Order No. 37 Dt. 06.01.2016
This is an application u/s 12 of the Consumer Protection Act, 1986 filed by the petitioner Smt. Deepti Sharma (Sikhwal) praying for an order directing the O.Ps to pay her claim of Rs.500000/- being the claim amount and compensation of Rs.- 87000/- on account of harassment and mental agony and also litigation cost.
The case of the petitioner is that her husband Probin Sharma made a Personal Accident Policy with the O.P. United India Insurance Company Limited being Policy No.031400/42/11/01/00000429 (valid from 21.09.2011 to 20.09.2012) and also got married with her as per their personal law. Her husband met with a road accident and succumbed to his injuries on 01.08.2012. The petitioner submitted all documents before the United India Insurance Co.
Added O.P. Nos. 3 and 4 being the mother and another brother of her deceased husband who want to grab everything in collusion with O.P.1 and 2 who refused to acknowledge her resulting for which she filed this claim petition before this Forum.
The O.P. Nos. 1 and 2 being United India Insurance Co. Ltd. contested the case by filing a written statement wherein they denied the material allegations made in the claim petition and submitted that the case is not maintainable in its present form as the same is bad for mis-joinder and non-joinder of necessary parties and this Forum has no jurisdiction as the subject matter is civil in nature. The O.P. admitted that the Policy No. 031400/42/11/01/00000429 (valid from 21.09.2011 to 20.09.2012) was issued in favour of Probin Sharma. The Petitioner did not come to the office on 19.09.2012 and refused to received any complaint. The documents annexed with the petition are not genuine. Several litigation is going on between the petitioner and the O.Ps. If succession certificate filed they will release the amount.
O.P. Nos. 3 and 4 being the mother and brother of the deceased contested the case by filing a separate written statement wherein they submitted that the claim petition is not maintainable and the petitioner is not a consumer and has no cause of action to file this case. They further submitted that in the policy of United India Insurance Co. Ltd. the name of Probin Sharma the deceased husband of the petitioner suppressed many material facts like deceased Probin Sharma had purchased four LIC policies No. 4544987232, 4558844676, 45628817 456336022 and Policy No. 031400/42/11/01/00000429 and one Medi Claim Policy with Bajaj Insurance Co. being No. OG-12-2414-6002-00000015 and made his brother Prakash as nominee and on 01.08.2012 he died of a road accident. The relation between the parties was cordial and it was decided that the petitioner would live at her parental house at Guahati and it was mutually settled by an amicable settlement that Rs.3750000/-would be handed over to her and in future she would not make any further claim. Accordingly, Rs.3750000/- was handed over to her on 26.11.2012 and ornaments handed over to her on 25.11.2012 and to that effect the petitioner made an affidavit before notary but suppressing all material facts she filed this case before the Forum which would be dismissed with cost.
On the above cases of the parties the following issues are framed:
- Whether the case is maintainable in its present form?
- Whether the petitioner has any cause of action to file the case?
- Whether there is any negligence or deficiency in service on the part of the O.Ps?
- Whether the petitioner is entitled to get any reliefs as prayed for?
::DECISION WITH REASONS::
Issue Nos. 1,2,3,& 4
All the issues are taken up together for the convenience and brevity of discussion and to skip of reiteration.
In support of his case, the petitioner, Smt. Deepti Sharma (Sikhwal) deposed before the Forum as P.W.-1 and submitted some documents which are marked as Ext.1 to Ext. 3. Death Certificate of Prabin Sharma marked as Ext. -1, Individual Personal Accident Policy marked as Ext.-2 and Letter Dt. 18.09.2012 to the Divisional Manager United India Ins. Co. Ltd. marked as Ext.-3.
O.P. nos. 1 and 2 examined one witness named Samir Mondal as O.P.W.-1. Added O.Ps did not adduce any evidence but filed some documents which are marked Exts. A1, A2, A3, Ext.B and B1.
In support of his case, the petitioner, Smt. Deepti Sharma (Sikhwal) deposed before the Forum as P.W.-1 and submitted that her husband husband Probin Sharma made a Personal Accident Policy with the O.P. United India Insurance Company Limited being Policy No.031400/42/11/01/00000429 (valid from 21.09.2011 to 20.09.2012) and also got married with her as per their personal law. Her husband met with a road accident and succumbed to his injuries on 01.08.2012. The petitioner submitted all documents before the United India Insurance Co.
Added O.P. Nos. 3 and 4 being the mother and another brother of her deceased husband who want to grab everything in collusion with O.P.1 and 2 who refused to acknowledge her resulting for which she filed this claim petition before this Forum.
The petitioner further stated that her husband met with a road accident and succumbed to his injuries on 01.08.2012. The petitioner submitted all the documents before the United Indian Insurance Co. within the fortnight after the death of her husband but the Insurance Co. did not look into the matter and harassed her. She further stated in the petition that on 19.09.2012 she went to the Divisional Office at Malda but the Official refused to receive the complaint by putting their seal. O.P. Nos. 1 and 2 along with O.P. Nos. 3 and 4 being mother and brother of the deceased husband want to grab all the properties of the petitioner in collusion with Insurance Company. Besides, her oral evidence she filed documents which are marked Exts.1 to 3. He has filed the copy of the charge sheet.P.W.-1 in her cross examination by the Counsel of O.P. Nos. 1and 2 and also by the added Counsel of O.P. Nos. 3 and 4. She denied that there was settlement between herself and the added defendants and she also denied that the fact of relinquish of her claim and also denied of taking of ornaments and money of Rs. 3750000/-.
We heard the Ld.Counsel for the petitioner O.P. Nos. 1 and 2 and Counsel for O.P. Nos. 3 and 4. The Counsel of the petitioner submitted that after the death of the husband of the petitioner she filed all the relevant documents to the Insurance Company within a very short span but they did not take care of it. Not only that, the
O.P. Nos. 1 and 2 did not receive the complaint and abused her in filthy language when the petitioner visited the office on 19.09.2012.
Ld.Counsel for the O.P. submitted that the petitioner suppressed the material fact like the mother remaining alive and the fact of the petitioner settling the matter by making affidavit in favour of the O.P. after receiving a sum of Rs. 3750000/- and she has no further claim and is not entitled to get any benefit as prayed before this Forum.
The other side that is added defendant 3 and 4 did not adduce any evidence on dock but filed some affidavit which are marked Exts A1, A2, A3, Ext. B and B1. The Insurance Co. did not adduce any document to substantiate their case regarding the claiming or not to disburse the amount to the petitioner, wife of the deceased.
It is crystal clear that the petitioner is the wife of the deceased husband and it is also crystal clear that several cases has been filed by the petitioner before this Forum. Ld. advocate for the O.P. Nos. 3 and 4 tried to draw our attention by submitting that this petitioner relinquish her claim and made an affidavit before the notary public and in this regard she took oath and the affidavit is a valuable document and the case of the petitioner should be dismissed. This Forum took cognizance of the petition of the petitioner as the amount was not disbursed. It is the specific case of the petitioner that O.P. Nos. 3 and 4 in collusion with O.P. Nos. 1 and 2 tried to grab the property. We are getting from the record that petitioner is none but the wife of the deceased husband who had a valid personal accident policy at the time of accident it was valid. It is true that some cases filed before this Forum by this petitioner like Case Nos. 41, 51, 52 and 53 of 2013.
It is true that the petitioner is not the sole beneficiary and this claim should be dismissed for non-joinder of necessary parties and suppression of material facts.
Regarding the evidentiary value of the affidavit made before the Notary it can be stated that mere swearing of affidavit by a person before Notary does not make the statement of that person contained therein is a piece of evidence. Even though, the affidavit shown before notaries who have power to administer oath. Under Sec. 3 of the Evidence Act, Evidence means an include all statements which the Court permits or requires to be made before it by a witness in relation to the matters of fact under enquiry and all such statements are called oral evidence and also all the documents which are produced for inspection of the Court are called documentary evidence when these are accepted. In the instant case, the affidavit placed before the Forum was made Ext. A and the petitioner submitted before the Forum in her cross-examination that she executed the Page -3 of the affidavit and received the ornaments and in the other two pages of the affidavit her signature was procured and she denied stating that she made a final settlement of her claim with her in laws for a sum of Rs. 3750000/- and such an amount was never paid to her. Thus such an affidavit which is made Ext.-A here cannot be taken as evidence because u/s. 3 of Evidence Act the statement recorded in the affidavit was not permitted by any Court. Documents
which are produced before the Court and which are duly proved can only be regarded as evidence. In the instant case, the affidavit produced before this Forum cannot be regarded as evidence as the same goes against the provision of law as laid down u/s. 3 of the Evidence Act and also such an affidavit is not permitted by any Court to be recorded as done under Order XIX of CPC. Thus this Forum finds that an affidavit can be termed to be an evidence within the ambit of Sec. 3 of the Evidence Act only in those cases when the same is filed at the instance and under direction of the Court. In our case, the affidavit going against the provision of Law of evidence cannot be accepted by this Forum and also disbelieved. On the other hand, the petitioner in the instant case submitted before the Forum as P.W.-1 that her husband Probin Sharma made the policy and after three years of marriage Probin died of a motor accident. For the Personal Accident policy No. 031400/42/11/01/00000429 (valid from 21.09.2011 to 20.09.2012) she filed this case before the Forum as the Insuance Company refused to make payment to her stating that her brother-in-law Prakash Sharma was the nominee. In the instant case, this Forum this Forum is not to decide here all the controversies between the parties but simply finds that the affidavit Ext.-A filed before the Forum was not a genuine piece of evidence and also no documents has been placed before the Forum that the O.Ps paid Rs.3750000/- to the petitioner resulting such an agreement between the parties. Thus on scrutiny of the oral as well as documentary evidence this Forum finds that the petitioner being the legally married wife of the deceased Probin Sharma is entitled to relief as a beneficiary.
In the instant case, the deceased Probin Sharma died leaving his wife both parents, brother etc. and he died intestate i.e. without having made any will regarding the properties left by him. Thus u/s. 8 of the Hindu Succession Act, 1956 the property of a male hindu dying intestate shall devolve firstly upon his heirs as mentioned in the Class I of the schedule and if there is no Class I heir then on the heirs of the Class II schedule and then third and fourth. In the Class I Schedule the wife and the mother of the deceased come as the deceased died leaving no son, daughter etc. The brother of the deceased Probin being Prakash Sharma of this case comes in the second schedule though he is a nominee of the policy. Nomination only authorizes a person to receive the amount on the payment of which the person making the payment is validly discharged of the liability. However, the legal heirs of the deceased are entitled to the same amount of payment in accordance with law of succession i.e. in the instant case the wife Deepti Sharma and the mother Poonam Sharma of the deceased are the only beneficiaries in accordance with the law of succession. The amount never belongs to the nominee and it remains as the property of the legal heirs who are entitled to share in the said amount. Thus on scrutiny of the oral as well as documentary evidences adduced and produced before this Forum by the parties, this Forum finds that the affidavit (Ext.-A) filed before this Forum having no evidentiary and being discarded and disbelieve and the nominee being the only custodian of the property and never being a beneficiary and thus only the petitioner Deepti Sharma and the O.P.3 Poonam Sharma as Class-I legal heir and beneficiary of the assured sum and other benefits, they are entitled to the claim with equal share each. Further, considering the facts and circumstances this Forum finds that the O.P. United India Insurance Co. Ltd. did not cause any agony to the petitioner as both the nominee as well as she herself appeared before the O.P.1 and also it was difficult to decide the real beneficiaries for them. Thus no compensation is awarded here for harassment and mental agony as prayed for.
In view of the above discussions and findings this Forum finds that the petitioner proved her case successfully and she is entitled to the relief as prayed for along with the O.P. No.3 Poonam Sharma, mother of the deceased Probin Sharma, being entitled to half share in the personal accident policy amount.
All the issues are thus decided in favour of the petitioner as well as against the O.Ps except compensation for mental agony and harassment and cost of proceeding.
In view of above, the present case succeeds in part.
Court fee paid is correct.
Hence, ordered
that Malda D.F. C. Case No. 66 of 2013 be and the same is hereby allowed on contest against the O.P. No. 1 and 2 United India Insurance Co. Ltd. but without cost considering the facts and circumstances in this case. The petitioner as well as the O.P. No.3 being the wife and mother of the deceased life assured are entitled to the claim amount with equal share of Rs. 250000/- each with interest @ 9% p.a. from the date of filing of the case till realization and the O.P. Nos. 1 and 2, United India Insurance Co. Limited being the insurer are directed to pay the above sum of Rs.50000/- to both of them being Rs.250000/- each with interest till realization within 60 days from the date of this order failing the petitioner would be at liberty to put this final order in execution.
Let a copy of this order be given to each of the parties free of cost.
