BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE:30th July 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 156/2015
Complainant/s:
Smt.Davalabi w/o.Kasimsab Patil,
Age: 55 years, Occ: Household work, R/o.Municipal Quarters No.1, Garden Peth, Hubli – 28.
(By Sri.M.A.Shivalli, Adv.)
v/s
Respondent/s:
- The Branch Manager, LIC of India, Kalburgi Mansion, Lamington Road, Hubli 29
(By Sri.M.G.Gadgoli, Adv.)
- The Commissioner, Hubli Dharwad Municipal Corporation, Hubli 29.
(By Sri.L.V.Patil, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay the assured amount of Rs.30,000/- along with vested bonus with interest, Rs.30000/- towards compensation, to pay cost of the proceedings and to grant such other reliefs
Brief facts of the case are as under:
2. The case of the complainant is that, complainant’s husband was employee of HDMC and he had obtained policy bearing no.631661790 for an assured sum of Rs.30000/- on 28.11.2006 to be matured on 28.11.2022 after a period of 16 years with a monthly premium of Rs.195/- under salary scheme. During the time of policy was in force insured / her husband died on 28.02.2008 while he was under treatment. The complainant is the nominee. Hence, she is entitled for receive the amount under the policy. On 18.01.2014 the complainant filed claim application. Through a letter dtd.01.02.2014 the respondent replied policy lapsed due to non payment of premium since 28.01.2007. The reply was false her husband had paid premium till he died. Non payment of the claim amount amounts to deficiency in service. Hence, complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents.1&2 appeared and filed the written version in detail denying and disputing the complaint averments. The respondent.1 admits written version taking contention that very complaint is false, frivolous, vexatious, the complainant is not a consumer as defined under CP Act & the respondent has not committed any deficiency in service hence prays for dismissal of the complaint. Among such other admissions and denials the answering respondent contended that the matter involved in the complaint is complicated question of law and facts which requires to be trialed by civil court and this Forum has no jurisdiction to adjudicate the same. The impugned policy is in lapsed condition for non payment of premium since January 2007 & the same was not paid either by the life assured during his lifetime or by his employer respondent.2 & the policy has not been acquired any paid up value as such it is to be dismissed. Further taken contention that the complainant expired on 28.08.2008, the present complaint filed on 29.04.2015 after lapse of more than 5 ½ years is hopelessly barred by time limitation. Hence to be dismissed. Further taken contention that apart from instant policy the deceased assured was possessing other 2 policies & were settled by issuing cheque on 30.04.2008. As such the complainant was well aware of all the policies. Since this policy was lapsed during the lifetime of insured due to non payment of premium either by his employer or by him the instant policy was in lapsed condition and hence the complainant is not entitled for the claim benefits accordingly policy file was closed due to lapse condition, claim was rejected as such the answering respondent has not committed any deficiency in service or unfair trade practice as alleged. Further the respondent asserted the justification in rejecting the claim by quoting citations of different hierarchy courts & prays for dismissal of the complaint submitting that the assured had given undertaking to the respondent in the event the employer failed to pay the amount he personally undertakes to pay the premium and to keep the policy in force. Under those circumstances the policy was lapsed at the instance of the assured himself. Hence, prays for dismissal of the complaint.
4. The respondent.2 who is an employer of the deceased assured admits written version in the same line as respondent.1 admits. While answering respondent.2 admits he is an employer and the assured was the employee and contended that they were deducting the amount out of the salary of the deceased assured and was remitting the same to the respondent.1. Under those circumstances the answering respondent has not committed any deficiency in service and the respondent has deducted the salary till the assured dies. Under those circumstances the answering respondent was impleaded unnecessarily, no cause of action against answering respondent even then the respondent is not liable to pay any compensation or claims. It is the respondent.1 who is liable under the policy and prays for dismissal of the complaint.
5. On the said pleadings the following points have arisen for consideration:
- Whether complaint is barred by limitation ?
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit and relied on documents. Apart from argument complainant and respondent.2 have filed notes of argument & have relied on citations. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- Accordingly
- As per order
Reasons
Points 1 to 3
6. On going through the pleadings & documents relied by the parties and for the reasons while admitting this complaint for registration and issuance of notice to the respondent after heard argument from the complainant this Forum was inclined to order for issuance of notice to the respondent keeping open the orders on the point of limitation. Added to it, after respondents made appearance and filed written version apart from other contentions also have taken the point of limitation and maintainability of the complaint. Under those circumstances the Forum inclined to frame issue.1 whether the complaint is maintainable on the point of limitation and is taken first for determination.
7. As admitted by the complainant the complainant died on 28.02.2008 & the claim was submitted to the respondent on 18.01.2014. The same was rejected by the respondent.1 as per reply letter 01.02.2014 for the reason policy lapsed due to non payment of premium since 28.01.2007. The respondent.1 in their written version have stated, the deceased assured i.e. husband of complainant apart from instant policy he owns 2 more other policies bearing no.631196957 with premium Rs.45/- and another policy bearing no.631051463 with premium Rs103/-. Those 2 policies were also salary saving policies & were settled on 30.04.2008 by paying consolidate amount under a cheque bearing no.470486. This fact has not been disputed by the complainant. So also nowhere in the complaint as well as in the evidence affidavit the complainant did not disclosed these facts also. Settlement of those 2 policies on 30.04.2008 by this it is evident that complainant was well aware of the policies which were in her possession belongs to her deceased husband. Further contention of respondent.1 is that since those 2 policies were in force and premium have been paid till the assured died those 2 policies were settled. While this policy was in lapsed condition during the life time of the assured was not settled. Apart from the contention of respondent.1 it is also question why the complainant had waited all along since then her husband died i.e. from 28.02.2008 till 18.01.2014 and submits claim application that too after lapse of 5 years 11 months and 20 days. Being slept over on rights and claiming on lapse of more than 5 years i.e. on 18.01.2014 and rejection of claim later on will not give raise to cause of action. Cause of action start from 28.02.2008 i.e. from the date of death of the assured. The present complaint is filed on 29.04.2015 without any application u/s.24 (A) to condone the delay. The present complaint is filed after more than 7 years 2 months 1 day without any application to condone the delay if any. Under those circumstances complaint is hopelessly barred by limitation and this Forum has no jurisdiction to adjudicate the same. Under those circumstances we inclined to answer issue.1 in Affirmatively. Since issue.1 is answered in Affirmatively, the issue no.2 and 3 are not sustainable.
8. In view of the above discussions we have arrived and proceed to held issue.1 in Negative and issue.2 and 3 accordingly.
9. Point.4: In view of the finding on points 1 to 3 proceeded to pass the following
Order
Complaint is dismissed with cost of Rs.2,000/-. Among the cost Rs.1,000/- shall be payable to the respondent.1 and 2 each. On going through the pleadings of respondent.1 and 2 with the documents of salary deduction nowhere it is coming up that the respondent.2 had forwarded the premium deducted out of the salary of the deceased assured as contended by them to the respondent.1 with regard to instant complaint policy. Accordingly respondent.1 contended that they have not received any premium from the respondent.2 or from the assured himself as undertaken given by the assured. Under those circumstances there is uncertainty with regard to the deducted amount by the respondent.2 has been transferred to respondent.1 payable towards the instant policy. Hence, in the event if respondent.2 deducted the amount as contended and not sent to respondent.1 the respondent.2 shall pay the deducted amount and retained by them to the complainant. In such an event respondent.1 & 2 are not entitled for the cost as ordered above. Otherwise the complainant shall pay the cost within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30th day of July 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
