State Consumer Disputes Redressal Commission
Manju Sharma vs Sbi Life Insurance Company Ltd. on 19 May, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 729 of 2016
Date of institution : 23.09.2016
Date of decision : 19.05.2017
Mrs. Manju Sharma wife of Yash Pal Sharma, resident of H. No.
133, Village Paniar, Tehsil and District Gurdaspur.
....Appellant/Complainant
Versus
1. SBI Life Insurance Company Ltd., Ist Floor, Above PNB
Chauhan Tower, Mamoon Cantt., Dalhousie Road, Pathankot
through its Branch Manager.
2. The Regional Director, Chandigarh Region, SBI Life
Insurance Company Ltd., 3rd Floor, SCO No. 109-110,
Chandigarh.
3. SBI Life Insurance Company Ltd., through its Head, Central
Processing Centre, Kabas Bhawan, Plot No. 3-A, Sector 10, CBD
Belapur, Navi Mumbai - 400 614
....Respondents/Ops
First Appeal against the order dated
26.07.2016 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
First Appeal No. 729 of 2016 2
Present:-
For the appellant : Sh. G.S. Manku, Advocate
For the respondents : Sh. Rajneesh Malhotra, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred as the complainant) has filed the present appeal against the order dated 26.07.2016 passed by the District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter referred as the District Forum) in consumer complaint No. 14 dated 4.1.2016 vide which the complaint filed by the complainant was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties (hereinafter referred as Ops) on the averments that her husband deceased Sham Lal (hereinafter referred as DLA) had purchased insurance policy bearing No. 44034671804 with the date of commencement 6.2.2012 for sum insured of Rs. 10,00,000/- with single mode premium of Rs. 2,00,000/- under SBI Life Smart Performer. A sum of Rs. 2,00,500/- was deposited from A/c No. 55129533694 being maintained by deceased Sham Lal as on 21.1.2012. The amount was transferred to A/c No. 098516511820. Unfortunately, DLA expired on 12.1.2015. The complainant is the nominee in the policy. The claim was lodged with Op No. 1 alongwith additional policy bond and death certificate. After about a month or so, the First Appeal No. 729 of 2016 3 complainant again visited the Branch Office of Op No. 1 and she was assured that the investigation was in process. As soon as the investigation is over, the claim payment will be made. After about 3 years from the date of issuing the policy, the Op repudiated the claim of the complainant by giving the same on flimsy grounds that the deceased Sham Lal was older than the age declared by him at the time of signing the proposal form and age proof was not genuine. According to Section 45 of the Insurance Act, 1938, no policy after a gap of 2 years can be challenged on the basis of mis-statement of fact. Legal notice dated 27.11.2015 was issued to the Ops. Op No. 3 gave a very vague reply and did not pay the claim amount. Repudiation of the genuine claim amounted to deficiency in service on the part of Ops. Accordingly, the complaint was filed before the District Forum seeking directions against the Op to pay sum insured of Rs. 10 Lacs alongwith interest @ 18% p.a. and Rs. 50,000/- as compensation on account of mental and physical harassment.
3. Upon notice, the complaint was contested by the Ops, who filed their written reply taking preliminary objections that the complaint is bad for want of territorial jurisdiction; the policy was taken under the principle of 'utmost good faith', age is material fact, which determines whether the proposer is prima-facie eligible for insurance policy and the quantum of insurance cover, if the life assured understate his age and avail huge insurance cover, the insurer is within his right to repudiate the claim. In the instant case, the DLA did not reveal the correct information about his age and First Appeal No. 729 of 2016 4 obtained the insurance policy of Rs. 10 Lacs fraudulently; if the proposer was in the knowledge of such fact, he was obliged to disclose it particularly while answering the question in the proposal form. Any inaccurate answer, entitle the insurer to repudiate his liability. DLA misstated his age and within the meaning of Section 18 of the Indian Contract Act, 1872, the contract is void in terms of Section 10 read with Section 14 & 18 of the Indian Contract Act; the proposal form is the basis of assessment of the risk. A proposer will be admitted into the scheme based on the details in the proposal form. In this case, the DLA committed a fraud by mis- stating his age. In brief facts of the case and in parawise reply, issuance of the policy has been admitted. However, it was again reiterated that it was taken by fraud and by mis-stating the age. The maximum age at entry for Smart Performer Policy is 65 years. In case the DLA would have revealed his correct age then he would have been ineligible to get the policy. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence his sworn affidavit and documents Ex. C-1 to C-9. On the other hand, Op had tendered into evidence affidavit of Neelam Singh Ex. Op-1 and documents Ex. Op-2 to Op-13.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint was dismissed as referred above. First Appeal No. 729 of 2016 5
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record.
9. It was argued by the counsel for the appellant/complainant that the District Forum wrongly relied upon the voter list, which is not authenticate proof of the age of the DLA. It was further stated that copy of the Driving Licence, which has been submitted on the record by Ops was not submitted by him and it does not bear his signatures. This document has been manipulated by the Ops to forfeit the claim of the complainant. In case we go through the signatures of the DLA on the proposal form and on the copy of the driving licence from the naked eye, these both do not tally with each other, therefore, it cannot be said that this document was submitted by the DLA. Normally, the documents are filled by the Agent. The proposal form was signed by the DLA in Urdu, which shows that he might not be knowing English language. The opposite parties before the District Forum tendered one affidavit of Neelam Singh wife of Sh. Surinder Pal Singh as Ex. Op-1. No affidavit of agent was filed on the record that photocopy of the driving licence placed on the record as Ex. Op-5 was submitted by the complainant. Therefore, it is doubtful that document Ex. Op-5 was submitted by the DLA.
10. Even, if it is taken that D.L. was submitted by the DLA and it was found fake, the Ops have relied upon the voter list in which the age of the deceased DLA has been shown to be more First Appeal No. 729 of 2016 6 than 65 years. However, it is pertinent to mention here that this voter list was issued in the year 2015 and as per the death certificate of the DLA, he had died on 12.1.2015. It seems that this voter list is not upto date, otherwise, voter list is not an authenticated document to prove the age of the person. A reference can be taken from the judgment of the Hon'ble Andhra Pradesh State Commission reported in II(2014) CPJ 20A(CN) titled as "Reliance Insurance vs. B. Kotiratnam" after relying upon the judgment "Life Insurance Corporation of India v. Smt. Asha Devi", 1996(2) CPR 103, opined that the age mentioned in the ration card or hospital bed ticket could not be taken as admissions of insured with regard to his/her age. There could not have been any basis for the enumerators to note the age as mentioned in the voter's identity card. Sometimes inmates or villagers may give age without knowing the exact age so the age mentioned in the voter's identity card cannot be decisive. It is only a tentative age in order to show that she had attained the age in order to exercise her franchise. However, it could not be a record showing her age. There is no law that voter identity card is final or authenticated. Therefore, the age mentioned in the voter card was not final. A reference has also been made to the judgment of the Hon'ble National Commission reported in II (2011) CPJ 249 (NC) "Anand Kumar Kejariwal versus LIC of India & Anr." and I (2010) CPJ 535 "L.I.C. of India versus Harbansh Singh". In that case, the policy was not meant for persons aged more than 60 years. No malafide intention on the part of deceased was proved. It was observed that First Appeal No. 729 of 2016 7 the claim repudiation was unjustified. It has been stated by the counsel for the Ops that in this case, the policy could not be issued to DLA, in case his age was more than 65 years. However, the evidence relied upon by the Ops is not authenticate because voter list is not an authenticated document to prove the age of the person, therefore, Ops have failed to prove on the record that on the date of taking the policy, the DLA was more than 65 years of age. Further the death of the DLA (husband of the complainant) happened after more than two years of taking the policy and according to Section 45 of the Insurance Act, 1938 the policy cannot be questioned. Section 45 of the Insurance Act, 1938 reads as under:-
"45. Policy not to be called in question on ground of mis-statement after two years.--No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement [was on a material matter or suppressed First Appeal No. 729 of 2016 8 facts which it was material to disclose and that it was fraudulently made] by the policy-holder and that the policy-holder knew at the time of making it that the statement was false [or that it suppressed facts which it was material to disclose]:
[Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.]"
Counsel for the Ops has relied upon the 2nd Clause of the Section. However, to support it, the Ops has failed to prove that there was any malafide on the part of DLA to get the policy by way of mis- representation. In case DLA would have been aware that DL is fake, he would have never submitted the same to the Ops. In this regard, reference has been made to II (2011) CPJ 249 (NC) "Anand Kumar Kejariwal versus LIC of India & Anr." In that case also, insurance form was filled by the Insurance Agent. Insuree not aware of the lapse of husband's policy. Since two years lapsed, policy cannot be questioned on the ground of mis-statement of fact, therefore, repudiation was not justified. The Hon'ble National Commission has relied upon the judgment of the Hon'ble Supreme Court in (1962) 2 SCR 571 "Mithoolal Nayak v. LIC of India". The District Forum in its order declared the age more than 65 years after relying upon the voter list, which is not an authenticate proof First Appeal No. 729 of 2016 9 of evidence to prove the age of the DLA, therefore, the findings recorded by the District Forum are not correct.
11. In nutshell, firstly the Ops have failed to prove that there was any malafide intention on the part of insured/insuree to mis-state the age of the insured. It is not proved on the record that driving licence was submitted by the DLA as signatures on the photocopy of the driving licence does not tally with the signatures of the DLA on the proposal form. The Ops have failed to examine the agent, who filled the proposal form to say that this copy of the driving licence was submitted by the DLA. Whereas the Ops have relied upon the voter list, which is not an authenticated piece of evidence to prove the age of the person. No other document has been placed on the record that on the date of getting the policy, the DLA was more than 65 years of age and was incompetent to get the policy. Further the DLA died after a gap of two years of getting the policy, therefore, mis-statement, if any, in the proposal form also cannot be questioned after a gap of more than two years under Section 45 of the Insurance Act, 1938. In these circumstances, the order passed by the District Forum is not justified and is liable to be set-aside.
12. In these circumstances, we accept the appeal. Impugned order is set-aside. The complaint filed by the complainant is allowed with the following directions to the Ops:-
(i) to pay sum insured of Rs. 10 Lacs;
(ii) pay interest @ 9% p.a. from the date of repudiation i.e. 24.6.2015 till the date of payment.
First Appeal No. 729 of 2016 10
(iii) pay Rs. 50,000/- as compensation for physical and mental harassment; and
(iv) pay Rs. 11,000/- as litigation expenses.
The above directions be complied within 45 days from the receipt of certified copy of the order.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER May 19, 2017.
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