ORDER (ORAL)

1.      These revisions are directed against the order of the State Commission dated 10.6.2019 whereby the appeals preferred by the petitioner against the order of the District Forum dated 22.3.2018 were dismissed.

2.      Late Smt.Rukmini Devi, mother of the petitioner had taken several insurance policies in her life time from different insurers.  She had taken three insurance policies from Birla Sun Life Insurance Company Limited pursuant to three different proposals one dated 24.07.2009, the second dated 18.08.2010 and the third dated 31.08.2010.  The policies were taken for a sum assured of Rs.2,50,140/- , Rs.4,90,000/-  and Rs.8,00,000/- respectively.  She also took an insurance policy from Aviva Life Insurance Company Ltd. for a sum assured of Rs.10,00,000/- submitting a proposal to the said company on 27.09.2010.  She had taken two insurance policies from Bajaj Allianz Life Insurance Co. Ltd. one for Rs.2,80,000/- pursuant to a proposal dated 13.08.2010 and the other for Rs.5,60,000/- pursuant to a proposal dated 28.10.2010.  She had taken a policy of Rs.9,00,000/- from Tata AIG Life Insurance Co. Ltd. in terms of a proposal dated 6.9.2010, besides taking an insurance policy of Rs.95,000/-  from Sahara India Life Insurance Co. Ltd. in terms of a proposal dated 24.09.2010 and a policy of Rs.3,75,000/- from Reliance Life Insurance Co. Ltd. in terms of a proposal dated 27.7.2010. 

3.      Late Smt.Rukmini Devi having died on 21.12.2010, claims were preferred by the petitioner for policies he being the nominee of the deceased.

4.      The claims were repudiated by the insurers primarily on the ground that while applying for the insurance cover, the deceased has not disclosed the other insurance policies taken and/or the other applications submitted by her for taking insurance cover on her life.

5.      Being aggrieved from the repudiation of the claims, the petitioner/complainant approached the concerned District Forum by way of these separate consumer complaints.  The complaints were resisted by the insurer primarily on the ground on which the claims had been repudiated since there was substantial delay in filing the consumer complaints, applications seeking condonation of the said delay were also filed.

6.      The District Forum declined to condone the delay and consequently dismissed the consumer complaints as barred by limitation.  The petitioner having not been successful in the appeals filed before the State Commission, he is before this Commission.

7.      The learned counsel for the petitioner submits that identical applications seeking condonation of delay were filed by the petitioner.  One of the applications which the learned counsel for the petitioner has handed over today in the Court has been taken up and the said application to the extent it is relevant reads as under :

“6. That, being aggrieved with the decisions of the respondent, the complainant/petitioner had given the death certificate of her mother and all the documents concerning with insurance of his deceased mother to Advocate Anjani Kumar Singh, District Bar Association, Begusarai, Bihar and had signed all the necessary papers/documents for filing a case/suit in respect of policies standing in the name of her deceased mother with the respondent on 02/12/2012 and thereafter the complainant/petitioner had returned at Dimapur Nagaland for his job.

7 . That, after returning to the job place by the complainant/petitioner, he had lost his mobile which had resulted into the lost of all his contact numbers as such the complainant/petitioner was not able to contact during his stay at his job place to his advocate and whenever the complainant/petitioner visited to his permanent place once in each year or once in two years he had visited to the office of his advocate but found him to be out of station as such on good faith and belief, the complainant/petitioner used to returned to his job place and unable to get into contact with his advocate in relation to the instant matter due to lost of his contact number.

8. That, as such the complainant/petitioner was unable to know about the progress/steps taken by his advocate in relation to the filing and steps taken by him in relation to the policies of his deceased mother against the respondent.

9. That, the complainant/petitioner was finally able to meet his advocate in the month of February, 2016 but the said advocate had not filed any case/suit in relation to the above said policies with the respondent and no steps/initiatives whatsoever had been taken by the said advocate and only on 04.02.2016 the relevant policies copies and its related papers had been returned to the complainant/petitioner which he had kept in his office since 2^nd December 2012 for instituting a case/suit against the respondent.

10. That, as such the said advocate had sworn an affidavit to that effect for the reasons stated in para No.9 above and the said file had been handed over to the present advocate as such a legal notice dated 3/3/2016 had been served upon the respondent in respect of the policies of her deceased mother giving 15 days time to the respondent to make payment against the policies insured against the life of the mother of the complainant/petitioner.

12. That, as such after losing hope and expectation on the respondent, the complainant had handed over the entire file to his advocate only in the middle of June 2016 for filing this instant case and the remaining is the time taken by the advocate for preparing this instant case against the respondent.

13. That, as such there is a delay of 1937 days from the date of repudiation of the claim by the respondent i.e. from 31^st day of March 2011 which was beyond the control of the complainant and was unintentional for the reasons stated in Para No.6 to 12 of this petition which may kindly be condoned otherwise much loss/hardship may be caused to your humble complainant/petitioner which was not due to his mistake/negligence and was totally unintentional for his no fault as your humble complainant/petitioner within the prescribed time for filing this case had handed over to his advocate for filing this instant case.  As such the above stated days may be condoned otherwise much loss may be caused to your humble complainant/petitioner for his no fault which will result into injustice to your humble petitioner/complainant.’

8.      Admittedly, the delay in institution of the consumer complaints varied between about 4-5 years.  As per the application filed by the complainant before the District Forum would show that the death certificate of the deceased and all the documents pertaining to the insurance cover were handed over by him to one Mr.Anjani Kumar Singh, Advocate of Begusarai and all the necessary papers/documents for filing a case were also signed by him.  This, according to the complainant, was done on 2.12.2012 and thereafter he had returned to Dimapur where he was engaged in a job.  This was also his case before the District Forum that he having lost his mobile, all the contact numbers were lost and, therefore, he was not able to contact the advocate and whenever he went to the office of the advocate, once in a year or once in two years, the advocate was out of station.  He also claimed that he was finally able to meet Mr.Anjani Kumar Singh, Advocate only in February, 2016 and the documents were returned to him by the said advocate on 4.2.2016.

9.      Two affidavits of Mr.Anjani Kumar Singh, Advocate were filed by the petitioner/complainant before the District Forum.  The first affidavit dated 10.3.2016 is a short affidavit and to the extent it is relevant reads as under :

“2. That death certificate of Rukmini Devi and all the documents concerning with insurance of above deceased.  Reukmini Devi had been kept in my office since 2^nd December, 2012 to 4^th February, 2016.

3.That I returned all the documents to Pramod Poddar on 04.02.2016.”

10.    The second affidavit which is dated 12.7.2018 and is a detailed affidavit, to the extent it is relevant reads as under :

“2. That Death Certificate of Late Rukmini Devi and all other documents with repudiation letter concerning Life Insurance Claim of above deceased had been handed over to me by Shri Pramod Poddar on 2^nd December, 2012 and instructed me to file complaints in District Consumer Dispute Redressal Forum, Begusarai, Bihar, for which he had done all formalities required for filing said complaints.

3. That the complaints could not be filed due to non functioning of District Forum also due to my prolonged sickness and I returned back the file and all documents to Sri Pramod Poddar on 4^th February, 2016.”

11.    It would thus be seen that the only explanation given by Mr.Anjani Kumar Singh, Advocate for not filing the consumer complaints despite receiving the requisite documents from the complainant was that :

1. The District Forum at Begusarai was not functioning and

2. He was sick for a prolonged period.

12.    It will be difficult to accept that the District Forum at Begusarai was not at all functioning.  The affidavit of Mr.Anjani Kumar Singh, Advocate does not disclose for which period the District Forum at Begusarai was not functioning.  Even if it is assumed that the President and/or Members of the District Forum had not been appointed or were not functioning, the office of the District Forum would certainly be open and there would be no difficulty in instituting the Consumer Complaint.  In any case, no certificate or document from the District Forum at Begusarai has been filed to show that the said District Forum was not functioning between December, 2012 to February, 2016 or even for a limited period between December, 2012 to February, 2016.  Therefore, the justification given by Mr.Anjani Kumar Singh, Advocate does not inspire confidence.

13.    Though Mr.Anjani Kumar Singh, Advocate stated that he was suffering from prolonged sickness, no details of the alleged sickness were disclosed by him in his affidavit.  He did not disclose from what ailment he was suffering, for which period he was sick and under whose treatment he remained during the period of his sickness.  No medical record was filed to satisfy the District Forum that Mr.Anjani Kumar Singh, Advocate was actually suffering from a prolonged sickness and, therefore, was not in a position to file the consumer complaint.

14.    It has been stated in the affidavit of the complainant that he having lost his mobile phone, the contact number of Mr.Anjani Kumar Singh, Advocate was not available with him and, therefore, he could not contact him on telephone.  No report alleging theft/loss of the mobile phone of the complainant was filed before the District Forum to prove that he had actually lost his phone.  In any case, if he was unable to retrieve the mobile number of the advocate, nothing prevented him from writing a letter to the advocate, enquiring about the complaints which the complainant had instructed him to file and also requesting him to intimate his mobile number to the complainant, for future communication.  No such course of action however was adopted by the complainant.

15.    It is stated in the affidavit of the complainant that he had visited the office of Mr.Anjani Kumar Singh, Advocate after handing over the papers to him after December, but the advocate was out of station.  If this is so, he could at least have found out the mobile number of the advocate from his office/residence and could have contacted him on telephone.  As noted earlier, according to the complainant Mr.Anjani Kumar Singh, Advocate was out of station whenever he visited his office in Begusarai.  This statement, runs counter to the affidavit of Mr.Anjani Kumar Singh, Advocate, who claimed that he was suffering from a prolonged sickness.  If Mr.Anjani Kumar Singh, Advocate was suffering from a prolonged sickness, he could not have been out of station every time the complainant allegedly visited his office at Begusarai.

16.    Thus, from whatever angle I may look at it, I find no justification for condoning the delay  of as much as 4-5 years in institution of the consumer complaints.  In any case, both the Fora below having returned a concurrent finding that no sufficient cause for the condonation of delay had been made out,  the facts and circumstances as discussed herein above do not justify interference by this Commission, with the said concurrent finding, in exercise of its revisional jurisdiction.

17.    The learned counsel for the petitioner relies upon the decision of the Hon’ble Supreme Court in N.Balakrishnan –vs- M.Krishnamurthy dated 3.9.1998 in support of her contention that the complainant should not be penalised on the part of the advocate engaged by him.  In N. Balakrishnan (supra) , there was delay of 883 days in filing an application for restoration of an application which had been dismissed in default.  The delay was condoned by the trial court.  The order passed by the trial court was however set aside by the High Court.  Being aggrieved, the petitioner approached the Hon’ble Supreme Court which felt that the High Court should not have interfered with the discretion exercised by the trial court, and condoned the delay.  On a perusal of this decision, I find that the petitioner had filed a consumer complaint against the advocate alleging negligence on his part in rendering services to him.  In the consumer complaint, compensation was also awarded to him against the advocate whom he had engaged.  Having noted the action which the petitioner had taken against the advocate, the trial court accepted the explanation given by him and condoned the delay.  However, in the present case there is no evidence or even allegation of the petitioner having initiated any action against the advocate namely Mr.Anjani Kumar Singh. Not to talk of filing a consumer complaint, he did not even make a complaint to the concerned Bar Council against the advocate though he allegedly kept the papers with him for more than 3 years without filing the consumer complaints.  Therefore, the conduct of the petitioner/complainant coupled with the other facts and circumstances noted herein above does not indicate a bona fide ground for condoning the delay of about 4-5 years in institution of the consumer complaints.

18.    Even on merits, as noted earlier as many as nine insurance policies were taken by the deceased from five different insurers. Except while submitting the proposal dated 24.7.2009 to Birla Sun Life Insurance Company Limited, she was required to disclose the policies which he had already taken or applied, while submitting the proposal forms.  Admittedly, the previous policies which she had already taken or applied were not disclosed by her in the proposal forms which he had submitted after 24.07.2009.  The income of the deceased was stated to be between Rs.1.6 lakh to Rs.2.5 lakh in different proposals submitted by her.  She chose to approach five different insurers, instead of taking one or more policies from the same insurer.  The said conduct in my opinion indicates that she had deliberately withheld the information with respect to the other policies taken or applied by her when she submitted the proposals post 24.7.2009 to different insurers.  The aforesaid conduct on the part of the deceased insured to my mind would also be a relevant consideration.

19.    In a recent judgment in Reliance Life Insurance Co. Ltd. vs Rekhaben Nareshbhai Rathod II (2019) CPJ 53(SC), the insured took an insurance policy on 10.07.2009 followed by a subsequent policy taken on 16.09.2009.  The first policy was not disclosed while applying for the second policy despite the proposal form requiring such a discloser.  On death of the insured, a claim in terms of the second policy was submitted which was repudiated on the ground that the insured had supressed a material fact with respect to the details of the policies already held by him.  Being aggrieved the complainant approached the concerned District Forum by way of a consumer complaint.  The complaint was dismissed by the District Forum on the ground of non-discloser of the previous policy.  The order passed by the District Forum however was set aside by the State Commission and this Commission affirmed the decision of the State Commission.  Allowing the appeal filed by the insurer,  the Hon’ble Supreme Court inter-alia held as under :

26 Contracts of insurance are governed by the principle of utmost good faith. The duty of mutual fair dealing requires all parties to a contract to be fair and open with each other to create and maintain trust between them. In a contract of insurance, the insured can be expected to have information of which she/he has knowledge. This justifies a duty of good faith, leading to a positive duty of disclosure.

It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicant's health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement.

The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) 19 (1766) 3 Burr 1905 20―there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance‖. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.

27 In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to inquiry.

29 We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs.11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy.

32 For the reasons which we have adduced, we are of the view that the SCDRC was in error in reversing the judgment of the District Forum. The NCDRC has similarly erred in affirming the view of the SCDRC. We, accordingly, allow the appeal and set aside the impugned judgment and order of the NCDRC dated 20 February 2015. The consumer complaint filed by the respondent shall stand dismissed.

20.    For the reasons stated herein above, I find no merit in the revision petitions which are accordingly dismissed with no order as to cost.