DATE OF FILING: 25.04.2013

        DATE OF DISPOSAL: 09.08.2017

O R D E R

Dr. N. Tuna Sahu, Presiding Member: 

            The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of his   grievance before this Forum.  

            2. Briefly stated, the case of the complainant is that the complainant is the son of one Krushna Chandra Behera who insured his life with O.Ps on 24.01.2011 for an assured amount of Rs.3,84,000/- on payment of yearly premium of Rs.34,650/- which was commenced with effect from 24.01.2011. The O.Ps accordingly issued premium receipts along with the policy bond bearing No. C207027433 to the father of the complainant with effect from the year 2011 and in the said policy the complainant was kept as nominee. While the policy in question was in force, unfortunately on 25.04.2011 the insured Krushna Chandra Behera, the father of the complainant, died due to high fever at the age of 55 years. Thereafter the complainant submitted the death claim of his father for the settlement of the policy dues with the O.Ps through the insurance agent and filed all the premium receipts, original policy bond along with death claim form, those are accepted by the O.Ps bearing claim No.BHI2000381. After about 12 months i.e. on 03.05.2012 at last the O.Ps issued a letter along with a cheque of Rs.34,650/- with an explanation that the age of the insured at the time of accepting the policy was not disclosed properly unless the policy would not have been accepted, however as the insured is now dead and the policy claim can’t be settled with sum assured, the premium is hereby returned and the death claim of the complainant is turned down. Though the policy of the complainant for his father was accepted by the O.Ps but after the death of insured about one year passed, the O.Ps returned the premium being the policy is not acceptable, is not judicious. It is also states that repeated visits and frequent request of the complainant to the O.Ps gone in vain and the complainant was compelled to send a registered post advocate notice to the O.Ps on dated 22.03.2013 through his advocate for early settlement of the policy. When all the efforts of the complainant to settle the death claim of his insured father with the O.Ps went in vain the complainant is compelled to approach this Forum for the injustice.   Alleging deficiency in insurance service on the part of the O.Ps the complainant has filed this complaint with the prayer to direct the O.Ps to pay the death claim of Rs.3,84,000/- with compensation of Rs.10,000/- for mental agony and suffering along with cost of litigation in the best interest of justice.

            3. Upon notice, the O.Ps appeared through learned counsel for the King Stubb & Kasiva Associates and filed written version through his advocates. It is stated that late Krushna Chandra Behera (hereinafter referred as “Deceased Life Insured DLI”) after completely understanding the terms and condition of our product “Maha Life Gold Plan”  and had voluntarily applied for an Insurance Policy by filing Application Form on dated 21.01.2011. Complainant son of the DLI was proposed to be a nominee. In the proposal form, the DLI gave all relevant details and information in the prescribed form, for which a premium amounting to Rs.34,650/- was proposed to be paid on annual basis for a term of 15 years for sum assured of Rs.3,85,000/- under the said policy. The DLI after understanding terms and conditions in his regional language put his signature on the declaration and authorization with respect to complete, true and accurate disclosure of all the facts as may be relevant for the acceptability of the application form. It was specifically mentioned that all material facts which form the basis of the insurance contract should be disclosed correctly otherwise the policy issued might stand void or voidable. The DLI at time of signing the application form represented his birth of date as 01.01.1958. Believing upon the contents of the proposal form to be true, correct and complete and based on the information provided and declaration made in the application form and on receipt of initial payment of Rs.34,650/-, a policy bearing No.C207027433 was issued to the DLI. It is also stated that the contents of Para-3 are wrong, false and hence denied.  It is wrong and denied that the DLI was died at the age of 55 years as alleged. It is pertinent to mention here that on 23.01.2012 the O.Ps received the death intimation of the DLI and thereafter on 19.03.2012, the O.Ps received the claim documents for the policy bearing No.C207027433 whereby it was intimated that the DLI was expired on 25.04.2011. Therefore upon receipt of the death claim intimation by the O.P. and being an early claim and as per the terms and condition, the O.Ps further conducted the investigation for the said claim under the policy. During the course of investigation, it was established that the DLI has mis-stated his age in the proposal form. The DLI’s correct age at application form dated 21.01.2011 was beyond the insurable age for the product. During claim investigation it was revealed that the electoral card for the year 2009 and 2011 confirms the age of the insured as 64 years and 66 years respectively. Voter I.D. number in both the lists and voter I.D. card provided by the DLI are same which indicates that voter I.D. card which was given by the DLI at the time of  filing of application form was forged/tampered. It is submitted that the said misstated fact about the age of DLI was also confirmed from the official website i.e.

            4. On the date of final hearing of the consumer dispute, the learned counsel for the complainant is absent on call and not filed hazira. In fact, the complainant is absent from 17.04.2017 and although the Forum was on 15.05.2017 directed the complainant to remain present without fail in the next date, but he failed to remain present. The learned counsel for the O.Ps is present and filed hazira. In this case, the complainant has remained absent after filing written argument and not proceeding with the case for final hearing. This is a year old case and the complainant is remaining absent consecutively even after directions issued by this Forum not proceeding with the case for final hearing. The Forum, therefore, decided to dispose of the dispute on merit as per Section 13 2(c) of Consumer Protection Act, 1986.

5. On merit, as per the complaint and written argument of the complainant, on 24.01.2011 the father of the present complainant took an insurance policy from O.Ps for an assured sum of Rs.3,84,000/- on payment of Rs.34,650/- towards yearly premium. Accordingly, the O.Ps issued policy bond bearing No.C207027433 in favour of the father of the complainant. Unfortunately, when the policy is in force, on 25.04.2011, the life assured was died due to high fever at the age of 55 years. The complainant intimated the death claim to the O.Ps along with premium receipt, original policy bond, death claim form and the death claim was registered vide claim No.BH12000381. The O.Ps did not take any action to settle the claim for long period but after elapse of 12 months on 3.5.2012 issued a cheque of Rs.34,650/- with an explanation that the insured was not disclosed his age at the time of accepting the policy. Hence, the premium is returned due the suppression of age by the deceased life assured. However, as per the complain petition and written argument, the complainant prayed before this Forum to direct the O.Ps to pay the death claim amount of Rs.3,84,000/- along with interest and to pay Rs.10,000/- towards mental agony, deficiency in service and cost of litigation. The complainant in support of his case also cited a decision of Hon’ble High Court of Madras in the case of Life Insurance Corporation of India Vs. The Insurance Ombudsman vide Writ Petition No.46518 of 2006 and miscellaneous petition No.14536 of 2007. He has also cited another decision of Hon’ble National Commission, New Delhi vide Revision Petition No.982 of 2011 in the case of Bajaj Allianz Life Insurance Company Ltd. Vs. Mrs. Nasi Ban Begum and prayed before this Forum to direct the O.Ps to settle his insurance claim as per his complaint.  

            6. Per contra, the learned counsel for the O.Ps in their oral submission and written arguments stated that the case is not maintainable in eyes of law and liable to be dismissed U/s 26 of Consumer Protection Act, 1986. It is submitted that the complainant during taking of the policy was suppressed his age and in the proposal form he had misrepresented his age which amounts to suppression of material fact. After receipt of the intimation for death claim the O.Ps conducted an inquiry about the age and other details of the deceased life assured and on inquiry it was found from the voter list and voter I.D. that the DLI had suppressed his age at the time of taking the insurance policy. It is further submitted that the O.Ps does not hold any liability under the said policy as the life insurance contracts are contracts of ‘uberrimae fides’ i.e. utmost good faith. The insured is obliged to give full and correct information of matters which would influence the judgment of a prudent insurer in determining whether he will accept the risk or not. In this case, the DLI has not disclosed his material age during taking of the policy in dispute hence it amounts to suppression of material fact. Accordingly, the O.Ps on 03.04.2012 vide Account Payee Cheque No.684488 of HDFC Bank Ltd for Rs.34,650/- has returned the insurance premium to the complainant which was also duly accepted and acknowledged. So the complainant is not entitled to any insurance claim in this case due to suppression of age and acceptance of return of premium. He has also cited a number of citations of Hon’ble Supreme Court of India and Hon’ble National Commission in support of his case such as in the case of Satwant Kaur Sandhu Vs. New India Assurance Company Ltd (2009) 8 SCC 316, in the case of United India Insurance Co Ltd Vs. Harchand Rai Chandan Lal(2004) 8 SCC 644, in the case of Consumer Unity & Trust Vs. CMD reported in 1991 Vol. (1) CPJ 1 SC and in the case of Executive Director (Marketing) Life Insurance Corporation of India versus Yogendra Prasad Singh Revision Petition No. 692 of 2006 decided on 14.5.2009(NC), in the case of   Prema and Ors versus Life Insurance Corporation of India Ltd reported in IV (2006) CPJ 239 (NC) respectively. He has also cited anther decisions of Andhra Pradesh High Court in the case of  LIC of India versus B.Chandravathamma, AIR 1971 AP 41 in support of their case and prayed to dismiss the complaint.

            7. We have perused the above submissions of both parties and have also gone through the materials and thoughtfully considered arguments of both parties. We have examined the written argument and verified the materials on the case record. On perusal of materials on record, we find that there is no dispute that the complainant procured the policy bearing No.C207027433 from the O.Ps on payment of Rs.34,650/- towards yearly premium for an assured sum of Rs.3,84,000/-. It is also not disputed that the father of the complainant was died on 25.4.2011 and same was intimated to the O.Ps which was registered as claim No.BH12000381. On further perusal, it reveals that it is an admitted fact that the O.Ps have returned the premium amount of Rs.34,650/- to the complainant vide account payee cheque No.684488 dated 03.04.2012 of HDFC Bank due to suppression of age by the insured since the amount was deposited under a void contract. The O.P. insurance company has also submitted a document of Voter List of 2011 of Chatrapur Constituency, Ganjam where it has been mentioned the name and age of DLI is 66 years. It is also a fact that the O.Ps after receipt of the claim intimation has conducted an inquiry being an early claim and confirmed the age of the DLI through their investigator and accordingly has returned the premium amount to the complainant. In the above fact and circumstances, in our considered view it can’t be stated that the O.Ps are deficient in service and not settled the claim arbitrarily. In fact, as per the materials placed on the case record, it is beyond doubt proved that the father of the complainant was suppressed his age during taking of the insurance policy in dispute. The photograph of the DLI put on the proposal form does not look like a photograph of 53 years old person at the time of filling of the proposal form. Besides that the deceased life assured was died only after three months of obtaining the insurance policy from the O.Ps. In this context, we would like to view that Section 45 of the Insurance Act, 1938 is not attracted to this dispute since as per the authority of Hon’ble Supreme Court in P.C. Chacko Vrs. Chairman, LIC of India reported in 2008 1 SCC 321, it was held that as per Section 45 of the Insurance Act, 1938 a policy can’t be called in question on misrepresentation after two years and the same is applicable to the insurance company to repudiate within a period of two years. Accordingly, in the present case, the policy in dispute has not completed even six months after commencement of the said policy since the deceased life assured was died after three months of taking the policy in dispute. The contract of insurance is based on uberrimae fides i.e. utmost good faith and parties to the contract are obliged to disclose all material facts while making the contract of insurance and a party to the contract if suppressed any material information while entering into the contract of insurance, the contract is voidable and under a void contract the insurer is liable to return the amount of premium to the insured or legal heir of the deceased policy holder. In fact, in this case, the O.P. insurance company has already returned the amount to the present complainant through a cheque of HDFC Bank bearing No.684488 dated 03/04/2012 for an amount of Rs.34,650/- i.e. the amount of premium received by the O.P. insurance company towards the insurance policy as is evident from the case record. Besides, it is also evident from the case record that the O.P. insurance company has produced a certified copy of the Voter List of Chatrapur Constituency for the year 2011issed by the Office of Sub-Collector, Chatrapur, Ganjam, where the age of deceased Krushna Chandra Behera, the DLI, was mentioned as 66 years in the list, which is beyond any doubt or dispute. We are, therefore, convinced that there was suppression of material fact regarding the age of the deceased by policy holder while taking the insurance policy in dispute and the insurance company has justified returning the premium of the deceased policy holder under a void contract.

8. The learned counsel for the complainant has filed two citations in support of his case to justify his arguments. The first citation is with regard to the case of Insurance Ombudsman Office, Chennai Vs. Life Insurance Corporation of India vide writ petition No.46518 of 2006 and another citation is in the case of Bajaj Allianz Life Insurance Co. Ltd Vs. Mrs. Nasi Ban Begum vide R.P No.982 of 2011 decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. On perusal of the aforesaid two decisions, we find that the present case is different from those of two decisions and there is distinguishable factual difference in the fact and circumstances of the cases hence we are not inclined to accept both citations since those two citations do not support his case. In the case of Insurance Ombudsman Office, Chennai Vs. Life Insurance Corporation of India, we would like to view that the suppression of material fact was not proved whereas in the present case the suppression of age is proved as discussed above since the DLI took the policy on 24.01.2011 but died on 25.4.2011 i.e. merely after elapse of 3 months. Similarly, in the case of Bajaj Allianz Life Insurance Co. Ltd Vs. Mrs. Nasi Ban Begum (supra), it has been held that in case of suppression of material fact policy not to be called in question on ground of misstatement after two years and in the present case the policy of the deceased life assured was even not completed six months when he was died. Hence, Section 45 of the Insurance Act, 1938 can’t be attracted to this case supporting the case of the complainant. Moreover, as per the contention of the learned counsel for the complainant and decision of Hon’ble National Commission in the case of Bajaj Allianz Life Insurance Co. Ltd. Vs. Mrs. Nasi Ban Begum in view of the authority of Hon’ble Supreme Court, it was for the O.Ps to produce cogent evidence to prove the allegations of suppression of material fact by the deceased life assured. In this case the O.P. insurance company has produced documents along with evidence on affidavit to support their case which also includes certified copy of voter list obtained from the office of the Sub-Collector, Chatrapur, Ganjam.  It is also a fact that the deceased life assured has not produced any authentic document in support of his date of birth except voter card while obtaining the insurance policy. Hence, there is no doubt or dispute that the deceased life was suppressed his age during taking of the insurance policy in dispute. In case of insurance policy where the DLI suppressed material fact regarding his age he is not entitled to any insurance benefit. Our finding is fortified with the decision of Hon’ble State Commission, Uttaranchal reported in (2004) 10 CLD (SCDRC-Uttaranchal) in the case of Life Insurance Corporation of India Vs. Smt. Kamla Devi where it was held that “Insurance policy obtained by false representation would be void and claimant would get nothing but amount of premium deposited.”  In this case since the O.P. insurance company has already returned the premium amount of Rs.34,650/- due to amount deposited under a voidable contract, the complaint deserves no consideration.  In view of the above discussion and taking into account to the fact and circumstances of the case, we feel that the complaint of the complainant deserves no consideration since it bears no merit hence dismissed.

            9. Resultantly, we dismissed the case of the complainant due to devoid of merits. The parties are directed to bear their own cost.

            10. The order is pronounced on this day of 9^th August 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of