Tripura

StateCommission

A/12/2017

Tata AIA Life INsurance Co. Ltd. - Complainant(s)

Versus

Smt. Mampi Dhar (Ghosh). - Opp.Party(s)

Mr. Sampad Choudhury, Mr. Abhijeet Kakoti.

09 Nov 2017

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.12.2017

 

 

1. Tata AIA Life Insurance Company Ltd.,
   14^th Floor, Tower A, Peninsula Business Park,

Senapati Bapat Marg, Lower Parel,

Mumbai-400013.

… … … … … Appellant/Opposite Party No.1.

 

Vs

 

1. Smt. Mampi Dhar (Ghosh),
   W/o  Late Bipul Kanti Ghosh,
   Ramkrishna Ashram, Gangail Road,

P.S. West Agartala, District: West Tripura.

… … … … … Respondent/Complainant.

2. Smt. Anjali Ghosh,

W/o Late Bhajan Chandra Ghosh,

R/O: Jangaliya, P.S. Bisalgarh,
District: Sepahijala. 

… … … … Respondent No.2/Opposite Party No.2.

 

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

 

 

 

 

 

 

For the Appellant:                                          Mr. Sampad Choudhury, Adv.

For the Respondent/Complainant:               Mr. Subrata Roy, Adv.

For the Respondent No.2:                              Absent.                

Date of Hearing & Delivery of Judgment:     09.11.2017.

 

 

J U D G M E N T [O R A L]

 

 

U.B. Saha, J,

This appeal is filed under section 15 of the Consumer Protection Act, 1986 by the appellant, TATA AIA Life Insurance Company Ltd. (hereinafter referred to as Insurance Company/opposite party no.1) against the judgment dated 19.01.2017 passed by the learned District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.C.C. 66 of 2016 along with an application for condonation of delay. Notice was issued by this Commission to the respondents and in consequence thereto the respondents appeared. The condonation application was taken up for hearing and after hearing the parties, the delay was condoned and the appeal was admitted for hearing.

2. Today is fixed for hearing of the appeal.
3. Heard Mr. Sampad Choudhury, Ld. Counsel appearing for the opposite party no.1-Insurance Company as well as Mr. Subrata Roy, Ld. Counsel appearing on behalf of the respondent no.1 (hereinafter referred to as petitioner/complainant). None appears on behalf of the respondent no.2 (hereinafter referred to as opposite party no.2). Though on earlier occasion, Ld. Counsel for the opposite party no.2, Mr. Alik Das submitted that the learned District Forum did not commit any wrong while passing the impugned judgment and she, the opposite party no.2 is ready to pay 1/3^rd amount of the policy to the petitioner-complainant and 1/3^rd to her grandson Bipradip Ghosh or to his natural guardian in proof of minority.  
4. Facts of the case in short are that, the respondent no.1-petitioner filed an application before the learned District Forum, West Tripura, Agartala under Section 12 of the Consumer Protection Act, 1986 stating, inter alia, that her husband, Bipul Kanti Ghosh purchased a life insurance policy (TATA AIG Life Invest Assure Flexi Supreme) being Policy No.U201069468 on 17.02.2011 before marriage with her from the TATA AIG Life Insurance Company Ltd., the opposite party no.1. The term of the policy was for 20 years and the value of the policy was Rs.3,50,000/- and her husband, the policyholder, died on 29.12.2011 within the validity of Insurance Policy, but the opposite party-Insurance Company did not take any step for releasing the policy amount either in her favour or in favour of the nominee, i.e. her mother-in-law, the opposite party no.2. Her further case is that when she was in advance stage of pregnancy, her husband, i.e. the insured died and after the death of her husband and before the birth of her child she was dragged out from her in-laws house and even she did not know what were the properties left by her deceased husband during his life time in his name. She had only some Xerox copies of insurance policy with her. After the death of her husband in the year 2011, she approached the opposite party-Insurance Company vide her letter dated 10.05.2012 for releasing the insured amount in her favour, but the Insurance Company did not release the same, rather she was asked to produce the succession certificate as the nominee was her mother-in-law, the opposite party no.2. Accordingly, she filed a case in the year 2012 for getting the succession certificate before the Ld. Civil Judge, Senior Division, Court No.1, Agartala, West Tripura being Succession Case No.Misc (Succession) 21/2012 against her mother-in-law, the opposite party no.2 Smt. Anjali Ghosh and the opposite party no.1-Insurance Company. In that succession certificate case, the opposite party no.2 admitted that the deceased assured Bipul Kanti Ghosh during his life time purchased two insurance policies from the TATA AIG Life Insurance Company Ltd. and the Insurance Company is to pay Rs.2,67,710/- for one policy and Rs.2,68,704/- for another policy and they will take step after getting the succession certificate. After hearing all the parties including the Insurance Company, the opposite party no.1, the Court issued the succession certificate in the year 2016. The succession certificate was received by the petitioner on 25.07.2016. So on the strength of that certificate, the petitioner placed the claim before the TATA AIG Life Insurance Company Ltd., the opposite party no.1, but in spite of the succession certificate, the policy amount was not given and her claim was not considered. There are three legal heirs of her deceased husband Bipul Kanti Ghosh and all are entitled to get 1/3^rd of the insured amount. Among three successors, one is proforma respondent, the opposite party no.2 who is her mother-in-law and another is her minor son. The plea of the Insurance Company is that she was not the nominee, so she was not entitled to get the insured amount.
5. The Insurance Company, the opposite party no.1 appeared before the learned District Forum after receipt of the notice and filed their written objection/written statement by way of an affidavit sworn by one Anupam Halder, authorized representative of opposite party no.1 challenging the maintainability of the complaint petition filed by the petitioner. In the said written objection/written statement the opposite party no.1 admitted that the deceased assured Bipul Kanti Ghosh had opted for a “TATA AIA Flexi Supreme” Plan bearing Policy No.U201069468 for an annual premium of Rs. 35,000/- for a period of 20 years with risk commencing from 17.02.2011. The nominee of the aforesaid policy is the mother of the deceased assured namely, Smt. Anjali Ghosh, the opposite party no.2. The opposite party no.1 in their written objection/written statement also stated that the complaint petition filed by the petitioner is not maintainable since the complainant is not a consumer as per the realm and definition of consumer as defined under the Consumer Protection Act being the petitioner is neither the nominee nor the beneficiary under the policy in question. The opposite party no.1 in their written objection/written statement also admitted that the petitioner filed a case for getting succession certificate after the death of her husband and claimed the benefits accrued under the aforesaid policy and other policies of other companies. The succession certificate granted by the Court of Civil Judge (Senior Division), Agartala, West Tripura specifically gave her exclusive rights to collect the debts only mentioned in the schedule of debts and admittedly the policy in question was not mentioned in the succession certificate.  
6. Opposite party no.2, the proforma respondent i.e. the mother-in-law of the petitioner also appeared before the learned District Forum and filed written statement stating, inter alia, that the complaint petition of the petitioner may be allowed and the TATA AIG Life Insurance Company Ltd. may be directed to deposit the insured amount and she only claimed 1/3^rd amount of the share as per law.
7. On the basis of the contention raised by the parties before the learned District Forum, the learned District Forum framed the following points for deciding the complaint case.

1. Whether the petition is maintainable?
2. Whether there was deficiency of service by the O.P. Insurance Company and whether the petitioner is entitled to get compensation?

8. Petitioner in support of her case filed her examination-in-chief by way of filing affidavit wherein she stated her case in details and she was cross-examined by the Insurance Company, the opposite party no.1. In her cross-examination she specifically denied that her husband used to take alcohol, but she admitted that she did not mention anything about the policy in question in the succession certificate. It is also stated that in the succession certificate, policy number is wrongly given.
9. The opposite party no.2, the proforma respondent herein, Smt. Anjali Ghosh also submitted her examination-in-chief by way of filing affidavit before the learned District Forum as O.P.W.1 and in her examination-in-chief she stated that in all the policies purchased by her deceased son either from LICI or from TATA AIG she was the nominee. As all the policies were purchased before his marriage, her name was mentioned in place of nominee. She also stated that after the demise of her deceased son, she made representation to the TATA AIG Life Insurance Company Ltd. for payment of the insured amount, but in reply to the said representation, the TATA AIG Life Insurance Company Ltd. stated that after due investigation it was revealed that the deceased Bipul Kanti Ghosh was addicted to drugs, poly substance use and alcohol prior to the application for insurance which is totally false and fabricated. She further stated that the Insurance Company paid only Rs.31,259.82 against the policy in question. Finally, she stated that the prayer of the petitioner might be allowed and the Insurance Company might be directed to deposit the insured amount in which she is also entitled to get 1/3^rd share as per law, but she was not cross-examined by the Insurance Company.
10. The Insurance Company neither filed their examination-in-chief nor adduced any evidence though from the order of the learned District Forum it appears that on 14.09.2016 the case was fixed on 23.09.2016 for written statement. On 23.09.2016, the O.P. Insurance Company appeared and prayed for time to file written statement. Time was allowed and the case was fixed on 04.10.2016 for step by the O.Ps. On 04.10.2016, O.P. Insurance Company again prayed for time to file written statement which was also allowed and the case was fixed on 19.10.2016 for written statement. On 19.10.2016, O.P. once again prayed for time to file written statement. The same was also allowed and the case was fixed on 04.11.2016 for written statement. On 04.11.2016, the O.P. Insurance Company filed an application questioning the maintainability of the complaint case. The case was fixed on 16.11.2016 for evidence by both sides. On 16.11.2016, the complainant-petitioner filed her examination-in-chief by way of affidavit. No step was taken by the TATA AIG Life Insurance Company Ltd. The case was again fixed on 24.11.2016 for cross-examination of the complainant and the evidence by the O.P. On 16.12.2016, the petitioner was cross-examined by the O.P. Insurance Company and admittedly they did not make any prayer for filing written statement. On the same day, the proforma respondent, the opposite party no.2 was examined by the learned District Forum as O.P.W.1 and she was not cross-examined by the Insurance Company. The learned District Forum considered the written objection of the Insurance Company as written statement and they were also allowed to adduce their evidence, but admittedly they did not file any written statement and adduce any evidence.
11. Learned District Forum after considering all the evidence on record decided the complaint case and in the impugned judgment stated “It is admitted fact that the petitioner Mampi Dhar is the wife of the deceased and successor of the deceased Bipul Kanti Ghosh. In the policy certificate it is found that she is not the nominee. Her mother in law was the nominee. But being the successor she is entitled to get 1/3rd of the sum assured Rs.3,50,000/-. Policy premium was paid. It is up to date. The claim of the petitioner was repudiated as she is not the nominee. Nominee of this policy is Anjali Ghosh who appeared in this case and stated that she has no objection if the policy amount is released and 1/3rd is given to her. According to her statement she applied before the Insurance company. But for the want of succession certificate her claim was not entertained. Tata AIG produced no evidence to prove that Bipul Kanti Ghosh made any false declaration while opening the policy. She stated that Insurance company only paid Rs.31,259/-. Payment of unit value at the time of intimation was given to her. In case it is paid then Tata AIG should not pay this amount again.”
12. The learned District Forum ultimately allowed the petition of the petitioner holding that “But when the succession certificate was produced Tata AIG should have released the amount and paid it to the nominee. This is deficiency of service. For this deficiency of service petitioner is entitled to get Rs.5,000/- only. We direct the opposite party Tata AIG to pay the insured amount of Rs.3,50,000/- to the nominee, Anjali Ghosh after deducting the of (sic) Rs.31,259/- that was paid earlier. The deceased paid annual premium Rs.35,000/- as stated & admitted and during the life time of the policy he died. So, his legal heirs are entitled to get Rs.3,50,000/-. Amount should be released in favour of nominee   Anjali Ghosh. O.P. is directed to pay 1/3rd to Mampi (Dhar) Ghosh and 1/3rd to her grandson, Bripradip Ghosh or to his natural guardian in proof of minority. With this direction the case is disposed. Tata AIG is directed to pay the amount within 2 months, if fails it will carry interest @ 9% P.A.”
13. Being aggrieved by the decision of the learned District Forum, the opposite party no.1 Insurance Company, the appellant herein preferred the instant appeal along with an application for condonation of delay as stated (supra).
14. Mr. Choudhury, Ld. Counsel while urging for setting aside the impugned judgment and remanding the case before the learned District Forum to allow the Insurance Company for filing its written statement would contend that complainant is not the consumer or any beneficiary of the policy in question as she was not the nominee. He has also submitted that the assured deceased Bipul Kanti Ghosh while submitted his application form for the policy in question suppressed the facts that he was an alcoholic, particularly in Para-5 of the Application Form, wherein the question was “Do you consume alcohol? If yes, please specify type (Beer/Wine/Hard Liquor) and Quantity per day consumed” and the answer was ‘No’. He has further submitted that Insurance Company was not allowed by the learned District Forum to file any written statement and also adduce their evidence. In support of his contention he relied upon certain documents Annexure-R1 of the written objection submitted by the Insurance Company. He also relied upon the bed-head-ticket of the assured obtained from Tripura Medical College and Dr. B.R. Ambedkar Memorial Teaching Hospital to show that the assured was in the habit of polysubstance use which is filed along with the appeal. He has finally contended that the complaint petition is time barred.   
15. Per contra, Mr. Roy, Ld. Counsel appearing for the petitioner, the respondent no.1 herein while supporting the judgment of the learned District Forum submits that the learned District Forum after hearing all the parties rightly held that the complaint petition is maintainable as just immediate to the receipt of the succession certificate, the petitioner filed the complaint case. He also submits that in Para-8 of the impugned judgment the learned District Forum specifically stated “In connection with the succession case No-21/2012 the certificate issued against 3 policies for total sum assured Rs.6,80,370/-. But those polices do not relate to this policy no- U201069468 for this succession certificate claim was not entertained. Succession certificate was issued in the year 2016. So, petitioner claim the amount as a successor. It is true that nominee will get the amount but it should be distributed among successors. Being successor petitioner is the beneficiary of the policy. So, she is definitely the claimant to get 1/3rd of the benefit of the insured amount. Her prayer to get the benefit was not considered. So, cause of action arose in the year 2016. As a consumer she filed this case when she was deprived from proper service of Tata AIG. We therefore decided that the case is maintainable in its present form.” He further submits that admittedly, all the insurance policy of her deceased husband were purchased before their marriage and rightly the assured mentioned his mother’s name as nominee, but the fact remains that the assured died after his marriage and his wife, the present petitioner being the legal heirs and one of the successor is entitled to get the benefit of the policy and thus she is a consumer. He finally submits that even if for the argument sake it is admitted that the petitioner was not the nominee and her mother-in-law is the nominee of the policy, then also, the Insurance Company failed to discharge the liability by not providing the benefit of the Insurance Policy to the nominee.
16. We have considered the submission of the Ld. Counsel appearing for the parties and also gone through the impugned judgment. Admittedly, the opposite party-Insurance Company was allowed to file its written statement and also adduce their evidence, they did not file the written statement, but filed written objection questioning the maintainability of the complaint case. It is also admitted position that they have cross-examined the petitioner and they suggested that the assured was alcoholic in his life time, but the said question was answered negative by the petitioner and in support of their contention, the Insurance Company did not produce any documents before the learned District Forum, only in the appeal, they have annexed bed-head-ticket of the assured to show that he was alcoholic. Even if we consider for the argument sake that the assured was alcoholic to some extent, then also, there is nothing before the learned District Forum as well as to us that the death of the deceased was connected with consumption of alcohol. As such, it cannot be considered to be material so far as death of the deceased is concerned. Consequently, it cannot be said that there was suppression of material facts and therefore, no liability of the Insurance Company arose under the policy. Whether a fact is material or not has to be decided in the light of or in the context of the cause of death. If the fact has bearing on the cause of death it would become material; otherwise, it cannot be said to be material. Mere incorrect or wrong answer to questions which ultimately do not have any bearing or connection with the death of the insured would not absolve the Insurance Company from its liability under the policy. Therefore, even if the deceased for the argument sake, consumed alcohol as alleged by the Insurance Company, judging it from the point of view of the cause of his death, it was not material and the Insurance Company cannot escape its liability on the ground of suppression of material fact. Admittedly when the Insurance Company did not challenge the contention of the petitioner-complainant either by way of filing written statement or by way of adducing evidence, the learned District Forum did not commit any wrong accepting the contention of the petitioner-complainant. In Life Insurance Corporation of India Vs. Smt. Paramjit Kaur Gill 1999 (1) CCC 30 (SS), the Life Insurance Corporation raised a question that the insured made deliberate mis-statements and withheld the material information regarding his health at the time of effecting insurance and hence in terms of the policy contract and the declaration contained in the Proposal Form of the insured, the appellant – Insurance Corporation bonafide repudiated the claim and was justified saying that they are not liable for any payment under the life policy, but the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh considered the Clause No.11 of the Proposal Form i.e. Personal History of the assured in that case which are almost similar to Clause No.5 and 9 of the Application Form in the instant case, and ultimately dismissed the appeal of the Life Insurance Corporation of India upholding the judgment of the District Forum therein. In the instant case, the Insurance Company admittedly did not challenge the contention of the petitioner before the learned District Forum except challenging the maintainability and also did not cross-examine the nominee, the proforma respondent i.e. O.P.W.1 herein when she specifically stated that she has no objection so far the prayer of the petitioner is concerned. Admittedly, there is no prayer before this Commission for adducing any additional evidence, therefore, this Commission is not in a position to consider some documents which were not placed before the learned District Forum as Mr. Roy, Ld. Counsel objected. Obviously the policy being a part of contract, the Insurance Company has right to repudiate the claim in a case for suppression of fact by way of adducing the evidence and giving opportunity to the assured and beneficiary to cross-examine either the agent of the Insurance Company or their witnesses. Here in this case, the petitioner-complainant did not get that opportunity as the Insurance Company admittedly did not adduce any evidence and also did not challenge her contention before the learned District Forum.

We have also perused the application form which was filled-up in English language whereas in column 23 of the application form “Additional Details of Policy Owner of Clause-c. Preferred language”, the assured mentioned ‘Bengali’, meaning thereby, the said application form was not filled-up by the deceased assured, rather by the agent of the Insurance Company, namely, Santosh Gope and admittedly the said agent was not examined. Therefore, it cannot be said that it was the assured who suppressed the facts as alleged by the Insurance Company. According to us, Insurance Company should not deprive the nominee of the assured or the beneficiary on a mere technical plea.

In view of the above, we are of the considered opinion that the learned District Forum rightly directed the opposite party-Insurance Company to pay the insured amount of Rs.3,50,000/- to the nominee, Anjali Ghosh after deducting the amount of Rs.31,259/- which was paid earlier to her. Opposite party no.2, Anjali Ghosh shall pay 1/3^rd of Rs.3,50,000/- to Smt. Mampi (Dhar) Ghosh and 1/3^rd to her grandson, Bipradip Ghosh or to his natural guardian, i.e. his mother, in proof of minority. Thus, no interference is called for.

In the result, the appeal is dismissed being devoid of merit.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura