State Consumer Disputes Redressal Commission
Gurnam Kaur vs Meena Kumari on 13 July, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 252 of 2016 Date of Institution: 22.03.2016 Date of Decision : 17.07.2017 Gurnam Kaur wife of Kehar Singh, Resident of Village Kheri Dabdalan, House No.186, near Government Middle School, Ladwa, District Kurukshetra. Appellant-Complainant Versus 1. Meena Kumari, Resident of House No.258/1, Village Gobindpuri, agent of Kotak Mahindra Life Insurance Company, Ladwa, District Kurukshetra. 2. Managing Director of Kotak Mahindra Old Mutual Life Insurance Limited, Central Processing Centre, 8th Floor, Godrej Coliseum, behind everated Nagar, Sieon (East) Mumbai-400022. 3. Branch Manager of Kotak Mahindra Life Insurance at Kurukshetra. Respondents-Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri Chirag Kundu, Advocate for appellant. Respondent No.1 given up. Shri Hitender Kansal, Advocate for respondents No.2 and 3. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred by complainant against the order dated February 23rd, 2016 passed by District Consumer Disputes Redressal Forum, Kurukshetra (for short 'the District Forum') whereby complaint was dismissed.
2. Kehar Singh-since deceased (hereinafter referred to as 'the Life Insured')-husband of complainant-Gurnam Kaur, Resident of Village Kheri Dabdalan, District Kurukshetra was provided Kotak Wealth Insurance policy bearing No.02186562 (Exhibit CB) from Kotak Mahindra Old Mutual Life Insurance Limited (for short 'Kotak Life Insurance') under Unit Linked Endowment Assurance Plan, regarding the period from December 31st, 2010 to December 31st, 2020. The Basic Sum Assured was Rs.10.00 lacs. An amount of Rs.1,00,000/- was paid as first premium on 31st December, 2010 vide receipt Annexure-CA. Thereafter, installments of the premium were deposited by the life insured regularly.
3. On 17th April, 2012 the life insured suffered severe heart attack. He was taken to 'Bansal Hospital' Ladwa but he had already breathed his last. The Kotak Life Insurance and its functionaries-opposite parties (respondents herein), are liable to make payment of the basic sum insured of Rs.10.00 lacs. The complainant submitted insurance claim with the opposite parties but the same was repudiated vide letter dated 24th November, 2012. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 (for short 'the Act, 1986) with a prayer that the opposite parties be directed to pay an amount of Rs.10.00 lacs to the complainant being the basic sum insured; an amount of Rs.1.00 lac as compensation on account of un-necessary harassment, mental agony and costs of litigation.
4. Notice of the complaint was issued to the opposite parties. Opposite Parties No.2 and 3 appeared and contested the complaint. Opposite Party No.1 was given up vide order dated 17th October, 2014.
5. The opposite parties No.2 and 3 in their written version have taken plea that the District Forum, Kurukshetra has no jurisdiction to decide this complaint; that the complaint is not maintainable and that the complainant did not disclose all material facts at the time of obtaining the insurance policy. It is pleaded that claim of the complainant was repudiated on the ground of concealment of material facts as the life insured had given wrong information regarding his age, which is material for obtaining the insurance policy. The life insured at the time of obtaining the policy submitted his Ration Card as proof of his age but during investigation, the Ration Card was found to be false and fake. Age of the life insured was found to be 11 years more than his age mentioned in the Ration Card and Proposal Form. Moreover, Form 'J' issued by M/s Jai Bhagwan Subhash Chand, Commission Agents, was submitted by the life insured to show his annual income as Rs.3.00 lacs. But vide letter dated 30th October, 2012, the said firm has denied issuance of any such form 'J'. As per information received under Right to Information Act, the life insured mentioned his age as 60 years in the year 2005 in the application filed for obtaining Ration Card. In this way, claim of the complainant has been rightly rejected by the opposite parties.
6. It is further pleaded that the contract of insurance is based upon the Rocky Foundation of utmost good faith. The proposer/life insured has to maintain and observe a complete good faith at the time of entering into contract of insurance with the insurer. The life insured had mentioned his aged as 56 years at the time of issuance of insurance policy whereas during investigation it was revealed that the life insured was 66 years old, as mentioned in the Voter List (Annexure R-39) for the year 2011 at the time of issuance of the insurance policy. In this way, there is a difference of 11 years in age of the life insured mentioned in the proposal form (Annexure R-1) and the voter list (Annexure-39). Apart from it, the income proof submitted by the life insured was also found to be fake and forged. It appears that the life insured intentionally and purposely did not disclose his correct age just to take undue and unlawful gain. If the life insured would have given correct information regarding his age and income at the time of providing the insurance policy, it would not have been possible to provide him the insurance policy.
7. Moreover, as provided in Section 45 of the Insurance Act, 1938, the Insurance Company can challenge the policy on the ground of concealment of the material facts by the insured within two years from the date of issuance of the insurance policy. In this case, the insurance policy was issued on 4th January, 2011 and the life insured died on 17th April, 2012, that is, within a period of two years. It is pleaded that the insurance claim submitted by the complainant has been rightly repudiated by the opposite parties and prayed for dismissal of the complaint.
8. After hearing arguments, vide impugned order dated 23rd, February, 2016 the complaint filed by the complainant was dismissed by the learned District Forum.
9. Aggrieved with the impugned order, the complainant has filed the present appeal with a prayer to set aside the impugned order dated 23rd February, 2016 and to allow the complaint filed by him.
10. We have heard learned counsel for the parties and perused the case file.
11. It is admitted fact that the insurance policy (Annexure-CA) was provided by the opposite parties to Kehar Singh (life insured)-husband of the complainant on 31st December, 2010 mentioning the basic sum insured as Rs.10.00 lacs regarding the period 31st December, 2010 to 31st December, 2011. During the course of arguments, there was no controversy that the life insured suffered severe attack on 17th April, 2012 and died on his way to Bansal Hospital, Ladwa, as is evident from Annexure-CD and death certificate Annexure CE. The Proposal Form is Annexure R-1 and the insurance policy is Annexure R-9/CB. It is also admitted fact that the life insured told his age as 56 years at the time of issuance of the policy by submitting copy of Ration Card Annexure-CM. In the photo copy of Ration Card, Annexure-CM, age of the life insured Kehar Singh is mentioned as 52 years as on 15th November, 2007, that is, the date of issuance of the Ration Card. The above mentioned document shows that the life insured was 56 years old at the time of issuance of the insurance policy on 31st December, 2010.
12. The claim of the complainant was repudiated on the ground that the life insured had given wrong information regarding his age and annual income at the time of issuance of the insurance policy. As per version of the opposite parties, the age of the life insured at the time of issuance of insurance policy was 66 years, as mentioned in the photo copy of a page of Voter List of Village Kheri Dabdalan (Annexure R-39) regarding the year 2011. In this document, age of the life insured Kehar Singh is mentioned as 66 years. We feel the findings in this case cannot be given against the complainant on the basis of photo copy of the voter list Annexure R-39. Neither any witness has been examined to prove photo copy of the Voter List (Annexure R-39) nor date and year of preparation of the Voter List is mentioned in this document. It is also not clear on the basis of which document; age of Kehar Singh was mentioned in the Voter List.
13. Moreover, legally and technically also, the Voter List cannot be taken as an authenticated document with respect to age proof. On this point of controversy, learned counsel for the appellant-complainant placed his reliance upon case laws titled as Tej Kaur & Anr versus Senior Divisional Manager, Life Insurance Corporation of India & Anr, 2001(2) C.P.J. 8 and Met Life India Insurance Company Limited versus Usirikayala Sreenivasa Rao, 1(2016) CPJ 91 (NC).
14. We have closely perused the above cited case laws. Cited cases laws above, fully support the version of the appellant-complainant. In case law referred above Tej Kaur & Anr versus Senior Divisional Manager (Supra), the insured had mentioned his age 45 years instead of 57 years in the proposal form. Age mentioned by the injured, an illiterate person, was certified to be correct by Divisional Officer of Life Insurance Corporation of India. Findings were given that determination of age on the basis of Ration Card and Voter List cannot be conclusive proof as only purpose of mentioning the age in these documents is to show that the person concerned is not minor at the relevant time. Findings cannot be given that the insured had concealed the true facts regarding his age to defraud the Insurance Company. The insurance claim was allowed.
15. As per facts of case law referred above in Met Life India Insurance Company Limited versus Usirikayala Sreenivasa Rao (Supra), the insured gave information regarding his age at the time of obtaining the insurance policy being below 50 years. The insurance company adduced in evidence Voter ID showing age of the insured as 53 years on the date of issuance of the insurance policy. Findings were given by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the State Commission had committed no mistake to give findings that the deceased was below 50 years at the time of obtaining the insurance policy. It was held that only on the basis of age shown in the Voter Identity ID it cannot be presumed that the deceased was 53 years old at the time of taking the insurance policy. Apart from it, another decision of Hon'ble National Commission on this point of controversy in case
16. Apart from it, another decision of Hon'ble Nation Commission on this point of controversy in case law cited as Life Insurance Corporation of India and another versus Gopal Singh, II (2011) CPJ 7 (NC), also supports the version of the appellant-complainant.
17. On the basis of the entries in the Voter List, findings cannot be given that the insured had given wrong information regarding his age more particularly, when the information submitted by the complainant regarding his age was verified by the Divisional Officer of the Insurance Company at the time of providing the insurance policy.
18. Photo copy of the voter identity card with complete details has not been adduced in evidence. The opposite parties also did not adduce in evidence/birth certificate of Kehar Singh, issued from the office of Registrar Birth and Death, which can be given more weight than the entries in the ration card and the voter list to prove the age of the life insured. Another photo copy of an application submitted for providing ration card (Annexure R-44) is adduced in evidence but in this document neither the date of filing of the application for providing ration card is mentioned nor age of Kehar Singh-applicant/deceased, is mentioned. Only photo copy of second page of another ration card is placed on the file which has not been tendered in evidence. In this document age of Kehar Singh is mentioned as 60 years. Learned counsel for the complainant has argued that the document is incomplete and it is also not clear that in which year, the above mentioned ration card was issued. Moreover, when the ration card had already been issued in the name of deceased in the year 2007, there was no necessity to issue another ration card in the name of deceased Kehar Singh. Documents Annexure-CP, Annexure-CQ and Annexure-CR do not need any discussion as these documents (photo copies of Ration card, copy of Aadhar Card and photo copy of the voter card) are in the name of one Krishan Lal.
19. During the course of arguments, learned counsel for the complainant stated that the second page of the application has been signed by Kehar Singh in English. However, Kehar Singh was an illiterate person. In our view, on the basis of the documents mentioned above, findings cannot be given that age of the life insured-Kehar Singh was more than 56 years when the insurance policy was provided to him on 31st December, 2010.
20. Moreover, this fact also cannot be overlooked that when the life insured submitted proposal form (Annexure R-1) for obtaining the insurance policy mentioning his age as 56 years on the basis of ration card (Annexure-CM), officers of the insurance company did not suspect any foul play and did not ask the life insured to produce any more authenticated document to prove his age like School Leaving Certificate or the certificate issued from the office of Registrar Birth and Death. The insurance company suspected foul play and started investigation regarding age of the deceased, when the complainant, widow of deceased Kehar Singh, submitted her insurance claim. It is not the version of the insurance company that any complaint was received by the insurance company regarding providing wrong information by the insured regarding his age to the insurance company. It clearly shows the intention of the insurance company also. The insurance company did not make inquiry and did not ask the life insured to produce some more documents regarding his age before providing the insurance policy because at that time the insurance company and its agent were in haste to receive premium amount and to provide the insurance policy to increase its business. The insurance company started investigation when insurance claim was submitted by the complainant because at that time the insurance company was required to make payment of the insured amount to the complainant. If the insurance company would have made inquiry and would have asked the life insured to produce some more documents regarding his age, the controversy in this case certainly would not have arisen. We feel the insurer also should be fair in its dealing and should not use clever tactics to grab public money. Keeping in mind all the circumstances mentioned above, we have no hesitation in giving findings that age of the life insured Kehar Singh was 56 years at the time of providing the insurance policy on the basis of Ration Card, Annexure-CM, prepared in the year 2007.
21. As per version of the opposite parties, the life insured had given wrong information regarding his annual income as Rs.3.00 lacs from the agricultural land by submitting 'J' form issued by M/s Jai Bhagwan Subhash Chand, Commission Agents, Ladwa. The original 'J' form or copy thereof, which was provided to the insurance company, has not been adduced in evidence by the insurance company for the reasons best known to it. The opposite parties have adduced in evidence letter (Annexure R-40) issued by M/s Jai Bhagwan Subhash Chand, Commission Agents, Ladwa, mentioning that this firm has not issued 'J' form No.7 and 8 on 8th November, 2010 and 16th November, 2010 in the name of Kehar Singh. On the basis of this letter, the insurance company has claimed that wrong information was supplied to the insurance company regarding income of the life insured. In our view, on the basis of letter Annexure R-40, findings cannot be given that the life insured has given wrong information regarding issuance of 'J' form mentioning his income as Rs.3.00 lacs. Firstly, to make the situation more clear, the opposite parties should have placed on the file the original or copies of the 'J' form and also should have examined the proprietor of the firm who issued letter Annexure R-40. Neither proprietor of the firm has been examined nor his affidavit has been adduced in evidence to prove that no such 'J' form was issued. Moreover, this fact also cannot be overlooked that till his death, deceased Kehar Singh made payment of instalments of the premium regularly and did not commit any default.
22. Apart from it, it is evident from the copy of Jamabandi for the year 2009-2010 (Annexure-CL that Kehar Singh was owner in possession of 83 Kanals-3 Marlas agricultural land situated in Village Kheri Dabdalan. It is evident from copy of Jamabandi (Annexure-CN) that Gurnam Kaur-wife and Rajinder Singh-son of Kehar Singh were owners in possession of agricultural land measuring 271 Kanals-5 Marlas qua ½ share. The above mentioned agricultural land was irrigated. Apart from it, vide sale-deed dated 30th December, 2005 (Annexure-CI), Kehar Singh purchased 6 kanals-12 Marlas agricultural land for a consideration of Rs.3,05,500/-. 16 Kanals-0 Marlas agricultural land for a consideration of Rs.6.00 lacs vide registered sale-deed dated 28th June, 2005 (Annexure-CJ) and 23 Kanals - 17 Marlas agricultural land for a consideration of Rs.8,20,000/- vide sale-deed dated 4th May, 2004 (Annexure-CK).
23. From the above mentioned transactions and details of the agricultural land owned by deceased Kehar Singh and his family members, certainly findings can be given that the annual income of the deceased and his family members at the time of issuance of the policy was much more than the amount of Rs.3.00 lacs as per information provided to the insurance company. There may be possibilities that proprietor of the firm M/s Jai Bhagwan Subhash Chand, Commission Agents, might not have dared to appear in the witness box in this case due to this reason also that after issuance of 'J' form, he might have avoided to show purchase of the food grains from the insured to avoid payment of tax.
24. As per discussions above in detail, we feel no hesitation to hold that income of Kehar Singh-deceased was much more than an amount of Rs.3.00 lacs as per information given to the insurance company at the time of issuance of the insurance policy. In these circumstances, certainly the insurance claim of the complainant should not have been repudiated on this ground also.
25. Apart from it, under Section 45 of the Insurance Act, 1938 it is provided that the insurance company can challenge the insurance policy on the ground of concealment of material facts by the insured within two years from the date of issuance of the policy. Admittedly, the insurance company did not challenge the insurance policy on this ground within two years from the date of insurance policy.
26. As a result, as per discussions above in detail, we have no hesitation in giving findings that the insurance claim of the complainant has been wrongfully repudiated by the insurance company. We feel, on the basis of evidence and other record on the file, learned District Forum also should have allowed the complaint filed by the complainant. Learned District Forum has committed an error while giving findings against the complainant vide impugned order dated 23rd February, 2016. Findings given by the learned District Forum are hereby held illegal and set aside and the appeal stands allowed.
27. Accordingly, the complaint filed by the complainant is allowed. The Kotak Mahindra Old Mutual Life Insurance Limited-Opposite Parties No.2 and 3, are directed to pay the total sum assured Rs.10.00 lacs to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint till its realization; an amount of Rs.10,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.10,000/- as litigation expenses.
Announced:
17.07.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL