Mrs. Navdeep Kaur Shah wife of Shri Chandan Deep Singh Shah, Shah House, Near Delhi Gate, Nahan, District Sirmour, H.P.


… Complainant.

Versus

1. M/S Aviva Life Insurance Company India Ltd. Aviva Tower Sector Road Gurgaon.

2. Branch Manager M/S Aviva Life Insruance Company Ground Floor, Madhya Marg SCO 180-182 Sector 9C, Chandigarh.

3. Mr. Ravinder Bajaj, Financial Planning Adviser M/S Aviva Life Insurance Company Ground Floor Madhya Marg, SCO 180-182, Sector 9-C, Chandigarh.


…Opposite Parties.



For the complainant: Mr. T.S. Shah, Advocate.
For the Opposite Parties: Exparte.



O R D E R:
Pritam Singh (District Judge) President:-This order shall dispose of complaint under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that she got life insurance from the OPs on 10.03.2007 vide policy bearing No. RFG 1479018 and was insured for a sum of Rs.2.50 lakh. That as per the scheme, she was to pay a sum of Rs.25,000/- yearly as premium, which was payable by half yearly instalment of Rs.12,500/- and the policy was to mature on 10.03.2017. That as per scheme, she was given riders such as accidental death and dismemberment, critical rider belonging to permanent disability rider or hospitalization rider. That the policy commenced on 10.03.2007 and the premium was regularly paid through cheques. That on 11.08.2008, she suffered injury at her right knee as a result of which she underwent Ortho scopy surgery of knee and removal of loose body from right knee and was admitted in I.C.U. on 12.08.2008 at Orthoscopy Centre at Chandigarh wherefrom she was discharged on 13.08.2008. The hospital charged a sum of Rs.26,200/- on account of operation and she also spent a sum of Rs.4,000/- on medicines. That thereafter, she lodged the insurance claim with the OPs on 30.08.2008 and submitted all the relevant documents for settlement of the insurance claim. But, the OPs instead of settling her insurance claim, rejected the same vide communication dated 08.09.2008 on the ground that the claim was not covered under the permanent total disability claim. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.


2. The Notice of this complaint was issued to the OPs by way of registered letters. The OP No.2 did not put in appearance despite valid service through registered AD, whereas OP No.3 refused to accept the registered letter. The registered notice was also sent to the OP No.1 which was not received back undelivered. As such, presumption of service was drawn against the OP No.1 and vide zimni order dated 16.12.2008 and 15.01.2009, respectively the OPs were proceeded against exparte.


3. We have heard the learned counsel for the parties at length and also thoroughly scanned the entire record of the complaint.


4. The complainant in support of her claim placed on record the copy of insurance policy Annexure-A issued by the OPs and there is a specific riders that sum Assured of ‘Accidental Death & Dismemberment Rider’ & Sum Assured of ‘Critical illness And Permanent Total Disability Rider’ is Rs.2,50,000/- and is Hospital Cash Benefit Rider effected? Yes. As per communication sent vide letter Annexure –D dated 08.09.2008 by the OPs to the complainant, her claim was rejected by them on the ground that medical condition does not fulfill the definition of Permanent Total Disability. However, the scrutiny of the record reveals that her case does not fall under the Riders Sum Assured of ‘Accidental Death & Dismemberment Rider’, but it falls with the Sum Assured of Critical Illness. Thus, the rejection of the claim of the complainant on the ground that medical condition does not fulfill the definition of permanent total disability is wrong and without any basis.


5. As per the scheme of the policy sum assured of critical illness was Rs.2,50,000/-. But, the complainant spent a sum of Rs.26,200/- on operation as is evident from the copy of bill/cash memo dated 13.08.2008 Annexure-B issued by Arthroscopy & Spinal Endoscopy Centre, Chandigarh. The complainant alleged that she also spent Rs.4,000/- on medicine. She has also filed affidavit in support of her allegation. Moreover, the OPs chose not to contest the present complaint hence their non-appearance also leads us to draw an adverse inference against them. Therefore, it stands established from above discussed evidence adduced by complainant that her claim is genuine and the OPs by not settling her genuine insurance claim not only indulged in an unfair trade practice but are also guilty of rendering deficienct in service.


6. For the foregoing reasons, we allow this complaint and direct OPs jointly and severally to indemnify the complainant to the extent of Rs.30,200/- along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 16.10.2008 till making full payment of the aforesaid amount. In addition to this, they shall also pay Rs.5,000/- as damages to the complainant for causing uncalled harassment to her, besides litigation cost of Rs.1500/-. This order shall be complied with by the OPs within a period of forty five days after the date of receipt of copy of this order.

Mrs Bhajan Kaur widow of late Ajit Singh, r/o village Cheta, tehsil & Distt. Nawanshahr.
Complainant.
Versus

M/s AVIVA Insurance Company India Limited, Claims Deptt. AVIVA Towers, Sector Road, Opp. Golf Course, DLF phase-5, Sector -43, Gurgaon-1220023
Respondents
Complaint under the provisions of Consumer Protection Act, 1986

BEFORE: SHRI S.M.S.MAHAL, PRESIDENT
SMT. JAGJIT KAUR, MANDER, MEMBER
SH. SUKHDEV SINGH, MEMBER
Present: Sh. S.S. Kundra, advocate, counsel for the complainant.
Sh. Vijay Mehta, advocate, counsel for the Ops.
S.M.S.MAHAL, PRESIDENT


Bhajan Kaur (hereinafter called as complainant), has filed this complaint against M/s AVIVA Insurance Company India Limited, Claims Deptt. AVIVA Towers, Sector Road, Opp. Golf Course, DLF phase-5, Sector -43, Gurgaon-1220023 (hereinafter called as Op) for issuance of a direction to the op to pay the insurance claim on account of the death of her husband with interest @ 12% per annum in addition to the compensation of Rs 50,000/- on account of deficiency in service.


2.The admitted facts of this complaint are that Ajit Singh s/o Dharam Singh deceased husband of the complainant was holder of insurance policy no. 1310717 issued by op. Sh. Ajit Singh had died on 05-01-2008 and insurance claim was lodged by the complainant being his widow. OP had repudiated the claim on the plea that the deceased was a “Diabetic and patient of hyper-tension” which fact had been concealed by him. The repudiation of the claim is stated to be illegal and the op was stated to be deficient in service. Hence this complaint.


3.In the written version filed by the Op, the complaint was stated to be not maintainable. The facts relating to the insurance of Ajit Singh as well as repudiation of the claim lodged by the claim were admitted. However, it was contended that in the proposal form submitted by the deceased he had declared that he had never undergone medical or surgical treatment, including investigation, tests, scans or X-ray for diabetes, kidney or liver problem or any other illness, surgery or injury. After receiving the claim submitted by the complainant, the op had engaged the services of an investigation agency and as per investigation report of that agency, life assured was under treatment for diabetes and hyper-tension for last 7 years. As per section 45of the Insurance Act 1938 and Article 8 of the terms and conditions, the claim lodged by the complainant was alleged to have been rejected on account of the non-disclosure of material facts by deceased Ajit Singh in his proposal form. It was denied that op was deficient in service or repudiation of the claim was illegal. A prayer for dismissal of the complaint was accordingly made.


4.Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5.We have considered the oral submissions advanced by the counsel for the parties and carefully scrutinized the evidence on record.

6.From the written version filed by the Ops, it is evident that the claim with regard to life insurance policy of Ajit Singh had been rejected by op on the ground of non-disclosure of material facts with regard to the disease i.e. “Diabetes Mellitus and hyper-tension”. To substantiate its contention the op has placed on record Ex C-5 investigation report issued by its investigating agency namely NNB Investigation, Pvt. Ltd, wherein it was mentioned that as per enquiries made by the investigator from neighbors, relatives and family members, the deceased had died due to heart attack but he was otherwise healthy person. Further that on 05-01-2008 at 4 pm, he had sudden chest pain and was taken to Mohindra Hospital but he had passed away on the way. On additional enquiry it was submitted that life assured had been treated by Dr. Javed Alam, of Banga with regard to diabetes and hyper-tension for the last 7 years. A certificate dated 13-03-2008 issued by Dr. Javed Alam of SB Scanning Centre & Nursing Home, Banga was also annexed with the report in which it was stated that Ajit Singh deceased had been under the treatment for about 7 years with diagnosis “Diabetes Mellitus with occasional attacks of Hyper-tension”. It was also stated that he was doing very fine during these days as he controlled his sugar levels with utmost care of diet and exercise. The doctor also stated in the certificate that he came to know that he expired on his own home on January 05,2009 for unknown reasons. Surprisingly no other evidence has been placed on record by the op to substantiate the medical certificate issued by Dr. Javed Alam. On the contrary the complainant after seeking permission of this Forum has placed on record affidavit Ex C-7 of Dr. Javed Alam who deposed that he had never been Dr. of Ajit Singh s/o Dharam Singh r/o village Cheta and had never treated any manner at any point of time. He further testified that he had never issued any document to any person concerning Ajit Singh deceased. He was cross-examined by the counsel for the op but no dent could be caused to his testimony. The report of the investigating agency which is the basis of the repudiation of claim lodged by the complainant thus looses significance. The repudiation of the claim by the op is therefore rendered illegal, amounting to deficiency in service on the part of the op.

7.As a consequence of foregoing reasons, we are constrained to allow this complaint with a direction to the Op to sanction disburse the claim with regard to life assured namely Ajit Singh s/o Dharam Singh to the complainant with interest @ to 10% P.A. from the date of submission of claim, till its disbursement.


8.The Op shall also pay a sum of Rs 5000/- to the complainant as compensation on account of mental as well as physical harassment and litigation cost.


9.The compliance of this order shall be made by the Op within one month from the date of the receipt of copy of this order.

1. 1. 1. 1. 1. 1. 1. 1. 1. 1. CC. No. 168 of 05-06-2008
                              Decided on : 16-04-2009

Mrs. Rekha Garg, W/o Sh. Bhim Sain Garg, R/o Street No. 1, Barnala Road Bypass, Shiv Mandir Wali Gali, Bathinda. ... Complainant
Versus

1. AVIVA Life Insurance Company India Limited, Regd. Office : 2nd Floor Prakashdeep Building, 7 Tolstoy Marg New Delhi 110 001 through its Chairman/Managing Director.
2. AVIVA Life Insurance Company India Limited, Aviva Tower Sector Road, Opp. Gold Course DLF Phase V, Sector 43, Gurgaon 122 003 (Haryana), through its Manager.
3. AVIVA Life Insurance Company India Limited, Branch Office, Bathinda, through its Branch Manager.

... Opposite parties


Complaint under Section 12 of the Consumer Protection

1. Act, 1986.
   

QUORUM


Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member

Present : Sh. Rajan Garg, Advocate, counsel for the complainant
Sh. Pankaj Soni, Advocate, counsel for the opposite parties.

O R D E R


SH. PRITAM SINGH DHANOA, PRESIDENT

1. Mrs. Rekha Garg W/o Sh. Bhim Sain Garg, a resident of Shiv Mandir Street, Bathinda, has filed instant complaint under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against AVIVA Life Insurance Company India Limited, through its Chairman/Managing Director, New Delhi, Managers of its Gurgaon and Bathinda Branches, on the averments which may briefly be described as under :
   Sh. Gurvinder, as an agent of the opposite parties approached the complainant and her husband Sh. Bhim Sain Garg and convinced them to purchase Accidental Death and Dismemberment Rider and Hospital Cash Benefit Rider, Insurance scheme launched by the opposite parties, for a sum of Rs. 1,45,000/- on payment of premium of Rs. 10,000/-. As disclosed by the agent of the opposite parties these plans were for the entire life. The complainant and her husband were allured by the agent of the opposite parties, who secured their signatures on printed proforma of application and noted down particulars of the complainant, with the assurance that he will fill the blank columns of the application by himself. He also received amount of premium from the complainant in the month of October, 2006 and made inquiries from her about any disease suffered by her earlier. After sometimes, opposite parties sent Insurance policy bearing No. WLG1383732 in the name of the complainant under their Life Long Plan for Rs. 1,45,000/-. In the month of September, 2007, the complainant developed fever accompanied by rigors, chills and cough. She got routine medical check-ups from various doctors at Bathinda, but she was not cured of her ailments with the treatment given to her by them because of which she approached Hero Dayanand Medical College & Hospital, (Here-in-after referred to as 'Hero DMC'), Ludhiana, on 16-11-2007, where clinical and other laboratory tests were performed by the doctors who diagnosed that she is suffering from Infective Endocarditis and Severe Aortic Regurgitation. The complainant remained admitted in Incentive Care Unit of the said hospital for the period 16-11-2007 to 24-12-2007. During this period, ECG and Echocardiography was performed and said hospital charged a sum of Rs. 1,79,064/- from her for treatment under C.R. No. 72785.
2. The complainant submitted her claim under the policy alongwith requisite documents to the opposite parties as per clause 3.2.2 of Article 3 of Benefits of Hospital Cash Benefit Rider Policy i.e. for treatment and admission for 39 days at the rate of 3,000/- per day. The opposite parties addressed letter dated 24-01-2008, to the complainant seeking supply of certain documents showing her admission in the hospital at Ludhiana and letter of authorisation etc., which were supplied by the complainant vide letter dated 05-03-2008. She also told the opposite parties that previous record is not available with her and letter of authorisation has also been sent vide letter dated 05-03-2008. However, vide their letter dated 18-03-2007, the opposite parties informed the complainant that there was concealment and mis-representation of information regarding her admission, in the proposal form and that claim filed by her is not payable in terms of Insurance policy, which stands cancelled. It is submitted that diseases suffered by the complainant for treatment of which she was admitted in Hero DMC, Ludhiana, on 16-11-2007 and the diseases for which she was treated in July, 2005 and January, 2006 are not identified as she was not treated during the said period for Infective Endocarditis and Severe Aortic Regurgitation . It is asserted that the opposite parties are trying to wriggle out of the liability to pay the claim of the complainant under the policy because lapse to mention about the previous admission or treatment of these diseases appears to be on the part of agent of the opposite parties, but the complainant has no intention to conceal any fact, as such, she cannot be penalised for his wrong and deprived of the claim under the policy. The complainant is subjected to mental and physical harassment because of rejection of claim under the Insurance policy by the opposite parties in unjust manner and against the provisions of the policy. As such, she is entitled to payment of compensation in the sum of Rs. 1,00,000/- and a sum of Rs. 10,000/- as costs for filing the instant complaint with further direction to the opposite parties to treat the policy issued in her name as continuing and pay the claim amount of Rs. 1,17,000/- alongwith interest at the rate of 18 percent per annum with effect from 24-12-2007 till the date of actual payment. Hence, this complaint.
3. On being put to notice, opposite parties filed written version taking preliminary objections; that complaint is false and vexatious and is liable to be dismissed with compensatory costs; it is not maintainable; that complainant has not approached this Forum with clean hands as she has mis-represented and suppressed material facts from the knowledge of this Forum; that contract of Insurance is utmost good faith i.e. 'uberrimae fidae', as such, her complaint deserves to be dismissed. On merits, the factum of issuance of the policy in the name of the complainant is admitted but it is denied that the agent of the opposite parties gave any assurance to her or got her signatures on blank papers. It is submitted that opening paragraph of the forwarding letter of the Insurance policy provides that Insured was requested to check the policy carefully to ensure that the details are correct and copy of the proposal form was enclosed with the policy document for confirmation, but the complainant never disputed the contents. It is submitted that reconsideration is possible if insured differs with the terms and conditions of the policy, within 15 days of receiving the policy document, but no such action has been taken by the complainant. It is contended that from the discharge summary of the complainant, it reveals that she had a history of PDA Closure in the month of May, 2006 and she has been suffering from Infective Endarteritis and Dyspnoea and Staph Aureus and Streptococcus Fecalis in July, 2005 and January, 2006 respectively, but she failed to disclose these facts and has given deliberately wrong answers to the questions put to her in the proposal form that 'if she ever suffered from High blood pressure, angina, heart attack, stoke or any other disorder of heart or circulation or any other illness, surgery or injury'. As such, her Insurance policy has been rightly cancelled by the opposite parties. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.
4. On being called by this Forum, to do so, learned counsel for the complainant tendered in evidence affidavit and copies of documents Ex. C-1 to Ex. C-9 before he closed her evidence. On other hands, learned counsel for the parties tendered in evidence affidavit of Sh. Ravi Bhadani Ex. R-1, and closed their evidence.
5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully,
   with their kind assistance.
6. At the outset, learned counsel for the complainant Sh. Rajan Garg, Advocate, has submitted that signatures of the complainant were secured on blank form which has been filled subsequently by the agent of the opposite parties as per their convenience, as such, it could not be said that complainant has concealed factum of pre-existing ailment in the proposal form before issuance of Insurance policy in her name. Learned counsel has further submitted that complainant was subjected to medical examination by the doctor on the penal of the opposite parties, as such, they were not justified in repudiating her claim or cancellation of Insurance policy secured by her. Learned counsel has further argued that disease for which the complainant was treated in the months of July, 2005 and January, 2006 and so operated in the month of May, 2006, are distinct from the diseases suffered by her for which she lodged the claim, as such, it cannot be said that complainant has deliberately and intentionally suppressed any fact. Learned counsel has urged that complainant has undergone mental and physical agony due to repudiation of her claim and cancellation of policy by the opposite parties in arbitrary manner, as such, she is entitled to seek compensation and costs incurred by her in filing of instant complaint.
7. On the other hand, learned counsel for the opposite parties Sh. Pankaj Soni, Advocate, has submitted that complainant has not produced any corroborating evidence to establish her plea that her signatures were secured on blank printed forms by the agent of the opposite parties or that contents thereof were filled by him subsequently. Learned counsel argued that as per terms and conditions of policy schedule, Insurer has option to cancel the policy and to return the same alongwith premium receipt, if he disagree with its terms and conditions, within a period of 15 days, but no action has been taken by the complainant, who is a literate person, as such, she is estopped from claiming that she was not aware of contents thereof. Learned counsel has further argued that complainant has admitted in the complaint itself that she had history of PDA Closure and Infective Endocarditis and Dysponea in the month of May, 2006 and suffered from Staph Aureus and Streptococcus Fecalis in July, 2005 and January, 2006 respectively, but in the proposal form, she has suppressed these facts deliberately and intentionally. Learned counsel argued that contract of Insurance is a contract of good faith i.e. 'uberrimae fidae', as such, if the Insured commits any act of bad faith, then, he losses the right to claim compensation under the Insured policy. Learned counsel has argued that diseases suffered by the complainant in the year, 2007 are consequences of previous ailments suffered by her, as such, there is no deficiency in service on the part of the opposite parties for which compensation may be claimed from them by the complainant which may warrant the indulgence of this Forum. In support of his contentions, he placed reliance on 2008(III) CLT 381( SC) P.C. Chacko & Another Vs. Chairman, Life Insurance Corporation of India & Ors., wherein the insured had undergone an operation for Adenoma Thyroid. It was a major operation, although the said operation was undergone by him four years prior to the obtaining the Insurance policy, the Hon'ble Supreme Court held that :
   “The insured furthermore was aware of the consequence of making a misstatement of fact. If a person makes a wrong statement with knowledge of consequence thereof, he would ordinarily be estopped from pleading that even if such a fact had been disclosed. It would not have made any material change. The purpose for taking a policy of Insurance is not, in our opinion very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the Insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bonafide. It must appear from the fact of the record. In a case of this nature, it was not necessary for the Insurer to establish that the suppression was fraudulently made by the Life Assured or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the contract of Insurance, if discovered may lead to the policy being vitiated in Law.”
   Learned counsel has also relied upon AIR 1937 Nag 270 at 272 Haji Ahmed Year Khan Vs. Abdul Gani Khan wherein it was held that :
   “there is no general duty to speak or to disclose facts, which are or might be equally within the means of knowledge of both parties. There are special duties of disclosure in particular classes of contracts, viz in contracts between an Insurer and the Insured and where one party stands in a fiduciary relationship with the other. In such contracts of uberimma fides there is a legal and equitable duty on the parties, not only to state truly whatever is stated, but also to divulge with candor and completeness, facts regarding which there is no objection to disclose.”
8. We find merit in the argument advanced by the learned counsel for the opposite parties. As per the undisputed facts, complainant secured Life Long Insurance Policy alongwith Hospital Cash Benefit Rider Scheme on 10-08-2006 from the opposite parties. In the complaint itself, she has admitted that she was treated in the month of July, 2005, January, 2006 and operated upon in the month of May, 2006 for Staphylococcus Aureus, Streptococcus Fecalis and PDA Closure surgery, It is well settled that admitted facts need no formal proof. Even otherwise as per copy of discharge summary issued on 24-12-2007 Ex. C-9, by Hero DMC, Ludhiana, the complainant suffered from fever associated with rigors and chills and cough prior to her admission and has history of Staph Aureus in July, 2005 and Streptococcus Fecalis in January, 2006 and also history of PDA Closure, May, 2006.
9. In the proposal form Ex. C-3, she has stated that she does suffer from any illness, surgery or injury in answers to Question No. (xiv). In answer to Question No. (i) as to if she ever suffered from blood pressure, angina, heart attack, stoke or any other disorder of heart or circulation, she has stated 'No'. The proposal form has been furnished by her on 18-12-2006. Since this document has been tendered in evidence by the complainant,, therefore its contents cannot be ignored. The plea of the complainant that her signatures were secured by the agent of the opposite parties on blank printed form, is not corroborated by any oral or documentary evidence. In the absence of any positive evidence, reliance cannot be placed on her affidavits alone, which are self serving documents. The complainant is not a rural realistic person, but a retired teacher by profession and has affixed her signatures on proposal form in English. The profession of the complainant is mentioned in the proposal form itself. Therefore, her plea cannot be accepted that she reposed faith on agent of the opposite parties and affixed her signatures on blank printed forms, but their agent filled the columns thereof subsequently to prove their own interest. The agent of the opposite parties were not going to gain anything by introducing wrong facts in the proposal form of the complainant. She has also given declaration above her signatures at the time of giving proposal form that she fully understands the nature of questions and the importance of disclosing all material information while giving their answers in the proposal form and they are true and complete in all respects and in case of suppression of material information, company shall have right to repudiate the claim against the policy. Since, complainant was not suffering from any patent ailment, therefore, even if doctor of penal of the Insurance company has not detected any factum of previous disease, they cannot be debarred from repudiating the claim if some fact prejudice to their interest comes to their notice subsequently.
10. In the policy schedule Ex. C-4, brought on record by the complainant herself, it has been mentioned that she has option to cancel the policy and to return the same alongwith premium receipt if she disagrees with the contents of terms and conditions thereof, within a period of 15 days from the date of policy, as such, she had option before her to cancell the policy incase terms and conditions are not considered favoaurable to her, but she has failed to do so, within the stipulated period.
11. The complainant has lodged the claim for payment of money under the Insurance policy for treatment and admission in Hero DMC, Ludhiana, for the period 16-11-2007 to 24-12-2007 for treatment of Infective Endocarditis and Severe Aortic Regurgitation. As per our opinion, Staphylococcus Aureus and Streptococcus Fecalis pre-existing diseases suffered by the complainant has bacteria which are causative factor for which she subsequently remained admitted in Hero DMC, Ludhiana, related to liver. In the given circumstances, we are of view that complainant has suppressed material facts in the proposal form regarding his health, deliberately and intentionally for wrongful gain to herself and to cause wrongful loss to the opposite parties under apprehension of aggravation of her disease. There is no dispute as to settled proposition of law that Insurance is a contract of good faith between the Insured and the Insurer and if the Insured conceals any fact touching his/her health, then the Insurance company is well within its rights to repudiate the claim and cancel the Insurance policy.
12. In the light of our above discussion and keeping in view the ratio of judgments, relied upon by the learned counsel for the opposite parties, we have come to the conclusion that there is no deficiency in service on the part of the opposite parties on account of which relief claimed by the complainant may be granted.

Consumer Case No.410/2008

Between
Smt. Kongara Lakshmi Devi,
W/o. Late.Kongara Krishnaiah
Aged :60 Years, Occ: House Wife,
R/o. Flat No.240-F, Phase II,
Janapriyanagar, Miyapur, Hyderabad. ……Complainant
And
1. M/s. Aviva Life Insurance Company Pvt.Ltd.,
(Claims Department), 5th Floor, JMD Regent Square,
Gurgaon, Mehrauli Road,
Gurgaon-122 001, Haryana, India,
Represented by its Chief Executive Officer

2. M/s. Aviva Life Insurance Company Pvt.Ltd.,
(Registered Office), 2nd Floor, Prakash Deep Building,
7, Tolstoy Marg, New Delhi-110 001, India,
Represented by its Chief Executive

3..M/s. Aviva Life Insurance Company Pvt.Ltd.,
RB Road Branch, 1st Floor, Challa Chamber,
6-3-907 to 912, Kapadia Lane, Rajbhavan Road,
Somajiguda, Hyderabad-500 082, A.P., India
Represented by its Executive …..Opposite parties

This case coming on 20-03-09 for final hearing before this Forum in the presence of Sri.K. Jagdish, Advocate for the complainant and Sri.P.V.V. Gopala Krishna Murthy , Advocate for the opposite parties, and having stood over till this day for consideration, this Forum pronounced the following:-

O R D E R

(By Sri N. Venkatesham, President on behalf of the bench)

. This complaint under Section 12 of Consumer Protection Act, 1986 was filed by the complainant for a direction to the opposite parties to pay the sum assured amount Rs.2.50lakhs for the policy bearing No. LFB-1155925 and Rs.3.00 lakhs for the policy bearing No.LFB-1178054 which totally amounting to Rs.5.50 lakhs. Award sum of Rs.50,000/- towards damages and compensation for the mental agony, pain hardship and also for the inconvenience and harassment caused to the complainant on account of delay in settling the claim. Award the interest i.e, for the assured amount of Rs.5,50,000/- to complainant @ 18% p.a. from two months of death of the insured i.e, from 24-03-2006 till payment of amount. To award a sum of Rs.5,000/- towards legal expenses and pass such other order or orders in the interest of justice.
1. The case of the complainant runs thus:- The complainant is the wife of the deceased Kongara Krishnaiah. Kongara Krishnaiah. died on 24-3-2006 at his residence due to cardiac arrest. During the life time of Kongara Krishnaiah., he has taken two Life Bond 5 Unit Linked Policies from the opposite parties vide policy No.s I.) LFB-1155925 fer assured sum of Rs.2,50,000/- and the policy was commenced from 15-4-05 and the date of maturity is 15-4-2015. II). Policy No.LFB 1178054 for the sum assured was Rs.3,00,000/- and the policy commenced from 19-7-05 and date of maturity is 19-07-2015. The complainant is the nominee. At the time of taking above said 2 policies the Panel Doctors of the opposite party got examined him and after satisfying the medical examination, policies were issued.
After the death of Kongara Krishnaiah., the complainant being the nominee, addressed a letter to the opposite party No.1 for payment of the sum assured and that the first opposite party gave a reply dated 23-5-2006 that the claim inrespect of those policies even admitted in full and final settlement and claims will be settled on receipt of the completed enclosed the discharge forms and send it across to the complainant and the payment of the cheques will be send to the complainant after receipt of the discharge forms by mentioning the savings Bank account number of the complainant. Accordingly, the complainant submitted the discharge forms for both parties as asked for. Then the opposite parties rejected the claim of the complainant vide their letter dated 7-6-06 stating that discharge forms send by the complainant were treated as null and void on the ground that New Citi Hospital, Secunderabad issued a letter that the life assured was suffering from Cancer since December,2004. The said letter given by the so called New Citi Hospital is a concocted and fabricated and that the said hospital was closed in the month of April,2002 itself and therefore issuing a letter by the New Citi Hospital in the year 2004 does not arise. Therefore, the opposite parties invented by adopting clandestine methods so as to avoid the payment to the complainant. Even otherwise also, the so-called letter given by New Citi Hospital does not disclose that which Doctor treated the life assured and also not opined that the life assured was suffering from cancer. The complainant intends to take steps against the opposite party for filing fabricated documents. Non payment of amounts under the above said 2 policies, amounts to deficiency of service. Hence the complaint.
2. The opposite parties 1 to 3 filed a Counter/Written version denying the contents of the complaint by stating that it is a fact that the complainant had taken two policies. It is also a fact that the complainant is the nominee of the deceased Kongara Krishnaiah. During the life time of Kongara Krishnaiah, he suppressed the fact that he was suffering from cancer prior to taking of policies. The claim of the complainant was rejected on coming to know about the fact that he was suffering from cancer and relied upon the letter issued by New Citi Hospital, Secunderabad. The Insurance being a contract of “Uberrimae fidae” the policy holder’s duty is to reveal all the relevant material facts to insurer in order to avail Insurance policy. Thus, the concealment of material facts either by the deceased life assured or by the complainant about previous illness gives the valid ground for rejection of the complaint. There is no will-ful intention on the part of the opposite parties for rejecting the claim made by the complainant and further there is no deficiency of service. Hence prayed to dismiss the complaint of the complainant with costs.
In course of enquiry, the complainant filed her affidavit reiterating the contents of the complaint and got marked Exhibits A1 to A16. Ex A1 is the Policy Schedule, dated 18-04-2005. Ex.A2 is a Policy Schedule, dated 20-07-2005. Ex.A3 is Out Patient Card. Ex.A4 is Histo Pathology report Issued by Nizam’s Institute of Medical Sciences, dated 06-02-2006. Ex.A5is Histo Pathology report Issued by Nizam’s Institute of Medical Sciences, dated 27-02-2006. Ex.A6 is a Letter.Ex.A7 is Immunohistochemistry Report of Apollo Hospitals. Ex.A8 is Immunohistochemistry Report of Apollo Hospitals. Ex.A9is a letter by Claims Department , Policy No. LFB 1155925, dated 23-05-2006. Ex.A10 is a letter by Claims Department , Policy No. LFB 1178054,dated 23-05-2006. Ex.A11 is a letter by Claims Department, Policy No. LFB 1155925, dated 07-06-2006. Ex.A12 is a letter by Claims Department, Policy No. LFB 1178054, dated 07-06-2006. Ex.A13 is a Death Certificate, dated 19-04-06. Ex.A14 is a Legal Notice, dated 08-04-2008. Ex.A15is a Postal receipts. Ex.A16 is an Acknowledgement
As against the oral and documentary evidence of the complainant, the opposite parties have got marked exhibits B1 to B11 besides filing the counter affidavit of the Company Secretary of the opposite parties. Ex.B1is a Proposal form for Life Bond 5, dated 12-03-05 Ex.B2is a Policy Schedule Ex.B3is a Proposal form for Life Bond 5, and Life Bond plus dated 23-06-05 Ex.B4 is a Policy Schedule Ex.B5 is a Death Claim Form Ex.B6is a Essentiality Certificate, dated 12-03-06. Ex.B7is a To whom so ever it may concern, issued by Nizam’s Institute of Medical Sciences, dated 19-04-06. Ex.B8is a Death Certificate. Ex.B9 is a Letter of OP, dated 4-5-06. Ex.B10is a Letter of OP, dated 23-5-06. Ex.B11is a Letter of OP, dated 23-5-06.

Both sides have filed written arguments and advanced oral submissions.

Points for Consideration :-

1.Whether there was any deficiency of service on the part of the opposite parties in repudiating the claim of the complainant?
2.Whether the complainant is entitled to the reliefs sought for?
3. To what relief?
Points No.1&2:- There is no dispute with regard to two policies taken by late Kongara Krishniah and so also his death on 24-3-2006. It is not denied or disputed and on the other hand the complainant i.e, widow of late K. Krishniah submitted the certificate issued by Nizam’s Institute of Medical Sciences, Hyderabad, that late K. Krishniah died due to cardiac arrest as per Ex.B1 when submitting the claim to the opposite parties. Though the opposite parties have admitted the claim under Exhibits A9&A10, subsequently repudiated the claim under Ex.A11 and A12, which resulted in filing of this complaint.
The opposite parties are banking upon an allegation even prior to taking policies late K. Krishniah was detected cancer and took treatment as an out-patient in New Citi Hospital, Secunderabad as per prescription dated 1-12-2004. It is settled principle of law that the contract of insurance is
“Uberrimae fidae”, the faith and trust should be mutual. Non-disclosure or suppression though disentitled the claimant a duty as cast on the insurance company, that such fact was suppressed, since not proving the said fact, they cannot absolves themselves of legal liability that too when opposite parties have already admitted the claim under Ex.A9 &A10. Nothing prevented the opposite parties by issuing a proper reply and in this case no reply whatsoever was issued for Ex.A14 inspite of receiving it under Ex.A15. After filing of the written submissions and the matter reserved for orders, it is noticed by us that no certificate said to have been issued by the New City Hospital, Secunderabad had been filed though referred, the matter was reopened on 12-3-2009. and the opposite party was directed to file the said certificate/letter.
The learned counsel for the opposite party filed a Xerox copy of a letter head of the New City Hospital, Secunderabad dated 1-12-2004 in the name of late K. Krishniah.
Inspite of the specific contention of the complainant in the complaint as well as in the affidavit that no such New city Hospital, Secunderabad is in existence, the opposite parties have neither filed it along with counter nor marked the same. It was only after this Forum directed, the socalled Xerox copy is filed without any supporting affidavit of the doctor. Xerox copy said to be true copy without there being any supporting evidence, which is now filed for the first time in the Forum and the citation reported in relied on by the opposite party will not come to the rescue of the opposite parties and the way in which opposite parties have admitted the claim under Ex.A9 and A10, accepting the death certificate by ex.A13 and later repudiating the claim u/ Ex.A11 and A12 speaks volumes about the conduct of the opposite parties to avoid liability and the socalled Xerox copy without any supporting evidence gives rise to any amount of doubt about its authenticity as well as foul play on the part of the opposite parties. In view of our above discussion, we find that there is deficiency of service on the part of the opposite parties and therefore the complaint of the complainant has to be allowed.
Point No.3:- In the result, complainant’s claim is allowed and we direct opposite parties to pay Rs.5,50,000/- (Rupees five lakhs fifty thousand only) together with interest at 18% p.a. from 23-5-2006 till date of deposit and they are further directed to pay Rs.50,000/-(Rupees fifty thousand only) as compensation and Rs.5,000/- (Rupees five thousand only) towards costs within two months from the date of receipt of this order.
It is open to the complainant as contended by her in the complaint to initiate appropriate action for fabrication of false record, if so advised.

To, Date: 22/09/09

The Manager,
Aviva Life Insurance Co. Ltd.,
Delhi.


Sub: Cancellation of policy.

Dear Sir,

I Mukesh Anand. I have taken a policy vide Policy no is AYS2678086 and my Client ID 2749601 from your Company, but when we read the documents I m not satisfied with your terms and conditions.

So I want to cancel the same. I request you to please cancel this policy and refund the amount (proof of payment is enclosed). Please do the needful so that we can take another policy asap .


Thanks & Regards
Mukesh Anand
Policy no : AYS2678086
Plan Name : AVIVA YOUNG SCHOLAR
Mob. No: 9910023668, 9310949693

K.S. Manikandan,

S/O.K.P. Seetharaman,

G-3 Ramalakshmi Flats,

No.78 Paddy field Road,

Perambur,

Chennai – 600 011. Complainant



Vs.



The Director,

Aviva Life insurance,

Ashirwad Towers,

Plot No.2, Old No.132,

Ist Floor,

Kodambakkam High Road,

Nungambakkam,

Chennai – 600 034.



The Director,

Aviva Life Insurance,

5th Floor,

JMD Regent Square,

Gurgaon-Mehrauli Road,

Gurgaon -122 001

Haryana. Opposite Parties



O R D E R



1. The case of the complainant is briefly as follows:

The complainant had obtained insurance policy from the opposite parties for Accidental death and dismemberment critical illness and permanent total disability, hospital cash benefits in addition to the maturity value of Rs. 5,50,000/- commencing the risk from 28.02.2004. The policy spreads upto the year 2054 and the date of final instalment is due on 28.02.2054. The terms of the policy are in total contradiction to the assurance given by the adviser of the opposite party. The complainant paid Rs.5000/- on 19.02.2004 at the time of obtaining the policy. The subsequent instalment fell out on 28.02.2004.


The complainant paid Rs.5,000/- in cash at the Ist opposite party branch office well in advance at the due date and obtained receipt. The complainant received a letter on 10.09.2004 requesting the complainant to deposit the renewal premium by 27.09.2004 to avoid lapse of the policy. The complainant had also received another communication dated 22.10.2004 and informed the complainant that the policy was lapsed due to non receipt of the renewal premium before 28.08.2004 and further informed that the premium was already paid by the complainant stand forefeited.


This act of the opposite parties amounts to deficiency in service and he sent a legal notice to the opposite parties to refund the premium amount of Rs.10,000/- paid by him and Rs.15,000/-as damages for mental agony. The opposite party sent a reply stating that he was not aware of the premium amount paid by the complainant. Hence the complainant has filed this complaint for refund of Rs.10,000/- paid by him as premium amount along with 24% interest per annum, compensation of Rs.15,000/- and cost of the complaint.

2. The opposite parties filed version and contended inter alia that the complaint is barred by limitation. Since the complainant was given “right to reconsider the notice” and he had the right to cancel the policy but the complainant continued with the policy. The policy was lapsed in 2004 because the name had not reported the receipt of the premium paid by the complainant but subsequently it was reinstated and the same was intimated to the complainant. There is no cause of action for the complainant to file this complaint. There is no deficiency in service on the part of the opposite parties.

3. Proof Affidavits have been filed by both the complainant and the opposite parties. Exs.A1 to Exs.A14 were marked on the side of the complainant. Exs.B1 to Exs.B6 were marked on the side of the opposite parties.

4. The points that arise for considerations are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. To what relief the complainant is entitled to?



5. Point No:1

Admittedly the complainant had obtained the policy from the opposite party and paid Rs.5,000/- as Ist premium on 19.02.2004. Ex.A2 is copy of the payment receipt. The complainant had also paid the 2nd instalment of Rs.5,000/- on 23.02.2004 as per Ex.A6. The opposite party by letter dated 22.10.2004 (Ex.A7) informed the complainant that due to non receipt of renewal premium, the policy of the complainant had lapsed and also informed that if it is not reinstated by paying the the premium, the amount already paid will stand forefeited.


The complainant issued a legal notice to the opposite party and informed that the premium was already paid before the due date. Ex.A8 is the copy of the legal notice. The opposite party by letter dated 8.12.2004 (Ex.A11) informed the complainant that the policy of the complainant was reinstated and also apologized for inconvenience caused. They are also replied by letter dated 16.12.2004 that due to certain reporting error by the bankers, the 2nd instalment premium of Rs.5,000/- paid by the complainant to opposite parties Chennai branch office on 23.08.2004 was not accounted in their records. Subsequently the policy was reinstated and the same was intimated to the complainant.

The contention of the opposite parties is that the complaint is barred by limitation. This contention is not acceptable because, the opposite parties replied the notice of the complainant by letter dated 16.12.2004 and the limitation starts from the date of receipt of the letter. The complaint was filed on 7.9.2006. Hence the complainant is well within the time. The other contention of the opposite party is that the reinstatement of the policy was informed to the complainant. Therefore there is no cause of action for filing this complaint. The complainant has filed the complaint because the opposite party informed him that his policy was lapsed for non payment of premium amount though he had already paid the amount well within the due date.


He would further submit that if there is any risk happened during that period the opposite parties would have taken a stand that since the policy was lapsed, he is not entitled to any benefit under the policy. Therefore the opposite parties have committed in deficiency in service by informing the complainant, that the policy has been lapsed for non payment of premium amount, though the complainant had paid the 2nd instalment well within the due date. The act of the opposite parties amounts to deficiency in service. The point is answered accordingly.

6. Point No:2: In the result, the complaint is allowed. The opposite parties are jointly and severally directed to refund the two instalments of the premium amount of Rs.10,000/- paid by the complainant and also pay a sum of Rs.5000/- as compensation for mental agony and Rs.3000/- as cost of the complaint to the complainant. The amount shall be payable within 6 weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

Sh.Mandeep Singh S/o Sh.Balvir Singh S/o Sh.Dal Singh, Near Bhagat Singh Chowk, Jagdambe Road, New Sodhi Street, Mansa.



..... Complainant.


VERSUS


Aviva Life Insurance Company (India) Limited, Registered Office 2nd Floor, Parkash Deep Building, 7 Tolstoy Marg, New Delhi. 110 011

..... Opposite Party.



ORDER:-




The instant complaint has been filed by Sh. Mandeep Singh son of Sh.Balvir Singh, a resident of Mansa, against Aviva Life Insurance Company (India) Limited, New Delhi, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for refund of Rs. 25,000/- alongwith interest and for payment of compensation in the sum of Rs.5,000/- for mental and physical sufferings and Rs.1,000/- as costs

Contd........2

: 2 :


of filing of the instant complaint.

2. Briefly stated, the case of the complainant is that he has secured insurance policy No.LLG 1232227 from the opposite party and deposited a sum of Rs.25,000/- with him, as such, he is consumer under the opposite party. The complainant is a physically handicapped person who possess 70 percent disability. He was approached by an official of the opposite party and informed that Fixed Deposit Receipt issued by the opposite party, fetch better of rate of interest. The complainant was prevailed upon by him to deposit the amount with the opposite party for investment of amount in Fixed Deposit Receipt. At that time, he secured the signatures of the complainant on blank papers. After expiry of period of one year, complainant approached the Bank of Punjab and came to know that amount deposited by him through the official of the opposite party, has been shown as paid against premium of insurance policy.


After knowing the said fact, complainant fell into grief because of his inability to deposit the amount every year under the policy issued by the opposite party. The complainant visited the office of the opposite party several times and served several notices upon him but they have not been responded by him, whose official has received the money from him by misleading him because of which the complainant has been subjected to mental and physical harassment, as such, there is deficiency in service on the part of the opposite party for which he is also liable to pay compensation and costs of filing of the instant complaint. Hence this complaint.

3. On being put to notice, opposite party filed written version, resisting the complaint, taking preliminary objections; that it is not maintainable because the complainant has admitted regarding purchase of

Contd........3

: 3 :


insurance policy and deposit of a sum of Rs.25,000/- with him, as such, he cannot wriggle out of the said omission; that complaint is time barred as proposal form has been filled on 31.3.2006 and policy came into operation on 24.4.2006, whereas payment was deposited by the complainant on 28.3.2006; that parties need to lead elaborate evidence to prove their respective stand, as such, controversy can be adjudicated in just and proper manner only by the civil court and not by the Consumer Fora in summary manner; that this Forum has no territorial jurisdiction to entertain and try the complaint as neither the opposite party is carrying on business through any of its branch at Mansa, nor any cause of action has arisen within the territorial jurisdiction of this Forum for filing of the instant complaint and that complaint being false and vexatious, is liable to be dismissed with special costs. On merits, it is admitted that complainant has purchased insurance policy under reference from the opposite party against payment of premium of Rs.25,000/-.


It is denied that any official of the opposite party approached the complainant and informed him that deposit of amount in the FDR with the opposite party fetches more rate of interest. Rather it is asserted that complainant secured insurance policy with his free consent. It is specifically denied that his signatures were secured on blank papers, but the complainant has affixed his signatures on the proposal form after admitting the contents to be correct. It is submitted that as per the terms and conditions of the policy, the complainant is liable to deposit a sum of Rs.25,000/- per annum for assured amount of Rs.2,63,000/-, but after making payment of one installment, he committed lapse because of which policy secured by him lapsed on 30.6.2007. It is submitted that complainant has filed the instant complaint with the intention to avoid payment of subsequent installments under the policy by concocting false

Contd........4

: 4 :


version. It is denied that he has approached the opposite party on telephone or otherwise or served any notice upon him. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

4. On being called upon, by the Forum, to do so, the counsel for the complainant, tendered in evidence, his affidavit and copies of documents Ext.C-1 to C-3 and closed evidence. On the other hand, learned counsel for the opposite party closed evidence after tendering in evidence affidavit of Sh.Ashwani Tyagi and photocopy of insurance policy Ext.OP-1 & OP-2.

5. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the complainant alone, carefully, with his kind assistance.

6. At the out set, learned counsel for the opposite party Sh. N.K.Sharma, Advocate has submitted that complainant has taken contradictory pleas admitting that he secured the insurance policy from the opposite party, but at the same time, he has pleaded commission of fraud by an official of the opposite party for securing his signatures on blank papers on the pretext of deposit of amount for better rate of interest, as such, complicated questions of law and facts cannot be adjudicated in summary manner by the Consumer Forum, but by the civil court after affording opportunity to the parties to lead their respective evidence to their satisfaction. Learned counsel urged that in view of the controversy, complainant be relegated to the civil court for adjudication of the controversy and complaint be dismissed. Learned counsel has relied upon 1997(I) CPJ NC 95 Lala Samachar Newapaper versus General Manager, Telecom Department, Ludhiana & Ors, wherein it was held by the Hon'ble

Contd........5

: 5 :

National Commission that Consumer Fora cannot investigate the allegation of forgery. Learned counsel has further relied upon 1993(I) CPJ NC 88 N. Shivji Rao versus M/s Daman Motor Company & Ors wherein it has been held by the Hon'ble National Commission that factum of fraud and cheating are to be established first before the Consumer Fora can arrive at a finding of deficiency in service, and after the decision of the Hon'ble State Commission, as such, Consumer Forum cannot effectively adjudicate complicated questions of law and facts.

7. On the other hand, learned counsel for the complainant Sh. S.K.Singla, Advocate, has argued that the opposite party has not denied the averments made in the complaint that complainant is a physically handicapped person with 70 percent disability, as such, the said fact is deemed to have been admitted to be correct by the opposite party. Learned counsel has also drawn our attention to the certificate issued by the Civil Surgeon, Mansa, as per which complainant possess 70 percent disability and has argued that this fact has not been incorporated in the proposal form tendered in evidence by the opposite party. As such, said fact supports the version of the complainant that his signatures have been secured by an official of the opposite party by offering him inducement to deposit the amount in FDR for earning better rate of interest. Learned counsel argued that it is clear from the record, as such, controversy can be adjudicated in summary manner by the Consumer Forum and there is no need to relegate the complainant to the civil court.

8. We find merit in the argument advanced by the learned counsel for the opposite party, because the complainant in para No.1 of his complaint has taken the plea that he secured insurance policy bearing No. LLG 1232227 from the opposite party and deposited a sum of Rs.25,000/- on account of premium. However, in para No.2 of the complaint, he has

Contd........6

: 6 :

taken the plea that an official of the board approached him with the offer that Fixed Deposit Receipt maintained with his office may fetch better rate of interest and he secured his signatures on blank papers, about which he came to know after he contacted the officials posted in Bank of Punjab about one year prior to the date of filing of the complaint. He has neither disclosed the name of the official who approached him on behalf of the opposite party, nor the time, date and place. On the other hand, case of the opposite party is that complainant has secured life long insurance policy on 24.4.2006 and deposited a sum of Rs.25,000/- on 28.3.2006, with his free consent and filled proposal form on 31.3.2006. In view of the above said stand taken by the parties, we have come to the conclusion that detailed investigation is needed for adjudication of the controversy in just and proper manner. Therefore, we are constrained to hold that the controversy cannot be resolved by the Consumer Forum in summary manner, but by the civil court after affording opportunity to the parties to lead evidence to their satisfaction.

9. For the aforesaid reasons, we dismiss the complaint with liberty to the complainant to avail any other remedy open to him and to seek exclusion of time spent before this Forum, for the purpose of condonation of delay, as permissible, under Section 14 of the Indian Limitation Act, 1963. In view of the peculiar facts and circumstances of the case, parties are left to bear their costs.

10. Copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. The file be indexed and consigned to record.

F.A.No.1594/2006 against C.D.No.125/2006, Dist.Forum-III, Hyderabad.
Between:
1.Aviva Life Insurance,

C/o. # Branch office at Sindhu Towers,

Rajbhavan Road, Somajiguda,

Hyderabad 500 082, represented by its

Authorised Signatory.

2. Aviva Life Insurance ,

Regd Office at # 2nd Floor Prakashdeep Building,

7 Tolstory Marg, New Delhi – 110 001.

3. Aviva Life Insurance

# 5th floor JMD Regent Square,

Gurgoan , Mehrauli Road,

Gurgoan, 122001, Haryana. …Appellants/

Opp.parties

And
Mr.V.Ahalada Rao,

S/o.Srinivas Rao,

Aged about 32 years,

Secretary, C/o.206,

Sri Datta Sai Commercial Complex,

RTC X Road, Hyderabad. .. Respondent/

Complainant



Counsel for the Appellants : M/s.Hari & Associates

Counsel for the Respondent : Mr. Santhosh Singh.



CORAM: SMT. M.SHREESHA, HON’BLE MEMBER,

AND

SRI K.SATYANAND , HON’BLE MEMBER.



FRIDAY, THE SIXTH DAY OF NOVEMBER,

TWO THOUSAND NINE.



Oral Order (Per Smt M.Shreesha, Hon’ble Member)

***

Aggrieved by the order in C.D.No.125/2006 on the file of Dist. Forum-III, Hyderabad , the opposite parties preferred this appeal.



The brief facts as set out in the complaint are that the complainant is a policy holder of opposite party insurance company and each premium payable is Rs.5000/- . Complainant first premium on 27.4.2004, second premium on 27.10.2004 and third premium on 27.4.2005 before the due dates. The current renewal amount of Rs.5000/- has to be paid by the complainant to the opp.parties by due date i.e. 27.4.2005 . Complainant issued a cheque bearing no.603921 dt. 5.4.2005 for a sum of Rs. 5000/- and sent it thorugh courier dt. 5.4.2005 and the said receipt was submitted in the branch office of opp.party no.1. Complainant received a letter dt.9.5.2005 requesting to pay the renewal premium before 27.5.2005 so as to avoid the lapsing of the policy for which the he replied on 1.6.2005 mentioning all the fact of payment of premium and non receipt of acknowledgement. The complainant received a letter dt.21.6.2005 in which it is stated that the earlier cheque of the complainant was returned unrealized for the reason “amount in words required” for which the complainant replied stating that if the said fact brought to his notice he would have paid the amount immediately after making appropriate corrections in the cheque as there was sufficient time for the payment of premium. The complainant issued legal notice to the opposite parties. Alleging deficiency in service, the complainant approached the District Forum to direct the opposite parties to pay an amount of Rs.15,000/- towards the premium amounts which was paid by him to the opp.parties with interest at 18% p.a. from 5.4.2005 till the realisation, to pay Rs.5000/- towards damages and to pay costs.



Opposite parties 1 to 3 filed counter stating that the cheque presented by them for fourth premium returned unrealized stating that ‘amount in words was not filled in the cheque’ and they have intimated the same on 9.5.2005 to the complainant and requested to make the payment before 27.5.2005 and also vide letter dt. 21.5.2005 they have reconfirmed the non receipt of the premium and also furnished a copy of the returned cheque and bank memo as proof of non realization. Opposite parties further stated that they have advised the complainant that cancellation of policy would result in nil refund. Opposite parties states that there is no deficiency in service on their behalf and seeks dismissal of the complaint.


Based on the evidence adduced i.e. Exs.A1 to A7 and B1 to B8 and the pleadings put forward allowed the complaint directing the opposite parties to pay a compensation of Rs.15,000/- and costs of Rs.1000/- within two months from the date of the order.



Aggrieved by the said order, the opposite parties preferred this appeal.



The facts not in dispute are that the complainant paid three premiums prior to the due date of the policy and Ex.B3 is the photo copy of the cheque dt.5.4.2005 for a sum of Rs.5000/-. We observe from the record that the amount in words column was not filled . Ex.A3 is the letter from the opposite party to the complainant stating that the renewal premium of Rs.5000/- for the policy was due to be paid on 27.4.2005 and requesting him to deposit the renewal premium by 27.5.2005 to avoid the policy being lapsed. It is pertinent to note that this letter does not mention non-realization of the cheque which was already sent by the policy holder on 5.4.2005 and it was not brought to the notice of the complainant that the premium had already been paid since the last sentence suggests that the notice can be ignored if the premium has already been deposited. A delay of 45 days occurred before the non-realisation of the cheque was brought to the notice of the complainant. The learned counsel for the appellants/opp.parties submitted that the appellants issued a letter dt. 9.5.2006 about the non payment of half yearly premium and requested to pay the premium before 27.5.2005 and that the complainant without verifying whether the cheque was cleared or not states through Ex.A4 that he has necessary documentary evidence to show that the cheque was cleared on 8.4.2005 . It is the further case of the appellants that the complainant is entitled to premium amounts, only in case the policy is cancelled during the free lock period of 15 days from the date of policy receipt and in the present case the policy commenced on 27.10.2003 and the free lock period had long expired and as such the complainant is not entitled for refund of paid premiums in case of cancellation as sought by the complainant and therefore the District Forum erred in awarding compensation of Rs.15,000/-. We observe from the record that had the complainant been informed earlier, rather than the delay of 45 days about non realization of cheque, the complainant would not have been in the belief that the premium was paid. Taking into consideration that the sum assured is Rs.1,80,000/- and the complainant paid Rs.15,000/- promptly before the due date, the direction of the District Forum to pay an amount of Rs.15,000/- is justified. We see no reason to interfere with the well considered order of the District Forum.



In the result this appeal fails and is accordingly dismissed. Order of the District Forum is confirmed. No costs. Time for compliance four weeks.

[ RP No. 119 Of 2009
(Arisen out of order dated 17/11/2009 of Case No EX 23/2009 of District Howrah DF , Howrah)
1. AVIVA Life Insurance (India) Pvt. Ltd. & Others 5, P. M. G. Road, H M C Stadium Complex, 1st Floor, Howrah - 711 101. , 5, P. M. G. Road, H M C Stadium Complex, 1st Floor, Howrah - 711 101.
2. Branch Manager, AVIVA Life Insurance (India) Pvt. Ltd. 5, P. M. G. Road, H M C Stadium Complex, (1st Floor), P.O., P.S. & Dist.-Howrah, Pin - 711 101., 5, P. M. G. Road, H M C Stadium Complex, (1st Floor), P.O., P.S. & Dist.-Howrah, Pin - 711 101.
3. Zonal Manager, AVIVA Life Insurance (India) Pvt. Ltd. 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17, 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17
4. Head Director of Sales Force (East) AVIVA Life Insurance (India) Pvt. Ltd. 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17, 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17
....Appellant
Versus
1. Smt. Ranjana Dutta & Others W/o Sri Soumen Dutta, 84/1, Kalikundu Lane, P.O., P.S. & Dist. Howrah. , W/o Sri Soumen Dutta, 84/1, Kalikundu Lane, P.O., P.S. & Dist. Howrah.

2. Mr. K. S. Harish Nathan Alias Haris Nathan, Asstt. Sales Manager, AVIVA Life Insurance (India) Pvt. Ltd. H M C Stadium Complex (1st Floor), P.S. & Dist. - Howrah, Pin - 711 101. , H M C Stadium Complex (1st Floor), P.S. & Dist. - Howrah, Pin - 711 101.

3. Smt. Rachna Kar (Dutta), W/o Sri Pintu Dutta 140/1, Chandra Kumar Banerjee Lane, P.O., P. S. & Dist. Howrah, Pin - 711 102. , 140/1, Chandra Kumar Banerjee Lane, P.O., P. S. & Dist. Howrah, Pin - 711 102.

....Respondent

BEFORE :
HON'BLE JUSTICE ALOKE CHAKRABARTI , PRESIDENT
MR. A K RAY , Member
MRS. SILPI MAJUMDER , Member

PRESENT: Mr. Siddhartha Lahiri & Mr. Sushil Kumar Sewak, Advocate for the Petitioner 1
None for the Respondent
*JUDGEMENT/ORDER

ORDER NO. 4 DT. 18.12.09

Revision Petitioner is present through Mr. Siddhartha Lahiri, Ld. Advocate. OP is absent on calls. It appears that the final judgement, which has been sought to be executed before the Forum below, provides a clear direction upon the OP Nos. 1,2,3,4 & 5 to issue the policy of Life Bond - 5 for yearly premium of Rs. 62,000/- in favour of the complainant within 30 days and in default they are to refund the said amount of Rs. 62,000/- with interest @ 12% p.a. from 22.5.07 till payment. Though the Revisionist has argued explanation as to why the compliance regarding issuance of the policy could not be made within 30 days, but we are of the opinion that the Executing Forum was not in a position to consider the consequence provided in the order itself, against which no appeal has been filed and has reached finality. In the circumstances, we are of the opinion that in the impugned order there is no irregularity and the Revisionist admittedly is to comply with the final order and we do not find any ground to interfere with the impugned order. The Revision Petition is accordingly dismissed. Revisionist is granted liberty to comply with the impugned order in accordance with the law.
][/

31, Belvedere Road, Kolkata - 700027
RP No. 120 Of 2009
(Arisen out of order dated 17/11/2009 of Case No EX-24/2009 of District Howrah DF , Howrah)
1. AVIVA Life Insurance (India) Pvt. Ltd. & Others 5, P M. G. Road, H M C Stadium Complex, 1st Floor, Howrah - 711 101, 5, P M. G. Road, H M C Stadium Complex, 1st Floor, Howrah - 711 101
2. Branch Manager, AVIVA Life Insurance (India) Pvt. Ltd. 5, P M. G. Road, H M C Stadium Complex, (1st Floor), P.O., P.S. & Dist. Howrah, Pin - 711 101, 5, P M. G. Road, H M C Stadium Complex, (1st Floor), P.O., P.S. & Dist. Howrah, Pin - 711 101
3. Zonal Manager, AVIVA Life Insurance (India) Pvt. Ltd. 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17, 2nd Floor, A. G. Tower, 125/1, Park Street, Kolkata - 17
....Appellant
Versus
1. Sri Soumen Dutta, S/o Sri Kinkar Dutta 94/1, Kalikundu Lane, P.O., P.S. & Dist. Howrah , 94/1, Kalikundu Lane, P.O., P.S. & Dist. Howrah

2. Mr. K. S. Harish Nathan Alias Haris Nathan, Asstt. Sales Manager, AVIVA Life Insurance(India) Pvt. Ltd. H M C Stadium Complex, (1st Floor), P.S. & Dist.- Howrah, Pin - 711 101 , H M C Stadium Complex, (1st Floor), P.S. & Dist.- Howrah, Pin - 711 101

3. Smt. Rachna Kar (Dutta), W/o Sri Pintu Dutta 140/1, Chandra Kumar Banerjee Lane, P.O. , P.S. & Dist. Howrah, Pin- 711 102 , 140/1, Chandra Kumar Banerjee Lane, P.O. , P.S. & Dist. Howrah, Pin- 711 102

....Respondent

BEFORE :
HON'BLE JUSTICE ALOKE CHAKRABARTI , PRESIDENT
MR. A K RAY , Member
MRS. SILPI MAJUMDER , Member

PRESENT: Mr. Siddhartha Lahiri & Mr. Sushil Kumar Sewak, Advocate for the Petitioner 1
None for the Respondent
*JUDGEMENT/ORDER

ORDER NO. 4 DT. 18.12.09

Revision Petitioner is present through Mr. Siddhartha Lahiri, Ld. Advocate. OP is absent on calls. It appears that the final judgement, which has been sought to be executed before the Forum below, provides a clear direction upon the OP Nos. 1,2,3,4 & 5 to issue the policy of Life Bond - 5 for yearly premium of Rs. 75,000/- in favour of the complainant within 30 days and in default they are to refund the said amount of Rs. 75,000/- with interest @ 12% p.a. from 17.5.07 till payment. Though the Revisionist has argued explanation as to why the compliance regarding issuance of the policy could not be made within 30 days, but we are of the opinion that the Executing Forum was not in a position to consider the consequence provided in the order itself, against which no appeal has been filed and has reached finality. In the circumstances, we are of the opinion that in the impugned order there is no irregularity and the Revisionist admittedly is to comply with the final order and we do not find any ground to interfere with the impugned order. The Revision Petition is accordingly dismissed. Revisionist is granted liberty to comply with the impugned order in accordance with the law.

Consumer Complaint No.36/07

Date of presentation: 23.2.2007

Date of decision: 25.11.2009
Neelam Sharma daughter of Sh. Bihari Lal Rawat wife of Dr. Deepak Sharma, resident of Old Hospital Complex Court Road Nurpur Town, District Kangra, HP

Complainant
Versus

1. Aviva Life Insurance Company India Pvt. Ltd. Regd. Office : 2nd Floor Prakashdeep Building, 7 Tolstoy Marg, New Delhi-110001, through Associate Director(Operation).



2. Anil Kumar Loria, Agent/Adviser No.Y0611848, Aviva Life insurance Company Ltd. 5th Floor JMD Regent Square, Gurgaon, Mehrauli Road, Gurgaon 122001(HR).



3. Ankit Sharma, Sales Manager, Aviva Life Insurance Company India Pvt. Ltd., 2nd Floor, Shanghai Towers, 13 Feroze Gandhi Market, Jammu Tawi(J&K).

Opposite parties
Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: R.K.MITTAL

MEMBER: PARDEEP DOGRA

For the complainant: Sh. Ravi Puri, Advocate

For the O.P Nos. 1 to 3: Sh. Subodh Burathoki, Advocate

R.K.MITTAL, PRESIDENT (ORAL)

ORDER/

The brief facts of the complaint, as alleged are that the opposite parties No.2 and 3, are the agents/advisors of the opposite party No.1. They had approached the complainant, to have an Insurance Policy, in the month of May 2006. Accordingly, the complainant had agreed to purchase an insurance Policy, and had paid a sum of Rs.one lac, through cheque No.703451 dated 30.5.2006, drawn in Himachal Gramin Bank.

It is alleged that the opposite parties No.2 and 3, had taken her signatures, on various papers vide proposal No.UP-10277721 dated 30.5.2006. It is alleged that the complainant did not receive the Insurance Policy, from the opposite parties No.2 and 3, so, she had contacted the opposite parties No.2 and 3, number of times, however, after a period of three months, she had received a Insurance Policy, bearing No.LL-61241136 dated 16.8.2006, for a sum of Rs.50,000/- only.

Since, the complainant had paid a sum of Rs.one lac, but she had received a Policy only for a sum of Rs.50,000/-, so she had contacted the opposite parties for refund of her balance money. It is alleged that ultimately, she had received the balance amount of Rs.50,000/-, through cheque on 31.10.2006, which was got encashed by her on 3.11.2006.

It is alleged by the complainant that she had asked for the reasons, for not issuing the Insurance Policy of the full amount, but no reasons were communicated to her by the opposite parties. She has claimed interest to the tune of Rs.4500/- on the amount of Rs.one lac, for the period with effect from 30.5.2006 upto 16.8.2006, at the rate of 18% per annum, and interest to the tune of Rs.2150/- on the amount of Rs.50,000/-, for the period 17.8.2006 upto 3.11.2006.

It is alleged by the complainant that she had sent a legal notice dated 11.12.2006, to the opposite parties, but the same was not replied by the opposite parties. She has further contended that due to withholding of her money, and not issuing the Insurance Policy, as assured by the opposite parties, she had suffered mental agony, and harassment, for which she has claimed the compensation to the tune of Rs.10,000/-. She has also claimed litigation costs to the tune of Rs.7000/-, of this complaint. In totality, she has claimed an amount of Rs.23650/-, from the opposite parties.

2. The opposite parties no.1 to 3 have contested this complaint by filing their reply on 16.8.2007, in which they have contended that the complainant Smt. Neelam Sharma-Policy Holder, had applied for “Life long unit Linked Policy”, for a sum of Rs.ten lacs with annual premium of Rs.one lac, vice proposal form bearing No.UP10277721, which was received by the opposite party No.1 on 1.6.2006, and the cheque of Rs.one lac, towards the initial payment was credited in the account of the opposite party No.1, on 12.7.2006.

The opposite party No.1 had asked the complainant to undergo certain medical tests, and accordingly, she had gone these tests on 19.6.2006. The medical reports were received by the opposite party No.1 on 26.6.2006. They have contended that it is specifically mentioned on the first page of the proposal form dated 30.5.2006, in point no.2 of the notes to the effect that receipt by the company of the completed proposal, and the initial payment does not create any obligation on the part of the company to underwrite the risk, and the company shall not be liable, until such time it has underwritten the risk, and issued the Policy”.

They have further contended that the factors like age, health condition of the life assured, financial status, sum assured etc. have to be considered before issuance of the Insurance Policy, by the opposite party No.1. Since, the opposite party No.1, wanted to know the ability of the proposer to ascertain the fact, that whether she would be able to pay the premium under the Insurance Policy before it, underwrites the risk, and accepts the proposal.

They have contended that the complainant is a partner in a firm with an annual income of Rs. three lacs, and she had proposed to pay a sum of Rs.ona lac, as annual premium towards the Insurance Policy, so it was very important for the opposite party No.1 to assess the complainant ability, to pay the regular premium under the Insurance Policy. The opposite party No.1, vide their letter dated 28.6.2006, had asked the complainant to furnish the copy of the income tax returns before her application for insurance Policy, can be processed.

The complainant vide her letter dated 10.7.2006, had informed the opposite party No.1, that she does not file her income tax returns, and she had requested them to accept her proposal, without the income tax returns. The opposite party No.1, had also asked the complainant to submit the copy of the letter of the Partnership Firm, in which, she is a partner, as a proof of her income, and she was informed that otherwise, she would be issued a policy with the reduced sum assured of Rs. five lacs, instead of Rs. ten lacs.

It is contended that the complainant did not submit the copy of the letter of the Partnership Firm. However, she had agreed to the reduced sum assured of Rs. Five lacs, so she had sent her consent accordingly, which was received by the opposite party No.1 on 16.8.2006. Accordingly, the opposite party No.1, had issued the insurance policy to the complainant with effect from 16.8.2006.

The opposite party No.1, has further contended that though the opposite party No.1 had received the information in the form of proof of income, after the issuance of the Policy, but this proof was of no use, at that stage. It is alleged by the opposite parties that they had sent a refund cheque of Rs.50,000/-, out of Rs. One lac of initial premium paid by the complainant through courier on 20.9.2006, which was received “un-delivered”. They have further contended that the courier packet was returned un-delivered, because the complainant had refused to accept the same.

It is alleged that the opposite party No.1 had approached the complainant several times, to hand over the refund cheque, but she had refused to accept the same. However, the opposite party No.1, had again sent a refund cheque through courier, which was accepted by the complainant, on 30.10.2006, and the said cheque was duly encashed by the complainant, on 3.11.2006.

The opposite parties No.1 to 3 have further contended that despite receiving the refund of the excess premium amount from them, she (complainant) had malafidely sent a legal notice dated 11.12.2006, (which was received by the opposite party No.1, claiming interest on the amount of Rs.one lac, for a period of three months @ 8% per annum. They have further contended that after receipt of the notice dated 11.12.2006, it was replied by the opposite party No.1) vide their reply dated 15.1.2007.

The opposite parties have contended that the present complaint has been filed without any justified, and sufficient cause/reasons, so, it deserves dismissal. They have contended that they had never caused any mental pain, and agony to the complainant. They have contended that the present complaint is nothing, but an abuse of the process of law, which has been filed just to harass them, and to drag them in the court of law, for nothing. They have contended that they had issued the Insurance Policy, to the complainant as per her instructions, and with her consent, as explained aforesaid. Since, there was no deficiency on their part, so they have prayed for dismissal of the present complaint.

3. No re-joinder has been filed in this complaint. The following points were framed by this Forum on 27.10.2007, for determination:-

1. Whether the Ops have committed deficiency in service, as alleged? OPC

2. Whether the complaint is not maintainable, as alleged? OPOPs

3. Relief



4. We have considered the arguments of Sh.Ravi Puri, Advocate, learned counsel for the complainant, and of Sh. Subodh Burathoki, Advocate, learned counsel for the opposite parties No.1 to 3, and we have also carefully gone through the case file, facts, and the evidence on the record. For the reasons to be recorded hereinafter while discussing the points for determination, our findings on the aforesaid points are as under:-

Point No.: Yes

Point No.2: No

Relief: The complaint is partly allowed, as per operative part of the order.

REASONS FOR FINDINGS

POINTS No.1 and 2

5. Since both these two points are inter-connected/interlinked, so in order to avoid repetition in discussion, and for the sake of brevity, both these two points are taken up together for determination.

6. The complainant Smt. Neelam Sharma, has fully supported/corroborated the facts/averments of the complaint, on oath, in her affidavit Ex.CW-1. Annexure C-2, is the photo copy of the first premium receipt dated 16.8.2006 of the Insurance Policy of sum assured of Rs. five lacs. Annexure-B is the photo copy of Medical Examiner’s report dated 26.6.2006 pertaining to the complainant. Annexure C, is the photo copy of letter dated 28.6.2006, written by the opposite party No.1, vide which, they had demanded the income tax returns from the complainant. Annexure-D, is the photo copy of the letter dated 10.7.2006, written by the complainant to the opposite party No.1, in which, she had mentioned that she was not filing any income tax returns, as on that date. Annexure-E, is the copy of letter dated 24.7.2006, written by the opposite party No.1 to the complainant, asking her option to accept or not accept the revised terms, and Annexure F, is the photo copy of the reply dated 24.7.2006, given by the complainant to the opposite party No.1, vide which she had accepted the revised terms, for getting the insurance policy of total sum assured to the tune of Rs. five lacs.

7. It is an admitted fact that the Insurance Policy of the total sum assured of Rs. five lacs, was issued by the opposite party No.1, to the complainant on 16.8.2006. No doubt, the amount of Rs. one lac paid by the complainant had remained with the opposite party No.1, for the month of June, July, and half month of August 2006, but it stands proved on record that the same could not be properly utilized/invested for want of certain formalities, which were completed by the complainant during this period, so for this period, is concerned, the complainant is not entitled for any interest on the amount of Rs. One lac. However, from the facts, and circumstances of the case, it is crystal clear that the opposite party No.1 did not refund the balance amount of Rs.50,000/-, to the complainant within effect from 16.8.2006 upto 31.10.2006, so they are liable to pay admissible interest on the amount of Rs.50,000/-, for this period. The defence of the opposite party No.1, that they had sent the courier containing the cheque, to the complainant, (as refund of Rs.50,000/-,) is not supported, and corroborated by them, by any iota of evidence on the file. Neither any courier receipt has been annexed, nor any photo copy of the cheque dated 16.8.2006, or, of the month of September 2006, has been placed on the record by the opposite party No.1. So, we are satisfied that the opposite party No.1, did not refund the amount of Rs.50,000/-, to the complainant for a period of 75 days with effect from 16.8.2006 upto 31.10.2006, for the reasons best known to them. The act, and conduct of the opposite party, in not refunding the amount of Rs.50,000/- to the complainant, well in time, amounts to complete deficiency in service. So, the opposite party No.1 is liable to pay admissible interest to the complainant for this period. So, the present complaint deserves to be partly allowed.

8. Accordingly, the complaint is partly allowed against the opposite party No.1. . The opposite party No.1 is directed to pay a sum of Rs.1000/-, as interest (in lump-sum) on delayed payment of Rs.50,000/-, within 30 days, after the receipt of copy of this order. We also assess compensation to the tune of Rs.3,000/-, for the metal agony, and harassment of the complainant, and litigation costs to the tune of Rs.2,000/-, which will be paid by the opposite party No,1, within 30 days after the receipt of copy of this order. The copy of this order be sent to the parties, free of costs, by posts, and the file after it’s due completion be consigned to the record-room. Announced R.K.Mittal

Complaint No. 136/9.6.2009
Decided on : 4.11.2009
Kuldeep Singla son of Sh. Balraj Singla, resident of Ward No. 15, Balour Chand Street, Jawaharke Road, Mansa.
..... Complainant.
VERSUS
1. Manager, Centurion Bank of Punjab, Branch Mansa, Tehsil and District Mansa.


2. Competent Authority, Aviva Life Insurance, Aviva Tower Sector Road, Opposite Golf Course, DLF, Phase B, Sector 43, Gurgaon, District Gurgaon (Haryana).

..... Opposite Parties.

Complaint under Section 12 of the

Consumer Protection Act, 1986.

........

Present: Sh. S.K. Singla, Advocate counsel for the complainant.

Sh. P.K. Singla, Advocate counsel for Opposite Party No.1.

Sh. N.K. Sharma, Advocate counsel for Opposite Party No.2.


Quorum: Sh. P.S.Dhanoa, President.

Sh. Sarat Chander, Member.

Smt. Neena Rani Gupta, Member.


ORDER:-


Sh.P.S.Dhanoa, President.

This complaint, has been filed, by Sh. Kuldeep Singla son of Sh. Balraj Singla, resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against the opposite parties for refund of Rs. 15000/- alongwith interest from the date of deposit and

Contd........2

: 2 :


for payment of compensation and costs, in the sum of, Rs. 5,000/- and Rs. 2000/- respectively. Briefly stated, the case of the complainant, is as under:-

2. That he secured insurance policy bearing No. WTG1457096 from OP No. 2, through OP No. 1 and deposited a sum of Rs. 15,000/- on account of premium, as such the complainant is 'Consumer' qua the services rendered by the opposite parties. At the time of purchase of insurance policy by the complainant, he was told by the opposite parties that the policy, has been issued, for a period of 10 years, after which he would be entitled, to refund of amount alongwith interest. At that time Sh. Gurwinder Singh, an employee of OP No. 1 secured signatures of the complainant on blank papers. The complainant has now come to know that the policy has been issued by the OP No. 2, for a period of 56 years. The complainant lodged protest against period of validity of policy, in writing but OP No. 2 neither refunded amount nor interest which has accrued thereon. As such, there is deficiency in service on the part of the both the opposite parties because of which he has been subjected to mental and physical harassment. Hence the complaint.

3. On being put to notice, the opposite party No. 1, filed written version, resisting the complaint, taking preliminary objections erstwhile hence Centurion Bank of Punjab has been merged with HDFC bank; that the complainant is not 'Consumer' under the answering opposite party within the ambit of definition given in the Act; that he has no locus standi and cause of action to file the complaint; that the complaint is not maintainable in the present form and is bad for non joinder and misjoinder of the necessary parties; that the complainant, has never hired, services of answering opposite party and the answering opposite party has only

Contd........3

: 3 :


received the amount of premium from the customers and delivered the same to OP No. 2, as such there is no privity of contract between the answering opposite party and complainant; that the complaint being false and vexatious is liable to be dismissed. On merits, it is denied that the insurance policy was purchased by the complainant from OP No. 2 through OP No. 1. It is submitted that no Gurwinder Singh ever remained employee of answering opposite party and the answering opposite party is not conversant with the terms and conditions of the policy secured by the complainant from OP No. 2. Rest of the averments, made in the complaint, have been denied and a prayer has been made, for dismissal, of the complaint, with costs.

4. The OP No. 2 filed separate written version, resisting the complaint, by taking preliminary objections; that the complaint is not maintainable as complainant has signed the proforma form with his free consent with sound disposing mind after understanding the terms and conditions of the policy being read over by the insurance agent, as such he cannot wriggle out of the same; that the complainant is misconceived and in view of version projected by the complainant parties need to elaborate evidence, as such matter needs to be referred to Civil Court for adjudication; that this Forum has no territorial jurisdiction to entertain and try the complaint and is liable to be dismissed with special costs. On merits, it is submitted that the complainant approached the answering opposite party and submitted duly filled proposal form No. NNU10769175 on 31.1.2007 on which he affixed his signatures after understanding the contents of the "Key Feature Documents" and paid his first installment of premium, which was credited to his account. It is submitted that the complainant has purchased "Life Long Unit Linked Templated Policy"

Contd........4

: 4 :


bearing No. WTG1457096 for a sum of Rs. 3,15,000/- effective from 14.2.2007. He agreed to pay premium in the sum of Rs. 15,000/- per annum and policy document was dispatched to him on 9.3.2007 through Overnite Courier and was delivered to him on 12.3.2007 as evident from copies of documents No. 532229063. It is contended that policy schedule with the complainant has been given "Right to Reconsider" terms and conditions under which he had option to get the policy cancelled, in case he is not satisfied within a period of fortnight but he did not exercise his such right. It is also contended that complainant was also supplied "Premium and Illustration Statement" giving projected maturity/death benefits/surrender value alongwith assumed rate of interest. It is submitted that rates of return are never guaranteed and value of the policy depended on number of factors including future investment performance but the complainant after expiry of one and half year sent a complaint to the opposite parties on 4.8.2008 leveling allegations that the insurance agent never told him that it is a Life Long Investment Plan and sought refund of the amount of premium from the answering opposite party but he was informed vide letter dated 7.8.2008 that the matter is under investigation. It is submitted that through another letter dated 14.8.2008, the complainant was conveyed that the features of the policy were explained to him at the time of issuance of policy and he has failed to exercise option to cancel the policy. It is further submitted that vide letter dated 16.9.2008, the complainant was informed that the answering opposite party has taken every precaution in dealing with his case and had issued policy in his name after verifying all the details. Rest of the averments, made in the complaint, have been denied and a prayer has been made, for dismissal, of the complaint, with costs.

Contd........5

: 5 :


5. On being called upon by this Forum, to do so, the counsel for the complainant, tendered his affidavit and copies of documents, Ext. C-1 to C-4 and has closed his evidence. On the other hand, the counsel for the opposite parties, tendered in evidence, affidavits of Sh. Yashveer Singh, Branch Head, HDFC Bank, Affidavit of Sh. Ashwani Tyagi, Senior Manager, Aviva Life Insurance Company and copies of documents Ext. OP-1 to OP-8 and closed their evidence.

5. We have heard, the learned counsel, for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance.

7. At the out set, learned counsel for the Opposite Party No.1, Sh. P.K. Singla, Advocate, has submitted, that neither any role has been attributed by the OP No.1, in issuance of the insurance policy, nor OP No.1 is an agent of OP No.2, as such, OP No.1 has no liability to refund the amount paid by the complainant, on account of premium. Learned counsel has argued, that OP No.1, has no concern with the policy secured ,by the complainant, from OP No.2, except collection of amount of premium and payment thereof, to OP No.2, as such, complaint against OP No.1, is liable to be dismissed, with compensatory costs.

8. On the other hand, learned counsel for the complainant Sh. S.K.Singla, Advocate, has submitted that policy has been secured, by the complainant through OP No.1, from OP No.2, as such, none of the opposite parties, can escape liability, to refund the amount of policy, issued for life long for the complainant against his option for issuance of policy for a period of 10 years.

9. We do not find merit in the arguments advanced by the learned counsel for the complainant, because there is no privity of contract

Contd........6

: 6 :


between both the opposite parties. The mere fact that OP No.1 forwarded the amount deposited by the complainant, to OP No.2, does not make him a party to the policy. Since OP No.1, has distinct entity than OP No.2 and has no role in the business run by him, as such, he has no liability to refund the amount paid by the complainant on account of premium under the policy secured by him. As such, complaint against OP No.1 is bound to fail.

10. At this stage, learned counsel for the complainant, has drawn our attention, to letter Ext.C-1, written by the authorized signatory of OP No.1 to the Manager of OP No.2 informing her that in the investigation done by her, about the controversy, it has been revealed that policy in the name of the complainant and his son, has been mis sold by one Gurwinder Singh, an employee of OP No.1. Learned counsel has argued that the above said material document supports the case of the complainant, that he was mis led about the period, for which policy was issued, as such, it is a fit case, for cancellation thereof and for refund of the amount of premium paid, by the complainant. Learned counsel, has argued that the complainant, has also been subjected to mental and physical harassment and has incurred avoidable expenses, for filing of complaint, due to conduct of one of the employee of the OP No.1, as such, he is also entitled, to seek compensation and costs, as prayed for in the complaint.

11. Learned counsel for the OP No.2 Sh.N.K.Sharma, Advocate, has submitted that the complainant, has not relied upon the writing, tendered in evidence by him, as such, the said document, cannot be taken into consideration. Learned counsel further argued that proposal form, has been personally filled, by the complainant, who is a literate person and and Ex-Municipal Counseller and has affixed his signatures in English, with

Contd........7

: 7 :


his free consent, on the proposal form. He has not exercised his powers, to return the policy and seek cancellation thereof, within the stipulated period and has filed the complaint, after considerable time, as such, his conduct suggests that he has opted for life long period and has concocted false version, in the complaint. Learned counsel has argued that OP No.2, is not subsidiary of OP No.1, as such, any writing executed by any authority of OP No.1 or any act attributed by his employees, is not binding upon OP No.2. Learned counsel has further argued that neither the person who executed the writing, has entered into the witness box, nor he has produced any person who held any enquiry about the allegations made by the complainant, as such, on the basis of writing Ext.C-1, case set up by the complainant, can be said to be a gospel truth and deserves to be dismissed with compensatory costs.

12. The argument advanced by the complainant, is not devoid of merits, because the complainant, is not a rural rustic person, but an Ex-Municipal Counseller of the Municipal Council, Mansa. He has not denied the existence of his signatures, on the proposal form Ext.OP-3/C-3, filled by him in English, at appropriate place. On the face of the entire document, there does not appear to be any indication of forgery or alteration, which may lead this Forum, to accept the version of the complainant, as projected by him in the complaint at Para No.1. Sh.Ashwani Tyagi, Senior Manager of OP No.2, has tendered his affidavit Ext.OP-2, wherein he has reiterated all the averments, made in the written version, on solemn affirmation that policy issued in the name of the complainant, was "Life Long Policy" and he has himself filled the proposal form. The complainant, has not taken any plea that contents of the proposal form, were filled in by any employee of the OP No.1. In his

Contd........8

: 8 :
affidavit Ext.C-4, the complainant, has not denied his signatures or handwriting, on the proposal form. Therefore, inference is that he has admitted, that he has appended his signatures, on the proposal form, understanding the contents thereof.

13. Even if it may be assumed for the sake of discussion, that some misrepresentation, has been practiced, by any official of the OP No.1, about the period of insurance policy, then the complainant, had the right, to return the policy and seek cancellation thereof, as submitted in the written version, by the opposite parties. The averments made in this regard, in the written version, by the opposite parties, have also gone uncontroverted, even in the affidavit of the complainant.

14. The complainant has relied upon the writing Ext.C-1 addressed by the Manager of OP No.1 to Ms.Jyotsna Manager of OP No.2 . There is no evidence on record to show that any enquiry was held by the OP No.1, about the allegations made by the complainant against his employee Gurvinder Singh. The complainant neither tendered the affidavit of the said manager, nor he has produced the file pertaining to the enquiry held by him. As such, he has withheld the material witness and documents with him, because of which, no reliance can be placed, on the said document, to fasten liability, on the opposite parties.

15. Moreover, there is considerable delay in filing of the complaint. As per facts borne on record, policy, has been issued, in the name of the complainant, on 14.2.2007. As such, he was required, to pay the next premium, after expiry of one year, but has filed the instant complaint on 9.6.2009. As such, there is considerable delay, also on his part, in challenging the legality and validity of the insurance policy, issued in his name.

Contd........9

: 9 :
16. In the light of our above discussion, we have come to the conclusion, that complainant has failed, to establish any deficiency in service, on the part of both the opposite parties, which may invite indulgence of this Forum. In the given circumstances, we are of the considered opinion, that no ground is made out for refund of the amount sought by the complainant and for grant of compensation and litigation expenses.

17. For the aforesaid reasons, we dismiss the complaint. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.

18. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

Complaint No. 138/9.6.2009
Decided on : 04.11.2009
Balraj Singla son of Sh. Balour Singla, resident of Ward No. 15, Balour Chand Street, Jawaharke Road, Mansa.
..... Complainant.
VERSUS
1. Manager, Centurion Bank of Punjab, Branch Mansa, Tehsil and District Mansa.

2. Competent Authority, Aviva Life Insurance, Aviva Tower Sector Road, Opposite Golf Course, DLF, Phase B, Sector 43, Gurgaon, District Gurgaon (Haryana).
..... Opposite Parties.

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Present: Sh. S.K. Singla, Advocate counsel for the complainant.

Sh. P.K. Singla, Advocate counsel for Opposite Party No.1.

Sh. N.K. Sharma, Advocate counsel for Opposite Party No.2.

Quorum: Sh. P.S.Dhanoa, President.

Sh. Sarat Chander, Member.

Smt. Neena Rani Gupta, Member.


ORDER:-


Sh.P.S.Dhanoa, President.

This complaint, has been filed, by Sh. Balraj Singla son of Sh. Balour Chand, resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against the opposite parties for refund of Rs. 10,000/- alongwith interest from the date of deposit and

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for payment of compensation and costs, in the sum of, Rs. 5,000/- and Rs. 2000/- respectively. Briefly stated, the case of the complainant, is as under:-

2. That he secured insurance policy bearing No. WLG1437767 from OP No. 2, through OP No. 1 and deposited a sum of Rs. 10,000/- on account of premium, as such, the complainant is 'Consumer' qua the services rendered by the opposite parties. At the time of purchase of insurance policy by the complainant, he was told by the opposite parties that the policy has been issued for a period of 10 years, after which he would be entitled to refund of amount alongwith interest. At that time Sh. Gurwinder Singh, an employee of OP No. 1 secured signatures of the complainant on blank papers. The complainant has now come to know that the policy has been issued by the OP No. 2, for a period of 36 years. The complainant lodged protest against period of validity of policy, in writing, but OP No. 2, neither refunded the amount, nor interest, which has accrued thereon. As such, there is deficiency in service, on the part of the both the opposite parties, because of which he has been subjected, to mental and physical harassment. Hence the complaint.

3. On being put to notice, the opposite party No. 1, filed written version, resisting the complaint, taking preliminary objections erstwhile hence Centurion Bank of Punjab has been merged with HDFC bank; that the complainant is not 'Consumer' under the answering opposite party, within the ambit of definition given in the Act; that he has no locus standi and cause of action, to file the complaint; that the complaint, is not maintainable in the present form and is bad for non joinder and misjoinder of the necessary parties; that the complainant, has never hired services of answering opposite party and the answering opposite party has only

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received the amount of premium from the customers and delivered the same to OP No. 2, as such there is no privity of contract between the answering opposite party and the complainant; that the complaint being false and vexatious, is liable to be dismissed. On merits, it is denied that the insurance policy, was purchased, by the complainant from OP No. 2 through OP No. 1. It is submitted that Gurwinder Singh ever remained employee of answering opposite party and the answering opposite party is not conversant with the terms and conditions of the policy secured by the complainant from OP No. 2. Rest of the averments, made in the complaint, have been denied and a prayer has been made, for dismissal, of the complaint, with costs.

4. The OP No. 2 filed separate written version, resisting the complaint, taking preliminary objections; that the complaint is not maintainable, as complainant has signed the proforma form with his free consent with sound disposing mind after understanding the terms and conditions of the policy being read over by the insurance agent, as such, he cannot wriggle out of the same; that the complainant is misconceived and in view of version projected by the complainant, parties need to elaborate evidence, as such, matter needs to be referred to Civil Court for adjudication; that this Forum, has no territorial jurisdiction, to entertain and try the complaint and is liable to be dismissed, with special costs. On merits, it is submitted, that the complainant approached the answering opposite party and submitted duly filled proposal form No. NUP10489742 on 9.12.2006 on which he affixed his signatures after understanding the contents of the "Key Feature Documents" and paid his first installment of premium, which was credited to his account. It is submitted that the complainant has purchased "Life Long Unit Linked Templated Policy"

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bearing No. WLG1437767 for a sum of Rs. 1,05,000/- effective from 25.1.2007. He agreed to pay premium in the sum of Rs. 10,000/- per annum and policy document was dispatched to him on 30.1.2007 through Overnite Courier and was delivered to him on 1.2.2007, as evident from copies of documents No. 530435570. It is contended that policy schedule with the complainant, has been given "Right to Reconsider" terms and conditions under which he had option to get the policy cancelled, in case he is not satisfied within a period of fortnight but he did not exercise his such right. It is also contended that complainant was also supplied "Premium and Illustration Statement" giving projected maturity/death benefits/surrender value alongwith assumed rate of interest. It is submitted that rates of return are never guaranteed and value of the policy depended on number of factors including future investment performance, but the complainant, after expiry of one and half year, sent a complaint to the opposite parties, on 4.8.2008, leveling allegations that the insurance agent never told him that it is a Life Long Investment Plan and sought refund of the amount of premium, from the answering opposite party, but he was informed vide letter dated 7.8.2008 that the matter is under investigation. It is submitted that through another letter dated 14.8.2008, the complainant was conveyed that the features of the policy were explained to him at the time of issuance of policy and he has failed to exercise option to cancel the policy. It is further submitted that vide letter dated 16.9.2008, the complainant was informed that the answering opposite party, has taken every precaution in dealing with his case and had issued policy in his name after verifying all the details. Rest of the averments, made in the complaint, have been denied and a prayer has been made, for dismissal, of the complaint, with costs.

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5. On being called upon by this Forum, to do so, the counsel for the complainant, tendered his affidavit and copies of documents, Ext. C-1 to C-3 and has closed his evidence. On the other hand, the counsel for the opposite parties, tendered in evidence, affidavits of Sh. Yashveer Singh, Branch Head, HDFC Bank, Affidavit of Sh. Ashwani Tyagi, Senior Manager, Aviva Life Insurance Company and copies of documents Ext. OP-1 to OP-5 and closed their evidence.

6. We have heard, the learned counsel, for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance.

7. At the out set, learned counsel for the Opposite Party No.1, Sh. P.K. Singla, Advocate, has submitted, that neither any role has been attributed by the OP No.1, in issuance of the insurance policy, nor OP No.1 is an agent of OP No.2, as such, OP No.1 has no liability to refund the amount paid by the complainant, on account of premium. Learned counsel has argued, that OP No.1, has no concern with the policy secured ,by the complainant, from OP No.2, except collection of amount of premium and payment thereof, to OP No.2, as such, complaint against OP No.1, is liable to be dismissed, with compensatory costs.

8. On the other hand, learned counsel for the complainant Sh. S.K.Singla, Advocate, has submitted that policy has been secured, by the complainant through OP No.1, from OP No.2, as such, none of the opposite parties, can escape liability, to refund the amount of policy, issued for life long for the complainant against his option for issuance of policy for a period of 10 years.

9. We do not find merit in the arguments advanced by the learned counsel for the complainant, because there is no privity of contract

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between both the opposite parties. The mere fact that OP No.1 forwarded the amount deposited by the complainant, to OP No.2, does not make him a party to the policy. Since OP No.1, has distinct entity than OP No.2 and has no role in the business run by him, as such, he has no liability to refund the amount paid by the complainant on account of premium under the policy secured by him. As such, complaint against OP No.1 is bound to fail.

10. At this stage, learned counsel for the complainant, has drawn our attention, to letter Ext.C-1, written by the authorized signatory of OP No.1 to the Manager of OP No.2 informing her that in the investigation done by her, about the controversy, it has been revealed that policy in the name of the complainant and his son, has been mis sold by one Gurwinder Singh, an employee of OP No.1. Learned counsel has argued that the above said material document supports the case of the complainant, that he was mis led about the period, for which policy was issued, as such, it is a fit case, for cancellation thereof and for refund of the amount of premium paid, by the complainant. Learned counsel, has argued that the complainant, has also been subjected to mental and physical harassment and has incurred avoidable expenses, for filing of complaint, due to conduct of one of the employee of the OP No.1, as such, he is also entitled, to seek compensation and costs, as prayed for in the complaint.

11. Learned counsel for the OP No.2 Sh.N.K.Sharma, Advocate, has submitted that the complainant, has not relied upon the writing, tendered in evidence by him, as such, the said document, cannot be taken into consideration. Learned counsel further argued that proposal form, has been personally filled, by the complainant, who is a literate person and and Ex-Municipal Counseller and has affixed his signatures in English, with

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his free consent, on the proposal form. He has not exercised his powers, to return the policy and seek cancellation thereof, within the stipulated period and has filed the complaint, after considerable time, as such, his conduct suggests that he has opted for life long period and has concocted false version, in the complaint. Learned counsel has argued that OP No.2, is not subsidiary of OP No.1, as such, any writing executed by any authority of OP No.1 or any act attributed by his employees, is not binding upon OP No.2. Learned counsel has further argued that neither the person who executed the writing, has entered into the witness box, nor he has produced any person who held any enquiry about the allegations made by the complainant, as such, on the basis of writing Ext.C-1, case set up by the complainant, can be said to be a gospel truth and deserves to be dismissed with compensatory costs.

12. The argument advanced by the complainant, is not devoid of merits, because the complainant, is not a rural rustic person, but an Ex-Municipal Counseller of the Municipal Council, Mansa. He has not denied the existence of his signatures, on the proposal form Ext.OP-3/C-2, filled by him in English, at appropriate place. On the face of the entire document, there does not appear to be any indication of forgery or alteration, which may lead this Forum, to accept the version of the complainant, as projected by him in the complaint at Para No.1. Sh.Ashwani Tyagi, Senior Manager of OP No.2, has tendered his affidavit Ext.OP-2, wherein he has reiterated all the averments, made in the written version, on solemn affirmation that policy issued in the name of the complainant, was "Life Long Policy" and he has himself filled the proposal form. The complainant, has not taken any plea that contents of the proposal form, were filled in by any employee of the OP No.1. In his

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affidavit Ext.C-3, the complainant, has not denied his signatures or handwriting, on the proposal form. Therefore, inference is that he has admitted, that he has appended his signatures, on the proposal form, understanding the contents thereof.

13. Even if it may be assumed for the sake of discussion, that some misrepresentation, has been practiced, by any official of the OP No.1, about the period of insurance policy, then the complainant, had the right, to return the policy and seek cancellation thereof, as submitted in the written version, by the opposite parties. The averments made in this regard, in the written version, by the opposite parties, have also gone uncontroverted, even in the affidavit of the complainant.

14. The complainant has relied upon the writing Ext.C-1 addressed by the Manager of OP No.1 to Ms.Jyotsna Manager of OP No.2 . There is no evidence on record to show that any enquiry was held by the OP No.1, about the allegations made by the complainant against his employee Gurvinder Singh. The complainant neither tendered the affidavit of the said manager, nor he has produced the file pertaining to the enquiry held by him. As such, he has withheld the material witness and documents with him, because of which, no reliance can be placed, on the said document, to fasten liability, on the opposite parties.

15. Moreover, there is considerable delay in filing of the complaint. As per facts borne on record, policy, has been issued, in the name of the complainant, on 25.1.2007. As such, he was required, to pay the next premium, after expiry of one year, but has filed the instant complaint on 9.6.2009. As such, there is considerable delay, also on his part, in challenging the legality and validity of the insurance policy, issued in his name.

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16. In the light of our above discussion, we have come to the conclusion, that complainant has failed, to establish any deficiency in service, on the part of both the opposite parties, which may invite indulgence of this Forum. In the given circumstances, we are of the considered opinion, that no ground is made out for refund of the amount sought by the complainant and for grant of compensation and litigation expenses.

17. For the aforesaid reasons, we dismiss the complaint. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.

18. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

Complaint No.10/6.1.2009

Date of order: 2.12.2009



Mann Singh son of Sh. Mohan Singh & Late Balbir Kaur, resident of B-33/1451, Ashok Nagar, Gali No.9, near Jalandhar Bye Pass, Ludhiana.
(Complainant)
Vs.

1. Aviva Life Insurance Corporation India Ltd. 2nd Floor, Shanghai Tower, Feroze Gandhi market, Ludhiana through authorised signatory.

2. Aviva Life Insurance Corporation India Ltd., Aviva Tower, Sector Road, Opp. Golf Course, DLF, Phase-V, Sector 43, Gurgaon through Claim Department.

(Opposite parties)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.

Smt. Priti Malhotra, Member.

Present:
Sh. M.S. Sethi Advocate for the complainant.

Sh. Alok Mohindra Advocate for opposite parties.
O R D E R

RAJESH KUMAR, MEMBER:

1. Smt. Balbir Kaur mother of complainant was insured with respondent against insurance cover dated 7.7.2006 for Rs.2,50,000/- with yearly premium of 25,000/- and date of final instalment was given as 7.7.2042. Respondent issued policy schedule with policy no.LLGI 1246248. the mother of complainant nominated complainant as her nominee in case of death of life insured. Unfortunately, mother of the complainant died on 9.6.2008 due to heart failure and at the time of death two instalments amounting of Rs.51,250/- stand paid to the respondent. The complainant lodged claim with the respondent and respondent got signatures of the complainant on certain documents. Complainant is an illiterate person and singed the documents in good faith. As the respondent official told the complainant insurance shall be payable but so far nothing has happened. The respondent vide its letter dated 26.8.08 admitted receiving of the claim form along with other documents and asked certain clarifications. The complainant being an illiterate person contacted the official Sh. Pankaj Sharma on telephone number 01242709279 and disclosed immediately to complete the formalities and respondent asked the complainant to sign the documents with the remarks that they will get the complete form through their known doctor and now more than five months have passed, the respondent has not settled the claim so far. Delaying the matter with one pretext or the other and repudiated the claim because of having diabeties, hypertension and liver disorder etc. The allegation of diabetes, hypertension is having no nexus with the cause of death as mother of the complainant was expired due to heart failure. The complainant filed the complaint in the Fora to get the claim settled without any further delay and repudiation of claim which the respondent has done is illegal and not genuine.

2. The opposite party took the defence in the written statement that the present complaint is not maintainable as there is no deficiency in service on their part and as such the same need to be dismissed. The deceased had obtained the policy by suppression and concealing of facts. It is a basic principle of law that any contract entered into by any party by suppressing the facts malafide for undue enrichment can not be enforced by said person against the other party. Therefore, no relief can be granted to the complainant. There is a clear cut nexus inbetween the ailments being suffered by the deceased and cause of her death. In fact, the deceased was suffering from diabetes and hypertension for at least five years prior to her death and cronic liver disease for the last three years prior to her death and it was only due to said diseases the death of Smt. Balbir Kaur has taken place. The deceased had not disclosed the previous and pre-existing disease and suppressed the facts which ultimately became the cause for her death. Therefore, insurance can not be awarded to the complainant. The complainant at the time of submitting the proposal form signed a customer declaration wherein she declared and answered the question in the proposal form after being explained by the adviser of the Aviva Life Insurance Company and had fully understood the nature of the questions and importance of disclosing all material information while answering such questions. The complainant undertook that in case of any misstatement or suppression of material information the respondent has right to repudiate any claim against the policy. the deceased signed the declaration in the proposal form that she is not ailing from any health problem and nor she is receiving any medical treatment whereas the medical report submitted by the complainant clearly states that policy holder was suffering from diabetes and hypertension for the last five years and chronic liver disease for the last three years prior to her death. The policy holder on proposal form dated 27.6.06 under Health and Activity Section had marked ‘No’ against the specific question in respect of medical condition, which amounts to serious non disclosure of material facts in violation of terms and conditions of the insurance policy. The insured paid two instalments amounting to Rs.51,250/- under the terms of the policy. The complainant informed the respondent that her mother expired on 9.6.2008 and immediately on receiving the claim form respondent issued letter dated 15.7.08 wherein it was stated that the claim form has been received and further requested by the opposite party to furnish the documents in order to enable to process the claim. Inspite of receiving the above said letter, the complainant did not complete the documentation and nor responded to same. Another letter dated 26.8.08 was issued to the complainant by the respondent wherein the said documentation was again called for and also official of the opposite party made telephone calls on 5.9.08 and talked to the brother of the complainant who confirmed the receipt of the letter and promised to forward all the papers within three four days. The complainant submitted the medical certificate issued by Dr. Archana Garg MD Medicines dated 25.6.08 of U.S.P.C. Jain Charitable Hospital, Sunder Nagar, Ludhiana in which it was clearly mentioned that Smt. Balbir Kaur was suffering from Cirrhosis, ascites-Niddm-Hypertension and Anemia and was under treatment on OPD basis. It is further mentioned that Smt. Balbir Kaur died at home on 9.6.08 according to information supplied by her attendants. It is quite obvious that deceased Smt. Balbir Kaur was suffering from pre-existing diseases and was under regular treatment of the said medical practitioner. The documents which were received and were closely examined and claim of the complainant was declined on the ground that Dr. Archana Garg had stated that the deceased was suffering from diabetes and hypertension since five years and chronic liver for the last three years and was under her treatment since then. Therefore, the said pre-existing medical ailments were not disclosed in the proposal form and violation of terms and conditions of the insurance policy has been committed. Therefore, the claim of the complainant was declined and repudiated on the basis of the pre-existing diseased.

3. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

5. The complainant argued that his mother smt. Balbir Kaur was insured against the insurance cover dated 7.7.2006 for Rs.2,50,000/- with yearly premium of Rs.25,000/- and the date of final instalment was given on 7.7.2042 and the respondent issued the policy no. LLG1246248 (Ex.C.1) and two premiums of Rs.51,250/- were paid to the respondent against the policy. Unfortunately, his mother expired on 9.6.08 due to heart failure. (Ex.C.3). The complainant argued that he was an illiterate person and signed some documents on good faith as assured by the respondent that claim is payable and will get the insurance claim, but nothing has happened till date. More than five months have already passed and the respondent has not settled the claim as yet and delaying the matter on one pretext or the other. The complainant also argued that there is no nexus of diseases of diabetes and hypertension and Cirrhosis with the cause of death of his mother. The complainant argued that his mother was not having pre-existing ailments and was never admitted to any hospital before and after inception of the insurance policy. No treatment for alleged diseased was taken by his mother from anywhere as per his knowledge. Therefore, repudiation of claim on the ground of pre-existing diseases is illegal and not genuine and this repudiation may be quashed.

6. Opposite party argued that there is a clear cut nexus in between the diseases being suffered by the deceased and cause of her death. The deceased was suffering from diabetes and hypertension for the last five years prior to her death and chronic liver disease for the last three years prior to her death. It was only due to these diseases, the death of Smt. Balbir Kaur has occurred. Opposite party also argued that the complainant submitted the proposal form (Ex. R1& R.2) and also signed it and did not disclose her previous and pre-existing ailments and deliberately suppressed the information, which caused her death. Therefore, amount of insurance can not be awarded to the complainant. The opposite party argued that the medical certificate issued by Dr. Archana Garg M.D. Medicine dated 25.6.08 of U.S.P.C. Jain Charitable Hospital, Sunder Nagar, Ludhiana (Ex.R8) in which it was mentioned that Smt. Balbir Kaur was suffering from Cirrohosis, Ascitis, niddm, hypertension, anemia and she was under treatment on OPD basis and expired on 9.6.08 according to her attendants and a diabetes questionnaire which was signed by the claimant Sh. Mann Singh and also this declaration was signed by consulting physicial Dr. Archana Garg, in which it was mentioned that the deceased by having high blood pressure and also having diabetes Type II since 2003 etc. (Ex.R9). Hypertension Disorder Questionnaire was also signed by the claimant Sh. Mann Singh and declaration was also signed by Dr. Archana Garg, which it was mentioned that the patient was suffering from high blood pressure for the last five years etc.(Ex.R10) and Liver Disorder Questionnaire was also signed by Sh. Mann Singh complainant and this declaration was also signed by Dr. Archana Garg M.D. Medicine U.S.P.C Jain Charitable Hospital, Sunder Nagar, Ludhiana, in which also mentioned that patient was suffering from chronic liver disease/ascites (Ex.R11) The opposite party argued that as the patient was suffering from the pre-existing disease like diabetes and hypertension for the last five years and chronic liver disease for the last three years and has been taking treatment since then, therefore, these diseases are pre-existing diseases, which were not disclosed in the form. In light of these pre-existing disease, the claim was repudiated in 29.9.2008 (Ex.R12). Opposite party has placed reliance on judgement reported as 2009 (3) CLT, page 27 of the Hon’ble Punjab state Consumer Disputes Redressal Commission. Insurance Claim-Repudiation-Suppression of material facts-insured husband of the appellant was suffering from diabetes mellitus –II prior to the year 2000 when he filled the proposal form. He has suppressed the material facts from being disclosed. The history of diabetes mellitus-II given by insured himself as recorded in the discharge certificate can validly become the basis of repudiation.

7. From the above facts and figures , Smt. Balbir Kaur mother of complainant was insured against insurance cover dated 7.7.2006 for Rs.2,50,000/- with yearly premium of Rs.25,000/- and the final instalment was to be given on 7.7.2042. It is to mention here that at the time of death mother of the complainant paid two instalments of Rs.51.250/- and policy no. LLGI246248(Ex. C1) was issued. Unfortunately, mother of the complainant expired on 9.6.2008 due to heart failure (Ex.C3). As per report of Dr. Archana Garg U.S.P.C. Jain Charitable Hospital, Sunder Nagar, Ludhiana that the deceased was suffering from diabetes and hypertension for the last five years prior to her death and chronic liver diseases for the last three years prior to her death and the claim of the complainant was repudiated on 29.9.08 (Ex.R12) on the ground that the deceased was suffering from pre-existing diseases as the complainant has concealed the material facts while submitting the proposal form. The claim of the complainant was repudiated as per the format completed by Dr. Archana Garg U.S.P.C. Jain Charitable Hospital, Sunder Nagar, Ludhiana(Ex. R9, R10 and R.11 and these formats are signed by Dr. Archana Garg that the patient was suffering from the pre-existing diseases which were mentioned in the format. But in this case, no affidavit was submitted by Dr. Archana Garg about these diseases that these were pre-existing.

8. In case reported as 2009(3) CPC 123 (Hon’ble Punjab State Commission) Claim was repudiated on the basis of the medical certificate, The doctor who issued the medical certificate did not give any affidavit. Repudiation of claim was held unjustified.

9. 2008(2) CPJ 213 Punjab Contention; insured suffering from hypertension and diabetes for the last 10 years, not disclosed. Concealment of every fact not gives right of repudiation of claim. Hypertension and diabetes not material diseases, these diseases, if had been material, insured would not have survived for 10 years.

10. Regarding terms and conditions of the Exclusive Clause: Fist appeal no.524 of 2008 decided on 7.10.2009 by Hon’ble State Commission, Punjab, Para 12 -14 with reference to Hon’ble National Commission Cases. Regarding allegation of suffering from diabetes and hypertension and chronic liver diseases, at the time of insurance respondent vide proposal form Ex.R.1 under page in the column medical appointment form etc. and further appointment with GP (doctor) Diagnostic Centre. But respondent filed no report and concealed this fact. So, evident at the time of insurance, deceased was having no disease as alleged.

11. Hypertension and diabetes are not diseases 2009 (3) CPJ 51, Hon’ble Delhi State Commission. In this case no affidavit was furnished by Dr. Archana Garg regard pre-existing diseases.

12. Fora reaches at the conclusion that Smt. Balbir Kaur, who was insured under insurance cover dated 7.7.2006 for Rs.2,50,000/- having policy LLGI246248 and two instalments of the premium were paid for Rs.51,250/- was expired due to heart failure (Ex.C3). It is to mention here that heart failure of Smt. Balbir Kaur can not be attributed to the diseases like diabetes and hypertension for the last five years prior to her death and chronic liver diseases for the last three years prior to her death. Even heart attack can occur to a person who do not posses these diseases. Therefore, Smt. Balbir Kaur who was insured with the opposite party and had a heart failure can be attributed to some other reasons. Hence, Fora is of the opinion that the claim which was repudiated as per the format completed by Dr. Archana Garg that the life assured was suffering from diabetes, hypertension and chronic liver diseases is not genuine and no affidavit has been submitted regarding these diseases by Dr. Archana Garg U.S.P.C. Jain Charitable Hospital, Sunder Nagar, Ludhiana. Therefore, the claim which was repudiated on 29.9.2008 (Ex.R12) under the terms and conditions of the policy that the diseases were pre existing does not hold good. Therefore, Fora directs the opposite party to settle the claim with the complainant as the mother of the complainant has taken the policy no.LLGI1246248 under the insurance cover dated 7.7.2006 for Rs.2,50,000/ and the complainant has paid at the time of death two instalments amounting to Rs.51,250/- and the final instalment was due on 7.7.2042. The letter dated 29.9.2008 (Ex.R.12) in which the claim is repudiated is illegal and not genuine. Hence, the complaint is allowed. Compliance of the order be made within 45 of the copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Complaint No: 179 of 2009

Date of Institution: 02.09.2009

Date of Service:22.09.2009

Date of Decision:22.12.2009

Harvinder Singh (aged 26 years) son of Chand Singh, Patta Bagh, Bagha Purana, Distt.Moga.

Complainant.

Versus

1. Aviva Life Insurance, Branch G.T.Road, Moga through its Branch Manager, Branch Office at G.T.Road, Moga.

2. Pawandeep Singh, agent Aviva Life Insurance, Branch G.T.Road, Moga.

Opposite Parties
Complaint Under Section 12 of the

Consumer Protection Act, 1986.

Present: Sh.P.S.Sidhu Adv.counsel for the complainant.

OPs exparte.

Quorum: Sh.J.S.Mallah, Member.

Smt.Bhupinder Kaur, Member.

(J.S.Mallah, Member)

Sh.Harvinder Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 against i)Aviva Life Insurance, Branch G.T.Road, Moga through its Branch Manager, Branch Office at G.T.Road, Moga and ii)Pawandeep Singh, agent Aviva Life Insurance, Branch G.T.Road, Moga directing them to refund the premium of Rs.50000/- and immediately pay Rs.50000/- on account of compensation, damages and illegal harassment due to the deficiency in service.

2. Briefly stated, the complainant purchased the insurance policy from OP-1 through its agent OP-2 in the month of March, 2008. At the time of selling the insurance policy, the OP-2 told the complainant that it is one time premium policy and nothing is to be paid later on and the insurance company will return back minimum double of the premium amount after 3 years and also assured that the life of the complainant has also insured during that 3 years upto the extent of Rs.250000/- being 5 times of the premium amount. That the OPs issued policy no.ASV 1899103 on 4.3.2009 which the complainant has received on 12.3.2009 through speed post. The policy document shows that the next premium due date was 5.3.2009 whereas at the time of selling the insurance policy the OP-2 assured the complainant that the premium was to be paid at one time. The complainant also came to know from the policy documents that he have right to reconsider his decision to purchase the policy within 15 days of the receipt of policy document in case he disagreed with any of its terms and conditions. On 13.3.2009 the complainant wrote a letter to OP-1 to disagreed with the terms and conditions of the policy and wanted to cancel and surrender this policy and get back his premium amount, but inspite of request for cancellation of the policy, the OPs does nothing so far. Hence the present complaint.

3. Notice of the complaint was given to the OPs and the appeared but did not file the reply and proceeded against exparte.

4. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, copy of premium receipt Ex.A2, copy of schedule Ex.A3, copy of annexure-1 Ex.A4, copy of complaint process Ex.A5, copy of benefit of policy Ex.A6, copy of annual chart Ex.A7, copy of proposal Ex.A8 to Ex.A10, copy of first premium receipt Ex.A11, copy of letter Ex.A12, copy of cancellation of policy Ex.A13 and closed his evidence.

5. We have heard the arguments of Sh.P.S.Sidhu counsel for the complainant and carefully perused the evidence on the file.

6. As the case is exparte, OP has no force, Sh.P.S.Sidhu ld.counsel for the complainant has mainly argued that Harwinder Singh complainant purchased the policy from OP-1 through OP-2 in the month of 3/2008 with premium of Rs.50000/-. OP-2 also assured the complainant that the life of the complainant has also insured during that 3 years upto the extent of Rs.250000/- being 5 times of premium amount. The policy was issued on 4.3.2009 which is received by the complainant on 12.3.2009 through speed post. The policy document shows that the next premium due date was 5.3.2009 whereas at the time of selling the insurance policy, the OP-2 assured the complainant that the premium is to be paid at one time. The complainant written request as per Ex.A2 to Manager OP-2 for disagreed with the conditions and want to surrender this policy. Also as per Ex.A3 Insurance Regulatory and Development Authority has given reply about receipt of application for withdrawal of policy, but no action take and advised the complainant to go in court for this satisfaction about the matter. After receiving the policy by the complainant, he has given request within the prescribed period i.e. 15 days as mentioned in the policy. OP-2 should return the amount of premium as per request of complainant. No satisfactory reply was given by OP-2 to the complainant. Policy issued one year after receipt of Rs.50000/- as premium. The terms and conditions not fully known to the complainant at the first time.

7. As OP-2 is exparte, there is deficiency in service on the part of OP-2 and set aside the same.

8. To prove the aforesaid contentions, the complainant has produced his affidavit Ex.A1, copy of premium receipt Ex.A2, copy of schedule Ex.A3, copy of annexure-1 Ex.A4, copy of complaint process Ex.A5, copy of benefit of policy Ex.A6, copy of annual chart Ex.A7, copy of proposal Ex.A8 to Ex.A10, copy of first premium receipt Ex.A11, copy of letter Ex.A12, copy of cancellation of policy Ex.A13 and we believe and rely upon the same.

9. The ld. counsel for the complainant did not urge or argue any other point before us.

10. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. Hence the amount of premium paid by the complainant of Rs.50000/- should be refunded by OP-2 within one month from the date of receipt of copy of this order. Keeping in view the peculiar circumstances of the case, OP-2 will also pay the cost of litigation and compensation of Rs.5000/- to the complainant. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room