Very briefly the case of the complainant is that his diseased husband had two insurance policies with the OP – (1) Policy No. 100300/47/2K/9601062/2K/96/00347 for Rs. 50,000/- which was valid for the period from 31-03-2001 to 30-03-2016 (ii) Policy No. 100300/47/01/9600022/03/96/30142 for Rs. 5 lakhs for the period from 23-07-2003 to 22-07-2018.  The said insured husband of the complainant died of motor accident on 15-11-2009 which occurred at Pairachali under PS Tamluk and subsequently the complainant lodged insurance claim with the OP Insurance Co. in respect of the aforesaid insurance policies.  However, the OP refused to settle her claim compelling her to file the instant complaint seeking relief as per prayer of the complaint.

The OP contested the case by filing written version on 05-04-2012.  They also filed additional Written Version on 07-05-2012 by which all the material allegations made against them by the complainant in her complaint have been denied.  It has been stated inter alia that the instant case is bad for defect of parties – non-joinder of M/s Golden Multi Services Club Ltd. of Golden Trust Financial Services.  Besides, the insured suppressed about existence of previous policy no. 100300/47/2K/9601062/2K/96/00347 for Rs. 50,000/- while applying for the 2^nd insurance policy for Rs. 5 lakh.  It is further alleged by the OP that the complainant also made false statement about his income.  Hence, they prayed for dismissal of the instant case.

Points for consideration

1. Whether the complainant is a consumer under the Consumer Protection Act?
2. Is there any deficiency in service on the part of the OPs?
3. Whether the complainant is entitled to get any relief as sought for?

Decisions with reasons

Point nos. 1,2 & 3;

All these points are taken up collectively for the convenience of discussion.

Admittedly the complainant is the sole nominee of insured Ranjit Ghosh, since deceased, being his wife in respect of both the polices.  So, it can safely be said that the complainant is a consumer under the OP in respect of both the policies and hence, the instant case is maintainable in its present form.

The main grievances of the OP are –

1. The complainant suppressed material fact by not disclosing the existence of another policy for Rs. 50,000/- while applying for the second policy of Rs. 5 lakh.

2. The case is bad for defect of parties as the complainant has not impleded Golden Multi Services Club Ltd. of Golden Trust Financial Services as party in the present case.

The ld. advocate appearing on behalf of the complainant contended that income of a person does not remain same all the time; it changes from time to time and that at the time of availing of the aforesaid policies, he made correct declaration with regard to his income; that as per sec. 45 of the Insurance Act, no policy can be called in question on the ground of mis-statement after a lapse of 2 years as has been done in the instant case.  In support of his contention, ld. Advocate for the complainant draws our attention to a case law P.C.Chacko & Anr. Vs. Chairman, LICI reported in III (2008) CPJ 78 (SC). 

We have carefully gone through the photocopies of documents submitted by the parties on record and considered the submission of ld. advocates of both sides.  It may be mentioned that no oral evidence has been adduced on behalf of either of the parties.

Admittedly, the insured namely Ranjit Ghosh, since deceased, had two insurance policies as mentioned above and that the complainant is the sole nominee as wife of the deceased insured in respect of the aforementioned policies.  It is also not in dispute that the complainant lodged insurance claim in respect of these policies with the OP after the death of insured (who died on 15-11-2009). 

It is contended on behalf of the OP that they nullified the claim of the complainant on account of suppression of material fact viz declaration of wrong information about the income of the deceased insured and non-disclosure of the fact about the existence of another policy while applying for the second policy.  In this regard we are to say that mere allegation is not suffice to substantiate a claim.  In order to prove the allegation, the OP ought to have produced the proposal form in respect of the second policy of the deceased insured, which they did not place before us.  Although the OP has submitted a copy of their letter dt. 14-04-2012 issued by one Sri J. B. Mahapatra, Sr. Divisional Manager of OP Insurance Co. addressed to Smt. Resham Banerjee, Sr. Divisional Manager of OP’s Haldia branch in support of their contention, we cannot arrive at a decision by taking cognizance of a plain photocopy of their inter office communiqué.  Even for argument’s sake if it is assumed that there were indeed some inconsistencies as alleged by the OP, then also, the onus lies with the OP to prove that those facts were material to disclose.  Unfortunately, the OP has not come up with any convincing explanation/cogent document to show any clause under the Insurance Act wherefrom the veracity of OP’s contention can be ascertained. 

In a desperate bid to prove his contention, ld. Lawyer for the OP drew our attention to a form (which they submitted along with their written argument as Anx. ‘A’) which was filed by the complainant before the Tribunal, District Judge, Purba Medinipur in connection with Claim Case no. 118/2011 seeking compensation u/s 163A of the M.V. Act.  The ld. Advocate contended by drawing our attention to Cl. No. 6 of the said form that the complainant  showed the income of her deceased husband, Ranjit Ghosh as Rs. 3,300/- p.m. in the said form although the said deceased Ranjit Ghosh declared his income while applying for second insurance policy as Rs. 9,000 p.m.  Such an assertion on the part of the OP sounds really ridiculous in view of the fact that the said Claim Form was filed before the Tribunal, District Judge, Purba Medinipur in the year 2011 whereas the deceased insured declared his income, while applying for the second policy, in the year 2003 and variation in income of a person certainly does not fall within the realm of improbabilities.  In any case, Sec. 45 of the Insurance Act postulates repudiation of insurance policy within a period of two years.  By reason of the aforementioned provision, a period of limitation of two years had, thus, been specified and on the expiry thereof the policy is not capable of being called in question, inter alia on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder knew at the time of making it that the statement was false.  Admittedly, the OP called in question the income of the deceased insured after a lapse of more than 2 years from the date of issuance of 2^nd policy in question, which is not tenable.

Admittedly, the OP issued the second policy in the year 2003 and renewed it periodically during the period from 2003 to 2009 upon receipt of insurance premium from the insured Ranjit Ghosh, since deceased.  It is indeed strange that all these facts did not struck their mind before issuance of policy in favour of the said insured although it is obligatory on the part of the insurer to verify every aspect of the proposal form prior to issuance of policy certificate.  They cannot escape their responsibility simply by pretending that they acted in good faith. 

Another objection raised on behalf of the OP is that the case is not maintainable for defect of parties.  It is contended on behalf of the OP that the complainant has not impleded Golden Multi Services Club Ltd. of Golden Trust Financial Services in the instant case although they are a necessary party in this case.  In this respect we are constrained to say that such notion on the part of the OP is totally a misconceived one as because the insurance policy was issued by the OP insurer itself and they also received premiums from the deceased insured from time to time. Golden Multi Services Club Ltd. of Golden Trust Financial Services only acted as a facilitator to help Ranjit Ghosh, since deceased, get the insurance policy in their capacity as the authorized collection agent of OP insurer and any dispute arising out of the bilateral MoU dt. 02-04-2004 executed by and between the OP  and Golden Multi Services Club Ltd. of Golden Trust Financial Services was an internal matter between them and a policy holder has got nothing to do with such dispute.  Therefore, we have no qualms to hold that Golden Multi Services Club Ltd. of Golden Trust Financial Services is not a necessary party in the instant case and thus, the case does not suffers from defect of parties. 

Summing up everything we hold the OP responsible for deficient in service as we do not find any cogent reason behind such repudiation of said claim by the OP.  In our considered view, therefore, the complainant is entitled to get the claim of Rs. 5,50,000/- along with accrued dividend according to the rules and regulations of the Insurance Act besides compensation Rs. 5,000/- and cost Rs. 2,000/-.

Thus, all these points are disposed in favour of the complainant.

Hence, it is

Ordered

that the instant CC complaint no. 01/2012 be and the same is disposed of in part in favour of the complainant.  The OP is directed to pay Rs. 5,50,000/- together with dividend as applicable and compensation Rs. 5,000/- besides litigation cost Rs. 2,000/- within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law in which case the OP will be liable to pay interest over the total amount @ 8% p.a. from the date of filing of this case till full and final settlement.

Dictated and corrected

by me

                         President

S.S. Ali                                                A.K. Bhattacharyya

Member                                               President