BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 13 of 2015

                 1.    Shri Bimalendu Bhattacharjee,

                 2.    Smti. Hrishita Bhattacharjee (Daughter of Bimalendu Bhattacharjee)

                        Both resident of Aryapatty, Silchar Town,

                        P.O & P.S- Silchar, Assam……………………………………..   Complainants.

                                                -V/S-

                 1.    Life Insurance Corporation of India, Divisional Office,

                        L.I.C, Mehepur, Silchar-15, Cachar, Assam………….………….   O.P.No.1.

                 2.    Senior Divisional Manager, Life Insurance Corporation of India

                        Divisional Office, L.I.C, Meherpur, Silchar- 15…………………   O.P.No.2.

Present: -                                Sri BishnuDebnath,                                      President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

                                                            Sri Kamal Kumar Sarda,                             Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.       

            Appeared: -                Mr. Joydeep Biswas, Advocate for the complainant.

                                                Mr. Sibdas Dutta, Advocate for the O.Ps.

                         Date of Evidence                              28-10-2015, 19-06-2017,

                         Date of written argument                08-03-2019, 11-04-2019,

                         Date of judgment                             27-08-2019

JUDGMENT AND ORDER

                                        Sri BishnuDebnath

1.       This complaint  case has been brought jointly  by Sri Bimaludu Bhattacharjee and his daughter Miss Hrishita Bhattacharjee  against the Life Insurance Corporation of India and its Senior Divisional Manager, Silchar under the provisions of the Consumer Protection Act,1986, for direction to make payment of sum insured  value of 7(seven) number of Insurance policies purchased in the name of Rajyashree Bhattacharjee on account of her death along with compensation for disservice as well as mental agony for non-payment of the sum insured value in time,  because they are the legal heirs of the deceased life insured Rajyashree Bhattacharjee. The aforesaid complainants are referred hereinafter as ‘Complainant No.1’ and ‘Complainant No.2’ respectively in the judgment. The Life Insurance Corporation of India is referred as OP No.1 and Senior Divisional Manager, Silchar Division of Life Insurance Corporation of India is referred as OP No.2 in this judgment. The deceased life insured Rajyashree Bhattacharje is also referred as ‘DLI’ in this judgment for better expression of the facts and evidence on record.

2.       Brief facts of the case are as below:

1. DLI purchased as many as 7(seven) numbers of insurance policies from Silchar Division of the OP No.1 during her life time in different dates. 3(three) out of the aforesaid 7(seven) insurance policies, the than minor daughter the Complainant No.2 was made nominee in the insurance record to receive the sum insured on her death. Similarly, she made her husband the Complainant No.1 as nominee for remaining 4(four) polices.

2. The policies are described as

3. Unfortunately, DLI died intestate on cancer on 29.06.2009 leaving behind her husband and a minor daughter aforesaid as legal heirs. Accordingly, the Complainant No.1 & 2 deposited aforesaid insurance policies in original to the concern LIC Branch Office, Hailakandi for claim the sum insured value on account of death of the DLI

4. The Manager, Claims, Silchar Division Office acknowledged the receipt of the Claim Form, vide letter dated 15.07.2014 addressed to the Complainant No.2. But in that letter, the Manager (Claims) of the OP No.1 referred a Legal Notice dated 27.07.2009 issued by Advocate Sri Mriganka Bhattacharjee on behalf of Sri Harsha Bardhan Bhattacharjee the maternal uncle of the Complainant No.2 for stop payment against the aforesaid policies till the Complainant No.2 attain majority on the grounds that the DLI executed her last Will in favour of the Complainant No.2 to receive all her movable and immovable properties including death benefits regarding Insurance Policies.

5. The Complainants were neither known of execution of any such Will executed by Rajyashree Bhattacharjee  in favour of the Complainant No.2 nor any such Will kept concealed in their custody. Rather, Sri Harsha Bardhan Bhattacharjee the maternal uncle of the Complainant No.2 created a forged Will for reaping unjust benefits and accordingly, illegally issued the legal notice to stop payment of the claim amount.

6. However, the Complainant No.2 never approached to the competent Court to grant probate of the alleged Will and also does not recognize such alleged Will as the last Will executed by DLI. Not only that the Complainant No.2 requested the OPs by writing a letter dated 24.06.2014 to make payment of death claim of her mother the DLI. In reply, the Manager (Claims) of the OP No.1 directed her to obtain Succession Certificate and also directed her that at the time of apply for obtaining Succession Certificate, the fact regarding existence of  Will executed by her mother the DLI must be brought to the notice of the Court of Law. The said direction of the OPs is ludicrous because above direction is the reflection of ignorance of law.

7. Subsequently, the Complainant No.2 served a registered legal Notice on 16.10.2014 to the Manager (Claims) of the OP No.1and requested to make payment the death claim amount to the nominees of each policy or allow obtaining a regular Succession Certificate jointly by the Complainant No.1 & 2. But the Manager (Claims) of the OP No.1 in response informed that matter has been referred to Zonal Office, Kolkata for opinion. The OPs did not communicate the opinion of the Zonal Office. Hence, another legal Notice dated 03.02.2015 issued by the Complainant No.2 with request to the General Manager (Claims) of the OP No.1 to settle the genuine claims of the complainants within fortnight of the receipt of the letter, and if failing which, legal recourse will be taken and in that eventuality the OPs would be liable for compensation and cost. On receipt of that letter the OPs, vide Letter No.SD/Claims, dated 17. 04.2015 addressed to the Complainant No.2 asked her again to submit Probate and/or Letter of Administration in respect of the alleged Will and finally rejected the genuine claims of the Complainants.

8. But the OPs most illegally, in spite of demands, intentionally withheld release of the entire assured sum together with all bonuses etc. for many years from 2009 till date and thus, caused huge financial loss and mental agonies to the complainants.

3.       The OPs in their joint W/S stated inter-alia that payment of death claims in respect of the aforementioned 7(seven) number of insurance policies have been stopped in view of non-submission of Probate of competent Court in respect of last Will dated 17.09.2008 executed by DLI in favour of the Complainant No.2. They stated further that not only the maternal uncle of the Complainant No.2 informed the OPs regarding existence of the Will of the DLI in which the Complainant no.2 was appointed as Executor to obtain Probate of the competent Court at her attaining majority but also it was the last Will of the DLI to get death claims of all the above mentioned 7(seven) insurance policies by the Complainant not 2 only, vide Lawyer’s Notice dated 27.07.2009. The OPs further stated that the legal Notice served by the maternal uncle to stop payment of death claims to the Complainants till the Complainant No.2 attains majority. However, the OPs sent letter dated 13.04.2011 to the Lawyer Sri Mriganka Bhattacharjee asking him to instruct the Complainants to submit Probate of the aforesaid Will to make payments of the sum assured with bonus to the Complainant No.2.

4.       The OPs again submitted that the existence of the last Will of the DLI in favour of the Complainant No.2 is admitted by both the Complainant No.1 & 2 by issuing letter to the OPs, vide letter of the Complainant No.2 dated 09.11.2012 and dated 17.07.2013 and letter of the Complainant No.1 dated 17.12.2013. It is further stated by the OPs in the W/S that the Complainant No.1 in the letter dated 17.12.2013 clearly stated that the said Will could not be traced out and as such, the requirement of production of Probate of the Will is required to be dispensed with and sum assured of the insurance policies may be released in favour of the Complainant No.2. But now they are denying the existence of the Will dated 17.09.2008. So the opinion of the OPs is that the Complainants are not submitting Probate for the sake of minimizing the cost of obtaining Probate of the competent Court.

5.       To support the case, the Complainant side submitted deposition of both the Complainant along with some documents, vide Ext.1 to Ext.6. Both the Complainant was cross examined by the learned advocate of the OPs. The Complainant No.1 is arrayed as PW-1 and Complainant No.2 is PW-2. The OP side submitted deposition of Ramesh Chandra Das as DW-1. He is Manager (Claims) of the OP No.1. Said witness exhibited some documents, vide Ext.A to Ext.X including copy of the Will date 17.09.2008, vide Ext.D, letter date 09.11.2012 of the Complainant No.2, vide Ext.G as well as letter dated 17.12.2013 of the Complainant No.1, vide Ext.K. The OP side also submitted deposition of Madhab Kalai, the present Manager (Claims) of the OP No.1 as DW-3 and exhibited the documents which were exhibited earlier by the DW-1. The said DW-3 also exhibited a Power of Attorney as Ext.Y. The DW-3 was cross examined by the learned advocate of the Complainant. Sri Mriganka Bhattacharjee was examined as DW2. Ferdausi Ezarar Mazumdar submitted deposition on oath as DW-4 to establish the execution of the Will by the DLI. The said witness was also cross examined by the learned advocate of the Complainant. The advocate Monish Das was examined as DW-5 to establish the facts that he prepared the Will of the DLI dated 17.09.2008. The said witness also faced cross examination of the learned advocate of the Complainant. After closing the evidence both sides; counsels submitted their Written Arguments but none has orally argued their case at the time of taking up of the record.

6.       Nevertheless, I have perused the Complaint, W/S and evidence on record including written arguments. In this case in view of the evidence on record it is transpired that the DLI purchased as many as 7(seven) Insurance Policies of total sum assured is Rs.5,55,000 (Rupees Five Lakh Fifty Five Thousand) only. It is also established facts in view of the evidence on record that the DLI died before maturity of those insurance policies due to Cancer. So, it is an undisputed fact that the legal heirs of the DLI are entitled to get the death claims from the OPs. It is also revealed from the evidence on record that the OPs are not denying to right of the legal heirs of the DLI to get the death claims. Moreover, the OPs are not denying the status of the Complainant as legal heirs of the DLI. But in this case the claims have not been settled by the OPs on the plea that there is a Will of the DLI in favour of the Complainant No.2 for 100% share of the death claims and as such they want Probate of the Will. In this aspect, the Complainants took plea that there is no Will in existence as stated by the OPs, so, there is no question of production of Probate.

7.       The Complainants denied the existence of the Will of the DLI. So, the OPs exhibited the copy of the alleged Will through the Manager (Claims). The said witness is DW-1. The DW-3 also supported the facts. The copy of the alleged Will is Ext.D. So, the OP by adducing evidence tried to establish the facts that the DLI executed a Will dated 17.09.2008. In that aspect the OPs stated that the facts of existence of Will at the first instance informed by the maternal uncle of the Complainant No.2 through a legal Notice dated 27.07.2009, vide Ext.C.  It is also stated on subsequent date on attaining majority the Complainant No.2 along with legal Notice, a copy of Will, vide Ext.D furnished to the OPs by the Complainant No.2, vide Ext.G but the Complainants failed to submit Probate of the Competent Court.

8.       Advocate Mriganka Bhattacharjee being DW2 deposed that he issued the legal Notice dated 27.07.2009, vide Ext.C on behalf of minor Hrishita Bhattacharjee to the Branch Manager, LICI, Hailakandi to inform that there is a Will of DLI, vide Ext.D.  But above evidence does not establish the fact that DLI executed the Will because the DW-2 is neither an attesting witness of the Will nor the writer of the Will.

9.       Anyhow, to establish the fact of existence of Will dated 17.09.2008, in addition of the above documentary evidence, the OPs brought evidence of Notary Public who allegedly put signature on the Will dated 17.09.2008. The said Notary Public is Ferdausi Ezrar Mazumdar. He is examined as DW-4. He deposed on supporting affidavit that Ext.D is a copy of Will dated 17.09.2008 executed by DLI. He admitted his signature on the Will as Ext.D (9) and Ext.D (11). He also deposed that as per copy of the Will, Advocate Monish Das drafted the original Will. But his evidence is not sufficient to hold that DLI executed the Will dated 17.09.2008 because he deposed that he did not know the DLI. He also did not depose that at the time of writing of the Will he was remaining present. So, the fact of writing of the Will by Advocate Monish Das is not established in view of the above evidence on record. Moreover, the advocate Monish Das being DW-5 tacitly denied the fact that he is writer of that Will.

10.     In this case original Will is not exhibited. In that aspect the Complainant stated that they are ignorant about the existence of the Will. But the OPs have not only adduced above evidence but also  stated that the Complainant No.2 admitted the existence of  Will dated 17.09.2008, vide her letter dated 09.11.2012. addressed to the OPs, vide Ext.G and she also subsequently reiterated the admission of the existence of the Will, vide Ext.I.

11.     The existence of the Will of the DLI is also admitted by the Complainant No.1 in his letter dated 17.12.2013 addressed to the OPs, vide Ext.K, the OPs added. But on careful reading of the Ext.K letter of the Complainant No.1, it is concluded that the Complainant No.1 did not admit the existence of any Will of DLI but informed the OP that he search in the home but did not find any such Will. Of course, in that letter he also appealed to the OPs to dispense with the requirement of obtaining Probate of so called Will of the DLI and release the entire amount of insurance policies in favour of his daughter, i.e., the Complainant No.2. The relevant portion of that Ext.K letter isreproduced here – “In conclusion, it is my only appeal to your kind self to see how long me and my daughter be denied of payment from the insured values of the policies on the pretext of a will the existence of which is apocryphal or else use your discretion to dispense with the requirement of an Illusive probate and thus release the amount to my daughter.”

12.     However, the Complainant No.2 in her deposition admitted that Ext.G letter dated 09.11.2012 was written by her and Ext.G (1) is her signature. She admitted in her deposition that in the Ext.G letter she informed the OPs that her mother, i.e., DLI executed a Will. She deposed further that she produced the copy of Will, to the OPs along with the Ext,G letter, The copy of the Will is admitted by her as Ext.D.

13.     I have gone through the Ext.G and Ext.D. In the Ext.G letter it is clearly reflected that there is a Will of the DLI and as per that Will the Complainant No.2 is entitled 100% of the share of the property of the DLI including death benefit of insurance policies.

14.     From the above evidence on record it is concluded that there is a Will of the DLI and as per that Will, Complainant No.2 is entitled all death benefit of the Insurance Policies of the DLI. At the same time, I have not found any iota of evidence on record that the Complainant No.1 is against the arrangement made in the Will of the DLI. Rather, Ext.K reflected his mentality that he will not to be un-happy if the OPs make payment of entire sum assured, i.e., death benefits of the Insurance Policies of DLI to the Complainant No.2

15.     As such, when there is no conflict between the legal heirs of the DLI regarding the arrangement made in the Will, so, there is no need to obtain Probate. Rather the OPs could make payment of the death claims in respect of all the 7(seven) insurance policies to the Complainant No.2 as soon as received the Ext.K letter from the Complainant No.1. But without any attitude to make payment of death benefits of the insurance policies to the Complainant No.2 the OPs hold up the entire death benefits on irrational ground of production of Probate in spite of receiving of the letter of the Complainant No.1, vide Ext.K.

16.     Moreover, when biological father being the natural guardian of his minor daughter and he was not disqualified by the competent Court at the relevant time to act as guardian of the property of the minor, the OPs might not act upon to stop payment of death benefit on the information received from a third party so called guardian of a minor beneficiary for unspecified period.

17.     In the instant case the legal notice served upon the OPs by the advocate Mriganka Bhattacharjee (DW-2) on behalf of  Hrishita Bhattacharjee when she was a minor girl to stop payment, vide Ext.C. Who authorized the said advocate to issue the legal Notice to stop payment until the minor girl attain majority when the alleged Will does not make any provision of appointment of Administer of maintenance of the property acquired by minor on the event of death of the Testator or when there is no provision in the Will, vide Ext,D to make payment of the death benefit to the daughter Hrishita Bhattacharjee after she attaining majority.

18.     From the record it is revealed that the maternal uncle of the minor Hrishita Bhattacharjee acted as representative of the minor Hrishita Bhattacharjee, who authorized the advocate Mriganka Bhattacharjee to serve legal Notice to the OPs to stop payment till the minor girl attain majority and the OPs in view of the said information stopped the payment of the death benefit. But the OPs never, asked for as whether any person was appointed by the competent Court as legal guardian of the minor both for life and/or property in place of her natural guardian. So, in that situation it was the duty of the OPs to ask the advocate Mriganka Bhattacharjee to submit appointment order of the competent Court regarding legal guardianship of the minor girl Hrishita Bhattacharjee. But nothing found in the evidence on record. Hence, in my consider view, action of the OPs regarding stop payment on the basis of information given by the advocate Mriganka Bhattacharjee is not justified for unspecified period.

19.     Therefore, in this case, I have found material for disservice of the OPs in respect of making payment of death benefit of the DLI to the Complainant No.2. As such, the OPs are directed to make payment of all death benefit in respect of all 7(seven) insurance policies of DLI to the Complainant No.2 with interest at the rate of 6% (six percent) per annum from the date of issuing of Ext.K, i.e., from 17.12.2013. without interference of the Complainant No.1 because the Complainant No.2 is now admittedly a major unmarried girl. The OPs are also directed to pay consolidated compensation for disservice, and mental agony of Rs 50,000 (Rupees  Fifty Thousand) only and to pay cost of the proceeding of Rs 5,000 (Rupees Five Thousand) only. The OPs are to satisfy the award within 45 (forty five) days from today. In default, interest at the rate of 10 % (ten percent) per annum to be added to the awarded amount from the date of defaulter till realization of the full,

20.     With the above, the case is disposed of on contest. Supply free certifies copy of the judgment to the parties of this litigation. Given under my hand and seal of this District Forum on this the 27^th day of August,2019.