H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT HAMIRPUR.

FIRST APPEAL NO. 348/2008

DATE OF DECISION: 27.11.2009

In the matter of:



1. Sr. Branch Manager, Life Insurance Corporation of India, Staya Complex, Hamirpur, H.P.

2. The Sr. Divisional Manager, Life Insurance Corporation of India, Divisional Office, SDA Complex Kasumpti, Shimla, H.P.

3. Sh. R.K. Soni, Development Officer, LIC of India Office, Hamirpur, H.P.

… … Appellants.

Versus

Sh. Manohar Lal S/O Sh. Roshan Lal, R/O Vill. & P.O. Sarahkar, Tehsil & District Hamirpur, H.P.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the Appellants: Mr. Mool Raj Sharma, Advocate. Alongwith Mr. M.S. Rana, Administrative Officer of the appellant at its Hamirpur office.

For the Respondent(s): Mr. H.D. Jagota, Advocate,

For the respondent, alongwith respondent who has been identified as such by his learned Counsel.

O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



1. Appellants have preferred this appeal against the order passed by District Forum, Hamirpur, in Consumer Complaint No.64/2007 on 10.9.2008. While allowing the complaint of the respondent, District forum below has directed the appellants to pay the admissible earned renewal commission on assured cases sponsored by him as well as gratuity as per provisions of Life Insurance Corporation of India (Agents) Regulations, 1972 within 60 days of the receipt of certified copy of the order, failing which the respondent has been held entitled to interest @ 9% per annum on such admissible amount.



2. Admitted facts giving rise to this appeal are that, respondent is an agent of appellant No.1, hereinafter referred to as the “LIC”. He submitted his resignation on 20.11.2006 but without any response, copy of the resignation letter is Annexure C.1 with the complaint file. This is dated 26.11.2006. This resignation was accepted on 6.7.2007 vide annexure C.4. Regarding his claim for payment of earned renewal commission (ERC) and gratuity benefits, Senior Branch Manager of LIC at Hamirpur informed him that the matter has been referred to higher ( competent authority) and their decision will be conveyed to the respondent at the earliest. This annexure is of the mid of the year 2007, whereas now we are at the close of 2009.



3. It was also not disputed that during the pendency of the complaint while accepting the resignation of the respondent, no further action has been taken by the appellants till date.



4. To our query Mr. Mool Raj Sharma, learned Counsel for the appellants on instructions received from Mr. Rana, stated at the bar that reason for non grant of relief to the respondent was that he had joined a competitor i.e. another Insurance company and as per rules governing the agency of the respondent framed by the LIC, this action deprived him of monetary benefits. To this, learned Counsel for the respondent on instructions received from his client stated that he had already submitted his resignation to the said competitor Company and has further approached the authorities of LIC through its Hamirpur branch for revival of his agency and by taking him back as an agent to undertake LIC business. Mr. Sharma further stated that the case has been forwarded to the higher authorities and there is every likelihood that the said authority will take a decision very soon. As and when any information is received at Hamirpur office, respondent will be duly informed in that behalf.



5. At this stage, however Mr. Sharma on behalf of the appellants forcefully urged that assuming everything as alleged in the complaint to be correct for the sake of arguments against his client, fact remains that on the averments made in the complaint, his client is providing no service, as such his client is not a service provider to the respondent nor is the latter a ‘consumer’ within the meaning of section 2(1) (d) of the Consumer Protection Act, 1986. Firstly according to him when the complaint was filed, there was no dispute and assuming that there was a dispute, then Fora under the Act of 1986, supra, have no jurisdiction to have entertained the same much less adjudicated upon it. Therefore, he prayed for allowing the appeal while setting aside the impugned order and consequently dismissing the complaint.

6. Keeping in view the stand of the appellants regarding case of the respondent having been forwarded to the higher authorities after he had resigned from the competitor-Company in life insurance business and matter being under active consideration, we have not gone into the submissions urged by Mr. Mool Raj Sharma, learned Counsel for the appellants. We feel that interest of justice will be well served if the impugned order is set aside. Another reason to take this view is that the complaint if at all was to be maintained it was premature in the face of Annexure C.4 and admittedly till date no decision has been conveyed by the appellants to the respondent of his earned renewal commission and gratuity benefits.



In the light of the above discussion, the impugned order passed by District forum, Hamirpur in Consumer Complaint No.64/2007, dated 10.9.2008 is hereby set aside and it is held that in the face of Annexure C.4, complaint if any could be maintained, was pre-mature. Looking to the fair stand on the part of the appellants regarding revival of the agency of the respondent, we hope and expect that the higher authorities of the appellants at all levels would take a dispassionate view without being influenced by the fact that he has joined a competitor. Appeal is allowed subject to these observations, leaving the parties to bear their own costs. It hardly needs to be clarified that in case respondent is still aggrieved from the decision that may be ultimately taken by the authorities regarding revival of his agency to carry on life insurance business, as well as for payment of ERC and gratuity etc., it will provide fresh cause of action to him to approach the appropriate Forum/Court of law/Authority. Appeal is allowed subject to these observations.



All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned Counsel for the parties submitted that copy of this order may be sent to them free of cost as per rules at their address, District Courts, Hamirpur. While accepting this prayer, office shall do the needful accordingly.

Hamirpur,

November 27, 2009.

H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT UNA.

FIRST APPEAL NO.350/2008

DATE OF DECISION: 24.11.2009.

In the matter of:

Life Insurance Corporation of India, through its Sr. Divisional Manager, Divisional Office, Block No.14 & 15, S.D.A. Complex, Kasumpti, Shimla.

… … Appellant.

Versus



Ms Rama Sood, daughter of Sh. Prem Sagar, R/O Village and Post Office, Amb, Tehsil Amb, District Una, presently residing at Una, H.P.

… … Respondent.


Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? Yes



For the Appellant: Mr. Varinder Dharmani, Advocate,



For the Respondent: Mr. P.N. Sachdeva, Advocate.

alongwith his client, who has been identified as such by Mr. Sachdeva.

O R D E R



Justice Arun Kumar Goel ( Retd.), President (Oral).



1. When hearing in this case commenced, by referring to the complaint file, Mr. Dharmani, learned Counsel for the appellant forcefully urged that District Forum below committed grave error while allowing Complaint No.85/2007 on 26.9.2008, thereby directing his client to pay Rs.10,810/- to the respondent with interest @ 9% per annum from the date of filing of the complaint i.e. 15.6.2007 till realization, alongwith cost of Rs.2,000/-. Further according to him, initially it was an ordinary life insurance policy obtained by the respondent, and subsequent to it by paying extra premium she opted for getting benefit of critical illness rider to her existing life insurance policy. In this background, Mr. Dharmani further submitted that when the respondent paid extra premium, she is presumed to be aware of the scope of benefit, extent of insurance cover as well as of warranties, exclusions, exceptions and conditions of insurance cover. He further urged that all these things should be presumed to have been duly explained to, as well as understood by the respondent and it was only thereafter she had paid the extra premium to get benefit of critical illness rider to her existing life insurance policy.



2. We specifically called upon the learned Counsel as to what he has to say regarding respondent having been put to notice before her extra premium was accepted, covering critical illness rider in the context of Annexure R.IV, dated 3.12.2005.



3. In this behalf, it may be appropriate to mention that this is a circular from Life Insurance Corporation of India, Marketing/CRM Department, Central Office, 3rd Floor, Yogakshema, J.B. Marg, Mumbai 400 021, on the subject, Re: Procedure For Settlement of Claims under “Critical Illness Rider Benefit”. Answer given by Mr. Dharmani very innocently was, that the respondent should be presumed to know that what are the diseases which are critical in nature and are covered under critical illness rider benefit and what not. Further according to him, fibroid in uterus is common disease and by no stretch of imagination it can be said to be a critical rider benefit.



4. It is a matter of common knowledge that in the year 1956, Life Insurance Corporation of India Act was enacted by the Parliament with a view to consolidate the life insurance business which was at that point of time in the hands of numerous private players. The object of the Act was to march towards nationalization of life insurance business by entrusting it in the hands of a Corporation. It was an Act to provide for nationalization of life insurance business in India by transferring all such business to a Corporation established for that purpose and to provide for the regulation and control of the business of the Corporation and for matters connected therewith or incidental thereto. Infact, it is a beneficial piece of legislation enacted by the Government of India. With the passage of time to ensure that the object with which the Life Insurance Corporation of India Act, 1956 was enacted, Insurance Regulatory and Development Authority Act, 1999 was also enacted. Under this Act, Insurance Regulatory and Development Authority was constituted.



5. After having looked into overall circumstances of the cases experienced after the enactment of Life Insurance Corporation of India Act as well as Insurance Act, Insurance Regulatory and Development Authority Act was framed as far as in the year 1999. And Authority under this Act, in exercise of powers vested in it as well as Insurance Act, framed Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002. According to us, Regulation No.3 of these Regulations of 2002, nails the stand urged on behalf of the appellant and compels us to uphold the view taken by the District Forum below while allowing the complaint of the respondent.

6. With a view to highlight this observation, we may notice that under Regulation-3, it is the duty of an insurer or its Agent or other intermediary to provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest. In addition to this, insurer is also duty bound to clearly state the scope of benefits, the extent of insurance cover and in an explicit manner the warranties, exception and conditions of the insurance cover. How this provision was complied with, learned Counsel for the appellant submitted that respondent shall be presumed to be in the know of all these things when she paid the extra premium for getting the benefit of critical illness rider to her life insurance policy.



7. Whether the contents of Annexure R.IV relied upon by the appellant in support of this appeal which contains illnesses included in the critical illness rider benefit were read over and explained and/or whether the respondent was informed in that behalf, Mr. Dharmani could not point out anything by referring to the complaint file.



8. In order to take benefit of Annexure R.IV on which great emphasis was laid on behalf of the appellant, we are of the view that the person who accepted the premium and/or the Agent or Development Officer who had undertaken the insurance in this case as also while extending critical illness benefit, was the best person to have said something in this behalf. Admittedly, there is no evidence to that effect. Once this conclusion is arrived at, decision of this appeal need not detain us.



9. No other point was urged.



In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed, leaving the parties to bear their own costs.



All interim orders passed from time to time in this appeal shall stand vacated forthwith.



Learned Counsel for the parties submitted that copy of this order may be sent to them at their address, District Courts, Una. While accepting this prayer, office is directed to send the copy free of cost to the learned Counsel at their above address.

Una,

November 24, 2009.

H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT UNA.
FIRST APPEAL NO.327/2008

DATE OF DECISION: 24.11.2009.



In the matter of:

The United India Insurance Company Limited, Branch Office, near Bus Stand, Una, District Una, H.P. through Divisional Manager, Divisional Office, United India Insurance Company Limited, Timber House, Circular Road, Shimla, H.P.

… … Appellant.

Versus

Shri Bishari Lal son of late Shri Asha Ram Sharma, R/O Village and P.O. Daulat Chowk, Tehsil Amb, District Una, H.P.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? Yes



For the Appellant: Mr. J.S. Bagga, Advocate,



For the Respondent: Mr. Ajay Thakur, Advocate.

alongwith respondent in person, who has been identified as such by his learned Counsel.


O R D E R



Justice Arun Kumar Goel ( Retd.), President (Oral).





1. When hearing in this commenced, Mr. Bagga, learned Counsel for the appellant forcefully urged that this is a case of suppression of true and material facts regarding the state of health by the respondent when he obtained insurance policy from his client. He further submitted that the element of bonafide and good faith was lacking on the part of the respondent when he obtained insurance policy from his client. Insurance was undertaken by his client accepting bonafide stand of the respondent. Otherwise this is a clear cut case of pre-existing COPD disease for the last 3 years and for which he had already been treated at Satguru Partap Singh Apollo Hospitals, Ludhiana. He was diagnosed for chronic alcoholic with chain smoker and was confirmed by the attending doctor as K/C/O-H.T. While advancing the case of his client further Mr. Bagga referred to the exclusion clause contained in insurance policy which covered the case of the appellant. Thus, according to him, District Forum below fell into error while

allowing the complaint and directing his client to indemnify the respondent in the sum of Rs.33,803/- together with interest @ 9% per annum from the date of filing of complaint i.e. 29.9.2007 till the date of payment.



2. All these pleas were seriously contested and resisted by learned Counsel for the respondent. Per him, assuming what is argued in support of this appeal to be correct for the sake of argument without conceding, still the appeal deserves to be dismissed as according to him, the provisions of Insurance Regulatory and Development Authority ( Protection of Policy Holders’ Interests) Regulations, 2002 have been followed more in breach than compliance by the appellant in this case. He thus prayed for dismissing the same.



3. We specifically called upon learned Counsel for the appellant whether the medi-claim policy issued by his client covering the risk of the respondent at the relevant point of time is governed by the Regulations of 2002 (supra), his answer was in the affirmative.



4. Once this position is accepted, then what follows is that before undertaking insurance as per these Regulations framed by Insurance Regulatory and Development Authority in exercise of powers vested in it under Insurance Act, 1938 and Insurance Regulatory and Development Authority Act, 1999, we are of the view that law enjoins the duty upon a person who undertakes insurance to explain all merits and demerits as well as exclusions etc. to the beneficiary of a insurance policy. Regulation-3 is specific in this behalf. We called upon learned Counsel for the appellant to show anything from the complaint file as to how this Regulation was complied with when the medi-claim policy was issued by his client. In our opinion, best person who could say something in this behalf was the Insurance Agent/Development Officer who had dealt with the respondent. Why his affidavit was not filed, learned Counsel for the appellant had no answer.



5. Faced with this situation, Mr. Bagga submitted that claim was repudiated by the Third Party Administrator (TPA) duly licensed by the Insurance Regulatory and Development Authority under the provisions of Insurance Regulatory and Development Authority Act, 1999. Suffice it to say that repudiation by TPA is wholly irrelevant for the view that we have taken. Situation would have been totally different if the respondent was put to caveat by the person concerned who had undertaken medi-claim insurance in this case that at that point of time these are the exclusions and if his case is covered under such exclusions and appellant was not able to cover any of them. Repudiation of claim by TPA has no relevance in the context of point of time when initially insurance was undertaken. Therefore, plea of Mr. Bagga that it was TPA who has repudiated the claim of the respondent is being noted to be rejected. Complaint was liable to be rejected for want of non joinder of necessary party, i.e. the TPA who had repudiated the claim of the respondent. Suffice it to say in this behalf that contract of insurance in this behalf was between the appellant on one side and the respondent on the other. TPA has acted for and on behalf of the appellant. Even otherwise there is no direct dealing between the TPA and the appellant qua the contract of insurance.



6. No other point was urged.



In view of the aforesaid discussion, we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned Counsel for the appellant has undertaken to collect copy of this order free of cost from the Court Secretary at Shimla, whereas office is directed to send the same to the respondent at his address as given in the Memo. of parties as prayed by him. While accepting this prayer, office is directed to do the needful accordingly.

Una,

November 24, 2009.

H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT UNA.

FIRST APPEAL NO.39/2007

DATE OF DECISION: 24.11.2009.



In the matter of:



The New India Assurance Co. Ltd. Hamirpur Branch Office, Dev Paul Chowk, Hamirpur through its Senior Divisional Manager, IIIrd Floor, Block No.7, SDA Complex, Shimla-171 009.

… … Appellant.



Versus



Ms Shankari Devi wife of Sh. Hari Ram, R/O Village Ambehra, P.O. Ambehra Dhiraj, Tehsil Bangana, District Una, H.P. through her son and General Power of Attorney Sh. Dina Nath, S/O Sh. Hari Ram.



… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? Yes



For the Appellant: Mr. J.S. Bagga, Advocate, vice

Counsel for the appellant.

For the Respondent: Mr. Dina Nath, General Power of Attorney

of the respondent in person.

O R D E R



Justice Arun Kumar Goel ( Retd.), President (Oral).



1. This case was argued by Shri Ratish Sharma, learned Counsel for the appellant on 20.11.2009 and is listed today for orders.



2. Complaint No.164/2004 was filed by the respondent alleging deficiency of service against the appellant when it did not indemnify her in the sum of Rs.3,56,000/- for which amount her fishery farm and check dams were admittedly insured with the appellant. These were insured by the agent of the appellant, namely, Rajesh Vij and its Development Officer Shri Arun Kumar Kapil who had visited the farm as well as check dams for inspection and spot verification. It was only after being satisfied regarding existence of infrastructure that insurance was undertaken. Premium of Rs.20,917/- was accordingly paid on 16.1.2004 by her to the said officers of the appellant. On 14.6.2004 due to heavy rains and flash flood, the entire fishery farm as well as check dams were washed away alongwith the live fish. This caused loss to the extent of Rs.4,00,000/-. A complaint was lodged on 16.6.2004 at Police station Bangana, District Una. Its copy is Annexure C.5, attached with the complaint. This report was lodged in the Daily Diary Register. Intimation regarding loss suffered was also given by the respondent to the Insurance Company on 15.7.2004 with the request to indemnify her but without any consequence. Instead of making the payment to her, vide its letter dated 14.9.2004, appellant refused to admit her claim and intimated that it is unable to settle the same. This was followed by a legal notice dated 7.10.2004. Neither it was replied to nor any action was taken on it by the appellant. In this background, complaint was filed.



3. When put to notice in this complaint, appellant pleaded that the respondent had not approached the Forum with clean hands having suppressed material facts. Complaint was not maintainable because insurance claim has been made of the asset which was never created, it was obtained qua the assets which were already developed, and those had suffered no loss and were in existence at the spot. Such assets were not insured with the appellant, so the question of damage or insurance does not arise. Jurisdiction of the District Forum was disputed as complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Besides this, it was also pleaded that the complaint involves complicated questions of law and facts which required lengthy examination and detailed cross examination in the matter, thus could only be tried by a civil Court. While admitting insurance, it was denied that agent of opposite party inspected check dams and insured those. Further case of the appellant was that they had insured the fish farm of the complaint consisting of three ponds excavated on flat piece of land sanctioned by Department of Fisheries, H.P. at Kangra which were there in existence at the spot and thus she did not suffer any damage. Neither any check dams over Nallah were in existence or sanctioned by Fisheries Department nor it had insured the fishery farm of the respondent consisting of such check dams. This stand was reiterated in other paras of its reply by the appellant. Besides this, reliance was placed on the report of the Surveyor, Shri Puran Chand Parban, Annexure R.6, dated 6.9.2004 alongwith the statements of S/Shri Badan Singh and Ram Kumar, President, Gram Panchayat, Ambehra Dhiraj, purported to have been recorded by said Shri Parban, Senior Fisheries Officer (Retd.), the Surveyor. District Forum below after hearing the parties has allowed the complaint, Hence this appeal.



4. Shri Ratish Sharma, learned Counsel for the appellant forcefully submitted that contract of insurance is based on utmost good faith and bonafide. According to him, both these facts were lacking in the instant case. He laid great emphasis on the fact that check dams were never constructed by the respondent nor any fish ponds were constructed. There were already three ponds which were on a plateau and to these, no damage has been caused due to rains as claimed by the respondent in her claim. These were in existence. This position was seriously contested by Mr. Vijay Arora, learned Counsel for the respondent. He argued that three tanks which were there at the spot were in addition to as well as over and above the check dams and fisheries farm that was washed away. Therefore, no benefit can be derived by the respondent from the fisheries farm, three ponds/tanks which were in existence.



5. In order to succeed in this appeal, in our opinion, appellant is bound to show that the check dams as well as fish farm were never created by the respondent. If we accept this plea, then the question arises, what was insured by the appellant. Admittedly, it is not the case of the appellant that the existing assets/tanks were insured by it. In this behalf, according to us, stand of the appellant in paragraph-2 of her complaint assumes significance. She had categorically stated that the Agent as well as Development Officer had visited the spot where the fisheries farm and check dams were constructed for inspection and spot verification, as well as for satisfying themselves regarding the existence of infrastructure and their total valuation. It was only thereafter that they covered the risk of all contingencies, and undertook insurance to the extent of Rs.3,56,000/-. When reply of the appellant is seen , it is cryptic, vague and does not dispute the facts regarding Development Officer and Agent having visited the spot. If they had not actually visited the spot, in the ordinary course of things, appellant was supposed to file their affidavits on record by way of evidence. In this behalf it may also be appropriate to mention that it is not the case of the appellant that Shri Rajesh Vij was not its Agent and/or Shri Arun Kumar Kapil was not its Development Officer. Why their affidavits were not filed and in case they declined to do so, why they were not summoned, Shri Ratish Sharma had no answer. In this behalf his only submission was that the report of the Surveyor, Annexure R.6, needs to be accepted on its face value. We are sorry to say that appellant wants us to accept the report without his client specifically disputing much less denying that spot was visited by its Agent and Development Officer for satisfying about the existence of infrastructure as well as for the purpose of ascertaining its valuation before undertaking insurance.



6. In case appellant wanted to succeed on the plea of bonafide and good faith based on the doctrine of uberrima fides lacking on the part of the respondent, it was incumbent upon it to have led reliable as well as acceptable evidence in this behalf. That it has failed to place on record. Therefore, reliance placed on the decisions of the National Commission by Shri Ratish Sharma in the case of Dr.(Mrs.) P. Marwaha & Ors. Versus New India Assurance Co. Ltd., IV (2005) CPJ 162 (NC) and Flora Infotech Private Ltd. Versus National Insurance Co. Ltd., IV (2005) CPJ 35 (NC), does not in any manner advance the case of the appellant, nor are attracted to the facts of this case looking to the view that we have taken based on the pleadings of the parties.



7. Next submission of Shri Ratish Sharma was that the check dams were never insured, only two ponds and one tank was insured. These were located at a height of above the Nallah, therefore according to him the claim was fictitiously lodged by the respondent. Here again at the risk of repetition, when asked what he had to say on the visit of its Agent and Development Officer at the spot, he had no answer. Likewise on this very basis submission based on the statements of S/Sh. Badan Singh and Ram Kumar also does not improve the case of the appellant in any manner, whatsoever. In our opinion, the best persons who could have said anything whether spot was visited for its verification as well as for arriving at its valuation were the Agent and Development Officer especially in the face of the pleadings of the respondent in her complaint. They have been withheld. Therefore, we are of the view that impugned order suffers from no infirmity which may call for interference in this appeal.



8. No other point was urged.



In view of the aforesaid discussion, we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own costs.



All interim orders passed from time to time in this appeal shall stand vacated forthwith.



Office will provide copy of this order to Shri Ratish Sharma, Advocate at Shimla. Attorney of the respondent Shri Dina Nath submitted that copy of this order may be sent to the respondent at her address Smt. Shankari Devi, W/O Sh. Hari Ram, R/O Village Ambehra Ram Kishan, P.O. Ambehra Dhiraj, Tehsil Bangana, District Una. This prayer is accepted and office is directed to send the same at this address.



Una,

Novermber 24, 2009.

FIRST APPEAL NO.111/2007.

DATE OF DECISION: 20.11.2009

In the matter of :


Sh. Surinder Singh Jaswal son of Sh. Wattan Singh, resident of Village Kuthara Jaswalan, Tehsil Amb, District Una, H.P.

… … Appellant.

Versus



1. Life Insurance Corporation of India, Northern Zone Shimla through its Divisional Manager.

2. Life Insurance Corporation of India, Branch Office Amb, Tehsil Amb, District Una, H.P. through its Branch Manager.

… … Respondents.


Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the Appellant: Mr. Raghav Sood, Advocate. Appellant is also present in person, who has been identified as such by Mr. Sood.

For the Respondents: Mr. Varinder Dharmani, Advocate.


O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



1. When this appeal was taken up for hearing, learned Counsel for the appellant drew our attention to M.A.No.288/2007 filed by him for production of additional evidence. In this application, prayer is made that we may call for the records of the case and also various documents filed with the present case as well as previous Complaint No.70/2003, decided on 26.2.2004 by the District Forum below. In this behalf at the time of hearing, it was not disputed between the parties that this complaint was disposed of with the direction to the respondents to decide the claim of the appellant within two months from the date of receipt of copy of the said order. Per Mr. Dharmani, learned Counsel for the respondents, copy of the order was received on 31.3.2004. Further according to him, discharge voucher etc. having not been submitted by the appellant, claim remained pending and finally the payment of admissible amount was made on 3.7.2004. Therefore according to him there was no delay justifying grant of interest for which this appeal has been filed by the appellant.



2. Before dealing with this application for additional evidence, we may notice the broad principles on which an application for additional evidence is to be considered. These are according to us, when a litigant was not in the know of such evidence after exercise of due diligence; or when a party intended to file such evidence but the lower Fora refused to entertain the same; and if the appellate authority needs it for coming to a correct conclusion. So far last situation is concerned, we do not require the additional evidence sought to be produced. As such, now we shall have to deal with the other two situations. It was conceded at the time of hearing that the appellant was very well in the know of the existence of previous litigation as well as evidence that is intended to be produced by way of additional evidence. Therefore, it is not the case of either his being not aware after exercise of due diligence or that lower Fora having refused to entertain the evidence that is now intended to be filed by way of additional evidence. Accordingly, looking to the totality of the facts and circumstances of this case, we reject this application.



3. Now we shall deal with the merits of the appeal. This appeal has been filed for enhancing the rate of interest from 9% to 12% per annum on the amount already paid but not from the date as awarded by the District Forum below i.e. 26.4.2003 but when the wife of the appellant had died i.e. in the year 1993. This stance was seriously contested by the learned Counsel for the respondents. As according to him, if the respondents had not settled the claim of the appellant, he ought to have taken such recourse as was available to him in accordance with law. Per Mr. Sood, there is unnecessary and unsolicited correspondence exchanged by the respondents which resulted in belated filing of the Complaint No.70/2003. Thus, according to him refusal of interest is neither justified nor is warranted in the circumstances of this case.



4. After having considered respective submissions urged on behalf of the parties, we are of the view that merely because the respondents dragged the appellant into unwarranted and unsolicited correspondence, cannot be made a ground for allowing interest right from 1993 as was forcefully urged by Mr. Sood, learned Counsel for the appellant. Nothing prevented his client to have taken recourse to law for redressal of his grievance. That has admittedly not been done. We are also alive to the situation that there is long gap of 10 years when the wife of the appellant died, and when he filed the first complaint thereafter, after 1½ years claim was allowed by the respondents to him.

5. This is one aspect of the case, whereas submission of Mr. Dharmani was very simple and short that his client bonafide accepted the claim and has paid the amount without any undue delay. Thus, he prayed for dismissal of this appeal. Reference was made by the learned Counsel for the parties to a number of decisions for enhancement of interest and particularly by Mr. Dharmani for rejection thereof. Therefore, now the question that needs consideration is how to adjust the equities and in what manner. Admittedly the wife of the appellant had died in the year 1993, we are at the close of year 2009. Ordinarily respondents being limb of the welfare State constituted under a beneficial legislation were expected to have moved swiftly with utmost expedition and dispatch in having settled the claim of the appellant within a reasonable time. When needful was not done, appellant approached the District Forum below. What explanation respondents had to offer for non settlement of claim from 1993 to 2003, atleast from record we could not decipher anything. We may hasten to add here that may be respondents were remiss in having settled the claim of the appellant within reasonable time, then the appellant is also equally to be blamed for having not immediately approached the Court and having awaited till 2003, exchange of correspondence does not stop the cause of action from running once it starts. In these circumstances looking to the midway, we feel that interest of justice will be well served if the appeal is partly allowed thereby directing the respondents to pay interest on the awarded amount @ 9% per annum not from 26.4.2003 but from a date anterior to date as allowed by the District Forum. Accordingly while partly allowing this appeal, and consequently modifying the impugned order of the
District Forum below, Camp at Amb, in Consumer Complaint No.105/2004. dated 26.2.2007, we direct that the interest would be payable on and with effect from 1.1.1999 till the date of payment/deposit whichever is earlier. At this stage, Mr. Dharmani drew our attention to the fact that the payment was made on 3.7.2004. As such, interest would be payable only upto this date. Appeal is disposed of subject to this modification, leaving the parites to bear their own costs.



Learned Counsel for the parties submitted that copy of this order may be sent to them at their address, District Courts, Una, free of cost as per rules. Office will do the needful.



Una,

November 20, 2009.

FIRST APPEAL NO.191/2007.

DATE OF DECISION: 20.11.2009

In the matter of :

Life Insurance Corporation of India, through its Senior Divisional Manager, Divisional Office, Block No.14-15, SDA Complex, Kasumpti, Shimla-9.

… … Appellant.

Versus



Smt. Kamlesh Kumari wife of late Shri Rajinder Kumar Sharma, resident of Village Rehi, P.O. Bharwain, Tehsil Amb, Distt. Una, H.P. presently residing at Village & P.O. Thanikapura, Tehsil Amb, District Una, H.P.

… … Respondent.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No



For the Appellant: Mr. Varinder Dharmani, Advocate.

For the Respondent: Mr. Virendra Sharma, Advocate.

O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).



1. We have heard learned Counsel for the parties and have also examined the record of the complaint file.



2. Admitted facts giving rise to this appeal are that deceased Shri Rajinder Kumar Sharma had obtained insurance policies, Annexure R.II, which was in force with effect from 28.6.2001 and Annexure R.I which was in force from 1.9.2001 Both these policies were for a sum of Rs.1,00,000/- each. Insurance premium payable was half yearly.



3. Life-assured, i.e. Shri Rajinder Kumar Sharma died on 11.12.2001. In these circumstances, when claim was lodged by the respondent for being indemnified for the sum assured, it was turned down on the ground that the deceased had obtained both the policies by suppression of material and correct facts regarding his state of health when he obtained these policies. He was suffering from tuberculosis and bronchial asthma. Both these diseases he had not given in the proposal form. To the contrary, he had replied in the negative regarding his suffering at the time of proposing for insurance or had suffered from any such disease. Matter did not rest here, because appellant got this matter looked into from its staff when these facts were highlighted regarding suppression of facts. This resulted in filing of Complaint No.142/2004 alleging deficiency of service etc. on the part of the appellant. Complaint was contested on the aforesaid ground by the appellant. District Forum below while allowing the said complaint, has directed the appellant to pay the sum assured in respect of policy bond No.151111289 (Annexure R.I) plus vested bonus alongwith interest @ 9% per annum from the date of complaint i.e. 7.10.2004 till the date of realization of the said amount. Cost of Rs.1,000/- has been levied. Hence this appeal.



4. At this stage learned Counsel for the respondent pointed out that there is clerical error in the impugned order of the District Forum below because amount of policy bond, Annexure R.II, which was in force from 28.6.2001 had not been allowed and he had filed an application for correction of this clerical error. We say nothing in this behalf save and except that the respondent will be at liberty to get the correction carried out if this is the situation.



5. In the aforesaid circumstances, Mr. Dharmani, learned Counsel for the appellant submitted that the contract of insurance is based on utmost bonafide and good faith on the doctrine of uberrima fides. However, according to him, this is a case of non medical policy, therefore a heavy duty was cast upon the life-assured, Shri Rajinder Kumar Sharma to have disclosed the correct facts of his state of health while proposing for insurance. Thus, on this ground alone this appeal deserves to be allowed and he prayed for accordingly.



6. On the other hand while repudiating the pleas urged in support of this appeal, Shri Sharma on behalf of the respondent urged that there is no nexus between the alleged disease and the cause of death. Nor any evidence has been produced by the appellant. Per him, the impugned order suffers from no infirmity which may call for interference in this appeal.



7. So far contract of insurance being based on bonafide and good faith is concerned, there can hardly be any dispute with this legal proposition. However we feel that in order to succeed on the plea of the suppression of material facts regarding his state of health at the time of undertaking insurance, appellant-insurer was also required to further establish that there was direct nexus between the cause of death and the disease that was allegedly withheld by the deceased i.e. the life-assured. Once this conclusion is arrived at, then the decision of this appeal need not detain us further.



8. No other point was urged.



In view of the aforesaid discussion, we find no merit in this appeal which is accordingly dismissed leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned Counsel for the parties submitted that copy of this order may be sent to them at their address, District Courts, Una, free of cost as per rules. Office will do the needful.

Una,

November 20, 2009.

FIRST APPEAL No. 123/2009.
DECIDED ON 17.11.2009.

In the matter of:
1. Life Insurance Corporation of India, through its

Senior Divisional Manager, Bock No. 14 & 15,

SDA Complex Kasumpti, Shimla 171 009;



2. The Branch Manager, LIC Branch, Raura Sector Bilaspur,

District Bilaspur, Himachal Pradesh.

... ... Appellants.

Versus



Smt. Rattani Devi W/o Sh./ Dhani Ram R/o Village Kuthera,

PO Malangan, Tehsil Jhandutta, District Bilaspur, HP.

... ... Respondent.

Hon'ble Mr. Justice Arun Kumar Goel (Retd.), President

Hon’ble Mr. Chander Shekhar Sharma, Member.

Whether approved for reporting? Yes.
For the Appellants: Mr. Navlesh Verma, Advocate.



For the Respondent: Ms. Neelam Kaplash, Advocate vice

Mr. Jeet Ram Poswal, Advocate.
O R D E R:

Justice Arun Kumar Goel (Retd.), President (Oral).


Only ground urged by Mr. Navlesh Verma in support of this appeal was, that the District Forum below ignored vital facts regarding date of accident, as well as the date when the premium was deposited by the deceased, and his date of death. According to him these dates were very material for determination of the Consumer Complaint No. 131/2006, decided on 26.2.2009 by the District Forum Bilaspur, Camp at Ghumarwin. He thus prayed for allowing this appeal by setting aside the impugned order while dismissing the complaint.

2. In the light of the above plea urged by Mr. Verma facts giving rise to this appeal are being briefly noted. Double Benefit Accident Policy was obtained by the deceased Ashwani Kumar son of the respondent. Its premium payable was quarterly in the sum of Rs. 836/-. Premium was payable on 28th of March, 28th of June, 28th of September and 28th of December every year. According to learned counsel for the appellant premium due on 28.12.2005 had not been paid either on the due date or within the extended period, i.e. upto 27.1.2006. Thus according to him, when the deceased met with accident on 30.1.2006 his policy was in a lapsed condition.

3. It is again not disputed on behalf of the appellants that premium was paid by the deceased during his life time after accident on 7.2.2006 alongwith interest but before his death and he died on 9.2.2006.

4. With a view to advance the case of the appellant, Mr. Verma submitted that there was no evidence to suggest that the death of the life assured, i.e. the son of the respondent, late Mr. Ashwani Kumar was attributable to the accident. This aspect was also ignored by the District Forum below, thus it fell into error by allowing the complaint and directing his clients to pay Rs. 50,000/- to the complainant with interest @ 9% per annum from the date of filing of the complaint, i.e. 30.8.2006 till realization, alongwith cost of Rs. 2,000/-. All these pleas were seriously contested by Ms. Neelam Kaplash Advocate appearing for the respondent. According to her premium was paid by the deceased during his life time alongwith interest etc. the receipt of which is not in dispute. Besides this, appellants were estopped by their acts and conduct from challenging the impugned order, after having paid the sum assured to the extent of Rs. 52,300/-.

5. In case the policy was in a lapsed condition as claimed by the appellants there was no reason, muchless ground for them to have Rs. 52,300/- to the respondent. Deceased during his life time had paid the delayed premium with interest it was only after its acceptance and treating it to be a valid payment, that the aforesaid sum was paid by the appellants to the respondent.

6. In the face of this admitted position we find no reason to hold as to why the benefit of double accident could be denied by appellants to the respondent. Reason being that either the policy was in a lapsed condition or it was in force. In case of former, no amount would have been paid by the appellant, and in case of latter situation there is no basis where under they could withhold the amount in question. District Forum below has gone into this aspect with reference to clause 10-2(b) of the terms and conditions of the policy bond.

7. We are further of the view that it is not the case of the appellants that the deceased had either mis-stated and or withheld any material fact to gain advantage. If this was the situation, no amount would have been paid to the respondent as noted hereinabove.

8. No other point is urged.

In view of the aforesaid discussion this appeal has no substance and the same is dismissed thereby upholding the order of the District Forum Bilaspur, Camp at Ghumarwin, in Consumer Complaint No. 131/2006, decided on 26.2.2009, leaving the parties to bear their own costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

Shimla

November 17, 2009

FIRST APPEAL NO. 121/2009.

DATE OF DECISION: 13.11.2009
In the matter of:

Manager, Life Insurance Corporation of

India, Branch Bilaspur, District Bilaspur, HP.

… …. …. Appellant.

Versus
1. Smt. Shubh Dei Wd/o late Sh. Karam Singh;



2. Sh. Surjeet Singh son of late Sh. Karam Singh;



3. Sh. Daljeet Singh son of late Sh. Karam Singh;
4. Sh. Dinesh Kumar son of late Sh. Karam Singh

All R/o Vill. Bari-Majhewan, Pargana, Tiun,

Tehsil Ghumarwin, Distt. Bilaspur, H.P.

5. Sh. Hans Raj Verma R/o VPO Sunhani

Tehsil Jhandutta, Distt. Bilaspur.



… … … Respondents.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.



Whether approved for reporting? Yes.



For the Appellant: Mr. Narinder Sharma, Advocate.



For the Respondents: Mr. Nareshwar Singh Chandel, Advocate.



O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).

Facts as set out in the complaint out of which this appeal has arisen briefly noted are, that late Shri Karam Singh Chandel got himself insured on 28.7.2004 with the appellant. He died on 23.3.2006. Policy bond is Annexure C-5. Date of its commencement as well as date of commencing risk in terms of this document is from 28.7.2004. Sum assured was Rs. 1 lac and its table term and premium paying term was 14-20 (20). Rs. 3480 was the half yearly premium payable on 1st January and 1st of July each year. Respondent No.1 is his widow and respondents 2 to 4 are his sons. Further case set out by the respondents 1 to 4 in their complaint was, that deceased had got himself insured through respondent No.5 and had also been paying the installments through him which were accepted by the appellant.



2. After the death of life assured, i.e. late Shri Karam Singh Chandel, respondents 1 to 4 lodged their claim as his legal representatives, but the payment was not made by the appellant. Legal notice was also got served by these respondents creating demand, but without any consequence. This resulted in filing of the complaint. Respondents 1 to 4 claimed Rs. 1 lac alongwith expense of the litigation, and for other hardships, mental and physical claimed a further sum of Rs. 50,000/- from appellant, as well as respondent No.5 who both were arrayed as opposite parties in the complaint No. 13/2007 that was allowed only against the appellant on 24.3.2009 by the District Forum Bilaspur, Camp at Ghumarwin.



3. When put to notice stand of the appellant in its reply was, that the complaint was not maintainable, and as far as possible it has to act on business principles. Besides this dismissal of complaint was prayed because of acts, conduct, deeds, omission and commission on the part of the deceased-Karam Singh Chandel. According to it the policy was lying in a lapsed condition since January 2006, therefore respondents 1 to 4 were not entitled to any indemnification. They had not approached the District Forum below with clean hands and the complaint was totally devoid of merit. Further case of the appellant was that the respondents 1 to 4 are not “consumers”, under Consumer Protection Act, 1986 and at the same time there was no deficiency on its part. Jurisdiction of the District Forum below was also disputed. While admitting insurance having been done, pith and substance of the reply filed by the appellant was, that the policy was lying in a lapsed condition since January, 2006. At the same time it was pleaded that agents were not authorised to receive premiums from the life assured like the deceased-Karam Singh Chandel in the present case. In addition to this it was also denied that premium was paid through respondent No.5. As per Annexure R1-2 status report, only three premiums were paid. In these circumstances appellant was not liable to indemnify the respondents 1 to 4.



4. On the other hand stand of respondent No.5, who was the agent in reply to the complaint was, that the complaint was not maintainable because of the acts, conducts, deeds commission and omission on the part of the deceased. He further stated that the policy was lying in a lapsed condition since January, 2006. Per him the respondents 1 to 4 were not consumers and there was no deficiency on his part. He was not authorised to receive premiums from the life assured, nor did he ever agreed to pay the same. He admitted that the deceased Shri Karam Singh Chandel has purchased one life insurance policy through him, subject to terms and conditions mentioned therein. He further denied that the entire premiums were paid through him. Rather he pleaded that deceased or his family members themselves used to pay the premium installments, and he had no authority to receive the same. His stand is by and large identical to what has been stated by the appellants.



5. In the aforesaid background, respondents filed evidence by way of affidavit of Daljeet Singh respondent No.3, Vikram Singh, Ramesh Kumar and of Smt. Lata Kumari to show that the deceased had obtained LIC policy and premium was being paid by him through respondent No.5-Has Raj Verma, the agent. According to affidavit of Vikram Singh Annexure C-2, amount was paid in January, 2006 by the deceased to respondent No.5. Further he has testified that Ramesh Kumar and Lata Kumari had also paid the amount of their insurance premiums to deposit the same in his presence to respondent No.5. Ramesh Kumar and Lata Kumari have reinforced the stand of Daljeet Singh, respondent as well as of Vikram Singh in their separate affidavits.



6. On the other hand Hans Raj Verma respondent No.5 has filed his own affidavit Annexure R-1, and has denied having been paid renewal premium by late Shri Karam Singh through him to deposit the same in the office of the appellant. And as per regulations he was not authorised to collect the insurance premium. On behalf of the appellant affidavit of Shri Satpal its Marketing Manager is there. He has reinforced the stand of the appellant as noted hereinabove.



7. District Forum below after hearing the parties vide impugned order has directed the appellant to pay to respondents 1 to 4 the sum insured after deducting due premium and also unpaid premium falling due with interest @ 9% per annum from the date of filing of the complaint, i.e. 14.2.2007 till realization. Appellant has also been directed to pay Rs. 2000/- as cost of litigation. Hence this appeal.



8. In this appeal respondent No.5, Mr. Hans Raj Verma was duly served as per acknowledgement due (A.D), placed on part B of the appeal file, on 26.5.2009. He did not appear on the date fixed, i.e. 30.6.2009, as such was set ex-parte. This appeal was heard on 11.11.2009. According to us only question that needs consideration in this appeal is, whether there is evidence on record to accept the plea of respondents 1 to 4 that deceased-Karam Singh Chandel in his life time had paid the premium for the month of January, 2006 to respondent No.5 or not. If we accept this stand of the respondents, then the further question that will arise is as to who is liable to indemnify them, i.e. whether the appellant or respondent No.5.



9. At the very outset, we may notice that under the Agents Regulations framed by the appellant, they i.e. the agents like respondent No.5- Hans Raj Verma were not authorised to have collected premium on behalf of the appellant from the life assured, like deceased-Karam Singh Chandel in the present appeal. This question has been set at rest by the Hon’ble Supreme Court in the case of Harsad J. Shah and another V. LIC of India and others, AIR 1997 SC 2459. After having followed this decision of the Hon’ble Supreme Court, National Commission in the case of Life Insurance Corporation of India Vs. Girdhari Lal P. Kesarwani and another, 2009 CTJ 406 (CP) (NCDRC) has allowed the appeal of the appellant and dismissed the complaint of the respondent before it.



10. We specifically confronted Mr. Nareshwar Singh Chandel, learned counsel for respondents 1 to 4 as to how does he support the order of the District Forum below in the face of the stand of his clients in the complaint, as well as in the evidence filed by them, as briefly noted hereinabove. He submitted that in the light of document Annexure C-6, readwith Section 63 of the Contract Act the grace period was extended by the appellant for payment of the premium upto 28.8.2006. This Annexure was received by the deceased during his life time, therefore, condition No.2 of policy bond Annexure C-5 regarding payment of premium stood modified and time was extended till 28.8.2006. Thus according to him the impugned order suffers from no infirmity which may call for interference in this appeal at the instance of the appellant. With a view to advance this submission, Mr. Chandel further submitted that the existence of this document including the same having been sent by the appellant to the deceased during his life time was not disputed is an additional ground to uphold the impugned order. He finally urged that Consumer Protection Act, 1986 being a beneficial piece of legislation needs to be interpreted in a manner favourable to consumers, like respondents 1 to 4 in this appeal, particularly when two views are possible in a given case as is the situation in the present appeal. He thus forcefully urged that this appeal deserves to be dismissed with costs.



11. Annexure C-6 is a document filed by respondents 1 to 4 alongwith their complaint. There is not a murmur in the complaint regarding this document. At the risk of repetition, we may notice here that whole thrust of the case of respondents 1 to 4 in the complaint as well as in the evidence filed by them is, that the deceased had got himself insured through the respondent No.5, the agent of the appellant and through him all premiums including the last one were paid for being deposited with the appellant. This position is stated by Daljeet Singh in his affidavit, and is reinforced by his witnesses whose affidavits are there on the record being Annexures C-2 to C-4. When confronted with this situation, Mr. Chandel submitted that filing of evidence Annexures C-1 to C-4 by way of affidavits, as well as nothing having been said in the complaint vis-à-vis C-6 does not make any difference when the appellant does not dispute issuance of Annexure C-6. Suffice it to say in this behalf that the question of denial on the part of appellant of Annexure C-6 would only come when a plea was raised by respondents 1 to 4 in the complaint with reference to this document. And as already observed not only in the complaint, but even in the evidence also the stand reiterated time and again by the respondents 1 to 4 is, that the premium for January 2006 was paid by the deceased in the presence of Vikram Singh and other two deponents, who have also been paying their insurance premiums to Hans Raj Verma respondent No.5 in this appeal for being deposited with the appellant.



12. We have already held that Annexure C-6 is not referred to either in the pleadings or in the evidence. Therefore there is no question of appellant having not disputed the same. Why no reference is made to this document in the complaint as well as in the rejoinder filed by his clients, Mr. Chandel submitted that for negligence/remissness on the part of their counsel, respondents 1 to 4 should not be allowed to suffer. We say nothing in this behalf. In case Mr. Chandel is certain that this is a case of negligence/remissness on the part of learned counsel it is for him to advise his client appropriately under law. We say nothing, save and except that we reject his plea.



13. We have already held on the basis of the decision of the Hon’ble Supreme Court and National Commission in the preceding paras that respondent No.5 was not authorised to accept the premium from the life assured late Karam Singh Chandel. On the basis of the evidence on record, we are satisfied that he did receive the amount of premium from the deceased in January, 2006. He was also accepting premiums for being deposited with the appellant is further established from the affidavits of other two persons referred to hereinabove. Thus he overstepped his brief and violated the agents regulations which are statutory in nature and prohibited the agents like him from collecting premiums on behalf of the appellant. Therefore, he is liable to indemnify the respondents 1 to 4 instead of appellant as ordered by the District Forum below. Ordered accordingly.



14. In the light of pleadings of the parties as well as evidence produced by respondents 1 to 4 no benefit can be taken by them from Annexure C-6. Moreover there is no pleading to the effect either in the complaint or in the rejoinder to show that this document was received by the deceased during his life time.
15. No other point is urged.
In view of the aforesaid discussions, the order passed by the District Forum Bilaspur, Camp at Ghumarwin, in Consumer Complaint No. 13/2007, on 24.3.2009 is modified and set aside against the appellant. At the same time the complaint of respondents 1 to 4 is allowed against respondent No.5-Hans Raj Verma and it is who shall be liable to indemnify respondents 1 to 4 in terms of the order passed by the District Forum below. Appeal stands disposed of subject to this modification, leaving the parties to bear their own costs.



It is clarified that respondents 1 to 4 shall be entitled to execute this order against respondent No.5-Hans Raj Verma in accordance with law.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned Counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules, and office is directed to send the same to respondent No.5-Hans Raj Verma at his address as given in the memo of parties.

Shimla,

November 13, 2009.

Decided on 5.11.2009.

Life Insurance Corporation of India,

Through its Senior Divisional Officer,

Divisional Office, Kasumpti, Shimla-9.

....Appellant.

Versus



1. Sh. Bhupender Pal S/o Sh. Parm Dev.

2. Hem Lata D/o late Smt. Hima Devi (minor)

3. Rakesh S/o late Smt. Hema Devi.



(Respondents No.2 & 3 (minors) through their

natural guardian and father Sh. Bhupender Pal)



All resident of Village Drubal, P.O. Kot,

Sub Tehsil Kotli, District Mandi, H.P. …..Respondent.
Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. G.D.Sharma, Advocate

For the Respondent. Mr. Peeyush Verma, Advocate

ORDER

Per Mr. Chander Shekher Sharma (Member).



1. This appeal is directed against the order passed by District Forum, Mandi, in Consumer Complaint No. 29/2007, decided on 23.4.2007, whereby the complaint of respondent was allowed and they were held entitled to a sum of Rs. 1 lacs under the benefits of Female Critical Illness Scheme of Jeevan Bharati Insurance Policy No. 151688549 from the appellants and interest @ 9% per annum from the date of institution till its payment with cost assessed at Rs. 2000/.



2. Smt. Hima Devi insured who had filed the complaint died during its pendency of the complaint on 7.2.2007. Appellants as her legal heirs were brought on record vide order dated 24.3.2007, of the District Forum below.



3. The facts of the case as they emerge from the complaint file are that late Smt. Hima Devi had purchased Female Critical Illness Policy, diseases covered under the policy were of various organs like breast, cervix uterus and ovaries etc. The policy was taken on 5.9.2005. It was during the subsistence of this policy, that she became seriously ill. She got herself examined at Mohan Dai Oswal Cancer Treatment and Research Foundation Hospital, Ludhiana, where it was found that she was suffering from cancer, and she was operated upon. As per clause 14 (a) of the policy, she was entitled for reimbusement of Rs. 1 lac incurred on treatment. According to her, she had spent more than 2 lacs on her treatment. She claimed of Rs. 1 lac. According to her she had also supplied necessary documents in support of her claim to appellant, it was rejected, without assigning any reasons vide letter, dated 30.9.2006.



4. In this background she had filed the complaint u/s 12 of the Consumer Protection Act, 1986 for mental harrasment, agony and tension etc. against the appellant, since there was deficiency on its part.



5. Appellant contested and resisted the complaint on the ground that the insured Smt. Hima Devi could claim benefit of Female Critical Illness Policy, only after 6 months of the issuance of the policy as per condition No.3 and clause 14 (a) of the Insurance Policy. However this fact was admitted that Hima Devi had taken the said policy for a sum of Rs. 1 lacs w.e.f. 5.9.2005 under table 160-20 for a period of 20 years.



6. Further stand in the reply was, that the insured had been suffering from breast cancer right side w.e.f February, 2006, therefore she was not entitled to the benefit of Female Critical Illness Policy. It was also alleged by the appellants that in the application addressed to the appellant by the insured which is Annexure RW-4, it was stated that she had been suffering from breast cancer w.e.f February, 2006 and she got herself treated for her ailment for breast cancer prior to her admission in Mohan Dai Oswal Cancer Treatment and Research Foundation Hospital, Ludhiana. Hence her claim was rightly rejected after due consideration and as such there was no deficiency of service on its part.



7. Appellant in support of the case filed the affidavit of Mr. M.R. Joshi, Manager ULIP, LIC of India and various documents RW-2, medical certificate RW-3 claim form No. 3816 certificate relating to hospital treatment, RW-4, application of Hima Devi, insured addressed to Branch Manager, LIC Branch, Mandi.



8. Deceased in support of her case, had filed her own affidavit.



9. We have heard Mr. G.D.Sharma, counsel for the appellant and Mr. Peeyush Verma, learned counsel for the respondent and have also gone through the record of the case minutely.



10. Learned counsel for the appellant argued that his client had rightly repudiated the claim of the deceased-insured, as per condition No.3 of clause 14 (a) of insuranc policy. She was entitled to the benefit of Family Critical Illness, only after 6 months of the commencement of ,, insurance policy. As the policy was taken on 5.9.2005, by the deceased Hima Devi and in Annexure RW-4 application addressed to the Branch Manager, LIC by Smt. Hima Devi, therein she had mentioned that she was suffering from breast cancer in February, 2006 and remained under treatment at Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana and even in Claim Forum No. 3816 this fact had been mentioned that the patient came with the report of PGI Chandigarh, as such she had not disclosed about herself suffering from breast cancer which was a serious disease as such there was material suppression of facts by the insured.



11. Learned counsel for the respondent has supported the order of Distict Forum below and argued that there was no material suppression of facts by the deceased and even exclusion clause was not explained to her on behalf of the appellant by its Agent/Development Officer. As such exclusion clause is not binding upon the insured and it cannot be taken into consideration against deceased-insured.



12. After hearing the counsel for the parties we are of the view that findings of the District Forum below do not call for interference in this appeal. Reason being that clause 14(3) of the insurance policy Annexure RW-1, which provides that the insured will be entitled to benefits of Female Critical Illness after 6 months of the commencement of insurance cover is not binding upon her, since this exclusion clause was not explained to the insured by the official of the Insurance Co./its agent when the policy was given to the deceased Hima Devi. Since there is complete violation of the provisions of Regulation-3 of the Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulation, 2002 which have been framed by the Insurance Regulatory and Development Authority (IRDA) in exercise of powers under Section 114(A) of the Insurance Act, 1938 read with sections 14 and 26 of the Insurance Regulatory and Development Authority Act, 1999. As such this appeal must fail.



13. These Regulations have come into effect from the year 2002 and the policies which are issued after 2002, are covered by the said Regulations and insures are required to follow these Regulations, in their letter and spirit. Relevant portion of Regulation-3 thereof is reproduced as under :-



“3. Point of sale- (1) Notwithstading anything mentioned in Regulation 2(e) above, a prospectus of any insuranace product shall clearly state the scope of benefits, the extent of insurance cover and in an explicit manner explain the warrantis, exceptions and conditions of the insurance cover and , in case of life insurance, whether the product is participating (with profits) or non-participating (without profits) - - - .”



(2) An insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest. ”



14. Since the exclusion clause 14(3) of the Insurance Policy had not been explained to the insured at the time of giving policy by the insurance agent/its Development Officer and there is no iota of evidence placed on record by the appellant showing compliance of Regulation-3, as such this condition of the policy cannot be used agaist the policy holder.



15. For taking this view reliance being placed on a decision of National Commission given in the case National Insurance Company Ltd., V/s D.P. Jain III (2007) CPJ 34 (NC) wherein the National Commission has held that :

“13. The aforesaid Regulation makes it clear that-



(i) the prospectus of insurance product are required to clearly state that scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance cover. The phraseology used is “mandatory” by providing that it shall be stated clearly ;



(ii) Sub-Regulation (2) provides that an insurer or its agent or other intermediary shall provide all material information in respect of proposed cover to the insured ;



(iii) Sub-Regulation 4 also provides that if the proposal and other connected papers are not filled by the prospect, a certificate is required to be incorporated at the end of the Proposal Form from the prospect that the contents of the form and documents have been fully explained to him.



14. From the above, it is amply clear that the rule making Authority has taken much care to protect the interest of the consumer. At this stage, whether the Insurance Company can contend that even though it has not followed the binding Regulations, the said Regulations/the Exclusion Clauses are yet binding to the complainant ?


15. In our view, the unexplained or unnoticed exclusion clauses would not be binding to the insured. The reason being the Regulations are of mandatory in nature so as to protect the consumer’ interests.”

16. To similar are also the decision of National Commission in United India Insurance Co. Ltd., and Anr. V/s S.M.S Tele Communications & Anr. 2009 (3) CPC 364.



17. Thus the appellant cannot take any benefit from the application Annexure RW-4 wherein the insured deceased had mentioned that she is suffering from breast cancer since February, 2006, but in this application insured had nowhere stated that she had been suffering from breast cancer prior to the purchase of the policy and simple writing in the claim form Annexure RW-3 in column No.3 will not prove that the insured was suffering from breast cancer prior to the taking of insurance policy since no record of the PGI Chandigarh had been produced by the Insurance Company. Hence there is no force in the argument raised by the counsel for the appellant.



18. No other point was urged.



19. In view of the above discussion and keeping in view the legal position explained above, we are of the considered view that there is no reason to interfere with the well reasoned order passed by District Forum, Mandi in Complaint Case No. 29/2007, decided on 23.4.2007 and same is upheld. We do not find any merit in this appeal, as such same is dismissed leaving the parties to bear their own costs.


20. All interim orders passed from time to time shall stand vacated forthwith.
21. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.

F.A.NO.570/2006
(Against order in O.P.No.549/1997 on the file of the DCDRF, Chennai (South)

DATED THIS THE 30th DAY OF NOVEMBER 2009

Minor R.Divya

Rep. by Mother and

Next friend R.Devikarani

74, Harris Road, Pudupet

Chennai - 600 002 Appellant / Complainant

Vs.

1. Life Insurance Corporation of India

Rep. by its Zonal Manager

Southern Zonal Office,LIC Building

102, Anna Salai, Chennai - 2



2. Senior Divisional Manager

Life Insurance Corporation of India

Madras Divisional Office I

LIC Building, P.B.324

Anna Salai, Chennai - 2



3. Branch Manager

Life Insurance Corporation of India,

Branch XXVI, Pudupet, Anna Salai, Chennai - 2



4. Dr. M. Anandan

Asst. Surgeon & AMA

Government Royapetah Hospital

18, Thulasinga Naicker Street

Pudupet, Chennai - 600 002 Respondent/ Opposite Parties



The Appellant as complainant filed a complaint before the District Forum against the Respondent /opposite parties praying for the direction to the opposite party to pay a sum of Rs.1 lakh towards policy claim and Rs.50000/- as compensation. The District Forum dismissed the complaint. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.20.07.2006 in CC No.549/1997.

This petition coming before us for hearing finally on 19.11.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:

Counsel for the Appellant/ Opposite party: M/s.Shivakumar, Advocates

Counsel for the Respondent/ Complainant: Mr. V. Murali, Advocates



M. THANIKACHALAM J, PRESIDENT.



1. The unsuccessful complainant in OP No.549/1997, on the file of District Forum, Chennai (South), is the appellant.



2. The father of the complainant, Ravichandran, insured his life, with the opposite party on 2.1.1994, by paying a premium of Rs.1529/-, in which he has nominated the complainant, as his nominee. Unfortunately, the father of the complainant, all of a sudden died on 7.4.1994. Under the policy, being the nominee, the complainant is entitled to the sum assured. On that basis a claim was made, which was repudiated. Despite letters and notice, the opposite party failed and neglected to pay the sum assured under the policy, which should be construed as deficiency in service. On the basis of the above allegations, a claim came to be filed for the recovery of a sum of Rs.1 lakh, being the sum assured, as well as another sum of Rs.50000/- as compensation.



3. The respondents/ opposite party, admitting the policy, would contend that while submitting the proposal form, the insured had suppressed the material facts, viz. that he was suffering from ischemic heart disease, which was revealed even by the medical attendance certificate, given by the complainant, and on that basis alone, the claim was repudiated legally, which cannot be taken as deficiency in service, thereby prayed for the dismissal of the case.



4. The District Forum, considering the rival contentions of the parties, and evaluating the documents, produced before them, reached the conclusion that the father of the complainant, having knowledge about the disease, which he was suffering, has not disclosed the same in the proposal form, and on that basis, when it was verified and found correct, the repudiation was well within the right of the insurance company. Thus concluding, the claim came to be dismissed on 20.7.1996, which is under challenge before us.



5. Heard the learned counsel for appellant as well as the respondents, perused the written submission in addition to the documents filed by them, and also the order of the District Forum.



6. The learned counsel for the complainant / appellant, would submit that the deceased Ravichandran was hale and healthy, and he never took any treatment from any doctor, that he had no knowledge also about the disease, if any, and this being the position, the District Forum concluding that the insured had suppressed the material facts, dismissed the claim, which is not sound, and in this view, it required to be set aside.



7. Per contra, it is the submission of the learned counsel for respondent/ opposite party, that while submitting the claim, the guardian of the minor complainant, herself has stated about the disease, which her husband was suffering, which is supported by the certificate issued by the doctor, under whom Ravichandran had taken treatment, and only consequences to that disease alone, Ravichandran died within two months, from the date of taking the policy, and considering all these facts, they were constrained to reject the claim of the claimant, in which there is no illegality or irregularity, which was rightly analysed and confirmed by the District Forum, thereby praying for the confirmation of the order.



8. Ex.B1 is the policy in question, wherein the insured has declared under the "personal history", that his state of health was good, on the basis of the above declaration, as well on the basis of the certificate issued by the panel of doctors, his life was insured, admittedly. But unfortunately, Ravichandran died on 7.4.94, i.e., within two months from the date of taking the policy. After the death, the claim was lodged by producing medical attendance certificate (Ex.B7), the claim statement, and a certificate issued by one Dr.M. Anandan. In the medical attendance certificate, the doctor who has impleaded as 4th opposite party, has stated that Ravichandran's death was caused, due to primary cause of cardiac arrest, and secondary cause being ischemic heart disease. In the same certificate he has further stated for the question "did you attend him during the whole of its course? If not state during what period? -" One year prior to his death". His date of death is 7.4.94, one year prior to death means, he was suffering this kind of disease from 7.4.93, i.e., even at the time of taking the policy. Under clause 9 of this medical attendance certificate, it is said "for minor medical ailment for one year prior to his death". This form was attached with the claimant statement, where the claimant viz. the mother of the deceased also signed on 12.6.1994. Ex.B10, is the certificate issued by doctor, wherein also he has stated that deceased Ravichandran came to him one year prior to his death, complaining of chest pain, ECG done etc., thereby showing that on the date of taking the policy or at the time of giving proposal, Ravichandran was suffering from ischemic heart disease, which lead to cardiac arrest, being the cause for death on 7.4.94. This is not an ordinary disease, and the disease which Ravichandran was suffering is the cause for his death. It is the case of the doctor, that Ravichandran himself had come to him for treatment, then it should be presumed normally as well ordinarily, that he had knowledge about the disease, which he was suffering. In view of the above fact, while giving proposal, as well as while taking the policy, he had suppressed the material fact, about his health, whereas he had falsely declared as if his state of health was good. Based upon the above documents, a communication was sent on 13.5.95, to the mother of the minor claimant, informing that they have decided to repudiate the claim, on account of the deceased having withheld the material information regarding his health at the time of effecting the assurance with them, further informing if the claimant is not satisfied, asking for further representation. The representation sent by the wife of the deceased, has no effect of superceding the decision, because of the document referred above, and therefore consequentially, the insurance company has repudiated the claim, in which we are unable to find any illegality. As rightly pointed out by the District Forum, the claimant also informed the insurance company that "the past medical records and the ECG scripts are not available right now", thereby informing that the treatment might have been taken by Ravichandran, which is proved by the medical attendance register, as well the certificate issued by the doctor, who is residing nearby the complainant's house.



9. The learned counsel for the complainant/ appellant, would submit that the parties have approached Dr.Anandan, only for getting the death certificate, and therefore the inclusion of anyother particulars, may not be correct, which we are unable to accept. There is no enemity of any kind between the complainant and Dr.Anandan, and therefore there is no axe to grind, by the 4th opposite party, to give any false certificate alleging anything wrong, in the certificate issued by him. In view of the fact that the claimant had approached the doctor, and in view of the fact that the deceased was treated by him, probably only without knowing the consequences, endorsed all the particulars in the certificate, which are now acting against the claimant, and in order to evade the same, an argument was advanced, as of those things are inadmissible and the disease was not identified or something like that, which is unacceptable to us.



10. It is not the case of the insurance company, or even the complainant that Ravichandran was suffering with someother disease, not connected with heart, and the death was not due to the disease, which was suppressed, and therefore, non-disclosure of the same either in the policy, or in the proposal form, cannot be taken as suppression of material facts. As pointed out by us supra, the deceased Ravichandran was having only heart problem and due to cardiac arrest alone, his life came to be an end, and therefore the disease suppressed, has direct bearing with the cause of death, and in this view it is materials, and its suppression makes contract, which is very essential, as void.



11. The learned counsel for the appellant, inviting us to number of decisions, rendered by the National Commission and State Commissions, urged that the suppression of material fact, about the health cannot be the reason to reject the claim or repudiate the claim. By going through the decisions relied on by the learned counsel for appellant, we are unable to find any support from those decisions also.



12. In the case decided by the National Commission in Life Insurance Corporation of India Vs. Badri Nageswaramma reported in 2005 (1) CPR 104 (NC), it appears the deceased had no knowledge about his sufferings from any ailment, and the alleged disease also was not the cause of the death. In this view, the National Commission observed, that Life Insurance Corporation cannot repudiate the claim, on the ground of policy taken by false representations, and suppressed the material facts, without proving that fact by proper evidence. In the case on our hand, by documents produced by the claimant themselves, the suppression is well established.



13. In Life Insurance Corporation of India, Ahmedabad Vs. Patel Ganesh Bhai Ramji, reported in 2007 (2) CPR 123 (NC), the ratio laid down is that Life Insurance Corporation cannot repudiate the claim on flimsy grounds, whereas they are liable to pay insured amount, with interest to the complainant. Probably on the ground, that the treatment taken by the deceased has no nexus to the cause of death, which is not the case in the case on our hand.

In another case, Barveen Damani Vs. Oriental Insurance Company, reported in 2006 (3) CPR 295 (NC), the repudiation was on the ground of pre-existing disease, claiming exclusion, whereas it is not the case in our hand. Thus analyzing the case of the complainant, it should be held unhesitatingly that the deceased Ravichandran, having knowledge about his heart ailment, having taken treatment, prior to the date of taking the policy, suppressed that fact, which is material in nature, and on that ground, the repudiation of the claim by the insurance company is well justified, which is also in a way supported the rulings of the Apex Court, as pointed out before us in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., and an unreported judgement in Civil Appeal No.2776/2002, which is followed by this commission in AP.NO.200/ 2005, while considering the material fact, as ruled by the Apex Court, in Oriental Insurance Co. Ltd., Vs. Munimahesh Patel reported in 2007-2-Law Weekly, page 661 , that



“The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.”



In the case involved, in the above decision also, the deceased therein while giving proposal and taking policy, declared that his health condition was sound, whereas it was proved that the deceased, was a known case of chronic renal failure/ diabetic nephropathy, and on that basis, the repudiation done by the insurance company was upheld, which dictum is squarely applicable to the facts of this case. The District Forum, considering all these facts, in our considered opinion, has rightly rejected the claim of the complainant, which deserves only seal of our approval.



14. In the result, the appeal is dismissed, confirming the order of the District Forum in O.P.No.549/1997 dt.20.7.2009. Considering the facts and circumstances of the case, there will be no order as to cost in the appeal.

F.A.NO.803/2008
(Against order in C.C.No.52/2002 on the file of the DCDRF, Salem)

DATED THIS THE 6th DAY OF NOVEMBER 2009

The Managing Director

Tamil Nadu Transport Corporation

Salem Division, Salem-7 Appellants /1st opposite party


Vs.
1. A. Sukiradha

W/o. Late Amalraj

No.1/52, V.O.C. Nagar

Uthiramppan Kadu

Maniyanoor Post 1st Respondent/ Complainant

Salem – 7

2. M/s. Life Insurance Corporation of India

Branch Office, South Branch

30B, Sannathi Street, Fort

Salem 2nd Respondent/ 2nd Opposite party

The 1st Respondent as complainant filed a complaint before the District Forum against the Respondents / opposite parties. The District Forum allowed the complaint directing the opposite part to pay Rs.2 lakhs with 9% interest p..a, with compensation of Rs.15000/- and cost of Rs.1000/-. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.03.04.2007 in C.C.No.52/2002.



This petition coming before us for hearing finally on 06.11.2009. Upon filing the Joint Memo Compromise by either counsels this Commission made the following order:



Counsel for Appellant/ 1st Opposite party: Mrs.B.Vijayalakshmi, Advocate

Counsel for 1st Respondent/ Complainant: Mr.V. Balaji, Advocate

Counsel for 2nd Respondent/2nd Opposite party: Mr.P.Saravanan, Advocate.



Hon’ble M. THANIKACHALAM J.



1. The respondent in this appeal as complainant moved the District Forum in CC No.52/2002, for the recovery of a sum of Rs.2,00,000/-, in addition to compensation, on the ground that for the deficiency committed by the opposite parties, the should be directed to pay a sum of Rs.2 lakhs, being the policy amount assured, with interest thereon, in addition to seeking further direction for a sum of R.15000/- towards deficiency in service, and for further sum of Rs.10000/- for mental agony, as well for the cost of Rs.3000/-.



2. The 1st opposite party/ appellant, though appeared through counsel, not filed written version and contested the case, whereas the 2nd opposite party alone filed written version, and opposed the claim.



3. The District Forum, considering the rival contentions of the parties, as well as the absence of any defense from the appellant/ 1st opposite party, has come to the conclusion, that there was deficiency in service, followed by a direction, which reads “The first opposite party is directed to pay a sum of Rs.2,00,000/- with interest at 9% and directed the first opposite party to pay a sum of Rs.5000/- for the deficiency in service and to pay Rs.10000/- for mental agony with cost of Rs.1000/-“.



4. Aggrieved by the decision, though failed to contest the case before the District Forum, the 1st opposite party preferred this appeal. The complainant though unable to get an order against the 2nd opposite party viz 2nd Respondent herein, has not challenged the said order, thereby praying a joint and several decree or liability, against both the opposite parties, and in this view, the finding rendered in favour of the 2nd opposite party, holding not liable, generally, should be accepted or in other words it should not be disturbed.



5. When the matter came up before this Forum, elaborate arguments were submitted on either side, and it is the submission of the appellant that they are not liable to pay the amount, and if at all the 2nd opposite party alone should pay the claim. Whereas, it is the submission of the 2nd opposite party, against whom there is no order, since premium is not paid by the employer, towards the policy, for which amounts were claimed, they are not liable to pay.



6. It is the submission of the complainant, that though she has not preferred any appeal against the dismissal of the claim against LIC, on equity and justice, applying the principles available under order 43 of CPC, there should be an order against 2nd opposite party also, making them liable to pay the assured amount, since the employer has not informed about the non-payment of the premium, thereby compelling the employee to pay the premium amount as per the undertaking given by him. After elaborate submissions on the above points, placing reliance on the judicial precedent also, the matter was discussed and finally the parties have come to a settlement and having settled the matter, they have filed a joint memo of compromise today, which is also recorded by this Commission. Irrespective of the order by the District Forum, dismissing the claim against the 2nd opposite party, based upon the compromise memo, filed before us, the order of the District Forum, has to be modified and an order should be passed in terms of joint memo of compromise.



7. Pursuant to the joint memo of compromise filed, the 2nd respondent/2nd opposite party, is directed to pay a sum of Rs.2 lakhs to the complainant, and the 1st opposite party / appellant is directed to pay a sum of Rs.16000/-, being the compensation and cost, as awarded by the District Forum, and the amount should be deposited as agreed by the parties a stated above, within two months from this date. No order as to cost and interest. Joint memo of compromise, shall form part of the order.

FIRST APPEAL NO. 1877 OF 2005

IN COMPLAINT CASE NO. 44 OF 2005

DISTRICT CONSUMER FORUM: OSMANABAD.

1. Life Insurance Corporation of India

Through its Branch Manager,

Osmanbad Branch Office

Opp. District Central Co-operative Bank

Head Office & Near Solapur-Osmanabad Road,

Osmanabad.

2. Life Insurance Corporation of India

Zonal Manager,

Through its Zonal Office,

Yogakshema, Jeevan Bima Marg,

Mumba- 400 021. … Appellants



-VERSUS-



Madhuri Gajanan Sawant

R/o. Bhosale Street,

Tulzapur, Tq. Tulzapur,

Dist. Osmanabad. … Respondent

Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.

Mrs. Uma S.Bora, Hon`ble Member.



Present: Adv. Shri. S.M. Bhalekar, for appellant



Adv. Shri. A. T. Ghute holding for

Adv. S.T. Ghute for respondent



:: ORAL ORDER::
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member



1. The present appeal is filed by the Life Insurance Corporation of India against the judgment and order dated 30.08.2005 in complaint case No. 44/2005, passed by District Consumer Forum, Osmanabad.



2. The respondent’s case before the Forum is that, her deceased husband Gajanan Sawant had obtained 20 years Jeevan Sanchaya Plan Policy without profit with accident benefit under table and term 125 – 20 for sum assured Rs.1,00,000/-, for the period 28.09.2001 to 28.09.2021. It is contended that, her husband died in the accident on 13.06.2003. She preferred the claim before the appellant. The appellant asked her to produce succession certificate. Accordingly she produced the succession certificate issued by the competent court. As the amount as per policy was not paid, she approached the Forum.



3. The present appellant appeared before the Forum and resisted the claim. It is contended that, the complainant had produced the succession certificate in respect of basic claim of Rs.1,00,000/- and thus the amount of Rs. 1,05,151/- inclusive of basic sum assured plus registered bonus was paid to her on receipt of succession certificate.



It is contended that, the order of court was in respect of basic amount mentioned in the Misc. application 101/2003 before CJSD Osmanabad. The order of succession does not speak of other benefits namely “Accident benefits” under the policy to which the complainant is entitled thus, complainant was asked to furnish additional succession certificate by its letter dated 01.09.2004 and 17.12.2004. The complainant replied that there is no provision for additional succession certificate.



4. The Forum below after going through the papers and hearing the parties allowed the complainant and directed the appellant to pay Rs.1,00,000/- with the interest @ 9% p.a. from 01.09.2004. Forum also directed the appellant to pay Rs.2,000/- towards the mental agony.
5. Notices were issued to the appellant as well as the respondent. The learned counsel Shri. S.M. Bhalekar, appeared for the appellant and Shri. A. T. Ghute holding for Adv. S.T. Ghute for respondent. We heard both the counsel at sufficient length. Learned counsel for the appellant submitted that, the succession certificate produced by the complainant was in respect of basic amount of the policy along with the bonus if any. The said certificate does not speak about other benefits, namely accident benefit, thus they have rightly asked the complainant to produce additional succession certificate.

6. On the other hand, the leaned counsel for the respondent submitted that, once the succession certificate is produced in respect

of specific policy, the benefits of the policy in question are required to be paid on the basis of said certificate.



7. We perused the papers and gave our anxious thoughts to the arguments advanced by both counsels. There is no dispute that, the deceased Gajanan Krishna Sawant had obtained 20 years Jeevan Sanchaya plan with accident policy for sum assured Rs. 1,00,000/- for the period 28.09.2001 to 28.09.2021. There is also no dispute that, the deceased Gajanan Sawant died in the accident on 13.06.2003 i.e. during the currency of the policy in question. There is also no dispute that, the complainant had produced the succession certificate showing empowering her to collect the amount in respect of the policy No. 982152114. It is true that, the succession certificate does not speak about the benefits of the policy in question. But, when succession certificate empowers the complainant to withdraw the sum assured in respect of policy No.982152114, the complainant is entitled to withdraw any other benefits accrued by the policy in question. The appellant ought not to have asked her to bring the additional succession certificate in that respect. The Forum had rightly considered all these aspects and rightly allowed the complaint. We are not inclined to interfere the order passed by the Forum. We pass the following order.


O R D E R

1. Appeal is dismissed.

2. Appellant to pay Rs.1000/- towards the cost to the respondent.

3. Copy of the order be furnished to the parties.

Case No. FA- 08/582

(Arising from the order dated 01-10-2007 passed in Complaint Case No. 677/06 by the District Consumer Redressal Forum, ISBT, Delhi).
SMT PREETI BAJAJ -APPELLANT

S/o late Shri Pawan Kumar Bajaj,

C-6/19, Ground Floor,

Model Town – III,

New Delhi

Versus



LIFE INSURANCE CORPN. OF INDIA -RESPONDENT

Divisional Manager,

LIC of India, 6/32-33, 1st Floor,

Gurudwara Road, Karol Bagh,

New Delhi - 11002



CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member



1. Whether reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



JUSTICE BARKAT ALI ZAIDI (ORAL)



ORDER

1. Short facts of the case are that the husband of the complainant appellant Shri Pawan Kumar Bajaj, was holding a LIC Double Accidental Benefit Policy for a sum of Rs. Five lakhs from OP Life Insurance Corpn. of India, who died as a result of road accident on 06-09-1997. His widow the complainant therefore on basis of the Insurance Policy, lodged a claim before the OP for paying her the insured amount of Rs. Five lakhs and Rs. Five lakhs for Accidental Benefit plus vested Bonus on the policy. The OP Insurance Company paid the insured amount on 11-08-2004 after a span of seven years and declined to give the double accidental benefit Rs. Five Lakhs plus Bonus.



2. The complainant therefore filed a complaint before District Consumer Forum alleging that the OP had issued Life Insurance Policy including the Double Accidental Benefit in favour of her deceased husband, therefore OP was obliged to pay the complainant the benefit of Double Accidental Benefit Policy for Rs. Five lakhs and the vested bonus and interest on it at a rate of 18% per annum and prayed for passing an award of Rs. Five lakhs with vested bonus and interest on it and Rs. One lakh on account of mental pain and agony and loss of business and Rs. 21000/- towards costs of litigation.



3. The OP opposed the claim and filed a written statement.



4. The District Forum decreed the claim of the complainant and directed the OP to release all double accidental benefit with interest @ 9% from 11-08-2004 till the date of realization and also to pay a sum of Rs. 5,000/- as compensation and Rs. 2,000/- towards costs of litigation.



5. The complainant has come in appeal before this Commission and the short grievance she has is that she should also be paid the interest, prior to 11-08-2004 i.e. from 05-11-1997, which she also prayed before the District Forum and the District Forum committed an error in granting her interest only from 11-08-2004, while she should have been granted interest from 05-11-1997.



6. Along with the appeal has been filed an application for condonation of delay because the appeal is late by 143 days.



7. Heard Shri R.N. Sharma, Counsel for Appellant and Smt Jaya Tomar, on behalf of the Respondent.



8. Firstly before adverting to merits of the appeal, we have to see whether there is ground enough for condoning the delay in filing the appeal. The reason given in application for condonation of delay for not filing the appeal in time is that, there were some acute family problems and the examination of children and that is why instructions could not be given to advocate for filing the appeal.



9. There are wholly insufficient and incongruous reason which cannot hold ground. It has to be noticed that during this period, the appellant instructed her lawyer to file an execution application. The decree was fully executed and the appeal was filed about two and a half months after the decree was satisfied. If the appellant could instruct her lawyer to file execution application she could also give instructions for filing an appeal.



10. There is as such no sufficient ground to condone the delay. The application for condonation of delay and the appeal are both dismissed.


11. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.



12. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

13. Announced on 17th December 2009

Appeal No. FA-09/682

(Arising out of Order dated 14-02-2007 passed by the District Consumer Forum(East), Convenient Shopping Centre, Saini Enclave, Delhi in Case No. 489/2007)

Sh. Amit Kumar Aggarwal … Appellant

S/o Sh. Prahlad Chand Aggarwal, Through

R/o PO Virat Nagar, Mr. Anand Nandan,

Advocate

Versus

1. Life Insurance Corpn. … Respondent

of India,

Through Its

Sr. Divisional Office-2,

9th Floor, Scope Minar,

Delhi-110002.

2. The Sr. Divisional Manager

Life Insurance Corpn. … Respondent

Of India,

Through Its

Sr. Divisional Office-2,

9th Floor, Scope Minar,

Delhi-110002.


CORAM



Justice Barkat Ali Zaidi … President

Mr. M.L. Sahni … Member



1. Whether Reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?



Justice Barkat Ali Zaidi(Oral)

1. The short facts of the case are that deceased Dayskishan Aggarwal who was the brother of the complainant was a life insurance policy holder for an amount of Rs. 1,10,000/- with the OP Insurance Company. Sh. Dayakishan Aggarwal died due to food-poisoning. The complainant lodged a claim before the OP for paying him the sum insured but the OP refused. The complainant therefore lodged a complaint against the OP on basis of the policy with the following reliefs in the District Consumer Forum;

(a) “Direct the respondent to pay to the complainant the insured amount of Rs. 1,10,000/- alongwith interest and other dues to the complainant arising out of policy bearing No. 121105055,

(b) direct the respondent to pay to the father of the complainant the interest of the amount of Rs. 25,149/- arising out of policy bearing No. 121105055 for the period of delay in granting the insured amount to the complainant,

(c) grant cost of the present appeal in favour of the complainant.”

2. The OP insurance company opposed the claim of the complainant, and alleged that the deceased committed suicide but on the advise of his brother-in-law an LIC agent, the complainant substituted it as death by food-poisoning, for claiming the insurance amount. The first information report was necessarily to be lodged in case of suicidal death as provided in Clause-C of the policy which was not lodged. The OP prayed for dismissal of the complaint.

3. The trial forum after considering the evidence of both the parties and taking into account that the OP had made a proposal once to settle the claim, ordered the OP to release the insured amount of Rs. 1,10,000/- in favour of the complainant and to pay him Rs. 5,000/- towards compensation & Rs. 3,000/- towards the litigation costs but refused to give any interest in the facts and circumstances of the case for the delayed payment.

4. That is what brings the complainant here before the State Commission in appeal.

5. We have heard Sh. Anand Nandan, appellant complainant at this preliminary stage of admission.

6. The grouse of the appellant is that vide Clause-A of his prayer in the complaint his prayer was that interest be awarded to him on the insured amount and he be also given the other dues arising out of the policy, which the Consumer Forum has not awarded.





7. On query from the counsel for the appellant whether any condition is provided with regard to payment of interest in the insurance policy, the counsel submitted that there is no such condition.

8. On query on other point relating to other dues whether the complainant pleaded in the complaint that he should be paid an additional amount equal to twice the sum assured as the deceased died prior the date of maturity, as provided under the Special Conditions of the policy, and that the complainant should be paid double the amount of insurance as provided under Clause 10.2 of the Insurance Agreement. The counsel submitted that the complainant has only prayed for the other benefits arising out of the policy. He submitted that the complainant thus should have been paid four times of the insured amount.

9. The mere mention in the prayer that the complainant should be paid other benefits arising out of the policy is a hazy omnibus statement which cannot be considered sufficient to give notice to the opposite party about the dues which it was bound to pay. The OP had therefore no sufficient intimation that the complainant demands double the payments in view of the aforementioned clauses and had therefore no sufficient opportunity for replying the same. Since the complainant has not specifically pleaded him and has not specified the amount due to him, he is not entitled to the same. As regards interest there is no provision in the policy for the same. The complainant cannot therefore be held entitled to interest

10. The appeal therefore fails and is accordingly dismissed.

11. Bank Guarantee/FDR, if any furnished by the appellant, be returned forthwith.



12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.

13. Announced on 08th day of December, 2009.