WRIT- CONSUMER COMMISSION- SEC. 46,47 OF INSURANCE OF ACT - WHO HAS TO FILE A CIVIL SUIT IN CIVIL COURT = WHEN CONSUMER COMMISSION REFUSED TO DECIDED AN INSURANCE CLAIM = National Consumer Reddressal Commission, New Delhi, wherein it has opined that all the cases require recording of voluminous evidence and that realising this difficulty, the learned counsel representing the appellants/revision petitioners sought liberty to approach the civil Court for the purpose of recovering the claim amounts. Accordingly, liberty was given to them to approach the civil Court. ; who among the parties must approach the civil Court. under sec.47 of INSURANCE ACT= the occasion for the insurer to approach the civil Court under Section 47 of the Act would arise when there is no dispute as to the payment of the insured amount but the dispute as to the persons to whom the amount has to be paid or if there is insufficiency of proof of title to the amount secured or any other adequate reason which render it impossible for the insurer to obtain a satisfactory discharge for the payment of such amount. It is not the pleaded case of either party that the insurer is willing to discharge the insured amount but on account of any one or more of the above noted reasons contained under Section 47 of the Act, the insurer is unable to secure discharge. As noted herein before, all the insurance companies have resisted the claims of the petitioners before all the fora on the ground that there are serious suspicious circumstances rendering the very claims of the nominees of the insured, doubtful. Therefore, on a careful consideration of the facts of the cases on hand, I have no doubt in my mind that Section 47 of the Act has no application to the present cases and there is no obligation cast on the insurance companies to approach the civil Court. As rightly undertaken by the petitioners before the National Consumer Reddressal Commission, it is they who need to approach the civil Court by way of regular civil suits if they intend to claim the insured amounts as the purported nominees of the policyholders. For the above-mentioned reasons, I do not find any merit in these writ petitions and the same are accordingly dismissed.
PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9852
THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Writ Petition No. 30752 of 2012 and Batch
02-04-2013
Khalida Begum and another
The Life Insurance Corporation Ltd., Division Office at Opposite Secretariat,
Saifabad, Hyderabad Rep.by its Divisional Manager Claims and another.
Counsel for the petitioners: Sri M.A.Barifor Md.Ajmal Ahmed
Counsel for the respondents : Sri Bathula Raj Kumar
<Gist:
>Head Note:
? CITATIONS:
Writ Petition Nos. 30752, 30753, 30754, 30755, 30756, 30757, 30758, 30759,
30760, 30761, 30762, 30763, 30764, 30765, and 30766 of 2012
COMMON ORDER:
These writ petitions arise out of common issues of facts and law. Hence they
are heard and being disposed of together.
The petitioners are claiming through one or the other two persons, namely,
Mohd.Mohtashim Azmi and Mahmooda Begum.
Sri Mohd. Mohtashim Azmi has taken as
many as 13 insurance policies with different insurance companies such as the Life Insurance Corporation of India, Allianz Bajaj Life Insurance Company
Limited, Kotak Mahindra Old Mutual Life Insurance Limited and Birla Sun Life Insurance Company Limited.
His wife Mahmooda Begum has taken two insurance
policies from the Life Insurance Corporation of India.
The value of these policies together comes to around Rs.5.5 crores.
Ironically, within one year after obtaining of these policies, both the
policyholders are stated to have died in a road accident on the intervening
night of 30/31.03.2003 while travelling from Hyderabad to Jedcherla.
The
petitioners are nominees in the respective insurance policies, either originally
named by the policy holders, or subsequently changed a few days before the
purported accident has taken place.
When two persons by names Sadiqa Begum and
Khalida Begum filed W.P.Nos.6584 and 6585 of 2004 against the Life Insurance
Corporation of India feeling aggrieved by non-payment of the insured sum for the
death of Smt Mahamooda Begum,
this Court dismissed the said writ petitions by
holding that as the insurance company has pleaded suspicious circumstances and
several disputed questions of fact are involved, the petitioners therein shall
avail the remedy of a civil suit.
All the petitioners
except the petitioners in W.P.Nos.30752 and 30756 of
2012 have approached the Andhra Pradesh State Consumer Reddressal Commission
(for short "the State Commission") by raising a consumer dispute.
The insurance
companies have contested the claims of the petitioners.
The State Commission,
by separate but identical orders passed on 23.04.2008, declined to adjudicate the complaints on merits on the ground that several disputed questions of fact need to be adjudicated and that it is only the competent civil Court which can adjudicate such disputes.
Feeling aggrieved by the said orders, the petitioners
filed First Appeals/Revision Petitions.
All those cases were disposed of by the
National Consumer Reddressal Commission, New Delhi, wherein it has opined that all the cases require recording of voluminous evidence and that realising this difficulty, the learned counsel representing the appellants/revision petitioners
sought liberty to approach the civil Court for the purpose of recovering the claim amounts. Accordingly, liberty was given to them to approach the civil Court.
Instead of availing the remedy before the civil Court, the petitioners
filed the present batch of writ petitions,
with the prayer that the respective
insurance companies must approach the civil Court under Section 47 of the
Insurance Act, 1938 (for short 'the Act').
At the hearing, Sri M.A.Bari, learned counsel for the petitioners, submitted
that the view taken by this Court in W.P.Nos.6584 and 6585 of 2004 does not
reflect the correct legal position as Section 46 of the Act enables only holder
of the policy or his assignees to approach the civil Court.
Therefore, contends
the learned counsel that the petitioners cannot file a suit under Section 46 of
the Act.
As regards Section 47 of the Act, the learned counsel says that it is
the insurer who has the obligation to approach the competent civil Court and get
the disputes decided if it is not willing to pay the insured sums.
The learned
counsel further submitted that
even though all the insurance companies, except
the Life Insurance Corporation of India, are private companies, still a writ of
mandamus would lie for enforcement of their statutory obligation to approach the
competent civil Court under Section 47 of the Act.
All the learned counsel representing the respective insurance companies opposed
the above submissions and stated that having undertaken before the National
Consumer Reddressal Commission that they will approach the competent civil
Court, the petitioners cannot be permitted to turn round and insist that the
insurance companies have to approach the civil Court under Section 47 of the
Act. They further submitted that Section 47 of the Act has no application to
the facts of the present case.
As regards the submission of the learned counsel for the petitioners that
Section 46 of the Act has no application to the petitioners, I find merit
therein.
Section 46 of the Act gives right only to the policyholders or their
assignees to approach the civil Court.
Section 2(2) of the Act defined "policy
holder" as including assignee of the policy holder when the policy is assigned once and for all.
The petitioners are not the policy
holders or their assignees, but they claim to be the nominees of the policyholders.
Therefore, as rightly pointed out by the learned counsel for the
petitioners, Section 46 of the Act has no application.
But in my opinion, still
the conclusion drawn by this Court in W.P.Nos.6584 and 6585 of 2004 is not
affected for the reason that if not under Section 46 of the Act, the petitioners
are entitled to approach the civil Court under the Specific Relief Act, 1963 by
way of a civil Suit.
The main reason for this Court to relegate the
petitioners therein to approach the civil Court was involvement of the seriously disputed questions of fact which could be determined only by a competent civil court.
This has been the consistent view taken by the State Consumer Redressal Commission as well as the National Consumer Redressal Commission.
To this
extent, even Mr.Bari, learned counsel for the petitioners, also does not join
issue.
But the crucial question that needs to be addressed is who among the parties must approach the civil Court.
As noted hereinbefore, the petitioners have
placed heavy reliance on Section 47 of the Act.
The said provision reads as
under:
" Section 47: Payment of money into Court.
(1) Where in respect of any policy of life insurance maturing for payment an insurer is of opinion that by reason of conflicting claims to or insufficiency of proof of title to the amount secured thereby or for any other adequate reason
it is impossible otherwise for the insurer to obtain a satisfactory discharge for the payment of such amount,
[the insurer may], apply to pay the
amount into the Court within the jurisdiction of which is situated the place at which such amount is payable under the terms of the policy or otherwise.
(2) A receipt granted by the Court for any such payment shall be a satisfactory discharge to the insurer for the payment of such amount.
(3) An application for permission to make a payment into Court under this section shall be made by a petition verified by an affidavit signed by a principal officer of the insurer setting forth the following particulars,
namely:--
(a) the name of the insured person and his address;
(b) if the insured person is deceased, the date and place of his death;
(c) the nature of the policy and the amount secured by it;
(d) the name and address of each claimant so far as is known to the insurer with details of every notice of claim received;
(e) the reasons why in the opinion of the insurer a satisfactory discharge cannot be obtained for the payment of the amount; and
(f) the address at which the insurer may be served with notice of any proceeding relating to disposal of the amount paid into Court.
(4) An application under this section shall not be entertained by the Court if the application is made before the expiry of six months [from the maturing of the policy by survival, or from the date of receipt of notice by the insurer of the death of the insured, as the case may be].
(5) If it appears to the Court that a satisfactory discharge for the payment of the amount cannot otherwise be obtained by the insurer it shall allow the amount to be paid into Court and shall invest the amount in Government securities pending its disposal.
(6) The insurer shall transmit to the Court every notice of claim received after the making of the application under sub-section (3), and any payment required by the Court as costs of the proceedings or otherwise in connection with the disposal of the amount paid into Court shall as to the cost of the
application under sub-section (3) be borne by the insurer and as to any other costs be in the discretion of the Court.
(7) The Court shall cause notice to be given to every ascertained claimant of the fact that the amount has been paid into Court, and shall cause notice at the cost of any claimant applying to withdraw the amount to be given to every other
ascertained claimant.
(8) The Court shall decide all questions relating to the disposal of claims to the amount paid into Court. "
A careful analysis of the above reproduced provision would reveal that an
insurer can approach the competent civil Court if the following contingencies
arise, i.e.,
whether due to conflicting claims or
insufficiency of proof of title to the amount secured thereby, or
for any other adequate reason,
it is not impossible otherwise for the insurer to obtain a satisfactory discharge for the
payment of such amount.
In such events, insurer can seek permission of the
Court to make payment into the Court and obtain a receipt, which will constitute
satisfactory discharge to the insurer for the payment of the amount.
In other
words, the occasion for the insurer to approach the civil Court under Section 47 of the Act would arise when there is no dispute as to the payment of the insured amount but the dispute as to the persons to whom the amount has to be paid or if there is insufficiency of proof of title to the amount secured or any other adequate reason which render it impossible for the insurer to obtain a satisfactory discharge for the payment of such amount.
It is not the pleaded
case of either party that the insurer is willing to discharge the insured amount but on account of any one or more of the above noted reasons contained under Section 47 of the Act, the insurer is unable to secure discharge.
As noted herein before,
all the insurance companies have resisted the claims of the petitioners before all the fora on the ground that there are serious suspicious circumstances rendering the very claims of the nominees of the insured, doubtful.
Therefore, on a careful consideration of the facts of the cases on hand, I have no doubt in my mind that Section 47 of the Act has no application to the present cases and there is no obligation cast on the insurance companies to approach the civil Court.
As rightly undertaken by the petitioners before
the National Consumer Reddressal Commission, it is they who need to approach the
civil Court by way of regular civil suits if they intend to claim the insured
amounts as the purported nominees of the policyholders.
For the above-mentioned reasons, I do not find any merit in these writ petitions
and the same are accordingly dismissed.
As a sequel to dismissal of the Writ Petitions, the Miscellaneous petitions, if
any pending in all these writ petitions stand dismissed.
______________________________
C.V.NAGARJUNA REDDY, J
02.04.2013
THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Writ Petition No. 30752 of 2012 and Batch
02-04-2013
Khalida Begum and another
The Life Insurance Corporation Ltd., Division Office at Opposite Secretariat,
Saifabad, Hyderabad Rep.by its Divisional Manager Claims and another.
Counsel for the petitioners: Sri M.A.Barifor Md.Ajmal Ahmed
Counsel for the respondents : Sri Bathula Raj Kumar
<Gist:
>Head Note:
? CITATIONS:
Writ Petition Nos. 30752, 30753, 30754, 30755, 30756, 30757, 30758, 30759,
30760, 30761, 30762, 30763, 30764, 30765, and 30766 of 2012
COMMON ORDER:
These writ petitions arise out of common issues of facts and law. Hence they
are heard and being disposed of together.
The petitioners are claiming through one or the other two persons, namely,
Mohd.Mohtashim Azmi and Mahmooda Begum.
Sri Mohd. Mohtashim Azmi has taken as
many as 13 insurance policies with different insurance companies such as the Life Insurance Corporation of India, Allianz Bajaj Life Insurance Company
Limited, Kotak Mahindra Old Mutual Life Insurance Limited and Birla Sun Life Insurance Company Limited.
His wife Mahmooda Begum has taken two insurance
policies from the Life Insurance Corporation of India.
The value of these policies together comes to around Rs.5.5 crores.
Ironically, within one year after obtaining of these policies, both the
policyholders are stated to have died in a road accident on the intervening
night of 30/31.03.2003 while travelling from Hyderabad to Jedcherla.
The
petitioners are nominees in the respective insurance policies, either originally
named by the policy holders, or subsequently changed a few days before the
purported accident has taken place.
When two persons by names Sadiqa Begum and
Khalida Begum filed W.P.Nos.6584 and 6585 of 2004 against the Life Insurance
Corporation of India feeling aggrieved by non-payment of the insured sum for the
death of Smt Mahamooda Begum,
this Court dismissed the said writ petitions by
holding that as the insurance company has pleaded suspicious circumstances and
several disputed questions of fact are involved, the petitioners therein shall
avail the remedy of a civil suit.
All the petitioners
except the petitioners in W.P.Nos.30752 and 30756 of
2012 have approached the Andhra Pradesh State Consumer Reddressal Commission
(for short "the State Commission") by raising a consumer dispute.
The insurance
companies have contested the claims of the petitioners.
The State Commission,
by separate but identical orders passed on 23.04.2008, declined to adjudicate the complaints on merits on the ground that several disputed questions of fact need to be adjudicated and that it is only the competent civil Court which can adjudicate such disputes.
Feeling aggrieved by the said orders, the petitioners
filed First Appeals/Revision Petitions.
All those cases were disposed of by the
National Consumer Reddressal Commission, New Delhi, wherein it has opined that all the cases require recording of voluminous evidence and that realising this difficulty, the learned counsel representing the appellants/revision petitioners
sought liberty to approach the civil Court for the purpose of recovering the claim amounts. Accordingly, liberty was given to them to approach the civil Court.
Instead of availing the remedy before the civil Court, the petitioners
filed the present batch of writ petitions,
with the prayer that the respective
insurance companies must approach the civil Court under Section 47 of the
Insurance Act, 1938 (for short 'the Act').
At the hearing, Sri M.A.Bari, learned counsel for the petitioners, submitted
that the view taken by this Court in W.P.Nos.6584 and 6585 of 2004 does not
reflect the correct legal position as Section 46 of the Act enables only holder
of the policy or his assignees to approach the civil Court.
Therefore, contends
the learned counsel that the petitioners cannot file a suit under Section 46 of
the Act.
As regards Section 47 of the Act, the learned counsel says that it is
the insurer who has the obligation to approach the competent civil Court and get
the disputes decided if it is not willing to pay the insured sums.
The learned
counsel further submitted that
even though all the insurance companies, except
the Life Insurance Corporation of India, are private companies, still a writ of
mandamus would lie for enforcement of their statutory obligation to approach the
competent civil Court under Section 47 of the Act.
All the learned counsel representing the respective insurance companies opposed
the above submissions and stated that having undertaken before the National
Consumer Reddressal Commission that they will approach the competent civil
Court, the petitioners cannot be permitted to turn round and insist that the
insurance companies have to approach the civil Court under Section 47 of the
Act. They further submitted that Section 47 of the Act has no application to
the facts of the present case.
As regards the submission of the learned counsel for the petitioners that
Section 46 of the Act has no application to the petitioners, I find merit
therein.
Section 46 of the Act gives right only to the policyholders or their
assignees to approach the civil Court.
Section 2(2) of the Act defined "policy
holder" as including assignee of the policy holder when the policy is assigned once and for all.
The petitioners are not the policy
holders or their assignees, but they claim to be the nominees of the policyholders.
Therefore, as rightly pointed out by the learned counsel for the
petitioners, Section 46 of the Act has no application.
But in my opinion, still
the conclusion drawn by this Court in W.P.Nos.6584 and 6585 of 2004 is not
affected for the reason that if not under Section 46 of the Act, the petitioners
are entitled to approach the civil Court under the Specific Relief Act, 1963 by
way of a civil Suit.
The main reason for this Court to relegate the
petitioners therein to approach the civil Court was involvement of the seriously disputed questions of fact which could be determined only by a competent civil court.
This has been the consistent view taken by the State Consumer Redressal Commission as well as the National Consumer Redressal Commission.
To this
extent, even Mr.Bari, learned counsel for the petitioners, also does not join
issue.
But the crucial question that needs to be addressed is who among the parties must approach the civil Court.
As noted hereinbefore, the petitioners have
placed heavy reliance on Section 47 of the Act.
The said provision reads as
under:
" Section 47: Payment of money into Court.
(1) Where in respect of any policy of life insurance maturing for payment an insurer is of opinion that by reason of conflicting claims to or insufficiency of proof of title to the amount secured thereby or for any other adequate reason
it is impossible otherwise for the insurer to obtain a satisfactory discharge for the payment of such amount,
[the insurer may], apply to pay the
amount into the Court within the jurisdiction of which is situated the place at which such amount is payable under the terms of the policy or otherwise.
(2) A receipt granted by the Court for any such payment shall be a satisfactory discharge to the insurer for the payment of such amount.
(3) An application for permission to make a payment into Court under this section shall be made by a petition verified by an affidavit signed by a principal officer of the insurer setting forth the following particulars,
namely:--
(a) the name of the insured person and his address;
(b) if the insured person is deceased, the date and place of his death;
(c) the nature of the policy and the amount secured by it;
(d) the name and address of each claimant so far as is known to the insurer with details of every notice of claim received;
(e) the reasons why in the opinion of the insurer a satisfactory discharge cannot be obtained for the payment of the amount; and
(f) the address at which the insurer may be served with notice of any proceeding relating to disposal of the amount paid into Court.
(4) An application under this section shall not be entertained by the Court if the application is made before the expiry of six months [from the maturing of the policy by survival, or from the date of receipt of notice by the insurer of the death of the insured, as the case may be].
(5) If it appears to the Court that a satisfactory discharge for the payment of the amount cannot otherwise be obtained by the insurer it shall allow the amount to be paid into Court and shall invest the amount in Government securities pending its disposal.
(6) The insurer shall transmit to the Court every notice of claim received after the making of the application under sub-section (3), and any payment required by the Court as costs of the proceedings or otherwise in connection with the disposal of the amount paid into Court shall as to the cost of the
application under sub-section (3) be borne by the insurer and as to any other costs be in the discretion of the Court.
(7) The Court shall cause notice to be given to every ascertained claimant of the fact that the amount has been paid into Court, and shall cause notice at the cost of any claimant applying to withdraw the amount to be given to every other
ascertained claimant.
(8) The Court shall decide all questions relating to the disposal of claims to the amount paid into Court. "
A careful analysis of the above reproduced provision would reveal that an
insurer can approach the competent civil Court if the following contingencies
arise, i.e.,
whether due to conflicting claims or
insufficiency of proof of title to the amount secured thereby, or
for any other adequate reason,
it is not impossible otherwise for the insurer to obtain a satisfactory discharge for the
payment of such amount.
In such events, insurer can seek permission of the
Court to make payment into the Court and obtain a receipt, which will constitute
satisfactory discharge to the insurer for the payment of the amount.
In other
words, the occasion for the insurer to approach the civil Court under Section 47 of the Act would arise when there is no dispute as to the payment of the insured amount but the dispute as to the persons to whom the amount has to be paid or if there is insufficiency of proof of title to the amount secured or any other adequate reason which render it impossible for the insurer to obtain a satisfactory discharge for the payment of such amount.
It is not the pleaded
case of either party that the insurer is willing to discharge the insured amount but on account of any one or more of the above noted reasons contained under Section 47 of the Act, the insurer is unable to secure discharge.
As noted herein before,
all the insurance companies have resisted the claims of the petitioners before all the fora on the ground that there are serious suspicious circumstances rendering the very claims of the nominees of the insured, doubtful.
Therefore, on a careful consideration of the facts of the cases on hand, I have no doubt in my mind that Section 47 of the Act has no application to the present cases and there is no obligation cast on the insurance companies to approach the civil Court.
As rightly undertaken by the petitioners before
the National Consumer Reddressal Commission, it is they who need to approach the
civil Court by way of regular civil suits if they intend to claim the insured
amounts as the purported nominees of the policyholders.
For the above-mentioned reasons, I do not find any merit in these writ petitions
and the same are accordingly dismissed.
As a sequel to dismissal of the Writ Petitions, the Miscellaneous petitions, if
any pending in all these writ petitions stand dismissed.
______________________________
C.V.NAGARJUNA REDDY, J
02.04.2013
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