PER:
Nidhi Verma, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12, 13 and 14 against the opposite parties on the allegations that Sh. Rajbir Singh son of Hardip Singh son of complainant No. 1, husband of complainant No.2 and father of complainant Nos. 3 and 4 took an accidental life insurance policy bearing No. 2950 2012 8299 0900 000 from the opposite party No. 1 and insurance premium was obtained by the opposite party No. 1 through opposite party No. 2 vide transfer from loan account of Rajbir Singh maintained by opposite party No. 2. Deceased Rajbir Singh hired the services of the opposite party and as such was consumer of opposite party. Sh. Rajbir Singh died on 27.12.2015 and opposite party failed to pay the insurance claim to the complainants being legal heirs and successors of Rajbir Singh. As such, the complainants being the legal heirs of the successors of Sh. Rajbir Singh are competent to file the present and to invoke the jurisdiction of this commission against the opposite parties. Sh. Rajbir Singh son of Hardeep Singh was working with Bureaus Facilities Services private Limited as security supervisor. Rajbir Singh purchased a motorcycle make Hero Model Splendor from Param Motors, Khadur Sahib vide challan No. 363 dated 16.12.2015 and paid Rs. 16,000/- in cash to Param Motors, Khadoor Sahib and Rs. 42,000/- by availing loan from opposite party No.2. The opposite party No. 2 as per its policy securing loan insured Rajbir Singh with accidental life insurance with insurance cover of Rs. 2,00,000/- for accidental death and Rs. 25,000/- as loss of job and Rs. 1,00,000/- as householders coverage. The insurance cove was provided by opposite party No. 2 through policy of opposite party No.1 having policy No. 2950 2012 8299 0900 000 for which he paid premium of Rs. 791/- which was obtained by opposite party No. 1 through opposite party No. 2 vide transfer from the loan account of Rajbir Singh maintained by opposite party No.2. The motor cycle was also insured with ICICI Lombard General Insurance Co. Ltd. Sh. Rajbir Singh died in road accident on 27.12.2015 and DDR No. 11 dated 28.12.2015 was registered at Police Station Verowal Under section 174 Cr.P.C and other required formalities were done by the police. Postmortem was also conducted of the body of the deceased Rajbir Singh at Civil Hospital, Tarn Taran. The complainants submitted the claim form alongwith the original policy, death certificate of deceased Rajbir Singh, D.D.R No. 11 dated 28.12.2015. Post Mortem Report and other required documents are with the opposite parties. The opposite parties failed to pay the claim to the complainants. The complainants earlier filed a complaint against the opposite parties regarding the matter in question, which was decided by this commission vide order dated 6.12.2016 with the direction to the complainants to file claim with the opposite party No. 1 within 15 days and opposite party No. 1 will decide the case either way within one month. The opposite party No.1 failed to decide the claim and the complainants filed execution in this commission, where the opposite party No. 1 submitted repudiated letter in the execution application and in view of same the complainants sought permission to file fresh complainant and this commission gave permission to file fresh complaint. The opposite party No.1 wrongly repudiated the claim of the complainants vide repudiation letter dated 21.5.2018. The complainant Nos. 3 and 4 are minors as such, they filed the present complaint through their mother and natural guardian complainant No. 2 Rajbir Kaur, who has no adverse interest against the minors. The complainants have prayed that the opposite party be directed to pay the accidental death claim of sum of Rs. 3,25,000/- of Sh. Rajbir Singh deceased as mentioned in the insurance policy alongwith interest at the rate of 12% per annum to the complainants. The opposite party be directed to pay litigation expenses and counsel fee amounting to Rs. 30,000/- and Rs. 50,000/- as compensation. Alongwith the complaint, the complainant has placed on record policy cover Note Ex. C-1, Challan No. 363 dated 16.12.2015 Ex. C-2, Verification of D/L of Rajbir Singh Ex. C-3, Death certificate of Rajbir Singh Ex. C-4, DDR No. 11 dated 28.12.2015 Ex. C-5, Inquest Report Ex. C-6, Post Mortem Report of Rajbir Singh Ex. C-7, Repudiation letter dated 21.5.2018 Ex. C-8, Order dated 6.12.2016 Ex. C-9, Order dated 5.6.2018 Ex. C-10, Birth certificate of minor Jagmeet Kaur Ex. C-11, Birth certificate of minor Gurmanjot Singh Ex. C-12, Affidavit of Dalbir Kaur complainant Ex. C-13.
2 After formal admission of the complaint, notice was issued to Opposite Parties. Opposite Party No. 1 appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complaint is legally not maintainable and is liable to be dismissed. The deceased insured took Sarv Suraksha Policy bearing No. 2950 2012 8299 0900 000 valid from 31.12.2015 to 30.12.2017 from the opposite party No.1. The aforesaid insurance policy was issued to the insured/ deceased by the answering opposite party subject to the terms and conditions of insurance policy which was never disputed by the insured/ deceased. Thereafter, it is submitted that in case, if any liability would arise against the opposite party No. 1 then it would be subject to the terms and conditions of the insurance policy. The alleged occurrence took place on 27.12.2015, whereas policy start date is 31.12.2015 as the date of loss is not falling within insurance period, therefore, the claim cannot be considered. On this ground, the claim was repudiated and due intimation of the same was given to the claimants in the court proceeding therefore, the present complaint is not maintainable qua the opposite party No.1 as per Section 64VB of the insurance Act, 1938, no insurer shall assume any risk before the payment of premium has been made to the insurer. The relevant provision is quoted below for your reference:
Section 64VB- No risk to be assumed unless premium is received in advance
(2) 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.”
In the present case, the premium for the policy was received by the opposite party No. 1 on 31.12.2015 and therefore, the policy was issued for the period of 31.12.2015 to 30.12.2017. Since, the death of the insured took place before the payment of the premium i.e. 27.12.2015, risk for the same cannot be assumed by the opposite party No. 1 and therefore, the claim was repudiated.
The complainants have concealed the material facts from this Commission, therefore, they are not entitled for any relief as claimed. The complainants are estopped by their own act and conduct from filing the present complaint. The complainants have no locus standi to file the present complaint. On merits, it was pleaded that the policy was issued from 31.12.2015 to 30.12.2017 in the present case after receiving the premium. So far as the loan account of Rajbir Singh maintained by opposite party No. 2 is concerned that can be replied by the opposite party No.2. The opposite party No. 1 having no knowledge regarding the same. So far as death of Rajbir Singh on 27.12.2015 and complainants being legal heirs of Rajbir Singh are concerned that are matter of record and the complainants be put strict proof thereof. The complainants never lodged claim with the opposite party No. 1 and filed a complaint in the District Consumer Disputes Redressal Commission, Tarn Taran in with it and also stated that no documents were supplied. The District Commission, Tarn Taran directed the complainant to lodge a claim alongwith all the relevant documents. After receiving the documents, it was transpired that the accident took place on 27.12.2015 whereas the policy was issued covering the period from 31.12.2015 to 30.12.2017, therefore, the accident was not covered by the period of insurance, therefore, the claim was repudiated. The opposite party No.1 has denied the other contents of the complaint and prayed for dismissal of the same. The opposite party No. 1 has placed on record affidavit of Mr. Pankaj Kumar Ex. OP1/1, Self attested copy of authority letter Ex. OP1/2, Self attested copy of policy is Ex. OP1/3, Self attested copy of terms and conditions Ex. OP1/4, Self attested copy of repudiation letter is Ex. OP1/5.
3 The opposite party No. 2 appeared through counsel and has filed written version by interalia pleadings that the complaint is not maintainable. No cause of action has ever arisen in favour of complainant and against the opposite party No. 2 to file the present complaint. The Complainant has created a false story in his complaint to mislead this Hon'ble Court by concocting and distorting the facts and circumstances of the present case. Instant complaint has been filed by the complainants jointly seeking the relief as prayed in the instant complaint. However, the complainants have not filed any application U/s 12(1)(c) of the Consumer Protection Act, 1986 for seeking permission to file a joint complaint. Section 12(1)(c) of the Consumer Protection Act, 1986 is reproduced as under for the kind consideration of this Hon'ble Commission:-
"[12. Manner in which complaint shall be made. (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Commission by:-
- xxxxxxxxx
- xxxxxxxxx
- One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested; or
- xxxxxxxxx
The deceased Rajbir Singh availed a loan facility from opposite party No. 2 to the tune of Rs. 42,000/- on 16.12.2015 and opened a loan account in this regard. The above said loan facility was obtained by deceased Rajbir Singh for purchasing a motor cycle, model splendor from Param Motors, Khadoor Sahib. The complainant paid an amount of Rs. 16,000/- in cash to Param motors and remaining amount of Rs. 42,000/- was paid by availing loan from opposite party no. 2. The present complaint deserves to be dismissed because it is not only motivated but has been filed to blackmail the opposite party No. 2 with an ulterior motive. The complainants have no locus standi to file the present complaint as far as the opposite party No. 2 is concerned. The opposite party No. 2 only granted a loan facility. The opposite party No. 2 is merely a financer of the said vehicle and has no role in accepting or rejecting the claim. The complainants earlier filed a complaint against the opposite parties regarding the matter in question which was decided by District Commission, Tarn Taran vide order dated 6.12.2016 with the direction to the complainants to file claim with opposite party No.1 and opposite party No.1 will decide within 15 days either to accept or reject the claim. The opposite party No. 2 is doing the business of banking and not of insurance and insurance policy was issued by opposite party No.1 and not by opposite party No. 2. The opposite party No. 2 has been falsely implicated in the present complaint. The complainants have not approached the commission with clean hands and have suppressed the true and material facts. As per the instructions of deceased Rajbir Singh to opposite party No. 2 , the opposite party No. 2 forwarded the premium to opposite party No.1 regarding the said accidental life insurance with insurance cover of Rs.2,00,000/- for accidental death and Rs.25,000/- as a loss of job and Rs.1,00,000/- as householders coverage which was obtained by deceased from opposite party no.1. Therefore, the opposite party No. 2 has no concern with the insurance policy. The complaint against opposite party No. 2 is liable to be dismissed as the complainants are not the consumers of opposite party No. 2. The opposite party No.1 that after verification and survey is to accept or reject the claim. The opposite party No. 2 has a right to recover the loan from the LR's of deceased i.e. complainants and has been unnecessarily joined in the complaint and as such, complaint is liable to be dismissed with costs. The present complaint is thus presented, ridden with allegations of deficiency in service and unfair trade practices, but the present complaint miserably fails to co-relate the facts and incidents in order to prove any deficiency in service and unfair trade practice. The present complaint is false, frivolous & vexatious besides being devoid of any merits and has been filed with a view to malign the credential & reputation of the opposite part No. 2. Alongwith the written version, the opposite party No. 2 has placed on record affidavit of Vikas Kalia Manager (Legal) Ex. OP2/1, Copy of authority letter Ex. OP2/2, Copy of Judgment dated 6.12.2016 Ex. OP2/3.
4 We have heard the Ld. counsel for the parties and have carefully gone through the record placed on the file.
5 In the present complaint , the deceased Rajbir Singh took accidental life insurance policy bearing no. 2950201282990900000 from OP 1 and insurance premium was obtained through OP 2 vide transfer from loan account of Rajbir Singh . Rajbir Singh purchased a motor cycle make hero model splendor from Param Motors , Khadur sahib vide challan No. 363 dated 16.12.2015 and paid 16000/- in cash to Param Motors and Rs 42000/- by availing loan from OP No2 . OP2 as per it’s policy of securing loan insured Rajbir Singh with accidental life insurance with insurance cover of Rs 200000/- for accidental death and Rs 25000/- as loss of job and Rs 10000 as householders coverage. Rajbir Singh died in road accident on 27.12.2015 . The complainants submitted the claim form alongwith the original policy , death certificate of deceased Rajbir Singh ,DDR No. 11 dated 28.12.2015 , Post mortem report and other required documents with the OP No. 1but OP No. 1 failed to pay the claim to the complainants. OP No. 1 repudiated the claim of the complainant vide letter dated 21.05.2018 stated that the date of accident is 27.12.2015 whereas policy start date is 31.12.2015 . Since the date of loss is not falling within the duration of the insurance policy the claim cannot be considered.
6 Opposite Party No 1 stated in their written version that the deceased insured took sarv suraksha policy bearing no . 2950201282990900000 valid from 31.12.2015 to 30.12.2017 from OP1. In this case, the alleged occurrence took place on 27.12.2015 ,whereas policy start date is 31.12.2015 , as the date of loss is not falling within insurance period, therefore the claim cannot be considered. On this ground the claim was repudiated . As per section 64VB of the Insurance Act, 1938 no insurer shall assume any risk before the payment of premium has been made to the insurer.
7 Opposite Party No.2 stated in their written version that the deceased Rajbir Singh availed a loan facility from OP2 to the tune of Rs 42000/- on 16.12.2015 and opened loan account in this regard. It is pertinent to mention here that the above said loan facility was obtained by deceased Rajbir Singh for purchasing a motorcycle model splendor from Param Motors khadoor sahib. That the complainant paid an amount of Rs 16000/- in cash to Param Motors and remaining amount of Rs 42000/- was paid by availing loan from OP2. It is relevant to mention here that the opposite party No.2 only granted a loan facility and is merely a financer of the said vehicle and has no role in accepting or rejecting the claim. It is pertinent to mention here that the opposite party No1 is doing the business of banking and not of insurance and insurance policy was issued by opposite party No.1 and not by OP 2. It is further submitted that as per the instruction of deceased Rajbir Singh to opposite party 2, the OP2 forwarded the premium to opposite party No.1 regarding the said accidental life insurance with the insurance cover of Rs. 2,00,000 for accidental death and ₹25,000 as a loss of job and ₹1,00,000 as householders coverage which was obtained by deceased from Op No 1. Therefore the opposite party 2 has no concern with the insurance policy. The complaint against opposite party 2 is liable to be dismissed as the complainant are not the consumers of opposite party 2.
8 We have considered the revival contentions of the parties. The OP No. 1 and the complainants also placed on record the policy schedule (Ex.OP1/3) (EX.C 1) which clearly stated that the :-
Period of Insurance:-
- From date & time = 31/12/2015 21:24hrs
- To Date & Time 30/12/2017 Midnight.
Further, the payment detail on same record stated that the :-
- Cheque No. /Fund Transfer= Sl_31122015_TW_1966
- Date = 31/12/2015
- Bank Name = HDFC Bank
Moreover, death certificate placed on the record by the complainants (Ex C4) stated that the date of death is 27.12.2015 , hence the deceased insured took insurance policy bearing no. 2950 2012 8299 0900 000 valid from 31.12.2015 to 30.12.2017 from the OP 1 and the alleged accident took place on 27.12.2015 , as the date of loss is not falling within insurance period, therefore the claim cannot be considered.
As per “section 64VB of the Insurance Act, 1938 – No risk to be assumed unless premium is received in advance”
For the purpose 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.”
Hence , the premium for the policy was received by the OP1 on 31.12.2015 and therefore, the policy was issued for the period of 31.12.2015 to 30.12.2017 , since the death of the insured took place before the payment of the premium i.e. 27.12.2015 , risk for the same cannot be assumed by the OP No.1 and therefore the claim was repudiated legally and as per the terms and conditions of the insurance Act ,1938. However, after going through the facts and circumstances of the case we are of the considered opinion that the complainant is not a consumer qua the Ops . There is no contract between the deceased/complainants and the Ops . No consideration has been paid by the complainants/ deceased to the Ops till 31.12 2015 . Therefore, the complainant/ deceased is not a consumer of the OPs as defined u/s 2(1)(d) of consumer protection Act, 1986 and thus, for want of status of the complainant the complaint itself is not maintainable before this Commission.
9 In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
15.03.2023
