Haryana

StateCommission

CC/59/2014

Suman Devi - Complainant(s)

Versus

Birla Sunlife Insurence - Opp.Party(s)

25 Nov 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                                                C.C.No.59 of 2014

Date of the Institution: 11.06.2014

Date of Decision:25.11.2016

 

Suman Devi W/o late Sh.Manoj Kumar R/o VPO Chirana, Tehsil Gohana, Distt. Sonipat.

…..Complainant

Versus

 

1. Birla Sun Life Insurance Company Limited through its Managing Director, One India Bulls Centre, Tower 1, 15 and 16^th Floor, Jupiter Mill compound, 841, Senapati Bapat Marg, Elphinestone Road, Mumabi.
2. Birla Sun Life Insurance Company Limited  through its Branch Manger, SCF No.1, Second Floor, HUDA Market, Sector-14, Sonepat.
3. Kamlesh W/o Sh.Divender R/o H./No.9B, Sujan Singh park, near Gurudwara, Sonipat.

…..Opposite parties

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

                    Mrs.Urvashi Agnihotri, Member

 

Present:-    Mr.Abhineet Taneja, Advocate counsel for the appellants.

                   Mr.Hitender Kansal, Advocate counsel for the respondent.

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

          It was alleged by the complainant that her husband Manoj Kumar obtained insurance policy from opposite party (O.P.) Nos.1 and 2 on  29.12.2010 valid upto 29.12.2040 for sum assured of Rs.35,10,000/- and the annual premium was Rs.10,501.05/-.  He paid four installments regularly as detailed below:-

“Sr. No.	Premium amount	Due date of payment	Date of payment
1	Rs.10501.05	29.12.2010	29.12.2010
2	Rs.10500.00	29.06.2011	14.06.2011
3	Rs.10500.00	29.12.2011	04.01.2012
4	Rs.10500.00	29.06.2012	15.07.2012”

 

Subsequently he paid Rs.21,010/- to O.P.-3 for revival of insurance policy on 08.08.2013 and also filled the certificate of insurability. On 12.08.2013 he was shot at and on 16.08.2013 he succumbed to the injuries. A case punishable under section 302/34  of Indian Penal Code, 1860 (in short “IPC”)  was also registered to this effect. She submitted death claim with the O.P.No.2 on 19.10.2013, but, her claim was repudiated vide letter dated 14.03.2014 on the ground that the policy was not in force at the time of death.  They refunded the premium of Rs. 21,010/- which is not encashed by her.  The O.Ps. be directed to pay the insured amount alongwith other compensation as prayed for.

2.      O.P. Nos. 1 and 2 have filed joint reply controverting her averments on the ground that insurance policy was re-instated on 21.08.2013 due to concealment of true facts.  DLA signed and filled certificate of insurability on 08.08.2013, but, premium was paid on 13.08.2009 through O.P.No.3., whereas he already received gunshot injury on 12.08.2013. The contract of insurance is based on the principle of ubberemafides and if party has not come with clean hands then the same is not entitled for any compensation.  Had the fact of injury been brought to their notice then insurance policy might not have been reinstated. Objections about jurisdiction, mis-use of process of law etc. are also raised and requested to dismiss the complaint.

3.      O.P.No.3 admitted the payment of premium on 08.08.2013 alongwith C-1 but alleged that she could not deposit the same up to 13.08.2013 because  on 08.08.2013 when she went to office of O.P.Nos.1 and 2, concerned official asked to come after some days because there was lot of rush.  Ultimately she deposited the same on 13.08.2013.  As per understanding with O.P.Nos.1 and 2 she used to collect premium on their behalf. She was never informed by complainant to settle the claim. Objections about maintainability of complaint and accruing cause of action were also raised and requested to dismiss the complaint.

4.      Arguments heard. File perused.

5.      Learned counsel for the O.P.Nos.1 and 2 vehemently argued that O.P.No.3 was not authorised to collect premium on their behalf.  When she accepted premium without authority, complainant cannot ask for compensation. If an agent Acts in violation of statutory provisions by collecting premium and subsequently does not deposit the same with insurance company in time then only the said agent is

responsible and not the insurance company. In the present case, before revival of insurance policy, insured was to tell about the state of health.  As per revival  Form Ex.R-3 DLA informed that he was having sound health. When he was shot at on 12.08.2013 then how it can be presumed that at the time of submission of this form on 13.08.2013 he was having a sound health.  The formalities were to be completed on 13.08.2013 and not before the same.  Due to concealment of this fact, insurance policy was revived, but, when this fact came to their notice claim was repudiated.  Complainant is not entitled for any compensation and complaint be dismissed.  In support of its arguments they placed reliance upon the opinion of Hon’ble National Commission in LIC Vs.Girdhari Lal P.Kesarwani & Anr. 2009 (2) CLT 673, Tarikh Exports House and Anr. Vs. UIIC 2010 (1) CPJ 95, LIC of India and others Vs.Radhey Shayam Kedia and others 2013 (3) CPJ 360, Ashwani Kumar and LIC of India Vs. Baldev Singh Rohal and another 2014 (2) CPJ 220 and  opinion of State Commission, Haryana in LIC Vs. Uma Rani 2011 (2) CLT 442.

6.      However there is no dispute as far as the opinion expressed by Hon’ble National Commission and State Commission, Haryana in the aforesaid case laws is concerned, but, O.P.Nos.1 and 2 cannot derive any benefit from them because facts of the present case are altogether different. It does not lie in the mouth O.P.Nos.1 and 2 that O.P.No.3 was not authorized to collect premium.  If it was so then why premium deposited by her on 13.08.2013 before death of DLA on 16.08.2013 was accepted and policy was re-instated on 21.08.2013. The Objection  should have been raised there and then that she accepted premium without any authority and that is why policy cannot be revived. As per section 186 of Indian Contract Act,1872 (In Short “Act”) an authority can be expressed or implied.  As per section 196 if any act done by one person on behalf of another person and is owned by other person then it could be presumed that the said act has been ratified. So it cannot be alleged that  O.P.No.3 was not having authority to receive premium. However the claim cannot be rejected on the ground that the latest state of health was not disclosed.  As per facts mentioned above it is clear that DLA submitted renewal form Ex.R-3 on 08.08.2013 and made payment to O.P.No.3 on that very day.  He told his state of health on the said date.  Even otherwise it cannot be expected that if a person is submitting renewal form on any given date then he should produce certificate about his health of the said date. One or two days are normally taken for submitting such like form.  More so O.P.Nos.1 and 2 could have asked O.P.No.3 to produce DLA to know about his health. Why they did not ask her about this fact is no-where explained. Instead of raising any such objection O.P.Nos.1 and 2 accepted the premium and re-instated the policy on 21.08.2013. Ex.R-3 dated 08.08.2013 is bearing signatures of Manoj i.e. DLA.  It is no where proved that this form is not bearing signature of Manoj and was prepared lateron i.e. after receiving the injury. This is a question of fact and it was the duty of the O.Ps. to prove that  this form is anti dated. Even if it is doubtful then benefit of doubt is to be given to the consumer. This fact proves that Manoj Kumar (since deceased) paid premium on 08.08.2013 and submitted the form on that very day.  It is not possible for every insured to verify that whether agent has deposited the form in time or not. So, it cannot be opined that there was any fault on the part of the DLA or that O.P.Nos.1 and 2 are not liable to pay sum assured and   that complainant can ask for compensation only from O.P.No.3.  Had the insurance policy being not revived then it could have been a different matter. It is internal matter in between them, complainant cannot be held liable. In LIC Vs Girdharilal’s (supra) case agent had no authority to accept premium  on behalf of LIC, in Ashwani Kumar Vs. Baldev Singh’s (supra) case the premium was deposited by the agent after the death of insured, whereas in the present case the same was deposited before his death and policy was renewed on 21.08.2013.  In Tarikh Exports House and Anr. Vs. UIIC’s (supra) case the insurance company succeeded to prove that accident took place on 24.06.2000 and cheque was given on 26.06.2000, whereas in the present case it is clearly proved that not only by renewal form EX.R-3 but also as per statement of O.P.No.3 that the premium was paid on 08.08.2013 much before the incident and death of DLA. So these arguments are of no avail and it cannot be opined that complainant is not entitled for compensation.

6.      In view of our discussion, complaint is allowed and complainant is held entitled for sum assured alongwith 09% interest from the date of filing of the complaint till realization.  Complainant is also entitled as of compensation for mental and physical harassment to the tune of Rs.21000/- and litigation expenses Rs.11,000/-. The opposite party Nos.1 and 2 are held liable to pay the amount jointly and severally.

 

November 25th, 2016 Urvashi Agnihotri                   R.K.Bishnoi,                                                        Member                        Judicial Member                                                Addl. Bench                  Addl.Bench                 

S.K.