State Consumer Disputes Redressal Commission
Bajaj Allianz Life Insu. Co. Ltd. & Anr. vs Sh. Suresh Kumar & Anr. on 22 March, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 117/2017
Date of Presentation: 23.11.2016
Order Reserved on : 12.03.2018
Date of Order : 22.03.2018
......
1. Bajaj Allianz Life Insurance Company Limited Bilaspur
District Bilaspur H.P.
2. Bajaj Allianz Life Insurance Company Limited GE Plaza
Airport Road Yerawada Pune 411 006.
Both appellants through their Branch Manager Bajaj Allianz
Life Insurance Company Limited Shimla Branch New
Aggarwal Bhawan Opposite Gurudwara Sahib Sanjauli
Shimla-6 H.P.
...... Appellants/Opposite Parties No. 2 & 3.
Versus
1. Suresh Kumar s/o Late Shri Nandu Ram r/o Village and
Post Office Jambla Tehsil Sunder Nagar District Mandi
H.P.
......Respondent /Complainant
2. Hans Raj s/o Shri Traru r/o Sheel Post Office Jambla Tehsil
Sunder Nagar District Mandi H.P.
......Respondent /Opposite Party No.1
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Jagdish Thakur Advocate.
For Respondent No.1: Mr. Sanjeev Kumar Advocate vice
Mr. Rajiv Sirkek Advocate.
For Respondent No.2 : Ex-parte.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017)
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 29.09.2016 passed by Learned District Forum in consumer complaint No.190/2015 title Suresh Kumar Versus Hans Raj & Ors.
Brief facts of consumer complaint:
2. Complainant Suresh Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that father of complainant purchased Bajaj Allianz Life Insurance Policy No.0312623051 from opposite parties after completing all codal formalities. It is pleaded that opposite party No.1 is the agent of Bajaj Allianz Life Insurance Company. It is pleaded that insured died on dated 20.08.2014 during the operation of policy and complainant requested the opposite parties No. 1 & 2 to release the amount being nominee mentioned in Life Insurance Policy. It is pleaded that insurance company repudiated the claim of the complainant and committed deficiency in service. Complainant sought relief of payment of Rs.102000/- (One lac two thousand) alongwith interest. In addition complainant also sought relief of payment of Rs.50000/- (Fifty thousand) as compensation 2 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) for mental harassment. Prayer for acceptance of consumer complaint sought.
3. None appeared on behalf of opposite party No.1 on dated 02.01.2016 before learned District Forum and learned District Forum proceeded ex-parte against opposite party No.1.
4. Per contra version filed on behalf of opposite parties No.2 & 3 pleaded therein that complainant has no locus-standi to file the present consumer complaint. It is pleaded that complainant has concealed material facts. It is pleaded that deceased was suffering from chronic obstructive airways disease (COAD) and remained admitted in the hospital w.e.f. 06.02.2014 to 12.02.2014 for the treatment of his ailment. It is pleaded that deceased concealed pre-existing ailment. It is further pleaded that insurance company has repudiated claim strictly in accordance with law and proved facts. It is further pleaded that complaint involves complicated questions of facts which could not be adjudicated in summary manner. Prayer for dismissal of consumer complaint sought.
5. Learned District Forum allowed the complaint and ordered opposite parties No.2 & 3 jointly and severally to pay Rs.102000/-(One lac two thousand) to complainant alongwith 3 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) interest @ 9% per annum from the date of filing complaint till actual payment. In addition learned District Forum further ordered opposite parties No.2 & 3 to pay compensation to the complainant to the tune of Rs.10000/- (Ten thousand) jointly and severally. In addition complainant ordered opposite parties No. 2& 3 to pay costs of litigation to the complainant to the tune of Rs.2000/- (Two thousand) jointly and severally.
6. Feeling aggrieved against order passed by Learned District Forum opposite parties No.2 & 3 filed present appeal before State Commission.
7. We have heard learned advocates appearing on behalf of appellants and co-respondent No.1 and we have also perused entire record carefully. Co-respondent No.2 already proceeded ex-parte before State Commission.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence. There is recital in affidavit that father of deponent purchased 4 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) life insurance policy No. 0312623051 on dated 24.02.2014 from opposite parties after completing all codal formalities.
There is further recital in the affidavit that insured died on dated 20.08.2014 during the time when life insurance policy was in operation. There is further recital in the affidavit that claim of complainant was repudiated by insurance company. There is recital in the affidavit that plea of insurance that father of deponent has given incorrect information while filling proposal form is false and improper. There is further recital in the affidavit that insurance company committed deficiency in service.
10. Opposite parties No.2 & 3 filed affidavit of Manish Nag Branch Manager in evidence. There is recital in the affidavit that deceased had obtained life insurance policy by way of concealing material facts from the insurance company. There is further recital in the affidavit that deponent was suffering from heart illness at the time of obtaining insurance policy. There is further recital in the affidavit that deceased was suffering from chronic obstructive airways disease (COAD) at the time of obtaining life insurance policy. There is further recital in the affidavit that insurance company has repudiated the claim as per law and as per proved facts and did not commit any deficiency in service.
5 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017)
11. Submission of learned advocate appearing on behalf of insurance company that deceased was suffering from chronic obstructive airways disease (COAD) and he was admitted in the hospital w.e.f. 06.02.2014 to 12.02.2014 for the treatment of his illness i.e. Chronic obstructive airways disease (COAD) as per certificate given by Senior Medical Officer Incharge Civil Hospital Sunder Nagar H.P. and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the photostat copy of certificate dated 30.09.2014 issued by Senior Medical Officer Incharge Civil Hospital Sunder Nagar H.P. Insurance company did not file the attested copy of certificate and also did not file the affidavit of Senior Medical Officer Incharge Civil Hospital Sunder Nagar in order to prove the contents of certificate dated 30.09.2014 issued by Senior Medical Officer Incharge Civil Hospital Sunder Nagar. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi-judicial proceedings. It is well settled law that contents of controversial photostat copy of certificate i.e. Documentary evidence issued by Senior Medical Officer Incharge Civil Hospital Sunder Nagar are not per se admissible under Section 13(4) of Consumer Protection Act 1986 and it is also well settled law that contents of certificate should be proved by way of affidavit of person who had signed documentary certificate. Adverse inference is drawn against the insurance 6 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) company for not filing the affidavit of Senior Medical Officer Incharge Civil Hospital Sunder Nagar who had signed medical certificate dated 30.09.2014 placed on record. Hence plea of insurance company that deceased was suffering from pre ailment i.e. Chronic obstructive airways disease (COAD) is defeated on the concept of ipse-dixit (An assertion made without proof). It is held that onus was upon the insurance company to prove that deceased was suffering from pre ailment i.e. Chronic obstructive airways disease (COAD) at the time of obtaining Life Insurance Policy.
12. Opposite parties also appointed M/s. Bhagla as investigator and sought report of M/s. Bhagla. Insurance company has placed on record photostat copy of report of M/s. Bhagla. Investigation report is not attested by any authority. Even insurance company did not file affidavit of M/s. Bhagla Investigator in order to prove the contents of investigation report. No reason assigned by the insurance company as to why insurance company did not file affidavit of M/s. Bhagla before learned District Forum when case was listed for the evidence of the insurance company. It is held that controversial photostat unattested copy of investigation report submitted by M/s. Bhagla is also not per se admissible under Consumer Protection Act 1986. It is held that under Consumer Protection Act 1986 contents of controversial 7 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) document could be proved by way of affidavit of person who had signed controversial document. Hence adverse inference is drawn against the opposite parties for not filing the affidavit of investigator M/s. Bhagla in the present matter. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to rely upon unproved medical certificate and investigation reports placed on record. It is well settled law that evidence under Consumer Protection Act 1986 could be adduced as per modes mentioned under Section 13(4) of the Consumer Protection Act 1986. Section 13(4)(ii) of Consumer Protection Act 1986 deals with mode of proving documentary evidence.
13. State Commission is of the opinion that words producible as evidence under Section 13(4)(ii) of Consumer Protection 1986 are very material. State Commission is of the opinion that words producible as evidence mean that controversial documentary evidence could be produced only by way of affidavit of person who had signed document.
14. Affidavit filed by Manish Nag Branch Manager of insurance company is not sufficient to prove certificate issued by Senior Medical Officer Incharge Civil Hospital Sunder Nagar and Investigation Report submitted by M/s. Bhagla because medical certificate and investigation report were not signed by Manish Nag. Manish Nag Branch Manager of 8 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) opposite parties has submitted affidavit on the basis of derived knowledge. It is held that it is not expedient in the ends of justice and on the principles of natural justice to decide the matter on the basis of affidavit of derived knowledge.
15. Submission of learned advocate appearing on behalf of insurance company that complainant has not refuted the fact that deceased had given false and improper information and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the affidavit filed by complainant in evidence and complainant has specifically mentioned in the affidavit that opposite parties repudiated the claim on false and improper plea that father of complainant had given incorrect information while filling the proposal form. It is held that by way of filing affidavit complainant has refuted in positive manner fact that incorrect information was given to the insurance company by deceased at the time of filling proposal form. It was held by Hon'ble Apex Court of India in case reported in 2016 (3) SCC 100 Apex Court titled Lakhmi Chand Versus Reliance General Insurance that even when insurer is able to prove the breach on the part of insured concerning policy condition then insurer would not be allowed to avoid its liability towards the insured unless that breach is so fundamental as found to 9 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) have contributed to the cause. In the present matter there is no evidence on record to show that deceased had died due to chronic obstructive airways disease. In death certificate placed on record dated 05.09.2014 there is no recital that deceased had died due to chronic obstructive airways disease (COAD). It is held that insurance company failed to prove that on dated 20.08.2014 deceased had died due to chronic obstructive airways disease (COAD). Law laid down by Hon'ble Apex Court of India is binding upon all Courts, Tribunals, Commissions as per Article 141 of Constitution of India.
16. No reason assigned by the insurance company as to why insurance company did not obtain any medical fitness certificate from insured at the time of issuance of Life Insurance Policy. State Commission is of the opinion that obtaining of medical fitness certificate is essential at the time of issuance of life insurance policy in order to ascertain fitness of insured because life insurance policy is directly related to life of insured. State Commission is of the opinion that insurance company cannot be allowed to take benefit of its own laxity and lapses.
17. Submission of learned advocate appearing on behalf of insurance company that complainant be relegated to civil court keeping in view complicated facts is decided accordingly. State Commission is of the opinion that it is not 10 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) expedient in the ends of justice and on the principle of natural justice to relegate complainant to civil court. It is held that consumer complaint could be disposed of in summary manner effectively.
18. Submission of learned advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that insurance company did not prove controversial documentary medical certificate issued by Senior Medical Officer Incharge Civil Hospital Sunder Nagar and controversial investigation report by way of modes mentioned under Section 13(4) of Consumer Protection Act 1986. In view of above stated facts it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order of learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is dismissed and order of learned District Forum is affirmed. Insurance policy issued by opposite parties No.2 & 3 and death certificate of deceased insured dated 05.09.2014 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned 11 Bajaj Allianz Life Insurance Co. Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A. No.117/2017) District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 22.03.2018.
*GUPTA* 12