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Article Published in the Express Magazine Dated
October 28,
2001
General Attorney : Rajiv K. Luthra
Recently a member of our family died. Now all
of us want to avoid the inevitable disputes
between the heirs over the will that has been left
behind. We all realise the importance of
maintaining good relations between us and avoid
court proceedings. Can the matter relating to the
probate of the will be referred to an arbitrator?
S. Gupta, Gurgaon
No, probate proceedings cannot be referred to
arbitration. The probate proceedings shall be
conducted by the probate court in the manner
prescribed in the Indian Succession Act, 1925
(“Act”). The probate court according to the Act
shall be either the District Court or High Court.
These courts have exclusive jurisdiction to
adjudicate upon the proof or validity of the Will
propounded by the executor. Any other civil court
or arbitrator does not get jurisdiction, even if
it has been consented to by the parties. Probate
of a will is not mandatory in all States and is a
requirement only in some states. The issue in
probate proceedings relates to the genuiness and
due execution of the Will. Hence, the probate
court does not decide any question of title or of
the existence of the property itself. The executor
nominated expressly in the Will is a legal
representative entitled to represent the estate of
the deceased and the heirs are entitled only to
resist the claim of the executor of the execution
and genuiness of the will. The probate granted by
a court is a judgment in rem and it is conclusive
and binding, not only on the parties but also on
the entire world. There is no scope for mutual
agreements between the heirs during probate
proceedings. As such the parties cannot by mutual
consent refer a probate regarding a Will to
arbitration.
I have been a Mediclaim policyholder for many
years. Because of an earlier heart operation I had
initially not been covered for heart ailments.
Later, the insurance company asked me to apply for
full coverage on submitting a detailed medical
report on the status of my health. On following
that I was informed that I would henceforth be
covered for all diseases. After undergoing Balloon
Mitral Valvoplasty the Insurance Company turned
down my claim denying their commitment to a
complete insurance cover. Is there any judicial
authority to which I could appeal seeking
redressal?
N.S. Ganesham, Baroda
According to the Indian Insurance Act, 1938, the
holder of an insurance policy issued by an insurer
shall have the right, to receive payment of any
sum secured thereby and to sue for any relief in
respect of the policy in any Court of competent
jurisdiction. As a consumer you could also
approach the Consumer Dispute Redressal Forum
under the Consumer Protection Act, 1986 (the
“Act”). Consumer is a person, who hires or avails
of any services for a consideration which has been
paid or promised. The holder of a policy of
insurance will be a consumer within the meaning of
the Act and would be entitled to institute and
maintain a complaint regarding any “deficiency in
service” on the part of the insurance company.
Section 2 (1) (o) of the Act defines “service” in
very wide ranging terms. It means service of any
description which is made available to potential
users, and insurance generally has been squarely
placed within the definition of service. A
complaint relating to the failure on the part of
the insurer to settle the claim of the insured may
constitute a “deficiency in service” on the part
of the insurance company. But you will have to
prove the existence of a contract with full
coverage and then only the question of a
deficiency in the service will become relevant.
The onus of proof of the fact that the extension
of your mediclaim also included any heart ailments
shall lie on you.
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