State Consumer Disputes Redressal Commission
Mita Subhasbhai Dixit vs Birla Sun Life Insurance Co Ltd on 25 November, 2022
Details DD MM YY
Date of disposal 25 11 2022
Date of filing 21 04 2010
Duration 04 07 12
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
COMPLAINT NO.24 OF 2010
1. Meetaben Subhashbhai Dixit
Widow of Subhashbhai B. Dixit
Age: adulthood
Occupation: house wife
Residence:8, Nevil Park Socity,
Front of Chaina town Socity,
New city light road,
Surat. ....Complainant
Vs.
1. Birla sun life Insurance Co. Ltd.
4th floor, Vaman Center, Makwana road,
near Marol naka
Andheri Kurla road, Andheri East
Mumbai - 400059
2. Birla Sun Life Insurance Co. Ltd.,
3rd floor, Shubhlaxmi Complex ,
City Light, Surat ....Opponents
BEFORE : DR. J. G. MECWAN, PRESIDING MEMBER
APPEARANCE : Ld.Adv. Mr. Pratik Joshi/ Ld.Adv. Mr. S. G. Shah
For the complainant
Ld.Adv. Mr. Milan Dudhia for the Opponent
Page 1 of 12
NISHITA
ORDER BY DR. J. G. MECWAN,PRESIDING MEMBER
JUDGMENT
1. Factual Matrix:
Late Shri Subhash Bhupendrabhai Dixit took an Insurance Policy from the opponent for a sum assured of Rs. 20 lacks after paying premium amount Rs.96,165/-. After death of Subhash Bhupendrabhai Dixit (deceased of life assured - D.L.A.) on 26.12.2009, his wife sent claim papers to opponent Insurance Company to get claim amount but the claim was repudiated vide latter dt. 8.02.2010 on the ground that DLA had taken several policies of his life from other Insurance Companies.
2. Being dissatisfied with the reason given by opponent Insurance Company complainant has filed Consumer Complaint before this State Commission to get claim amount Rs.20 lacks from date 08.02.2010, Rs.2 lacks for mental torture and Rs. 50,000 for the cost of complaint.
3. After hearing both the parties, coordinating bench of this State Commission has dismissed the complaint of the complainant.
4. Being aggrieved by the impugned order of this Learned State commission, complainant has filed first appeal on 07.11.13 before Hon'ble NCDRC wherein Hon'ble NCDRC set aside the order of the state commission and matter was remitted to decide the complaint as a fresh and ordered to give opportunities to the parties to lead evidence.
Page 2 of 12 NISHITA Furthermore it has been directed by Hon'ble NCDRC to examine Smt. Gitaben Chapatwala as a court witness and after giving opportunity to both the parties for cross examine of Smt. Gitaben Chapatwala.
In perusing of the order passed by Hon'ble NCDRC the complainant has submitted an application for issuing summons to examine Smt. Gitaben Chapatwala (agent of Birla Sun life Insurance Company ) as a witness and on dated 24.07.2019 State Commission has passed order as under:
It is pertinent to note that letter dated 20.05.2010 is produced on 04.12.2012 but there is no endorsement of other side on the list, no order is passed on the said application nor the same is mentioned in the rojkam dated 04.12.2012. There is also no signature on this list of advocate. Considering this fact in our opinion if complainant is relying upon letter dated 20.05.2010, then she should file the affidavit of Ms. Gitaben Bharatbhai Chapatwala before us and after filing the affidavit if we think fit, then question will arise to call her for examination. If affidavit will not be placed on record by the complainant on or before 09.08.2019, then necessary order will be passed against the complainant. Copy of this order be provided to the respective parties. S. o. to 09.08.2019.
Thereafter on dated 20.06.19 Smt. Gitaben Chapatwala has filed affidavit which is on record at Page no. 186 and 187 wherein she has stated as under:
સદર વિમા પોલીસી ના સમય દરમ્યાન સુભાષભાઇનુ અકસ્માત માાં અિસાન થિાથી તેમના પરીિાર દ્રારા વિમા કાં પની માાં કલેઇમ કર ેલ અને કલેઇમ પ્રોસેસ િખતે મારી વિમા કાં પની દ્રારા મને ઓરલી જણાિેલ કે તમો એ માત્ર એક પોલીસી ની વિગત પ્રપોઝલ માાં લીધેલ છે બાકીની કે મ લીધી નથી તે અનુસાંધાને મેં તારીખ 06/03/2010 તથા 20/05/2010 ના રોજ વિમા કાં પની ને બીજી વિમા પોલીસી મર્ુ ુ મ સુભાષ ભાઇ દ્રારા જણાિેલ પરાં તુ કયા કારણ થી પ્રપોઝલમાાં એક જ વિમા પોલીસી ની વિગત લખેલ છે અને બાકીની કે મ લખેલ નથી તે બાબતનો લેખીત ખુલાસો મે વિમા કાં પનીને કર ેલ આ ખુલાસો વિમા કાં પની દ્રારા મને ઓરલી જણાિેલ તે મુજબ મેં વિમા કપની ને કર ેલ છે .સદર બાંન્ને તારીખ 06/03/2010 તથા 20/05/2010 ના પત્રે મારા દ્રારા જ કલેઇમ પ્રોસીઝર િખતે વિમા કાં પની દ્રારા મારો ખુલાસો ઓરલી માાંગેલ તે માટે મે આપેલ છે , જે બાંને પત્રો મા મારી સર્ી છે જેને ર્ુ ાં ઓળખી બતાિુ છુ અને તેમાાં લખેલ તમામ વિગત ખરી છે . મર્ુ ુ મ સુભાષભાઇ દ્રારા તેમનો મેડીકલ ચેકઅપ પણ કાં પની ની પોલીસી મુજબ કરાિેલ અને પ્રપોઝલ ફોમુમાાં પણ મેં ભરાિેલ એટલે વિમા પોલીસી લેતી િખતે મર્ુ ુ મ સુભાષભાઇ દ્રારા તેમની તમામ વિગત જણાિી વિમા પોલીસી લીધેલ છે .
After filing of affidavit of Smt. Gita Chapatwala, complainant Meetaben Dixit has also filed affidavit and stated that though Gitaben Page 3 of 12 NISHITA Chapatwala has also filed affidavit and was remained present in state commission Gujarat but Ld.Adv. For the opponent Insurance Company has not made cross examine of Smt. Gitaben Chapatwala which has been specifically mentioned by Hon'ble NCDRC.
On the said affidavit Ld.Adv Dudhia has made endorsement and raised objection. Thereafter Ld.Adv. of both the parties have submitted applications to issue witness summon to Smt. Gitaben Chapatwala and therefore state commission has passed following order.
વીમા કં પનીના વવધ્વાન વકીલ શ્રી. મીલન દુ ધીયાની ઉપરોકત તા. ૨૧-૧૦-૨૦૨૧ ના રોજની પુ૨સીસ ધ્યાને લેતાં કમીશનના મંતવ્ય મુજબ ગીતાબેન ચપટવાલાની ક્રોસ એક્ઝામીનેશન ક૨વા બાબતના જરુરી ખુલાસા વીમા કં પનીના વવધ્વાન વકીલ શ્રી. મીલન દુ ધીયા દ્વારા ક૨વામાં આવેલ છે , તે આ કમીશનને યોગ્ય જણાય છે. આ કે સની જરુરીયાત ધ્યાને લેતાં ગીતાબેન ચપટવાલાની ક્રોસ એકઝામીનેશનની જરુરીયાત આ કમીશનને લાગે છે. તેથી ફરીયાદી ના વવધ્વાન વકીલ શ્રી. શાહની તા. ૨૧-૧૦-૨૦૨૧ ના રોજની પુ૨સીસ ધ્યાને લેતાં ગીતાબેન ચપટવાલાને સાક્ષી સમન્સ કાઢવા આ કમીશનને યોગ્ય લાગે છે અને તેથી ગીતાબેન ચપટવાલાને તા. ૨૫-૧૧-૨૦૨૧ ના રોજ અને કમીશનમાં હાજર રહેવા સાક્ષી સમન્સ કાઢવાનો આથી હુ કમ ક૨વામાં આવે છે.
Thereafter though this state commission has issued summons to Smt. Gitaben Chapatwala but she did not appear before this state commission and sent an application on dated 23.11.21 Stating that she is unable to attend state commission due to her health issue and requested to sent interrogatories however, she has not sent any medical certificate or report in support of her health issue.
Therefore Ld. Adv. Mr. Dudhia has submitted an application with a request to close rights of complainant and accordingly state commission on dated 11.04.22 passed and order that when Smt. Gitaben Chapatwala failed to appear before this commission on several occasions and also failed to establish any cogent reason for her absence then in the opinion of this commission without her cross Page 4 of 12 NISHITA examination such affidavit cannot be considered as a valid evidence and therefore right to lead evidence on the part of complainant in respect of Smt. Gitaben Chapatwala is ordered to be closed.
Furthermore on dated 22.08.22 the state commission has passed an order to both the parties to submit evidence as per Para 5 and 6 of the order of Hon'ble NCDRC hence, on dated 02.09.2022 Ld.Adv.
Dudhia has submitted an affidavit of Associate Vice president of insurance company and on date 23.9.22, Complainant Meetaben Dxit has also submitted an affidavit.
5. Arguments of the Opponent:
Ld.Adv. Mr. Dudhia argued out that the core issue involved in the present case is that the life assured was having/several insurance policies but it was not declared at the time of making proposal with the opponent, and the life assured had died within 8 months from the date of issuance of the policy i.e. within 2 years from the issuance of the policy and therefore section 45 of insurance act,1938 is attracted, and the opponent company has by producing emails and premium receipts of the other policies proved that the suppression was made. That, when the death occurred within 2 years and when the opponent company has simply proved that material suppression was made, on lies upon the complainant to disprove the evidences produced by the opponent, In present case the complainant has accepted that her husband was having other insurance policies, but she came with a case that it was informed to the agent but as the details are with CA, Page 5 of 12 NISHITA it could not be disclosed. As per the judgment delivered by the Hon'ble Supreme Court in case of Reliance Life Insurance Co. Ltd. Vs. Rekhaben Rathod, it was held that while filling the proposal form agent is working as an agent of the life assured and therefore what he has written in the proposal form is required to be consider as written by the proposer. Therefore in present case when the material facts were suppressed, the opponent company having rights to dislodge their liability under the policy.
Ld.Adv. Mr. Dudhia further argued out that it is also required to consider that within short span of time several policies were obtained and death of the life assured is also suspicious. In the para 2 of complaint it is stated that the life assured was driving alone and due to full lights of large vehicle coming from opposite side he could not see and lost the control over the vehicle and due to that the car was gone off road and got short circuit. These averments create doubt that how the person who is not present at the time of incident can state that due to full lights of the opposite side vehicle the life assured has lost the control over the car.
Ld.Adv. Mr. Dudhia concluded that it is established that the opponent company has rightly repudiated the claim lodged by the complainant on the ground of non disclosure of having many insurance policies and making material suppression and he has made wilful suppression about non disclosure of many policies he had obtained.
Page 6 of 12 NISHITA In support of arguments Ld. Adv. Mr. Dudhia has submitted following judgments:
1. Hon'bleI Supreme Court (2019) CPJ 53 (SC) Reliance life insurance co. ltd & anr.vs. Rekhaben Nareshbhai Rathod Civil Appeal No. 4261 of 2019
2. Appeal No. 452 of 2015.CDRC Gujarat, Bharti Axa General Ins. Com. Ltd.VS. Mitaben Subhashbhai Dikshit
3. Appeal No. 450 of 2015. CDRC Gujarat, Future Generali India Ins. Com. Ltd.VS.
Mitaben Subhashbhai Dikshit.
6. Ld.Adv. For the Complainant has also submitted following judgement in support of arguments:
1. Revision petition No. 4240 of 2011. Wiva life Insurance co.ltd & ors vs. Rekhaben Ramjibhai Parmar, NCDRC.
7. Merit of the case:
I have gone through the record of this matter. On date 10.06.2013 complaint was dismissed by State Commission Gujarat and hence, complainant has filed appeal before Hon'ble NCDRC order of the Hon'ble NCDRC is on record wherein it has been observed that neither complainant has admitted that the other policies alleged were taken by DLA from other Insurance Companies nor did insurance company lead any evidence to prove that other policy have been taken by DLA and hence, state commission ought to have given opportunity to the respondent to prove the insurance policies alleged to have been taken by DLA from Other insurance companies and also complainant ought to have been given an opportunity to rebut the evidence produced by the insurance company.
As observed by Hon'ble National commission, opponent insurance company has not lead evidence to prove that other policies have been taken by DLA and hence, as per direction of the Hon'ble NCDRC , this commission has passed an order on dated 22.08.22 and informed Page 7 of 12 NISHITA complainant and opponent to submit evidence so that this commission can decide this matter.
Thereafter on dated 02.09.22 Associate vice president of Aditya Birla Insurance company has filed an affidavit wherein following are mentioned:
In present case at the relevant point of time the application form no. A11304137 was assessed, and the policy for the sum insured amount of Rs.20,00,000/- was issued believing that the information provided in the proposal was true. At the time of claim, the officer of our claims department Ms. Shalaka Maru & Mr. Koushik Shridharan has communicated with other insurers through our company's official email id allotted to them and found that late Mr. Subhash Dixit has obtained many insurance policies in short span of time from various life insurers. It was also found that late Mr. Subhash Dixit has applied for insurance policy Reliance Life Insurance for an amount of Rs.75,00,000/- on 08/05/2009 & with ING Life Insurance Company for Rs.10,00,000/- and 60,00,000/- which was declined by the respective company. The life assured Mr. Dixit has also obtained an insurance policy from Kotak Life Insurance and many policies from Max Life Insurance but they are not disclosed in the application for insurance. I state, we would not have issued said policy to him. The copy of email correspondence is produced.
We have produced printout of these email correspondence made by Ms. Shalaka Maru & Mr. Koushik Shridharan with other insurers with our WS at page 137 'to 142 (Annexure mark-C). I state that the email correspondence produced by our company is true and obtained from the official emails of the respective employee. That, Section 65B of the Indian Evidence Act says "Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without, further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible."
Furthermore on dated 23.09.22 complainant has also filed an affidavit wherein she has stated as under:
આમ પેજ નં 186 થી રજુ સામાવાળા વવમા કં પની ના એજન્ટ શ્રીમતી ગીતાબેન વબ. ચપટવાલાનુ સોગંદનામુ રજુ થયેલ છે તેને "ચેલેન્ જ" કરેલ નથી એટલેકે "પડકારેલ" નથી કોઇ "ઉલટ તપાસ" સામાવાળા વવમા કં પની દ્રારા કરેલ નથી આમ સામાવાળા દ્રારા સદર એફીડેવીટ ને કબુલ મંજુર રાખેલ છે તેવુ અમો ફરીયાદીનુ માનવુ છે.
Indian Evidence Act Section 137 મુજબ "Where a party fails to question to the witness, the presumption is this evidence is accepted whom not cross the witness"Page 8 of 12
NISHITA The cross-examination is a matter of substance not of procedure one is required to put One's own version in cross- examination of opponent. The effect on non-cross- examination is that THE STATEMNT OF WITNESS HAS NOT BEEN DISPUTED" આજ કાયદાનો હાદદ છે. પ્રસ્થાપીત વસધ્ધાંત છે.
આમ સદર કામે નામદાર કમીશન દ્રારા સાક્ષી સમન્સ દ્રારા કોટદ સાક્ષી તરીકે સામાવાળા ના એજન્ટ શ્રીમતી ગીતાબેન વબ. ચપટવાલા હાજર રહેલ અને સોગંદનામુ રજુ કરેલ જેને ફરીયાદી દ્રારા સોગંદનામાથી કબુલ મજુ ર રાખેલ પરં તુ સામાવાળા વવમા કં પની દ્રારા કોઇ ઉલટતપાસ કરેલ નથી કે તેમના કોઇ અધીકારી નુ સોગંદનામુ રજુ કરેલ નથી . હાલ ની તારીખ 24/08/2022 ની સામાવાળા વવમા કં પની દ્રારા રજુ કરેલ એફીડેવીટ દ્વારા પણ પડકારેલી નથી.
આમ નામદાર નેશનલ કમીશનના First Appeal no 711 of 2013 ના કામે થયેલ હુ કમ મુજબ સામાવાળા ના એજન્ટ દ્રારા કરેલ સોગંદનામાનો સ્વીકાર સામાવાળા વવમા કં પની દ્રારા કરેલ છે તેવુ કાયદાના પ્રસ્થાપીત વસધ્ધાંતો થી સ્પષ્ટ થાય છે.
8. In this matter affidavit of Smt. Gitaben Chapatwala is on record but Gitaben Chapatwala failed to appear before this commission for cross examine on several occasion and also failed to establish any cogent reason for her absence and therefore in the light of judgement of Hon'ble Supreme Court in case of Vidhyadhar vs. Manikrao AIR 1999 SC 1441 this commission has passed order on dated 11.04.22 that without her cross examine affidavit filed by Smt. Gitaben Chapatwala cannot be considered as valid evidence in this matter. Furthermore to prove that other policies have been taken by DLA the opponent Insurance Company has submitted copy of their Emails which are on record at Page no. 136 to 141. This emails are received from various insurance companies and on the basis of this emails the opponent Insurance Company had repudiated claim of the complainant.
9. Hon'ble National commission in judgement / order observed that opponent Insurance Company did not lead any evidence to prove the other policies alleged to have been taken by the DLA. As far as Page 9 of 12 NISHITA allegations of other policies are concerned, the opponent Insurance Company has only submitted copy of emails and it is submitted by opponent insurance company that as per section 65B of the Indian evidence act these emails should be considered as evidence in this matter.
For the admissibility of the electronic evidence under section 65B of Indian evidence act, Hon'ble Supreme court has observed as under:
This appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] wherein the court has held that:
"We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.(supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network"
and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4)."
In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
As per above observation of Hon'ble Supreme Court original electronic record which is contained in the computer wherein Page 10 of 12 NISHITA information first stored and the secondary copies that are made from the primary electronic record. Therefore in the instance case email has to be considered as secondary electronic record and hence, as per above observation of Hon'ble Supreme court the certificate on affidavit is required to be submitted with emails. However, opponent Insurance Company has submitted only emails and therefore without certificate as required by section 65B of Indian evidence act, the emails produced in this matter cannot be considered as a evidence and hence in the opinion of this commission opponent Insurance company failed to prove that DLA was having other insurance policies.
10. Ld.Adv. Mr. Dudhia for the Insurance Company has submitted judgement of coordinating bench of this commission Appeal no. 450 of 2015 and Appeal 452 of 2015 wherein Coordinating bench of this commission has allowed appeals and dismissed Complaints on the ground of suppression of other policies but in this matter it is the case of complainant that Insurance company agent Gitaben Chapatwala was informed about another insurance policies but as policies were lying with C.A. and therefore she has not shown that fact in proposal form.
11. Furthermore in pursuance to order of this commission dated 22.08.2022 for submitting any further evidence, opponent insurance company has produced an affidavit of Associate Vice President of Insurance Company but in the said affidavit statement of Gitaben Chapatwala not challenged.
Page 11 of 12 NISHITA
12. In view of the above discussion when opponent insurance company failed to prove that DLA was having other insurance policies and material facts were suppressed by complainant then in the considered opinion of this commission complainant is entitled to get claim amount from opponent insurance company and, therefore following order is passed.
ORDER
1. Present complaint is partly allowed.
2. The opponent Insurance Company is ordered to pay Rs. 20,00,000/- (Twenty Lacks Rupees ) to the complainant with interest at the rate of 9 % from the date of filing of complaint till its realization.
3. Opponent Insurance Company is order to pay Rs.10,000/- (Ten Thousand Rupees) to the complainant for mental torture.
4. Opponent Insurance Company is also order to Pay Rs.5,000/-(Five Thousand Rupees) to the complainant as cost of the complaint.
5. Opponent Insurance Company shall comply with this order within 60 days from the date of this order.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open court today on 25th November, 2022 [Dr. J.G.Mecwan] Presiding Member Page 12 of 12 NISHITA