Haryana

Yamunanagar

CC/713/2010

Kajal Minor D/o Tak Chand Sharma - Complainant(s)

Versus

The Divisional Manager,The Oriental Insurance Company Ltd. - Opp.Party(s)

S.C Jindal

22 Sep 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 713 of 2010.

                                                                                                Date of institution: 02.08.2010

                                                                                                Date of decision: 22.09.2016.

1. Kajal minor daughter of late Sh. Tek Chand Sharma (aged about 11 years )
2. Rajni minor daughter of late Sh. Tek Chand Sharma ( aged about 8 years)
3. Kartik minor son of late Sh. Tek Chand Sharma ( aged about 6 years)

        Through their real uncle Sh. Mukesh Kumar Sharma s/o Sh. Raghu Nath Sharma, resident of Plot No. 107, Ramesher Nagar

        (Bank Colony)   near Tyagi Karyana Store, Yamuna Nagar.

                                                                                                                             …Complainants.

                                              Versus

    The Divisional Manager, The Oriental Insuance Company Limited, Opposite Madhu Hotel, Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                     …Respondent.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  S.C.Jindal, Advocate, counsel for complainants.

              Sh. Rajiv Gupta, Advocate, counsel for respondent.

 

ORDER

 

1.                     The present complaint has been filed by the complainants under section 12 of the Consumer Protection Act, 1986 praying therein that the respondent (hereinafter referred as OP) be directed to release the payment of all benefits under insurance Cover Note No. 641516 under Nagrik Suraksha Policy in respect of deceased Tek Chand Sharma and also to pay compensation as well as litigation expenses in favour of complainants i.e. only minor daughters and minor son.

2.                     Brief facts of the present complaint, as alleged by the complainants, are that the present complaint has been filed by two minor daughters and one minor son through their uncle Mukesh Kumar Sharma being LRs of deceased Tek Chand Sharma with the averments that the complainants are natural children and only legal heirs of deceased Tek Chand Sharma and are living under the care and custody of their real uncle who is also next friend of the minors. The deceased Tek Chand Sharma obtained Nagrik Suraksha Policy bearing cover note No. 641516 w.e.f. 24.01.2009 to 23.1.2010.  from the OP Insurance Company i.e. Oriental Insurance Company. On unfortunate early morning of 15.01.2010 (intervening night of 14/15.01.2010), father of the minor complainants was murdered while he was sleeping in his bedroom by the accused persons namely Satish Kumar, Nitin Sharma and his wife Smt. Hem Lata wife of Tek Chand Sharma deceased in collusion and in connivance with each other and a case was registered under section 302/120B IPC vide FIR No. 12 dated 15.01.2010 at P.S. Farakpur. After investigation, challan was forwarded and the accused were sent for facing trial before the learned Additional District & Sessions Judge, Jagadhri. However, it is pertinent to mention here that all the above three accused now have been convicted for the offence under section 302/120-B IPC for life imprisonment vide judgment dated 10.02.2012 in Sessions Case No. 62 of 2010 decided on 06.02.2012.

3.                     The deceased Tek Chand was insured under the policy noted above and in this policy, Smt. Hem Lata ( now accused No.3 in murder case) was shown as nominee. The applicants/complainants are the real children and only legal heirs of the deceased and nominee is not entitled under law for any amount under the policy as the murderer who commits murder or abets the commission of murder is disqualified from inheriting the property of the person murdered and the remaining legal heirs are only person entitled to get the amount/ benefits under the policy. Hence, the complainants had requested the OP to release the claim/all benefits to them under the policy but nothing was done by the OP. Ultimately, the complainants lodged the claim in writing vide registered letter dated 24.05.2010 and also sent the necessary photocopies of documents i.e. police report under section 173 Cr.P.C. PMR, and copy of cover note with application for processing the claim but the OP did not pay any heed due to reasons best known to them. The delay in settling the claim by the OP Insurance Company is illegal, misconceived and against the law and facts which constitute deficiency in service and unfair trade practice on their part. Hence this complaint. 

4.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service on the part of the OP Insurance Company; in this case the deceased/life assured late Sh. Tek Chand Sharma had obtained the Nagrik Suraksha Personal Accident Insurance policy from the OP Insurance Company bearing No. 261700/48/2009/2646 valid w.e.f. 24.01.2009 to 23.01.2010.  In the said policy Smt. Hem Lata wife of Sh. Tek Chand Sharma is the assignee. A claim was lodged with the OP Insurance Company by the complainants through one Mukesh Kumar Sharma brother of deceased/ insured vide their letter dated 24.05.2010 vide which it was informed to the company that the insured Tek Chander Sharma has been murdered in the intervening night of 14/15.01.2010 and the complainants requested to settle the claim under the policy in question. On receipt of the said intimation the Op Insurance Company deputed Sh. Anil Kumar Sharma to investigate the claim in question and to submit his report to the Op Company for settlement of the claim in question. the said surveyor submitted his report dated 10.11.2010 to the OP Insurance Company with the observation that the brother of the insured did not cooperate and did not provide the relevant/required documents including the claim form, ration card and legal heirs certificate etc. Thereafter, the Op Insurance Company further processed the claim and vide its letter dated 22.11.2010 desired the complainants through their uncle to submit the documents i.e. copy of ration card, legal heirs certificate, claim form duly filled by the assignee, judgment of criminal court which debars assignee Smt. Hem Lat wife of Tek Chand Sharma from claiming the amount under the policy in question. As per the said insurance policy the claim must arise out of the accidental bodily injury. The word “Accident” as per Chambers 20^th Century Dictionary means an unforeseen or unexpected event, happening by chance and the policy in question does not cover the murder as the same is not an accident but an intended act. It has been further submitted that under all the policy, Smt. Hemlata was the assignee of the life assured who is now facing trial under section 302/120B IPC in respect of murder of  her husband and in the light of fact that nominee is facing criminal trial of murder of her husband/life assured, the complaint in question is pre-mature and is liable to be dismissed and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.           

5.                     To prove the case, counsel for the complainant tendered into evidence affidavit of Sh. Mukesh Kumar Sharma as Annexure CX and photo copies of documents such as copy of application dated 24.05.2010 for lodging the claim as Annexure C-1, Photo copy of postal receipt as Annexure C-2, Copy of final investigation report under section 173 Cr.P.C. as Annexure C-3, copy of postmortem report as Annexure C-4, copy of judgment of Sessions case bearing No.62 of 2010 as Annexure C-5, Copy of ration card as Annexure C-6, Photo copies of insurance cover note as Annexure C-7 to C-11 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the Ops tendered into evidence affidavit of Sh.  R.S.Kalra, Senior Divisional Manager as Annexure RX and photo copies of documents such as copy of insurance policy alongwith terms and conditions as Annexure R-1,  copy of application dated 24.05.2010 for lodging the claim as Annexure R-2, Photo copy of investigation report as Annexure R-3, copy of letter dated 22.11.2010 for submitting documents as Annexure R-4 and closed the evidence on behalf of OP.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

8.                     It is not disputed that the deceased Tek Chand Sharma i.e. father of the complainants obtained Nagrik Suraksha policy bearing No. 261700/48/2009/2646 valid w.e.f. 24.01.2009 to 23.01.2010 for a sum insured of Rs. 1,20,000/- for personal accident and Rs. 30,000/- for hospitalization. . The only version of the complainant is that OP insurance company has wrongly and illegally withheld the genuine claim of the complainants whereas the complainants have made so many requests to release the claim and all other benefits under the policy. Learned counsel for the complainant further argued that only the minor children i.e. complainants are entitled to get the entire claim amount and benefits and the nominee i.e. Smt. Hemlata wife of deceased Tek Chand Sharma is not entitled to get any amount of claim as she has murdered her husband in collusion with two other persons and as per law, the murderer, who commits murder or abets the commission of murder, is disqualified from inheriting the property of person murdered and referred the case law Maya Devi Versus Life Insurance Corporation of India, 2008(3) CPC page 352 National Commission, Daya Rani & Another Versus Life Insurance Corporation of India, 2010(1) CPC page 110 (National Commission), Manda Savarna Versus LIC of India & Others, IV (2006) CPJ page 135 (N.C), Sumani Oraon or Subhani Oraon or Sobhani Oraon Versus National Insurance Corporation Ltd. & others, 2015(4) CLT page 415 and National and Vellikannu Versus R. Singaperumal & Another, 2005(2) RCR (Civil) page 603 Supreme Court of India wherein it has been held that Hindu Succession Act 1956, Section 25- Inheritance of property- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed a abetted the commission of the murder- A person who has murdered his father or a person  from whom he wants to inherit stands totally disqualified- A murderer is totally disqualified to succeed to the estate of deceased.

9.                     On the other hand, counsel for the Ops hotly argued at length that a complicated question of law and facts is involved in the present case and the present complaint cannot be decided in a summary nature as the Fora cannot decide the right to get the property i.e. share of property of deceased Tek Chand Sharma as the same is required to be decided by the Civil Court and draw our attention towards copy of judgment of Sessions case No. 62 of 2010 decided on 06.02.2012 (Annexure C-5) and argued that Smt. Hemlata wife of Sh. Tek Chand Sharma deceased life assured who was nominee in the policies in question has been held guilty alongwith two (2) other persons for the offence of murder of her husband deceased Tek Chand Sharma. Learned counsel for the Ops further argued that the claim of the complainants is still pending with the OP Insurance Company for want of necessary documents i.e. copy ration card, legal heir certificate issued by competent court of judicial, claim form duly filled by assignee, judgment of criminal court which debars assignee i.e. Smt. Hem Lata wife of Sh. Tek Chand Sharma from claiming the amount under the above policy,  which was requested to submit the same by the Ops Insurance Company vide its letter dated 22.11.2010 (Annexure R-4) but as the complainants have not submitted/fulfilled the required formalities. So, the claim of the complainant could not be decided and the complaint is liable to be dismissed being pre mature and referred the case law titled as Manjit Kaur and another Versus M/s Mahak Cosmetics and Credit Private Limited and others, 2015(1) PLR page 274 Punjab & Haryana High Court,  Jyothi Ademma Versus Plant Engineer, Nellore Thermal Station and another, 2006 ACJ page 2165 Supreme Court of India, New Delhi, Rita Devi and others Versus New India Assurance Co. ltd. And another, 2000 ACJ page 801,  Prithvi Raj Bhandari Versus Life Insurance Corporation of India Ltd. & others, 2006(3) CPJ page 213 (N.C) and Assistant Director State Insurance & GPF Deptt. & Another Versus Abdul Hameed & Others, 2006(2) CPC page 387 wherein it has been held that Consumer Protection Act-1986- Sections 14 & 15- Insurance Claim- Right of legal heir- Complaint filed by husband after death of his wife who was the policy holder- Dispute raised by insurer as to whether wife was divorced or not- Such question cannot be decided by Consumer Fora – Complainant should get his rights decided by competent court before claiming any amount under the policy- Insurance amount can be claimed only in accordance with law of succession to be decided by competent court.

10.                   After hearing both the parties and going through the contents of the complaint as well as reply, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of Op Insurance Company as in the present complaint complicated question of law and facts is involved which is yet to be decided by the competent court of law. From the perusal of copy of judgment of session case No. 62 of 2010 titled as State Versus Satish Kumar and others decided on 06.02.2012 by the court of Sh. Bimlesh Tanwar, Addl. Sessions Judge, Jagadhri under section 302/120B IPC, it is duly evident that Smt. Hemlata wife of deceased/life assured Tek Chand Sharma has been held guilty for the offence of murder of her husband/life assured Tek Chand and sentenced to life imprisonment. Further, from the perusal of the insurance policy in question, it is duly evident that Smt. Hemlata was the nominee in this policy. 

11.                   On the point of nomination in the insurance cases, Section 39 of the Insurance Act, 1938 (for short “the Act”) may be referred to Sub Section (6) of Section 39 of the Act confers on the nominee the rights to receive the insurance money but does not provide for the title or ownership of that money, If the nominee is a minor the proviso to Sub Section (1) empowers the insured to appoint another person to receive the money secured in the event of the insured dying during the minority of the nominee as a minor cannot give valid discharge and release the insurer.  Apart from this, nomination made under section 39 of the Act only indicates the hand, which is authorized to receive the amount on the payment of which the insurer gets a valid discharge of its liability under the policy and that the amount can be claimed by the heirs of the assured in accordance with the law of succession governing them as the language of Section 39 of the Act is not capable of altering the course of succession under the law.

12.                   Since in the present case also there is a dispute on the point whether the wife of deceased Smt. Hemlata who was nominee in the policy in question is debarred from getting her share in the property of deceased Tek Chand Sharma or not and further the complainants i.e. minor daughters namely Kajal, Rajani and son Kartik are the only legal heirs of the deceased insured Tek Chand Sharma are not yet to be decided by any competent court of law. Hence, we are also of the considered view that the complaint of the complainant is premature as these legal questions can be decided by the competent court of law/Civil Court. The law referred by counsel for both the parties are not disputed but not helpful in the present case at this stage. Moreover, Consumer Fora are not sitting to do the work of the insurance companies. Firstly it is the duty of the complainants to fulfill the necessary requirements by submitting demanded documents and to submit the same with the Op Insurance Company for taking decision as per terms and conditions of the insurance policies, then the court can decide whether the claim of the complainants was legally decided by the insurance company or not? 

13.                   Resultantly, we are of the considered view that there is no deficiency in service on the part of the OP Insurance Company as in the present complaint, the complainant failed to submit the necessary documents which were demanded by the OP Insurance Company vide letter dated 22.11.2010 (Annexure R-4), so the complaint of the complainant is pre-mature. Hence, the complaint of the complainant is disposed off accordingly with the direction to the complainants to firstly get decide the legal question from the competent court of law i.e. Civil Court in respect of share of the properties and including policy in question and submit all the documents with the OP Insurance Company i.e. Succession Certificate etc. required by the insurance companies and OP Insurance Company is also directed to settle the claim of the complainant within a period of 3 months after submitting the required documents.  Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583. A copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.22.09.2016.

 

                                                (S.C.SHARMA)                      (ASHOK KUMAR GARG)

                                                MEMBER                                 PRESIDENT.