IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 52/S/2009 DATED : 31.12.2009.
BEFPRE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT : SMT SUKLA ROY,
W/O Late Bisweswar Roy,
Aged about 30 years, resident of Subhas Pally,
N. S. Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling and
now at C/O BISWESWAR STORES,
E/61 (R) Bidhan Market, P.O. & P.S.- Siliguri,
Dist.- Darjeeling
O.Ps. 1) : THE NEW INDIA INSURANCE COMPANY,
Malhotra Tower, Hill Cart Road, Siliguri,
Dist. – Darjeeling – 734 401.
2) : THE MANAGER, Of
The New India Insurance Company,
Malhotra Tower, Hill Cart Road, Siliguri,
Dist. – Darjeeling – 734 401.
3) : THE GOLDEN TRUST FINANCIAL SERVICES,
Burdwan Road, Near Howrah Petrol Pump &
Jalpaiguri Bus Stand, Siliguri, Dist.- Darjeeling.
4) : THE MANAGER OF
The Golden Trust Financial Services,
Burdwan Road, Near Howrah Petrol Pump &
Jalpaiguri Bus Stand, Siliguri, Dist.- Darjeeling
FOR THE COMPLAINANT : Sri Phalguni Chatterjee, Advocate.
FOR THE OPs No. 1 & 2 : Sri Kanak Lal Kundu, Advocate.
FOR THE OPs No. 3 & 4 : Sri Nilay Chakraborty, Advocate.
J U D G E M E N T
This is a case under Consumer Protection Act, 1986 for realization of insured sum together with interest and compensation.
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The case of the complainant ruins as follows :-
That the complainant is a married wife of Late Bisweswar Roy who was a businessman running a business under name and style as Bisweswar Stores at E/61 (R), Bidhan Market, Siliguri. That the husband of the petitioner insured himself under the Janata Personal Accident Insurance Policy in the New India Assurance Company Ltd., through Golden Trust Financial Services on 23.03.2002 being Policy No. (S) 512301/47/01/02188 for a sum of Rs.4,00,000/-valid up to 22.03.09 (Midnight).
That the husband of the complainant expired in road accident on 12.05.08 which was informed to the OPs No. 3 & 4 on 31.07.2008. The complainant also furnished al relevant documents to the OPs No.3 & 4 who accordingly forwarded those documents to the OP No.1 & 2 on 05.01.2008. The complainant visited to the Office of the OPs and requested to consider her claim under the policy but the OPs did not pay any heed. So, the complainant served a legal notice to the OPs on 28.02.09 and despite service of notice they did not care to disburse the insured sum under the policy. Hence this case supported by affidavit.
OPs No.3 & 4/Golden Trust Financial Services contested the case by putting W/V denying each and every allegation as made therein with a specific defence that Bisweswar Roy since deceased was a Field Worker of OP No.3 & 4 who got Janata Personal Accident Insurance Policy for Rs.4,00,000/- under the New India Assurance Company Ltd. for 23.03.02 to 22.03.09 under the Group Insurance Scheme being facilitated by the said OPs No.3 & 4. A MOU was executed on 30.12.1998 by and between the OP No.1 & 3 allowing to extend Janata Personal Accident Policy cover to their field worker and their family members under the Group Insurance Scheme.
Under the MOU OP No.3 used to collect premium from the proposer and to remit the same to OP No.1 by a consolidated cheque with a list of insured persons apart from this there had been no other liability to be borne by the OP No.3. The OP No.2 & 3 under the MOU shall not have any liability with regard to the settlement of claim and the OP/New India Assurance Company Ltd. will be solely and directly responsible in case of any claim contingent upon death, permanent disability and injury of the insured persons subject to terms, conditions and warranty. The OP No.3 & 4 always stand by the side of the insured persons and on receiving any proposal form their duty is to submit before the Insurance Company for their appropriate decision. Accordingly, the OP No.3 & 4 forwarded the prescribed form to the OP No.1 for early settlement of the claim on 05.08.08. Even letter of reminders was also issued for settlement of the claim as made by the complainant.
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It is further alleged that they have no latches or deficiency of service on their part but it rests upon the OP No.1 & 2.
The instant W/V was filed supported by affidavit.
The New India Assurance Company Ltd. contested the case by putting W/V denying each and every allegation as made therein with a specific defence that the case is not maintainable.
It is specifically pleaded that the case is bad for mis-joinder or non-joinder of necessary parties.
The owner of the truck bearing No.WB-59/0690 is a necessary party.
It is specifically pleaded that the complainant did not submit her claim to the OP within one calendar month after the event of the alleged incident. The mandatory provision has not been complied with by the complainant and did not furnish the particulars of her case within the prescribed period for which the claim is not entertainable in law. The complainant is not entitled to get the insured sum or any amount towards compensation for the economical crisis. It is further alleged that the terms of the contract between the insured and the insurer and their relationship was created by an Insurance Contract. The complainant being beneficiary of the policy was aware of the terms and condition as printed in the prescribed form. Even then the claim has not been made within one calendar month for which mandatory provision has not been complied with. As the terms and conditions have not been fulfilled the OP No.1 & 2 have no liability to pay any claim as claimed for and as such the case is liable to be dismissed with cost.
The W.V. has been submitted supported by affidavit.
Upon consideration of pleadings of the respective parties the following issues are framed for adjudication :-
1) Is the case maintainable ?
2) Is there any deficiency in service or Unfair Trade Practice on the part of the OPs ?
3) Is the complainant entitled to get any compensation as prayed for ?
4) To what other relief/reliefs as sought for ?
Points No.1 & 4.
All these points are taken up together as they are interlinked and also for convenience.
The Ld. Advocate on behalf of the OP No.1 & 2 advanced argument that the terms and conditions as embodied in the policy in question has not been complied with. Under
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the contract in between the insured and the insurer claim intimation is to be lodged within one calendar month after the event. Even no explanation or reason has been assigned for cause of delay. When the mandatory provision has not been complied with the claim is not entertainable. The Insurance Company could not get any opportunity to examine the dead to satisfy itself through IRDA Licensed Investigator about the occurrence or cause of death. When no notice was issued within one calendar month to the Insurance Company the OP No.1 & 2 the relief can not lie against the Insurance Company/the OP No.1 & 2. In support of their contention reliance has been placed upon 1996 CPJ Vol.-III 514; 2003 CPJ Vol.-I 442 and 2004 CPJ Vol.-II 177.
In 1996 CPJ 514 in the case of M/S Firm Fresh Foods Pvt. Ltd. Vs Branch Manager, Oriental Insurance Co. Ltd. it has been held that the case has been determined on the affidavit of the Insurance Company exclusively but the main document which is material and relevant for determining the point of controversy between the parties as to whether the risk of accident is also covered under the policy is the terms of the contract between the insured and the insurer. The parties initially are governed by the terms of the contract entered into by the insured with the insurer and the payment of premium is secondary and non-appreciation of this aspect of the matter has led to the error.
In the case of Premlal N. Ratan Vs New India Assurance Company Ltd. reported in 2003 Vol.-I CPJ 442 the Hon’ble State Commission, Maharashtra held that after alleged accident complainant did not report to the Insurance Company immediately or to the Police and no explanation is offered for the same. Thereby the Company can not be held to be deficient. Insurance Company is a public body and deals with the monies of the public and it has to be more cautious and circumspect in the scrutiny of the claim made to it in the matters like this and exercise of such caution and pre-caution would certainly can not be construed as unreasonable or unfair so as to constitute deficiency.
In the case of P. Pravabati Vs National Insurance Company Ltd. reported in 2004 CPJ Vol.-II 177 it has been held information furnished to Company after a lapse of more than six months the mandatory provisions not followed.
The Ld. Advocate on behalf of the OP No.1 & 2 categorically submitted that no document is forthcoming from the end of the complainant to show that the complainant ever served any notice to the OP No.1 & 2 or intimate the event within one calendar month or assigned any reason for causing delay of alleged intimation. Thereby in view of the aforesaid decisions when the mandatory provision has not been complied with the claim is not entertainable and the remedy if any lies otherwise not before the Forum.
On the other hand the Ld. Advocate on behalf of the complainant advanced
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argument that the date of death of the insured was duly intimated to the OP No.3 & 4 through letter dated 24.06.08 and the OP No.1 received the claim form from the complainant on 31.07.08. Since the death of the insured, the husband of the complainant took place due to road accident and it was not within the knowledge of the complainant about the policy matter for which it has not been intimated to the OP No.1 in time. When the policy in question was a valid one and the death took place within the valid coverage of the policy and when the complainant became mentally shocked due to sudden death of her husband and when she was not aware of the policy in question the OP No.1 & 2 can not repudiate the claim of such plea of causing delay or not informed/intimated in time.
Let us now consider the case of the parties to the instant case.
Admittedly, Bisweswar Roy since deceased, the husband of the complainant was an insured who obtained policy under Janata Personal Accident Insurance Policy in the New India Assurance Company Ltd. through Golden Trust Financial Services.
Admittedly, the said policy was from 23.03.02 to 22.03.09 for a sum of Rs.4,00,000/-.
Admittedly, under the said policy Smt. Sukla Roy, the wife of the deceased policy holder is the nominee.
It is evident that the said insured Bisweswar Roy since deceased died on 12.05.08 at North Bengal Medical College Hospital compound.
It is further evident that the death of said Bisweswar Roy took place by way of road accident. Post Mortem Report dated 13.05.08 supports the case of the complainant about the said death by accident.
Charge Sheet dated 12.05.08 also goes to show that the death of Bisweswar Roy took place by road accident.
The original Claim Form dated 15.06.08 and copy of the letter dated 24.06.08 as filed by the OP No.3 goes to show that the complainant submitted claim form before the Golden Trust Financial Services on 31.07.08.
The copy of the letter dated 24.06.08 goes to show letter of request for settlement of the claim under the policy bearing No.512301/47/01/02188 dated 23.03.02 was sent to the New India Assurance Company Ltd. through Golden Trust Financial Services who received the same on 25.06.08 by putting its official seal and signature. It further reveals that the said Golden Trust Financial Services made a request by letter dated 05.08.08 to the New India assurance Company Ltd. for settlement of the claim file of Late Bisweswar Roy and the said letter also reflects that all the documents were sent to the New India
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Assurance Company Ltd. along with such letter of request and the same was received by the New India Assurance Company Ltd. on the self same date i.e. 05.08.08 by putting its official seal and signature.
The letter dated 24.10.08 issued by Golden Trust Financial Services to the New India Assurance Company Ltd. goes to show request was made for early settlement of Janata Personal Accident claim and such letter was received by the New India Assurance Company Ltd. on 24.10.08.
It further reveals the complainant by her letter dated16.12.08 made a request to the New India Assurance Company Ltd. for settlement of the claim under the said policy and the same was received by the New India Assurance Company Ltd. on 16.12.08 by putting its official seal and signature. Subsequently, legal notice was sent by the complainant by letter dated 08.02.09 to the New India Assurance Company Ltd. and said letter was duly served upon the New India Assurance Company Ltd.
The sole objection of the Insurance Company/the OP No.1 & 2 that terms and condition as embodied in the reverse page of the contract has not been complied with and under the contract it would be intimated within one calendar month.
Admittedly, the death of the insured Bisweswar Roy took place within the valid coverage of the insurance policy.
In the case of the M/S Firm Fresh Foods Pvt. Ltd. Hon’ble State commission, Himachal Pradesh held that the parties essentially are governed by the terms of the contract entered into by the insured with the insurer and the payment of premium is secondary and non-appreciation of this aspect of the matter has led to the error. The facts of the case under reference and the facts of the case in hand is not matching with each other. Therefore, this decision is not applicable in the instant case.
In the case of Premlal N Ratan as referred above it reveals that the vehicle as referred in the said case has been removed from the alleged site of accident without informing the Insurance Company. Ultimately, the claim was repudiated by the Insurance Company. Thereby, story of accident creates a legitimate doubt for which the Hon’ble State Commission, Maharashtra came to a findings that after alleged accident when complainant did not report to the Insurance Company immediately or to the Police and no explanation is offered for the same the Insurance Company was not held to be deficient. But facts of the said case as referred above and the facts of the case in hand are quite separate and different for which the said decision is also not applicable in the instant case.
In the case of P. Pravabati the information was given after a lapse of more than six
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months. In that case the insured sustained chest injury while he was getting down from the up stairs of his house and ultimately died. The Death Certificate was issued by a Private Medical Practitioner and no Post Mortem was held. Their Lordship held on consideration of the condition under the contract that the whole idea of this condition seems to be that the Company shall have an opportunity to examine the insured/dead to satisfy itself about the occurrence. The Post Mortem should be conducted in case of death to arrive at the cause of death and information must be given within 14 days in writing after demand. Thereby, the Hon’ble State Commission held the condition referred to above is mandatory. But in the instant case just after the incident of accident the injured was taken to Anandalok Nursing Home wherein his death took place. Such incident took place on 12.05.08 and the matter was duly informed to the concerned P.S., Bidhan Nagar and the registered the same under G.D. Entry No.528 and started a Phansidewa P.S. Case No.96/08 dated 12.05.08. So, it is evident that G. D. Entry with regard to the alleged accident was duly informed to the concerned P.S. then and there without causing any delay. Accordingly, Charge Sheet was submitted by the concerned P.S. and Post Mortem was held where in it has been categorically stated death of the deceased insured took place due to the effect of the injury.
It is true that the complainant being the nominee and legal heir of deceased insured did not inform the event to the OP No.1 & 2 in time. But the same was duly intimated to the OP No.3 & 4/Golden Trust Financial Services Ltd. on 31.07.08 and all the documents as referred above goes to show that the Golden Trust Financial Services duly intimated the said incident to the New India assurance Company Ltd. then and there and repeated request was made for settlement of the claim lodged by the complainant concerned. It is further evident that the policy was taken through Golden Trust Financial Services who is the authorised agent of the New India Assurance Company Ltd. under the MOU. There is no denial in this regard. After receiving the intimation from the Golden Trust Financial Services no proper step has been taken on the part of the OP No.1 & 2 or to take effective measures for settlement of the claim. When the incident has been investigated by the Police Authority i.e. State Investigation Machinery just after the occurrence and when there is no denial on the part of the OP No.1 & 2 about the nature of death or the nature of accident the ground of causing delay in intimation about the event violating the terms and condition under the contract is nothing but a lame excuse for not consideration of the claim of the complainant. It is not the case of the OP No.1 & 2 that they are not aware about he alleged incident. But it is evident that the Golden Trust Financial Services duly informed the incident and sent all the original documents
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to the OP No.1 & 2 even then they did not take any steps to satisfy the claim of the complainant. So, circumstances, goes to show that despite having knowledge of the OP No.1 & 2 they did not take proper steps to consider the case of the claim as made by the complainant and their such silence amounts to deficiency in service on their part.
In this regard Hon’ble National Commission in the case of Bijaya Shrimp Farms and Exports Ltd. Vs New India Assurance Company Ltd. reported in 2002 CPJ Vol.-III 293 the Hon’ble national commission held that requirement to give claim intimation within 12 hours directory not mandatory.
In 2008 CPJ Vol.-II 483 Hon’ble State Commission, Delhi clearly stated provision regarding delay in intimating insurer or lodging complaint with police directory not mandatory in nature. In that decision Hon’ble State Commission further held to that effect what is relevant is whether any such accident or occurrence has taken place or not and whether the insured has played fraud or gave wrong information to take undue benefit against the Insurance Policy. In the instant case there is no such defence that fraud has been practiced upon the Insurance Company in order to obtain a claim under the Insurance Policy and no such incident took place at all.
Further it is also to be considered whether there was wilful negligence remained on the part of the complainant concerned. But in the instant case the complainant being the beneficiary categorically stated in her evidence that she was not aware about the existence of the policy in question made by her husband. So, considering the circumstances, there is no wilful negligence on the part of the complainant concerned in lodging the claim at delay.
Considering all the facts and circumstances, when the complainant being the widow of the deceased insured was under mourn due to sudden death of her husband it is unexpected for her to search out all relevant documents as left by her husband just after the incident in order to lodge any claim against those documents. Therefore, considering all the facts and circumstances, in the light of our reasoning we are of the view that the claim as lodged by the complainant is to be dealt with properly and in the manner of repudiation as taken in the W/V by the OPs is not at all justifiable.
This is a case for non-payment of Insurance money in time by the Insurance Company. Whether such service amounts to deficiency of service as provided under Section 2(1)(o) of the Consumer Protection Act, 1986 is to be considered. There is no argument on the part of the OP denying the complainant as consumer under the Act.
Section 2(1)(d) defined ‘Consumer’ which means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods.
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Section 2(1)(d)(ii) provides for hires or avails of any services for a consideration which has been paid or promised or partly paid.
Here in the instant case the service was rendered by the insured on consideration for his life risk. Subsequently, the insured died within the valid coverage of the Insurance Policy. The complainant is a beneficiary of the insured. Therefore, when service was taken/hired or availed of on consideration the complainant can be treated as ‘Consumer’ as provided under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. When the claim of the complainant has been denied by the OPs No.1 & 2 the nature of dispute comes within the purview of 2(1)(e) of the said Act treating as ‘Consumer Dispute’.
Further in the light of our reasoning it has already been held that the manner of service as rendered by the OPs No.1 & 2 in the form that the claim form has not been submitted before them in time and the event i.e. death of the insured by accidental death/road accident has not been intimated within one calendar month just after the incident and there was much delay to communicate it. Even it has not been duly intimated to the OP No.1 & 2 save and except legal notice thereby the complainant has violated the terms and condition. But in the instant case admittedly the insured obtained the policy through OP No.3 & 4/Golden Trust Financial Services who just after receiving the information intimated the OP No.1 & 2 for settlement of the claim but no scrap of paper has been filed to show that after receiving such intimation from their sister concern/GTFS they have taken any steps for settlement of the claim as lodged by the complainant. This sort of inaction on the part of the OP No.1 & 2 amounts to negligence on their part and also they are in deficient in service. So, when any fault or imperfection or shortcoming or inadequacy in the quality of the service transpires obviously it would come within the ambit of deficiency as provided under Section 2(1)(g) of the Consumer Protection Act, 1986.
Further the nature of service as rendered by the OP No.1 & 2 it amounts to short coming of service which defines as service of any description which is made available to potential users and thereby the nature of service as rendered by the OP No.1 & 2 and despite knowledge of the incident of sudden death of the insured they have not come forward to extend their hands by settlement of the claim lodged by the complainant. So, all those circumstances leads the Forum to hold that such nature of service comes within the purview of deficiency of service as provided under Section 2(1)(g) & (o) of the Consumer Protection Act, 1986.
In the instance case it has been urged that owner of the vehicle/truck is a
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necessary party. But considering the nature of dispute involved in the instance case we do not find any justification to accept the view as expressed by the Ld. Advocate on behalf of the OP No.1 & 2.
Under this facts and circumstances, in the light of our reasoning as made hereinbefore we are of the view that the complainant is entitled to get award as prayed for.
Therefore, the complainant is entitled to get the insured sum of Rs.4,00,000/- from the OPs under the Policy No.512301/47/01/02188 having valid coverage for the period 23.03.02 to 22.03.09.
Further we are of the view that the complainant is further entitled to get a sum of Rs.15,000/- towards mental pain, agony and harassment caused by the OPs in the manner as stated hereinbefore.
In the result, all the issues are decided in favour of the complainant in part.
Hence, it is,
O R D E R E D
that the Consumer Case No.52/S/2009 is allowed in part on contest with cost of Rs.1,000/-.
The complainant is entitled to get a sum of Rs.4,00,000/- (Four Lakh rupees) only from the OPs who are jointly and severally liable to pay the said amount.
The complainant is further entitled to get a sum of Rs.15,000/- (Fifteen Thousand rupees) only from the OPs towards mental pain, sufferings and harassment.
The OPs are directed to pay the Awarded sum of Rs.4,00,000/- (Four Lakh rupees) together with Rs.15,000/- (Fifteen Thousand rupees) only as compensation within 45 days from the date hereof failing which the amount shall carry interest @ 9% per annum from the date of institution of the instant case i.e. 18.06.2009 till the realization of the said sum.
In case of default, the complainant is at liberty to put the decree in execution.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
- MEMBER - -MEMBER - -PRESIDENT-
Tags: INDIA INSURANCE