DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.175/23.10.2008 Decided on : 18.03.2009 Smt. Jasmail Kaur Wd/o Sh. Prem Ram, resident of village Saddewala, Tehsil Budhlada, District Mansa. ..... Complainant. VERSUS 1.SBI Life Insurance Company Ltd., SCO No.105, 1st Floor, Zonal Office Punjab, Sector 17-B, Chandigarh. 2. SBI Life Insurance Company Ltd., SCO No. 109-110, 1st Floor, Sector 17-B, Chandigarh. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.N.K.Sharma, Advocate, counsel for the complainant. Sh.P.K.Arora, Advocate, counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. Smt. Jasmail Kaur widow of Sh. Prem Ram, a resident of village Saddewala, has filed the instant complaint, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), against SBI Life Insurance Company Ltd., Chandigarh for giving direction to make payment of claim under the insurance policy and compensation in the sum of Rs.50,000/-, and costs incurred by him for filing the instant complaint. As per the averments, made in the complaint, the case of the Contd........2 : 2 : complainant may briefly be summarised as under :- 2. That husband of the complainant Sh.Prem Ram, has purchased insurance policy 'Horizon' No.181186128 on 27.3.2006 from the opposite parties, through their authorized agent bearing code No.50043, carrying out his business at Mansa. The husband of the complainant, had paid a sum of Rs.12,000/- vide bank draft No.152559 dated 20.2.2006 issued by State Bank of Patiala, Boha branch under proposal No.181186128. The husband of the complainant, had died on 16.5.2006, due to cardiac arrest after he suffered stroke of septicemia on 15.5.2006. He was admitted in the nursing home of Dr.Janak Raj on even date, but was shifted to Delhi Heart Institute & Research Center, Bathinda, where he breathed his last, About 5/6 months after the death of her husband, an agent of the opposite parties approached her and secured requisite documents alongwith insurance policy. The complainant is a woman living in remote village, as such, she was not aware of the method of approaching the opposite parties, who have failed to disclose the fate of her claim till date,. As such, there is deficiency in service on their part and complainant, has been subjected to physical and mental harassment for the said reason and has incurred unavoidable expenses for filing the complaint. Hence the complaint. 3. On being put to notice, opposite parties filed written version, submitting that no insurance policy, has been issued in the name of the complainant, because there is no concluded contract between him and the opposite parties, as such, question of entertaining the claim of the complainant never arose. She has filed a false and frivolous complaint with malafide intention, which deserves to be dismissed. No intimation has been conveyed about the factum of death of her husband by the complainant. She has filed the complaint without affording any chance to the answering opposite parties, to consider her claim, as such, no cause of action, has accrued to her, to file the instant complaint, which is pre-mature and is not covered under the insurance policy. However, it is Contd........3 : 3 : admitted that husband of the complainant had applied for issuance of 'Horizon' insurance policy vide proposal No. No.181186128 and had deposited a sum of Rs.12,000/- on 27.3.2006, but he failed to submit his consent before 25.4.2006, sought by the opposite parties vide their letter dated 4.4.2006, for extra premium, as such, the amount paid by him in the sum of Rs.12,000/-, has been refunded vide cheque No.193663 dated 26.8.2006, and complainant is not entitled to any benefit under the policy, alleged to have been secured by her husband, and for payment of any amount on account of deficiency in service. Rest of the averments made in complaint have been denied and a prayer has been made for dismissal of the same with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainant tendered her affidavit, Exhibit C-1, and copies of documents Exhibit C-2 to C-10 before he closed her evidence. On the other hand the counsel for the opposite parties tendered in evidence affidavit of Sh.V.Srinivas Ext.OP-1 and copies of documents Ext.OP-2 to OP-4 before he closed his evidence. 5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. Learned counsel for the complainant Sh.N.K.Sharma, Advocate has submitted that the opposite parties have accepted the initial /first installment of premium from the deceased husband of the complainant and have retained the amount for considerable time, as such, there is concluded contract between the parties and the opposite parties had issued the policy to one Bhura Singh, a colleague of deceased husband of the complainant on 31.3.2006 in the similar situation, as such, repudiation of claim lodged by the complainant is arbitrary and is not sustainable. Learned counsel further submitted, that documents regarding refund of amount of Rs.12,000/-, by the opposite parties, to the husband of the Contd........4 : 4 : complainant, is not corroborated by any documentary evidence, as such, they cannot escape the liability, under the policy, on any technical ground, after his death. Learned counsel, has urged that complainant, being nominee and legal heir of her deceased husband, is entitled to seek the amount of insurance policy, issued in the name of her husband and to claim amount from them, on account of physical and mental harassment and costs incurred by her, for filing of the complaint. In support of his contentions, learned counsel, has placed reliance upon 1997(1) CPC NC 100 Life Insurance Corporation of India versus Mrs.V.Jeeva, wherein insurance policy was not issued till the date of death of the insured, though proposal with premium was submitted by him much earlier. It was held by the Hon'ble National Commission that plea of the concluded contract cannot be accepted as issuance of policy was delayed due to mistake of the Insurance Corporation and order passed by the Hon'ble State Commission awarding the claim under the policy was upheld. Learned counsel has also relied upon 2001(1) CPC 37 Life Insurance Corporation of India versus Parmod Chander, wherein it has been held that insurer is expected to explain the terms of policy in the language of the insured before he affixed his signatures on the contract, but in the said case it was established that proposal form was filled in by the agent of the insurer in English which was not explained to the insured and it was established that contents of the contract were not explained as he was ignorant of English language in which the said document was arrived. It was held by our own Hon'ble State Commission that repudiation of claim by the OP was wrong and it was set aside in view of the judgment delivered in 1996(2) CPJ 249 Divisional Manager LIC versus Kuntla Devi Naik's case. Learned counsel has also placed reliance upon 1996(2) CPC 304 M/s Fair Air Engineers Pvt.Ltd.& Anr. versus N.K.Modi wherein Apex Cort has held that importance of the Act is to promote the welfare of the society by enabling the consumer to participate directly in the market economy and it attempts Contd........5 : 5 : to remove the helplessness which he faces against powerful business described as a network of rackets. It was held that Act intends to secure inexpensive and expeditious common service. 7. On the other hand, learned counsel for the opposite parties Sh. P.K.Arora, Advocate, has drawn our attention, to various documents placed on record and, has submitted that insured that failed to give his consent inspite of notices served upon him, for payment of extra premium, within the date stipulated therein, as such, proposal submitted by her, has not ripened into concluded contract, which may be enforced against the opposite parties . Learned counsel, has further argued that the complainant has failed to produce, on record any document and disclose the name of the agent of the opposite parties, with whom he lodged the claim, as such, there is no deficiency in service, for which she may be awarded compensation and costs, especially when, as per the documentary evidence placed on record by the opposite parties, the amount paid by the complainant in the sum of Rs.12,000/-, stands refunded. In support of his contentions, learned counsel has placed reliance upon 1984 AIR Supreme Court 1014 Life Insurance Corporation of India versus Raja Vasireddy Komalavalli Kamba and othrs, wherein it has been held by the Hon'ble Apex Court as under: 8. A contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance . Mere delay in giving an answer cannot be construed as an acceptance, as prima facie, acceptance must be communicated to the offeror. Similarly the mere receipt and retention of premium until after the death of the applicant or the mere Contd........6 : 6 : preparation of the policy document is not acceptance. 9. Learned counsel has further relied upon 1993(II) CPJ (NC) 146 LIC of India versus Mrs.Bimala Routray wherein insured made proposal to Insurance Corporation on 22.2.1987 and paid premium on 11.3.1987, but proposal form was submitted on 14.3.1987, which was accepted by the insurer on 19.3.1987. The policy was issued by the Insurance Company covering his risk from 27.3.1987, but he died on 15.3.1987 because of which claim lodged by his widow was repudiated. It was held in appeal that there was no concluded contract between the insurer and the insured till the date of his death. 10. As per facts borne on record, deceased husband of the complainant, namely, Sh.Prem Ram furnished proposal Form No. 181186128, for securing insurance policy, to the OP No.1, on 27.3.2006 and deposited the amount of initial/first installment of premium, in the sum of Rs.12,000/- vide bank draft No.152559 dated 20.2.2006, issued by the State Bank of Patiala, Branch Boha. The factum of death of the husband of the complainant on 16.5.2006, is proved by the copy of the death certificate Ext.C-6, produced on record by the complainant issued by the Registrar, Birth and Death, Bathinda. These facts are not disputed by the opposite parties, who have placed on record copy of notice dated 4.4.2006 Ext.OP-3 addressed to the insured asking him to give his consent towards regular addition of premium payable on account of extra premium by 25.4.2006. They have further produced on record the copy of another notice served upon the deceased husband of the complainant dated 29.8.2006 Ext.OP-4 informing the insured that his proposal cannot be processed further, because of his failure, to furnish the requisite information, within the stipulated period. The opposite parties, have not produced any proof of dispatch of these letters to the insured or receipt thereof by him. However, perusal of proposal form Ext.C-2, reveals that insured had given in writing about his signatures in the presence of one Raj Kumar, when he understood Contd........7 : 7 : the contents of the contract governed by the provisions of the Indian Insurance Act and prevailing laws in India and the same will not commence until a written acceptance of his proposal is issued by the Company on the normal terms and conditions contained in the contract of insurance. The matter does not rest here, because in proposal deposit receipt Ext.C-7 issued by the opposite parties, it has been specifically provided that insurance cover would commence only on commencement on acceptance of the same by them and issue of the policy contract on the date indicated above. The head note of this document printed in bold letters also demonstrates that Proposal Deposit Receipt by the opposite parties, is subject to acceptance. The above said recital contained in the documents relied upon by the complainant herself leads us to accept the plea of the opposite parties that there was no concluded contract between them and deceased husband of the complainant. 11. The complainant has not even produced on record the policy issued by the opposite parties. She has not even disclosed the name of the agent to whom she delivered the insurance policy alongwith requisite documents and date of delivery . No witness has been examined by her in whose presence she has done the above said acts. 12. The complainant has no right to claim any comparison with any other insured in whose favour insurance policy has been issued, especially when there is no material on record to show that he too did not furnish the consent sought by the opposite parties or there was any other omission on his part.. 13. We have carefully gone through the authorities relied upon by the learned counsel for the complainant, but have come to the conclusion that their facts and circumstances are quite distinguishable from those of the instant case. In 1997(1) CPC NC 100 (Supra), insurance policy was issued due to ,mistake on the part of the opposite party, whereas in 2001(1) CPC 37 (Supra), plea of the opposite party of concealment of ailment Contd........8 : 8 : of the insured was not proved and it was established that insured had signed on the dotted line on the asking of the agent of the insurance company. The complainant may be a rural rustic woman, but her husband was employed and in the absence of any evidence, it cannot be held that her husband was conversant with English and he affixed his signatures on the proposal form without understanding the contents thereof. There is no dispute about the principle of law settled in 2001(1) CPC 37 Supra, but in the said case doctor appointed by the insurer, for medical check-up of the insured, did not mention about the Parkinsonian disease suffered by him. As such, ratio of judgment, delivered in these authorities does not help the case of the complainant. 14. However, the opposite parties have admitted the receipt of amount of Rs.12,000/- from the husband of the complainant, but they have not produced any documentary evidence to prove that her husband had received the bank draft or got the same encashed from the bank which issued the same. Moreover, the letter Ext.OP-4, enclosing the demand draft, has been written to the deceased husband of the complainant on 29.8.2006, but as per copy of death certificate Ext.C-6 produced on record by the complainant, her husband had expired on 16.5.2006. As such, factum of refund of Rs.12,000/- cannot be assumed by us on the basis of the said document placed on record by the opposite parties when it is not their case that payment on behalf of her deceased husband has been received by the complainant after his demise. Therefore, the opposite parties are deficient, so far as, refund of the said amount to the husband of the complainant, is concerned. 15. At this stage, learned counsel for the opposite parties, has submitted, that death of husband of the complainant, has taken place on 16.5.2006, but instant complaint, has been filed on 23.10.2008, as such, it is barred by limitation, in terms of provisions of Section 24A of the Act and deserves to be dismissed. Contd........9 : 9 : 16. On the other hand, learned counsel for the complainant, has submitted, that opposite parties have failed to disburse the amount of claim to the complainant, as such, it is a recurring cause of action and complaint cannot be said to be barred by limitation. 17. As per the admitted facts, husband of the complainant has died on 16.5.2006, but the opposite parties, have failed to prove the factum of payment of Rs.12,000/-, as mentioned in their letter dated 29.8.2006. There is nothing on record suggesting that complainant had been intimated regarding refund of amount to her by the opposite parties. In the given circumstances, we are of the view that complaint filed from the date of knowledge, is within limitation. Moreover, there exists sufficient cause for condonation of delay, as permissible under Sub Section 2 of 24A, introduced by the legislature, by Amendment Act w.e.f. 1983. 18. In the light of our above discussion, we have come to the conclusion that the opposite parties cannot escape liability to refund the amount of Rs.12,000/- along with interest at the rate of 9 percent per annum from the date of filing of the complaint i.e. On 23.10.2008. But as the controversy needs adjudication, we are not inclined to award any amount on account of compensation and costs incurred by her. 19. Resultantly, we partly accept the complaint and direct the opposite parties to refund an amount of Rs.12,000/- to the complainant along with interest at the rate of 9 percent per annum, from the date of filing of the complaint i.e. 23.10.2008 till the date of actual payment. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order. In view of the peculiar facts and circumstances of the case, parties are left to bear their costs. Contd......10 : 10 : 20. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. The file be indexed and consigned to record. Pronounced: 18.03.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
