FINAL ORDER

               Samaresh Kumar Mitra,  Member:

              The case of the complainant is that his wife namely Lipi Ganguly purchased a policy BIMA GOLD being Policy No. 437248020 from the OP No.1 to 3 worth Rs.2,00,000/- with a yearly premium of Rs 10,920/- and the date of commencement of the policy was 28.03.2006. Unfortunately the policyholder died on 11.1.2015. The DLA purchased their house after getting loan from the OP No.4. At the time of getting home loan the wife of the policyholder deposited the original policy bond to State bank of India, Boinchee branch as collateral security alongwith the original sale deed of her flat. At the time of death the original loan amount was Rs. 4,07,161/- was due to the SBI , Boinchee branch and the said amount was paid by the SBI Life on 31.3.2015. after getting entire due amount of loan on 16.6.2015 the SBI, Boinchee Branch returned the original policy bond of Bima Gold & original sale deed and form of reassignment to the petitioner. Then the petitioner visited the office of the OP No.2 frequently to submit the paper regarding the death claim of his wife but the officers of the OP No.2 declined to receive the same and enquired the succession certificate to establish his claim. Without getting his claim this petitioner sent a legal notice on 7.7.2015 to the OP No.2&3 requesting to settle his claim. As  getting the succession certificate is a long drawn process and expensive so this petitioner came before this Forum for getting an order directing the opposite parties  NO.1 to 3 to pay a sum of Rs.2,00,000/- alongwith allotted bonus of his BIMA GOLD policy and compensation amounting to Rs.50,000/- and litigation cost of Rs.20,000/- to this complainant

   The OP No.2&3 appeared by filing written version denied the allegations as leveled against them and they averred that “Sec.38(5) of the Insurance act,1938 wherein it is stipulated that Insurer shall from the date of receipt of notice referred to in Sub. Sec.(2) recognize the transferee or assignee named in the notice as the only person entitled to the benefit under the policy…”. In view of the above legal position, since the assignment of the policy in question by the life assured was already effected in favour of the OP No.4, SBI, Boinchee branch as a collateral security for availing of the loan there from, the answering OP has nothing to do independently regarding the policy of the complainant unless any specific instruction is issued by the said assignee, that is the OP No.4 intimating thereby reassignment of the policy in favour of the policy holder. The OP No.4 reassigned the effect or benefits of the policy in question on 16.6.2015 in favour of life assured, Lipi Ganguly long after the death of the LA. So this reassignment can never be effected according to law. The error took place on the part of the OP No.4. That under such an unwanted and peculiar situation, the correct measure, ought to have taken on the part of the OP no.4 bank was to simply inform the LICI about the fact  of  full recovery of the loan amount and thereby to execute a separate deed of “Declaration” that any benefit arose out of such Assignment in favour of the bank, has duly been extinguished and they have no claim whatsoever upon all the benefits of the policy, in question, and the legal heirs of the policyholder are entitled  to get the entire benefits thereof as per the Law of Succession. When the life assured assigned the policy in question to the SBI, Boinchee branch the nomination in favour of the complainant stands cancelled automatically. The legal impediment on the part of answering OP have been submitted herein above in the way of making payment of the instant death claim, can never be equated with any sort of deficiency or negligence on their part as have been alleged.

The OP No.4 in his written version denied the allegations leveled against him and averred that the deceased Lipi Ganguly took loan from SBI, Chandannagar branch and subsequently the loan account was transferred to SBI, Boinchee branch. The outstanding due amount of Rs.4,07,161/- was liquidated through one SBI Life Insurance policy in her name on 31.3.2015. After realization of entire outstanding dues the SBI Boinchee branch has returned to the husband of deceased Lipi Ganguly the original policy bond of Bima Gold and original sale deed and form of reassignment to the petitioner. And the said loan account of deceased Lipi Ganguly was closed accordingly.

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

 Both sides filed written notes of argument which are taken into consideration for passing final order.

              Argument as advanced by the agent of the complainant and the OP heard in full.

              From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

    1. Whether the Complainant  Raj Ganguly ‘Consumer’ of the opposite party?

    2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards

        the Complainant?

    4. Whether the complainant proved his case against the opposite party, as alleged and whether

     the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based

   on the above perspectives.

       (1).Whether the Complainant Raj Ganguly is a ‘Consumer’ of the opposite party?                                  

              From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the nominee of a  LIC policy in the name of his deceased wife , OP No.1 to 3 insurance company in which the life of the deceased insured, OP No.4 is the bank in which the deceased life assured took home loan, so being a beneficiary he is a consumer and entitled to get service from the OP insurance company  and the OP bank.

          (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

      Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP No. 1 to 3 Rs.200000/- including the bonus as per policy condition in favour of the complainant, an award of Rs.50,000/- for mental agony, sufferings, harassment and deficiency of service, another Rs.20,000/- for legal costs  and other relief or reliefs as this Forum deems fit and proper ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

     (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service  towards the Complainant?  

                  The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the wife of the complainant  insured her life before the said company without any doubt.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties.

     The case of the complainant is that his wife namely Lipi Ganguly insured her life before the OP No.1to3 and while taking home loan she filed the original policy bond of Bima Gold policy of life insurance and the sale deed of her flat before the OP No.4 as collateral security. The policy holder died on 11.01.2015 and at that time the loan amount of Rs.4,07,161/- was due to the SBI, Boinchee Branch and the impugned amount was paid by the SBI Life insurance on 31.03.2015. After getting the entire amount the OP No.4 i.e. SBI Boinchee branch on 16.6.2015 returned back the original policy bond of BIMA GOLD & original sale deed and Form of Re-assignment to the petitioner.  Thereafter the petitioner personally visited the office of the OP No.2 to submit the paper regarding the death claim of the wife of the petitioner but the subordinate officers of OP No.2 declined to receive the original papers showing various vague pleas and enquired to bring succession certificate from the competent court of jurisdiction to establish his claim. Despite getting legal notice the OP No.2&3 took no measure to solve the problem of the petitioner that is why the petitioner sought the recourse of this Forum for redressal. The OP No.2&3 by filing written version assailed that according to Sec.38(5) of the Insurance act,1938 wherein it is stipulated that the Insurer shall from the date of receipt of notice referred to in Sub. Sec.(2) recognize the transferee or assignee named in the notice as the only person entitled to the benefit under the policy… and Sec.39(4) of the Insurance Act,1938 it has been clear that A transfer or assignment of a policy, made in accordance with Sec.38 shall automatically cancel a nomination. So the answering OP No.2&3 have nothing to do independently regarding the policy of the complainant unless any specific instruction is issued by the said assignee i.e. OP No.4, SBI bank intimating thereby the reassignment of the policy in favour of the policy holder, on satisfaction of repayment of the loan amount to the said bank. The OP No.4 have reassigned the effect or benefits of the policy in question on 16.6.2015 in prescribed Form No.3857 in favour of the life assured Lipi Ganguly that is long after her death, even the space provided for any name in whose favour the reassignment has been made has been kept blank. So this reassignment can never be effected according to law. The error took place on the part of the OP No.4. That under such an unwanted and peculiar situation, the correct measure, ought to have taken on the part of the OP no.4 bank was to simply inform the LICI about the fact  of  full recovery of the loan amount and thereby to execute a separate deed of “Declaration” that any benefit arose out of such Assignment in favour of the bank, has duly been extinguished and they have no claim whatsoever upon all the benefits of the policy, in question, and the legal heirs of the policyholder are entitled  to get the entire benefits thereof as per the Law of Succession.

         Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company always tried to evade their responsibility of settling the claim of the complainant and also tried to shift burden upon the OP No.4. The insurance company i.e. OP No.2&3 assailed that they could not settle the claim of the complainant at the cause of OP No.4 who reassigned the impugned policy in the name of a deceased person after liquidating the entire claim. So the complainant suffered at the behest of negligence/deficiency of service on the part of the insurance company. They always tried to escape from his liability to settle the valid claim of the complainant. Hence we may safely conclude that mere direction upon the OP No.2&3 to pay the insured amount of Rs.2,00,000/- along with bonus  admissible as per policy including interest thereon @9% since the date of death on 11.01.2015 till realization to this complainant .

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

        The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.2&3 are liable to pay the ordered amount. The ordered amount includes the interest so there is no question of allowing compensation. 

ORDER

                    Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite Party No.2&3 with a litigation cost of Rs.5,000/-.

                  The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.2&3 are directed to pay the sum amounting to Rs.2,00,000/- along with bonus  admissible as per policy including interest thereon @9% since the date of death of the policyholder on 11.01.2015 till realization to this complainant within 45 days from the date of order.

                No other reliefs are awarded to the complainant for harassment and mental agony.

               OP No.1&4 are exonerated from this Proceeding.

                At the event of failure to comply with the order the Opposite Party No.2&3  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me Samaresh Kr. Mitra, Member.