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Judgment
M. Shreesha, J
For the reasons cited in the Affidavit the delay of 191 days in filing the First Appeal No. 290 of 2015 is condoned.
Aggrieved by the order dated 05.05.2014 in Consumer Complaint No. 70 of 2012, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short "the State Commission"), Birla Sun Life Insurance Co. Ltd. (hereinafter referred to as "the Insurance Company") and the Complainant preferred First Appeal No. 1224 of 2014 and First Appeal No. 290 of 2015 respectively under Section 19 of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order, the State Commission has partly allowed the Complaint directing the Insurance Company to process the claim in respect of the Insurance Policies and to make the payment within one month from the date of receipt of a copy of the order together with compensation of ₹1,00,000/- and cost of ₹11,000/-.
The facts in brief are that the Complainant's father namely Mr. Amar Singh born on 04.05.2009, wanted an assured return on investment and approached the Insurance Company at Malerkotla and was thereafter contacted by the 3rd Opposite Party that is the agent of the Insurance Company namely Ms. Monica Jindal who offered various Policies and the Complainants opted for Gold Plus-II Insurance Policy taken on 28.12.2009. Subsequently, the 4th Opposite Party another agent, namely, Mr. Yashpal Gupta contacted the Complainant's father offering some beneficial Policies and Platinum Advantage Policy was taken on 14.09.2010 and on 12.09.2011. Another Policy was taken through the same agent namely Mr. Yashpal Gupta on 30.09.2011. The details of the Policies are as hereunder:
Policy No.
Date of Issue
1st Premium Amount
Sum Assured
003781845
28-12-2009
₹24,750/-
₹4,95,000/-
004367050
14-09-2010
₹1,15,000/-
₹11,50,000/-
005059425
12-09-2011
₹58,525/-
₹9,80,000/-
005109662
30-09-2011
1,22,180/-
₹42,00,000/-
While so, the insured fell ill on 07.12.2011 and was admitted to the Hospital on 08.12.2011, but despite best efforts, expired on 15.12.2011. A claim was lodged, which was repudiated vide letter dated 21.02.2012 on the ground that the school certificate attached with the Proposal Form for Policy Nos. 003781845 and 004367050, the date of birth was forged and the driving license attached as proof of date of birth for Policy Nos. 005059425 and 005109662 was fake. The Complainant had replied to the letter dated 21.02.2012 stating that the matriculation certificate was never supplied by the insured as he was not a matriculate. The date of birth of the insured was 04.05.1944. The Complainant averred that the Pan Card, the Voter ID Card and the driving license all show that the insured was 68 years old as on the date of death and that his date of birth is 04.05.1944. It was stated that the date of birth was correctly mentioned in the Proposal Form and that the repudiation on this ground is totally unjustified. Despite repeated requests, the claim was not settled and hence the Complainant approached the State Commission seeking a direction to the Insurance Company to pay the sum assured amount of ₹68,25,000/- with interest @24% and compensation of ₹10,00,000/-.
The Insurance Company filed their Written Version stating that Policy Nos. 003781845 and 004367050 were issued on the basis of applications for insurance dated 31.12.2009 and 20.08.2010 respectively submitted by the life assured. In both these Applications, the life assured has stated his date of birth as 04.05.1944 and produced a school certificate in support of the same. However, during the investigation conducted by the Insurance Company it was established that the school certificate was a fabricated one. Subsequently, Policy Nos. 005059425 and 005109662 were issued on the basis of Applications for Insurance dated 20.07.2011 and 17.09.2011 respectively for which the date of birth was stated as 04.05.1944 and a driving license was produced to support the same. Thereafter, the investigation showed that this driving license was also a fabricated one. Hence, as per the terms and conditions of the said Policies , the Insurance Company refunded the surrender value of ₹1,44,845.67 in respect of Policy Nos. 003781845 and ₹1,44,900.92 for Policy Nos. 004367050 along with refund of premium of ₹24,750/- under Policy No. 003781845. The Insurance Company has rightly repudiated the claim taking into consideration the provision of Section 45 of the Insurance Act 1938 and also the judgement of the Hon'ble Apex Court in Satwant Kaur Sandhu vs New India Assurance Company Ltd., 2009 (8) SCC 316.
It was averred that Section 2 (1) (d) of the Insurance Regulatory and Developer Authority (Protection of Policy Holders Interest Regulations, 2002), Proposal Form means a form to be filled in by the proposer for insurance for furnishing all material information required by the insurer in respect of the risk in order to enable the insurer to decide whether to accept or decline or to undertake the risk. Further, Section 11 of the aforesaid Act states that the policy holder shall furnish all information that is sought from him by the insurer. The relationship between insured and the insurer is of utmost good faith and is based on the Latin Maxim Uberrima Fide. Copy of the Voter ID Card clearly indicates that the insured was 61 years old as on 01.01.1994 and therefore could not have been born on 04.05.1944 and the driving license does not pertain to the insured and therefore the documents which are furnished were fabricated specially keeping in view the letter received from RTO Nagaland, wherein they have treated the subject license as not genuine and therefore their repudiation is justified.
The State Commission based on the evidence adduced and the pleadings put forward has allowed the Complaint observing as follows:
"8. The Driving Licence of the insured as proved as Ex. R-8. The complainant is also relying upon the same driving licence and it was proved by him as Ex.C-13. The date of birth in the driving licence is recorded as 4.5.1944 and the same purports to have been issued by the RTO, Mokokchur (Nagaland). These opposite parties relied upon the report Ex.R-12 obtained from the said RTO in which it has been reported that the said Driving Licence bearing No. 48556/Mkg/PVT was false and signature of the Issuing Authority appears to be forged.
On the face of it, this report appears to be a valid ground for concluding that the Driving Licence so produced by the insured at the time of obtaining the insurance policies was fake. However, this evidence of the opposite parties was duly rebutted by the complainant, who proved on record the report Ex.C-14 obtained from the same Regional Transport Authority. In that report, it has been mentioned that the said Driving Licence had been issued by that authority to Amar Singh, insured. In order to prove that the report so relied upon by the complainant was correct and was to be relied upon in preference to the report proved on the record by the opposite parties as Ex.R-12, the complainant proved on record the information sought by him from the said Authority regarding this licence under the Right to Information Act, 2005 as Ex.C-19, of which the extract copy of the record pertaining to the licence forms the part. As per that information, licence was verified and was found genuine as per the office record. It is also mentioned therein that due to clerical mistake earlier verification by opposite party No. 1 was misquoted. This information sought for by the complainant bears the seal of the authority and the genuineness thereof cannot be doubted or disputed. From all this evidence produced on the record, it stands proved that the licence so relied upon by the insured in proof of his identity, age and identification at the time of obtaining the policies was a valid document.
The opposite parties relied upon the investigation report proved on the record as Ex.R-2 for proving that the School Leaving Certificate submitted by the insured was fake. The affidavit of the Investigator, who had prepared the report, has been proved on the record as Ex.R-15. That affidavit is not legal and valid as it does not contain the valid verification. It is not mentioned in the report as to how the Investigator had reached that conclusion. There is no mention of any report of the School Authorities in the report itself. However, the opposite parties have relied upon one report made by the Headmaster, S.D.P.P. High School, Malerkotla Ex.R-11. On the basis of that report, it was submitted by their counsel that the Matriculation Examination Certificate produced by the insured and proved on the record as Ex.R-17 was fake. That report has been given in respect of the Certificate of Amar Singh son of Waryam Singh, who appeared in the examination against Roll No. 75869. It is mentioned in the report that two years have been given in the Certificate i.e. 1964 and 1975, which do no match with each other and that such a Certificate is not found in the records of the School. Though Roll Number is not clearly legible in the Certificate Ex.R-7 but the same appears to be 75689 and it is not 75869, as is mentioned in the report. In that Certificate the date of birth of Amar Singh, insured, is given as 4.5.1944, which is the same, as given in the above said driving licence, which has been proved to be a genuine document. On the basis of the evidence produced by the opposite parties, we are not inclined to conclude that this matriculation certificate alleged to have been submitted by the insured was a fake one.
It has been mentioned in that investigation report Ex.R-2 that the original Voters Identity Card of the insured was collected and as per that Identity Card he was 61 years in the year 1994 and, as such, he was 78 years old at the time of his death. No such original Identity Card was proved on the record by the opposite parties and they proved one Photostat copy of that Voters Identity Card as Ex.R14. It is mentioned therein that on 1.1.1984 Amar Singh son of Waryam Singh was 61 years old. The Voters List of that year was not proved on the record in order to verify that fact. In the other Voters Identity Card, which was submitted by the insured with the opposite parties and which was proved on the record as Ex.R-10, he was shown as 56 years old as on 1.1.2000. The Voters Identity Card cannot be taken to be an authentic proof regarding the age as given therein unless and until the person, who enquired about the age and recorded the same in the Voters List is examined in the Fora itself. No such witness was examined by the opposite parties. It is a matter of common knowledge that the age is being recorded in the Voters List by making guess work. The authentic proof that the date of birth of the deceased was 4.5.1944 is coming forward in the form of the Driving Licence and the Matriculation Certificate. Therefore, it cannot be held that any such wrong statement was made or any fake document was produced by the insured at the time of obtaining the insurance policies. Opposite parties No. 1 and 2 could not have repudiated the claim on the grounds mentioned in the repudiation letter. The act of the opposite parties in repudiating the claim on wrong grounds amounts to deficiency in service on their part. The complainant was bound to suffer mental agony and harassment on account of such deficiency in service and the same has also caused financial loss to him as he was deprived of the money payable to him, being the legal heir of the insured, under the insurance policies. For that we assess the compensation at Rs. 1,00,000/-."
Vide order dated 02.05.2018, the Respondents who are the agents of the Insurance Company have been deleted from the array of parties. However, it is relevant to mention that the agents Ms. Monica Jindal and Mr. Yashpal Gupta have filed their reply before the State Commission stating that they had helped the insured in getting himself insured and in this procedure did not supply any wrong documents and that the policies were issued to the insured only after adopting proper procedure and investigations by the Company.
Learned counsel appearing for the Insurance Company vehemently argued that the insured had suppressed the material facts and has given a false date of birth certificate; that the State Commission had determined different methods to decide the age; that the State Commission has discussed about the school certificate and the driving license and that the finding is not clear as to what documents are extended as fallacious; that the date of issue of the driving license at Nagaland is 18.06.2009, whereas the first Policy was issued on 28.12.2009 which is six months later; that a 61 year old has travelled to Nagaland for taking a driving license for reasons not known; that the State Commission has failed to appreciate that there are two sets of letters, one produced by the Insurance Company from RTA Nagaland, according to which the license was fake and the second letter obtained by the Complainant stating that the license issued by the said Authority was done by mistake; that there are two sets of documents pertaining to Voter ID Card, one which was produced or by the Insurance Company shows that the age of the life assured was 61 years as on 01.01.1984 and the one which was filed by the life assured at the time of filling of the Proposal Form for Policy Nos. 003781845 and 004367050 dated 31.01.2009 and 20.08.2010 respectively which show that the life assured was 58 years as on 01.01.2000.
Learned counsel vehemently contended that the life assured was about 86 years of age at the time of taking the first Policy whereas, he mentioned that his age was 67 years and therefore the school certificate was submitted by the life assured at the time of taking of the first two Policies is also not genuine.
Learned counsel appearing for the Complainant strongly contended that as per the information obtained under RTI (Annexure P-7) dated 10.04.2013 and Annexure P-8 dated 11.07.2013, it is stated that the driving license issued for the insured, on 18.06.2009 and valid up to 17.06.2016, by RTA, Nagaland, is genuine. In the letter obtained under RTI dated 11.07.2013 the remarks given are reproduced as hereunder:
"Remarks: Verified and found Genuine as per our office Record.
Note: Further it is regretted to stated that due to clerical misstate early verification by Birla sun life Access Service was misquoted."
(Emphasized supplied)
He also argued that the school certificate was never produced because the insured was not a matriculate; that the insured was only a signatory and has signed the Proposal Form in Punjabi and the Proposal Forms were filled by the agents. He further argued that the Proposal Forms ought to have been in the vernacular language understood by the agent as per the IRDA guidelines and these forms were not counter signed by any person in whose presence the forms were filled. It was also contended that the first Insurance Policy No. 003781845, issued on 28.12.2009 cannot be questioned after two years of its issuance as per Section 45 of the Insurance Act, 1938.
The brief point that falls for consideration is whether there is any material suppression by the insured with respect to age. Since the issuance of Policies, the dates, the period of coverage and the type of Policy is not in dispute, the finding of the State Commission that the repudiation was unjustified is being addressed to. The cause of death, which is natural has not been questioned by the Insurance Company. For better understanding of the case the repudiation letter annexure P-3 is reproduced as hereunder:
"21st February 2012
Mr. Surinder Singh,
Vill, Burkra, P.O. Malaudh,
Teh. Payal, Dist. Ludhiana.
Malerkotla -141119,
Punjab.
Dear Mr. Singh
RE: Death Claim under Policy No. 003781845, 004367050, 005059425 and 005109662 on the life of Late Mr. Amar Singh.
This has reference to the claim dated 5th January 2012 for the benefits under the above Policies. We have carefully examines the same; but have decided to repudiate our liabili9ty under all the four Policies for the following reasons:
Policy numbered 003781845 and 004367050 were issued on the basis of applications for insurance dated 31st December 2009 and 20th August 2010 respectively, submitted by Mr. Amar Singh (the "Life Assured") on his own life. In both applications, the Life Assured had stated his date of birth as 4th May 1944 and had produced a School Certificate as proof of the same. However our investigations have established that the said School Certificate is fake.
Policy numbered 005059425 and 005109662 were issued on the basis of applications for insurance dated 20th July 2011 and 17th September 2011 respectively submitted by Mr. Amar Singh (the "Life Assured") on his own life. In both applications, the Life Assured had stated his date of birth as 4th May 1944 and had produced a Driving License as proof of the same. However our investigation have established that the said Driving License is fake.
Further as stated above, the Life Assured had declared his age, based on the date of birth 4th may 1944 stated in the applications for insurance as around 65-66 years under policies numbered 003781845 and 004367050 and as around 67 years under policies numbered 005059425 and 005109662.
We may, however state that our investigations have established that the Age proofs submitted were fake documents and the Life Assured was far older than the age declared in the applications for insurance under all the four Policies and that if he had disclosed his correct age; the Company would not have issued the aforesaid Policies at all.
In this connection, we may also state that the Life Assured had produced an identity card allegedly issued by the Election Commission of India, in connection with is applications for insurance, our investigations have established that the said document is fake.
Since the Company had been misled to issue the Policies as aforesaid, we are hereby repudiating your claim for the benefits under all the four Policies. However, without admitting any liability under the captioned Policies, we have decided to refund Cash Surrender Value under the Policy numbered 003781845 and 004367050 for RA.1,43,845.67 (Rupees One Lakh Forty Three Thousand Eight Hundred Forty Fivea and Paisa Sixty Seven Only) and for Rs.1,44,900.92 (Rupees One Lakh Forty Four Thousand Nine Hundred and Paisa Ninety Two only) respectively along with refund of premium of Rs.24,750.00 (Twenty Four Thousand Seven Hundred Fifty only) received after date of death under policy number 003781845 being the full and final settlement of the captioned Policies on the life or Late Mr. Amar Singh.
If you feel that your case deserves further consideration, you may register you dissatisfaction regarding the same, justifying the grounds for reconsideration, witht eh Claims Redressal Machinery at the following address:
Birla Sun Life Insurance Co. Ltd.,
Claims Department,
G Corp, Tech Park, 6th Floor, Kasar Vadavali, Ghodbunder Road
Thane West - 400601
Yours Sincerely,
Sd/-
Authorised Signatory
For Birla Sun Life Insurance Co. Ltd."
As can be seen from the aforenoted letter the first ground for repudiation is that the first two Policy Nos. 003781845 and 004367050 were issued based on the Applications made by the life assured that his date of birth is 04.05.1944 and produced a school certificate to establish the same and that their investigations have proved that the said school certificate was not genuine. A perusal of the Complaint shows that there is a specific pleading in paragraph No.8 that the matriculation certificate was never supplied by the life assured as he was not a matriculate and there is a specific denial that the photocopy of the matriculation certificate was ever appended to the Proposal Form. A brief perusal of all the relevant Proposal Forms show that they have been filled in English by the agents but signed in Punjabi by the life assured. It is not understood whether the terms and conditions were even explained to the life assured as the entire Proposal Form is in English and it is the specific case of the Complainant that the insured was not even a matriculate. It is the contention of the learned counsel appearing for the Insurance Company that in the Proposal Form for Policy Nos. 003781845 and 004367050, it was the school certificate which was ticked and not the driving license as observed by the State Commission. To reiterate, both these Proposal Forms have been signed by the life assured in Punjabi and the agent namely Ms. Monica Jindal and Mr. Yashpal Gupta on 30.12.20019 and on 20.08.2010 respectively have stated that the identification proof of the proposer and the address proof is Voter ID Card which was relied upon in Column 10 (a) and (b).
The contention of the learned counsel for the Insurance Company that the School Certificate was ticked is unsustainable in the light of the fact that the onus to prove that the life assured was matriculate, specially keeping in view the specific pleading of the Complainant that the insured was not even a matriculate was not discharged by the Insurance Company by way of any documentary evidence. If the Voter ID Card is taken as address proof and the Insurance Company has pleaded that as per the date of birth given in the Voter ID Card the age of the life assured should be 86 at that point of time, it is equally not undisputed as to how the agent has not taken this aspect into consideration while filling up of the Proposal Forms. Be that as it may, for the next two Policies admittedly it was the driving license which was ticked and the Proposal Form signed by the Agent Reena Babbar on 17.09.2011, clearly shows that the driving license was relied upon by the Insurance Company for the purpose of age proof. As can be seen from the record the driving license information obtained under RTI by the Complainant can be taken as a valid proof as in the remarks column it has been specifically stated that the driving license was genuine.
I also find force in the contention of the Complainant that the first Policy was taken on 28-12-2009 and more than two years have passed it cannot be called in question as it would be in violation of the provisions of Section 45 of the Insurance Act 1938.
It is significant to mention that the agents namely, Ms. Monica Jindal and Mr. Yashpal Gupta in their reply before the State Commission had categorically stated that they had 'helped the insured in getting himself insured and the policies were issued to the insured only after adopting proper procedure and investigations by the Company'. This goes to show that proper investigation was done prior to issuance of the Policy. This statement should be construed in the manner that even the date of birth had been properly investigated and only then the policies were issued.
Be that as it may, it is pertinent to note that when the insured was admitted in the hospital all his medical records which are on record show that his age was 67. When the medical treatment record shows that the patient's age was 67 years as on the date of death coupled with the fact that the Pan Card shows that the date of birth is 04.05.1944 and also the driving license, it is found that the grounds taken by the Insurance Company in the letter of repudiation that the date of birth is wrong is completely unfair and unjustified. Further, it is also not understood as to how the Policies were issued to the insured by three different agents arrayed as Opposite Parties No. 3,4 and 5 in the Original Complaint when their main contention is that the life assured was much older in age than what he had claimed. Additionally, it is relevant to mention that in the Proposal Form dated 31.12.2009 taken by the agent Ms. Monica Jindal and also in the Proposal Form dated 20.08.2010 taken by another agent Mr. Yashpal Gupta all show that the Voter ID Card was taken as the identification proof and the address proof and if the same Voter ID Card is being based upon that the insured was 86 years old at the time of death and not 67 years old, it is not comprehended as to how the Proposal Form was counter signed by the agent and the Policies were issued. At the cost of repetition, when the cause and nature of death is not disputed, the Pan Card, the Driving License and the Hospital Treatment Record clearly shows that the insured was 67 years old at the time of death which conclusively establishes that he was born on 04.05.1944, I do not find any reason to interfere with the finding of the State Commission.
Hence the First Appeal No. 1224 of 2015 preferred by the Insurance Company is dismissed.
Now we address ourselves to the First Appeal No. 290 of 2015 preferred by the Complainant seeking enhancement on the ground that the State Commission did not award any interest on the awarded amount.
Keeping in view the facts and circumstances of the case, the aforenoted reasons and the finding that the repudiation was unjustified, I am of the view that awarding interest @ 6% p.a. from the date of filing of the Complaint till the date of realisation would meet the ends of justice. Hence the amount of ₹1,00,000/- awarded by the State Commission towards compensation is set aside, while confirming the rest of the order of the State Commission with respect to deficiency of service. In the result, the Appeal preferred by the Complainant is allowed in part to the extent indicated above and the order of the State Commission is modified to the same extent. Time for compliance is four weeks from the date of receipt of the copy of this order failing which the sum assured shall attract interest @ 9% p.a. from the date of repudiation of the claim till the date of realization. The surrendered amounts already paid to the Complainant shall stand adjusted in the decretal amounts.
Needless to add, the statutory amount deposited in First Appeal No. 1224 of 2014 shall stand refunded to the Insurance Company and the amount of ₹30,00,000/- released to the first Respondent/ Complainant on his furnishing security vide order dated 28.04.2015, shall stand adjusted from the decretal amount.