Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member.

1.       This consumer complaint is filed alleging that the insurance claim was not settled and paid to the complainants by O.P./Insurance company (herein after referred as ‘Insurance company’) and, thus, there is deficiency in service on the part of the Insurance Company.

2.       Late Adi Khurshed Cursetji had taken prior to his death which took place on 18/9/2002, five policies of Rs.10 lakhs each under the Plan ‘New Bima Nivesh (Tax free)’ and paid one time premium in respect of those policies.  He was murdered on 20/5/2003. Under the above referred policies name of his wife late Mehroo was shown and recorded as nominee.  Mehroo also died within few months of death of her husband, on 19/10/2003.  It may be mentioned here that prior to his death late Adi gave an intimation on 11/3/2003 to change the nomination in favour of his daughter Ms.Geeta Natwarlal Soni. However, said re-nomination was not recorded. He had given another application for absolutely assigning of the above referred policies in favour of said Geeta dated 03/4/2003.  However, before endorsing the policy referring this change, he died.

3.       Late Mehroo, wife of late Adi Khurshed Cursetji left a Will bequeathing her property in favour of complainant no.1 –Mr.Nowroz Fali Jilla and complainant no.2-Mr.Nipun Shah was appointed as a Sole Executor and trustee.  Complainants applied for probate of said Will and obtained the same viz. Probate petition no.853/2003 before the High Court of Judicature at Bombay, Mumbai.  Said probate was granted on 18/5/2004. Shortly before that intimation of death of insured late Adi Khurshed Cursetji was given by complainant no.2-Mr.Nipun Shah to the Insurance company in respect of above referred policies saying that the nominee Mrs.Mehroo was already dead prior to lodgement of the claim. The Insurance company treated the claim as an Open title death claim and, thus, calling for proof of title/succession certificate preferred not to grant the insurance claim in favour of the complainants, on the basis of probate which was obtained by the complainant on the basis of Will of late Mehroo.  Complainants were also informed accordingly as per reply dated 16/10/2007, letter dated 05/9/2007 received through Jay Legal Consultants. Therefore, the complainant filed this consumer complaint inter-alia praying the following reliefs:-

“i) The Opposite party be directed to pay Rs.50,00,000/- i.e. the maturity value of the Life Insurance Policies listed in para 2 of this complaint to the complainant no.1 with benefits thereon.

ii) With interest on the abovementioned amount at 12% p.a. from the date of this complaint till actual payment.

iii) The Opposite party be ordered to pay compensation to the complainant for stress, mental agony and inconvenience as may be deemed fit by this Hon’ble Commission.

iv) The costs of this suit be provided.”

4.       The consumer complaint was opposed by filing the written version by the Insurance company. They have raised multifold defences stating that complaint is barred by limitation in view of section 24-A of Consumer Protection Act, 1986 (Herein after referred as “Act”), further disputed that complainants are not consumers within the said Act and reaffirming their stand as to how on death of nominee Mehroo which occurred before the claim is made, the policies became the open title death claim, supra. They deny that there is any deficiency in service on their part as alleged.

5.       Heard both the parties.  Following points arises for our determination and we record our finding on each of them for the reasons to follow:-

1.      Whether consumer complaint is barred by limitation in view of the provisions of section 24-A of Act?

Finding : YES

2.       Whether complainants are consumers within the meaning of the Act?

Finding: NO

3.      Whether Insurance Company is guilty of deficiency in service in not paying the insurance claim   under the five policies under the plan “New Bima Nivesh (Tax Free)” by late Adi Khurshed Cursetji, in favour of the complainants?

Finding :  NO

4.        What order?

As per final order.

6.       Both the parties led their evidence on affidavits and also placed on record the documents of insurance policy, correspondence between the parties, inter-alia including exchange of notices. Facts as revealed and narrated above emerges as undisputed facts except legal inference that the parties preferred to draw on their own advantage.

Limitation starts knocking for lodging the present consumer complaint to lay hands on the policy amount, supra, certainly occurrred on the death of insured Adi Khurshed Cursetji on 20/5/2003.  For this purpose useful reference can be made to the decision of apex court in the matter of Kandimalla Raghavaiah & Co. v/s. National Insurance Co.Ltd. and other 2009 CTJ 951 (SC)(CP).

7.       We find substance in the submission made by insurance company on the point of limitation. Therefore, complaint filed on 20/11/2008 is certainly hit by the provisions of section 24-A of the Act and is barred by limitation. Even for the sake of argument if it is held that the cause of action occurred on the date of grant of probate i.e.18/5/2004 even then the present consumer complaint which is filed almost after four years thereafter is a stale action and barred by limitation.  Exchange of letters or notices would not give any cause of action to the complainants.  Point no.1 for determination accordingly answered in negative.

8.   Probate in legal parlance and as defined under section 2(f) of Indian Succession Act 1925 means, ‘the copy of Will certificate under seal of a code of competent jurisdiction with grant of administration to the Estate of testator’. Section 2(h) of Indian Succession Act 1925 further defines “Will”, to say that Will means a legal declaration of intention of a testator in respect of his property which he desires to be carried into effect after his death.  It may be pointed out here that in respect of insurance policies in question, which is the estate and property left of late Adi Khurshed Cursetji who died intestate, no letter of administration or succession certificate issued by competent authority is obtained by the complainants. It is only tried to be alleged that on the death of late Adi, his wife Mehroo is his legal heir.  She may be one of the legal heirs, but it does not mean that the property in question entirely passes to her in view of the provisions of Chapter III, particularly, section 53 and section 54(a) of Indian Succession Act 1925 which governs the succession in case of Parsees. Late Adi Khurshed Cursetji was a Parsee, the fact which is not in dispute. 

9.       Furthermore, even if we look to the provisions of the said Succession Act 1865 (Act No.XXI of 1865), late Mehroo cannot succeed fully the estate left by late Adi Khurshed Cursetji.  All other considerations particularly, in view of the admitted fact that late Adi was murdered, whether late Mehroo can succeed to the estate of late Adi is also a question needs to be probed and answered.  In this background, the five insurance policies in question cannot be, prima facie, treated as the property of late Mehroo and that raised a question of her capacity to bequeath them by a Will. As a nominee, she is merely a trustee to hold the money collected under the insurance policies for the benefit of legal heirs or lawful claimants to the estate left by late Adi. She, certainly, is not the owner.  Though she has survived for few months after the death of her husband late Adi, no insurance claim was made by her during her life time to the above referred policies. Therefore, as per the law governing the insurance and per well settled policies, whether the nominee survives the assured but dies before receiving the policy amount, evidence of title should be called for the estate of deceased assured and not for the estate of deceased nominee and in case where there is no nomination or in case where nominee is not alive, it becomes an ‘open title’ situation and the Insurance company would then require a proof of title/succession certificate issued by competent court and the claim would be paid to person specified in the proof.  In the instant case, such proof is wanting in favour of the complainants.  Therefore, they also cannot be termed as beneficiary within the meaning of the Act and, as such, they are not consumers as relevant to their status as consumer to file this consumer dispute.  Point no.2 for determination, accordingly, is answered in the negative.

10.     In view of the above referred circumstances, Insurance company when insisting for proof of title, supra, before settling the insurance claim and making its payment in favour of the complainants, it cannot be assumed that they are acting either arbitrarily or illegally.  Therefore, no deficiency in service within the meaning of the Act on their part could be alleged.  Point no.3 for determination is, thus, answered in the negative. For the reasons stated above and finding recorded on point nos.1, 2 & 3 supra, we find no merit in this consumer complaint and hence the order:-

                                                ORDER

1.     Consumer complaint no.174/2008 stands dismissed. 

2.     However, in the given circumstances, both the parties to bear their own costs.

3.     Copies of the order be furnished to the parties.