BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.1001 OF 2013 AGAINST C.C.NO. 13 OF 2010 DISTRICT FORUM KARIMNAGAR
Between:
1. United India Insurance Co.Ltd.,
rep. by its Branch Manager,
Branch Office, Stadium House
4th Floor, Veer Nariman Road
Church Gate, Posi Mumbai-020
2. United India Insurance Co.Ltd.,
rep. by its B.M.B.O., 2-8-186,
First Floor, Mukharampura Street
Karimnagar Town
Appellants/opposite parties
A N D
Shek Kasim Bee W/o Shek Kareem
50 years, Namilikonda Village
Kodimiyal Taluk, Karimnagar Dist..
Counsel for the Appellant M/s V.Sambasiva Rao
Counsel for the Respondents M/s P.Rajasripathi Rao
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
&
SRI S.BHUJANGA RAO, HON’BLE MEMBER
THURSDAY THE THIRTEENTH DAY OF FEBRUARY
TWO THOUSAND FOURTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite parties are the appellants. The brief averments of the complaint are that the son of the respondent obtained from the appellants Pravasa Bharatiya Bhima Yojana Policy bearing No.021001/48/04/00264/175231 dated 17.06.2005 which was valid for two years. On 12.04.2007 the son of the respondent died in road accident at Dubai. The respondent being the nominee lodged claim along with required document issued by the competent authority at Dubai with the appellants. The appellants through their letter dated 19.12.2006 requested the respondent to furnish documents viz., report of postmortem examination and police report which are available at Dubai. The respondent could not get them as she is resident of India. The respondent filed the complaint before the District Forum claiming the policy amount of 2,00,000/-.
2. The appellants resisted the case contending that the complaint is not maintainable and the Forum has no jurisdiction to entertain the complaint. The appellants requested the respondent to submit the postmortem report and police records which are material to know the cause of death of the policy holder. As there is no response from the respondent, the appellant no.1 sent notice dated 3.8.2009 to furnish the documents within 10 days and on her failure to submit the documents, the appellants closed the claim.
3. The appellants further submitted that on verification of the policy it was noticed that the policy was issued in favour of M/s Easy Finance Services Ltd., Greater Mumbai (Maharashtra State) which insured the deceased Shek Imam by showing the respondent as nominee. M/s Easy Finance Services Limited used to insure the members in bulk and issue a common cheque on all of the members for the policy premium. Sometimes M/s Easy Finance Services credited the amount into the account of the appellant no.1 and sometimes the cheques issued by M/s Easy Finance Services used to be returned on account of insufficient funds in the account M/s Easy Finance Services.
4. The appellants submitted that the appellant no.1 reserves the right to seek protection under Section 64 (VB) of Insurance Act. If provisions of Section 64(VB) are not complied the company is not liable to pay compensation. The policy was obtained by M/s Easy Finance Services Ltd., Greater Mumbai(Maharashtra State) and hence M/s Easy Finance Services Ltd., is a necessary party to the proceedings. As M/s Easy Finance Services Ltd., is not made as party, the complaint is bad for non-joinder of necessary parties and the appellants prayed for dismissal of the complaint.
5. The respondent filed her affidavit and the documents, Exs.A1 to A11. On behalf of the appellants, the Assistant Manager of the appellant no.1 filed his affidavit and the documents, Exs.B1 to B6.
6. The District Forum allowed the complaint directing the appellants to pay 2,00,000/- to the respondent with interest @ 9% per annum from 22.01.2010 together with costs of 1,000/-.
7. Being aggrieved by the order of the District Forum, the opposite parties filed appeal contending that the respondent is not entitled to receive insured sum in view of non-receipt of premium which attracts Section 64VB of the Insurance Act. The respondent had not taken any steps either to implead the M/s Easy Finance Services Limited, Mumbai or the respondent proved before the District Forum to show that the appellant insurance company received the premium.
8. The learned counsel for the first appellant insurance company has filed written arguments.
9. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
10. The facts not disputed are that the respondent’s husband through M/s Easy Finance Limited obtained Pravasa Bharatiya Bheema Yojana Policy from the appellant no.1 insurance company for a period of two years commencing from 17.6.2005 and he died in a road accident on 12.4.2007 at Dubai. The respondent as the nominee of her son lodged claim which was not settled on the premise that the respondent failed to submit the documents sought for by the first appellant insurance company.
11. Before the District Forum, the appellants contended that the complaint is not maintainable on the ground of limitation and the District Forum has no territorial jurisdiction as also that inspite of several reminders to submit the relevant documents, the respondent failed to produce them and as such the appellant insurance company closed the claim.
12. The District Forum held the complaint to be within the period of limitation from the date of notice and as to the territorial jurisdiction, the District Forum proceeded to observe that contention as to the territorial jurisdiction is indefensible on the premise of correspondence under Exs.A10 and A11 made by the respondent from Jagityal with the first appellant insurance company and the District Forum held that in view of the judgment of the High Court that the place of receiving the notice and issuing reply thereto would confer jurisdiction of the Consumer Forum within whose jurisdiction correspondence thereof is made.
13. Insofar as non-submission of the report of postmortem examination is concerned, the District Forum observed that death certificate issued by Ministry of Heal UAE and certified Comptroller General of India would show that death of the insured is due to accident and the death certificate does not require corroboration by means of production of report of postmortem examination and police report.
14. In the appeal, the order of the District Forum is challenged on the premise of lack of territorial jurisdiction of the District Forum Karimnagar and non-receipt of premium pertaining to the son of the respondent. The non-receipt of premium is pressed into service and the learned counsel for the appellant insurance company has contended that the District Forum failed to consider the plea of the appellant insurance company as to impleadment of M/s Easy Finance Services Limited, Greater Mumbai which insured members in bulk, and paid premium on their behalf as also non-payment of premium pertaining to the respondent’s son and he contended that the order of the District Forum in this regard is not only arbitrary and it also lacks any reason as to non-consideration of the plea.
15. The learned counsel for the respondent has contended that the appellant insurance company cannot be permitted to take such plea as to non-receipt of premium from the respondent’s son in the absence of any specific plea taken in this regard before the District Forum. He has submitted that the appellant insurance company has filed the appeal to avoid payment of the amount due in terms of the insurance policy and that having issued insurance policy without any demur as to non-receipt of premium from M/s Easy Finance Services Limited pertaining to the son of the respondent, it does not lie in the mouth of the appellant insurance company to say that it had not received premium pertaining to the respondent’s son
16. It is true, the appellant insurance company had taken a specific plea that it is not liable to pay any amount to the respondent in view of non-compliance of the provisions of Section 64(VB) of the Insurance Act.
17. Section 64VB of the Insurance Act provides protection to the insurance company from any liability in respect of terms of an insurance policy unless the insurance company has received premium thereof. Provisions of Section 64VB read as under:
Section 64VB in The Insurance Act, 1938
64VB. No risk to be assumed unless premium is received in advance.
(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.
(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer. Explanation. Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be.
(3) Any refund of premium which may become due to an insured on account of the cancellation of a policy or alteration in its terms and conditions or otherwise shall be paid by the insurer directly to the insured by a crossed or order cheque or by postal money order and a proper receipt shall be obtained by the insurer from the insured, and such refund shall in no case be credited to the account of the agent.
(4) Where an insurance agent collects a premium on a policy of insurance on behalf of an insurer, he shall deposit with, or despatch by post to, the insurer, the premium so collected in full without deduction of his commission within twenty- four hours of the collection excluding bank and postal holidays.
(5) The Central Government may, by rules, relax the requirements of sub- section (1) in respect of particular categories of insurance policies.
17. We have given our thoughtful consideration to the contention of the learned counsel. The appellant insurance company has taken plea that M/s Easy Finance service Greater Mumbai is a necessary party to the complaint. The Assistant Manager of the second appellant insurance company has stated in his affidavit about the issuance of policy certificate in favour of M/s Easy Finance Services and issuance of insurance policy etc., as under:
“It is further submitted that the policy certificate was issued in favour of the Easy Finance Services Greater Mumbai (Maharastra State) who insured the deceased Shek Imam by showing the complainant was nominee and the said Finance Services was not paid the premium. Hence, the OP is not liable to pay compensation. The said Easy Finance Services, Mumbai is a necessary party to the proceeding to clarify existing of policy and coverage”
18. Thus, it is clear that M/s Easy Finance Services Ltd., Greater Mumbai obtained insurance policy certificate from the first appellant insurance company and the first appellant insurance company issued insurance policy in favour of the respondent’s son. It is the contention of the learned counsel for the appellant insurance company that M/s Easy Finance Services Limited paid premium in bulk through cheque in respect of its members except the premium relating to the son of the respondent.
19. Admittedly, the first appellant insurance company had received premium from M/s Easy Finance Services Limited and issued policy certificate in favour of M/s Easy Finance Services Limited. The appellant contends that it had received premium pertaining to various members of M/s Easy Finance Services except that of the respondent’s son and the premium so revived was paid by M/s Easy Finance Services through cheque. The moment the appellant insurance company admits receipt of premium from various members of M/s Easy Finance Services in the shape of cheque, onus of proof shifts on it as to prove non-payment of premium pertaining to the son of the respondent.
20. The appellant insurance company has not taken steps for impleadment of M/s Easy Finance Services which, as it appears is the master policy holder and by paying premium in respect of its various members got insurance policies from the first appellant insurance company covering risk of accident on the life of its members. The appellant insurance company being the insurance company which issued insurance policy is the custodian of records relating to the premiums received from M/s Easy Finance Services and it had not brought on record any of such document which would establish receipt of premium from M/s Easy Finance Services pertaining to its various members except that of the respondent’s son.
21. The appellant insurance company has not sought for production of any documents from M/s East Finance Services or did it take any steps to produce any of records available with it, viz., copy of relevant register showing receipt of premium from M/s Easy Finance Services. Thus, it is very difficult to hold the contention of the learned counsel for the appellant insurance company that the appellant had received premium from M/s Easy Finance Services pertaining to all of its members except that of the respondent’s son. The appellant insurance company failed to discharge the onus to prove that it had received premium from M/s Easy Finance Services pertaining to the members of the finance services except that of the respondent’s son.
22. In the absence of any evidence as to non-receipt of premium from M/s Easy Finance Services pertaining the respondent’s son, the inescapable conclusion in the backdrop of insurance policy issued in favour of the respondent’s son and policy certificate issued in favour of M/s Easy Finance Services, would be that there had been sufficient compliance of provisions of Section 64VB of Insurance Act by M/s Easy Finance Services Limited and the son of the respondent. In the circumstances, this Commission is not inclined to interfere with the order of the District Forum.
23. In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs. Time for compliance four weeks.
MEMBER
MEMBER
MEMBER
Dt.13.02.2014
కె.ఎం.కె.*
