BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.115 OF 2013 AGAINST C.C.NO.114 OF 2012 DISTRICT FORUM SRIKAKULAM
Between:
- Branch Manager,
Birla Sun Life Insurance Co.Ltd.,
Upstairs of Syndicate Bank, Ramakrsihna Theatre Lane
Palakonda Road, Srikakulam Town and District
- Birla Sun Life Insurance Co.,Ltd.,
rep. by its Managing Director,
One India Bulls Centre, Tower-I
15th & 16th Floor, Jupiter Mill
Compound, 841, Senapati Bapat Marg
Elphinstone Road, Mumbai-013
Appellants/opposite parties
A N D
Mylapalli Rajeswari @ Rohini D/o Lokanadham
W/o Sambamurthy, Aged about 30 years, Adopted
daughter of Maddu Lokanadham, D.No.1-52, Gollagandi
Village, Sompeta Mandal, Srikakulam District
Counsel for the Appellants Sri A.Naveen Kumar
Counsel for the Respondent Sri A.Rama Rao
QUORUM: SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
WEDNESDAY THE TWENTY FIFTH DAY OF JUNE
TWO THOUSAND FOURTEEN
Oral Order (As per Thota Ashok kumar, Hon’ble Member)
***
1. The opposite parties are the appellants. For convenience sake the parties as arrayed in the complaint are referred to hereunder.
2. The brief facts of the complaint are that she is the adopted daughter of Maddu Lokanadham who during his life time obtained Life Insurance Policy bearing number 005061380 for sum assured of 4,00,000/- from the second opposite party-insurance company. The complainant’s father died on 17.02.2012 due to chest pain. Thereafter, the complainant lodged claim with the opposite party-insurance company. The opposite party repudiated the claim on the ground that the complainant’s father while submitting the proposal suppressed the material facts regarding his age. The complainant got issued registered notice on 9.1.2012 to the opposite parties and filed the complaint before the District Forum to direct the opposite parties to pay assured amount with interest etc.
3. The opposite party no.2 filed counter which was adopted by the opposite party no.1 and contended that the dispute raised by the complainant is not a consumer dispute as there is neither unfair trade practice nor deficiency of service and therefore the complaint is not maintainable. The claim was repudiated by the opposite parties on the ground that the policy holder suppressed the material facts in the proposal form with regard to his age. On 30.04.2012 the opposite parties received death claim intimation along with relevant documents made investigation and came to know that the deceased policy holder submitted tampered age proof document at the time of filling the proposal form and the said fact was also revealed by the household card wherein the age of deceased policy holder was calculated as 55 years against 45 years. By relying on the decisions of the Supreme Court, National Commission the opposite parties submitted that as the deceased policy holder suppressed the said fact that he was aged 62 years as on the date of the filling the proposal form it amounts to suppression of material facts and therefore rightly the insurance claim of the complainant was repudiated and thus prayed to dismiss the complaint.
4. Both parties filed their respective affidavits and the complainant filed documents Exs.A1 to A4. The opposite parties did not chose to file any documents before the District Forum. However, during pendency of the present appeal vide FAIA 425 of 2014 they filed certain documents as additional evidence and the same were marked as Exs.B1 to B4 by allowing the petition after hearing both sides.
5. Having heard both side and considering the material on record the District Forum vide impugned order allowed the complaint directing the opposite parties no.1 and 2 to pay policy assured sum of Rs.4 lakhs within three months and in default the said amount shall carry interest @ 9% per annum and costs of 1,000/-.
6. Aggrieved by the said order the opposite parties filed appeal contending that the District Forum without considering the various judgements filed by the opposite parties passed the judgement. The complainant did not produce any document to show any negligence or unfair trade practice or deficiency in service on the part of the opposite parties. The deceased policy holder tampered age proof document at the time of filling the application and the said fact was revealed by the house hold card wherein the age of the deceased policy holder was calculated as 55 years against 45 years. After investigation it was revealed that the deceased policy holder was 62 years as on 2005 and he was 68 years at the time of filing the proposal form. The deceased policy holder was beyond the insurable age for the said plan as the age allowed for the said plan was 65 years. The opposite parties while submitting various judgements of the Hon’ble Supreme Court and the Hon’ble National Commission contended that the deceased policy holder suppressed the fact that he was aged 62 years as on the date of the filling the application form and the same amounts to suppression of material facts, the insurance claim of the complainant was repudiated.
7. Heard the counsel for with reference to the grounds of appeal and the complainant 1st respondent supported the order of the District Forum.
8. Now the point for consideration is whether the order of the District Forum is vitiated by misappreciation of fact or law?
9. There is no dispute that Maddu Lokanadham, the father of the complainant during his life time obtained unit linked life insurance policy for an amount of Rs.4 lakhs and died on 17.02.2012 due to chest pain. After the death of the deceased policy holder the complainant submitted claim to the opposite parties which was repudiated by them on the ground of suppression of age at the time submitting the proposal form. On the other hand the opposite parties relied on the following judgments:
- LIC of India Vs B.Chandravathamm, reported in AIR 1971 AP 41
- United India Insurance Co. Ltd., vs MKJ Corporation (1996) 6 SCC 428
- Modern Insulators Ltd., Vs Oriental Insurance Co., Ltd., (2000) 2 SCC 734
- Satwant Kaur Sandhu Vs New India Assurance Co.Ltd., (2009) 8 SCC 316
- Oriental Insurance Co.Ltd., Vs Munimahesh Patel (2006) (IV) CPJ 1
- Srikrishan Dass Vs Dena Bank 2003(2) CPR 8
- Consumer Unity & Trust vs CMD 1991 (1) CPJ 1 SC
- LIC of India & Ors., Vs SK.Ali Hossain & Anr I(2009) CPJ 85
- N.Shivaji Rao vs M/s Daman Motor Company & Ors., I(1993) CPJ 88 (NC)
- Executive Director (Mktg), LIC of India Vs Yogendra Prasad
Singh, R.P.No.692 of 2006 decided on 14.05.2009 of the
National Commission. - United India Insurance Co., Ltd., Vs., MKJ Corporation (1996) 6 SCC 428
- Modern Insulators Ltd., Vs. Oriental Insurance Co.Ltd., (2000) 2 SCC 734
- P.C.Chacko and Anr., Vs Chairman, LIC and others (2008) 1 SCC 321
- United India Insurance Co.Ltd., Vs Harchand Rai Chandan Lal (2004) 8 SCC 644
10. By relying upon the judgements the opposite parties contended that a contract of insurance is one of utmost good faith on the part of the assured and that suppression of material fact is a valid ground to repudiate the claim. The opposite parties also contended that proceedings before the District Forum are essentially summary in nature and adjudication of disputed factual questions should not be adjudicated and also contended that in the light of the ratio laid in the aforementioned decisions and in view of the complexity of the facts the lis is beyond the ambit of adjudication by the Consumer Forum and as such the complaint is not maintainable before this Commission.
11. In “Synco Industries vs State Bank of Bikaner and Jaipur “reported in AIR 2002 SC. The Supreme Court was dealing with jurisdiction of consumer forum in relation to the complex issue involved in the subject matter. It was held;
“Given the nature of the claim in the complaint and the prayer for damages in the sum of Fifteen Crores and for an additional sum of Rs.15 lacs for covering the cost of travelling and other expenses incurred by the appellant, it is oblivious that very detailed evidence has to be led in, both to prove the claim and thereafter the damages and the expenses. It is therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The national commission was right in giving the appellant the liberty to move the civil court.”
12. “In Bhagwanji D.Patel and Another vs Indian Bank and Others” III (2011) CPJ 175, the subject matter of the complaint was that 5 cheques NRE/SB account signed by the power of attorney holder for different amounts were questioned and CBI investigated into allegations of fraud and forgery against 8 persons who included the Manager of the Bank and filed charge sheet. Hon’ble National Commission held that the complaint raises very complicated questions of facts and law which can be answered by civil court and not consumer forum.
13. The National Commission in ”Safe Home Developers and Contractors vs S.S.B. Ltd” IV (2012) CPJ 729 referred to the decisions of the Hon’ble Supreme Court in “Synco Industries vs State Bank of Bikaner & Jaipur and Others” I(2002)CPJ 16 and “Trai Foods Ltd vs National Insurance Company Ltd and others” (2004) 13 SCC 656 that where detailed evidence is required to be led by both parties to prove the claim and damages the complainant suffered , necessarily the parties have to be relegated to Civil Court.
14. In Trai Foods Ltd (supra) the Hon’ble Supreme Court considered the nature and scope of the dispute whether amenable to the jurisdiction of Consume Forum and Civil Court as under:
“The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the Civil Courts.
“Although the reasons given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct. There is no doubt having regard to the nature of the claim, the large amount of damage claimed, and the extensive inquiry inot the evidence which would be necessary in order to resolve the disputes between the parties that this is not matter to be decided summarily at all”
15. As seen from the record in this case deceased life assured Maddu Lokanadham had submitted the proposal form for issuance of subject policy insuring his life for 4 lakh on 22.08.2011 describing one B.Rajeswari as his nominee and her relationship with him is shown as daughter. There is no mention in the said proposal form that the B.Rajeswari is the adopted daughter of the deceased life assured. Whereas in the complaint the complainant described her as G.Rohini @ Rajeswari and her relationship with the life assured is shown as adopted daughter. No adoption deed or other convincing evidence has been produced by the complainant in this case in the said aspect. There is no dispute that the deceased died on 17.2.2012 and the subject policy came into force from 23.8.2011 and therefore considering that the claim putforth by the complainant is early one the opposite party got investigated into the case in connection with death claim under the subject policy and in the said process when the investigating officer went to the present complainant and enquired one G.Dandasi Ex-Sarpanch who said to have involved in the manner informed the investigating officer that the complainant namely, G.Rohini is also called G.Rajeswari probably taking advantage of the said prompting she informed the investigating officer that it is the mistake done by agent who filled proposal form and that she did not observe the same. The complainant did not examine the said agent in support of her contention. The surname of the deceased life assured is ‘Maddu’ whereas in the proposal form nominee is shown as B.Rajeswari and according to the complainant her name is Gandupalli Rohini @ Rajeswari. Possibility of the said G.Dandasi, Ex-Sarpanch supporting the complainant in the said context issuing a certificate to help her cannot be ruled out and therefore the certificate aforesaid is also not helpful for the complainant to decide the said aspect in her favour. The opposite party has also submitted Civil Supplies Card which is commonly known as Ration Card and as seen from the said certificate it was issued in favour of one Maddu Krsihna Rao. The said investigators report discloses that the said Maddu Krishna Rao is no other than the son of the deceased life assured. It is also mentioned in the said investigation report that since the said Maddu Krishna Rao mostly resides in Andaman his name was ignored to be mentioned in the proposal form. There is no dependable evidence from the side of the complainant that the said Maddu Krishna Rao resides mostly in Andaman. That apart the said ration card discloses that one Jeevithamma is the wife of the deceased life assured. Why she has been excluded to be mentioned as the nominee of the deceased has also not been explained by the complainant. She even did not whisper anywhere that wife of the deceased is alive. There is a reasonable doubt about the identity of the complainant and also whether she is the same nominee described in the proposal form. In such circumstances, the matter requires to be decided after conducting full-fledged trial which is only possible in a civil suit and not in Consumer Forum. The said ration card also discloses that the said Maddu Krishna Rao has a daughter namely Ishvarya aged four years. The date of alleged adoption of the complainant by the deceased life assured has not been mentioned. As per provisions of Hindu Adoption and Maintenance Act if son’s daughter is alive the adoptive father cannot adopt a daughter. The age difference between adopted daughter and the adoptive father must be 21 years and the said aspects have also to be gone into in detail. That apart according to the opposite party the deceased life assured did disclose his age correctly in the proposal form and that he declared his age as 45 years as against 55 years. The opposite parties also submitted voters list showing the age of deceased life assured as 62 years in the year 2005 and thus he was aged 68 years at the time of submission of proposal form and that the deceased life assured was beyond the insurable age for the relevant policy. Thus several complicated questions involved in this case with regard to identity of the nominee, adoption of the complainant, availability of other legal heirs of the deceased so also the age of the deceased which are not possible to be decided by the consumer Forum in summary proceedings. In such circumstances the decisions reported I(2010) CPJ 214 of the Harya State Commission between LIC of India and others Vs Krishna, II (2009) CPJ 428 of the State Commission, Chandigarh between LIC of India vs Shushil Kumar and I(2010) CPJ 535 of Delhi State Commission between LIC of India Vs Harbansh Singh with regard to the age of the insured are not helpful for the complainant in this case.
16. In view of the complex questions involved in the subject matter of the complaint we are of the opinion that the complainant has to be relegated to the civil court for redressal. .
17. In the result, the appeal is disposed of by setting aside the order of the District Forum. Consequently, the complaint is dismissed. The complainant is at liberty to approach to the Civil Court for redressal. In the event the complainant approaches the Civil Court, the period spent between the filing of the claim before the District Forum till the disposal of this appeal has to be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in (2004) 13 SCC 656”
Sd/-
MEMBER
Sd/-
MEMBER
Dt.25.06.2014
కె.ఎం.కె*
APPENDIX OF EVIDENCE
EXHIBITS MARKED
For the opposite parties
Ex.B1 Copy of Household Card
Ex.B2 Copy of Voters List
Ex.B3 Copy of Investigation Report
Ex.B4 Copy of affidavit
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MEMBER
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MEMBER
