BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.



F.A.No.697/2006 AGAINST C.D.NO.9/2006 DISTRICT FORUM, PRAKASAM AT ONGOLE



BETWEEN:



1. The Branch Manager,

LIC of India, Recherla Gate,

Giddalur.



2. The Divisional Manager,

LIC of India, Nellore. ..Appellants/opp. parties.



And



1. P.Lakshmi Devi, D/o.P.Venkata Rami Reddy

Aged 25 years, W/o.Jillella Sekhara Reddy



2. P.Ravindra Reddy S/o.P.Venkata Rami Reddy,

Aged 16 years. Respondents/complainants



Complainants are being minors rep. by their

Guardian, Jillella Sekhara Reddy,

Aged 25 years, R/o.N.Bayenapalli Village

Kongalavadu post, Giddalur Mandal

Prakasam Dist.



Counsel for the Appellants:Mr.M.Venkataramana Reddy



Counsel for the Respondents:Mr.Madhava Rao-R1

R2 served.



QUORUM: THE HON’BLE SRI.JUSTICE D.APPA RAO, PRESIDENT.

AND

SMT.M.SHREESHA, MEMBER.



WEDNESDAY, THE EIGHTH DAY OF JULY,

TWO THOUSAND NINE.



Oral order ;(per Hon’ble Sri Justice D.Appa Rao, President)

***



This is an appeal filed by the opposite parties against whom the District Forum passed an order directing the opposite parties to pay to the complainant the sum assured with interest and other consequential benefits.

The facts that led to filing this appeal are briefly as follows:

The father of the complainants aged 25 and16 years, both of whom are shown to be minors paving the way for the husband of the first complainant to foist himself as the guardian, took out an insurance policy on his life with the Life Insurance Corporation of India of which opposite parties are functionaries at two levels. The policy was taken by the father, Venkata Rami Reddy, way back in 1995. Soon Venkata Rami Reddy, father of the complainants, left home and remained at large ever since. A report was given to the Police and a case was registered as ‘man missing’. The police claimed to have made efforts to trace the said person but without success. While things stood thus even the nominee in the said insurance policy who was no other than the wife of the said Venkata Rami Reddy and mother of these complainants died. As such the complainant preferred this complaint claiming the insurance benefits under the policy obtained by their father.

Opposite parties filed a counter resisting the claims on grounds inter alia that such a claim could not have been maintained except on the foot of a decree to that effect from the civil court and even otherwise the policy had come to be lapsed due to default in payment of premia subsequent to November, 1994.

As these rival pleading threw up a consumer dispute, the District Forum embarked upon an enquiry. In support of their case, an affidavit on behalf of the complainant was filed. By way of documentary evidence, they relied upon Exs.A1 to A14. Opposite parties neither filed an affidavit nor any document. However both sides addressed arguments.

On a consideration of the issues arising from the material on record, the District Forum concluded that the insured must be deemed to have died in terms of a presumption from Section 108 of Evidence Act. It also came to the conclusion that when the insured as also the nominee were shown to have died one by presumption and the other naturally, the benefits of the insurance must devolve upon the legal heirs in this case the daughter and the son. Accordingly the District Forum ordered that the insurance benefits should be paid to the complainants even while holding that the non payment marked deficiency in service.

Aggrieved by the said order, the Life Insurance Corporation of India filed this appeal urging the usual grounds as untenability of the order in favour and the complainants in as much as the finding of presumed death was unfounded of the insurance policy was unenforcable obviously for the reason that it was shown to have lapsed.

Heard both sides.



The points that arise for consideration are:

1. Whether the District Forum was justified in impliedly declaring the death of the insured on the material available on record?.

2. Whether the District Forum was right in readily agreeing with the case of the complainant that the complainants were the legal heirs of the insured?

3. Whether the District Forum was justified in over looking the fact that the complainants of whom admittedly one is a major could be represented by guardian and whether the District Forum was right in readily accepting the brother in law as the guardian?

4. Whether there are any good grounds to interfere with the order of the District Forum, to what result?

1. Though the power of the District Forum to decide the question as to the civil death or presumptive death of a person on the basis of the presumption embodied in the Evidence Act is not in dispute as after all it was germane to the just decision of the crux of the complaint, it cannot but be commented that the District Forum seriously over looked the adequacy of evidence in that regard. It rest contented with the quality of evidence which throws very little light on the facts that would ever give raise to such a presumption. What all that claimed to be adduced in this context was merely Ex.A3 and A4, the F.I.R and the status report, surely that is not adequate for such an exercise. Section 108 of Evidence Act reads as follows:

108. Burden of proving that person is alive who has not been heard of

for seven years.-Provided that when] the question is whether a man is

alive or dead, and it is proved that he has not been heard of for seven

years by those who would naturally have heard of him if he had been

alive, the burden of proving that he is alive is 2*[shifted to] the person

who affirms it.

It is abundantly clear from the provisions of the said section that it is mandatory to prove the essential ingredients therein before calling upon an adjudicatory body to draw a presumption there of. Even such a presumption is not conclusive as it is open for rebuttal by the other side. It becomes conclusive only by an decree of a court, or an equivalent forum. In the present case the evidence measuring upto those requirements is very much wanting. In other words, the issue was not thoroughly dealt with as it ought to have been in terms of the provisions cited above. This is therefore a fit case for remand on that score.

However, there is absolutely no evidence on record to prove the relationship between the deceased and the complainants. It may be factually true that they were the children of the deceased but in order to work out legal rights, they have to go to the court with proper documents like Certificate of family members etc., This anomalous situation also calls for remanding the matter to the District Forum.

3. The whole procedure in this regard went wrong. There can be no guardian for a major because a major is sui juris, similarly if any person other than the natural guardian offers to appear as a guardian to a minor, it is incumbent upon such person to follow certain formalities and get himself recognised as next friend There are several infirmities in the order of the District Forum as pointed out above, but those infirmities are of such a nature that they could be rectified by conducting the proceedings all over again bestowing proper attention to those infirmities. In this view of the matter, we feel that this is a fit case for remand and the order of the District Forum is set aside and the matter is remanded to District Forum for fresh disposal after giving opportunity to both sides. There shall be no order as to costs in the circumstances of the case. Both parties are directed to appear before the District Forum on 10-8-2009 without insisting for fresh notice.







PRESIDENT







MEMBER.

Dt.08-7-2009