BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.261 of 2021

      Date of Instt. 04.08.2021

      Date of Decision: 22.08.2022

1.       Aditi Kapoor Widow of Late Shri Hitesh Kapoor R/o 122, Deep       Nagar, Jalandhar Cantt. Jalandhar, Punjab.

2.       Yuvin Kapoor (Minor Aged about 5 years DOB:-12.08.2016)          Through her natural guardian and mother Aditi Kapoor widow of        Late Shri Hitesh Kapoor R/o 122, Deep Nagar, Jalandhar Cantt,    Jalandhar, Punjab.

..........Complainants

Versus

Life Insurance Corporation of India, CAB Branch, Pucca Bagh, Jalandhar, Punjab Through its Manager/Principal Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Atul Malhotra, Adv. Counsel for the Complainants.

                   Smt. Rekha Rani, Adv. Counsel for OP.

Order

Dr. HarveenBhardwaj (President)

1.                The instant complaint has been filed by the complainants, wherein it is alleged that the OPs are providing life insurance services to the general public for consideration particularly at Jalandhar through its Branch Office. Late Sh. Hitesh Kapoor, husband of the complainant No.1 had got issued an insurance policy bearing No.133574891 from OPs. The complainant No.1 is a consumer of the OPs being the nominee, beneficiary and the legatee of the said insurance policy of her husband Late Sh. Hitesh Kapoor. The complainant No.2 is the real son of complainant No.1 and Late Hitesh Kapoor. Complainant No.2 is the legal heir, beneficiary and legatee of late Shri Hitesh Kapoor, Complainant No.2 is represented by her mother and natural guardian i.e. complainant No.1. The said insurance policy bearing No.133574891 dated 28.01.2013 was for Rs.10,00,000/-. The said late Shri Hitesh Kapoor died on 20.08.2020 leaving behind his wife complainant No.1 and his minor son i.e. Complainant No.2. The deceased late Shri Hitesh Kapoor had been regularly making the payment of the premium to OPs on due date and time and had never defaulted in making the payment of the premium till the death of the deceased. Immediately after the death of late Shri Hitesh Kapoor, complainant No.1 had informed the OPs about the death of late Shri Hitesh Kapoor and thereafter had handed over and supplied all of the required documents to OPs as and when demanded by OPs. Thereafter, the OPs have been kept sleeping and dilly dallying the settlement of the claim of the policy of late Shri Hitesh Kapoor. The OPs have failed to settle the claim of the complainants till present date. Even after repeated visits by the complainant No.1 and relatives of complainant No.1, OPs have failed to settle and to pay the claim to complainants. Complainant No.1 had also sent a legal notice to OPs but to no use. The OPs have been dilly-dallying in settling the claim on the issue of a civil suit filed by Anil Kapoor i.e. father in law of complainant No.1. Filing of civil case is not a bar in settling the claim or making payment of the claim to complainants. Moreover, there is no stay or any injunction granted by the Civil Court till date. Further, as per settled law complainants are legal heirs of the deceased Late Shri Hitesh Kapoor and are the real beneficiary and legatee of the claim of deceased Late Shri Hitesh Kapoor. Due to the above said facts, there is deficiency in services, negligence, unfair trade practice and restrictive trade practices on the part of the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to make the payment of Rs.10,00,000/- alongwith all of the benefits etc. from the date of submission of claim till payment of entire sum alongwith interest @ 18% per annum and further OPs be directed to make the payment of Rs.20,00,000/- as compensation to the complainants for the deficiency in service, negligence, unfair trade practice on the part of the OPs and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who filed written reply and contested the complaint by taking preliminary objections that the present complaint filed by the complainant under the Consumer Protection Act is not maintainable at all as civil proceedings on this matter are pending in the Civil Court, so the present complaint is liable to be dismissed. It is further averred that the present complaint is filed on false and frivolous grounds and is liable to be dismissed on this ground only. The complainants in the present complaint has not come to the Court with clean hands and has suppressed the true and material facts from this Commission as such not entitled to any relief in the present complaint. The true facts of the case are that complainant’s husband Late Hitesh Kapoor was the son of Sh. Anil Kapoor. Late Shri Hitesh Kapoor i.e. the complainant’s husband have two policies with the LIC. As per record Late Shri Hitesh Kapoor has taken policy no.(1) 133574891 from CAB Branch Jalandhar with doc 28.01.2013 for S/A Rs.10,00,000 with Yly premium Rs.50443-00 and the nominee under this policy is Smt. Aditi Kapoor i.e. complainant no: 1 W/o Lt. Hitesh Kapoor. Hitesh Kapoor has taken Policy no:(2) 132834525 from Phagwara branch with DOC 28.08.2008 for S/A Rs.6,00,000/- with Yly premium Rs.30595-00 and the nominee under this policy is Sh. Anil Kapoor i.e. father of Lt. Sh. Hitesh Kapoor. The father of the late Hitesh Kapoor has filed a civil suit for declaration and permanent Injunction and Mandatory Injunction titled as Anil Kapoor Vs. Aditi Kapoor pending before the court of Ms. Prabhjot Kaur CJJD Jalandhar and was fixed for 12.10.2021, in which OP is implicated as respondent and the matter relating to the present complaint of this Commission is already pending in the Civil Court as such the Consumer Court has no authority to take the cognizance and decide the matter as the proceedings of Consumer Court are summery nature and the OP had given written statement in the above mentioned suit, but no where it is mentioned in the written statement that the answering Opposite party is not willing to make the payment to the complainants. As the disputed policy is the main issue, so the OP will make the payment to the complainants after the matter in dispute is decided by the Civil Court and OP will abide by the orders of Civil Court which will be binding on all the parties. It is further averred that no cause of action accrued to the complainant against the answering OP to file the present complaint. The answering OPs are unnecessarily involved in the present litigation as OP. Whereas the answering OPs will abide by the order of Civil Court regarding the release of amount lying with the OP.  The complainant has no locus-standi to file the present complaint during the pendency of civil suit. On merits, the factum with regard to taking insurance policy by the husband of the complainant No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                The complainant has alleged the deficiency in service and unfair trade practice on the part of the OPs in not releasing the amount of claim of the husband of the complainant, who has since died. It is admitted fact that the husband of the complainant namely Hitesh Kapoor had two policies with the LIC and the present complaint has been filed with regard to the payment of claim for Rs.10,00,000/- under the policy no.133574891. It has also been admitted that the complainant Smt. Aditi Kapoor is the nominee under the above said policy.

7.                The contention of the OP is that they are willing to make the payment to the complainant, but since the policy is disputed as the father-in-law of the complainant has filed the civil suit claiming his right over both the policies being legal heir of the deceased Hitesh Kapoor, therefore, the payment has not been released. The OP has alleged that the main matter is to be decided by the Civil Court and the OPs shall abide by the orders of Civil Court and the payment shall be released to the person to be ordered by the Civil Court.

8.                The complainant has proved on record the policy no.133574891 Ex.C-1. She has also filed on record the death certificate of her husband Hitesh Kapoor Ex.C-2. She has also proved on record the correspondence with the OPs to settle her claim and to release the claim amount. The correspondence between the complainant and the OP has been proved by the complainant Ex.C-3 to Ex.C-8. The defence of the OP, even in the reply to the emails, is that the matter is pending before the Civil Court. The other documents proved by the complainant are the intimation, the affidavits given by the complainant’s husband and the complainant replying to the query put by the OPs, proposal deposits receipt as Ex.C-9 to Ex.C-13. Ex.C-14 is Aadhar Card of the deceased Hitesh Kapoor. Ex.C15 is the passport of the complainant and the Ex.C-16 is the marriage certificate of the complainant with the deceased Hitesh Kapoor. Intimation to the OP of the death of the deceased Hitesh Kapoor has been proved as Ex.C-17 and death claim has been proved as Ex.C-18. Copy of passbook is Ex.C-21. The acknowledgement of renewal of the premium Ex.C-23 has been proved by the complainant.

9.                The OP has proved on record the written statement filed by the OPs in a civil suit filed by Anil Kapoor, the father-in-law of the complainant Ex.OP-1 and the copy of the suit filed by Anil Kapoor, the father-in-law of complainant is Ex.OP-2. Perusal of the suit filed by the father-in-law of the claimant Ex.OP-2 show that the father-in-law of the complainant has filed a suit for declaration, permanent injunction and mandatory injunction. He has sought the relief regarding two policies of the deceased Hitesh Kapoor bearing No.133574891 and 132834525 and other equity funds in HDFC Bank belonging to the deceased. It is admitted that the complainant is nominee in the policy no.133574891. Admittedly and proved fact is that the complainant No.1 is the wife of deceased Hitesh Kapoor and the complainant No.2 is the minor son of  the deceased and they are class-1 legal heirs of deceased Hitesh Kapoor. Section-39 of the Insurance Act, 1938 provides that the policy holder continues to hold interest in the policy during the life time and the nominee acquires no sought of interest in the policy during the life time of the policy holder. If that is so on the death of the policy holder, the amount payable under the policy becomes part of its estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. The provisions in Sub-section (6) of Section 39 says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. It has been held by the Hon’ble Supreme Court in a Civil Appeal No.96 of 1972, decided on 06.12.1983, titled as “Smt. Sarbati Devi and Another Vs. Smt. Usha Devi”, that Section 39 of the Act does not deprive the heirs of their rights in the amount payable under a life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy and the amount shall be given to the heirs of the assured in accordance with the law of succession governing them. In the present case, the complainants are the widow and the minor son of the deceased and they are Class-I heirs. As per the Hindu Succession Act, they are legal heirs of the deceased and the property (moveable or immovable) is to be passed on to Class-1 heirs (widow, children and mother). Anil Kapoor is the Class-II legal heir, being the father of the deceased. He has filed a civil suit before the Civil Court. The rights are to be determined by the Civil Court only. The father-in-law i.e. the father of the deceased Anil Kapoor has not been granted interim relief or any injunction at the time of filing of the suit by the Civil Court. As per the Section-39 of Insurance Act, the nominee is the receiptant of the amount and the legal heirs are entitled to get the same. As per the Hindu Succession Act, both the complainants are Class-I Legal Heirs of the deceased. In such circumstances, when the civil suit is pending and the widow and the minor son cannot be made to wait for unlimited period waiting for the decision of the Civil Court. However, the right/interest of father-in-law of the complainant, if any, can be protected by directing the complainant to furnish indemnity bond in the sum of Rs.15,00,000/- with one surety in the like amount indemnifying the claim of the father of the deceased namely Anil Kapoor or any other claimant, if any, in future subject to the decision of the civil suit pending in the Civil Court within two months. The OPs are directed to release the payment with interest @ 9% per annum under policy no.133574891 regarding the death of Hitesh Kapoor to the complainant being the nominee, Class-I legal heir of the deceased Hitesh Kapoor and natural guardian of complainant No.2, the minor son on furnishing her indemnity bond. Since the complainant No.2 is minor and his interest is to be protected, therefore the complainant is directed to deposit the half share of the complainant No.2 out of the total amount received from the insurance company in the shape of FDR and the complainant No.2 shall be entitled to withdraw the amount of FDR on attaining his majority. However, the complainant No.1 shall be entitled to use the interest, which will be derived on the FDR, for the use and benefit and welfare of the minor child, if so required. This amount shall be released subject to the decision of the Civil Court determining the rights of the parties. Thus, the complaint is partly allowed and OPs are directed to pay a compensation of Rs.5000/- to the complainant for causing mental tension and harassment to the complainant and Rs.3000/- as litigation expenses. The compliance of the order be made within 45 days from receipt of copy of this order. This complaint could not be decided within stipulated time frame due to rush of work.

10.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon      Jyotsna     Dr. Harveen Bhardwaj     

22.08.2022         Member                            Member            President