(Sri D. Shankar Rao, Member)
1. This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to pay sum assured Rs.1,00,000/- along with benefits with interest from 12-9-2011, to pay Rs.20,000/- for suffering with mental agony, physically and deficiency of service and unfair trade practice, besides Rs.10,000/- towards costs of the complaint.
2. The brief facts of the complaint are that the father of complainant namely Hirya Naik obtained insurance policy on 16-11-2010 under Reliance Child Plan from opposite party No.1. The policy period is 15 years and commenced it from 16-11-2010 and will be end by 16-11-2025 with sum assured for Rs.1,00,000/-. The mode of premium payment is yearly rest @ Rs.11,102-36Ps. The complainant is a nominee for the said policy. Unfortunately father of complainant died on 12-9-2011 with chest pain. The complainant has submitted claim form to the opposite parties for settlement of claim. The opposite parties have postponed the matter for settlement of claim on one or other pretext till today. The acts of opposite parties are in deficiency of service and they are liable to pay policy sum assured for Rs.1,00,000/- along with benefits with interest from 12-9-2011 and Rs.20,000/- towards mental agony and physical sufferance besides costs of Rs.1,000/-.
3. The opposite party Nos.1 & 3 are remained absent throughout the proceedings. The opposite party No.2 contesting the case and filed its counter briefly stated that the policy was obtained by making fraudulent statements, submitting fabricated documents by suppressing material facts contrary to the terms and conditions of the policy. Hence the present complaint is frivolous, vexatious in law and liable to be dismissed under Section 26 of Consumer Protection Act, 1986.
The life assured late Hirya Niak had availed the Reliance Child Plan policy No.18193188 for a term of 15 years with an annual premium of Rs.11,102-36Ps., for sum assured Rs.1,00,000/- and the policy was issued on 16-11-2010 on the basis of Sworn Affidavit of Hirya Naik in support of his date of birth showing as 7-6-1955 since he does not have any other proof of date of birth. The opposite parties have conducted a statutory investigation under clause 8 (3) of the Insurance Regulatory and Development Authority (IRDA) (Protection of Policy Holders Interest) Regulations 2002 since the death of life assured was occurred within 10 months from the date of issuance of policy. During investigation it was revealed that the life assured was 69 years old while filling proposal form for the policy and 70 years old at the time of his death i.e., on 12-9-2011. The correct age of life assured was 70 years as per voters list. Under the terms of policy the permissible age limit at which the policy can be taken was 60 years old. The life assured understating his age by 14 years with the support of fabricated Sworn Affidavit by suppressing material facts and also committed a fraud on the opposite parties. Therefore the opposite parties have repudiated the claim through a letter dated 29-2-2012 under the policy as per Section 45 of Insurance Act. The policy shall become valid and all claims to any benefit shall cease and all monies that have been paid by the policy holder shall belong to the company. The contracts of insurance including the contract of life insurance are contracts uberrimae fides and every fact of material must be disclosed and concealment of any material information or providing any false or incorrect information in the policy is a violation of the insurance contract as observed by the Hon’ble Apex Court of India in a case between ‘Life Insurance Corporation of India & Others Vs. Smt. Asha Goel & Another’ SCC (2001) 160 and also in P.C. Chacko’s case AIR, 2008 SC 424. In another case in Expert Credit Guarantee Corporation of India Ltd., Vs. Garg Sans International 2013(1) SCALE 410 wherein it has been held that while construing the terms of the contract of insurance the Court must give paramount importance to the terms used in the said contract and it is not open for the Court to add, delete or substitute any words. Therefore the complainant is not entitled for any relief under the policy and the complaint is liable to be dismissed summarily with compensatory cost to the opposite parties.
4. During enquiry, the complainant filed his affidavit as PW-1 and got marked Exs.A-1 to A-6 documents and closed his evidence. The opposite party No.2 also filed the affidavit of Sreehari Boyalaguddam S/o Krishna Murthy, Senior Territory Manager at Gadwal as RW-1 and got marked Exs.B-1 to B-5 documents and closed its evidence. The OPs.1 & 3 are remained absent throughout the proceedings.
5. Heard arguments.
6. The points for consideration are:-
i) Whether the complainant is entitled for the claim under the policy?
ii) Whether there is any deficiency of service on the part of opposite
parties in repudiation of claim?
iii) To what relief?
7. Point Nos.1, 2 & 3:- It is not disputed that the father of complainant was issued Insurance Policy No.18193188 under Child Plan on 16-11-2010 by OP-1 as per Ex.A-1 (Ex.B-3). It is also not in dispute that the complainant is a nominee for the said Insurance Policy. The policy holder Hirya Naik died on 12-9-2011 which was within one year from the date of issue of policy is also not in dispute.
The case of the complainant is that the opposite parties have not settled the claim and postponed the same on one or other pretext till filing the complaint.
The case of OP-2 is that the deceased Hirya Naik was obtained the policy by making fraudulent statement in his sworn affidavit and showing his date of birth as 7-6-1955, understating his age by 14 years contrary to the terms of policy. The correct age of life assured is 70 years as per voters list which is revealed in statutory investigation under clause 8 (3) of Insurance Regulatory and Development Authority (IRDA) (Protection of Policy Holders Interest) Regulations 2002. Therefore the claim under the policy was rightly repudiated.
Therefore the case swirls over the age of life assured at the time of proposal for taking policy.
The complainant has relied on Ex.A-1 (Ex.B-3) document in order to prove the age of his father life assured. During the time of arguments counsel for the complainant has cited following Judgments supporting to the case of complainant.
- Life Insurance Corporation of India & Others Vs. Ram Murti.
CPJ 2009 (IV) NC 224.
- Madanlal Vs. Life Insurance Corporation of India & Others.
CPJ 2008 (II) Rjstn. SC 67.
- The DVM LIC of India & Another Vs. Smt. Savitri Devi.
CPR 1998 (3) HP. SC 234.
- Life Insurance Corporation of India & Anr. Vs. Kamala Devi.
2009 CJ 1141 (NC).
The opposite party No.2 has relied on voters list in Ex.B-4 issued by V.R.O., Ramchandraiah, Maddalabanda to prove the age of life assured was 69 years at the time of taking policy which is not eligible for obtaining policy under Child Plan. The counsel for OP-2 has also filed written arguments and relied upon the following Judgments supporting to the case of OP-2.
1) Life Insurance Corporation of India Vs. Smt. Asha Goel & Anr.
SCC (2001) 160.
2) P.C. Chacko & Anr. Vs. Chairman, LIC of India & Others.
AIR (2008) SC 424.
3) Export Credit Guarantee Corporation of India Ltd., Vs. Garg Sons
International. 2013 (I) SCALE 410.
The counsel for complainant vehemently argued and reiterating that the sworn affidavit in Ex.B-2 given by life assured showing his date of birth as 7-6-1955 is correct and proper. Further argued that the age entry in the voters list in Ex.B-4 which was issued by V.R.O. is not valid as it is not an authenticated document to prove the age of life assured.
The counsel for OP-2 has also vehemently argued that the voters list in Ex.B-4 showing the age of life assured as 70 years which is clearly established that the life assured fraudulently stated less age in his sworn affidavit in Ex.B-2. The contract of policy itself is void in the light of age mentioned in Ex.B-4 voters list.
We have heard the counsel for the parties and perused the record and gone through the cited Judgments from both side. On perusal of Ex.A-1, it consists First Premium Receipt (Ex.B-3), Policy Schedule (Ex.B-3), Sales Manager Moral Report and Self declaration Affidavit (Sworn Affidavit Ex.B-2). One B. Maheshwari, Sales Manager/Territory Manager has certified the age proof of life assured as 55 years (7-6-1955) and gave her Moral Hazard Report on 15-11-2010 to the insurance company before issuing the policy. It is seen from the proposed form of life assured in Ex.B-3 that the completeness of documents verified and certified as correct and proper by one G. Bhaskar Reddy, Advisor and B. Maheshwari, Sales Manager/Territory Manager at Gadwal for issuing the policy. Ex.B-4 voters list was issued by V.R.O., Maddelabanda. The OP-2 has relied on Ex.B-4 and repudiated the claim on 29-2-2012 in Ex.B-5. It is pleaded by OP-2 that they conducted the investigation under Clause 8 (3) of Insurance Regulatory and Development Authority (IRDA) (Protection of Policy Holders Interest) Regulations 2002 and traced out the age of life assured in Ex.B-4 voters list. Hence the opposite parties have come to conclusion that the age of life assured was more than permissible age limit and they repudiated the claim.
At first instance before issuing the policy the age of life assured was 55 years (7-6-1955) which was certified by one G. Bhaskar Reddy and B. Maheshwari in Ex.B-3 (Ex.A-1) and at last instance the age of life assured was 69 years said to be known in the investigation as per Ex.B-4 voters list. Therefore the onus to prove the same lies on opposite parties.
The OP-2 who has been contesting the case filed the affidavit of Sreehari Boyalaguddam, Senior Territory Manager at Gadwal as RW-1 and got marked Exs.B-1 to B-5 documents. It is not mentioned that who had conducted the investigation under clause 8 (3) of Insurance Regulatory and Development Authority (IRDA) (Protection of Policy Holders Interest) Regulations 2002 and what was the investigation report. Except filing the voters list in Ex.B-4 no evidence is adduced or atleast affidavit of a person who issued the Ex.B-4 voters list is not filed by opposite parties. In the absence of such evidence, the age of life assured mentioned in Ex.B-4 voters list cannot be considered as a conclusive proof in the light of observation made by the Hon’ble National Commission, New Delhi in a Judgment in Revision Petition No.4050 of 2006 decided on 8-12-2010 between Oriental Insurance Company Ltd., Vs. Smt. Gangu Bai & Another.
Generally the voters list of a person can be used for address proof and photo identity but not age proof document. No doubt that the Ex.B-4 is web-site generated government document. However, assuming but not admitting that the Ex.B-4 cannot be assessed more than evidentiary value than the value of sworn affidavit evidence in Ex.B-2 in ascertaining the age of life assured. Hence the cited Judgments by both parties as stated supra are not applicable to the facts of present case. Therefore we are in opinion that the Ex.B-4 voters list cannot be considered for the age proof of life assured.
Therefore in view of aforesaid discussion and findings in the light of Judgment as stated supra, we are of considered view that there is deficiency of service on the part of opposite parties in repudiating the claim under the policy. The complainant is entitled for the claim under Insurance Policy and the opposite parties 1 to 3 are liable to pay the same.
It is mentioned in the Ex.A-1 (Ex.B-3) Policy Schedule, the sum assured is only Rs.1,00,000/- on death of life assured at any time before 16th November, 2025 year. The complainant has not placed any record to the claim of other reliefs. Therefore the complainant is entitled only Rs.1,00,000/- with interest and costs.
IN THE RESULT, the complaint is allowed in part as under:-
- The opposite parties 1 to 3 are directed to pay Rs.1,00,000/- to
the complainant with 9% interest from the date of repudiation of claim i.e., 29-2-2012 till realization under Child Plan Insurance Policy No.18193188, dt.16-11-2010.
- The opposite parties 1 to 3 are also directed to pay Rs.1,000/- as costs of the complaint.
