National Consumer Disputes Redressal
Rakesh Kumar Agrawal & Anr. vs Sbi Life Insurance Company Limited & ... on 3 June, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 486 OF 2022 (Against the Order dated 02/06/2022 in Complaint No. 22/2019 of the State Commission Chhattisgarh) 1. RAKESH KUMAR AGRAWAL & ANR. S/O LATE SHRI PRAMOD KUMAR AGARWAL,R/O NEAR JUTE MILL, RAIGARH, CHHATISGARH 2. SMT. GEETA AGRAWAL W/O LATE SHRI PRAMOD KUMAR AGRAWAL, R/O NEAR JUTE MILL, RAIGARH, CHHATISGARH ...........Appellant(s) Versus 1. SBI LIFE INSURANCE COMPANY LIMITED & ANR. THROUGH THE BRANCH MANAGER, OFFICE-NEAR UNION BANK OF INDIA, RAMSAGARPARA, RAIPUR, CHHATISGARH 2. SBI LIFE INSURANCE CO. LTD. OFFICE-SECOND FLOOR, RAHUL COMPLEX, JAGATPUR, RAIGARH, CHHATISGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT : MR. RAJESH K. BHAWNANI, ADVOCATE FOR THE RESPONDENT : MR. KAPIL CHAWLA, ADVOCATE (THROUGH V.C.)
Dated : 03 June 2024 ORDER
The Appellants are the brother and mother of the deceased insured late Mr. Ravi Kumar Agrawal. A life insurance policy was proposed through a form dated 12.07.2017 and a cheque dated 13.07.2017 for a premium of Rs.17,014/- and was tendered by the deceased himself. A copy of the proposal form has been filed by the SBI Life Insurance Co., the Insurers, with their reply, which indicates the type of policy namely SBI Life-Smart Shield Policy, negotiated by the authorised representative Mr. Dinesh Chauhan through the Chhattisgarh Rajya Gramin Bank Raigarh. The proposal form was filled up giving up along with the Aadhaar Card as identity proof, the PAN Card and the Income Tax Returns. The details of identification namely the Aadhaar Card, Income Tax Returns and the PAN Card were mentioned in the proposal form.
The deceased had also undertaken to undergo all medical tests as may be required by the Company as per the declaration duly signed by the insured.
Vide letter dated 19.07.2017, the deceased was informed of the proposal having been entertained with a request to the deceased to file the self-attested copies of Income Tax Returns for the latest last three assessment years. The letter also specified the undertaking of a medical test for which there was an indication that the authorised representative will contact the Applicant and arrange an appointment for medical tests as per convenience. The medical tests that were to be carried out have been specified in therein. Other conditions were also indicated by way of a note which shall be referred to hereinafter.
The cheque that was tendered for the premium of Rs.17,014/- was enchased by the Insurance Co. on 20.07.2017.
A reminder was sent on 27.07.2017 demanding the same documents namely the copies of the Income Tax Returns and also to complete the formalities of the medical test as intimated earlier through the letter dated 19.07.2017. The authorised representative nominated for the same was Mr. Dinesh Chauhan who had to assist in the carrying out of the medical test. There is nothing on record to indicate about any documents having been sent by the deceased in response to the said letters nor any other communication by either of the parties. No medical test seems to have been undertaken by the Insured. After the expiry of two months, an intimation by the Insurance Co. was sent to the deceased late Mr. Ravi Kumar Agrawal on 28.09.2017 informing him that since the Complainant has been unable to provide the particulars requested for as indicated above, the proposal was declined as no information had been received to the queries raised. Accordingly, the amount which had been tendered by way of a cheque as premium for the proposal was refunded through a cheque dated 21.09.2017 sent along with the said letter.
The Complainant sent a letter on 06.11.2017 stating therein that his brother had applied for the policy and paid premium through a cheque which was enchased by the Bank, and therefore the claim against the policy should be indemnified as his brother died on 01.10.2017. It is in this letter for the first time that the Complainant Mr. Rakesh Kumar Agrawal alleged that the Insurance Co. had refunded the premium after a very long time which is not permissible under rules and therefore he should be indemnified with a sum of Rs.50,00,00/-. Through the same letter the cheque of refund of Rs.17,014/- was returned back in original to the Insurance Co.
The Insurance Co. has also filed a letter dated 10.01.2018 addressed to the deceased Mr. Ravi Kumar Agrawal purporting to intimate him that the proposal had been cancelled and a refund cheque was also dispatched as indicated previously. A request was made for crediting the same to the Bank Account and the original cancelled cheque leaf along with a self-attested Bank Account Statement was also demanded.
The Complainants allege that since they did not receive any response to the claim they filed the Complaint on 02.05.2019 praying for a claim of Rs.60,00,000/- for the deficiency in service coupled with Rs.5,00,000/- as compensation for mental harassment and an additional amount of costs of litigation.
The State Commission dismissed the Complaint holding that there was no concluded contract with the Insurance Co. and therefore there was no question of any indemnity as neither the proposal was accepted nor the premium was retained that was refunded, hence the claim was not admissible. The State Commission also relied on a couple of judgments referred to therein and dismissed the Complaint holding that there was no deficiency in service on the part of the Insurance Co.
Aggrieved the Complainants are in appeal. Mr. Bhawnani, learned Counsel for the Appellant urged that the State Commission has erred in holding that there was no concluded contract inasmuch as once the premium amount had been encahsed the proposal stood accepted and there was a concluded contract. The subsequent alleged letters dated 19.07.2017, 27.07.2017 and the ultimate refund letter dated 28.09.2017 are all backdated and have been prepared by the Insurance Co. to escape their liability and absolve themselves to wriggle out of the bargain that already stood concluded. The plea that the letters were backdated had also been taken before the State Commission.
The second contention of Mr. Bhawnani, learned Counsel for the Appellant is that a bare perusal of the proposal form as filled up would leave no room for doubt that all the documents namely the Aadhaar Card, the PAN Card as well as the Income Tax Returns had already been tendered and therefore there was no occasion for the Insurance Co. to have demanded the same documents again and again, and it is for this reason also the contents of the letters dated 19.07.2017 and 27.07.2017 seem to have been prepared later on to suit the purpose of the Opposite Party. They were irrelevant recitals as the documents had already been given along with the proposal form.
The third argument of Mr. Bhawnani, is that once the cheque for the premium was enchased on 20.07.2017, the proposal will be deemed to have been accepted and there was no occasion to send another letter on 27.07.2017 demanding documents.
The fourth argument of Mr. Bhawnani, learned Counsel for the Appellant is that Mr. Dinesh Chauhan the authorised representative had to inform the deceased about the name of the Doctor and the place where the medical tests were to be carried out as indicated in the letter dated 19.07.2017 and 27.07.2017. Even though he contends that these letters are backdated and were never sent to the deceased yet he submits that the obligation of Mr. Dinesh Chauhan was to inform the deceased about the medical fitness procedure for being executed. According to the Complainants Mr. Dinesh Chauhan never turned up nor did he ever inform the deceased for undertaking any such medical test.
The fifth argument is that once the Insurance Co. or its nominated authorised representative Mr. Dinesh Chauhan did not turn up or inform the deceased about undertaking of the medical test, their failure amounts to a waiver of the medical tests as a pre-condition and hence if the medical test was not carried out, no fault can be attributed to the deceased nor can it be made the basis for declining the proposal. The submission is that the omission on the part of the Insurance Co. or its representative cannot deprive the insured the benefits arising out of the proposal upon the payment of the premium to which the deceased was entitled.
The sixth contention of Mr. Bhawnani, learned Counsel for the Appellant is that the Complainant had intimated the date of death on 06.11.2017. The refund amount had already been returned back and it is therefore surprising as to why the Bank for reasons best known to it sent a communication on 10.01.2018 in the name of the deceased insured intimating declining of the proposal and the refund of the amount. It is urged that this was a strange communication in the name of the deceased insured when a letter had already been sent by the Complainant on 06.11.2017 to the Bank informing about the death of late Mr. Ravi Kumar Agrawal. The Submission is that once having been informed of the death, there was no occasion for the Bank to have sent a letter later on 10.01.2018 in the name of the deceased insured which is yet another act of manipulation.
Mr. Bhawnani, learned Counsel for the Appellant relied on the same judgments that were cited before the State Commission namely the judgment in the case of D. Srinivas Vs. SBI Life Insurance Co. Ltd. Ors. 2018 3 SCC 653 and the order passed by this Commission in RP/2211/2018, LIC Vs Savitri Devi decided on 27.08.2018. He urges that once the premium was received and enchased, its refund after more than two months was a refund with unreasonable delay and was excessive; hence the refund would not absolve the responsibility and obligations of the Insurance Co. to indemnify the claim.
He further submits that the allegation of non-submission of documents by the Complainant is without substance as the proposal form was accompanied by all the relevant documents in which there was no shortcomings.
To substantiate his submission further he has urged that the provisions of the Insurance Act as well as the Insurance Regulatory and Development Authority of India (Protection of Policy Holders Interest) Regulations 2017 obliged the Insurance Co. to respond to a proposal within a certain time. The Insurance Co. in the present case has violated those provisions and therefore the proposal will be deemed to have been accepted as the time line prescribed in the provisions were not complied with by the Insurance Co. For this purpose, he has invited the attention of the Bench to Regulation 4 of the IRDA (Manner of Receipt of Premium) Regulations 2002 which reads as under:
"4. Commencement of Risk: In all cases of risks covered by the policies issued by an insurer, the attachment of risk to an insurer will be in consonance with the terms of Section 64VB of the Act and except in cases where the premium has been paid in cash, in all other cases the insured shall be on risk only after the receipt of the premium by the insurer...."
He submits that the aforesaid regulation demonstrates that on receipt of premium by the Insurer, the coverage of risk was shall commence keeping in view the provisions of Section 64VB of the Insurance Act 1938. The said provision is extracted hereinunder:
"64VB. is No risk to be assumed unless premium received in advance.-(1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.
(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.
Explanation- Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be........"
It is urged that the assumption of risk therefore commences on the receipt of payment of premium and in the instant case, it was enchased on 20.07.2017 with no following communication.
He has then referred to Regulation 8(6) of the 2017 Regulations referred to above which is as follows:
"8. Proposal for insurance.
.....
6. Insurer shall process the proposals with speed and efficiency and the decision on the proposal thereof, shall be communicated in writing to the proposer within a reasonable period but not exceeding 15 days from the date of receipt of proposals or any requirements called for by the insurer...."
The contention is that the Insurance Co. is obligated to process the proposal with utmost speed and efficiency and the decision thereon has to be communicated in writing within a reasonable period but not exceeding fifteen days from the receipt of proposal or any requirement called for by the insurer. The contention is that the demand of documents on 19.07.2017 and 27.07.2017 were all requirements which had already been fulfilled as submitted hereinabove. The documents had been furnished with the proposal form and so far as the medical test was concerned the authorised representative never turned up for the said purpose and as such the said requirement will be presumed to have been waived. For this he has again invited the attention of this Bench to the order of this Commission in the case of LIC Vs. Savitri Devi (Supra) (paragraph 11) to urge that the refund was remitted after a delay of more than two months. Thus, the timeline as per the said regulations have been violated and hence an adverse inference should be drawn against the Insurance Co. for fixing the liability on them for this deficiency in service.
He has then invited the attention of the Bench to Regulation 8(7) of the 2017 Regulations which is extracted hereinunder:-
"8. Proposal of insurance .....
7. where a proposal deposit is refundable to a prospect under any circumstances, the same shall be refunded within 15 days from the date of underwriting decision on the proposal...."
This relates to the refund part which they are obliged to do within fifteen days and in the present case it has been done after two months. He has reiterated his submissions by inviting the attention of the Bench to the decision of the Apex Court in D. Srinivas Vs. SBI Life Insurance Co. Ltd. Ors. (Supra) paragraph 11 to 16 thereof. The same is extracted hereinunder:
"11. It is clear from the above that the proposer was willing to join the life insurance coverage from the respondent insurance company subject to his undertaking medical examination and for his willingness he authorized the bank to debit his account for payment of the premium. This clearly implies that medical examination was to take place prior to the premium being debited from the bank account of the proposer. The specific condition in the policy is that in case the loan amount exceeds Rs.7.5 lacs the medical examination was compulsory. If the medical examination was compulsory for such cases it should have been done along with filing of the proposal form before the payment of the premium. If the proposal was not accepted for any reason the premium would have been credited to the account of the proposer. The premium has been refunded after 23.2.2011. From this, it is clear that the insurance company had not rejected the proposal before 23.2.2011.
12. Our attention has been drawn to the case of LIC v. Raja Vasireddy Komalavalli Kamba and Ors., (1984) 2 SCC 719, wherein this Court has clearly stated that the acceptance of an insurance contract may not be completed by mere retention of the premium or preparation of the policy document rather the acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.
13. Although we do not have any quarrel with the proposition laid therein, it should be noted that aforesaid judgments only laid down a flexible formula for the court to see as to whether there was clear indication of acceptance of the insurance. It is to be noted that the impugned majority order merely cites the aforesaid judgment, without appreciating the circumstances which give rise to a very clear presumption of acceptance of the policy by the insurer in this case at hand. The insurance contract being a contract of utmost good faith, is a two-way door. The standards of conduct as expected under the utmost good faith obligation should be met by either party to such contract.
14. From the aforesaid clause it may be seen that the condition precedent for acceptance of the premium was the medical examination. It would be logical for an underwriter to accept the premium based on the medical examination and not otherwise. Therefore, by the very fact that they accepted the premium waived the condition precedent of medical examination.
15. It is an admitted fact that the premium was paid on 29.09.2008. That it was only in 18.01.2011 that the respondent insurance company informed the appellant that the policy was not accepted by them. We are unable to fathom the reason for such excessive delay in informing the appellant, which cannot be excused. We are of the opinion that the rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards. In this case, we cannot hold that such enormous delay was reasonable. Moreover, it is borne from the records that the premium was only re-paid on 24.02.2011, after a delay of more than one year five months. If we consider above aspects, it can be reasonably concluded that the insurer is only trying to get out of the bargain, which they had willfully accepted. From the aforesaid circumstances we can easily conclude that the policy was accepted by the insurer.
16. In the circumstances, there is no reason to believe that there was no complete contract. There is clear presumption of the acceptance of the proposal in favour of the proposer. Therefore, the majority view of the Commission would not sustain." (Emphasis supplied)"
Mr. Bhawnani, learned Counsel for the Appellant also point out that the letter dated 28.09.2017 appears to be suspect as in the letter which has been filed at page 68, there is a date mentioned right at the top whereas the copy of the said letter filed by the Opposite Parties with their written statement before the State Commission does not contain the said date. This argument does not seem to be attractive in the sense that both the letters indicate the same contents and the reference also indicates the same date. This cannot be a ground to construe any manipulation as such.
Mr. Kapil Chawla, learned Counsel for the Insurance Co. joining online urged that not only the order of this Commission in the case of Shobha Gambhir Vs. Life Insurance Corporation of India CC/2003/2018 decided on 15.09.2023 is squarely applicable on the facts of the present case but the ratio of the order of this Commission in case of Birla Sunlife Insurance Co. ltd vs. Mahendra Todi RP/5464/2017 decided on 26.10.2017 is also squarely applicable. He contends that the insurance cover commences only after there is an acceptance by the Insurance Co. duly communicated to the proposer and mere acceptance of the premium amount without any acceptance of the proposal does not bring about any concluded contract and hence in such a situation it has been rightly held that there is no coverage of the risk to the life of a proposer. He submits that the aforesaid order of this Commission has been confirmed by the Apex Court in the case of Mahendra Todi Vs. Birla Sunlife Insurance Co. Ltd. Civil Appeal No. 7638/2021 decided on 11.12.2021. The following observations of the said judgment have been highlighted.
".....In any case, the proposals having not been accepted, the claim of the appellant could not have been countenanced. To this extent, the order passed by the National Commission calls for no interference."
He has urged that the policy in question also contains similar provisions and the allegations about the letters dated 19.07.2017, 27.07.2017 and 28.09.2017 having not been proved and to be backdated, in any way are allegations are suggestions based on surmises and conjectures. He submits that the refund was made promptly after waiting for the documents and the medical tests of the deceased that were sent or received. It is submitted that the deceased was never examined medically and the Insurance Co. had very rightly observed in the letter dated 28.09.2017 that in spite of the request for the particulars, the same were not received as circumstances may not have permitted the deceased to have furnished the details. It is urged that not only the decisions referred to hereinabove but the following decisions also have been cited support the claim of the Insurance Co:-
1. Life Insurance Corporation of India Vs Raja Vasireddy Komalavalli Kamba and Ors AIR 1984 SC 1014.
2. Order of the National Commission dated 18.04.2013 Uttamchand V/s Lic,
3. Order in First Appeal No.126 of 1992 in LIC of India Vs. Bimla Routray 1993 CPJ II 146.
4. Order of the National Commission dated 02.08.2013 in Revision Petition No.2680 of 2012 Avtar Singh and Ors. Vs. SBI Life Insurance Co. Ltd.
He has further submitted that there cannot be any contract with a deceased person by the acceptance of an offer after his demise.
1. Life Insurance Corporation Vs. Bhoomikaben M.Modi (Smt.) and others 2011 CTJ 160 (CP) (National Commission)
2. Kolla Vijayalaxmi Vs. Life Insurance Corporation of India 2010 CTJ 665 (National Commission)
3. Life Insurance Corporation Vs. Gita Sharma 2010 CTJ 785 (CP) (National Commission) It has further been urged that any amount of compassion cannot be invoked to override the legal provisions as no charity can be made out of public money.
Having heard learned Counsel for the parties and having noted their submissions as also upon having perused the documents on record, it would be appropriate to refer to the terms of the proposal form at the outset. The proposal form under Clause 18, which is a declaration by the proposer, states "I undertake to undergo all medical tests as may be required by the Company for the grant of insurance".
The same declaration clause also provides as under:
"I understand that the contract will be governed by the provisions of the Indian Insurance Act 1938, as amended from time to time and other applicable Statutes and prevailing laws in India and that the risk cover will not commence until a written acceptance of this proposal is issued by the Company and that the risk cover and other benefits under the policy shall be subject to the terms and conditions contained in the contract of assurance."
Thus, two things are clearly borne out from the proposal form that the proposer undertakes to undergo all medical tests for the grant of Insurance. Admittedly in this case, no medical tests were undertaken. The contention of the Appellant is that the authorised representative Mr. Dinesh Chauhan did not turn up informing the deceased about undertaking the medical tests. This allegation and counter allegation before the State Commission and even before this Court has been argued but the fact remains that there is no explanation on behalf of the complainants as to why the insured did not contact the Insurance Co. after having paid the premium for almost two months. There is also another probable circumstance that is, the ailment of the proposed. He died on 01.10.2017. There is no explanation by the Complainants as to how and in what circumstances did the proposer immediately expire within such a short period and it is quite possible that he was suffering from some serious decease, the information, with regard to which seems to be wanting. Nonetheless this was not an issue before the State Commission, but it is definitely a suspect circumstance as to why the Complainant or the deceased had not contacted the Insurance Co. for medical test even if its authorised agent had not come to them.
Nonetheless, what is more important in the proposal form is a declaration that the risk cover will not commence until a written acceptance of the prosper is issued by the company. This clause is therefore what seems to be having a binding effect and was a similar clause as involved in the case of Mahendra Todi Vs. Birla Sunlife Insurance Co. Ltd. (Supra). The Apex Court in the said case was dealing with a similar clause and went on to uphold the order of this Commission after having recited a similar clause in the decision rendered by it. Thus, according to the proposal form itself, the risk coverage could not commence unless there was an acceptance. In the instant case also, the premium amount was refunded on 28.09.2017 with a clear denial of the proposal as is evident from the letter dated 28.09.2017. There is no evidence to contradict the same nor can there be a presumption of deemed approval in the wake of the aforesaid status of the proposal and the law indicated above.
To further confirm this, is the recital contained in the letter dated 19.07.2017 through which the insured was called upon to furnish information where a note to the following effect has been recited:-
"Our obligation to cover the risk begins only after the contract is completed through policy issuance after submission of the requirements.
Till the time the proposal is not accepted the money paid by you is kept in proposal deposit and will not earn any interest."
This letter leaves no room for doubt that the obligation to cover the risk commences only after the contract is completed after issuance of the policy upon submission of all the requirements. Till the time the proposal is not accepted the premium paid is kept as a proposal deposit and would also not earn any interest. The status of the deposit therefore is only to evidence a proposal and not an acceptance of the contract.
Coming to the IRDA Regulations and the provisions of the Insurance Act as relied on by the learned Counsel for the Appellant, it is correct that the said provisions do not seem to have been referred to or considered in the judgments cited at the bar. The submission to that extent that the proposals have to be finalised and intimation given to the proposer within a specified time is to protect the interest of a proposer. Nonetheless, the provisions which have been extracted hereinabove relating to the 1938 Insurance Act about assumption of the risk, and the IRDA Regulations of 2002 is a check on the Insurance Co. not to assume any risk earlier than the date on which the premium is paid. That does not follow that once the premium is accepted, there is a deemed acceptance of the proposal. This would be running counter to the terms of the Insurance contract and in the present case contrary to the terms as indicated hereinabove. An expected acceptance cannot automatically get converted into a deemed acceptance unless a written communication follows. As held in Shoba Gambhir's case, silence cannot be treated as deemed acceptance in all circumstances.
The insurer in the present case had raised the demand of documents dated 19.07.2017 and 27.07.2017. The Complainants have brought on record the letter dated 06.11.2017 where it is alleged that the refund was incorrectly made of the premium amount sent through a backdated cheque. The said letter therefore establishes that the Complainants were well aware of the letter of refund dated 28.09.2017 which categorically recited the cause for declining the proposal. There is no indication in the letter dated 06.11.2017 as to why no medical test was carried out or that the documents that were being demanded through letters dated 19.07.2017 and 27.07.2017 had also been supplied. Thus, the Complainants were aware of the reason for declining the proposal which was not met by them when they sent the letter on 06.11.2017 acknowledging the fact that the refund had been wrongly made. The letter dated 28.09.2017 contained all the information and it is highly probable that the said letter had been received by the deceased during his lifetime. The allegation that it was sent after several days of the death of Mr. Ravi Kumar Agrawal is not established by any averment or proof as to when it was received and therefore does not appeal to reason. The receipt of the letter dated 28.09.2017 stands acknowledged in the letter of the complainant dated 06.11.2017 and therefore this being a fact of personal knowledge to the deceased or the complainants, having not being disclosed, raises a presumption of the same being withheld as it is only the deceased or the Complainants who might be having knowledge of the date of receipt of the letter dated 28.09.2017.
Mr. Bhawnani, learned Counsel for the Appellant urged that it was the Insurance Co. that ought to have established by way of evidence as to when and how they had dispatched the letters dated 19.07.2017, 27.07.2017 and the letter of refund dated 28.09.2017 which they failed to do. This argument of Mr. Bhawnani is attempting to shift the burden of proof without discharging the onus on the Complainants to explain as to why they have not disclosed the date when they received the letter of refund which they are alleging to be backdated. The letter dated 06.11.2017 nowhere recites as to when was the said letter received by them and a vague assertion has been made that it was received after several days of the death of the deceased. No recital or averment or evidence has been led either before the State Commission or before this Commission as to the date when the Complainants received the said intimation dated 28.09.2017. This avoidance to mention the date of receipt of the letter with a vague recital that it was received several days after the death of the deceased does not amount to discharging the burden of the date of knowledge of the said letter which was personal to the Complainants. The date of receipt of the letter dated 29.09.2017 is something personal to them and in their special knowledge and it was therefore their duty to have explained the same. The argument of Mr. Bhawnani on that count is therefore liable to be rejected as the Appellants have failed to disclose the date when they received the said letter as indicated by them in the letter dated 06.11.2017.
The law which has been discussed hereinabove and the judgments cited at the bar, the case of LIC Vs. Savitri Devi (Supra) cited by the Appellant is distinguishable as in that case the premium was sought to be refunded after almost a delay of more than one year five months and it is in these circumstances that the Commission came to the conclusion that the Insurance Co. was only trying to get out of the bargain. Since the premium had not been refunded for this long period it was also taken as waiver of the condition precedent for the medical examination.
The ratio of the said case would not apply as the facts presently involved are different inasmuch as documents were demanded and medical examination was solicited by the letters dated 19.07.2017 and 27.07.2017 and when the same was not responded to the refund followed shortly within two months. These facts therefore are clearly distinguishable from the facts in the case of LIC Vs. Savitri Devi (Supra) where the delay was of more than 1 and a half years, and therefore the said ratio would not apply in the present case. The judgment in the case of D. Srinivas Vs. SBI Life Insurance Co. Ltd. Ors.(Supra) as urged by the learned Counsel and heavily relied on by him would also not be applicable inasmuch as in that case also there was an enormous delay apart from the proposition laid down by the Apex Court in the case of LIC v. Raja Vasireddy Komalavalli Kamba and Ors. (Supra) was also not deferred with indicating that a flexible formula was available to perceive as to whether there was a clear indication of acceptance of the insurance or not.
Applying the said principles in the instant case, the facts as on record including the terms of the proposal, the terms of the policy as well as the regulations that have been cited do not compel the Insurance Co. to treat the proposed to be a deemed accepted proposal when the proposer himself had not undertaken the medical test and had not responded to the letters for the documents that were being demanded. The refund had been made during the life time of the deceased and the sending of an intimation on 10.01.2018 as stated on behalf of the Appellant would not improve the situation further even if the said communication was in the name of a dead person. The proposal stood terminated on 28.09.2017 during the life time of the proposer and no contract can be created or deemed to have been created even after his death as indicated in the judgments cited by the learned Counsel for the Insurance Co.
42. Thus, on all counts and for all intents and purposes on the facts of the present case, there was no concluded contract between the proposer and the Insurance Co. and therefore there was no deficiency in service so as to incur any liability by the insurers. The Complaint was rightly dismissed by the State Commission hence the impugned order is hereby confirmed and the Appeal is dismissed.
.........................J A. P. SAHI PRESIDENT