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Birla Sun Life Insurance Company Ltd. & Another v/s Ashok Kumar Kuthiala


Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    RBT Appeal No. 344 of 2019

    Decided On, 29 November 2019

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MR. JUSTICE P.S. RANA
    By, (RETD.)
    By, PRESIDENT & THE HONOURABLE MS. SUNITA SHARMA
    By, MEMBER

    For the Appellants: Kirti Sood vice Digvijay Singh, Advocates. For the Respondent: Shashi Bhushan, Advocate.



Judgment Text


P.S. Rana (R), President

Present appeal is filed against order dated 9.7.2014 passed by learned District Consumer Forum/Commission in consumer complaint No. 140/2011 titled Ms. Nivedna deceased through her LR v. Birla Sun Life Insurance Co. Ltd. & Anr.

Brief Facts of Consumer Complaint:

2. Complainant filed consumer complaint under Consumer Protection Act pleaded therein that Ms. Nivedna obtained Life Insurance Policy from opposite parties for a sum of Rs. 3,36,300 (Three lacs thirty six thousand three hundred) for the period 28.4.2009 to 28.4.2029. It is pleaded that Ms. Nivedna wife of Sh. Ashok Kumar died during the operation of policy. It is further pleaded that Insurance claim was submitted before opposite parties but opposite parties repudiated the claim and committed deficiency in service. Prayer for acceptance of consumer complaint sought.

3. Per contra version filed on behalf of opposite parties pleaded therein that deceased Ms. Nivedna has concealed material facts from Insurance Company at the time of obtaining Insurance policy. It is pleaded that Ms. Nivedna was suffering from Bronchial Asthma (Steroid dependent) since ten years. It is further pleaded that deceased Nivedna has flouted terms and conditions of Insurance Policy and Insurance Company is not under legal obligation to pay Insurance claim. Prayer for dismissal of consumer complaint sought.

4. Learned District Consumer Forum/Commission decided the consumer complaint on 9.7.2014. Learned District Consumer Forum/Commission ordered that complainant is entitled for a sum of Rs. 3,36,300 (Three lacs thirty six thousand three hundred) with interest @ 9% per annum from the date of filing consumer complaint i.e. 2.5.2011 till actual payment. Learned District Consumer Forum/Commission in addition ordered that complainant would be entitled for compensation on account of mental and physical agony and litigation costs to the tune of Rs. 50,000 (Fifty thousand). Learned District Consumer Forum/Commission further ordered opposite parties to pay amount within forty five days from receipt of copy of order.

5. Feeling aggrieved against order passed by learned District Consumer Forum/Commission Insurance Company filed appeal No. 373/2014 before State Commission which was decided on 30.12.2014 by State Commission. State Commission dismissed appeal as barred by limitation. Thereafter Insurance Company filed revision petition No. 404/2015 before Hon’ble National Consumer Commission and Hon’ble National Consumer Commission set aside order of State Commission and directed Insurance Company to pay Rs. 5,000 (Five thousand) to complainant. Hon’ble National Consumer Commission directed parties to appear before State Commission on 17.10.2016. On dated 6.12.2016 State Commission again dismissed appeal filed by Insurance Company on the ground that Insurance Company did not pay costs imposed by Hon’ble National Consumer Commission and none appeared on behalf of Insurance Company on dated 6.12.2016 when the matter was called for hearing before State Commission.

6. Thereafter again Insurance Company filed revision petition No. 660/2017 before Hon’ble National Consumer Commission and on dated 30.7.2018 Hon’ble National Consumer Commission set aside order of State Commission dated 6.12.2016 and remanded the matter back to State Commission and directed State Commission to restore appeal at its original number and decide the same on merits subject to payment of total costs to the tune of Rs. 15,000 (Fifteen thousand). Hon’ble National Consumer Commission directed parties to appear before State Commission on 18.9.2018.

7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.

8. Following points arise for determination in present appeal.

1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal?

2. Final order.

Findings upon point No. 1 with reasons:

9. Complainant filed affidavit in evidence. There is recital in affidavit that contents of complaint are true and correct and nothing has been concealed therein. State Commission has perused all the annexures filed by complainant.

10. Learned Advocate appearing on behalf of Insurance Company has given statement before Learned District Consumer Forum/Commission that version already filed by Insurance Company be read in evidence and closed the evidence. Statement of learned Advocate is quoted in toto:

Statement of Mr. Ashish Verma Advocate vice Shri Anuj Nag Advocate for the OP.

Reply along with documents already filed be read in evidence and close the evidence.

Sd/- Sd/- Sd/-

Member Member President.

11. Submission of learned Advocate appearing on behalf of Insurance Company that Insurance Policy holder namely Smt. Nivedna was suffering from Bronchial Asthma (Steroid dependent) and she concealed material facts from Insurance Company at the time of obtaining Insurance policy and on this ground appeal filed by Insurance Company be allowed is decided accordingly. Insurance Company did not file any affidavit in evidence relating to proof of controversial facts. Insurance Company also did not file any affidavit of Medical Officer in order to prove that deceased Smt. Nivedna was suffering from Bronchial Asthma (Steroid dependent) since ten years prior to obtaining Insurance policy. Contents of controversial annexure filed by Insurance Company are not per se admissible under Consumer Protection Act. State Commission is of the opinion that onus was upon Insurance Company to prove by way of affidavits that deceased Nivedna was suffering from Bronchial Asthma (Steroid dependent) since ten years prior to obtaining Insurance policy. Plea of Insurance Company that policy holder was suffering from Bronchial Asthma (Steroid Dependent) is defeated on the concept of ipse dixit (An assertion made without proof). See III (2018) CPJ 208 (NC)=2019(1) CLT 90 NC titled Birla Sun Life Insurance Co. Ltd. & Others v. Gudela Siva., See Appeal No. 7437 of 2011, decided on 26.8.2011 by Hon’ble Apex Court of India. See II (2018) CPJ 89 (CAL.) Calcutta High Court titled Keso Ram Industries Ltd. v. Allahabad Bank.

12. Submission of learned Advocate appearing on behalf of Insurance Company that complainant has not disputed admission note dated 1.7.2010 wherein it has been specifically stated that policy holder was suffering from Bronchial Asthma (Steroid Dependent) since ten years and on this ground appeal filed by Insurance Company be allowed is decided accordingly. State Commission is of the opinion that admission note dated 1.7.2010 is not per se admissible under Consumer Protection Act and it is well settled law that contents of admission note dated 1.7.2010 should be proved by way of affidavit of a person who has written and signed the admission note. There is no evidence on record in order to prove that complainant has admitted the admission note dated 1.7.2010 in a positive manner. It is well settled law that discretion lies with the quasi judicial authority to direct party to proof controversial facts. It is well settled law that discretion does not lie with the party not to prove controversial facts. Plea of learned Advocate appearing on behalf of Insurance Company that contents of admission note dated 1.7.2010 are ipso facto proved is declined by State Commission on the concept that onus to prove a particular fact lies on a party who assert a particular fact under Consumer Protection Act because proceedings under Consumer Protection Act are quasi judicial proceedings.

13. Submission of learned Advocate appearing on behalf of Insurance Company that Section 45 of Insurance Act would not operate in present matter because policy was obtained on 28.4.2009 and policy holder died on 11.7.2010 within just fourteen months from date of issuance of Insurance policy and on this ground appeal filed by Insurance Company be allowed is decided accordingly. State Commission is of the opinion that Insurance Act 1938 is a Statutory Act for the regulation of Insurance company. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow Insurance Company to flout Section 45 of Insurance Act simply on the ground that policy holder died just within fourteen months of issuance of Insurance policy. It is well settled law that Consumer Protection Act is beneficial legislation enacted by Parliament of India in order to protect interest of consumers. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to punish consumer on account of “Act of God” because death of human being is “Act of God”.

14. Submission of learned Advocate appearing on behalf of Insurance Company that Insurance Company repudiated claim on the basis of intentional concealment of material fact by policy holder which was not disputed or challenged during proceedings before Learned District Consumer Forum/Commission and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that onus was upon Insurance Company to prove the fact that policy holder has intentionally concealed material facts but in the present matter no official on behalf of Insurance Company filed any affidavit in order to prove controversial facts as required under Consumer Protection Act by way of affidavits. It is well settled law that no one can take benefit of its own wrong and laxity. In view of fact that no official on behalf of Insurance Company filed any affidavit relating to controversial facts it is not expedient in the ends of justice and on the principles of natural justice to give benefit to Insurance Company on account of its own non action and laxity.

15. Submission of learned Advocate appearing on behalf of Insurance Company that in view of ruling reported in IV (2009) CPJ 8 (SC)=VI (2009) SLT 338=2009 (8) SCC 316 titled Satwant Kaur Sandhu v. New India Assurance Company Ltd. and in view of ruling reported in AIR 1971 AP 41 titled LIC of India v. B. Chandra Vathamma and in view of ruling reported in I (2008) CPJ 144 titled V. Nalini v. LIC of India & Anr., present appeal filed by Insurance Company be allowed is decided accordingly. Facts of case laws cited by learned Advocate appearing on behalf of Insurance Company and facts of present case are entirely different. It is held that ruling cited supra are distinguishable in present matter due to distinguishable facts and are not operative in present matter.

16. Submission of learned Advocate appearing on behalf of Insurance Company that policy holder was dead and present consumer complaint was filed in the name of dead person and on this ground appeal filed by Insurance Company be allowed is decided accordingly. State Commission has carefully perused memorandum of parties. In the memorandum of parties complainant has specifically mentioned that Ms. Nivedna stood deceased and present consumer complaint filed by her husband namely Sh. Ashok Kumar Kuthiala. State Commission is of the opinion that memo of parties should not be read in isolation but should be read as a whole in toto. If memo of parties should be read as a whole in toto then it is proved that present consumer complaint was filed by Sh. Ashok Kumar being legal heir of policy holder being class-II legal heir as provided under Hindu Succession Act, 1956. It is proved on record that Sh. Ashok Kumar falls within class-II category of legal heir mentioned under Hindu Succession Act, 1956. Admittedly parties are Hindu and governed under Hindu Succession Act. There is no evidence on record that parties are not governed under Hindu Succession Act 1956. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to dismiss consumer complaint because in Consumer Protection Act only principles of natural justice are operative in order to dispose of consumer complaint.

17. Even as per Nomination Rule 2015 spouse falls within definition of beneficial nominee. It is well settled law that Insurance policy benefit survives to legal heirs nominee mentioned in Insurance policy. See 2006 (2) CPC 667 SC titled Mukesh Kumari (Minor & Dead) by LRs. v. M. Lal Oswal Cancer Treatment and Research Foundation & Anr. It is well settled law that in the case of death claim of LRs, cause of action remains in continuity till the amount is not paid by Insurance company. See II (1999) CPJ 13 (NC), titled State Bank of India & Ors. v. Ananda Mohan Saha, See I (1999) CPJ 72 (NC)=1998 (2) CPC 577 NC titled Time Properties and Promoters Etc. v. Rakesh Jain.

18. Submission of learned Advocate appearing on behalf of complainant that order of learned District Consumer Forum/Commission is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of learned District Consumer Forum/Commission because Insurance Company did not adduce any evidence by way of affidavits. On the contrary learned Advocate appearing on behalf of Insurance Company has given written statement before Learned District Consumer Forum/Commission that version filed by Insurance Company be treated as evidence of Insurance Company relating to controversial facts.

19. It is well settled law that version is on

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ly pleading of party and version is not substitute for proof of controversial facts. It is well settled law that version of opposite party and evidence of opposite party relating to controversial facts are entirely two different concepts under law. It is held that version could not be treated as evidence of party relating to controversial facts as per Consumer Protection Act, 1986 because Section to file version is independent section under Consumer Protection Act, 1986 and right to adduce evidence relating to controversial facts is governed under other independent section of Consumer Protection Act, 1986. It is well settled law that pleadings are not substitute for evidence. See Latest HLJ 2017 HP High Court 1011 titled Oriental Insurance Company Ltd. v. Champa Devi & Others, In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 20. In view of findings upon point No. 1 above appeal filed by Insurance Company is dismissed. Order of learned District Consumer Forum/Commission is affirmed. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Consumer Forum/Commission for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal dismissed.
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