J.S. Klar, Presiding Judicial Member.
1. Challenge in this appeal by appellants is to order dated 04.07.2018 of District Consumer Disputes Redressal Forum Gurdaspur, partly accepting the complaint of respondent Avtar Singh of this appeal by directing the appellants to honor the policy and to pay its death claim with full benefits to him being legal heir/nominee, besides compensation of Rs.10,000/- for mental harassment within a period of 30 days from the date of receipt of copy of order, failing which to pay interest @ 9% per annum from the date of order till actual payment. The appellants of this appeal are opposite parties in the complaint before District Forum below and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that Sukhwinder Kaur widow of Harban
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s Singh resident of Village and post office Sohal Tehsil and District Gurdaspur was the mother of the complainant who obtained insurance policy no. 21590458 dated 10.06.2015 from OP no.4, who was the authorized agent of the insurance company. She paid amount of Rs.50,000/- by withdrawing it from her account no. 7451001700016912 from Punjab National Bank Sohal Tehsil and District Gurdaspur to OP no.1 and was to pay annual premium of Rs.49,999/- upto 30th May every year for ten years period. The policy would be effective from 10.06.2015 for operation. OPs issued the insurance policy to the mother of the complainant Sukhwinder Kaur after due verification. Sukhwinder Kaur was insured for amount of Rs.7,99,924/- under the policy and she nominated the complainant as her nominee. Sukhwinder Kaur expired on 26.01.2016 due to sudden heart attack. Due intimation was given to OP no.4 being agent of insurance company regarding fact of death of mother of complainant Sukhwinder Kaur for claiming insured amount of Rs.7,99,924/- by him as nominee of his mother. He approached OPs no.3 and 4 many times to do the needful, but to no effect. He sent legal notice to OPs through his counsel on 12.06.2016 to make the payment of the insurance amount to him as nominee of his mother Sukhwinder Kaur deceased. He has filed complaint directing the OPs to pay the insured amount of Rs.7,99,924/- with interest @ 18% p.a from the date of death of Sukhwinder Kaur his mother till actual payment, besides compensation of Rs.20,000/- and Rs.10,000/- as costs of litigation.
3. Upon notice, OPs no.1 and 3 filed joint written reply and contested the complaint of the complainant. It was averred in the written reply by OPs no.1 and 3 that complaint is without cause of action and it has been filed on wrong facts only. The complainant does not fall within the definition of Consumer under the Consumer Protection Act. The policyholder was Sukhwinder Kaur and complainant was insured under the said policy. The annual premium payable under the said policy was Rs.49,999/- and sum assured was of Rs.7,49,985/-. As per the principles of insurance, the nominee is entitled to receive the death benefit after death of insured only. The insured under the policy is Avtar Singh complainant and Sukhwinder Kaur was the policyholder therein. The complaint is liable to be dismissed, because the insured person Avtar Singh under the policy is still alive. The complainant has not submitted any death claim intimation to OPs at any point of time. On merits, OPs no.1 and 3 controverted the averments of the complainant primarily on the ground that Sukhwinder Kaur his mother was the policyholder and insured was Avtar Singh under policy no. 21590458 on 29.05.2015. OPs no.1 and 3 prayed for dismissal of the complaint.
4. OPs no.2 and 4 were set exparte before District Forum, vide order dated 16.03.2018.
5. The complainant tendered in evidence his affidavit Ex.CW-1/A , affidavit of Mela Singh son of Sh. Atma Singh as Ex.CW-2/A, affidavit of Mohan Singh son of Charan Singh as Ex.CW-3/A, affidavit of Sh. Ranjit Singh son of S. Charan Singh as Ex.CW-4/A , affidavit of Som Raj Lambardar as Ex.CW-5/A and affidavit of Sh.Samson Member Panchayat as Ex.CW-6/A along with copy of document Mark-A and closed the evidence. As against it; OPs no.1 to 3 tendered in evidence affidavit of Rajeev Sharma son of Lekhram Sharma Senior Manager as Ex.OPW-1/3/A along with copies of documents Ex.OP1,3/1 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Gurdaspur partly accepted the complaint of the complainant by virtue of order dated 04.07.2018. Aggrieved by above order of the District Forum Gurdaspur, opposite parties now appellants have carried this appeal against the same.
6. We have heard learned counsel for the parties and have also examined the record of the case.
7. District Forum below accepted the complaint of the complainant on the premise that there are allegations of mis-selling of the insurance policy by OP no.4, being authorized representative of OPs. The policy in question was issued without any investigation, application of mind and scrutiny of documents. The District Forum relied upon affidavit of Avtar Singh complainant Ex.CW-1/A, affidavit of Mela Singh son of Sh. Atma Singh as Ex.CW-2/A, affidavit of Mohan Singh son of Charan Singh as Ex.CW-3/A, affidavit of Sh. Ranjit Singh son of S. Charan Singh as Ex.CW-4/A , affidavit of Som Raj Lambardar as Ex.CW-5/A and affidavit of Sh.Samson Member Panchayat as Ex.CW-6/A. These witnesses have deposed in their respective testimonies that OPs have not honoured the policy by giving the insured amount to complainant. There is no allegation of factum of mis-selling of the policy in the complaint by the complainant. The averments of the complainant in the complaint are that his mother was policyholder, who took the policy from OP no.4 as agent of other OPs. OPs issued policy to his mother after due verification and mother of the complainant was consumer in this case. Even as per the pleaded case of the complainant and as per depositions of above referred witnesses on the record adduced by complainant that Sukhwinder Kaur was mother of the complainant, who obtained this policy from OPs through OP no.4. As against it; OPs no.1 and 3 relied upon affidavit of Rajeev Sharma son of Lekhram Sharma Senior Manager as Ex.OPW-1/3/A on the record that it was Sukhwinder Kaur, who obtained the insurance policy and she got her son Avtar Singh, being complainant in this case insured under the policy. He stated that complainant has filed complaint for death claim benefits of Sukhwinder Kaur, whereas under the policy Sukhwinder Kaur was only policyholder and Avtar Singh is insured in this case. None of the above-referred witnesses, as relied upon by complainant, was present at the time when Sukhwinder Kaur obtained the policy from OPs through OP no.4. Since these witnesses have given evidence of the fact, which was not within their exclusive knowledge only on anecdotal basis, therefore much significance cannot be attached to their depositions. The case is liable to be decided on the basis of documentary evidence on the record in this case as documentary evidence excludes oral evidence. Ex.OP-1/3 is the proposal form in this case. The proposed insured is Avtar Singh in the proposal form and Sukhwinder Kaur was mother of the proposed insured Avtar Singh in this document. It is thumb marked by policyholder Sukhwinder Kaur under the declaration column. The insured is recorded as Avtar Singh at page no.22 on the record of the District Forum in policy no.21590458. At page no.24 of the record of District Forum, this policy was purchased by Sukhwinder Kaur and his son Avtar Singh was insured under Met Smart Platinum. Even at page no.43 of PNB Metlife name of the policyholder is Sukhwinder Kaur and name of insured is Avtar Singh. Even at page no.53 of the record, name of policyholder is Sukhwinder Kaur and name of insured is Avtar Singh under this PNB Metlife Platinum. Consequently, the contract of insurance has made it clear that Sukhwinder Kaur (since deceased) took the policy only and insured her son Avtar Singh thereunder. The insured is Avtar Singh complainant and amount will become payable only in the event of any such contingency to the assured, whereas Avtar Singh assured is still alive. The claim is, thus, not payable because insured under the policy is Avtar Singh and not Sukhwinder Kaur, who was only policyholder. Death of Sukhwinder Kaur policyholder will not clothe the complainant with right to claim the compensation, as he himself is assured under the policy. There is no solid evidence on the record by complainant to establish any mis-selling of the policy by the authorized agent of OPs, who is OP no.4 in this case. Parties cannot back out from the terms and conditions of insurance. The order passed by District Forum under challenge in this appeal is not sustainable in the eyes of law and merits reversal in this appeal.
8. As a result of our above discussion, we accept the appeal of the appellants and set aside the order of District Forum Gurdaspur dated 04.07.2018, by accepting this appeal of the appellants, resulting in dismissal of the complaint of the complainant.
9. The appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the appellants of this appeal by way of crossed cheque/demand draft within 45 days to the extent of his entitlement.
10. Arguments in this appeal were heard on 10.01.2019 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases