BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTE

REDRESSAL COMMISSION, AT NEW DELHI

State : Gujarat, Ahmedabad

First Appeal No. of 2023

(In respect of Complaint No. 49 of 2016)
IN THE MATTER OF :-
Appellant : Mr. ASHOKKUMAR CHHANIYABHAI TAMANCHE

VERSUS

Respondents : AVIVA LIFE INSURANCE Co. Ltd.

AN APPEAL U/S. OF THE CONSUMER PROTECTION ACT,

1986 AGAINST THE IMPUGNED ORDER DATED 19/05/2023
PASSED BY THE LEARNED STATE CONSUMER DISPUTE REDRESSAL
COMMISSION GUJARAT AT AHMEDABAD IN CONSUMER
COMPLAINT NO. 49 OF 2016 TITLED AS ASHOKKUMAR
CHANIYABHAI TAMANCHE VERSUS AVIVA LIFE INSURANCE
COMPANY LIMITED

TO,
The Hon’ble President and Other

Hon’ble Members of The

Hon’ble National Conusmer Commission.

HUMBLE APPLICATION OF THE

APPLICATION ABOVE NAMED:

MOST RESPECTFULLY SHEWETH THAT:

1. Being aggrieved and dissatisfied with impugn, illegal,

unjust, arbitrary Order dated 19/05/2023 passed in

Consumer Compliant No.49/2016 by the Learned

GUJARAT STATE CONSUMER DISPUTE REDRESSAL

 COMMISSION, AHMEDABAD, the appellant herein have

preferred the above referred Appeal before this

Hon’ble Commission with a view to challenge the same

on the various grounds made out in the memo of

Appeal. {Annexed herewith and marked as “Annexure-

P-1” is the copy of the order dated 19/05/2023 passed

by the Ld. CDRC, Gujarat State at Ahmedabad in

CC/49/2016.}

2. The brief facts given rise to present Appeal as per the

litigation as under :-

FACTUAL MATRIX OF THE CASE IN HAND

i) It is submitted that the DLA Mr. BHUPATBHAI

CHHANALAL TAMANCHE had taken one policy from

Respondent AVIVA LIFE INSURANCE Co. Ltd. wide

policy number 10142514 of Rs. 25,00,000/= with Risk

Commencement date 16/06/2014.

ii) The DLA was expired on 16/10/2014 due to severe

chest pain with high Blood presure with Gabharaman

in chest and vomiting.

iii) The death calim was filed by the complainant on

06/01/2015 along with required documents to

 proceed with the death claim in respect of the

present policy.

iv) In respect of that death claim of the policy of DLA

filed by the Complainant on 06/01/2015 was

repudiated by letter and order dated March 17, 2015

with reason as under :-

“Mr. Tamanche,

We wish to inform you that we have received the

death intimation and all documents submitted by

you. After close examination of the documents, we

regret to inform you that the death claim against the

captioned policy cannot be admitted for following

reason.

As per the information procured by us during the

cource of claim evalution, in 2007, the deceased life

assured had been arrested and charged under

section 66 of Prohibition Act of Selling or Consuming the

prohibitted Liquor.

In the proposal form dated June 16, 2014 the

deceased life assured under the “Health and activity

section” did not disclose the same against the

specific question, which is reproduced hereunder for

ready reference.
 H. “Do you have any history of criminal

charges/proceeding against you and/or are there

any criminal charges or proceeding pending against

you currently or in the past and/or were you

convicted in any criminal proceeding and/or on

bail/probation/suspended sentence ? – NO”

This amounts to serious non-disclosure of material

facts, which is a violation of the terms and conditions

of the insureance policy. Insurance being a contract

of ‘uberrimae fibae’ (utmost good faith), the Policy

Holder is duty bound to reveal all relevant facts to the

insurer in order for the insurer to determine the Policy

Holdr’s eligibility for availing the insurance.

The very fact that policy was proposed on a missing

person through impersonation is a violation of the

terms and condition of the insurance policy and gives

us the right to repudiate the claim. Insurance being a

contract of ‘uberrimae fidae’(utmost good faith), the

policyholder is duty bound to reveal all relevant facts

to the insurer in order for the insurer to determine the

policyholder’s eligibility for availing the insurance.

v) Against the above mentioned repudiaiton

letter/order the Original Complainant and present

Appellant has filed the Original Complaint before the

Ld. Gujarat State Consumer Dispute Redresal

Commission, Ahmedabad wide Complaint No.

CC/49/2016 on 19/04/2016 as per the Teretorial and

Pecuniary Jurisction under Section 17 of The

Consumer Protection Act, 1986. The Same Complaint

is rejected by the Ld. Gujarat State CDRC,

Ahmedabad wide order dated 19/05/ 2023 and not

consider that the DLA was not involve in any crime

and there was no any evidence against DLA in

criminal proceedings. Looking to the charge-sheet

filed by the police also it is clear that the police have

not taken any suspicious liquide or liquor from the

costody of the DLA and therefore, no any sample of

detained articles was sending to the FSL and

therefore, no name of officer of FSL and date of

sample was described in charge-sheet. Moreover,

the investigator has demanded the copy of the FIR,

but the copy of FIR was not given to the investigator

and only one certificate was given by the Inspector

of the SARDAR NAGAR POLICE STATION, Ahmedabad

City. Moreperticulerly stated here that the Police

Inspector of Sardarnagar Police Station has refuse to

give copy of FIR and the Investigator has stated in his

report at page-115 of the Complaint that We

approached to PS and checked the record and

found that LA’s name was mentioned in their criminal

records under case no.66. We have procured the

statement in which mentioned the same.

In other hand in certificate the police have stated

that the Prohibition Case Registered No. 5013/2007

was registered U/S. 66(B) and 65(e) of The Gujarat

Prohibition Act, 1949. The both statements are

differing to each other. Moreover, in case of

prohibition when any accused states that he is

inosant and did not do any crime of prohibition as

impose the crime under such case, then Megistrate

Court alvays advice to deposit the few nominal

amount of fine life Rs. 50/- to Rs. 500/= to avoide

unvanted expenced, advocate fees, vesting of time

and harasments with other expences. If the accuse

go to quash the FIR before the Hon’ble High Court,

then the said expence is also much more than

nominal fine advised to pay by the Megistrate Court.

Therefore, most of the cases are close by depositing

fine in cases of prohibition in Gujarat.

The DLA has also considered the advice of

Megistrate or avoide unvated harrasment, vesting of

time and money and unwnated expences behind

 the legal process of prohibition case which was not

done by him.

HENCE THIS FIRST APPEAL.

3. The Brief fact of the case given rise to present Appeal is

as under as per the Complaint. {The Copy of the whole

Complaint CC No. 49/2016 is produced herewith and

marked as “Annexure-P-2” along with all documents,

Annexures, Reply, Rejoinder and Written Arguments filed

by the both parties.}

3.1 That, the above named complainant has preferred

by the present complaint being aggrieved and

dissatisfy by the order dated 17th March, 2015 passed

by the Respondent, AVIVA LIFE INSURANCE Co. Ltd.

{Annexed herewith and marked as “Annexure-A” is the copy

of the order dated 17/03/2015 passed by the Respondent

Company.}

3.2 The complainant is a real brother of the original

policy holder i.e. L.A., named as BHUPATBHAI

CHHANALAL TAMANCHE. The complainant is residing

at above mentioned address with his family. It is also

submitted that the L.A. was born on 01/06/1969.

3.3 It is submitted that the L.A. has taken one Life

insurance policy from the respondent AVIVA LIFE

INSURANCE Co. Ltd. That policy was issued by the

 respondent company with Policy Numbered as

10142514. For getting that policy the L.A. has

preferred a proposal form through the agent of the

respondent by way of ONLINE OO1 option given by

the respondent company. The number of proposal

application form is NUP75535713. The Agent Code is

60150001.

3.4 It is submitted that the L.A. has paid an amount of

Rs.9,825.00 [Rupees Nine Thousand Eight Hundred

and Twenty Five Rupees only] of premium on

16/06/2014 with proposal form in case through the

agent of the respondent company. It is also

submitted that thereafter the policy was issued wide

numbered as 10142514. It is submitted that the L.A.

has paid an amount of premium of Rs.9,825.00

[Rupees Nine Thousand Eight Hundred and Twenty

Five Rupees only] of premium on 16/06/2014. That

premium was paid online, but through the agent at

Ahmedabad, Gujarat.

3.5 It us submitted that the L.A. has taken one AVIVA 1

LIFE Plan under the product Code No. T13. The Sum

Assured amount of the policy is Rs. 25,00,000/=

[Rupees Twenty Five Lacs Only] as per policy

Schedule. The term of the policy is continued till the

 maturity date of the policy i.e. 16/06/2029 or death of

the DLA i/e. brother of the present complainant. It is

also submitted that the as per the Policy Schedule

the benefits of the policy is specifically mentioned as

‘Death Benefit’. {Annexed herewith and marked as

“Annexure-B” is the copy of the thanking letter along with

policy schedule, proposal form and First Premium Receipt

issued by the respondent company to the L.A.}

3.6 It is submitted that the L.A. was expired on 16/10/2014

due to severe chest pain with high Blood pressure

with Gabharaman in Chest and vomiting. The L.A.

had compliant to family members of unbearable

Chest Pain on 14/10/2014. Therefore, the family

members had put him to SWAMI TEOONRAM CLINIC.

The treating Dr. Vijay Jesrani (M.B.B.S.) had treated

the L.A. and made some testes like Haemogram

Report, Lipid Profile and Blood Glucose Estimation.

Thereafter, the treating doctor has given some

necessary treatment to L.A. The treating doctor has

given two days treatment to L.A. Thereafter, the

treating doctor has attended the call of relative of

L.A. to visit at home in the morning at 08:00 am on

16/10/2014. When doctor has checked the L.A. he

was already died due to cardiac arrest i.e. heart

 attack. Therefore, the treating doctor has issue the

death certificate to the family member of L.A. on

20/10/2014. {Annexed herewith and marked as “Annexure-

C” is the copy of the report of SANJIVANI pathology

laboratory dated 14/10/2014 and death certificate issued by

SWAMI TEOONRAM CLINE by treating doctor Dr. Vijay Jesrani

dated 20/10/2014.}

3.7 It is submitted that due to sudden death of L.A., all

family members are come in shock and upset.

Thereafter, the complainant got some paper of

present policy and he has inquired regarding the

same policy. Thereafter, some relatives, friends and

agent/s have advice to submit a death claim of L.A.

before the respondent company. Therefore, the

complainant has filed his death claim of L.A. with all

necessary documents on 06/01/2015 at Ahmedabad.

{Annexed herewith and marked as “Annexure-D” is the copy

of the death claim filed by the complainant before

respondent with all documents.} The complainant has

produced a copy of death certificate of L.A. issued

by the state government, Election Card, Pan Card

and Lakda Pahoch of L.A., School Leaving Certificate

of L.A., Ration Card, Driving License, Election Card,

Electric City Bill, PAN Card, Municipal Tex bill and pass
 book copy of complainant with claim form. The

complainant has also produce the copy of bills of

Vikram Fruit Center, business of L.A. and income tax

retun of the year 2012-13 and 2013-14 of L.A. with

claim form.

3.8 Even that the respondent company has repudiate

the claim of the complainant on bogus, illegal, unjust,

incorrect and improper ground. The respondent has

given reason of seven years old criminal complaint of

prohibition of only 10 litter of country liquor. {Annexed

herewith and marked as “Annexure-E” is the copy of the order

and charge sheet of criminal prohibition case No. 176/2007.}

In that case the Ld. Metropolitan Magistrate Court

has passed an order of 7 days simple imprisonment

and Rs. 25/= fine on the L.A. Therefore, looking to the

case and order of the Ld. Court, the case was not

serious case and the papers of case are the public

documents as per court records and as per record of

police. The respondent company easily got it at the

time of issuing the policy. Even that the respondent

has repudiate the claim of the complainant on the

above mentioned bogus and illegal and unjust

ground.
 3.9 The Respondent Company has filed his reply on or

after 26/02/2018 along with the documents from

page no. 71 to 134.

3.10 Thereafter, the Complainant has filed his Rejoinder

Cum Written Argument on 28/07/2022 and deny the

all allegation made by the Respondent. The

Complainant has requested the Ld. State Commission

to take the matter for final arguments and disposed it

as the oldest matter, but the matter was not taken for

disposal as the Written Arguments was not filed by

the Respondent, no clossing purshis was filed by any

party or no stano available with the court.

3.11 Thereafter, the Respondent has filed his Written

Arguments on 06/04/2023 and then the matter was

taken for final argument after joint request of

advocates of both the party. Then the final order was

passed by the Ld. CDRC, Gujarat State, Ahmedabad

on 19/05/2023 which is challan ged before this

Hon’ble National Commission. HENCE THIS FIRST

APPEAL.

4. The Grounds in respect of present appeal are urged as

under which may consider as the arguments as well as

legal points/arguments and contentions of the present

appeal at the finalization of this appeal :-

 GROUNDS

a. The Ld. Court has not considered that the DLA was

not habitual criminal. Only one offence was

registered on the name of DLA in the year 2007

only, not before that and not after that and the

case was registered only under The Gujarat

Prohibition Act.

b. The prohibition case was registered prior to 7

(SEVEN) year to file the propsal in respect of

present policy in question.

c. The DLA was doing fruit seller and in connecion

with his business some bills, which are found were

produced with the complaint before the Ld.

CDRD, Gujarat State. But, the Ld. Commission has

not considered that he is doing his business at

other place, which come under the other police

station and the case registered with SARDAR

NAGAR POLICE STATION is having other teretorial

jurisdiction.

d. The Ld. Commission failed to consider that the

resident of DLA and Complainant is at Naroda

come under the Naroda Police Station and the

 case was registered is other police station, which is

not having jurisdiction.

e. The Ld. Commission is failed to consider that there

are three different addresses are mentioned in

different documents. In the proposal there is a

different address of New Naroda at page-15 and

92, which is match with other documents like APL-1

Card (page-41) and death certificate (page-34)

of DLA. There is a different address of DLA

mentioned in final order of Metropolitan Megistrat

Court, Ahmedabad at Annexure-E = Page-67 of

Court record as Free Colony, Chharanagar.

Whereas the address of DLA in the certificate

issued by the Police Inspector, Saradarnagar,

Ahmedabad is different as Nav Kholi,

Chharanagar, Kubernagar, Ahmedabad.

f. The Ld. CDRC, Gujarat State is failed to considred

that there is nothing on record against the DLA in

respect of criminal case. Looking to the charge-

sheet papers at page-70, it is clear that the police

has not detain any suspicious articales or liquer

from the possession of the DLA in the year 2007.

Therefore, in column no.5 there is no detail of date

of certificate of FSL semple and name of officer of

 FSL was given in Charge-sheet No.78/2007 filed in

Prohibition Case No. 5013/2007 in respect of

Criminal Case No.176/2007. The advocate on

record for the Complainant has clearly stated that

this is created and bogus case against the DLA. No

evidence was there with the police at that time

and at present also. Therefore, certified copy of FIR

was not given. That fact is proved by the charge-

sheet papers and by no other case was registed

before and after that FIR. Moreover, the address of

DLA sawn different in different documents and

case numbers are also different sawn in different

documents as stated above in facts of the

complaint case.

g. The Respondent has stated that the DLA was

habitual drunk person, but no evidence is to be

produced to prove that. The Respondent has

stated that the DLA was selling the liquer. But no

other case was registered prior to 2007 and after

the 2007, when the bogus prohibition case was

registered. The Ld. State Commission was failed to

considered that facts.

h. The Ld. State Commission is failed to consider that

the Respondent is not sure on his stand that

 whether the DLA was consume the liquer or selling

the liquer.

i. The Ld. State Commission is failed to consider that

there is no single statement on record that which

kind of liquer was found from the DLA in the year

2007. Whethere it was contry liquer or English

branded liquer. So, in respce of that and read with

charge-sheet papers and with considering the fact

that police has refused to give certified or simple

copy of FIR of the same case of 2007 registered

against the DLA, the Ld. Commission is failed to

consider that the case of prohibition registered

against the DLA with Sardarnagar Police Station is

bogus case, there is no any evidence to prove any

case against DLA and being a business man and

to avode further harasment of police and court

cases and expences and vesting of money and his

credit in society, DLA has paid Rs. 50/= as per the

order of Ld. Metropolitan Megistrate Court.

j. The Ld. Commission was failed to consider that the

investigation report was filed by PIYUSH PANDEY

and the Affidavit in support of that Investigation

report is filed by the Sanjay Kumar. In affidavit of

Investigator Mr. Sanjay Kumar has admitted that

 he has supervise the investigator through Mr.

Hirdesh Kumar from 31/01/2015 to 05/02/2015. So, it

is clear that there is no any affidavit of investigator

was filed by the Respondent Company. Moreover,

the report and affidavit both are heresay not

perticular, because the names of investigator are

different in report and in affidait of investigator. So,

it is clear that the Respondent has managed all

things and created the bogus documents only to

avoid the payment of the policy.

k. It is clear that the Respondnet does not come and

acted with clean hands. In legal proceedings also

the Respondent has not accepted the correct

and real facts and tries to divert the facts on other

way.

l. The Complainant has fond the business bills of

transaction of fruits selling and purchase. But, those

documents are also not considered by the Ld.

Commission and not considered that the DLA was

normal business man and living in joint family at

New Naroda not under the Jurisdiciton of

Sardarnagar Police Station.

m. If the DLA went to Hon’ble Gujarat High Court in

the year 2007 on the same ground and with the

 charge-sheet papers, the FIR must be quashed

looking to the legal position of the case. Therefore,

it must be consider that the DLA has diposited the

Rs. 50/= only to avoide unvanted harrasment,

mental and monitory further loss and to save his

market and social velue and respects only.

n. Even otherwise looking to the above mentioned

ground and facts the order passed by the Ld.

State Commission is illegal, against the law and

rules, against the natural Justice of law, against the

fundamental rights guaranteed under the

constitution of India, unjust and against the equity

of law. There is primafacy case in favour of the

appellant and order of Ld. State Commisison and

action of respondent are illegal and against the

law and equity. Therefore, looking to the ground

and reasons the appeal may kindly be admit and

allow in the interest of Justice. HENCE THIS APPEAL.

5. The appellant craves leave to add, amend, alter,

delete and/or rescind any of the grounds or para in the

memo of this appeal as and when necessary.

6. The appellant has not preferred any other application

or any appeal or revision before any other Court

including the Hon’ble Supreme Court of India save and

 except this Appeal under The Consumer Protection Act,

1986 before this Hon’ble Commission.

7. The appellant has no other alternative, adequate,

efficacious remedy save and except by way of this

Appeal before this Hon’ble Comission under The

Consumer Protection Act, 1986.

8. PRAYER :-
Appellant therefore prays that:

{A} YOUR HONOUR may kindly be pleased to admit the

present appeal in the interest of justice;

{B} YOUR HONOUR may kindly be please to quashed and

set aside the order passed by the Ld. Gujarat State

CDRC at Ahmedabad dated 19/05/2023 in CC No.

49/2016 in the interest of Justice;

{C} YOUR HONOUR may kindly be please to allow the death

claim of L.A. filed by the Nominee/Complainant in

respect of the Policy No. 10142514 from the date of

death of DLA i.e. 16/10/2014 of Rs. 25,00,000/= [Rupees

Twenty Five Lacks Only] with exemplory interest at 18%

on that amount from the death of death of the DLA till

realization in the interest of Justice;

{D} YOUR HONOUR may be please to grant an amount of

mental harassment of Rs.25,000/=, an amount of Rs.

 50,000/= to make her best efforts and expenses to

convince and produce his case and claim to various

authorities and Ld. Commission and also consider the

expenses of Rs. 50,000/= of this present appeal in the

interest of justice;

{E} YOUR HONOUR may be pleased pass such other and

further relief as may be deem just and proper in the

facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONERS ABOVENAMED AS IN DUTY BOUND
SHALL FOR EVERY PRAY.

Place: NEW DELH I

Date : -07-2023 Signatura

Mr. ASHOKKUMAR CHHANIYABHAI TAMANCHE

Through Counsel

DIVYESH V. BHAVSAR
Arvind K. Thakur,

Advocates
First Floor, Shop No-4, Nirman Flats,
Nr. Shivnagar Society, Under
Chanakyapur Over Bridge,
Ghatlodia, Ahmedabad - 380061
+91-94265 68812;
[email protected]