Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member This appeal takes an exception to an order dated 26/02/2010, passed by District Consumer Disputes Redressal Forum, South Mumbai (‘the Forum’ in short) in Consumer Complaint No.158 of 2008, Mr. Jagdeep Jagannath Talekar Vs. The Zonal Manager, Life Insurance Corporation of India. It is a case of alleged deficiency in service on the part of the Life Insurance Corporation of India to repudiate the claim on the death of Mr. Avinash Purshottam Naringrekar in respect of insurance policies bearing Nos.891755972 & 891755973, each for `25,000/-. Consumer complaint was allowed and feeling aggrieved thereby the original Opponent, namely – Zonal Manager, Life Insurance Corporation of India preferred this appeal. [2] It is the case of the Respondent/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) that he had filed a Summary Civil Suit bearing No.4089 of 1993 before the High Court of Judicature of Mumbai, Mumbai to recover the debt from Mrs. K. P. Naringrekar who is the mother of Late Mr. Avinash Purshottam Naringrekar and who stood as a guarantor for the loan borrowed by Late Mr. Avinash Purshottam Naringrekar. It was a suit filed against Mrs. K. P. Naringrekar as a guarantor. Said suit was decreed ex-parte on 30/6/1997. Execution proceedings were filed. Certain property in Sindhudurg District, Maharashtra was sold but, the decree was not fully satisfied and an amount of `93,235.75ps., remained outstanding as on 15/8/2003. By an order dated 9/12/2004 passed in execution proceeding vide Chamber Summons No.1799 of 2003, the Complainant secured a direction in his favour whereby he was given a right to collect the amount of claim sanctioned by Life Insurance Corporation of India in respect of above-referred two insurance policies on the life of Late Mr. Avinash Purshottam Naringrekar. By the said order, the High Court further directed legal heirs of Late Mr. Avinash Purshottam Naringrekar to submit requisite papers and information to the Life Insurance Corporation of India (hereinafter referred to as ‘LIC of India’ for the sake of brevity) so that the claim could be processed. However, the claim stood repudiated by LIC of India’s letter dated 18/7/2006 on the ground that there is breach of utmost good faith and the insured, namely – Late Mr. Avinash Purshottam Naringrekar while taking the insurance policies in question suppressed the material fact of illness related to ‘manic depressive psychosis’ for which he was taking treatment from the psychiatrist for several years. Grievance is made by the Complainant for such repudiation and alleging deficiency in service on the part of LIC of India on that count, consumer complaint was filed on 25/8/2008. [3] Admitted and heard forthwith with the consent of the parties. Perused the record. [4] At the outset, it may be mentioned that the alleged deficiency in service for repudiation of the insurance claim is alleged against LIC of India but, said LIC of India is not a party to the proceeding before the Forum and naturally, before us too. Said Corporation is a separate, distinct and independent juridic person as per provisions of Section-2(1)(m) of the Consumer Protection Act, 1986. Its employee holding a post of Zonal Manager is also a separate distinct and independent person within the meaning of above-referred provision. Said Zonal Manager, whose name is also not mentioned, being not a ‘service provider’, a consumer complaint could not lie against him and for this reason alone impugned order cannot be supported. ‘Service provider’ (if at all) is the Corporation and not its employee. [5] Assuming for the sake of argument that consumer complaint would lie against the Appellant/original Opponent, we find that present is not a ‘consumer dispute’ and the Forum misdirected itself to settle the same as per the impugned order. As earlier recounted, as per High Court order dated 9/12/2004, Respondent/ original Complainant could lay hands on the amount of the claim sanctioned in respect of above-referred insurance policies of Late Mr. Avinash Purshottam Naringrekar. Therefore, it will be an actionable debt only when the claim is sanctioned by LIC of India and then only the Complainant could lay hands on it. Right of LIC of India to process the insurance claim and its right of sanction or repudiation of the said claim left intact. Therefore, as far as the Complainant is concerned, the Complainant is certainly not a beneficial consumer and in his relation, LIC of India is not a service provider as far as sanction or repudiation of insurance claim is concerned. [6] Repudiation of the insurance claim is made, as earlier pointed out, on the ground of breach of utmost good faith. It is revealed, nay, established from the un-contradicted evidence of Dr. Lakdawala, who was treating Late Mr. Avinash Purshottam Naringrekar for several years for manic-depressive psychosis since from the time prior to taking of the above-referred insurance policies which were taken by the end of the year 1991 by Late Mr. Avinash Purshottam Naringrekar. Affidavit of Dr. Lakdawala gets corroboration from the prescriptions issued by him on 22/3/1991. Against this established fact when we look into proposal form filled by Late Mr. Avinash Purshottam Naringrekar which was also reproduced in the impugned order in its paragraph (12), it can be seen that while answering questions, particularly Question No.18(e), Late Mr. Avinash Naringrekar categorically declared that he did not suffer from or was suffering from any other disease of brain or nervous system, insanity, epilepsy, fits of any kind or nervous breakdown. He also categorically further confirmed in answer to Question No.20 in the proposal form that he did not consult a medical practitioner within the last five years for any ailment and requiring treatment for more than a week. Both these answers in the backdrop of his ailment treatment by Dr. Lakdawala shows that he has suppressed material fact about his health while taking the insurance policies and thus, repudiation of the insurance claim by the LIC of India cannot be faulted with and as such, there is no deficiency in service on the part of LIC of India. Besides that there is an independent enquiry/investigation conducted by LIC of India through its Development Officer, namely – Mr. Prayag R. Dhavalia. His report dated 16/8/1993 is also on record, which confirms suppression of material fact by the insured Late Mr. Avinash Naringrekar in respect of his previous illness. [7] Much emphasis is tried to be given to the order passed in a summary suit by the High Court whereby one of the grounds taken by the legal heirs of the defendant in Summary Suit No.4089 of 1993 about the non-maintainability of the suit due to insanity of Late Mr. Avinash Purshottam Naringrekar was over-ruled or negated. In fact, insanity of Late Mr. Avinash Naringrekar is not an issue in the consumer complaint before us. If Late Mr. Avinash Naringrekar was insane then, the contract of insurance itself would be rendered void since Late Mr. Avinash Naringrekar in those circumstances of insanity would not be a competent person to enter into a contract of insurance. LIC of India is not stating that contract of insurance is invalid or illegal. Therefore, while considering this aspect, the Forum erroneously misdirected itself and arrived at a wrong conclusion. [8] The consumer complaint is filed by Mr. Jagdeep Jagannath Talekar through his constituted attorney, namely – Mr. Deepak J. Talekar. When Late Mr. Avinash Naringrekar moved proposal to take above-referred insurance policies, a report of the agent (page 129 of the compilation of appeal) was called and on the basis of which policies were issued on 24/12/1991. Said report was issued by Mr. Deepak Talekar. Therefore, he is the one who is fully aware of the condition of Late Mr. Avinash Purshottam Naringrekar. For the reasons stated above, we find that impugned order cannot be supported in the eyes of law. We hold accordingly and pass the following order:- ORDER The appeal is allowed. Impugned order dated 26/02/2010 stands set aside and in the result, the consumer complaint No.158/2008 stands dismissed. The respondent to bear his own costs and pay `10,000/- as costs to the appellant. Pronounced on 27th September, 2011 |
