In The Court Of District Consumer Forum, Banka
Complaint Case No. : 2 Of 2013
Dated: - 25th day of July, 2017
Complainant: - Suresh Kapri, S/O. Late Krishna Kapri
V/S
O.P.: - Branch Manager GTFS Series Ltd.
Branch Office Dokania Market, Banka & Others
Counsel On Behalf Of Complainant: - Sri Niwas Shinha (Advocate)
Counsel for the Opposite Party: - Sri P.H. Dooa (Advocate)
Present :- (1) Md. Naimullah (President)
(2) Dr. Vinay Kumar Singh (Member)
(1) This complaint is filed for compensation of Rs. 3,25,000/- as death claim from opposite party as there was deficiency of service on the part of OP.
(2) It will not be out of place to mention here that the complaint has been filed against five opposite parties. Out of which opposite parties no. 1 to 2 are Branch Manager, Manager of GTFS Multi Service Ltd., against whome the complainant has not claimed any relief. The role of these OP’s is that in their office transaction took place. The contest in this case is against Future Generally India Life Insurance Company Ltd who has appeared and contested the case. Thus these opposite parties numbered as OP No. 3 to 5 are contesting defendants and they are hereinafter called as “OP”.
(3) The case of complainant in nut shell is that the deceased Sushma devi had got an insurance policy from the OP company who runs a life insurance company who is authorized to insure the general person intending to get insured on payment of premium amount. The wife of complainant also get herself insured as stated above, by opposite party on the annual premium of Rs. 10,000/-. The term of the policy was for 20 years. The 1st premium was paid on 09.11.2010 the date from which the policy commenced. This date is also for the risk commencement date. The policy bond bears the numbers as 56400816/00667724/PAT of dated 09.11.2010. As per the term and condition of the policy, on the death of insured at the age of 18 and above the death benefit will become double of the sum insured. Since at the time death of the age of deceased was more than 18 years and insured amount was Rs. 1, 00,000/- its double will be equal to Rs. 2, 00,000/-.
(4) The further case is that the death of deceased was due to unknown snake bite on 30.07.2011. The complainant applied for death claim along with the certificate to the branch manager of the OP Company. Inspite of several requests and issuance of legal notice to the OP and after that the complainant has filed this complaint.
(5) The opposite party appeared and contested the case through their written statement dated 29.05.2013 praying ,therein, to dismiss the complaint mainly on the ground that the facts contained in the complaint are false vexations and abuse of process Of court and is liable to be dismissed u/s 26 of the consumer protection act. That no cause of action has been disclosed by the complainant. It is not maintainable either in the law or on the facts. That the complainant wife did not disclose right facts and concealed the facts regarding suffering from breast cancer. The OP has based his case on the ground that in the proposal form of the life assured, she has concealed the fact of her health. In the nut shell as per the opposite party the deceased gave wrong information to the OP concealing the fact that she was suffering from breast cancer two years prior to the death.
(6) On the basis of the cases of both sides the main point of controversies is as to whether the deceased was suffering from breast cancer, high blood pressure at the time of presentation of proposal form? And whether the complaint has concealed this aforesaid fact and got insurance policy in the name of the deceased?
(7) At the final argument the parties impressed upon the aforesaid issue only. The other issue regarding maintainability was not raised and pressed.
(8) To prove these issues the burden and onus lies on the OP as he has denied the claim on these grounds only. Learned counsel of OP submitted that the fact of breast cancer was concealed by the deceased in the proposal form and medical questionire.
(9) The question as to whether the deceased was suffering with breast cancer, to my mind could be answered either through any medical report prepared by doctor who has examined and treated the deceased or through examination report of pathologist. Who could have examined the deceased? None of these above documents are available on record. Learned counsel of OP submitted that the statement of family members of deceased as well as the medical report submitted by Dr. Shabhaz Alam whose signature is marked as EXT-B & EXT-B/1. Learned counsel of OP goes to show that the deceased was suffering from breast cancer, he drew my attention towards column 9 of medical questionire and investigation prepared for disposal of death claims as well as column no. 19 of the said questionaire in which the course of death is mentioned as snake bite and breast cancer. On the other hand learned counsel of complainant submitted that entry in column no. 9 and 19 was denied by Dr. Shahbaz Alam and it was prepared by the OP by his own favorable person whose name has not been disclosed. He drew my attention on the deposition of Dr. shabhaz who was examined cross examined in this case. The examination & cross examination has been recorded by my predecessor president of this forum on 28.02.2014 as complainant witness no. 1. He has been examined as court witness as the then forum has summoned the witness suo-motto and has recorded his statement.
(10) Dr. Witness shahbaz alam in his deposition has categorically denied the filling up of the column by his own pen; he has deposed that all the column are not in his pen. In Para 3 of deposition on oath it has been deposed by the witness that the form was not filled up in his presence. Though this witness has admitted his signature EXT-B & B/1 but has denied all other entries in the impugned form. Now the onus was shifted on OP to prove that the entries including the relevant entry of cause of death was filled up in the presence of the doctor. The writer of the entries could have been the right person to say that no, these entries were present at the time of putting signature by doctor as EXT-B & B/1. Neither the name of the person who filled up the form in his pen has been disclosed nor was the said person brought before forum to prove that the said entries are in his pen and are true. In absence of this material evidence one can’t say that the medical questionire is valid and genuine and hence the OP the insurance company has rightly rejected the claim.
(11) Regarding the statement in writing of the family members including the statement of complainant stating therein that deceased Sushma Devi was suffering from breast cancer and high blood pressure are also not admissible in evidence as these statements have been categorically denied by the alleged family members of complainant including the complainant through their respective affidavits. Again the onus shifts on OP to bring on record the name of writer of these statements in which it is written that the deceased Sushma Devi was suffering from breast cancer two years before the death. Non examination of the writer of the statement who had obtained the signature of the family members including the signature of complainant clearly goes to prove the malafide on the part of the opposite party. The complainant and the family members, to my mind rightly have disposed on oath that they have not made any such statement in writing rather it was prepared by concocting the story of breast cancer to deny the claim of complainant. It was rightly argued by learned counsel of complainant that the agent of opposite party including the investigator appointed by OP has obtained the signature of family members of the deceased including the signature of complainant on the plane paper on the pretext that it is necessary for giving death claim to the complainant and the impugned signature were given in good faith by the deponent. It is also rightly argued that the OP has got prepared the statement by his own man. Had it been bonafide then on every report the name of the writer would have been mentioned and he could have come and deposed to prove the statement of the relatives, family members including that the statement were true.
(12) On the basis of aforesaid facts and discussion I came to the conclusion that the OP has failed to prove that the deceased was suffering from breast cancer and also failed to prove that there was concealment of fact by deceased in the proposal form in not mentioning and discussing the fact that deceased Sushma Devi was suffering from breast cancer.
(13) In contrary to this the complainant has proved the fact that the death of Sushma Devi was due to unknown snake bite and she was not cremated rather she was blown into river.
(14) on the basis of aforesaid facts I came to the conclusion that the death claim of complainant is fit to be allowed and the OP has committed gross negligence committing deficiency of service on his part in not allowing the death claim of Late Sushma Devi for which OP insurance company is liable to pay the death claim as well as the compensation to mental & physical harassment to the complainant as well as the litigation cost.
Thus this claim case is allowed. OP is directed to pay the entire insured sum of Rs. 2,00,000/- as death claim. In addition to this Rs. 50,000/-as compensation of loss of mental and physical injury due to deficiency of service on the part of OP Rs. 10,000/- litigation cost is also liable to be paid by OP to the complainant. Thus OP shall pay Rs. 2,60,000/- to the complainant.
The OP is directed to pay the entire sum of Rs. 2,60,000/- within two months from the date of this order, failing which the OP will pay the interest @ 9% per annum also on entire sum of Rs. 2,60,000/- from the date of filing of this case till its recovery. In that case complainant may recover the amount through process of forum. The interest will be levied on the entire amount of Rs. 2,60,000/-.
Member President
Dr. Binay Kumar Singh Md. Naimullah
