Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This is an appeal filed by the original Opponent – The New India Assurance Co. Ltd., against the judgement and award passed by the District Consumer Disputes Redressal Forum, Kolhapur, in Consumer Complaint No.319/2011 decided on 05.10.2011. By allowing the complaint, the District Forum directed the Appellant Insurance Company to pay policy claim amount of `5,53,000/- to the Complainant with interest @9% per annum from 27.05.2011 till actual realization of the said amount and also directed Appellant Insurance Company to pay `1,000/- towards mental harassment and `1,000/- towards cost and as such by filing this appeal Insurance Company has taken strong exception to the award passed by the District Forum.
(2) Facts to the extent material may be stated as under:
Complainant is resident of Post Bidri, Taluka Kagal, District Kolhapur. Complainant’s husband Shri Vidhyadhar Dattatray Bille, had purchased Truck No.MH-09-0J-7521 from Tata Motors Ltd., Mumbai. Said truck was insured with the Appellant Insurance Company. The policy was taken for the period initially from 04.11.2006 to 03.11.2007. Thereafter, it was renewed from time to time and ultimately policy was renewed for the validity period 05.11.2009 to 03.11.2010. However, on 07.07.2009 Vidhyadhar Dattatray Bille expired. Since original insured had died and since he was having loan of Tata Motors Leasing Finance Co., Mumbai, the vehicle could not be transferred in the name of Sarita Vadhyadhar Bille, so while renewing the policy the name of Vidhyadhar Dattatray Bille was mentioned in the Policy. On 05.05.2010 during the currency of the policy the said truck was stationed in Bagal Chowk at night. On the following morning when son of the Complainant had gone to see the vehicle it was found missing. Hence, ultimately, for the theft of vehicle Complainant’s son lodged complaint with the Police. Police recorded F.I.R. Intimation of the theft was also given to the Insurance Company. Complainant lodged claim with the Insurance Company along with necessary documents, but on 27.05.2011 Insurance claim was repudiated by the Insurance Company by sending repudiation letter on the ground that there cannot be contract of insurance with the dead person and policy was taken for dead person and therefore, it was not payable. The Complainant, therefore, filed consumer complaint claiming amount of `5,53,000/- towards insurance claim along with interest, `50,000/- for mental harassment and `25,000/- for the cost of the litigation.
(3) Opponent/Appellant filed written version in the District Forum and contested the matter and according to Insurance Company when the policy was sought to be renewed original policy holder was not living. He was already dead on 07.07.2009 and policy was renewed on 04.11.2009. The Opponent was not knowing that original Policy holder was dead while issuing renewed policy in fvour of Vidhyadhar Dattatray Bille. The fact of death of Vidhyadhar Dattatray Bille was suppressed by the relatives of the deceased and fraudulently the policy was purchased by the Complainant by suppressing the death of Vidhyadhar Dattatray Bille and therefore, the Insurance Company pleaded that they had rightly repudiated the claim lodged by Smt.Sarita Vidhyadhar Bille by sending repudiation letter. They, therefore, pleaded that they were not guilty of deficiency in service and the complaint should be dismissed with cost.
(4) The District Forum, however, allowed the complaint and passed an award against the Insurance Company. Hence, this appeal is filed by the Opponent Insurance Company.
(5) We heard submissions of Advocate Mr.R.P. Bafna, for the Appellant and Mr.Ashutosh Marathe, Advocate for the Respondent.
(6) We are finding that there is merit in the appeal in as much as husband of the Complainant/Respondent had taken policy for the vehicle bearing Truck No.MH-09J-7521 and renewal of the said truck was for the period 04.11.2009 to 03.11.2010. Insured late Shri Vidhyadhar Dattatray Bille died on 07.07.2009 before the commencement of the current policy when Respondent purchased the renewed policy on 04.11.2009 and it was in force till 03.11.2010. The theft took place on 05.05.2010 and it came to light on the morning of 06.05.2010. After theft the Respondent lodged claim with the Insurance Company but claim was repudiated by the Insurance Company on the ground that at the time of taking renewal of the policy the insured was not alive. He was already dead on 07.07.2009. So, policy was renewed on 04.11.2009 by taking new policy by the widow of the insured suppressing the fact of death of her husband. Had the Respondent disclosed them about the death of Vidhyadhar Dattatray Bille on 07.07.2009, they would not have issued policy in the name of late Vidhyadhar Dattatray Bille on 04.11.2009. Mr.Bafna, Advocate for the Appellant therefore submitted that the Insurance policy was taken in the name of dead person and there cannot be contract of insurance between the dead person and the Insurance Company so the contract was void ab-initio. On this ground alone Advocate Mr.Bafna, submitted that the District Forum should have dismissed the complaint but erroneously it allowed the complaint. In view of this vital aspect of the matter contract with dead person is void ab-initio. This basic principle was ignored by the Ld.District Forum while allowing the complaint filed by the widow of the insured person. We are finding substance in the submissions made by Advocate Mr.Bafna in this behalf. In the instant case the policy got renewed in the name of dead person for the period 04.11.2009 to 03.11.2010. It was taken in the name of Vidhyadhar Dattatray Bille, but, he had already expired on 07.07.2009. So, renewal of policy in the name of dead person was per se illegal. The policy got renewed in the name of dead person by the legal heirs of the deceased Vidhyadhar Dattatray Bille, by suppressing material fact from the Insurance Company that Vidhyadhar Dattatray Bille had died on 07.07.2009. From all these facts, it is clear that the Insurance Policy was purchased on 04.11.2009 in the name of dead person and there cannot be a contract of insurance with the dead person. So, renewal of policy in the name of dead person is void ab-initio and under such policy no claim could be given in favour of the widow of the deceased insured. So, by allowing this appeal, said judgement and award will have to be quashed and set aside and as such we are inclined to pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned judgement and award passed by the District Forum in Consumer Complaint No.319/2011 is quashed and set aside. In the result, consumer complaint is dismissed.
(iii) Parties are left to bear their own costs.
(iv) Inform the parties accordingly.
Pronounced on 30th August, 2012.
