years towards I.D. No. PB/03/022/285637 and as such, the life assured was 80 years and not 67 years as stated by her in the said application. Therefore, the claim of the complainant was rightly repudiated considering the suppression and misrepresentation of material facts regarding age of assured; that as per the product feature, the maximum entry age of a life assured under the Platinum Advantage is 70 years, whereas life assured was 80 years old at the time of filing application for said policy and had the opposite parties aware of the correct age of life assured, the said policy would not have been issued at the first instance; that life assured was required to disclose the correct facts to the insurer but life assured submitted false declaration regarding her age and has committed breach of fundamental Principles of insurance i.e. utmost good faith; that these circumstances amounts to fraud and as such, policy is void abinito. All other allegations mentioned in the complaint were also denied being false and incorrect and prayer was made for dismissal of the complaint with costs.
4 Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant tendered in to evidence his affidavit Ex. CW1/A alongwith documents Ex. C.1 to C.6 and closed his evidence.
5 In order to rebut the evidence of the complainant, the Opposite Parties tendered in to evidence affidavit of Sreemaya Athikkat Ex. RW1/A alongwith documents Ex. R.1 to R.5 and closed the evidence.
6 After hearing the Ld. Counsel for the parties and vide order dated 6.6.2012 the then Ld. District Forum Tarn Taran observed that the matter should be decided by the Civil Court to ascertain the age of Darshan Kaur at the time of selling the policy and complainant may knock the door of Civil Court to seek his Redressal. Thereafter, the complainant filed appeal in the Hon’ble State Commission, Punjab, Chandigarh and vide order dated 18.1.2016 the Hon’ble State Commission, Punjab Chandigarh set aside the impugned order dated 6.6.2012 and remanded the case to the District Forum Tarn Taran with the direction to dispose of the complaint on merits in accordance with law.
7 During the pendency of the case, complainant Davinder Singh died and his L.Rs. were impleaded in his place. As the parties have already concluded their evidence before the remand of case, therefore we have heard the Ld. counsel for the parties and have gone through the file.
8 Ld. counsel for the complainant contended that complainant Davinder Singh is son of the insured Darshan Kaur. He contended that Darshan Kaur insured filed application for this purpose which was accepted by the opposite party and the insurance policy was issued on 9.8.2011. He further contended that due to bad luck Darshan Kaur died on 29.8.2011 and death certificate of Dashan Kaur is proved on the file as Ex. C-2 and insurance policy is proved as Ex. C-1. He contended that complainant was made as nominee in the insurance policy by Darshan Kaur and accordingly, complainant filed a claim with the insurance company but the same was wrongly repudiated vide letter Ex. C-5 on the ground that Darshan Kaur suppressed material facts regarding her age as Darshan Kaur stated her age as 68 years in the application form whereas Darshan Kaur was about 80 years old at the time of filing application. He contended that complainant gave her date of birth as 1.1.1943 in the proposal form and attached voter card in proof of her age. He contended that as the age was not certified by standard document because she filed voter card which is non standard age proof and as such, she paid extra premium as per demand of opposite parties which is clear from the receipt proved by the opposite parties and is attached with the proposal form and as such, opposite parties now cannot dispute the age of insured. He contended that Darshan Kaur was not suffering from any disease and even all the tests regarding her health were also got conducted by the opposite parties and same are also proved on the file even by the opposite parties. He contended that claim of the complainant has been repudiated illegally and without any sound basis as claim was repudiated on the basis of voter list which is again non standard age proof whereas opposite parties have not produced any evidence to show that voter card filed by the complainant at the time of filing application was fake or bogus and as such, complaint is required to be allowed and opposite parties are required to be directed to pay insurance claim and benefits alongwith compensation and litigation expenses as mentioned in the complaint.
9 Ld. counsel for opposite parties contended that the insured had not filed the application with clean hands and has suppressed material facts regarding her age. He contended that insured stated her age as 68 years at the time of filing the application and insurance policy was issued on 9.8.2011 but the insured died on 29.8.2011 that is within 19 days from the date of issuance of policy and in such situations, investigation is usually conducted by the insurance company and accordingly investigation was ordered and investigator filed report vide which age of insured was 80 years at the time of filing application and entry age for platinum advantage plan was 70 years maximum and as such, insured was not entitled for the platinum advantage plan and claim has been rightly repudiated by the opposite parties. He further contended that complainant is not consumer of the opposite parties as defined under the Consumer Protection Act and as such, this Forum does not have any jurisdiction to try and entertain this complaint and as such, the complaint is liable to be dismissed with costs.
10 The proposal form is proved on the file as Ex. R-1 in which date of birth of insured is mentioned as 1.1.1943. The insurance policy is proved on file as Ex. C-1 which was issued on 9.8.2011. The voter card of the insured Darshan Kaur is proved as Ex. C-3 in which her age is mentioned as 51 years on 1.1.1994. As such, the age of insured Darshan Kaur on the date of issuance of policy was 68 years. Admittedly the voter card is non-standard age proof and due to this reason the insured has paid extra premium as contended by the Ld. counsel for the complainant and is mentioned in receipt dated 3.8.2011. There is no rebuttal to this argument of the complainant that extra premium for non-standard age proof was paid. In case opposite parties accepted non-standard age proof for the purpose of age and received extra premium for this purpose then it does not lie in the mouth of opposite parties now to contend that complainant has not given her age correctly. Otherwise also the opposite parties rely on the voter list and ration card which are again non-standard age proof and as such are not conclusive evidence regarding age of insured. Otherwise also, opposite parties have not led any evidence on the file that the voter card of the complainant proved on the file is a fake or bogus voter card. As such, it can be safely concluded that opposite parties have wrongly repudiated the claim of the complainant on the ground that the insured has given incorrect age at the time of filing the application for insurance policy particularly when insurance company have received extra premium for non-standard age proof.
11 Otherwise, the complainant does not fall within the definition of consumer under the Act as the insurance policy in question issued to the complainant was a unit linked insurance policy which is clear from insurance policy in question Ex. C-1. Even application form Ex. R-1 shows that the application was for issuing the unit linked insurance policy. In case titled Ram Lal Aggarwal- petitioner Versus Bajaj Allianz Life Insurance Co. Ltd. & Anr.- Respondents III(2013) CPJ 203 (NC), a unit linked policy was issued by the insurance company and in a dispute between the parties regarding the policy, it was observed by the Hon’ble National Commission that policy having been taken for investment of premium amount in share market which is for speculative gain, complainant does not come within purview of Consumer Protection Act 1986 and complaint is not maintainable. In the case in hand also, complainant filed an application (Ex. R-1) for issuance of insurance policy and the application itself shows that the application was for issuance of unit linked policy. Thereafter, insurance policy Ex. C-1 was issued to the complainant and policy also shows that premium is to be invested in investment fund at the prevailing unit price. The unit linked policy is dependant on the market volatility and value of the unit may go up and may come down, dependent upon the market conditions and as such the investment made by the insured was to gain profit and as such it was invested for commercial purpose and complainant is not a consumer under the Act. As such, the complainant does not fall under the definition of the consumer under the Consumer Protection Act and in this eventuality, complaint under Consumer Protection Act is not maintainable and complainant is not entitled to the relief sought in the complaint.
12 In the light of above discussion, complaint fails and same is hereby dismissed. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
Dated: 19.7.2016
(Jaswinder Kaur) (A.K. Mehta)
Member President
