State Consumer Disputes Redressal Commission
Karupayee,Turaiyur,Trichirapalli ... vs . M. Kalyani, & 4 Others on 24 March, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.S.Sambandam, B.Sc., MEMBER II FA.543/2005 & F.A.77/2006 (Against the order in O.P.204/2003 on the file of DCDRC, Trichi) DATED THIS THE 24th DAY OF MARCH 2010 COMMON ORDER
Karupayee, | W/o.Rathinam, | Appellant/3rd O.P. Singalandhapuram Village & Post, | Turaiyur, | Trichirapalli District. | Vs.
1. M. Kalyani, | W/o. late Manoharan, | | Respondents/complainants
2. Minor Muthukumar | |
3. Minor Kavitha, | (Minors 2 & 3 represented by their | mother and next friend Kalyani) | all residing at:
| 3/175, Marungapuri New Street, | Turaiyur Town, Turaiyur Taluk, | Trichirapalli District. |
4. Senior Divisional Manager, | Divisional Office, LIC of India, |Respondent/first O.P. Gandhiji Road, Thanjavur 613 001. | |
5. The Branch Manager, | LIC of India, Theodore Building, |Respondent/2nd O.P. 19/20, Madurai Road, | Trichirapalli 620 008. | The 1 to 3 respondents as complainants filed a complaint before the District Forum against the appellant/opposite parties/Respondent 4 & 5 praying for the direction to the opposite party to settle the entire policy amount of Rs.92,583/- with accrued interest at 12% per annum and to pay a sum of Rs.25,000/- as compensation for mental agony, physical strain suffered with cost. The District Forum party allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.05.2005 in C.C.204/2003.
This appeal coming before us for hearing finally on 11.03.2010. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellant/third O.P. : Mr.R.Singaravelan, Advocate.
Counsel for the R1 to R3/Complainants : Absent.
Counsel for the R4 & R5/ 1 & 2 O.Ps. : Mr.Vaithiyanathan, Advocate.FA.77/2006
(Against the order in O.P.204/2003 on the file of DCDRC, Trichi) DATED THIS THE 24th DAY OF MARCH 2010
1. Senior Divisional Manager, | Divisional Office, LIC of India, | Appellant/first O.P. Gandhiji Road, Thanjavur 613 001. | |
2. The Branch Manager, | LIC of India, Theodore Building, | Appellant/2nd O.P. 19/20, Madurai Road, | Trichirapalli 620 008. | Vs.
1. M. Kalyani, | W/o. late Manoharan, | | Respondents/complainants
2. Minor Muthukumar | |
3. Minor Kavitha, | (Minors 2 & 3 represented by their | mother and next friend Kalyani) | all residing at:
| 3/175, Marungapuri New Street, | Turaiyur Town, Turaiyur Taluk, | Trichirapalli District. |
4. Karupayee, | W/o.Rathinam, | Appellant/3rd O.P. Singalandhapuram Village & Post, | Turaiyur, | Trichirapalli District. | This appeal coming before us for hearing finally on 11.03.2010. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:
Counsel for the Appellant/1 & 2 O.Ps. : Mr.G.R.Swaminathan, Advocate.
Counsel for the R1 to R3/Complainants :
Mr.Govindaraj, Advocate.
Counsel for the R4/3 O.Ps. : Mr.Singaravelu, Advocate.
M. THANIKACHALAM J. PRESIDENT
1. The third opposite party is the appellant in F.A.543/2005.
2. The first and second opposite parties are the appellants in F.A.77/2006.
3. The respondents 1 to 3, as complainants approached the District Forum, Trichy in O.P.204/2003, seeking relief against the first and second opposite parties, to settle the entire policy amount of Rs.92,583/-, in their favour, in addition to, claiming a sum of Rs.25,000/- as compensation for mental agony, alleging that though they are the nominees in the insurance policy taken by late Manoharan, first and second opposite parties, at the instigation of third opposite party, negligently committed dereliction of duty, which should be construed as deficiency in service and therefore, a direction should be issued for the above claim.
4. The Insurance Company admitting the policy taken by Manoharan would contend, that the nomination typed on the back of the policy in favour of the first complainant was not registered in their books and therefore when the original nominee namely father of the assured had claimed the assured amount, that too, with the affidavit given by the first complainant, they processed the matter, that the first complainant had filed a Suit and obtained an order of injunction not to disburse the amount to the nominee and that because of the dispute between the legal heirs of the deceased, they were unable to disburse the amount, which cannot be termed as deficiency in service denying further allegations, praying for the dismissal of the case.
5. The third opposite party who is the appellant in F.A.543/2005, in her Written Version would contend, that her son had totally taken three policies and for two policies, without her knowledge, the complainants had received the amount and therefore, she is entitled to the amount due under the disputed policy, that in the amount collected by the first complainant also, she is entitled to 1/4 share and if at all the claimants have to prove their rights before the Civil Court and in this view as such, the Forum has no jurisdiction.
6. The District Forum considering the rival contentions of the parties, perusing the records, as well as the affidavits, came to the conclusion that as per the nomination available in the policy, first and second opposite parties ought to have paid the entire amount to them, failing the same, amounted to deficiency.
In this view, an order came to be passed on 10.5.2005, directing the first and second opposite parties to pay the complainant, the entire policy amount of Rs.92,583/- with interest at 9% per annum from 1.5.2002 till date of realization, with cost of Rs.500/-, which caused grievance to the opposite parties, resulting two appeals as indicated above.
6. Heard, the learned counsel appearing for either side, perused the documents, written submissions, as well as the order of the District Forum.
7. One Manoharan who is the husband of the first complainant, father of second and third complainants and son of third opposite party, had taken a life insurance coverage, under policy No.75015309 on 23.3.87. The amount assured therein was Rs.50,000/-. Originally, Manoharan had nominated his father as nominee, to receive the benefits. Unfortunately, Manoharan died on 22.2.2002 leaving the complainants and third opposite party as his legal heirs, entitled to succeed his estate, probably, including the sum assured under the policy also. There was dispute between the legal heirs of the deceased, in receiving the sum assured, resulting the first complainant, filing a suit before the Civil Court, later not prosecuted, though an order of injection obtained, against the first opposite parties, originally not to disburse the amount in favour of the nominee/third opposite party or her husband. Later on, for the reasons best known to the complainant, instead of solving the disputes before the appropriate Forum, namely, the Civil Court, they have approached the Consumer Forum, for easy remedy or speedy remedy, thereby, complicating the matters.
8. Here, deficiency is alleged against the first and second opposite parties, as well as the right of the third opposite party also questioned in a way, as if though she is the heir, not entitled to any share in the amount. Thus, as seen from the complaint, a direction was sought for to pay the entire policy amount of Rs.92,583/-, probably, including dividends or bonus as the case may be. The first and second opposite parties, have stated that because of the suit before the Civil Court, and injunction was obtained, and because of the dispute between the legal heirs of the life assured, they were unable to disburse the amount and in this view, there was no deficiency at all and therefore, they are not liable to pay interest or compensation or cost as the case may be.
The third opposite party claimed entire amount, as a nominee, but unfortunately the District Forum not properly analyzing the rival claims, made in this case, has concluded, as if the complainant alone, is entitled to entire amount, which is under challenge.
9. The learned counsel for the first and second opposite parties, the appellants in F.A.77/2006 would submit that they are willing to pay the amount as per the policy, to the person who is entitled to receive the same, or as per the direction of the Forum, and in not disbursing the amount early, there was no deficiency on their part and the delay had occurred only because of the conduct of the complainant, as well as the civil dispute between the parties. In this view, they would submit, they are not liable to pay interest or cost as the case may be, but unfortunately, this was not taken note of by the District Forum.
9. It is the submission of the third opposite party/appellant in F.A.543/2005 that as the legal heir of deceased Manoharan, she is entitled to share in the amount, though not the entire policy amount, being the nominee, which was not properly appreciated by the District Forum and in this view, the contention of the appellant in F.A.543/2005, that the order of the District Forum is to be set aside and if at all, the parties should have been referred to the Civil Court, to solve their disputes where that can be established, not only upon the claim in this policy, but also for the policies, amounts were collected by the first complainant, ignoring other heirs. But, it is the submission of the learned counsel for the complainants/respondents, that as per the nomination available in the original policy, the first complainant or complainants alone are entitled to receive the amount, which was properly considered by the District Forum, not warranting interference.
10. Having heard the submission of the parties, by going through the pleadings, considering the conduct of the complainant, in filing Civil Suit then not prosecuting, as well as the effect of nomination and the admitted relationship of the complainant and third opposite party, we are of the considered opinion, that the direction issued by the District Forum is erroneous and even we would say, not warranted and in this view, liable to be set aside, for which, we assign the reasons as under.
11. The District Forum, mainly relying upon the endorsement available in the policy namely Ex.B2, issued a direction to pay amounts against first and second opposite parties. As per the proposal proceedings to the policy, as seen from Ex.B1, the original nominee was Rathinam, father of Manoharan. But as seen from the endorsement dated 21.09.1992, the life assured had changed the nomination, from his father to the first complainant by name Kalyani, which she is entitled to do ordinarily. It is the submission of the first and second opposite parties, that though an endorsement was made in the policy, which was in the custody of the life assured, the same was not informed to the Insurance Company, who in turn, bound to make necessary entries in their Register. Therefore, it is their submission that as per the Section 39 (2) of the Insurance Act, the change of nomination has no validity, since the life assured has failed to give notice of change of nomination, as contemplated under Section 39 (2) of Insurance Act, 1938, which submission, cannot be ignored since valid under law. It is not the case of the complainant, in the complaint that the life assured namely Manoharan informed the change of nomination and therefore the failure on the part of the first and second opposite parties, not settling the claim with the complainants should be construed as deficiency. Unfortunately, the Trial Forum has not properly analyzed this point, whereas recorded a finding as if the Insurance Company ignoring the endorsement for change of nomination, attempted to favour the counter claimant, is unwarranted. It is the findings of the District Forum, that the change of nomination has not been properly recorded by the first and second opposite parties, which should be construed as deficiency in service, failing to note that there was no material to comply Section 39 (2) of Insurance Act, namely the same was informed. Therefore, on the assumption as if the first and second opposite parties have committed deficiency, in not registering in their record was fallacy, liable to be set aside.
12. Admittedly, there was dispute between the parties, that is, between the legal heirs of the deceased Manoharan. As seen from the records, the third opposite party filing an affidavit said to have been given by first complainant, to receive the sum assured for this policy, filed a claim petition before the first and second opposite parties. Challenging the steps taken by the third opposite party, and questioning the affidavit also, an attempt has been taken, by the complainants to claim the entire amount or their shares before the Civil Court, where the complainants claimed only 3/4. The learned District Munsiff, on the point of pecuniary jurisdiction, returned the plaint. In that case, an injunction also obtained against the first and second opposite parties. This, being the position, when admittedly, there was a dispute, who is entitled to receive the amount for the insurance policy, between the legal heirs of the deceased, first and second opposite parties refrained or desisted from settling the dispute, which cannot be termed as deficiency in service, even as held by this Commission in "Life Insurance Corporation of India Vs. Padmavathi & Anr", reported in "II (2007) CPJ 389".
It is also recorded by the District Forum as seen from Para 16 of the judgement that the opposite parties have withheld the policy amount because of the Suit in the Civil Court and also at the request of the complainant. Thus the District Forum has negativated the compensation claimed by the complainant.
If this the position to be accepted, then the District Forum ought not to have ordered interest also from 1.5.2002 which is unwarranted, since only at the insistence of the complainant, dispute had arisen, and the complainant have approached the Civil Court also, failed to get a clear cut order, who are entitled to the sum assured under the policy, carving share etc., The third opposite party being the mother, is also entitled to the share and as the nominee, even assuming the endorsement is correct, the first complainant cannot claim the entire amount, when the third opposite party claimed share, not only in this amount, but also in the amounts realized by the first complainant, for two other polices without the knowledge of the other legal heir of the deceased namely, third opposite party. Thus, when there is a dispute that should be decided by the Civil Court, between legal heirs of the deceased, who is entitled to claim the amount, what is the share etc., Unless that is settled, we cannot issue any direction, to the first and second opposite parties to pay the amount, to the complainants alone, thereby, creating another litigation. The admitted facts make it abundantly clear that there was no deficiency of any kind, on the part of first and second opposite parties. When there was any deficiency against first and second opposite parties, then only the District Forum will have jurisdiction to rectify the same or redress the same. In this case the deficiency or defects lie only with the complainants, because they alone approached the Civil Court and obtained an injunction order, and they alone questioned the share of the third opposite party. Because of these disputes raised by the complainant, as well as the claim made by the third opposite party, laying a claim, that too, based upon the affidavit said to have been given by the first complainant, the first and second opposite parties, fully justified in not disbursing the amount.
Therefore, as such, there was no deficiency, which follow, the Consumer Forum cannot give any direction, against the first and second opposite parties.
13. As seen from the records, there was an attempt by this Commission also to solve the dispute, between the parties, giving share to the complainant, as well as the third opposite party. But, the complainant have not cooperated in solving the dispute and because of the stand taken by the complainants, we have no option except to set aside the order of the District Forum, directing the parties to work out their remedy before the Civil Court, and the first and second opposite parties shall abide by the decision of the Civil Court, for which, they are willing and in fact they cannot challenge also, since it is their case.
The rival claimants have to settle the dispute, before the appropriate Forum. For the above said reasons, both the appeals deserve acceptance.
14. In the result, the appeals are allowed. The order of the District Forum in OP No.204/2003, dt.10.05.2005 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, we make no order as to cost, throughout.
15. If the complainants are advised, they are directed to work out their remedy, before the appropriate Forum, as held by this Commission in the above said rulings, and if any question of limitation comes, the period consumed in prosecuting this case has to be excluded, as available under Section 14 of the Limitation Act.
S. SAMBANDAM M. THANIKACHALAM MEMBER-II PRESIDENT INDEX : YES / NO Ns/Mtj/LIC/fm