PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The Complainant by this complaint has prayed to hold and declare the Opposite Parties guilty of deficiency and services and unfair trade practice under the provisions of the Consumer Protection Act, 1986 (hereinafter refer to as the Act). It is also prayed that the Opposite Parties be directed to settle Complainant’s claim of Rs.2 Lacs alongwith interest @ 15% p.a. from January, 2010 till the date of realization/ reimbursement. It is also prayed that compensation of Rs.1 Lac be grated for the mental agonies and suffering suffered by the Complainant and cost of Rs.25,000/-.
2) It is alleged that the Complainant resides with her Constituted Attorney (C.A.) Mr. Abubakar Wahid Khan and his wife and two children at the address mentioned in the cause of title. It is the case of the Complainant that she had a daughter by named Bilkish Wahid Khan who died on 25/01/2010 because of the decease of cancer. Her Death Certificate is marked as Annexure ‘C-1’.
3) The said daughter of the Complainant was insured and she was married to Mr. Vivian Nunes on 20/02/2003 under Special Marriage Act. The copy of Marriage Certificate is Annexure ‘C-A1’. It is submitted that the Complainant being the mother of said deceased Bilkish, she is entitled as legal heir of the deceased to claim share of her deceased daughter. It is alleged that Complainant and her deceased insured daughter Bilkish being Muslim by religion are governed and subject to the provision of Mahmedon law in tables of shares under Sec.63, Item No.5 named as “Mother”. The copy of the said extract of Mahmedon law from Mulla’s principles of Mahmedon law 18th edition by M. Hidhayattullah is annexed as Annexure ‘C-A2’. It is alleged that in the case of deceased insured as she died issueless and her husband predeceased her and the only surviving person is her mother and in the categories of legal heirs/sharers as named herein, the references only to husband, children and parents and siblings of the deceased and the in-laws have been completely excluded. It is submitted that the Complainant rely upon the provisions of Indian Succession Act, alongwith Special Marriage Act. According to the Complainant, in view of the provisions of India Succession Act, Sec.20 to 49 in case of deceased insured Bilkish’s husband and father are dead and her mother i.e. the Complainant is living and her brother Abubakar Wahid Khan (C.A.) and Sadik Wahid Khan who are also her legal heirs have given their affidavit saying that they have no claim in respect of the insured deceased’s L.I.C. Policy as per Annexure ‘C-8’ colly. It is thus, submitted that the Complainant is legal heir of insured Bilkish but the Opposite Parties ignoring the said legality and denied the legitimate claim of the Complainant.
4) It is submitted that the Complainant is Senior citizen aged about 65 yrs. and not keeping good health. She is not in a position to attempt the proceeding and therefore she has executed power of attorney in favour of her son Abubakar Wahid Khan to attend this proceeding. The copy of which is marked at Annexure ‘C-2’. It is submitted that the complaint pertains to recovery and entitlement of sum of Rs.2 Lacs together with benefits in respect of life insurance policy bearing No.901455313, dtd.15/12/1998 obtained by deceased Bilkish Wahid Khan during her lifetime who died on 25/01/2010. It is submitted that the Opposite Parties wrongfully and illegally denied the claim by the Complainant after the death of deceased Bilkish which amounts to breach of the terms and conditions of the said policy. It constitutes gross deficiency in service on the part of Opposite Party.
5) According to the Complainant, the deceased Bilkish during her lifetime on 04/07/2003 assigned the said policy in favour of her husband Vivian Nunes. The copy of the said policy is annexed to C-4’. It is submitted that after the death of Mr. Vivian, deceased Bilkish reassigned the policy in favour of herself on 20/03/2004 by completing the requisite formalities such as, execution of prescribed form in that behalf to the Opposite Parties. The copy of the said reassigned form is Annexure ‘C-5’. The said reassignment form was submitted alongwith the signature of attesting witness Sikandar Nazir Sheikh. The affidavit of Sikandar regarding compliance of necessary formality to the Opposite Parties in the matter of reassignment is filed as Annexure ‘C-6’. It is submitted that the Opposite Parties in the reply to the notice of the Complainant’s Advocate dtd.17/01/2011 have admitted the submission and receipt of the said reassignment form vide letter dtd.14/03/2011. The copy of which is marked as ‘C-7’.
6) It is submitted that after the death of the husband of deceased Bilkish she was living with the Complainant. When the cancer was detected to decease Bilkish the total expenditure for entire medical expenditure was incurred to the tune of Rs.11,76,753/-. It is submitted that after the death of deceased insured Bilkish the Complainant being legal heir of the deceased made an insurance claim before the Opposite Party No.1 in the month of Feb., 2010 and on 29/04/2010 wrote a letter to the Opposite Party No.1 enclosing all the relevant and required documents as instructed by the Opposite Party No.1 which are Annexure ‘C-8’ colly. and the copies of Public Notices published in two leading newspapers and affidavit of her maternal family members giving no objection in respect of assigned policy. According to the Complainant, the said documents were sent by Opposite Party No.1 to the Opposite Party No.2 for approval and sanction of the said claim. The said papers were returned by the Opposite Party No.2 to the Opposite Party No.1 after verification alongwith a covering letter dtd.31/06/2010 with following remarks –
“We observed that this is the case where the assignee has died and hence, interest in policy would waste in the estate of assignee and the person who obtains evidence of title to the estate would be entitled to the policy money.”
The Opposite Party No.1 vide letter 31/06/2010 informed the said position to the Complainant. The copy of the said letter is Annexure ‘C-9’. The Complainant has contended that in view of the principle of estoppel under Sec.115 of Indian Evidence Act, as well as, as per the provision of Sec.38 of the Insurance Act, 1938, as regards the assignment, the assignment will become in operative if the assignee predeceases the insured.
7) It is submitted that after receipt of the letter dtd.31/06/2010, the Complainant issued notice to the Opposite Parties through Advocate dtd.12/07/2010. The copy of which is marked as Annexure ‘C-10’. The Opposite Party replied the said notice through Advocate on 17/09/2010 which is Annexure ‘C-11’. Thereafter, again the Complainant’s advocate wrote letter on 17/01/2011 and request was made to the Opposite Parties to handover the copies of letter dt.20/03/2004 written by the deceased Bilkish informing to the Opposite Party Opposite Party to reassign the policy in question in her favour. The copy of the said letter is Annexure ‘C-12’. The Opposite Party replied to the said letter on 14/03/2011, the copy of which and reassignment form is Annexure ‘C-5. It is contended that at the time of death of deceased Bilkish there existed no assignment in favour of deceased Mr. Vivian or anyone. It is contended that the conduct and attitude of the Opposite Parties in disallowing and rejecting the claim made by the Complainant is arbitrary and irrational which amounts to deficiency in rendering the services hired by the Complainant as well as amounts to unfair trade practice under the Act. It is submitted that the subject matter of the complaint is squarely amenable to the jurisdiction of this Forum as there is deficiency of service by the Opposite Parties. It is thus, prayed that the reliefs claimed as referred in para 1 of this order may be granted in favour of the Complainant.
8) The Opposite Parties by their written statement contested the claim. It is contended that in the present case the deceased policy holder was originally was Muslim women, got married to a Christian. The policy in question was assigned by the deceased policy holder in favour of her husband and during the currency of the said assignment, assignee expired. Consequence upon the death of assignee, policy became estate of the assignee as per the provisions of Indian Succession Act, for Christian which are applicable towards the estate of deceased. It is contended that it is not correct on the part of the Complainant to seek the benefits under the principle of Mahmedon Law. According to the Opposite Party, the issues raised in the complaint involved intricate issues which require extensive evidence. The present case involves complicated question of facts which cannot be tried and adjudicated in time bound proceedings under the Act. The complaint cannot be disposed of without trial and leading proper evidence. It is submitted that thus, the complaint cannot be entertained and dispose off as per the provision of the Act, and the same should be dismissed with cost.
9) It is contended that as per affidavit dtd.28/04/2010 executed by 1) Abubakar 2)Nasrin Abubakar 3) Sadiq Wahid Khan 4) Samira Mustaq Khan, they have released and relinquished the rights title and interest over the properties of deceased policy holder Bilkish including the proceeds under the policy issued by the Life Insurance Corporation of India in favour of their mother Amina Wahid Khan exclusively. It is contended that the said fact was not disclosed to the Opposite Parties. It is submitted that Abubakar Khan made various correspondence with the Opposite Parties and claimed the proceeds under the said policy. It is contended that the said Abubakar Kahn alongwith others though already relinquished his right title interest particularly over the insurance policy standing in the name of deceased policy holder in favour of his mother. Simultaneously claimed the proceeds under the said policy and he had intentionally suppressed the material facts from the Opposite Parties and adopted pressure tactics by issuing letters through advocates claiming the proceeds under the said policy even though he had relinquished his right. It is contended that on this count the present complaint should be dismissed with cost.
10) It is also contended that the Complainant never demanded the claim under insurance policy from the Opposite Parties by making any correspondence. It is thus, contended that there is no cause of action for filing the present complaint.
11) According to the Opposite Parties, the deceased policy holder appointed Sadiq Wahid Khan and baby Kainat A Khan as nominees under the policy in question. It is submitted that since baby Kainat minor at the material time. The policy holder had appointed Mrs. Nasreen A. Khan (mother of minor) as appointee as per the provisions of Insurance Act, to receive the policy money during the minority of the nominee. It is contended that however, the deceased Bilkish had executed a will dtd.17/03/2009 under which she had bequeathed 20% proceeds under said policy equally to be distributed between her 3 nieces i.e. Kainat Anam and Kashish. It is contended that deceased Bilkish had appointed Abubakar Wahid Khan as Executor of the said Will. It is further contended that in this circumstances only executor of this will should have filed the present complaint. Therefore, the Complainant has no locus standi to file the present complaint.
12) It is contended that the affidavit in evidence is signed by Abubakar Wahid Khan in his individual capacity and not as a constituted attorney of the Complainant and on that count the complaint is liable to be dismissed.
13) The other allegation made in the complaint as regards the facts are denied by the Opposite Parties. It is denied that there is any deficiency in service on the part of the Opposite Parties. It is contended that the remedy sought can only be decided by Civil Court having the proper jurisdiction and therefore, this Forum has no jurisdiction to entertain, try and dispose of the present complaint.
14) The Complainant has filed his affidavit of evidence. The Opposite Party has also filed affidavit of Pradip Sukale (Manager legal H.P.F.). Both the parties have filed their written arguments. We heard the Ld.Advocate Anjali Thakoor, for the Complainant and Shri. Navin Kumar, the Ld.Advocate for the Opposite Parties.
15) In view of the pleadings of both the parties, the documents relied by the parties and the arguments advanced by the Ld.Advocates for the parties the following points arise for our consideration and our findings thereon are as under –
Point No.1 : Whether the dispute arising for adjudication in the present complaint is such, as would require recording of lengthy evidence which is
not permissible within the scope of a summary enquiry and having object of speedy remedy under the Consumer Protection Act, 1986 ?
Ans. : Yes.
Point No.2 : What order ?
Ans. : As per final order.
16) Point No.1 & 2 : While deciding the above aspect it is an admitted position that the deceased policy holder Bilkish was originally a Muslim Woman. She got married to a Christian, Mr. Vivian, under Special Marriage Act. After her marriage, Bilkish assigned that Life Insurance Policy in favour of her husband and that during the currency of said assignment the assignee i.e. her husband Vivian expired. According to the Complainant, during the lifetime of deceased Bilkish and after the death of Vivian on or about 20/03/04, she reassigned the policy to herself. In the policy the nominees are shown as Sadiq Wahid Khan and baby Kainat A. Khan, Mrs. Nasreen A. Khan i.e. mother appears to have been appointed as appointee (mother of minor) as per the provisions of the Insurance Act. It is also a fact that the deceased Bilkish had executed registered will on 07/03/09 in favour of her brother Abubakar Wahid Khan and under the said will making reference of the policy in question in para 18. She had nominated Miss. Kainat Abubakar Khan and directed to her executor to pay 20% of the matured amount of the said policy equally between her three nieces (Kainat, Anam, Kashish) and also expressed her desire to donate 10% to the church situated at Vasai by name “Our lady of remedy” and the remaining 70% to transfer in the account of Vivian Francis Nunes charitable trust. The Complainant is alleging that as per the provisions of Mahmedon Law as well as Indian Succession Act and law of assignment as well as on the strength of affidavit executed by 1) Abubakar, 2) Nasreen, 3) Sadiq, 4) Samira they have relinquished their rights in the policy in question. It is also alleged that the Complainant is the nominee of deceased. The Opposite Parties have contended that since provisions under Indian Succession Act, for Christian are applicable towards estate of deceased and it is not correct on the part of the Complainant to seek the benefit under the principle of Mahmedon Law we find that the dispute and issues raised in the complaint by both the parties involve intricate issues which require extensive evidence which is not permissible within the scope of summary enquiry as contemplated under the Act. We therefore, hold that as the present dispute involves complex issues of Law and facts and a great deal of evidence both oral and documentary will have to be lead in the present case by both the parties which will be a prolonged affair. We therefore, hold that the District Forum in a summary jurisdiction cannot decide such case of extreme complexity in nature. In our view the case relied by the Advocate for the Opposite Parties i.e. Mahakosh Holding Pvt. Ltd. V/s. Oriental Insurance Co. Ltd. decided on 26/02/2002 by five Hon’ble Members including the Hon’ble President of the National Commission in Original petition 104/2001 is perfectly applicable to the facts of this case. The Hon’ble Supreme Court in Civil Appeal No.5190 of 1998 decided on 09/11/1998 in the case of Ameet Jain V/s. Oriental Insurance, also held that where Consumer Court feels that the dispute should be resolved by Civil Court having regard to elaborate evidence that will be necessary the Hon’ble Supreme Court did not interfere with the order passed by the Consumer Court. In our view the said observation in view of the submissions made by the advocate for the Opposite Party are perfectly applicable to the facts of this case.
The advocate for the Complainant relied the judgment of the Hon’ble Supreme Court in Civil Appeal No.7228 of 2001 between the parties CCI Chambers Cooperative Housing Society Ltd., V/s. D.C. Bank Ltd., decided on 29/08/2003 and submitted that in view of the observations in the said case a consumer Forum can deal with the present complaint. In our view it appears from the said judgment that the Hon’ble Supreme Court allowed the said appeal and sent back the case to the Commission for hearing afresh for the following reasons mentioned in para 10 of the said judgement which are as under –
“In our opinion the decision arrived by the NCDRC is pre-mature. The Commission ought to have issued notice to the respondent and taken its pleadings on record. Only when the pleading for both the parties were available should the Commission have formed an opinion as to the nature and scope of enquiry, i.e., whether the question arising for decision in the light of pleadings of the parties required a detailed and complicated investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission would have justifiably formed an opinion on the need of driving away the complaint to the Civil Court. Mere complicated nature of the facts and law arising for decision would not be decisive.”
From the aforesaid observation it appears that the order passed by the Hon’ble NCDRC, as regards returning the complaint with certain observations mentioned in the aforesaid judgement being passed at the initial stage or at the time of admission of the complaint before it, the Hon’ble Supreme Court set aside the said order and also observed that such decision can be taken only when the pleadings for both the parties were available before the Commission. In the present case as discussed above both the parties have filed their pleadings. They have also filed their documents, affidavits and written arguments and therefore, in our view the observations in the case relied by the advocate for the Complainant are not applicable to the facts of this case. In our candid view considering the rival contentions of the parties and the dispute arising for adjudication between them is such as would require recording of lengthy evidence and consideration of various laws about points in issues is not permissible within the scope of summary enquiry that a Forum under the act may ask the Complainant and therefore, we hold that this complaint is liable to be dismissed. In our view, it would be more appropriate for the Complainant to go to Civil Court. We also hold that the dismissal of this complaint will, however, not debar the Complainant from seeking its remedy before Civil Court or any other Forum as he may choose to get the relief in the present case. In the result we answer both the points accordingly and pass the following order –
O R D E R
i. Complaint No.147/2011 is dismissed with no order as to cost.
ii. The dismissal of this complaint, however, will not debar the Complainant from seeking its remedy before Civil Court or ay other Forum as the Complainant may chose to get the relief in the present case.
iii. Certified copies of this order be furnished to the parties.
