0.DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.58 of 5.3.2007 Decided on : 8.6.2007 <br /> <br /> Sharad @ Sharad Kumar S/o Sh. Bhag Chand S/o Sh. Kheta Ram C/o Bindal Machinery Store, Raman, District Bathinda.<br /> .... Complainant<br /> Versus<br /> 1.The Life Insurance Corporation of India, Jeevan Parkash, Urban Estate, Phase-1, Dugri, Ludhiana through its Sr. Divisional Manager.<br /> 2.The Life Insurance Corporation of India, “Jeevan Jyoti”, Bibiwala Road, Bathinda through its Branch Manager.<br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. J.S. Walia, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him due claim amount plus bonus etc. thereon under the policy alongwith interest @ 18% P.A on the amount of Rs.1,26,015/- from middle of October, 2005 till 6.1.2007 and on the remaining claim amount plus bonus etc. from middle of October, 2005 till the date of payment; Rs.1,00,000/- as compensation for mental tension, agony and loss of physical health and Rs. 10,000/- as costs.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> Life Insurance Policy No. 161122186 commencing from 15.5.98 under table and term 14-17 was purchased by Bhag Chand S/o Sh. Kheta Ram on the basis of the allurement given by the agent of opposite party No.2. Proposal form was filled in by him. Sum assured was Rs.2,00,000/-. Half yearly instalment of premium was Rs.8,401/-. Date of maturity was 15.5.2015. Date of birth disclosed by the assured was 12.4.1940. Complainant was declared by him as nominee. Assured was regularly paying the amount of instalments. He breathed his last on 29.8.2005 at Raman, District Bathinda. Complainant lodged the claim with the opposite parties. Claimant statement dated 23.9.2005 and other relevant documents were submitted. Complainant was apprised by opposite party No.2 vide letter dated 17.12.2005 that assured had not submitted the proof regarding his age at the time of submitting proposal for insurance. Complainant was directed to furnish standard age proof of the deceased for enabling to proceed further in the matter. As age of proof was not available with the complainant, he furnished Voter Identity Card of his deceased father alongwith covering letter wherein his age was recorded as 63. Vide letter dated 17.4.2006, opposite party No2 intimated him that competent authority has admitted claim on ex-gratia basis and that he should send form No.5170A for release of the payment. Reminder dated 28.5.2006 was received by him from opposite party No.2. Registered letter dated 30.5.2006 was sent by the complainant requiring opposite party No.2 to give details of the amount of claim which was sanctioned and reasons for rejection of the legal liability under the claim. Opposite party No. 2 vide letter dated 10.6.2006 intimated him that life assured had mentioned his date of birth as 12.4.1940 in the proposal form at the time of insurance i.e. 58 years, but as per age proof submitted by him (complainant), he was 66 and was not insurable under table and term 14-17 and that Competent authority has admitted the liability to refund the premium sympathetically. Feeling dissatisfied with the decision of the opposite parties, he lodged complaint dated 4.7.2006 with the Insurance Ombudsman, Chandigarh seeking direction to the opposite parties to make payment of the total claim with accrued bonus etc. under the policy. Ombudsman decided the matter in favour of the opposite parties on 17.8.2006. It is alleged by him (complainant) that he was not summoned. No personal hearing before deciding the matter was afforded. Opposite parties under whom was the Ombudsman got the matter decided in their favour. On the basis of the decision of the Ombudsman, opposite party No. 2 vide letter dated 13.11.2006 required the complainant to send form No. 5170 i.e. advance receipt for payment of ex-gratia amount. He alleges that his signatures were obtained by the officials of opposite party No. 2 on the receipt. He was not allowed to record that payment was being received by him under protest. Threat was extended to him that payment in this manner would not be released. A sum of Rs.1,26,015/- was paid to him vide an account payee cheque dated 4.1.2007 alongwith covering letter dated 6.1.2007. Vide letter dated 9.1.2007, he intimated opposite party No. 2 that he has received the cheque under protest and that remaining claim amount be paid to him. According to him, the decision of the opposite parties to refund the premium amount and the decision of the Ombudsman are illegal, null and void, against law and facts and non-est. Opposite parties never demanded age proof of life assured during his life. Its is only after his death, age proof was demanded. Age mentioned in the Voter Identity Card cannot be considered as correct. Opposite parties should consume a period of one month to finalize the claim, but they withheld it upto January, 2007. He alleges deficiency in service and unfair trade practice on the part of the opposite parties. <br /> 3. Opposite parties filed reply taking legal objections that complainant has no locus-standi and cause of action to file the complaint; he has not approached this Forum with clean hands; he is not consumer; matter has already been decided by the insurance Ombudsman who has dismissed the complaint of the complainant on 17.8.2006 and as such, this complaint is not maintainable; complainant is estopped from filing the complaint by his act and conduct; complaint is frivolous & extrinsic oral and voluminous documentary evidence is required in this complaint and as such, it cannot be decided by this Forum in summary procedure. On merits, they admit that insurance policy was issued to Bhag Chand. It was got issued by him by concealing his correct age. Date of birth was disclosed as 12.4.1940, whereas deceased was more than 66 at the time of taking policy. Under table and table 14-17 maximum age at the time of entry is 60, whereas deceased was 66. Policy was got issued fraudulently by giving less age than the actual one. Assured attempted to defraud them. They admit that assured died on 29.8.2005. As per Voter Identity Card made available by the complainant, age of the deceased was 63 years as on 1.1.1995. So, he was 66 at the time of taking the policy in 1998. He was not 58 as falsely mentioned in the proposal form. Competent authority by taking sympathetic view admitted the liability for refund of premium on ex-gratia basis. Complainant voluntarily submitted form No. 5170 complete in all respects in discharge of full and final settlement of claim in respect of the policy by receiving Rs.1,26,015/-. Once amount has been received by way of issuing discharge voucher, the writing of any letter subsequently does not give any fresh cause of action. They deny the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Sharad Kumar complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of policy (Ex.C.2), photocopy of death certificate of Sh. Bhag Chand (Ex.C.3), photocopies of letters dated 17.12.2005, 17.4.2006, 28.5.2006, 30.5.2006, 10.6.2006, 4.7.2006, 17.8.2006, 13.11.2006 & 6.1.2007 (Ex.C.4, Ex.C.6 to Ex. C. 10 & Ex.C.12 to Ex.C.13), photocopy of Voter Identity Card (Ex.C.5), photocopy of order dated 17.8.2006 (Ex.C.11), photocopy of cheque dated 4.1.2007 (Ex.C.14), photocopy of application dated 9.1.2007 & photocopy of Claimant's statement (Ex.C.16). <br /> 5. On behalf of the opposite parties, reliance has been placed on affidavit (Ex.R.1) of Sh. Shanti Lal Yadav, Manager Legal & H.P.F, photocopy of receipt on Form No 5170-A (Ex.R.2), photocopies of letters dated 10.6.2006 (Ex.R.3 & Ex.4), photocopy of Identity Card (Ex.R.5) & Photocopy of Proposal Form (Ex.R.6).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the opposite parties. <br /> 7. One of the objections taken in the reply of the complaint by the opposite parties is that complainant had filed complaint before the insurance Ombudsman, Chandigarh and that complaint has been dismissed by him vide order dated 17.8.2006, copy of which is Ex.C.11 and as such, this complaint is not maintainable as the matter has already been decided by the Ombudsman. This objection is not tenable in view of the authority Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd.-I(2005)CPJ-107(NC) in which it has been held that Ombudsman does not discharge judicial or quasi-judicial functions. His role is altogether different. Award of Ombudsman is not binding upon the complainant. Repudiation of the claim is subject to adjudication by Consumer Fora. Accordingly, we hold that fact that insurance Ombudsman dismissed the complaint filed by the complainant is no bar for the complainant to knock the door of this Forum by way of filing this complaint.<br /> 8. Another objection of the opposite parties is that oral and voluminous documentary evidence is required in this case and as such, complaint cannot be decided in summary procedure by this Forum. Both the parties have already led evidence. None of the opposite parties to this complaint urged before this Forum that any other voluminous evidence is warranted which could not be produced before this Forum. Moreover, matter has already been set at rest by their Lordships of the Hon'ble Supreme Court in the authority CCI Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd.-III(2003)CPJ-9 (SC) in which it has been held that principal object sought to be achieved by establishing Consumer Foras is to relieve the conventional courts of their burden which is ever increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure which at times is accompanied by technicalities. Merely because recording of evidence is required or some questions of law and facts arise which need to be investigated and determined, cannot be a ground for shutting the door of any Forum under the Act to the person aggrieved. Similar view has been held in the case of Dr. J.J. Merchants Vs. Shrinath Chaturvedi-III(2002)CPJ-8(SC). <br /> 9. Mr. Walia, learned counsel for the complainant vehementally argued that father of the complainant had purchased the insurance policy for Rs.2,00,000/- under table and term 14-17 and that it commenced w.e.f. 15.5.98. Opposite parties issued the policy, copy of which is Ex.C.2, after satisfying themselves about the age of the deceased etc. Father of the complainant has died on 29.8.2005. Thereafter, complainant had lodged death claim with the opposite parties by way of submitting claimant's statement on 23.9.2005, copy of which is Ex.C.16. Opposite parties were required to pay the due claim amount plus bonus etc. They did not decide the matter and ultimately, sent cheque for Rs.1,26,015/-, copy of which is Ex.C.14, alongwith covering letter, copy of which is Ex.C.13, which was received by the complainant on 9.1.2007 and on the same day, complainant lodged protest by way of sending letter, copy of which is Ex.C.15 to the effect that full amount of insurance claim be paid. His next leg of argument is that opposite parties had sought proof of age of the deceased through letter, copy of which is Ex.C.4 and complainant had submitted copy of the Voter Identity Card of his father. Voter Identity Card is no authentic proof of age and as such, opposite parties cannot debar the complainant from claiming the full amount under the policy.<br /> 10. Learned counsel for the opposite parties countered the arguments of the learned counsel for the complainant by submitting that the assured had concealed the material fact of age while taking the policy by way of telling his age as 12.4.1940. In fact, he was 66 and not 58. Maximum age of entry under table and term 14-17 is 60. Due to this fact, contract stood vitiated. Moreover, complainant has received Rs.1,26,015/- voluntarily submitting form No. 5170, copy of which is Ex.R.2, in discharge of full and final settlement of the claim and as such, he is estopped from filing this complaint. For this, reliance has been placed by the opposite parties on the authority New India Assurance Co. Ltd. Vs. Achhar Kumar Garg-1996(1)CPR-4. <br /> 11. We have considered the rival arguments. No-doubt, complainant has received a sum of Rs.1,26,015/- as ex-gratia payment by way of executing discharge voucher. Amount was sent to the complainant through cheque dated 4.1.2007 alongwith covering letter dated 6.1.2006. Cheque and covering letter were received by the complainant on 9.1.2007 as is evident from Ex.C.15. On the same day, he sent protest letter, copy of which is Ex.C.15. He specifically mentioned in it that the payment of Rs.1,26,015/- was being received by him under protest. It is further in the letter that officials of the opposite parties had threatened him that they would not release the amount if he added words under protest in form No. 5170. Accordingly, words under protest were not written in form No. 5170. Protest has been lodged separately through letter dated 9.1.2007. Mere execution of the discharge voucher does not always deprive the consumer from preferring the claim with respect to deficiency in service or consequential benefits. If consumer satisfies the authority under the Act that discharge voucher was obtained by fraud, misrepresentation, undue influence and compelled circumstances, appropriate relief can be granted. Mere execution of discharge voucher and acceptance of claim would not estop the consumer from making further claim. In this view of the matter, we are fortified by the observations of their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. VS. Ajmer Singh Cotton and General Mills and others-2000(1)Apex Court Journal 238 (SC). After considering all the pros and cones of the case in hand, we are of the view that complainant did not execute the discharge voucher voluntarily. Rather, under the circumstances, he was compelled to execute it. On the same day, he raised alarm requesting that full amount of insurance be released. Accordingly, execution of the discharge voucher would not operate as estopple for filing this complaint. With utmost regard and humility to the authority New India Assurance Co. Ltd. Vs. Achhar Kumar Garg (supra), the same is distinguishable on facts as in this case complainant has raised protest on the same day for not making payment of the full claim amount. Moreover, matter has been set at rest by their Lordships of the Hon'ble Supreme Court in the authority referred to above.<br /> 12. As regards age, opposite parties are relying upon copy of the Voter Identity Card, copies of which are Ex.C5 & Ex. R.5. In this document, age of the assured as on 1.1.95 has been recorded as 63. According to the opposite parties, date of birth was disclosed by the assured as 12.4.1940, whereas he was more than 66 at the time of taking the policy. Under table and term 14-17, maximum age at the time of insurance is 60. Copy of the proposal for insurance submitted by the assured is Ex.R.6. Opposite parties did not deem it fit to get the assured medically examined regarding his age. Insurance policy commenced from 15.5.98. Assured expired on 29.8.2005. Opposite parties continued receiving the premium without any objection. It is only after the death of the assured grave is being dug to make post mortem of his policy. Queries about age should have been made at the very outset before policy was issued or immediately thereafter. Opposite parties should have inquired about the actual age of the assured during his life time. Opposite parties cannot deny the full claim after receiving premium for several years and after the death of the assured. In this view of the matter, we get support from the observations of the Hon'ble Uttaranchal State Commission in the case of Life Insurance Corporation of India Vs. Bahadur Singh-2004(2)CPR-599. Age cannot be determined on the basis of the Voter Identity Card as it is not authentic document. At the time of preparation of the Voter Identity Card, Election Staff never insists upon the production of age proof. Whatever is declared, the same is recorded. Hence, Voter Identity Card cannot be taken as sold proof to falsify the statement of the assured with regard to his age. In this view of the matter, we are fortified by the observations of Hon'ble State Commission of Haryana in the case of Life Insurance Corporation of India Vs. Smt. Ram Payari-1997(1)CPC-592. In these circumstances, we find it difficult to hold that the age told by the assured in the proposal form submitted by him is incorrect. In these circumstances, opposite parties were required to pay the full claim amount to the complainant. Despite this, this claim amount has been paid on ex-gratia basis and that too, with inordinate delay i.e. on 9.1.2007, although claimant's statement was submitted by the complainant on 23.9.2005. Period of three months is the reasonable time for settlement. For this, reference may be made to the authority Bhagwati Rice Company, Sangrur Vs. United India Insurance Co. & another-2005(1)CPC-479. In the facts and circumstances, deficiency in service on the part of the opposite parties is writ large. <br /> 13. Now question arises as to which relief should be accorded to the complainant. In view of our foregoing discussion, direction deserves to be given to the opposite parties to pay full claim amount plus bonus thereon etc. under the policy alongwith interest @ 9% P.A on the amount of RS.1,26,015/- from 24.12.2005 till 9.1.2007 and on the remaining claim amount plus bonus etc. from 24.12.2005 till payment. Complainant is also craving for compensation of Rs.1,00,000/- for mental tension, agony and loss of physical health. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed. <br /> 14. No other point was urged before us at the time of arguments.<br /> 15. In the premises written above, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) To pay full claim amount plus bonus thereon etc. due under the life insurance policy purchased by Bhag Chand deceased alongwith interest @ 9% P.A on the amount of Rs.1,26,015/- from 24.12.2005 till 9.1.2007 and on the remaining claim amount plus bonus etc. from 24.12.2005 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order. <br /> 16. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> Pronounced (Lakhbir Singh)<br /> 8.6.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br /> <br />