District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin – 733101)
Telefax: (03522)-270013
Present
Sri B. Niyogi – President
Sri S. K. Ghosh – Member
Miss. Swapna Saha – Member
Consumer Complaint No.17/2009
Biswanath Das
S/o Lt. Kumad Ch. Das
Vill.: Namabongi,
P.O. & P.S.: Balurghat,
Dist. Dakshin Dinajpur.………………………………Complainant
V-E-R-S-U-S
1.
Golden Multi Services Club of G.T.F.S.,
S.B. Mansion, 16 R. N. Mukherjee Road,
Kolkata – 700 001.
2.
Divisional Manager,
National Insurance Co. Ltd. Division – III,
8, Indian Exchange Place, Kol-700 001.
3.
Branch Manager,
National Insurance Co. Ltd., Balurghat Br.,
Dunlop More,
P.O. & P.S.: Balurghat,
Dist. Dakshin Dinajpur ………………………Opposite Parties
For the complainant ……………… – Sri N. Roy, Ld. Adv.
For OP No.1 …………………… – Sri B. K. Roy, Ld. Adv.
For OPs’ Nos.2 & 3………………… – Sri Goutam Das, Ld. Adv.
Date of Filing : 26.05.2009
Date of Disposal : 29.12.2009
Judgement & Order
dt. 29.12.2009
Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Biswanath Das on 26.05.2009 against the Golden Trust Multi Services Club of Golden Trust Financial Services – the OP 1 and against two officials of National Insurance Company Ltd. alleging deficiency in service.
Complainant’s case as it appears from the said complaint, in brief, is that he has been covered under a Group Janata Personal Accident Insurance Policy bearing No. 100300/47/01/9600022/02/96/30277 having period of coverage from 23.11.2002 to 22.11.2009 issued from the National Insurance Company Ltd. of which OP 2 has been the Divisional Manager of Division-III and OP-3 is the Branch Manager of Balurghat Branch. The sum assured under the policy is Rs. 5,00,000/-. On 22.12.2007 the complainant was attacked by some miscreants with revolver and other deadly weapons at Gitanjali Market within PS Balurghat and sustained severe injuries. On the same date he was taken to Balurghat Hospital wherefrom he was referred to N.B.U.M.C. & Hospital. He, however, obtained treatment at Anandalok Hospital and Nuro Sciences Centre, Siliguri from 23.12.07 to 15.1.2008. In course of such treatment amputation was done at his left hand below the forearm. The Medical Board at Balurghat having had examined him declared him to have been 60% disabled person on 28.3.2008.
As the disablement arose out of accidental injury sustained by him, the complainant submitted before the OPs his claim for benefit under the policy and later met the queries made from the end of the Ins. Co. but nothing has been paid to him. Failure on the part of OP 2 to make payment of compensation in view of complainant’s having had suffered disablement in terms of the policy has been a deficiency in service on the part of the OP 2 – the Divisional Manager, Division – III of the National Insurance Co. Ltd.
In such premises the complainant brought the complaint seeking a direction upon the OPs to pay to the complainant 60% of Rs.5 lac – the sum assured under the policy and interest thereon @ 9% p.a. w.e.f. 22.12.07 and costs of this proceeding.
The proceeding has been contested by OPs 1, 2 & 3 on whose behalf separate written versions were presented on 4.8.2009, 17.11.2009 and on 21.7.2009 respectively.
The OP 1 – G.T.F.S. Club Ltd. in its written version stated that in terms of memorandum of understanding executed in between it and the OP 2 – Divisional Office, Division – III of NIC, such OP 1 extended the coverage of the policy of insurance issued from the NIC Ltd. to the complainant and that following submission of the claim application by the complainant, it duly forwarded such application to the OP 2 under its letter dt. 26.2.08 for early settlement of the claim. It is the NIC who alone has the exclusive right to settle the claim. Such OP 1 is not responsible for non-payment of the claim and that there was no deficiency in service on its part.
It has been the case of the OP 3 – Balurghat Br. of NIC Ltd that the Balurghat Br. is not aware of the policy in question and that it is not concerned in any way over the non-settlement of the claim laid by the complainant.
OP 2 Division-III of NIC in its written version dt. 17.11.09 disputed the material averments of the complaint and stated that though the incident has been stated to have taken place on 22.12.07 and it has been a mandatory condition of the policy that a claimant is to give intimation as to the incident giving rise to a claim under the policy within a month, intimation in the instant case was not given to it until it was 18.2.08. It has further been the case of OP 2 that the complainant figures as accused in a number of criminal cases over allegation of committing even offence of murder and that as per the narration in the FIR the stated incident of sustaining of injuries by the complainant took place out of enmity in between two groups and so the sustaining of injury by the complainant was not accidental one. In the situation it has been alleged, the complainant cannot be said to be entitled to any benefit under the terms of the policy.
Upon the pleadings of the sides following points come up for determination :-
POINTS
1.
Was there deficiency in service on the part of OPs?
2.
Is the complainant entitled to the reliefs sought for by him?
Decision with reasons
The averments made in the petition of complaint have been verified by the complainant himself. In support of his case the complainant also filed a good number of documents either at the time his presenting the complaint on 26.5.09 or later on 4.11.09. Such documents include copy of the certificate of coverage of GPA Insurance Policy issued from the OP 2 and those of the claim form, treatment papers, and of a number of correspondences made in between the parties, original disablement certificate, certified copy of FIR and of the charge sheet submitted by the police in the concerned PS case.
The averments made in the written version of OPs 1, 2 & 3 appear to have been verified by their respective officials. OP 1 and the OPs 2 & 3 also filed separately a good number of documents on 27.11.09 with notice respective other sides.
No other evidence was adduced in the case though opportunity was given from the end of this Forum.
Let us now enter into the determination on the two points formulated above :-
Point No.1
Copy of the concerned policy certificate has been furnished by OPs 2 & 3 too in this case. On the backside of such certificate under the heading “scope of cover” it has been purported that loss of limb resulting solely and directly from accident caused by external visible or by violent means remains covered under the policy.
At Item No. (1) under head “Conditions” appearing on the backside of the policy certificate it has been stated that upon the happening of any event which may give rise to a claim under the policy, the insured should forthwith give notice thereof to the insurer company. It has further been stated therein that unless reasonable cause is shown the insured should within one calendar month after the event which may give rise to the claim under the policy, give written notice to the insurer company with full particular of the claim.
In our view the term “forthwith” is a relative term and it does not signify any definite span of time. From the latter part of the aforesaid Condition No.(1) it appears to us that the intimation has to be given within one calendar month unless reasonable cause for the delay is shown.
Here it remains admitted by OP 2 that the intimation was given to them on 18.2.2008. It is virtually not in dispute that the complainant sustained the injuries in hand on 22.12.2007 or that on the same date 22.12.2007 the complainant attended Hospital at Balurghat where from he was referred or that he was ultimately treated at Anandalok Hospital in Siliguri as an impatient during 23.12.07 to 15.1.2008 during which amputation was done of him.
As loss of limb remains covered under the policy and not merely sustaining of an injury, the sustaining of injury itself could not have persuaded the complainant to view that the incident inured in his favour a claim under the policy.
Be that as it may, intimation was sent on 18.2.08 i.e. within 1 month 24 days from 22.12.2007 – date of sustaining the injuries and within 1 month 3 days from 15.1.08 – the date of completion of the spell of indoor treatment during which the complainant underwent the amputation.
Copy of the complainant’s letter dt. 20.2.09 addressed to the OP 2 (filed by the OPs 2 & 3) goes to indicate that the complainant in his said letter dt. 20.2.09 replied to some queries made by the OP 2 under their letter dt. 6.11.08 including giving of an explanation as to the circumstances for the delay in submitting the claim. The endorsement appearing on the said letter also goes to indicate that the said reply of the complainant was received at the end of the OP 2 on 23.2.09.
It is true that the OP 2 under its purported “1st Reminder dt. 5.3.09” (to earlier letter dt. 6.11.08) made some new queries too and that it is not on record that the complainant met all of such new queries. Such purported “1st Reminder” purports to have been sent to the complainant through registered post. Neither the postal A/d card nor any other document appears to have been brought on record by OP 2 to show that the said letter dt. 5.3.09 had actually been received at the end of the complainant. Had such letter dt. 5.3.09 been served, if at all, the complainant might not have given enough importance to the new queries asked for under the said letter dt. 5.3.09 as it purported to have been a reminder to letter dt. 6.11.08 which had been responded to by the complainant earlier under his letter dt. 20.2.09.
That apart, we curiously note that the OP 2 in its written version does not appear to have presented the case that it could not settle the claim for complainant’s failure in responding to the said new queries asked for under its said letter dt. 5.3.09. Rather, in the written version it has been its case that the claim could not have been allowed in view of complainant’s failure in furnishing intimation in time and that the incident of sustaining of the injury by the complainant was not an accidental one.
In such premises the OP 2’s failure in communicating to the complainant about its inability to entertain the claim till before the presentation of its written version points towards the deficiency in service on the part of OP 2.
Let us now examine how far the two grounds put forward by OP 2 in its written version disentitling the complainant benefit under the policy, can be regarded to be justified.
As to the ground of delay in furnishing of intimation it was urged by the Ld. Counsel appearing for OPs 2 & 3 that the Condition No.(1) printed on the backside of the policy certificate for furnishing intimation of the incident within a month is mandatory. Ld. Counsel appearing for the complainant, on the other hand, placed reliance upon a decision of the Hon’ble H.P. SCDRC reported in 2007 (3) CPR 74 and to several other decisions to urge that the said condition cannot be regarded to be mandatory but only directory.
Here we have already observed that the complainant sought for benefit under the policy on ground loss of limb. We have also found earlier that the intimation was received by the OP 2 on 18.2.08 i.e. within 1 month 24 days from the date of sustaining of injury in hand and within 1 month 3 days from the date of complainant’s getting discharged from the Hospital following a spell of indoor treatment during which the amputation was done.
In the case of Sri Bimla Devi & Ors. –vs- LIC of India reported in 2007 (3) CPR 74 it has virtually been held that the condition of furnishing of information is directory. It has been observed therein that the purpose of giving information within a certain period appears to be to enable the insurer to ascertain factual position regarding the nature of disability and its extent. It has further been observed therein (in Para-11 of the judgement) that it hardly needs to be emphasized that when grant of substantial justice is pitted against a technical plea, the latter will give way to the former. Similar pronouncements have also been made by the Delhi SCDRC in the case of General Insurance Co. Ltd. & Anr. –vs- Abhijit Saini & Anr. reported in 2009 (1) CPR 302, by the Jharkhand SCDRC in the case of Golden Trust Financial Services & Anr. –vs- Malwa Devi reported in 2009 (2) CPR 202, by the Chattisgarh SCDRC in the case of Smt. Ramayanavati –vs- Sr. Divisional Manager, Oriental Insurance Co. Ltd. & Anr. reported in 2007 (2) CPR 200 relied upon from the side of the complainant.
Here it has not been the case of OP 2 made out in its written version that the explanation for the delay in intimation or in submitting the claim given by the complainant in his letter dt. 20.2.09 was unacceptable or that the OP 2 could not get the opportunity of ascertaining the factual position over the claim. Such being the situation the delay in furnishing the intimation or in submitting the claim application itself cannot stand in the way of granting the benefit under the policy.
Let us now turn into the other ground. In course of hearing the Ld. Counsel appearing for the OPs 2 & 3 drew out attention to the narration made in the FIR lodged in PS over the incident in which the complainant sustained the injuries and urged that from such narration it may be regarded that the complainant’s sustaining of injuries might have been in an incident of free fighting between the complainant and the other assailants out of animosity and so sustaining of injury by the complainant cannot be regarded to have been accidental.
Ld. Counsel appearing for the complainant, on the other hand, urged that the narration goes to indicate that the incident was unforeseeable and so the injuries sustained by the complainant has to be regarded to have been an accidental one. To strengthen his such submission the Ld. Counsel made reference to a decision of the Hon’ble Gauhati High Court made in the case of New India Insurance Company Ltd. – vs- Ajoy Medhi & Anr. reported in 1996 ACJ 727.
In that case referred to by the Ld. Counsel for the complainant the Hon’ble Gauhati High Court appears to have recorded (at Para-10 of the judgement) an observation which goes as under :-
“*** It is settled law that the term ‘accident’ means ‘some unexpected and unforeseen event’, or ‘unlooked for mischief’. If the injury or death from the point of view of the workman, who suffers or dies, is unexpected or undersigned on his part, then that injury would be by accident ***”
In the case reported in 2009(1) CPR 292 (Oriental Insurance Company Ltd. and Anr.–vs – Sukhdev Kaur and Ors.) Hon’ble Punjab State Commission upheld District Forum’s order granting benefit basing upon the insurance policy term over the death by accident. In that case Hon’ble State Commission found that the death was caused by strangulation and that it was neither a natural death nor a case of suicide.
The question as to whether the death caused due to murder of the insured, can be regarded to be “accidental death” came up for consideration before the Hon’ble National Commission in the case of ‘Maya Devi –vs- Life Insurance Corporation of India’ reported in III (2008) CPJ 120 (NC). In that case the Hon’ble National Commission having made advertence to the meaning of word “accident” appearing in Halsbury’s Laws of England and having found in the case dealt with therein that the insured had not been a party to the murder in the sense that there had not been any provocation on the part of insured and that immediate cause of the bullet injury was not the result of any willful act of the insured, held that the death of the insured was accidental.
Here in FIR (copy filed by the complainant as also by OPs 2 & 3) it has been the narration that on 22.12.07 at about 6:00 P.M. the complainant having had held talks with his wife – the informant at the latter’s shop left such shop and that soon afterwards the informant heard sounds of scuffling, went out and found the complainant being struck by sharp cutting weapons by a number of miscreants and being attempted to be shot. The complainant fled away to a house but the miscreants hit upon the complainant at that other place too resulting in severe injuries upon him.
From the said narration in the FIR it may at best be regarded that there took place a scuffling in between the complainant and the assailants but from such narration it cannot readily be regarded that in the incident there was provocation on the part of the complainant or that it was the result of an willful act on the part of the complainant or that the complainant could foresee the incident. Such being the position having kept in view the decision referred to by the Ld. Counsel for the complainant as also the other two decisions mentioned hereinbefore by us, it cannot be regarded that the injury sustained by the complainant was an accidental one. From a consideration of the circumstances it has to be inferred that the sustaining of injury by the complainant was an accidental one.
Here we have already found that the complainant having sustained the injury on 22.12.07 attended the hospital at Balurghat on that date and that thereafter he received indoor treatment during 23.12.07 to 15.1.08 during which the amputation was done below the left wrist. The original ‘medical examination certificate for handicapped person’ issued from the office of the Superintendent, Dist. Hospital, Dakshin Dinajpur (attested xerox copy of which was received at the end of the OP 2 on 17.4.08 through OP 1 as is apparent from the copy of OP 1’s letter dt. 11.4.08 addressed to the OP 2 furnished by the OP 1) virtually goes to show that the complainant suffered 60% permanent disability in view of amputation below forearm. It can thus be regarded that the said disability was ultimately as a sequel to the injuries sustained by the complainant in the incident on 22.12.07 which we have found as an accidental one from the point of view of the complainant. Failure to grant of benefit under the policy should thus be viewed to have been a deficiency in service on the part of the OP 2.
Point No.2
Let us now see whether the reliefs sought for should be granted.
In course of hearing Ld. Counsel for the complainant urged that as the complainant has become 60% disabled person, he should be allowed to get 60% of the sum insured under the policy as also the costs of treatment incurred by the complainant. Submission of the Ld. Counsel appearing for the OPs 2 & 3, on the other hand, was that as the entire hand has not been severed, the complainant should be allowed to get, if at all, an amount less than 50% of sum insured since under the heading “benefit” printed on the backside of the policy certificate it has been stated that the benefit for loss of one entire hand would be 50% of the sum insured.
“Benefit” shown on the backside of the policy certificate, we think, can be regarded to have been a stipulation of the contract of insurance. It has thus been a stipulation that benefit for loss of physical separation of one entire hand would be 50% of the sum insured. As per the Item No.4 of Part-II of Schedule-I of the Workmen’s Compensation Act percentage of loss of earning capacity for loss of one hand has been assessed to be 60%. In the situation we think stipulation in the contract of insurance should prevail. We thus think that it would be proper not to allow exceeding 50% of the sum insured towards the benefit under the policy.
As per Concise Oxford English Dictionary 11th Edition “hand’ means ‘ end part of the arm beyond the wrist’. In the disability certificate issued from the Dist. Hospital, Dakshin Dinajpur it has been stated that the amputation was below the forearm. From a consideration of the circumstances, we think it proper to allow 50% of the sum insured under the policy to be paid for the loss of limb suffered by the complainant in this case.
In the absence of any indication in the policy certificate as to the payment of treatment expenses by way of benefit under the policy, we do not deem it proper to allow any amount to be paid to the complainant by way of treatment expenses.
In the complaint the complainant sought for interest @ 9% p.a. from 22.12.07 – the date of complainant’s sustaining of injury. The complainant does not appear to have brought on record the date on which handicapped certificate or its copy was sent to the OP 2. Copy of OP 1’s letter dt. 11.4.08 filed by the OP 1 goes to show that the attested xerox copy of handicapped certificate reached OP’s 2 office on 17.4.09. The complainant brought the complaint on 26.5.09. From a consideration of the circumstances, we think it proper to allow interest @ 9% p.a. to be paid w.e.f. the date making of the instant complaint.
In the circumstances we think it proper to allow the complainant to be paid a sum of Rs.1,500/- as costs of this proceeding.
Here no deficiency in service on the part of OP 1 or of OP 3 has virtually been alleged.
As the policy certificate was issued by the OP 2 and not by OP 3, we think it proper to direct the OP 2 to make the said payment. We thus decide the Point No.2 by holding that the OP 2 should be directed to pay to the complainant 50% of the sum insured under the policy for the complainant’s having suffered loss of limb arising out of an incident of accident and interest over the said amount @ 9% p.a. w.e.f. 26.5.09 – the date of institution of this C.C. case and a further of sum of Rs.1,500/- as costs of this proceeding.
In the result, the complaint succeeds.
In the instant case service of notice upon the OPs was completed on 2.6.09. Instant proceeding is thus getting disposed of after about six months since the completion of the service of notice. This is, as it appears from the case record, mainly in view of OP 2’s taking much time for presentation of written version in the case.
Under such circumstances, it is.
O R D E R E D
That the complaint u/s 12 C.P. Act brought by the complainant Sri Biswanath Das on 26.5.2009 is allowed on contest.
The OP 2 shall pay to the complainant 50% of the sum insured under the policy standing in the name of the complainant by way of benefit under the policy in view of complainant’s sustaining loss of limb from accidental injury within a period of 60 days from the date of service of copy of this order upon it.
The OP 2 shall further pay to the complainant by the aforesaid period interest over the above stated amount @ 9% p.a. for the period from 26.5.09 – the date of institution of the instant Consumer Complaint Case till actual payment and a further sum of Rs.1,500/- by way of costs of this proceeding.
In the event of failure in making payment aforesaid or any part thereof, the complainant shall have the liberty to put this order in execution.
Let plain copies of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
(B. Niyogi)
President
We concur
(Swapna Saha)
Member
(S.K. Ghosh)
Member
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