IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> <br /> CC 460/09 DATED 10.02.2010<br /> ORDER<br /> <br /> Complainant Smt.Kalamma, <br /> W/o Late Ramegowda<br /> R/at Anandagere Village, harnahalli Hobli, <br /> Periyapatna Taluk.<br /> <br /> (By Sri.D.S.Shivaprakash, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Regional Manager, The Tobacco Board, (Ministry of Commerce, Govt. of India), D.No.CA-5673-C, 14th Main, II Stage, Near Yoganarasimhaswamy Temple, Vijayanagara, <br /> Mysore-570017.<br /> 2. The Branch Manager,<br /> Kotak Life Insurance, Seeyar Plaza, 102/04, 1st Floor, 136, Residency Road, Bangalore.<br /> (By Sri. B.Paneesh Kumar, Advocate for O.P.1 and<br /> Sri G.V.Ramamurthy, Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 09.12.2009<br /> Date of appearance of O.P. : 24.12.2009<br /> Date of order : 10.02.2010<br /> Duration of Proceeding : 1 MONTHS 16 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> <br /> MEMBER<br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay a sum of Rs.1,95,500/- the policy amount with interest and the damages.<br /> <br /> 2. In the complaint it is alleged that, husband of the complainant by name Ramegowda was a Tobacco grower. He was registered with first opposite party under TBGR No.6012096 dated 25.09.2006. He was growing tobacco and selling the same to the first opposite party. The first opposite party used to deduct a sum of Rs.1,227/- in order to remit it to the second opposite party towards yearly premium amount for insured sum of Rs.1,00,000/- under group insurance scheme. First opposite party has deducted said amount from the sale price of the tobacco and remitted the amount to the second opposite party. On 08.11.2006, husband of the complainant died. That was informed to the opposite parties with a request to disburse the compensation amount. Even legal notice was issued. Untenable reply was sent. The opposite parties colluding with each others without paying the amount under the group insurance scheme to the farmers are playing fraud. Whenever the complainant approached the opposite parties, they assured that the amount will be disbursed shortly. Till today, the opposite parties have not made payment. There is deficiency in service on the part of the opposite parties. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version has contended that, the complaint is not maintainable either in law or on facts. As regards the group insurance and deduction of premium out of the sale proceeds of the tobacco, is admitted. It is contended that, this opposite party forwarded the matter to the second opposite party for settlement of the claim of the complainant. For the reasons best known, the second opposite party kept on dozing the matter. The allegation that, there is collusion between the both opposite parties, is denied. So also, deficiency in service alleged, is denied. It is contended that, there was MOU dated 23.08.2006 between both opposite parties. As per the said group insurance policy, as many as 38,986 growers were provided insurance coverage, each for a sum of Rs.1,00,000/- collecting premium amount of Rs.1,200/- from each of them. Legal notice dated 23.08.2007 was sent by the first opposite party to the second opposite party to settle the claim. Another letter dated 22.12.2007 was written. Hence, there is no negligence or deficiency in service on the part of this opposite party. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party denying all most all the material allegations in the complaint, has contended that, the complaint is false, frivolous and baseless. It is stated that, there is no deficiency in service and as such this Forum has no jurisdiction to entertain the complaint. However, so far concerned to the group insurance scheme and the MOU between this opposite party and the first opposite party, is admitted. It is contended that, as per the contract, the first opposite party was required to submit member data including the age. Age of the husband of the complainant was mentioned 47 years. As per the policy condition, person should be within 69 years to avail the insurance cover. If at the later stage, it is found that, the age was wrongly disclosed was not eligible for insurance cover. After death of the husband of the complainant, it was found that, he was 72 years old as on the date of commencement of the policy. Hence, the claim was repudiated. It is stated that, the complainant is not a consumer. Parties to be contract and insurance are bound by the terms and conditions. Certain terms and conditions of the policy are narrated. On these grounds it is prayed to dismiss the complaint.<br /> <br /> 5. To prove the facts alleged in the complaint, the complainant has filed her affidavit and certain documents are produced. For the first opposite party, the Regional Manager has filed his affidavit and for the second opposite party, the Chief Manager has filed his affidavit. For the opposite parties, certain documents produced. We have heard the arguments of the learned advocates for the complainant as well as both opposite parties and perused the records.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the both opposite parties or any of the opposite parties and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The claim has been repudiated by the second opposite party Insurance Company only on the ground that member data as to the age of the deceased certified by the first opposite party was 47 years, but on investigation, it is found he was 72 years. As per the terms and conditions of the policy, no member will be covered above 69 years. As regards proof of age, further term and condition of the policy is that, a person to be covered under the policy must full within age range and if at a future date, the age is found different from the age declared, without prejudice to the company’s other rights and remedies including those under the insurance Act and any other laws then prevailing, the company will have the right to refuse the claim in respect of the concerned member and the company may at any time call for proof of age from the policy holder of the concerned member insured and the policy holder or member must provide the same. Thus, terms and conditions of the policy are not at all in dispute.<br /> <br /> 9. From the terms and conditions of the policy, it is clear that, no member will be covered above the age of 69 years. In the case on hand, after claim was submitted, second opposite party made investigation and found the age of the deceased was 72 years. At the time of the policy, the first opposite party certified age of the deceased as 47 years. So far concerned to the fact that, at relevant date the deceased was 72 years, is not disputed before the Forum. The complainant has not produced any documents to show that on the relevant date, the deceased was not above the age of 69 years. To substantiate the contention that the deceased was aged 72 years on the relevant date, certain documents including election I.D. card are produced. Considering the evidence on record, we have to accept that the age of the deceased on the relevant date was 72 years. Consequently, we have to conclude that, as per the terms and conditions of the policy, the deceased was not eligible to be covered.<br /> <br /> 10. But, the point would be, who is at fault. It is not at all denied or disputed by the first opposite party that, it certified the age of the deceased as 47 years. Further, according to the first opposite party whatever age was informed was forwarded to the second opposite party. In this regard, as per the terms and conditions of the policy and the memorandum of understanding, the first opposite party tobacco board shall have to “certify” the age of the member to the second opposite party Insurance Company. It is not only forwarding some message or information by the first opposite party to the second opposite party. As noted above, the first opposite party shall have to “certify” the age of the member. Dictionary meaning of the word ‘certify’ is a written declaration made known as “certain”. Thus, it was the duty of the first opposite party to ascertain the age of the deceased member and then to certify the same. In the case on hand, absolutely there is no evidence on record to show that, the first opposite party made any enquiry and ascertained the age of the deceased member was 47 years. As could be seen from the memorandum of understanding and the terms and conditions of the policy, the responsible officer of the tobacco board has to certified the age of the member. As stated above, it is not just forwarding certain information, but certification. Forwarding of information can be done by even ordinary peon in the office or a postman. For that, responsible officer of the tobacco board is not necessary. As per the agreement, responsible particular class of officer of the tobacco board has to certify the age of the member. Hence, under the circumstances, negligence on the part of the first opposite party can certainly be attributed, under the circumstances.<br /> <br /> 11. So also, it is relevant to note that, when the second opposite party insurance company has received the premium and issued policy covering the deceased, it had also certain duties and responsibilities. Till the claim was made, the second opposite party kept quite blindly accepting the age of the deceased that was certified or forwarded by the first opposite party. As per the clause 13 of the MOU, second opposite party had obligation to organize meeting at floor level to enlighten the tobacco growers on the terms and conditions and benefits of the policy. On record, absolutely there is no cogent and acceptable evidence to hold that in fact second opposite party had organized such meeting or meetings at floor level and tobacco growers were enlightened about terms and conditions and benefits of the policy.<br /> <br /> 12. Having observed that the first opposite party as well as second opposite party have not discharged their obligation or responsibilities properly, what about the deceased or the present complainant also needs to be considered. As noted above, first opposite party contend that, whatever age the member had furnished, was forwarded. It is true, first opposite party had an obligation to ascertain the truth or correctness of the age furnished by the deceased. At the same time, in the absence of non-furnishing of age by the deceased, the first opposite party could not have come to know or reason to note the age as 47 years. As mentioned earlier, it is not at all the case of the complainant that, age of the deceased was not more than 69 years at relevant point of time. In this background, conduct of the complainant also needs to be noted. Nowhere in the complaint, the complainant has mentioned regarding the age of the deceased at relevant point of time. So also, the complainant has not all mentioned in the complaint that the second opposite party had repudiated the claim on the ground of age. Hence, we have to take that the complainant has purposely not mentioned it. Because, as could be seen from the documents produced by the second opposite party, in the year 2006 itself claim was submitted and the second opposite party after holding enquiry found that age of the deceased was 72 years and on that ground, repudiated the claim and informed the same to the first opposite party by the letter dated 23.02.2009 which is on page 49. When in the year 2007 itself on the ground of age only claim was repudiated, the complainant ought to have disclosed this fact in the complaint and could have come forward claiming that the age of the deceased was not more than 69 years. Also, it is relevant to note that, complainant had filed an application under section 5 of the Limitation Act to condone the delay and in the accompanying affidavit, the fact of repudiation of the claim by the second opposite party was not disclosed. On the other hand, it is stated in the affidavit that whenever complainant approached first opposite party, was telling that the amount will be disbursed by the second opposite party shortly. But, as noted above, in the year 2007 itself second opposite party has repudiated the claim and hence, giving such information as claimed must be incorrect or false. At the same time, further it is relevant to note that, the first opposite party has contended that after the death of the deceased, matter was forwarded to the second opposite party for settlement of the claim and also it is stated, in the month of August and December 2007, it had sent notices to the second opposite party. But, as noted above, in the month of February 2007 itself the second opposite party repudiated the claim and informed the same to the first opposite party, when repudiation of the claim was intimated by the second opposite party to the first opposite party in the month of February 2007 itself, again issuing notice by the first opposite party in the month of August and December 2007, was not relevant and necessary. It is true, believing the facts stated in the affidavit, we have condoned the delay and allowed the application of the complainant under section 5 of the Limitation Act. If repudiation of the claim in the month of February 2007 was disclosed then certainly within two years from that date, the complaint was to be filed and the present complaint being filed beyond two years from the said date, is not in time. Of course, however, since we have already condoned the delay, that point again need not be agitated, but we have mentioned these facts just to point out to conduct of the complainant.<br /> <br /> 13. For the complainant, a ruling reported in II (2007) CPJ 38 is relied upon. In this ruling, the Hon’ble National Commission with reference to facts of that case, held that the employer of the group insurance scheme being the agent of the insurance company, is liable. The plea of the insurance company was the death of the employee covering under the group insurance policy had taken place much before receipt of the premium amount. In view of that fact, the employer was held liable. But, such are not the facts of the case on hand.<br /> <br /> 14. Considering the facts, evidence and discussion made here before, repudiation of the claim by the second opposite party cannot be held as unjust or illegal. Consequently, no deficiency in service has been proved by the complainant against the opposite parties.<br /> <br /> 15. Accordingly, our finding on the above point is in negative.<br /> <br /> 16. Point No. 2:- From the discussion made here before and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. There is no order as to costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 10th February 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />