DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.47/02.04.2008 Decided on : 27.03.2009 1.Smt.Sunita Rani Wd/o Sh.Naresh Kumar Resident of village Daska, Tehsil Sunam, District Sangrur. 2.Chirag Mittal 3.Ria minor children of Sh.Naresh Kumar S/o Sh.Hans Raj resident of village Daska, Tehsil Sunam, District Sangrur under the guardianship of Smt.Sunita Rani w/o Sh.Naresh Kumar. ..... Complainants. VERSUS 1.Life Insurance Corporation of India, Naraini Building, Mansa through the Branch Manager. 2.Sh.Satpal Mittal S/o Sh.Hans Raj Mittal, resident of H.No. 2599, Sector 15, Panchkula, Haryana. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Vikas Goyal, Advocate, counsel for the complainant. Sh.P.K.Arora, Advocate, counsel for the OP No. 1. Sh.S.K.Mehta, Advocate, counsel for the OP No. 2. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. This complaint has been filed, by Smt.Sunita Rani widow of Contd........2 : 2 : Sh.Naresh Kumar, a resident of village Daska, Tehsil Sunam, District Sangrur and her minor children 'Chirag' and 'Ria' against the Life Insurance Corporation of India, Mansa and her brother-in-law Sh.Satpal Mittal S/o Sh.Hans Raj Mittal, a resident of Panchkula, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for a direction to the OP No.1, to make payment of Rs. 1,00,000/-against insurance policy No.300181490 secured by Sh.Naresh Kumar on 28.5.2003 and policy No.300189321 issued in the equal amount on 28.4.2004, alongwith interest and compensation in the sum of Rs.10,000/- for physical and mental harassment. 2. Briefly stated, the facts of the case, as projected in the complaint, are that Naresh Kumar husband of complainant No.1 and father of the remaining complainants, secured insurance policies, as mentioned above, from OP No.1 and at the time of their issuance, he has nominated complainant No.1 as his nominee to receive the amount payable under them in case of his death. The insured named above expired on 11.2.2008 after which complainant No.1 lodged claim for release of the assured amount, but OP No.1 has been prolonging the matter to release the amount, on one pretest or the other and have failed to act inspite of service of notice dated 11.3.2008 before filing the instant complaint, although complainant No.1 has completed all the requisite formalities and documents, as the OP No.1 has failed, to make the payment, of claim lodged by her, under the insurance policy secured by her deceased husband, as such, there is deficiency in service, on his part, because of which, complainants, have been subjected, to mental and physical harassment. Hence this complaint. 3. On being put to notice, the OP No.1 filed written version, resisting the complaint, by taking preliminary objections; that the complainant is estopped from filing the instant complaint; that no cause of action has accrued in favour of the complainants to file the complaint; that there is no negligence or deficiency in service on the part of the Contd........3 : 3 : answering opposite party and the complainants are not consumer, as such, the complaint is not maintainable in the Consumer Forum and that the complaint being false and frivolous and liable to be dismissed. On merits, the factum of issuance of insurance policy in the name of the insured has been admitted along with the fact that complainant No.1 is widow and the remaining complainants are his minor children. It is also admitted that complainant No.1, has been nominated, by the deceased insured to receive the amount under the policy after his demise, but she has failed to submit the requisite information sought from her vide letter dated 24.3.2008 and OP No.2 has also made claim for release of the amount under the policy. However, it is submitted that the answering opposite party, has already released the payment due against policy No.300181490, to complainant No.1, but amount against policy No.300189321 could not be released to her due to objection raised by the OP No.2 and non-submission of documents by the complainants. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 4. The OP No.2 filed separate written version resisting the complaint, by taking preliminary objections; that complaint is not maintainable, because he has filed a petition under Section 372 of the Indian Succession Act, 1925, for grant of Succession Certificate regarding assets left behind by the insured Naresh Kumar, who was his brother and a civil suit for declaration that he alone is entitled to inherit the estate of his brother in terms of registered will dated 6.11.2007; that the complainant No.1 cannot claim the amount under the policy in the capacity of nominee of the deceased insured and she has failed to disclose the factum of the litigation inspite of knowledge, but has concealed those facts, and her complaint being false and vexatious, is liable to be dismissed with special costs in the sum of Rs.10,000/-. On merits, it is submitted that relationship of the complainants and Naresh Kumar insured are admitted alongwith the Contd........4 : 4 : date of death in the P.G.I. at 4 P.M. on 11.2.2008. It is also admitted that insurance policy had been issued in the name of Naresh Kumar, brother of answering opposite party, but the amount cannot be released to the complainants till the petition and civil suit pending in the civil court is finally disposed of. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 5. On being called upon, by the Forum, to do so, the counsel for the complainants, tendered in evidence, affidavit of complainant No.1 and copies of documents Ext.C-1 to C-7 and closed evidence. On the other hand, the counsel for the OP No.1 has tendered in evidence copies of documents Ext.R-1 to R-22 and learned counsel for the OP No.2, has tendered in evidence copies of documents Ext.OP-A to OP-H and closed evidence on his behalf. 6. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. 7. To begin with, learned counsel for the OP No.2, Sh. S.K.Mehta, Advocate, has submitted, that as per copies of documents placed on record, petition filed for issuance of succession certificate by OP No.2 and civil suit filed by him are pending before the learned Additional Civil Judge, Senior Division, Sunam in District Sangrur , as such, instant complaint in the Consumer Forum is not maintainable, especially when, the controversy cannot be adjudicated in summary manner and parties are to lead voluminous evidence to prove their respective stands. In support of his contentions, learned counsel has placed reliance upon 1994(II) CLT 455 Dev Pharma Laboratories Ltd versus Dena Bank wherein it has been held by the Hon'ble Maharashtra State Commission that if the matter is subjudice in the civil court, then Consumer Forum cannot adjudicate the same. Learned counsel has also relied upon 1994(I) CLT (NC) 53 M/s Contd........5 : 5 : Bunny's Gift & Novelty Centre versus Punjab & Sind Bank wherein it has been held by the Hon'ble National Commission that complaint cannot be entertained in the Consumer Forum during pendency of civil suit. Learned counsel has argued that in view of the law laid down in the above authorities, instant complaint is liable to be dismissed. 8. At this stage, learned counsel for the OP No.1, Sh.P.K.Arora, Advocate, has submitted that there is no deficiency in service on the part of the OP No.1 because payment of amount against one insurance policy secured by the insured has already been released to his nominee before OP No.2 raised the claim and the OP No.1 is still ready and willing to release the amount to any of the parties under the remaining insurance policy as per the direction by this Forum. 9. Learned counsel for the complainant Sh.Vikas Goyal, Advocate, has submitted that as per provisions of Section 3 of the Act, remedy before the Consumer Forum is additional remedy, as such, the present complaint is maintainable, irrespective of pendency of petition and civil suit filed by OP No.2 in the civil court. Learned counsel further conceded that amount of Policy No. 300181490 has already been released by the OP No.1, as such, non release of the amount against the remaining insurance policy on the basis of the objections raised by OP No.2 is deficiency in service because of which Insurance Company cannot escape liability. Learned counsel has also drawn our attention to the affidavit of the OP No.2 and copy of compromise deed wherein he has stated to have agreed not to raise any claim on the basis of the will. Learned counsel argued that in view of these documents, OP NO.2 is estopped by his own act and conduct from filing the objection for release of payment to the complainants. 10. As evident from the copies of documents placed on record, OP No.2 has filed petition under Section 372 of the Indian Succession Act, 1925, for issuance of succession certificate in his favour regarding assets Contd........6 : 6 : left behind by deceased insured including the amount payable under the policy. He has also filed civil suit seeking declaration to the effect that he is entitled to inherit property of the insured in respect of the registered will and sanction of mutation. In the instant case, he has also relied upon the registered will dated 6.11.2007 for release of the amount under the policy. As such, controversy in the instant case and petition filed under Section 372 and civil suit pending in the court of the learned Additional Civil Judge, Senior Division, Sunam in District Sangrur is directly and substantially the same, which needs adjudication on the basis of elaborate evidence which parties may opt to produce. It is also well settled that nomination by the insured under the insurance policy only indicates the hand by making payment to whom insurance company can seek valid discharge, but it does not supersede the law of Succession governing the parties. In our opinion, the genuineness of the will, affidavit and agreement executed by the insured is to be decided by the civil court seized of the matter. It may not be out of place to mention here that as per the contents of the agreement, deceased insured has also executed another will in favour of the minor children about his estate in different proportions as per clause 2 and as per clause 7, it has been specifically mentioned that only minor complainants would be entitled to receive the payment of the amount deposited by the insured in the bank and under the insurance policies. As per clause 4, if complainant No.1 remarries, then she will not be entitled to any share in the estate of the deceased and would not seek the release of any amount or even to act as guardian of minor children. This material document bears signatures of Complainant No.1 in Punjabi script at page No.2. In case complainant No.1 decides to remarry, then the factum of execution of said agreement may be frustrated. Since the matter is subjudice in the civil court, therefore, in view of the proposition of law laid down in the authorities relied upon by the OP No.2, referred to above, we have come to the conclusion that controversy be left open to be Contd........7 : 7 : adjudicated by the civil court because any relief passed by this Forum in the present complaint in summary manner, may adversely affect the rights of the parties before the civil court. 11. Admittedly, the OP No.1 has already released the payment of one of the policies, to the complainants and in view of the objection raised by OP No.2, has directed him and the complainants, to produce requisite documents, but they have failed to do so. Moreover, they have expressed their willingness, to release the payment, to any of the party found entitled to receive the payment under the remaining insurance policy, by this Forum. Therefore, there is no deficiency in service on the part of the OP No.1 on account of which plea of the complainants to that extent may be entertained. 12. For the aforesaid reasons and being fortified by the ratio of judgment relied upon by the learned counsel for the opposite party No.2, and cited above, complaint is dismissed without prejudice to the verdict to be delivered by the civil court in Petition and suit filed by OP No.2. In view of the peculiar facts and circumstances of the case, parties are left to bear their costs and to get their controversy resolved from the civil court. 13. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. The file be indexed and consigned to record. Pronounced: 27.03.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
