Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainants stating that opened one LIC policy vide policy no.446694793 of SA Rs. 3,00,000/- P.T. 14.40.40.  It is to mention here that Saheb Mandi when begin with said policy he was at the age of 26 years and the premium was Rs.3714/- and Saheb Mandi put the name of his Sister Smt.  Sundari Saren as his nominee and the said policy was commenced on 23.9.2013 and it is pertinent to mention here that at the time of commencement of policy, op took the voter identity card of Saheb Mandi and Saheb Mandi put his signature / thumb impressions as per instructions of op no.2 and unfortunately after taking the aforesaid property Saheb Mandi died intestate on 04.12.2013 leaving behind complainants no.2 and 3 as his sole legal heirs and successors to the estate left by him and it is very much  obvious that few days later of the death of Saheb Mandi his sister Sundari Saren being the Nominee of the aforesaid policy applied before the LIC of India i.e. op no.1 for granting of claim under policy no.446694793 but op repudiated the claim by sending letter and after getting the said letter for repudiating the claim of deceased Saheb Mandi LIC of India replied Smt. Sundari Saren vide different correspondences by saying that “with reference”to the claim under the above policy on the Life on the above mentioned deceased, we have to inform you that we have decided to repudiate all liability under the policy on account of the deceased having withheld material information regarding his age at the time of effecting the assurance with LIC.They also said that in this connection they have to inform him that they have secured evidence to show that the deceased had givenfalse age at the time of proposing for the assurance.  The evidence goes to show that deceased submitted false school certificate on 23.9.2013 at the time of proposing for assurance.  LIC have therefore in terms of the policy contract and the declaration contained in the said forms of proposal repudiate the claim and accordingly they are not liable for any payment under the policy and all money belongs to us. The complainants crave leave of the Ld. Forum to submit the said correspondences before the Ld. Court at the time of trial/hearing and the complainants no.1 after getting the aforesaid letter became totally shocked and astonished and she contacted with the op no.2 and narrated everything but the op no.2 found kept mum and finding no other alternatives again made different correspondences with the opno.1 and also stated that when the policy was opened by Saheb Mandi at that time he was major and at present complainants have the school certificate of Saheb Mandi his death certificate and voter identity card also from which it is crystal clear that at the time of opening said LIC policy Saheb Mandi was major but inspite of that the op-1 neglects to pay the claim of complainants by ignoring the Govt. policy and also ignoring the fact that the complainants are illiterate and innocent persons and belong to schedule tribe community.

Saheb Mandi never gave any school certificate to the agent of op-1 viz the op no.2 herein at the time of opening and or starting and or beginning of his policy covered under police no.446694793 dated.23.9.2013 and if it is found that any such school certificate is there in the office of op no. “1B”then the said certificate was not given by Saheb Mandi.  It may be that op-2 somehow manufactured and or procured the same and in that event Saheb Mandi was no way responsible for that.  In fact he was unaware whether school certificate was necessary for opening a LIC policy.  It may worth mentioning here that when policy was opened at that time Saheb Mandi was around 26 years old which will be found from the voter Identity card (Epic Card) and also from Ration Card itself.

Complainants filed the complaint petition praying direction upon the opposite party -1 to get back or repudiate the claim of deceased Saheb Mandi to pay a sum of Rs. 3.00,000/- alongwith statutory interest for intentional withholding the foresaid amount and to pay sum of Rs.5,00,000/- for mentalagony and causing harassment and to pay statutory interest at 8% per annum.

Defense Case:-The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that no cause of action ever arise as allegedly stated in the original complaint application and as such the complainants has got no legal right to lodge the instant complaint before the Ld. Forum.  It is stated that the original policy holder viz. Saheb Mandi at the time of purchasing the policy had given one school certificate allegedly dated 13.5.2013 in order to proof of date of birth but on scrutiny as per the letter dated 19.11.2014 issued by the concerned office of LICI authority addressed to the Head Master Prosadpur High School District Hooghly, the LICI authority seeking the genuineness of the alleged documents allegedly dated 13.5.2013 allegedly issued by the Prosadpur High School and accordingly in reply to the said letter the Head Master Prosadpur High School District Hooghly vide letter dated 27.2.2015 clearly stated that no such person viz.  Saheb Mandi son of Sagar Mandi never admitted in the said school as per the record of the school authority and as such the alleged certificate dated 13.5.2013 is a manufactured document and for which as per the contractual obligation, the LICI authority had already repudiated the said policy.  It is also a fact that one Biswajit Roy, Agency Code no.0171443C is the Agent of the policy being no.446694793 which is the subject matter of the instant case.  The answering op submits that the LICI authority has got no nexus about the allegation by the complainants in the name of the op no.(2) and the said fraud is done by the policy holder by suppression of material fact.  So the complainants including the predecessors never a bonafide person in the eye of law and the complainants have not come before the Ld. Forum with clean hands and as such the instant complaint case should be dismissed with exemplary cost and the complainants are not entitled to get and relief as prayed for.  Moreover, the complainants did not supply the copy of annexure as annexed in the original complaint application and the complainants also served the copy of the original complaint application by omission of few lines and as such the op reserved the right to file addition written version after service of complete complaint application and the annexure attached there to.   The answering defendant submits that the instant complaint case is bad for mis-joinder of party as no cause of action arises against the zonal manager of OICI and for which he is not a necessary party of the instant complaint case and the name of the opno.1 may be expunged from the original complaint case.  So, the instant complaint case is nothing but a false, frivolous and malafide application the same is liable to be dismissed with exemplary cost.  The answering op craves leave to refer the relevant papers and documents at the time of hearing.It is, therefore, prayed the instant complaint be and the same liable to be dismissed with exemplary cost.

The opposite party Nos. 1(A) & 1(B) contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that  the instant complaint case being false, mala fide and motivated should be dismissed with exemplary cost and in order to create pressure upontheLICI authority the complainants had falsely implicated the opno.(1), (1A) and 1(B) being theLIC authority in the instant case.  It is stated that no cause of action ever arise as allegedly stated in the original complaint application and as such the complainants has gotno legal right to lodge the instant complaint before the Ld. Forum.   It is stated that the original policy holder viz. Saheb Mandi at the time of purchasing the policy had given one school certificate allegedly dt. 13.5.2013 in order to proof of date of birth but on scrutiny as per the letter dt. 19.11.2014 issued by the concerned office of LICI authority addressed to the Head Master Prosadpur High School Dist. Hooghly, the LICI authority seeking the genuineness of the alleged documents allegedly dt. 13.5.2023 issued by the said school vide letter dt. 27.2.2015 clearly stated that no such person viz Saheb Mandi never admitted in the said school as per record of the school authority and as such the alleged certificate allegedly dt. 13.5.2013 is a manufactured document and for which as per the contractual obligation the LICI authority had already repudiated the said policy and one Biswajit Roy is the agent of the policy being no. 446694793 which is the subject matter of the instant case. The LICI authority has got no nexus about the allegation by the complainants in the name of the op no. 2 and the said fraud is done by the policy holder by suppression of the material fact. As such the instant case should be dismissed with exemplary cost and the complainants are not entitled to get and release as prayed for.

The opposite party Nos. 2contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the op no. 2 is the agent of op no. 1 and at the initial stage of his agency, in the year 2013 one unknown person claimed himself Saheb Mandi contact with op no. 2 for one LIC policy and accordingly the op no. 2 informed the requirement of documents and benefits of the policy. S.A. etc and after that the said Saheb Mandi submitted required documents and filled up the prescribed form of LIC policy and after fulfilling the requirement of the said policy the op no. 2 submitted the same to the op no. 1 and op no. 1 after verification opened the LIC policy in the name of the said Saheb Mandi  and after that the said Saheb Mandi  received the policy certificate accordingly. Thereafter either Saheb Mandi or the nominee or his family members never contact with op no. 2. At the time claim the death benefit of the deceased, did not contact with the op no. 2 but it is natural event that after the death of the policy holder the nominated person contact with the LIC agent as one of the LIC agents signature is mandatory for the death claim. If there is any allegation against the said policy the same will goes upon the op no. 1 not upon op no. 2. Op no. 2 never prepared any school certificate of any documents of Saheb Mandi  for submission of LIC policy and all the documents annexed with the prescribed form which was submitted for opening the LIC policy all are supplied by the Saheb Mandi himself to the op no. 2. As such the instant case should be dismissed with limini.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainants is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainants?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainants are entitled to get relief which has been prayed by the complainants in this case or not?

Evidence on record

The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainants and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainants and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainants is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainants is a resident of Jangipara, Hooghly and the office place of op no. 1 (A) and op no. 1(B) and op no. 2 are also at Jangipara, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainants satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainants side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainants are a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainants is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainants against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainants.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainants are entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainants with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainants are the legal heirs of deceased LIC policy holder Shaeb Mandi.
2. It is also admitted fact that the said Saheb Mandi executed LIC policy being no. 446694793 of SA Rs. 3,00,000/- P.T. 14.40.40.
3. There is no controversy over the issue that at the time of execution of the said policy said Saheb Mandi was major.
4. There is no dispute over the issue that the name of complainant no. 1 has been described as nominee in respect of the said LIC policy.
5. It is admitted fact that op no. 2 as agent of op no. 1 had taken steps for starting the above noted LIC policy in the name of Saheb Mandi.
6. It is also admitted fact that the said LIC policy was continued.
7. There is no controversy over the issue that said Saheb Mandi died leaving behind the complainants as legal heirs.
8. There is no dispute over the issue that at the time of execution of the above noted LIC policy one school certificate of Prosadpur High School was submitted as age proof.
9. It is admitted fact that the ops of this case described the said school certificate as false and manufactured document by placing one certificate of headmaster of Prosadpur High School Dist. Hooghly.
10. It is also admitted fact that the complainants in this case in support of their claim also have submitted copy of voter’s identity card of said Saheb Mandi (policy holder of above noted insurance policy) and death certificate of Saheb Mandi.
11. There is no controversy over the issue that the complainants submitted claim of Rs. 3,00,000/- before the op nos. 1, 1(A) and 1(B).
12. There is no dispute over the issue that the said claim of the complainants has been repudiated by the ops over the issue of not furnishing proper documents in support of age proof of Saheb Mandi (original policy holder of the above noted policy).

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainants adopted the plea that the complainants  are the legal heirs of the deceased Saheb Mandi who is now dead and inspite of submitting proper documents the ops repudiated the claim of the complainants which is undoubtly deficiency of service on the part of op nos. 1, 1(A) and 1(B) but on the other hand the ops adopted the defence alibi that the original policy holder Saheb Mandi had not produced proper document in support of age proof and the complainants also have failed to produce any cogent document in support of the age of deceased Saheb Mandi who was the original policy holder of above noted insurance policy and for that reason the ops described that there is no negligence, unfair trade practice or deficiency of service on the part of the ops.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the op nos. 1, 1(A) and 1(B) accepted the policy of Saheb Mandi and also received premium from Saheb Mandi and also continued the said LIC policy in view of the certificate produced by Saheb Mandi at the time of opening the said policy. Moreover the complainants who are the legal heirs of Saheb Mandi also produced the voter’s identity card and death certificate of Saheb Mandi which are acceptable documents. Moreso the op nos. 1, 1(A) and 1(B) at the time of initiation of the policy had not raised any disputes in respect of the certificate produced by Saheb Mandi in support of his age proof and so the op nos. 1, 1(A) and 1(B) are now estopped from challenging the said document or age proof matter of Saheb Mandi. In this regard the legal principle of Section 115 of Evidence Act if very important. In view of this position the above noted plea of LIC in support of repudiation of the claim cannot be accepted. In this connection the definition of service which is embodied in Section 2 (o) of the Consumer Protection Act, 1986 is very important. Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service in the matter of not granting claim of the complainants. In view of this position the op nos. 1, 1(A) and 1(B) are liable and responsible to pay the claim of the complainants and so the points of consideration nos. 4 and 5 are decided in favour of the complainants.

In the result it is accordingly

ordered

that the complaint case being no. 172 of 2017 be and the same is allowed on contest but in part against op nos. 1, 1(A) and 1(B).

It is held that the complainants are entitled to get the claim of Rs. 3,00,000/- along with interest @ 9% per annum from the date of this filing of this case from op no. 1, 1(A) and 1(B) of this case.

Opposite party nos. 1, 1(A) and 1(B) are directed to pay the said amount within 45 days from the date of this order otherwise complainants is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1, 1(A) and 1(B)  also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.