National Consumer Disputes Redressal
Bjaja Allianz Life Insurance Co. Ltd. vs Pawan Kumar on 4 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2547 of 2013 (From the order dated 28.08.2012 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in First Appeal no. 1332/2007) With IA nos. 4269, 4270 & 4271 (Stay, exemption from dim documents, condonation of delay) Bajaj Allianz Life Insurance Co. Ltd. Through Branch Manager SCO no. 3, Balaji Chambers District Shopping Complex Petitioner Ranjit Avenue, Amritsar Versus 1. Shri Pawan Kumar Son of late Shri Ved Prakas H No. 2155, Sarai Bhagwan dass Gali No. 1, Chawal Mandi Amritsar 2. Shri Bhupinder Bawa Son of Late Shri Bawa Amar Nath 10 B/s Respondents Prakash Cinema Opposite Railway Station Amritsar BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Pankul Nagpal, Advocate Pronounced on 4th October 2013 ORDER
REKHA GUPTA Revision petition no. 2547 of 2013 has been filed under section 21 (b) against the order dated 28.08.2012 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (the State Commission) in appeal no. 1332 of 2007.
The respondent no. 1/complainant has filed a complaint alleging therein that he had purchased a life insurance policy for a sum of Rs.4,00,000/- by paying premium of Rs.10,000/- per annum from the petitioner/ opposite party no. 1 through respondent no. 2/ opposite party no. 2, the authorised agent of petitioner on 11.10.2004. That the above said policy bearing no. 0005870798 was in the name of Smt Anita Kumari, mother of respondent no. 1. Smt Anita Kumari died on 04.04.2005 due to heart attack and an insurance claim was lodged with the petitioner through opposite party no. 2 along with the original policy. But this claim was repudiated by the petitioner on 27.09.2005. Alleging deficiency in service respondent has prayed for a direction to the petitioner to pay an amount of Rs.4,00,000/- along with interest and Rs.50,000/- as compensation.
On notice, the petitioner and respondent no. 2 appeared and filed separate written versions.
Petitioner/ opposite party no. 1 in its written version has submitted that complaint is not maintainable in the present forum as the deceased had played a fraud on the petitioner by filing a fake driving licence regarding her age proof in which the age was understated. Petitioner further submitted that at the time of the policy, the deceased had intentionally submitted a faked driving licence to escape the full medical examination. As per the terms of the policy, if the age of the policy holder is more than 45 years and the sum assured is also more than Rs.3,00,000/- a full medical examination becomes necessary. Petitioner has alleged that after verification it has come to their notice that age of the deceased was shown on the ration card as 45 years and this ration card was issued five years back. Therefore, at the time of taking the policy the age of the deceased was more than 48 years. Deceased policy holder had four children as per the ration card and their estimated age as on the proposal dates were 25 years, 23 years, 21 years and 19 years, whereas age of one child was shown in the proposal form as 17 years.
It is further submitted that age of the nominee has been shown as 17 years in the proposal form by recording his date of birth as 06.02.1987, whereas as per the PAN card the date of birth of this nominee is 06.09.1982 and he is 22 years old. Petitioner has submitted that if any contract is executed by misrepresenting the true facts and by fraud such contract is void abnitio. The policy was obtained by fraud and misrepresentation by submitting the fake driving licence and understating his age and age of the family members. It is further submitted that as per the agreement in case of non-disclosure of information or fraud or misrepresentation in the proposal/ personal statement, declaration or in any connected document leading to the acceptance of the risk, the company shall at its discretion, repudiate the claim under section 45 of the Insurance Act.
The petitioner has further alleged that policy holder intentionally submitted the fake driving licence regarding her age proof. The alleged driving licence does not exist in the record of the licensing authority, Ajnala. After receiving intimation regarding the death of the policy holder, petitioner appointed Sniffers Indian Pvt. Ltd., to investigate the death claim of late Smt Anita Kumari on 28.05.2005 and also Shri M L Bhatia to investigate the death claim of late Smt Anita Kumari on 11.07.2005. Petitioner had also written a letter to licensing authority, Ajnala regarding verification of the driving license issued in the name of Mrs Anita Kumari. The licensing authority has written in that letter that license no. 16097 dated 16.10.1991 in the name of Anita Kumari wife of Ved Prakash has not been recorded in the office record and this licence is fake and bogus as per the record. During investigation, the investigators have collected copy of the ration card, which was issued five years back and in which the age of the deceased is mentioned as 45 years.
Petitioner has further submitted that if ration card is considered then the age at the time of death of the insured comes to 50 years. As per the norms of the policy, full medical examination was mandatory. As such company has rightly repudiated the claim. It was prayed that complaint may be dismissed.
Respondent no. 2 i.e., Mr Bhupinder Bawa had admitted the contents of the complaint. He also admitted that claim was lodged with petitioner through respondent no. 2 and the original policy and the original death certificate was submitted to petitioner at the time of intimation of death. He has further submitted that the job of respondent no. 2 was only to sell the policy and respondent no. 2 sold the policy and premium of Rs.10,000/- was deposited with petitioner and he handed over the receipt of the premium issued by petitioner to the insured. He prayed that his name may be deleted.
The District Consumer Disputes Redressal Forum, Amritsar (the District Forum) came to the following conclusions:
The above discussion shows that proposal from exhibit R 3 on the basis of which insurance policy was issued is a document which is replete with cuttings and erroneous information and where the date of birth of the nominee as well as the figure of sum assured have been altered by overwriting. Similarly, the driving license of Smt Anita Kumari has been found to be a fake and forged driving licence which does not exists in the records of the concerned licensing authority, Ajnala. It has also been noted by us that age of the nominee has been projected wrongly and qualification of the deceased life assured was also given wrongly as matriculate.
The above discussion would show that complicated questions of facts and law are clearly involved in the present complaint and there is also an element of forgery and fabrication, as has already been discussed in the preceding paragraphs.
In view of the above discussions, present complaint is hereby dismissed with no order as to costs. However, the parties are free to avail their remedies before the Civil Court of competent jurisdiction, if they so choose.
Aggrieved by the order of the District Forum, the respondent no. 1 filed an appeal before the State Commission. The State Commission were of the opinion that, in view of the above discussion, we are of the opinion that the complaint was liable to be succeed but has been wrongly dismissed by the learned District Forum. The impugned order passed by the learned District Forum, therefore, cannot sustain. We, accordingly, allow the appeal and set aside the impugned order passed by the District Forum. The complaint, is consequently, allowed and the OPs are directed to pay the amount of Rs.4.00 lakh to the complainant within 30 days from the date of receipt of copy of this order, failing which, they would be liable to pay it along with interest @ 9% per annum since 27.10.2005 (one month after the repudiation letter dated 27.09.2005) till the amount is actually paid to the complainant. The litigation cost is assessed at Rs.5,000/-.
Hence, the present revision petition.
Along with the present revision petition, the petitioner/ opposite party no. 1 have filed an application for condonation of delay of 185 days, however, as per the office report, the delay is of 187 days. The reasons given for the delay are as under:
The petitioner has one of the branches at Amritsar and has its Head Office at Pune. The Northern Zonal Office for handing Legal matter is situated at Chandigarh which deals with the case of and files the cases before this Commission.
The order dated 28.08.2012 passed by the State Commission was prepared on 04.10.2012 and was received by the Branch Office of petitioner Company in October 2012 by post.
The order passed by the State Commission on receipt was thereafter forwarded to the Head Office at Pune for taking an appropriate decision. However, the dealing assistant Ms Debolina Ghatak raised certain queries for putting up the matter before the competent authority of the company to take a final decision on whether the impugned order is to be satisfied or further contested. Since the Advocate Mr Paras Money Goyal was not co-operating the facts could not be ascertained. However, in the meantime, Ms Debolina also left the services of the company on 26.12.2012.
The fact that no final decision was taken on the impugned order dated 28.08.2012 passed by the State Commission was detected in last week of February 2013 and the impugned order was put up before the Head (Legal) after obtaining the clarifications initially sought for which was provided by Advocate Varun Chawla on inspection of case records. The competent authority decided on 06.03.2013 that a revision is to be preferred before this Honble Commission.
Thereafter entire case papers of the said case was procured from Chandigarh Advocate Mr Paras Money Goyal on 01.04.2013 as the said advocate had stopped working with the petitioner company and the entire file was sent to Shri Pankul Nagpal, Advocate for preparation of grounds of revision.
The said file was received by Shri Pankul Nagpal, Advocate on 02.04.2013 who drafted the revision petition and sent the same to Shri Rajinder Kalsi to comments and approval.
However, Shri Rajinder Kalsi, the local representative of the petitioner company in the legal department, met with an accident on 06.04.2013 and was on leave till 26.04.2013.
On joining his duties Shri Rajinder Kalsi immediately verified the pending matters and vetted the draft revision petition and sent the same for approval to the Head Office at Pune.
The present revision petition was approved and sent to Shri Pankul Nagpal, Advocate for filing on 07.06.2013.
It is submitted that Shri Pankul Nagpal, Advocate due to the holidays in the court from 05.06.2013 was on leave and was in Mumbai with his family to spend holidays.
Shri Pankul Nagpal, Advocate joined work only on 28.06.2013, and immediately prepared the present application seeking condonation of delay.
The revision petition and the application had been received after signatures on 01.07.2013 and the same is being filed immediately.
We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.
It will be seen from the reasons given above that the petitioner has dealt with the case after receiving the order in a most casual and lackadaisical manner. The application does not state that when the order was passed to the head office, Pune. After reaching the head office, (date not mentioned) apparently the case was with the dealing assistant, till she left the service on 26.12.2012. It would also appear that there was no follow of such cases by any superior officer because it was only in the last week of February 2013, that it was detected that the impugned order was lying unattended without any action being taken thereon. Even after the competent authority decided on 06.03.2013 that the revision petition had to be preferred before the State Commission, the papers were obtained from the Chandigarh Advocate only on 01.04.2013 and the revision petition was approved and sent to Shri Pankul Nagpal for filing thereafter on 07.06.2013. The petition was filed ultimately on 08.07.2013. It would appear that the petitioner and their Advocates adopted a most casual approach.
The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide sufficient cause for the delay of 185/187 days. This view is further supported by the following authorities.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005].
In Ram Lal and Ors.
Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
Accordingly, we find that there is no sufficient cause to condone the delay of 185/187 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to pay the cost of Rs.5,000/- to the respondent directly by way of demand draft and the balance amount be deposited by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 22nd November 2013, for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish