West Bengal

Dakshin Dinajpur

CC/10/8

Farida Bewa - Complainant(s)

Versus

The Manager - Opp.Party(s)

Anish Das

20 Jul 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 8/2010

Farida Bewa

W/o Lt. Seraj Ansari

Vill. & P.O.: Daralhat, P.S. Tapan

Dist- Dakshin Dinajpur..……………………………Complainant

V-E-R-S-U-S

1. The Manager,

Bajaj Allianz General Insurance Co. Ltd.

Poddar Court, Gate No. 3, (7^th Floor),

18, Rabindra Sarani, Kol-700071.

2. The Branch Manager,

Golden Trust Financial Services,

P.O. & P.S. Balurghat,

Dist-Dakshin Dinajpur.…………………Opposite Parties

For complainant ……- Sri Anish Das, Ld. Adv.

For OP 1 ……………- Sri Ld. Adv.

For OP 2 ……………- Sri Bidyut Kr. Roy, Ld. Adv.

Date of Filing : 17.03.2010

Date of Disposal : 20.07.2011

Judgment & Order dt. 20.07.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Smt. Farida Bewa on 17.03.2010 against an official of Bajaj Allianz G.I.C. Ltd. and against an official of G.T.F.S. alleging deficiency in service.

Complainant’s case as made out in the said complaint, in brief, is that on being attracted by the terms and conditions of the Personal Accident Insurance Policy her husband Seraj Ansari took from the OP-1 Bajaj Allianz GIC Ltd. through the GTFS, Balurghat Branch, a Personal Accident Ins. Policy bearing No.OG-05-2401-9960-00000041 having period of coverage from 24.05.2005 to 23.05.2010. The complainant was made the nominee respecting the policy. The sum assured under the policy was Rs.1 lac.

Suddenly, the said Seraj Ansari received burn injury on 26.05.07. He was taken to Balurghat Sadar Hospital where from he was referred to SSKM Hospital in Kolkata. Ultimately he succumbed to the said injury on 4.6.07 living behind him the widow i.e. the complainant, one minor daughter & two minor sons.

In view of the demise of the life assured, the complainant having been the nominee under the policy, submitted claim for the benefit under the policy. On being instructed by the OPs she also submitted death certificate, PM report, Ins. certificate and a number of other documents.

OPs adopted dilatory tactics in the matter of settlement of the claim and ultimately the claim was repudiated under letter dated 09.08.2008 alleging inter allia that the policy had been obtained by misrepresentation and that the signature of the insurer appearing on the concerned proposal form differed from that appearing on a Bank Loan passbook. The said repudiation has been made unjustly for the purpose avoiding the liability aiming at unlawful gain. In the backdrop of such circumstances the complainant brought the complaint praying for a direction upon the Ins. Co. to pay the complainant a sum of Rs. 1 lakh being sum assured under the policy and a further sum of Rs. 5,000/- by away of compensation for harassment and mental agony suffered by the complainant.

The proceeding has been contested on behalf of the Insurance Company and on behalf of GTFS by presenting separate written versions on 10.08.2010 and 04.05.2010 respectively.

The OP-2 GTFS in its written version stated that in terms of the memorandum of understanding executed between it and the OP-1 it extended the coverage of the policy of Insurance issued from the OP-1 to the complainant and that following submission of claim application by the complainant it duly forwarded such application to the OP-1 on 14.08.2007. Further, such OP-2 subsequently forwarded several other documents to the OP-1 which had been submitted before it by the complainant on being instructed from the insurance company under their different letters dated 11.12.2007,15.01.2008 and 22.05.2008. It is the OP-1 Insurance Co. which has the exclusive right to settle the claim. OP-2 is not responsible for the repudiation of the claim. There was, in fact, no deficiency in service on the part of such OP 2.

OP 1 – the Manager, Bajaj Allianz GIC in his written version dt. 10.8.10 disputed the material averments of the complaint, assailed the maintainability of the proceeding and stated that the signature of the said Seraj Ansari appearing on the proposal form for the policy grossly differs from that appearing on a copy of a Bank’s Passbook and so it was clear that the proposal form for the policy had not been signed by the said Seraj Ansari and so it has to be regarded that the policy in question had been obtained by misrepresentation. In the premises, the complaint warrants dismissal.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding maintainable ?

2. Was there deficiency in service on the part of OPs?

3. Is the complainant entitled to the reliefs sought for in the complaint?

Decision with reasons

Complainant’s averments made in her POC appears to have been verified by the complainant herself. She did not examine any witness but brought on record, beside others, several documents as documentary evidence. Such documentary evidence includes the original death certificate as Ext.10, copy of the FIR as Ext.9, copy of report u/s 174 CrPC as Ext.8, injury report as Ext.2 and the letter of repudiation issued from the OP 1 Insurer as Ext.1.

No evidence had been adduced by OP 2 but the averments made in its written version are supported by verification. Such written version also encloses copies a number of letters issued from their end to the OP 1 Ins. Co.

Ins. Co. OP 1 also did not adduce any evidence but the averments made in its written version appear to have been verified by its Sr. Legal Executive. OP 1 insurer also filed in this case on 17.6.11 copies of two documents, namely, complainant’s letter addressed to the OP 1 and that of a report of hand writing expert over comparison of impressions of signature.

No other evidence was adduced in the case though opportunity was given from the end of the Forum. Let us now enter into the determination on the three points formulated above:-

Point No.1:

In course of hearing the maintainability of the proceeding has been assailed by the Ld. Counsel for the OP 1 Insurer only on the ground that the proceeding is bad for non-joinder of other heirs left by the deceased policy holder as parties to the complaint. Contention advanced from the side of the complainant was that as the complainant figured as the nominee in the concerned insurance policy, she alone could have brought the complaint seeking benefits payable under the policy.

The complainant’s averments made in her POC that her husband i.e. life assured under the policy in question, died living behind him the complainant and three minor issues who now remain under her guardianship do not appear to have virtually been disputed in this case. It also goes undisputed that the complainant figured as the nominee respecting the policy.

In the context of insurance nominee is the person who has been nominated to receive the amount due under the concerned policy and to give a valid discharge to the insurer on settlement of the claim under the policy. As the complainant is entitled to give a valid discharge to the insurer in the event of the settlement of the claim under the policy, we think that the complaint brought by her virtually for the benefit cannot be said to have been bad non-joinder of party.

No other point was urged assailing maintainability. From a consideration of the materials on record and the circumstances, we thus decide the Point No.1 holding that the present complaint brought by the complainant, is maintainable.

Point No.2:

The documents filed on behalf of the parties in this case go to indicate that the complainant’s claim for the benefit under the policy was submitted in or about the middle of August, 2007. The OP 1 rejected the claim on 9^th of August, 2008.

In course of hearing it was urged by the Ld. Counsel appearing for the OP 1 Ins. Co. that in course of the process of settlement the OP 1 under its letter dt. 22.5.08 called for from the complainant documents bearing specimen signature of the insured and that the complainant in response submitted copy of a bank loan passbook. The OP 1 got the signature appearing on the proposal form examined by a hand writing expert who having compared the signature of the policy holder appearing on the proposal form with the signature appearing on the bank loan passbook opined in his report that the two signatures were not by the same hand and so it has to be regarded that the policy was obtained by misrepresentation and for that rejection of the claim cannot be viewed to have been deficiency in service.

Contention advanced by the Ld. Counsel for the complainant, on the other hand, was that neither the report of hand writing expert has been brought on record as piece of documentary evidence nor the concerned expert has been examined before this Forum and so it cannot be regarded that the two signatures actually differed. It has further been urged by him that once the policy was issued, such policy could not be disputed by the Ins. Co. during the validity period of the policy and that in the situation, rejection of the claim on ground of difference in signatures amount to deficiency in service. To strengthen to his such submission Ld. Counsel made reference to a decision of the Hon’ble West Bengal State Commission made in the case of ICICI Ltd. & Ors. vs. Shankari Chattopadhyay & Anr. reported in 2011 (1) CPR 103. It has been observed in such decision that the objective of insurance policy is not to deprive bona-fide insurer but to accommodate insured so that insured gets her dues in due course of time.

Ld. Counsel for the OP 2 GTFS urged that the difference in signature could not be a ground for the repudiation or rejection of the claim.

We have carefully taken into consideration the said submissions advanced on behalf of the sides and the materials brought on record in the instant case.

In Ext. 1-the OP 1’s letter dt. 9.8.08 addressed to the complainant it has been stated that it revealed that the signature of the proposer Seraj Ansari appearing on the proposal form grossly differed from the signature of such Seraj Ansari appearing on the bank loan passbook and that this shows that the said Seraj Ansari had never signed the proposal form. It has further been stated therein that as the policy in the name of the said Seraj Ansari had been obtained by misrepresentation, the Ins. Co. by invoking their right cancelled the policy ab initio and so the Ins. Co. could not process the claim.

Here the OP 1 filed on 17.6.11 copy of the complainant’s letter addressed to it and that of a purported report of a hand writing expert to substantiate their claim that on comparison by an expert it was found that the signature of Seraj Ansari appearing on the proposal form and the signature appearing on the bank loan passbook standing in the name of complainant were not by the same hand but neither the concerned hand writing expert has been examined before this Forum nor the report of the examination has been brought on record as a piece of documentary evidence.

However, even if we accept that the signature appearing on the proposal form for the policy and the signature appearing on the passbook purported to be signature of the Seraj Ansari were not made by the same person as has virtually been claimed in the expert’s report filed on behalf of OP, we do not think that the Ins. Co. could have invoked the right to cancel the policy ab initio as has been claimed to have been made in the Ins. Co.’s letter dt. 9.8.08 brought on record by the complainant as Ext. 1 for the reasons stated hereinafter.

When two signatures differed with each other it does not necessarily signifies that the signature appearing on the proposal form is not the signature of the deceased Seraj Ansari.

That apart, Sec. 45 of the Insurance Act, 1938 states that no policy of life insurance shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that the statement made in a proposal for insurance or in any other document leading to the issue of the policy was inaccurate or false unless the insurers shows that such statement was on a material matter and fraudulently made by the policy holder.

In fact, for a policy to be disputed by the insurer at a time after the expiry of two years from the commencement of the policy, the insurer has to establish, beside others, that the statement was made fraudulently.

Here it goes undisputed that the policy was made effective w.e.f. 24.5.2005. OP-1’s letter indicating rejection of the claim purports that such policy has been disputed on 9.8.08 i.e. after the expiry of over three years from the commencement of the policy. Here no evidence has been adduced from the Ins. Co. to show that the signature appearing on the proposal form purported to be signature of the policy holder Seraj Ansari was actually made fraudulently i.e. with intent to defraud or with the intention to deceive the Ins. Co. In the circumstances appearing before us such fraudulent intention cannot readily be inferred.

In view of provision of Sec. 45 of Insurance Act, 1938 the OP 1 insurer, therefore, could not avoid the contract of insurance and reject the claim of the complainant on that ground. Such rejection of the complainant’s claim alleging cancellation of the policy abinitio amounts to deficiency in service on the part of the Ins. Co.

Here not only the claim for the benefit was rejected, such rejection was made on 9.8.2008. The claim of OP 2 that they forwarded the complainant’s application to the OP 1 insurer after their initial scrutiny on 14.8.07 does appear to be in dispute. So the OP 1 rejected the complainant’s claim roughly about a year after the submission of the claim.

Copy of OP 1’s letter dt. 15.1.08 and 22.5.08 filed on behalf of OP 2 go to indicate that even after submission of all reasonably material papers before 15.1.08 the OP 1 insurer under their letter dt. 22.5.08 demanded submission of authenticated document bearing specimen signature of the insured and copy of driving licence, PAN card, if at all. Laying of demand for such documents despite submission of all other material documents earlier at a time after about four months persuade us to accept the case of the complainant made out in the complaint that the OP 1 adopted dilatory tactics in settling the claim.

Lack of sincerity in proceeding with the matter of settlement also amounts to deficiency in service.

The allegation of deficiency in service made in the complaint is virtually against the OP 1 Ins. Co.

We thus decide the Point No. 2 holding that there was no deficiency in service on the part of OP 2 but there were deficiency in service on the part of OP 1 in as much as they rejected the claim for the benefit improperly and that too, after expiry of about of a year since the submission of the claim without having remained sincere in settling the claim.

Point No.3:

In the complaint the complainant has prayed for a direction for making payment of a sum of Rs. 1,00,000/- being the sum assured under the policy, interest thereon and a further sum of Rs.5,000/- as compensation.

We have in course of our determination on Point No.2 found that the OP 1’s rejection of the complainant’s claim on 9.8.08 treating that the policy remained cancelled ab initio, has been improper.

Here from a consideration of the circumstances and the materials on record, in particular, having kept in view the Post Mortem Report Ext.9, Report u/s 174 CrPC Ext.8, injury report Ext.2, we find reasons to infer that the death of the life assured under the policy – Seraj Ansari took place on 4.6.07 as a sequel to an accidental burn injury sustained by him a number of days back at his residence. In the situation, the complainant having been the nominee under the policy is entitled to be paid by the OP 1 insurer the sum of Rs. 1 Lakh having been the sum assured under the policy.

In the circumstances, we think it proper to allow the complainant to be paid interest on the assured sum @ 10% p.a. w.e.f. 9.8.2008 the date of rejection of the claim by the OP 1.

In view of allowing of interest we do not deem it proper to allow any amount to be paid by way of compensation. As deficiency was on the part of OP insurer it would be proper to direct the OP 1 Ins. Co. to make the payments.

Point No.3 is thus answered.

In the result, the complaint succeeds.

The date of completion of service of notice upon the OPs is not apparent from the case record. However, it appears that the two OPs entered appearance in the case on 20.4.10 which was initially fixed in the case for S/R & appearance. Instant proceeding is thus getting disposed of about 1 year 3 months after the OPs’ entering appearance in the case. This is, as it appears from the case record, in view of adjournments sought for mainly from the side of the OP 1 either for presenting w/v or for hearing.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Smt. Farida Bewa on 17.3.2010 is allowed on contest.

The OP 1 insurer shall pay to the complainant a sum of Rs. 1,00,000/- (Rs. One lakh) only having been the sum assured under the policy bearing No.OG-05-2401-9960-00000041 by way of benefit under such policy in view of demise of the holder of the policy and interest over such amount @ 10% p.a. w.e.f. 9.8.08 till actual payment.

The OP 1 shall make the payment aforesaid within a period of 60 days from the service of copy of this order upon him.

In the event of failure in making payment aforesaid or any part thereof the complainant shall have the liberty to put this order in execution.

Let plain copies of this order be furnished to the parties forthwith free of cost.

Dictated & corrected

(B. Niyogi)

President

We concur

(Swapna Saha)

Member

(S.K. Ghosh)

Member