FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that deceased Prabhat Pal had died on 14^th of August, 2002 and the post mortem of his mortal remains took place on 15^th August, 2002 and the death certificate of the deceased claimant had also been issued by the Municipal Corporation of Greater Mumbai which would clarify the dates and identity of the deceased claimant and the demise of the actual recorded claimant, the bother of the claimant i.e. the complainant no. 1 has visited the head office of the respondent and have informed the matter after which the offices of the respondent sought for some time to update their formalities regarding settlement of the instant claim and having completed the necessary updation with regard to the issue at hand the respondent called the complainant no. 1 after  which he had visited their offices and upon paying a visit to the offices of the respondents they had asked for submission of some documents which are described in the complaint petition and the complainants after having receipt of the information with regard to the submission of the above documents, the complainants by investing his best efforts made an endeavor to collect the above documents and submit the same before the respondent authorities. The complainant no. 1 after having collated the above documents had submitted before the appropriate authorities after which those documents were duly received and acknowledged by the respondent authorities and upon receipt of the relevant documents, the respondent authorities issued receipts to that effect. Thereafter the complainant no. 1 has on multiple occasions approached the respondent authorities and have submitted the relevant policy documents for completing of the necessary formalities for reimbursing the sum assured of the deceased person. On 14^th day of December, 2018 and 23^rd day of September, 2019 the complainant no. 1 submitted the policy documents after which they agreed to disburse the sum assured but to the utter surprise they have kept on procrastinating the same time and again and since the present day the policy amount has not been reimbursed to the complainant.  

Complainant filed the complaint petition praying direction upon the opposite parties to process the policy amount and reimburse the same to the complainant and to pass an interim order for the updation of the above formalities, facilitating the claim as per policy documents and to pay a sum of Rs. 75,000/- in lieu of the policy documents and to pay a sum of Rs. 20,000/- as litigation cost and to pay a sum of Rs. 2,00,000/- for harassment, mental pain and agony and to pass such order/ orders as deem fit and proper.

Defense Case:-  The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that  there is no name is mentioned in the policy in dispute hence heir ship certificate is required for any claim.  But till date the complainant has not submitted the heir ship certificate though there is no registered nominee in the policy in dispute being no. 432031636 of Prabhat Pal since deceased.

The complainant as asked to submit beside the claim forms, letter explaining late submission of claim (date of death 14.08.2002 & claim submitted on 14.12.2018, after along gap of more than sixteen years).  He was also asked to submit succession certificate, but till date the complainant is not filed the same and the claimants has not submitted any reason for delay in claim though it is asked for from the complainant and the OPs are a famous insurance company and deals with public money and guided by IRDA rules and guidelines and to avoid any future dispute they are not able to pay the death benefit to any policy where there is no registered nominee unless the claimant produce any succession certificate from court of law. So, the complaint case is liable to be dismissed.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Polba, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant is the brother of deceased Prabhat Pal.
2. It is also admitted fact that said Prabhat Pal died on 14.8.2002 at Mumbai and post mortem of the body of Prabhat Pal was conducted on 15.8.2002.
3. There is no controversy over the issue that the death certificate of Prabhat Pal was issued by municipal corporation of Greater Mumbai.
4. There is no dispute over the issue that there was insurance policy of Prabhat Pal under op insurance company.
5. It is admitted fact that premium of the said insurance policy has been paid.
6. It is also admitted fact that till the death of Prabhat Pal on 14.8.2002 the said insurance policy of deceased Prabhat Pal was in existence.
7. There is no controversy over the issue that the complainants submitted claim before the op insurance company after the death of deceased Prabhat Pal.
8. There is no dispute over the issue that the said claim of the complainants on account of death of their elder brother Prabhat Pal has not yet been released by the op insurance company.
9. It is admitted fact that the op insurance company claimed some documents from the complainants and the complainants also have deposited those documents to the ops.
10. It is also admitted fact that the complainant no. 1 also has submitted policy documents to the ops.
11. There is no controversy over the issue that the complainants have come across with op nos. 1 and 2 authorities but the claim has not been disbursed.
12. There is no dispute over the issue that as the op insurance company has not disbursed the claim of the complainant, for which the complainants have filed this case as per prayer of the complaint petition.
13. It is admitted fact that the op insurance company claimed heirship certificate from the complainants.
14. It is also admitted fact that there was no registered nominee in respect of the policy  dispute being no. . 432031636.   
15. There is no dispute over the issue that the claim of the complainants has not yet been repudiated by the op insurance company.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainants are claiming that the claim amount which has been described in the complaint petition has not been disbursed by the ops inspite of filing documents which indicates that there was negligence and deficiency of service on the part of the ops but on the other hand the ops are adopting the defene alibi that this complaint case is not maintainable as it has been filed after long delay of 16 years and the complainants have not filed vital documents in this case for which the claim of the complainant has not yet been disbursed and so there was no negligence or deficiency of service on the part of the ops.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the ops claimed the heirship certificate from the complainants in the matter of disbursing the claim amount of the complainants but the complainants have not filed any such heirship certificate to the op insurance company. It is the duty of complainants to prove that they are the legal heirs of deceased Prabhat Pal. But it has not been done by the complainants. This matter is clearly depicting that the claim of the complainants is bereft of vital documents. Moreover there is no nominee in respect of the insurance policy or deceased Prabhat Pal and for that reason the production of heirship certificate before the op insurance company to justify the claim of the complainants was very crucial but it has not been done by the complainants. It is also important to note that the complainants have filed this case after long 16 years and there is no cogent explanation or cogent documents in the matter of justifying the delay of filing such complaint case after 16 years. Moreso, the op insurance company have not yet repudiated the claim of the complainants which indicates that the complaint case of the complainants is prematured. Recapitulating the above noted discussion and after making scrutiny of the materials of this case record it is crystal clear that although this complaint case is found maintainable and this District Commission has jurisdiction to try this case but the complainants have failed to establish their claim by producing cogent documents such as heirship certificate, succession certificate etc.

So, the points of consideration nos. 4 and 5 which have been adopted in this case are decided against the complainants.

In the result it is accordingly

ordered

that the complaint case being no. 36 of 2021 be and the same is dismissed on contest.

N order is passed as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.