State Consumer Disputes Redressal Commission
Madan Lal vs Life Insurance Corporation Of India on 30 March, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.703 of 2007.
Date of Institution: 21.05.2007.
Date of Decision: 30.03.2012.
Madan Lal S/o Sh. Sahib Ram, Resident of 202, Shaheed Udham Singh
Nagar, Jalandhar.
.....Appellant.
Versus
Life Insurance Corporation of India, Unit-1, Jeevan Parkash Building, Model
Town Road, Jalandhar through its Branch Manager.
...Respondent.
First Appeal against the order dated
30.10.2006 of the District Consumer
Disputes Redressal Forum, Jalandhar
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : None.
For the respondent : None.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Madan Lal, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 30.10.2006 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondent, making assertions that his son Naresh Kumar was life assured with the respondent insurance company vide policies no.130826811, 130202109 and 130207131 and in all the policies, the appellant was nominee of the assured, who was unmarried. Sh. Naresh Kumar left Jalandhar on 06.07.1996 to some unknown place and is not traceable till date. FIR to that First Appeal No.703 of 2007 2 effect was registered with Police Post No.3, bearing no.10 dated 10.07.1996. The police has given final report on 23.03.2004, stating that Sh. Naresh Kumar, who was missing since 06.07.1996, has not been traceable till date. As per the law, a person, who is missing for seven years, is presumed to be dead and, as such, assured Naresh Kumar is deemed to be dead.
3. The appellant sent information regarding the matter in writing to the respondent and the courier receipt dated 08.06.2004 is annexed with the complaint. The appellant also made it clear to the respondent that he is willing to fulfill all the formalities, but the respondent remained deficient in service and did not comply with the terms and conditions of the policy, as the respondent was bound to provide the benefit of policy to the nominee, in case of death of the assured. It was prayed that the respondent be directed to appoint the surveyor and to take action at the earliest and to clear the dues of the appellant standing vide policies no.130826811, 130202109 and 130207131 and to pay Rs.50,000/- as compensation for mental tension and harassment and Rs.15,000/- as litigation expenses.
4. In the reply filed on behalf of the respondent, preliminary objections were taken that the complaint is not maintainable, it is premature, no cause of action or locus standi has arisen to the appellant to file the complaint. The appellant has not submitted the death certificate of the life assured. Until and unless it is proved that the life assured has died, the appellant is not entitled to any claim from the respondent. The missing life assured cannot be proved to be dead in the absence of judgment from the competent court of law and the complaint merits dismissal. The complaint is bad for non-joinder and mis-joinder of necessary parties.
5. On merits, it was submitted that Sh. Naresh Kumar, life assured took three policies from the respondent and the appellant is nominee in all the policies. All the policies are in Reduced Paid-up status and no death intimation or proof of the same was submitted. Mere lodging of the FIR is not sufficient to prove the death. All other allegations of the complaint were First Appeal No.703 of 2007 3 denied and similar pleas as taken in preliminary objections were repeated and it was prayed that the complaint may be dismissed with costs.
6. Parties led evidence in support of their respective contentions by way of affidavits and documents.
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the presumption of death can be raised and decided in the proceedings, but the policy should be subsisting according to the allegations made on 30.09.2004, but no allegation has been made that the amount of premium was paid upto date. Vide letter Ex.C-2 dated 01.11.2002, the appellant was asked to pay the premium, but nothing has been mentioned in the affidavit about the payment of the same. The appellant has not taken any steps for more than two years after the receipt of the order dated 01.11.2002. The appellant has failed to comply with the requirement of letter Ex.C-2 for more than two years and is not entitled to any relief, and dismissed the complaint.
8. Aggrieved by the impugned order dated 30.10.2006, the appellant has come up in appeal.
9. We have gone through the pleadings of the parties and have carefully perused the record of the learned District Forum as well as other material placed on file.
10. As per letter Ex.C-2 written by the respondent to the assured Sh. Naresh Kumar, it is clear that the policy lapsed due to non-payment of premium due from 06/1998. The total amount of premium to be paid if revived on or before 15.11.2002, was Rs.31,270.80 and if revived on or before 14.12.2002, it was Rs.31,498.70. Regarding other policy bearing no.130202109, as per letter Ex.C-3, the total amount of premium to be paid if revived on or before 15.11.2002 was Rs.5371.80 and if revived on or before 14.12.2002, it was Rs.5400.80. There is nothing on record to prove that the First Appeal No.703 of 2007 4 premiums, above mentioned, were paid by the appellant and the policies were revived.
11. The policies could not be revived despite the letters Ex.C-2 and Ex.C3, as the assured Naresh Kumar was missing.
12. The DDR Ex.C-4 was recorded at P.S. Division No.3, Jalandhar on 10.07.1996, mentioning that the assured Naresh Kumar on 06.07.1996 went on scooter, stating that he is going to take medicine but thereafter, did not return. Ex.C-5 is the report of P.S. Division No.3, Jalandhar dated 23.03.2004 as per which Naresh Kumar was not traceable.
13. From the above, it is clear that assured Naresh Kumar is missing since 06.07.1996 and after waiting for seven years, the present complaint was filed. Sections 107 and 108 of the Indian Evidence Act provide as follows:-
"107:- Burden of proving death of person known to have been alive within thirty years:- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 108:- Burden of proving that a person is alive who has not been heard of for seven years:- {Provided that when} The question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it".
14. From the bare reading of the above sections, it is clear that U/s 107 of the Indian Evidence Act, when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. First Appeal No.703 of 2007 5
15. The appellant has placed on record his own affidavit, copy of DDR and the reports, above mentioned as per which assured Naresh Kumar left on 06.07.1996 on the scooter and thereafter he has not been heard of for seven years by him and the other persons who would naturally have heard of him. The appellant is father of the assured and is also the nominee and presumption can be drawn that the assured Naresh Kumar is dead, as he has not been heard of for seven years by the appellant or other persons, who would have naturally heard of him. The burden was upon the respondent insurance company to prove that the assured Naresh Kumar is still alive and he has not revived the policies, but the respondent insurance company has not led any evidence to prove so. Once, the assured is presumed to be dead, then the insurance company cannot escape its liability. The plea of the respondent insurance company that a declaration has to be sought from the Civil Court cannot be accepted because the presumption is a statutory presumption and the same can be drawn and the date of death has to be the date after seven years from the date of missing and in the present case, the life assured missed on 06.07.1997 and after seven years of the same, the life assured is presumed to be 'dead', because there is no evidence in rebuttal to prove that he is alive.
16. Accordingly, the appeal filed by the appellant is accepted and the impugned order dated 30.10.2006 under appeal passed by the District Forum is set aside. Consequently, the complaint filed by the appellant is allowed and the respondent insurance company is directed to pay the dues of the policies no. 130826811, 130202109 and 130207131 to the appellant, who is nominee of assured Naresh Kumar. Nominee is trustee of the legal heirs of Naresh Kumar, who is presumed to be dead and the money received by the nominee shall be disbursed to the legal heirs of assured Naresh Kumar, if any.
17. Compliance of the order shall be made by the respondent within two months of the receipt of copy of the order.
First Appeal No.703 of 2007 6
18. The arguments in this appeal were heard on 26.03.2012 and the order was reserved. Now the order be communicated to the parties.
19. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member March 30, 2012.
(Gurmeet S)