State Consumer Disputes Redressal Commission
Life Insurance Corpn. Of India vs Sk. Ali Hossain And Another on 22 October, 2008
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 45/A/2007 DATE OF FILING : 19.02.2007 DATE OF FINAL ORDER: 22.10.2008 APPELLANTS 1. Life Insurance Corporation of India Eastern Zone Hindusthan Building 4, Chittaranjan Avenue Kolkata-700 072 P.S. Bowbazar. 2. The Zonal Manager LICI, Hindusthan Building 4, Chittaranjan Avenue Kolkata-700 072 P.S. Bowbazar. 3. The Senior Divisional Manager LICI, Howrah Divisional Office 16, Hare Street Kolkata-700 004 P.S. Hare Street. 4. The Branch Manager LICI, Singur Branch Howrah Division, Natun Bazar, Dist. Hooghly. RESPONDENTS 1. Sk. Ali Hossain S/o Sk. Asad Ali City Palace, Village-Nabahat P.O. Fagupur, P.S. Burdwan, Dist. Burdwan. 2. Dr. Utpal Sen Hatipukur Lane, Burrabazar, Burdwan-4, Dist. Burdwan. BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MR. S.N.BASU MEMBER : MRS. S.MAJUMDER FOR THE PETITIONER / APPELLANT : Miss S.Roychoudhury, Advocate FOR THE RESPONDENT / O.P.S.: Mr. A.K.Sil, Advocate (Res. 1) Mr. P.R.Baksi, Advocate (Res. 2) : O R D E R :
MR. S.N.BASU Being aggrieved by the judgement and order passed by the Hooghly District Consumer Forum on 16.1.07 in C.D.F. Case No. 8/06 allowing the complaint together with compensation of Rs. 25,000/-, the present Appeal has been filed by the OP-Insurance Co.
2. The facts of the case briefly are that Sk. Liyakat Ali, younger brother of the complainant, was holding an insurance policy being Policy No. 434318223 for an assured sum of Rs. 5,00,000/-. The Respondent No. 1/Complainant is the nominee in respect of the said policy.
The said Sk. Liyakat Ali expired on 18.5.02. The Respondent No. 1 filed a claim with the Appellant/Insurance Co. for payment of the assured amount of Rs. 5,00,000/-. Since the insured died within less than four months from the date of taking the policy, an investigation was made by the Appellants to ascertain the cause of death.
On the basis of information obtained by the Appellants the claim was repudiated on the ground of suppression of material information at the time of filing the Proposal Form. The policy was issued by the Insurance Co. on the basis of declaration duly counter-signed by Dr. Sunil Das empanelled with the Appellant-LICI. It is stated that the insured fell ill on 13.5.02 and expired on 18.5.02 after developing a cardiac respiratory failure. The Respondent No. 2 had supplied a medical certificate of fitness dt. 22.11.02 in respect of deceased Sk. Liyakat Ali to the investigating officer of the LICI, which stated that he had been mentally and physically handicapped since the last ten years. After considering the said certificate and the particulars furnished in the Proposal Form, the LICI communicated its repudiation in its letter dt. 14.5.03. The Respondent No. 1 appealed to the Appellant for reconsideration of the claim, but it was also turned down by the higher authority.
He, therefore, filed a writ petition before the Honble High Court at Kolkata under Article 226 of the Constitution of India. The Honble High Court passed an order on 19.7.04 directing the Appellants to re-examine the case and take proper steps preferably within 4 weeks. However, the Appellants after examining the records once again informed the Respondent No. 1 on 3.9.04 that their earlier decision of repudiation was final. Being aggrieved the Respondent No. 1 filed a complaint before the Forum below.
3. The Appellants contended that Sk. Liyakat Ali had taken one insurance policy from the LICI for Rs. 5,00,000/- from its Singur branch.
The cause of death was CRF in a case of Acute Gastroenteritis. They stated that the investigating officer who met the family physician of the deceased, Dr. Utpal Sen, ascertained that the assured was mentally and physically handicapped since ten years. The Appellants contended that the District Forum had erred in not considering that had the deceased disclosed his actual health condition, the Corporation would either reject the proposal or send him for further medical examination before taking the risk. They also contended that the petition was barred by limitation and the Forum did not have necessary jurisdiction to adjudicate on the matter. The Appellants contended that the Ld. Forum failed to consider the certificate dt. 22.11.02 of Dr. Utpal Sen, the family physician of the deceased -
Annexure-G to the Appeal. They further contended that the Ld. Forum failed to consider that the Appellants had relied on the said certificate in repudiating the claim. But the Ld. Forum without considering the said medical certificate allowed the complaint only on the basis of pleading and the second certificate issued by the Respondent No. 2. They also alleged that the complainant had filed a put-up petition before the Forum below enclosing therewith a copy of the said health certificate in respect of the deceased on the plea that it was a legible copy while, in fact, a new certificate had been filed being issued by the same doctor certifying that the deceased had been enjoying a good health althrough. The complainant had thus practised fraud on the Forum below and as such, he is not entitled to any relief. They further contended that the Appellants, who are the Ops before the Forum, had filed a petition on 1.8.06 for cross-examination against the said petition filed by Respondent No. 1. The date of filing written objection to the said petition was fixed on 5.9.06. The Respondent No. 1 prayed for an adjournment to file his written objection against the petition filed by the Appellants/Ops and the date was fixed on 26.9.06 for hearing of the petition and also for filing objection in the meantime. On 26.9.06 the Appellants/Ops concluded their argument on cross-examination and 7.11.06 was fixed for hearing the complainant/Respondent No. 1.
However, no hearing was taken on the said date as one of the members of the Bar expired and the next date was fixed on 8.12.06 for hearing the petition filed by the Ops. The date for passing the judgement was fixed on 22.12.06.
However, on 22.12.06 the judgement was not ready and 2.1.07 was fixed for judgement, which was again shifted to 9.1.07. No order was passed on 9.1.07 also. The judgement was finally delivered on 16.1.07, which is not backed by any judicial order on 9.1.07.
The Appellants contended that the Ld. Forum passed its order without hearing the case on merit. They further contended that though they had filed a petition against the application filed by the Respondent enclosing therewith the fitness certificate issued by Dr. Utpal Sen, no order was passed on the said petition filed by them. No opportunity was also allowed to the Appellants to cross-examine the Respondent No. 1. They further contended that the said certificate of fitness of the deceased was filed in collusion with Dr. Utpal Sen, the Respondent No.
2. No opportunity was also allowed to the Appellants to cross-examine the Respondent No. 1. A case was filed before the Medical Council of West Bengal, who had issued a show-cause notice to Dr. Sen for cancellation of his professional licence. The Appellants also contended that the entire proceedings got a new dimension due to filing of a fresh fitness certificate about the deceased and there was a miscarriage of justice when the Appellants/Ops were not allowed to cross-examine the Respondent No. 1/Complainant in spite of filing a petition for that purpose. The Appellants relied on the decisions in
(i) AIR 1986 Kerala 201, (ii) III (2002) CPJ 10 (NC), (iii) IV 2006 CPJ 1 (SC),
(iv) (2008) 1 SCC 321 and (v) AIR 1996 SC 2592 in support of their contention.
4. The Ld. Forum in its judgement observed that Dr. Utpal Sen, who happens to be the family physician of the deceased had duly certified that he was physically and mentally fit throughout his life and had never suffered from any disease excepting the one leading to his death. The Appellants contended that the second certificate issued on the same date was a backdated affair shrewdly manipulated by the Respondent No. 1 in connivance with Respondent No. 2. The Forum also stated that Dr. Sen had filed a complaint in the Court of the Ld. C.J.M. alleging that some officials of LICI had forced him to write an adverse certificate in respect of health and mental condition of the deceased Sk. Liyakat Ali.
The Ld. Forum also observed that the Appellants/Ops did not cross-examine Dr. Sen, which they denied.
5. We have perused the Memo of Appeal, the written argument filed by the contesting parties and the impugned judgement passed by the Ld. Forum. We find that Sk. Liyakat Ali took an LICI policy for Rs. 5,00,000/- on his life on 31.1.2002. But unfortunately he expired within less than four months from the date of taking the policy. Such an early death aroused suspicion in the minds of the Appellants, who conducted an investigation.
It is alleged that the Respondent No. 2, Dr. Utpal Sen, who was also the house physician of the deceased told the Appellants that the deceased was mentally and physically handicapped since the last ten years and was under his treatment. Dr. Sen had issued a certificate in that line. However, the said Dr. Sen had subsequently also issued another certificate of fitness in respect of the deceased to the Respondent No. 1 who filed it before the Forum below surreptitiously. Although it is an admitted position that the said deceased Sk. Liyakat Ali was medically examined by the panelled doctor of the Appellants/LICI, but such certificate is in the form of declaration countersigned by the empanelled doctor. The Appellants/LICI issued the policy on the basis of such document as also the Proposal Form. The Complainant contended that since the doctor of the LICI had examined the deceased and had also obtained the ECG report from a qualified doctor and the Appellants had issued the LICI policy after examining all those documents, they cannot repudiate the claim though the insured expired within less than four months from the date of taking the policy. We cannot also dismiss the contention of the Appellants that the house physician of the deceased Dr. Sen had issued another certificate with the same date stating that the deceased was mentally and physically in good condition and had not suffered from any disease since the last ten years. Though Dr. Sen had filed a complaint with the Ld. C.J.M., Burdwan for obtaining the first certificate by some LICI officers forcibly, the police report strongly dismissed such contention and the I.O. had in fact suggested for proceeding U/S 211 of the I.P.C. for false complaint by Dr. Sen. This is a very unusual situation and is not expected of a doctor. How far the story of obtaining the certificate by coercion is true can only be proved in the court of law in course of time. But such an action on the part of a doctor certainly arouses strong suspicion as to the bonafide of the second certificate and evidently his complicity. We are also distressed to find that though the Appellants had filed a petition against the application filed by the Respondent No. 1 with which he had allegedly filed a photocopy of the favourable health certificate in respect of the deceased, the Forum had not passed any order for cross-examination of the Respondent No. 1 which is considered to be extremely vital in the present case when allegedly a new document is being filed. Evidently the Forum below failed to exercise its judicial authority. The Appellants had also contended that the observation of the Ld. Forum that they did not cross-examine the Respondent No. 2 is not correct. The Appellants allegation that the Ld. Forum delivered its judgement without hearing the merit of the case and also without hearing them on the objection petition are quite serious in nature as they are backed by documentary evidence.
6. It is evident from the facts contained in the foregoing paragraphs that the Ld. Forum failed to exercise its judicial mind and consequently it delivered a flawed judgement.
The ordinary course of action would be to remand the case with necessary direction for hearing afresh after providing due opportunity to both sides to adduce evidence and to cross-examine the witnesses. But in the present case we find that there are serious irregularities and the role of the Respondent No. 2 in issuing the two certificates with same date needs a thorough investigation. The Appellants have contended that the Respondent No. 1/Complainant had taken recourse to fraudulent practice in obtaining the policy as also filing the claim in respect of his deceased brother which we are not inclined to dismiss.
We are also inclined to give due importance to the findings of the I.O. appointed by the Ld. CJM, Burdwan, who had filed his final report dismissing the contention of the Respondent No. 2 that such certificate was obtained by the Appellants/LICI under coercion. We are of the view that the complainant has not come up with clean hands and prima facie the entire episode is burdened with fraud and cheating as alleged by the Appellants. In such a situation we are of the view that the present complaint/Appeal should not be adjudicated before the Consumer Forum since further investigation and cross-examination of a series of witnesses right from the very initiation of the LIC proposal will be necessary to arrive at a correct decision.
In this context, we are inclined to refer to the decision in I (1993) CPJ 88 (NC) N.Shivaji Rao Vs. M/s. Daman Motor Company & others, wherein the Honble National Commission decided that it is a case of fraud and cheating as alleged by the Appellant complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a Consumer Forum can arrive at a finding of deficiency in service.
We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery thereunder cannot be effectively utilized for determining complicated questions of fraud and cheating. In view of the above decision of the Honble National Commission we are of the view that the complainant should approach a Civil Court for redressal of his grievance, if any, vis--vis the Appellants.
7. In view of the facts and circumstances contained in the foregoing paragraphs it is ordered that the Appeal be allowed on contest without cost. The order of the Forum below dt. 16.1.07 be set aside. The complaint also stands dismissed.
MEMBER MEMBER PRESIDENT