State Consumer Disputes Redressal Commission
. Lic Of India, Erode. & 2 Others vs V.S.Senthil Kumar, Erode District 638 ... on 20 July, 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 Tmt.Vasugi Raman, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.641/2006 [Against order in C.C.119/2003 on the file of the DCDRF, Erode] DATED THIS THE 20th DAY OF JULY 2010 1.
LIC of India, | by its Branch Manager, | Erode South Branch, | Erode. | | Appellants/Opposite Parties
2. LIC of India, | rep. by its Divisional Manager (Claims), | Trichy Road, Coimbatore. | |
3. LIC of India, | by its Zonal Manager, | Marketing/C.S./C.R.C. Department, | South Zonal Office, Anna Salai, | Chennai 600 002. | Vs. V.S.Senthil Kumar, | S/o. Late V.M.Shanmugam, | Respondent/Complainant Vellotamparappu Post, | Bagar Via., Erode Taluk, | Erode District 638 154. | The respondent as complainant filed a complaint before the District Forum against the appellants/opposite parties praying for the direction to the opposite parties, for the recovery of the amounts due under two policies as well as for a sum of Rs.3 lakhs as compensation for mental agony and transport expenses etc., The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.17.02.2006 in C.C.119/2003.
This appeal coming before us for hearing finally on 22.06.2010, upon hearing the arguments of the either side, this commission made the following order:
Counsel for the Appellants /OPs : M/s.M.B. Gopalan, Advocate Counsel for the Respondent/ Complainant : Mr.G.Vivekandan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The father of the complainant by name V.M.Shanmugam, when he was alive, had taken two policies from the first opposite party for Rs.30,000/- and for Rs.5,70,000/- on 15.11.1997 and 28.01.98 respectively, policy No.761799305 and 761976695, in which, the complainant has been mentioned as nominee. On 28.08.98, he died in a road accident, for which, a criminal case has been filed against the driver, who was convicted and sentenced. On the basis of the policy, the opposite parties are liable to pay double the amount assured, which was claimed by the complainant as nominee, for which, there was no immediate response. The opposite parties collecting the documents required, instead of admitting the claim of the complainant, repudiated the same childishly, thereby, not only committed negligence, but also deficiency in service. Finally, notice was issued and even thereafter, the deficiency committed by the opposite parties was not rectified, thereby, compelling the complainant to come to the Consumer Forum, for the recovery of the amounts due under two policies as well as for Rs.3 lakhs as compensation for mental agony and transport expenses etc., Thus the claim.
3. The brief facts relevant to the case as available in the Written Version of the opposite parties:
The Consumer Forum is not a competent forum to deal with the complaint of this nature, since the repudiation was based upon materials, which cannot be termed as deficiency of service.
4. It is true that two policies were issued by the first opposite party in the name of V.M.Shanmugam, one for Rs.30,000/- and another for Rs.5,70,000/-. The payment of the amount, under the policies will arise if the signatures of the life assured in the proposal forms and the medical reports of the policies, are proved to be true and genuine, otherwise, it should be construed as void, giving right to the opposite parties, to repudiate the claim legitimately. The opposite parties came to know during investigation of claims, made by the complainant, which revealed that the signatures of V.M.Shanmugam were forged. The LIC of India considering the involvement of heavy amount and the payment of only one premium, investigated the matter, which disclosed that the signature of V.M.Shanmugam in the proposal and other documents does not tally with his admitted signature.
5. In the proposal dated 20.1.98, it is said that the annual income of the life assured was Rs.1,25,000/-, whereas, in the case filed by the complainant, claiming compensation, before the Motor Accident Claim Tribunal, the income was quantified at Rs.3,000/- per month. Thus, it is clear, the author of the proposal forms, suppressed the material facts regarding his real income, and on this ground also, the opposite parties are entitled to repudiate the claim, thus repudiated, cannot be termed as deficiency.
5. The person who had given the particulars in the proposal form is not that of V.M.Shanmugam and the impersonate should have signed the proposal forms, medical report and that is why, the annual income is given differently in one proposal at Rs.30,000/- and in another Rs.1,25,000/-.
6. The complainant taking advantage of the drunkenness and helpless status of the life assured, hired the service of the Van Driver Balasubramaniam and set up stage manage affair, as if , V.M.Shanmugam met with an accident and in fact, it was a murder. Based upon the sufficient materials, considering the false and frivolous allegations, based upon the fabricated documents, the opposite parties have repudiated the claim and therefore, the complainant is neither entitled to the policies amount, nor any other amount, thereby, it is prayed, the complaint may be dismissed with cost.
7. The District Forum exhibiting as many as 15 documents on the side of the complainant and as many as 20 documents on the side of the opposite parties, analyzing the same, supported by plea and other attending circumstances, came to the decision that the complainant's father was not murdered, whereas, he died in an accident naturally, that the opposite parties are not entitled to repudiate the claim on the basis of the difference seen in the admitted signature and the disputed signatures, since V.M.Shanmugam was an illiterate and not fully educated, that the difference in the annual income given must have been furnished, considering the assured amount, which cannot be taken suppressed the material facts and that the opposite parties having not honoured the claim, which was based upon the policies, had committed not only negligence, but also deficiency of service. On the above basis, a direction came to be issued, to pay the amount assured under two policies, in addition to, Rs.1 lakh as compensation with cost, as per the order dated 17.02.2006, which is under challenge in this appeal.
8. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
9. Ex.B3 and Ex.B6 are the policies issued in the name V.M.Shanmugam, the father of the complainant, preceded by the proposals namely Ex.B2 and Ex.B5. Ex.B1 and Ex.B4 are the medical certificates said to have been issued to the policy holder.
Admittedly, V.M.Shanmugam died on 28.8.98, whether it was in the road accident or otherwise. In both the polices, the complainant/son has been nominated as the nominee, entitled to receive the assured amount, therefore, he lodged a claim under Ex.A2 with necessary documents as required by the opposite parties.
The LIC of India, taking into account, different annual income has been given in the proposal, as well in the claim petition before the Motor Accident Claim Tribunal, the proximity of death from the date of taking policies and considering the facts, the claim has arisen within two years, investigated the matter. The investigation including the comparison of the signatures of V.M.Shanmugam as found in the proposals with the admitted signature, brought to surface, that there was fishy in the transaction, therefore, the claim was repudiated, under Ex.B25, dated 18.10.2001, wherein also an opportunity was given to the complainant to make further representation. Further representation considered by the Zonal Office Claims Review Committee also ended against the complainant as seen from Ex.B27. Thus, the nominee under the policies unable to realize the amounts assured, approached the District Forum for redressal, complaining, opposite parties have committed deficiency, which was accepted, resulting a favourable order, giving grievance to the opposite parties, followed by this appeal.
10. The learned counsel for the appellants/opposite parties would contend that in this case, there are many disputed facts not only regarding the proposal, but also regarding the income as well as regarding the cause of death of the life assured, which cannot be decided by the Consumer Forum, in a summary proceedings and if at all considering the disputed facts, which requires, recording of evidence and other elaborate enquiry, the complainant should have been directed to work out his remedy before the proper Forum, which the District Forum failed, which should be complied by this Commission. Per contra, it is the submission of the learned counsel for the complainant/respondent, that the complainant has made out a case of genuine policy, which was properly considered by the District Forum, based upon the materials, which decision requires affirmation, not disturbance.
11. By perusing the records meticulously as available, date of taking policy, income stated in the proposals and the expert opinion obtained by the opposite parties, regarding the signatures of V.M.Shanmugam, we are of the considered opinion, this is a fit case, which should have been referred to, appropriate Forum for decision, instead of giving finding on the basis of summary proceedings, which is well supported by the dictum pronounced by the Apex Court, followed by the National Commission also.
12. The learned counsel for the appellants drew our attention to a decision of the Apex Court in "Oriental Insurance Company Ltd., Vs. Manimahesh Patel" reported in "2007-2-L.W.661", wherein it is held, issues which involve disputed factual questions, should not be adjudicated by the Commission, whereas, the parties should have been referred to appropriate Forum for decision. In the case involved in the above decision, the wife of the life assured under the Janata Personal Accident Policy, filed a case, which was dismissed by the State Commission, leaving the complainant to take appropriate proceedings for establishing the claim and for seeking the reliefs in the court of competent jurisdiction. Aggrieved by the order of the State Commission, appeal was filed before the National Commission, which was allowed, and taken to Apex Court, by the Insurance Company. The Hon'ble Supreme Court of this land, considering the dispute namely, cause of death, difference in income, which may amount to suppression of material facts, came to the conclusion, that too, on the basis, when the National Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief and in this view, the appeal was allowed, observing "The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents.
Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission", which principle is squarely applicable to our case also, since we are having so many disputed facts, which we will catalogue later.
12. The National Commission had an occasion to consider the same kind of case in "Babu Singh Vs. Life Insurance Corporation of India Ltd." reported in "II (2008) CPJ 152 (NC)", wherein, considering the above said Apex Court ruling held "In view of complex factual position, complaint and appeal dismissed with liberty to seek remedy before Civil Court". In the case involved in the above decision also, there was dispute regarding the signature, earning etc., and based upon the expert opinion, it is held that the policy was obtained by committing fraud, which is not eligible for obtaining insurance policy as taken therein, further concluding, since there would be reasonable basis to suspect fraud on the part of the LIC, it is not possible to say that the LIC has committed deficiency, finally concluding, the matter should be left, to be decided by appropriate Forum like Civil Court. The same view is also adopted in the recent decision rendered by National Commission "LIC of India & Ors Vs. Smt.Bhagya", reported in "I (2010) CPJ 25 (NC)" Following the above rulings, based upon the disputed facts, which we are going to advert hereunder, we feel that the District Forum committed an error, in deciding the case on its own instead of referring the matter to the Civil Forum, and in this view, the appeal is to be accepted.
13. The disputed facts according to the opposite parties are;
(1) there was suppression of material facts regarding the income of the life assured since three different versions are available;
(2) in the proposal for taking policies, V.M.Shanmugam has not signed, which is established and that (3) there is genuine doubt regarding the cause of death of V.M.Shanmugam, that too, considering the proximity of taking the policy, as well as number of complaint emanated from somebody, even leading to investigation. The above disputed facts, according to the learned counsel for the appellants, cannot be decided by the Consumer Forum, since admittedly the Consumer Forum is adopting summary procedure, not recording evidence elaborately to assess the correct particulars of the facts. Mere throwing allegations without basis cannot be termed as genuine doubt, and it should have base, which is available in this case.
14. In the Proposal Form-Ex.B2, the annual income of V.M.Shanmugam is given as Rs.22,000/-, based upon the agricultural, as his source. On this basis, Ex.B3 policy was issued.
Ex.B5 is the proposal for Ex.B6 insurance, wherein, the annual income is given as Rs.1,25,000/-. In this document, the source of income is given as agricultural income as well as income from investment. As recorded by the District Forum, the deceased was owning 40 cents of agricultural land. No material has been placed regarding the investment, giving income also. After the death of V.M.Shanmugam, his LRs, including the complainant, filed a case before the Motor Accident Claim Tribunal for compensation of Rs.5 lakhs, wherein, the annual income of the deceased was given as Rs.3,000/- per month. Thus, within the short period of one year, the income of V.M.Shanmugam was given differently, which was not properly explained, which cannot be decided in a summary proceedings. Therefore, nothing wrong on the part of the LIC, to doubt about the genuineness of the proposal saying that there was suppression of material facts.
Therefore, the repudiation as held by the above rulings, should be taken as justifiable.
15. It is the specific case of the opposite parties, that there was impersonation or in other words, the father of the complainant by name V.M.Shanmugam has not signed in the proposal form and medical certificate and in this view, the policy itself is void. To prove the forgery said to have been committed by the person, who has given the proposal and taken policy, the Insurance Company took effective steps, sending the disputed documents along with a document which contained an admitted signature of V.M.Shanmugam, which were examined by All India Forgery Detection & Finger Prints Bureau as seen from Ex.B23. The finger print expert by name Deepak Kashyak, a qualified person, taking enlargement of the signature, from the disputed documents (Proposal Form, Medical Certificates) and the admitted document (Identity Card of V.M.Shanmugam) came to the conclusion that the signatures found in the proposals cannot be the signature of V.M.Shanmugam and the conclusion reads "Having considered all the above observations, cumulatively, I am of the definite opinion that the disputed signatures Q1 to Q4 have not been written by the writer of the standard signatures, and also that all the disputed signatures Q1 to Q4 have not been written by one and the same person, the signature Q2 has been written by a different person than the other disputed signatures, and the skill of the writer of Q2 is better than the writer of the other disputes and standard signatures". Even comparison of those signatures to our naked eye, reveals creating doubt, which is strengthened by scientific method also. Therefore, there is nothing wrong, on the part of the LIC of India to doubt about the genuineness of the signature, followed by the proposal on which basis, policies were issued. It cannot be the case of anybody, that the LIC of India is estopped from challenging the proposals, and the policy, since death had occurred within two years, that too, after the payment of only one premium. On the basis of genuine doubt entertained by the LIC of India, repudiation was informed which cannot be termed as deficiency in service.
If this is to be challenged, the Forum is elsewhere, as ruled by the Apex Court.
16. The LIC of India unequivocally questioned the cause of death of V.M.Shanmugam, as seen from the end of Paragraph 10, wherein, it is stated that the claimant hired the service of van driver Balasubramaniam, who dashed against the life assured, while he was riding bicycle near MGR Nagar, Thamaraipalayam to Erode and in order to lay the claim, the complainant had created documents. It is not uncommon, that these kind of illegal activities are taking place in this area, and in fact even taking judicial notice, we would say that there was investigation also, for these kind of cases. Therefore, the allegation cannot be brushed aside, as such taking into account, the driver had admitted the offence, paid meager amount of fine for valuable life. If the criminal case ended in conviction after contest, doubt cannot be genuine, whereas if the case ended in conviction, on the basis, that too, surrendered by suspicious circumstances, that cloud should be cleared. In this case, since that suspicious circumstances have not been cleared, whereas strengthened in our considered opinion, the LIC of India was justified in repudiating the claim and to say that repudiation is baseless an elaborate enquiry is needed by Civil Forum, which cannot be done by Consumer Fora.
17. Immediately, after this accident as seen from Ex.B27, one Namasivayam, reported to the Chief Minister of Tamil Nadu about the murder, which was sought to be converted as accident, for the purpose of claiming the insurance amount and claiming compensation before the Motor Accident Claim Tribunal. Unanimous petition also emanated, as seen from the documents. A petition was given to the Police Station, complaining murder, but the police has come to the conclusion, probably on the basis of the admission of the Driver, it is not murder. As said above, in the criminal case also, the driver who is said to be the hench man of the complainant, admitted the offence, escaped with fine alone. Policies were taken on 15.11.97 and 28.01.1998. This incident had taken place on 28.8.98 that is within eight months from the date of second policy for Rs.5,70,000/-. Considering the proximity of the time, the amount involved namely doubled the benefits, the LIC had doubted, that the complainant may be cause for the death of V.M.Shanmugam, taking advantage of his drunkenness, which should be investigated further, by examining witnesses, going in depth, which is not permissible under the Consumer Forum. On this ground also, in our considered opinion, the repudiation is justifiable, which cannot be termed as deficiency in service. For the foregoing reasons, coupled with the judicial precedence as referred above, we are of the considered opinion, the dispute between the parties should be decided by appropriate Forum, and not under summary way by the Consumer, as did by the District Forum and in this view, the order of the District Forum is liable to be set aside.
18. In the result, the appeal is allowed and the order of the District Forum in C.C.119/2005, dt.17.02.2006 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, we make no order as to cost, throughout.
19. Liberty is given to the complainant to agitate his claim before the appropriate Forum if advised and the period consumed in prosecuting this case, shall stand excluded under Section 14 of the Limitation Act, if the complainant files a case against the opposite parties, for the relief claimed in this complaint.
20. The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellants / opposite parties, duly discharged.
S. SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER-II MEMBER-I PRESIDENT INDEX :
YES / NO Ns/Mtj/Insurance/fm