DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO.16/2007 Date of filing of the Case: 15.02.2007 Complainant | Opposite Parties | Sabera Bibi(24 years) Wife of Late Asakh Ali, Resident of Gangaprosad, P.S.- Kaliachak, Dist. Malda. | 1) | The Zonal Manager, Life Insurance Corporation of India, Eastern Zonal Office, 4, C.R. Avenue, Hindustan Building, Kolkata – 700 072.. | 2) | Life Insurance Corporation of India, Jalpaiguri Division, Jeevan Prakash, P.O. & Dist. Jalpaiguri.. Notice to be served upon the Divisional Manger, Jalpaiguri Division, Jeevan Prakash, P.O. & Dist.- Jalpaiguri. | 3) | Branch Manager, Branch –I, L.I.C.I., Malda Branch, ( Near Elit Corner), P.S. –English Bazar, P.O. & Dist. Malda. |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Dibyendu Banerjee, Advocate For the O.P.s : For O.P.Nos. 2 & 3 Narendra Mohan Majumdar Advocate Order No. 20 Dt. 21.08.2007 Specific allegation of the petitioner against the O.P.s is that the husband of the petitioner Asakh Ali subscribed one L.I.C. policy vide No. 451809567 of Rs. 40,000/- with L.I.C., Malda branch in the year 2001. The policyholder could not make payment of premium due on 28.11.2001 and subsequently on 21.06.02, the department revived the policy on prayer and receipt of full due premiums. The present petitioner was declared as nominee. The insured Asakh Ali expired at Ballyganj Maternity and Nursing Home in Kolkata due to cardiac respiratory failure. Thereafter, the petitioner approached the O.P.s and submitted claim from alongwith relevant documents for payment of insured amount but the O.P. repudiated the claim vide there letter No. 29.04.2004 directing no further representation will be entertained. The petitioner on several occasions visited the O.P.s upto May 2005 and his lawyer also issued notice on 02/01/2007. But the O.P.s intentionally deprived of the petitioner from her legitimate claim giving rise to the present complaint for the reliefs as have been mentioned in the petition. O.P. No.1 ( Zonal Manager L.I.C., Eastern Zonal Office, 4, C.R. Avenue, Hindustan Buildings, Kolkata – 700 072) has not turned up inspite of service of notice. Hence, the case against him is disposed of exparte. Contd.P/2…… P – 2 O.P. No. 2 & 3 (Life Insurance Corporation of India, Jalpaiguri Division, Jeevan Prakash, P.O. & Dist. Jalpaiguri & Branch Manager, Branch –I, L.I.C.I., Malda Branch, Near Elit Corner, P.S. –English Bazar, P.O. & Dist. Malda.) contest the case by filing a joint written version denying all material allegations and submitted that O.P.s have repudiated the claim due to false statement and suppression of material facts by the deceased insured at the time of purchase of the policy. On pleadings of both parties the following points have been emerged: Point No. 1 Whether the petitioner be termed as ‘Consumer’ in terms of Sec. 2(1)(d) of the Act ? Point No. 2 Whether the service of the O.P.s suffers from deficiency? Point No. 3 Whether the petitioner is entitled to get the reliefs as prayed for? :DECISION WITH REASONS: Point No. 1 The word ‘Consumer’ has been defined in Sec. 2(1)(d) of the Consumer Protection Act. A plain reading of Clause (ii) of sub sec. (1) of Sec. 2 of the Act. which specifically pertains to the hiring of services, would make it manifest that the statute visualizes two distinct categories of ‘Consumer’s’ thereby. Inevitably the first one is the original ‘consumer’ who hires such services for a consideration. The definition, however, does not stop at that. It proceeds further to bring within its ambit a second category also, namely, any beneficiary of such ‘Services’ when these are availed with the approval of the original consumer. The definition, is , thus, an inclusive and extensive one. Designedly, it brings within its scope not only the person, who has the privity of contact with the person hiring out the services but also subsequent beneficiaries thereof, even though the latter may not be a party to the original contract or have a direct nexus therewith. Since the present petitioner, as the wife of the deceased, and a declared nominee as is evident from Ext-1 has filed the present case, there appears privity of contract between the parties since the wife, the present petitioner, of deceased Asak Ali has been made nominee, the petitioner has cause of action and locus standi to make the claim. Thus, the present petitioner has become ‘Consumer’, as has been defined in Sec. 2(1)(d) of the Consumer Protection Act which disposes of the present petition in the affirmative. Point Nos. 2 & 3 Both the Point Nos. 2 & 3 are taken up together for simultaneous disposal u/s 2 (1)(0) of the Consumer Protection Act 1986. The definition of the term ‘Service’ is very comprehensive. The word ‘Service’ has to be construed in the context of the definition of the word Consumer Service u/s 2 (1)(0) of the Act does not mean and include every kind of service. In the instant case it means and includes such service as is rendered against payment of money that is, the facility in connection with insurance and insured, the Act has given a right to every insured consumer the benefits of cheap and speedy remedy. Contd.P/3………… P – 3 It is an agreement between two persons (insurer and insured) that in consideration of comparatively small payment (the premium) by the insured, the insurer will; on a certain even happening during a specified time pay to assured by the even. Insurance is a contract when the insurer fails to abide by the undertaken given by it in presence of a contract or otherwise; there is deficiency in relation to the service. In the instant case the petitioner; the wife of the deceased insured has examined herself as PW-1 and in course of her evidence has produced some documents which have been marked Ext-1 to 5 and has claimed to be the nominee in respect of the sum assured. Admittedly, the petitioner has filed death certificate of her husband (Ext-2), which reveals that insured Asakh Ali expired on 24.06. 2002. On scrutiny of records it appears that the petitioner has submitted the claim form and other relevant documents to L.I.C.I. as it appears from the memo of repudiation of the claim (Ext-3). Ld. Counsel for the insurer has taken the stand in their reply and had submitted that the deceased Asakh Ali was undisputedly admitted at Ballygunge Maternity and Nursing Home, Kol-19 as is evident from the petitioner’s own statement vide Ext D where he received treatment from 22.06.2002 to 24.06.2002 and the immediate cause of death has been shown therein as cardio-respiratory failure on 24.06.2002. Said Ext. has also noted in Item No. 4 (a) that the date of first complaint of being not in usual good health as 22.06.2002. The medical attendant’s certificate has noted the date of first consultation during illness as 19.06.2002. But this Ext D/1 has categorically noted in item no. 4 (g) that the doctor attended Asakh Ali ( Husband of the present petitioner) from 22.06.2002 to 24.06.2002. It has also been submitted on behalf of O.P. Nos. 2 & 3 that the deceased himself has paid 3 due premiums @ Rs. 672/- vide Ext C and that has been paid on 21.06.2002 and on that basis of document ld. advocate for the O.Ps. submitted that the personal statement regarding health of the deceased as has been made on 21.06.2002 vide Ext B is absolutely false and the policy holder having given deliberately false declaration of good health obtained revival of the policy on the basis of the said declaration and hence there is breach of confidence between the insurer and the insured. Accordingly, it is submitted on behalf of the insurer that repudiation of the claim under the policy is justified. This submission has seriously been resisted on behalf of the petitioner by the ld.advocate contending further that the deceased was a rustic village man and was merely bit literate because he could sign all his name and in support thereof reference has been made to the signature appearing in the proposal form vide Ext A. The main question that arises for consideration is whether the deceased filled up the declaration and suppressed material facts regarding his health resulting in revival of the policy? Contd.P/4…….. P – 4 As the contesting OPs allege that the deceased was guilty of material suppression, it is the obligation and burden of the O.P.s to prove the same. The declaration alleged to have been furnished be Asakh Ali has been filed by O.P.s in the record of the complainant’s case. On perusal of the said declaration it would appear that it bears the signature of Asakh Ali, deceased insured in the middle portion of Ext B. However, in the lower portion of the said declaration there is a certificate appended which is to the following effect, “ I hereby declare that I have explained the contents of this form to the Life Assured.” The declaration, as it appears on the face of it, should be furnished by the person filling in the form and should be signed by him as would be evident from the perusal of the said declaration form. However, signature etc. of any person has not been put on the said declaration which would have indicated that the contents of the declaration of good health were duly explained to the deceased before obtaining his signature. It is thus evident from the contents of the said form (Ext-B) that normally the declaration was expected to be filled up by the deceased in the presence of the officer of the insurer on its agent or some other responsible person. Thus the O.P.s should have taken care and should have insisted upon the certification by the person filling up the form that the contents of declaration of good health were duly explained to the deceased / insurer. In the absence of such a certification by the person filling up the form, the said declaration of good health should not have been accepted and the insurer should have refrained from reviving the policy. However, this has not been done so by the insurer in the instant case and the policy has been revived despite lacuna in the declaration form. In the circumstances, it is obvious that it has not been established that the deceased was explained or had knowledge of the purport and import of the declaration under which he is supposed to have put his signature. Merely, by putting his signature on the dotted lines, the deceased cannot be said to have made declaration typed in the form. Thus it appears that there is no conscious declaration by the deceased insured, that being so, he cannot be held responsible of material suppression of fact. It may also be noticed in the above context that had the insurer been careful and alert, it could have easily come to know whether the deceased was actually ill on the date of revival of the policy by making payment of 3 premiums at a time. The insurer, therefore, had opportunity to avoid ‘revival’ of policy. It, however, appears that the insurer failed to exercise due care and caution and has chosen to revive the policy. They cannot, therefore, turn around and repudiate the policy on the pretext of material suppression of facts by the deceased / insured. In this connection this Forum has taken assistance of the observations appearing in 2006 CTJ 223 (CP), 2005 CTJ 152 (CP), 2006 (1)CPC 514, 1(2005) CPJ 21. Keeping in view the facts and circumstances of the present case and the observations referred to hereinabove, this Forum is of considered opinion that the insurer has failed to prove its case measurably because contract of insurance is based on utmost good faith and bonafide which has become void ab initio. Contd.P/5……… P – 5 Be it noted further that firstly there is no suppression of material fact and alternatively without conceding if there is any suppression unless it is shown to be intentional, purposeful as well as fraudulent, mere suppression ipso facto is no ground to revoke the claim of the petitioner. In view of above giving our anxious consideration over the matter this Forum has reached the irresistible conclusion that the O.Ps. have failed to prove that their service does not suffer from any deficiency, which, on the contrary, leads this Forum to hold that the petitioner is entitled to get the reliefs as prayed for. Both the points are thus disposed of. Hence, ordered, that Malda D.F. Case No.16/2007 is allowed exparte as against O.P. No.1 (The Zonal Manager, Life Insurance Corporation of India, Eastern Zonal Office, 4, C.R. Avenue, Hindustan Building, Kolkata – 700 072) and on contest as against O.P. Nos. 2 & 3 (Divisional Manger, Jalpaiguri Division, Jeevan Prakash, P.O. & Dist.- Jalpaiguri & Branch Manager, Branch –I, L.I.C.I., Malda Branch, ( Near Elit Corner), P.S. –English Bazar, P.O. & Dist. Malda). The petitioner do get award of Rs.40,000/- (rupees forty thousand) only as per Policy No.451809567. The O.Ps. jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which the amount shall carry interest @9% per annum till its final realization. Considering facts and circumstances of the case this Forum does not pass any order as to cost. Let a copy of this order be given to parties free of cost at once. Sd/- Sd/- Sumana Das S.K. Chakraborty Member President D.C.D.R.F., Malda D.C.D.R.F., Malda | 
