State Consumer Disputes Redressal Commission
Harbans Kaur vs Pnb Met Life Insurance Company Ltd. And ... on 9 February, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.1131 of 2022
Date of institution : 23.12.2022
Reserved On : 01.02.2024
Date of decision : 09.02.2024
Harbans Kaur (now deceased) through her Legal Heir Sonia daughter
of Harbans Kaur, resident of Jama Rakhia Hithar, Mamdot, District
Ferozepur.
....Appellant/Complainant
Versus
1. PNB Met Life India Insurance Company Limited, 4th Floor, Kunal
Towers, No.88, The Mall Road, Ludhiana, through its Branch
Manager.
2. Managing Director of PNB Met Life India Insurance Company
Limited, No.25, 1st Floor, Thunga Complex, 32nd A Cross Road,
Jayanagar, 7th Block, Opp. Bangalore International Academy
Beside City College, Bengaluru, Karnataka-560082.
Email ID:[email protected]
....Respondents/OPs
2) First Appeal No.123 of 2023
Date of institution : 23.02.2023
Reserved On : 01.02.2024
Date of decision : 09.02.2024
1. PNB Met Life India Insurance Company Limited, 4th Floor, Kunal
Towers, No.88, The Mall Road, Ludhiana, through its Branch
Manager, Ludhiana.
2. Managing Director, PNB Met Life India Insurance Company
Limited, No.25, 1st Floor, Thunga Complex, 32nd A Cross Road,
Jayanagar, 7th Block, Opp. Bangalore International Academy
Beside City College, Bengaluru, Karnataka-560082.
....Appellants/OPs
First Appeal No.1131 of 2022 2
Versus
Harbans Kaur (now deceased) through her Legal Heir Sonia daughter
of Harbans Kaur, resident of Jama Rakhia Hithar, District Ferozepur.
....Respondent/Complainant
First Appeals under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 27.09.2022 passed by the
District Consumer Disputes Redressal
Commission, Moga, Camp Court at
Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the Appellant : Sh. P.K. Bansal, Advocate
For the Respondents : Sh. K.K. Sarthi, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT
This order of ours shall dispose off two Appeals i.e. First Appeal No.1131 of 2022 and First Appeal No.123 of 2023 as similar questions of law and facts are involved therein and the same have been filed against the same order dated 27.09.2022 passed by the District Consumer Disputes Redressal Commission, Moga (in short, "the District Commission") Camp Court at Ludhiana. However, the facts are being extracted from First Appeal No.1131 of 2022. First Appeal No.1131 of 2022 3 First Appeal No.1131 of 2022
2. Appellant/Complainant Harbans Kaur (since deceased) through her Legal Heir Sonia has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 27.09.2022 passed by the District Commission, Moga, Camp Court at Ludhiana"), whereby the Complaint filed by the Complainant was partly allowed.
3. Initially, the Appeal was filed by Smt. Harbans Kaur, the widow of deceased life assured (DLA) Fuman Singh. However, Smt. Harbans Kaur had expired during the pendency of the Appeal and her LR was brought on record and the memo of parties was amended vide order dated 04.09.2023.
4. It would be apposite to mention here that hereinafter the parties will be referred, as had been arrayed before the District Commission.
5. Initially, the Complaint was filed by the Complainant before the District Commission, Ludhiana and thereafter it was transferred to the District Commission, Moga, to be decided at Camp Court at Ludhiana as per order dated 26.11.2021 passed by this Commission on administrative side.
6. Briefly, the facts of the case as made out by the Appellant/Complainant in the Complaint filed by her before the District Commission are that her husband namely Sh. Fuman Singh First Appeal No.1131 of 2022 4 had purchased a Life Insurance Policy bearing No.21492743 for sum assured of ₹11,40,000/- from the OPs. As per the policy, in case of death of the life assured, an amount of ₹11,40,000/- was required to be paid to his nominee/LRs. The husband of the Complainant had expired during the validity period of the Insurance Policy i.e. on 28.02.2015. The Complainant being the nominee had claimed the assured amount and all the required documents were supplied but still the claim was not settled despite repeated requests. The Complainant was having no option except to file the Complaint. The Complaint was filed with the following prayer:
i) The OPs be directed to pay the sum assured of ₹11,40,000/- along with interest at the rate of 18% per annum;
ii) To pay an amount of ₹2 lac towards compensation; or
iii) Any other relief which may be deemed fit in view of the facts and circumstances.
7. Upon issuance of notices to the OPs, they had appeared through Counsel and filed the written version, wherein certain preliminary objections were raised stating therein that the Complaint was not maintainable. The OPs had received the filled up and signed Proposal Form dated 09.02.2015 from the insured for obtaining the policy of Life Insurance under the plan 'Met Smart Platinum' and had offered to pay ₹40,000/- annually towards initial premium against the sum assured of ₹11,40,000/-. After evaluating the Proposal Form and the information furnished therein, the OPs had issued the policy on 10.02.2015. However, the insured had expired on 28.01.2015 even First Appeal No.1131 of 2022 5 prior to the issuance of the policy and as such there was no contract with the dead person and the contract, if any, was void abinitio. It was also mentioned that in the absence of any such contract between the parties, the Complainant could not be said to be the 'consumer' within the meaning as defined in the Consumer Protection Act and it could not be said to be a case of any 'deficiency in service' on the part of the OPs.
8. The other averments as made in the Complaint were also opposed and denied and it was prayed that the Complaint be dismissed with costs.
9. By considering the contents of the Complaint and reply thereof filed by the OPs and also by considering the evidence/documents produced by both the parties and on hearing oral arguments, the Complaint was partly allowed by the District Commission vide impugned order dated 27.09.2022. The relevant portion of said order as mentioned in Para-12 is reproduced as under:
"11. In view of the aforesaid facts and circumstances of the case, we partly allow the Complaint of the Complainant and direct the Opposite Party-Insurance Company to make the payment of Rs.7,98,000/- (Rupees seven lakh ninety eight thousands only) i.e. 70% of the insured amount of Rs.11,40,000/- to the Complainant within 60 days from the date of receipt of copy of this order failing which the Complainant shall be at liberty to get the order enforced through the indulgence of District Consumer Disputes Redressal Commission, Ludhiana. However, the Opposite Parties-Insurance Company shall be at liberty to deduct the amount of Rs.37,568.32 paisa, if any, already refunded to the Complainant (as mentioned above) out of the awarded amount. All pending applications are disposed off accordingly. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance."First Appeal No.1131 of 2022 6
10. Being aggrieved by the said order dated 27.09.2022 passed by the District Commission, the Appellant/Complainant has filed First Appeal No.1131 of 2022 for enhancement of amount of compensation. The Respondents/OPs have also filed First Appeal No.123 of 2023 for setting aside of the impugned order, by raising a number of arguments.
11. There was a delay of 41 days in filing of First Appeal No.1131 of 2022. Misc. Application No.1772 of 2022 was filed for condonation of delay, which was supported by an affidavit. Said application was allowed vide order dated 03.01.2023 and the delay in filing of the Appeal was condoned.
12. Mr. P.K. Bansal, learned Counsel for the Appellant/Complainant has vehemently submitted that the Complainant had duly proved her case by providing the Death Certificate of her husband but still the entire claim has not been allowed. As per the terms and conditions of the policy, the total sum assured of ₹11,40,000/- was payable in case of death of the insured but the District Commission had awarded only 70% of the sum assured. Further, it has been submitted that it was proved on record that the death of the insured had occurred during the subsistence of the policy. As per version of the OPs, the death had occurred on 28.01.2015 i.e. even before issuance of the policy. The OPs had placed on record the Investigation Report prepared by ProbeIndia. On First Appeal No.1131 of 2022 7 perusal of said report, it was reflected that the Panch namely Mukhtiar Singh, the neighbourer Mahinder Singh, Anganwari Worker Manjit Kaur and ANM Amarjit Kaur had also confirmed that the DLA had expired on 28.02.2015. This fact had been corroborated by the version of the Complainant in the Complaint filed by her. Even as per the statement of the last attending Physician (Dr. Lachhman Singh) at Page-97 of the report, the DLA had expired on 28.02.2015. Further it has been submitted that from the evidence so collected by the Investigator, it had been proved on record that the DLA had expired on 28.02.2015 and no evidence was collected by the Investigator to conclude that the DLA had expired on 04.06.2014. However, in the Investigation Report, neither the name of the author/Investigator is there nor any seal/stamp or signatures are there and as such it is liable to be ignored. The onus was upon the OPs to prove that the DLA had expired on 28.01.2015 i.e. before issuance of the policy but they had failed to prove it. By considering the date of death as 28.02.2015, there was no reason to award the claim on non-standard basis to the tune of 70%. It was alleged by the OPs that the Death Certificate was manipulated by forging the documents but no such evidence was produced on record as to who had forged the documents or who was instrumental in procuring the certificate. However, the factum of death of the DLA on 28.02.2015 was proved by the statements of said persons as mentioned above as well as the Death Certificate. As such, First Appeal No.1131 of 2022 8 the impugned order is liable to be modified and the full sum assured be awarded along with interest etc.
13. Mr. K.K. Sarthi, learned Counsel for the Respondents/ OPs (Appellants in First Appeal No.123 of 2023) has submitted that the DLA had already expired on 28.01.2015 whereas the policy was obtained on 10.02.2015 by manipulating the date of death as 28.02.2015. Learned Counsel has further submitted that it was a serious dispute regarding the date of death of the DLA and a fraud had been played by the family members of the DLA just to get the undue benefit. The issue of fraud cannot be decided in summary proceedings. Learned Counsel has further submitted that there was no contract between the parties and the contract, if any, with the dead person was void abinitio. The Death Certificate was procured after the death of the DLA with the help of Municipal authorities in order to get unlawful claim. The objection raised by the OPs in this regard could have been decided prior to deciding the Complaint on merits. However, without giving any opportunity to adduce evidence on the said issue, the Complaint was decided in favour of the Complainant. The District Commission had not considered all these facts and circumstances and the impugned order is liable to be set aside.
14. We have heard the arguments raised by learned Counsel for the parties. We have also carefully perused the impugned order First Appeal No.1131 of 2022 9 passed by the District Commission and all other documents available on the file.
15. Facts regarding filing of the Complaint by the Complainant before the District Commission, reply thereto filed by the OPs, partly allowing of said Complaint and thereafter filing of the Appeals by both the parties before this Commission are not in dispute.
16. The issue which involves in the present Appeals is regarding the date of death of the DLA. As per the version of the Complainant, the policy was issued on 10.02.2015 and DLA had expired on 28.02.2015 i.e. after the issuance of the policy. However, as per the version of the OPs, the DLA had expired on 28.01.2015 i.e. before issuance of the policy. The claim lodged by the Complainant was declined by the OPs vide letter dated 04.08.2015 (Ex.R-4) on the ground of non-disclosure of material facts and the Fund Value under the policy i.e. ₹37,568.32 was refunded to the Complainant.
17. In order to prove her version, the Complainant had produced on record the Death Certificate (Ex.C-3), wherein the date of death of the DLA was mentioned on 28.02.2015. Said Death Certificate was issued by the competent authority i.e. Local Registrar, Birth and Death, Hazara Singh Wala under his seal/stamp and signatures.
18. The stand of the OPs is that an investigation was conducted by ProbeIndia, who had submitted the Investigation Report First Appeal No.1131 of 2022 10 dated 20.04.2015 (Ex.OP-3). In the Investigation Report, it is mentioned that the DLA had expired on 04.06.2014 as per Register of Asha Worker, whereas in the written version, the OPs have mentioned that the DLA had died on 10.01.2015. Meaning thereby the stand of the OPs in their written version and the Investigator Report is contradictory as two different dates of death of the DLA were mentioned therein.
19. The Investigator had recorded the date of death of the DLA as 04.06.2014 on the basis of the Register of Asha Worker but the copy of the original Register of Asha Worker's Register was not produced on record. Only the typed version was reproduced in the report without any signature and stamp, which cannot be relied upon. The Investigator had also recorded the statements of Panch namely Mukhtiar Singh, neighbourer Mahinder Singh, Anganwari Worker Manjit Kaur and ANM Amarjit Kaur. The copies of their statements were duly signed/thumb marked, which were produced on record of the District Commission. All of them had confirmed that the DLA had expired on 28.02.2015. Further, as per the Attending Physician Statement Form-B issued by Dr. Lakshaman Singh at Page-121 of the District Commission's record, the DLA had expired on 28.02.2015 due to heart attack.
20. It has also been mentioned in the Investigation Report that the Death Certificate was prepared in connivance with ANM Amarjeet First Appeal No.1131 of 2022 11 Kaur, who was given ₹20,000/- for re-issuance of the Death Certificate. However, no documentary evidence was produced to prove this fact. The Investigator could have approached the office of the Registrar, Deaths and Births to ascertain this fact and some evidence could have been collected from said office, to ascertain the manipulation, if any, in the record of the Death Certificate but no such evidence was produced on record. Simply by mentioning in the Investigation Report that the Death Certificate was prepared in connivance with ANM Amarjeet Kaur is not sufficient. Rather, said version of the Investigator is contrary to the statement of Amarjeet Kaur, ANM at Page-109 of the record of the District Commission as well as the statements of the other persons as mentioned above. It was also mentioned in the Investigation Report that the PNB Agent and the previous Investigator had taken ₹30,000/- to settle the claim and the Investigator namely Rajneesh Kumar had also taken camera recording of writing the date of death of the DLA as 28.01.2015 by ANM Amarjeet Kaur. However, no documentary evidence was produced to prove said fact. Two photographs have been produced at Pages-133 & 134 but it is not visible as to what had been written on the paper. Even the face and identity of the person shown in the photographs has not been shown/proved/ascertained.
21. The Complainant has produced the copy of the Death Certificate at Page-22 of the District Commission's record, wherein the First Appeal No.1131 of 2022 12 date of death had been mentioned as 28.02.2015. Same Death Certificate was produced by the OPs at Page-137, wherein date '28.01.2015' was mentioned by hand alongside the original date of death i.e. '28.02.2015' and a circle has been put on both the dates. Signatures of Amarjeet Kaur (ANM) were appended in Punjabi language but no counter signatures of the competent authority are there. Further, on the statement of Amarjeet Kaur at Page-109 of District Commission's record as well as at the bottom of the Death Certificate, she had signed in English language. The Death Certificate was issued by the Registrar, Births and Deaths. Any correction in the Death Certificate could be made only by the said competent authority and that too on the basis of some cogent and convincing documentary proof. In case some correction was made in the Death Certificate, the OPs could have produced the relevant record of the office of Registrar, Births and Deaths but no such evidence was produced before the District Commission as well as before this Commission. Meaning thereby the OPs had tried to forge and fabricate the date of death by making undue addition by hand on the Death Certificate without any supporting evidence.
22. It is also relevant to mention that at the end of the Investigation Report, only the name of the authorized person had been mentioned as Sanjay K. Sharma (Director) but it was not signed and stamped/sealed by the Investigator. Meaning thereby, except the First Appeal No.1131 of 2022 13 statements of the aforesaid persons, the other version as mentioned in the Investigation Report is based on conjectures and surmises and no cogent and convincing documentary evidence had been produced in support of the same. Even no past history of any ailment of the DLA had been produced by the Investigator. Rather, as per the statement of aforesaid persons, the DLA had died a natural death due to sudden heart attack.
23. The OPs have themselves mentioned in their reply that a duly filled up and signed Proposal Form dated 09.02.2015 was received. Said Proposal Form was filled up by one Komal, the agent of the OPs as is apparent from 1st page of the Proposal Form (Ex.R-1). The DLA Fuman Singh had signed thereon in Punjabi language. It appears that the insured did not know the English Language. After evaluating and examining the information so furnished the Proposal Form, the policy (Ex.C-4) was issued by the OPs, which had commenced on 10.02.2015 and was valid up to 10.02.2073. Sum assured was ₹11,40,000/- and a premium of ₹40,000/- was paid annually. After issuance of the policy as per the Proposal Form submitted by the DLA, which was verified by the concerned officers/officials of the Insurance Company, it did not lie in the mouth of the OPs to allege that the DLA had died before the issuance of the policy, as no reliable evidence had come on record. The OPs cannot be allowed to approbate and reprobate at the same time as the First Appeal No.1131 of 2022 14 policy was issued by the OPs on being satisfied. Thereafter when the claim was lodged, a false ground was raised that the DLA had already died before issuance of the policy.
24. The Hon'ble Supreme Court in the case of State of Punjab & Anr. v. Dhanjit Singh Sandhu (2014) 15 SCC 144 has discussed the doctrine of approbate and reprobate. The relevant portion of said judgment is reproduced as under:
""22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).
23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp. 687-88, para
10) "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that 'a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage'."
25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 :
(2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order.
This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
26. It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the First Appeal No.1131 of 2022 15 species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had."
25. In another case of United India Insurance Co. Ltd. v. Santro Devi & Ors. 2009 AIR SCW 647 (SC), the Hon'ble Supreme Court had gone to the extent by observing that even if the contract of insurance was effected in the name of a dead person, the Insurance Company afterwards cannot be absolved from their liability as they were not vigilant at the time of issuing the policy. The relevant portion of said judgment as mentioned in Para-19 is reproduced as under:
"19. We have noticed hereinbefore that no witness was examined on behalf of the Appellant. Only a competent officer informed in the matter could have disclosed as to whether the widow of late Atma Ram Sharma had signed any document or whether the fact that Atma Ram Sharma had expired in the year 1991 came to be known to the officers of the Appellant only after the accident had taken place. If despite knowledge of the fact that Atma Ram Sharma had died in the year 1991, the insurance company, with its eyes wide open, had been accepting the amount of premium every year from the widow of the said late Atma Ram Sharma or from the Bank, in our opinion, a contract by necessary implication, had come into being. Even in a case of this nature, the doctrine of `acceptance sub silentio' shall be applicable."
26. The ratio of law as laid down by the Hon'ble Supreme Court in the aforesaid judgment had recently been followed by the Hon'ble Jammu & Kashmir High Court in the case titled as United India Insurance Co. Ltd. v. Suraj Parkash MA No.558/2009 IA No.806/2009 decided on 03.08.2023. The relevant portion of said judgment as mentioned in Para-4 is reproduced as under:
"4. A perusal of the record reveals that the Respondent No. 1 had filed an application for grant of compensation on account of the injuries suffered by him during the course of his employment on 12.06.2006. The Respondent No. 1 besides examining himself also First Appeal No.1131 of 2022 16 examined Ajay Vaid and Dr. Naresh Chopra in support of his claim, whereas the Appellant Insurance Company examined Shri Chand Ji Razdan (AO), United India Insurance Co. Jammu. As per the statement of witness produced by the Appellant, the vehicle was insured by the Appellant but had no contract of insurance with the Respondent No.2. It is evident that the insurance policy was issued in name of a dead person. Once Insurance Company had accepted the premium in respect of the vehicle despite the fact that the owner of the vehicle had already died in the year 2005 and the policy issued was with effect from 08.03.2006 to 07.03.2007, the Appellant cannot be heard to say that it is not the liability of the Insurance Company to satisfy the award as there was no privity of contract, as the owner of the vehicle had already died by the time the policy was issued. The insurance company must have been vigilant to see that the contract of insurance is being entered into with an alive person. There is no evidence on record to prove that the Appellant came to know about the demise of Sh. Ved Parkash after the accident."
27. In view of the above discussion as well as the facts and circumstances of the case and also the law as laid down in the judgments as mentioned above, it is also apparent that the OPs had failed to prove that the DLA had died on 28.01.2015 and even in the Investigation Report, some other date of death was mentioned as 04.06.2014. The burden of proving a fact is upon the party who alleges so. No supporting/cogent and convincing evidence had been produced by the OPs to prove its version. Rather, the stand of the OPs in their written version as well as the Investigation Report is contradictory as two different dates of death of the DLA were mentioned therein. The repudiation of the claim was illegal and without any basis. The Complainant is entitled to the full sum assured as per the terms and conditions of the policy. However, the District Commission has awarded only 70% of the insured amount i.e. ₹7,98,000/- without giving any reasoning and basis. No interest and compensation/ First Appeal No.1131 of 2022 17 litigation expenses have been awarded. The impugned order passed by the District Commission is liable to be modified and the Appeal filed by the OPs being false and frivolous is liable to be dismissed.
28. Accordingly, finding no force in the contentions raised by learned Counsel for the OPs, the Appeal filed by the OPs i.e. First Appeal No.123 of 2023 is dismissed. The Appeal filed by the Complainant i.e. First Appeal No.1131 of 2022 is allowed and the impugned order dated 27.09.2022 passed by the District Commission is modified. The OPs are directed to pay the full insured amount of ₹11,40,000/- to the Complainant along with interest at the rate of 9% per annum from the date of lodging the claim till its realization. The OPs are further directed to pay an amount of ₹20,000/- towards litigation expenses to the Complainant. However, the OPs are at liberty to deduct the amount of ₹37,568.32, if any, refunded to the Complainant. The compliance of the order be made within a period of 30 days from the date of receipt of the copy of the order.
29. Since the main case has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
30. In First Appeal No.123 of 2023, the Appellants had deposited a sum of ₹25,000/- at the time of filing of the Appeal. Said amount, along with interest which has accrued thereon, if any, shall be First Appeal No.1131 of 2022 18 remitted by the Registry to the District Commission forthwith. The Respondent/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
31. The Appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER February 09, 2024.
(Gurmeet S)