West Bengal

Birbhum

CC/73/2017

Asim Kumar Chakraborty, S/o Lt. Siddheswar Chakraborty, - Complainant(s)

Versus

1) National Insurance Co. Ltd., represented bySr. Divisioal Manager, Division-CII, - Opp.Party(s)

Sanjit Kr. Acharya

29 Feb 2024

ORDER

Shri Sudip Majumder.   President in Charge.

            The complainant files this case U/S 12 of the Consumer Protection Act, 1986. The fact of the case in brief is that Complainant/Petitioner Asim Kumar Chakraborty is an S.I. of police under the Govt. of West Bengal, posted at Suri Police Line, Dist. Birbhum.

            It is the case of the complainant that on 19/01/2016 the complainant left suri police line for Shantiniketan P.S. for law and order duty in connection with the visit of Hon’ble Chief Minister of West Bengal. On the way at about 5.30 hrs. near “Debagram Rice Mill” on Bolpur-Suri Road under Panrui P.S. one Dumper Vehicle bearing Registration No. WB-41C-5154 coming from opposite side dashed the said Police vehicle bearing No. WB 53B-0474 and as a result the complainant lost his left eye. The complainant was treated at Vivekananda Hospital Pvt. Ltd., Durgapur. Thereafter, the Medical Board of Suri Sadar Hospital declared him as one eyed patient and permanent disabled person and in that respect physical handicapped certificate has been issued by the board of Doctor, signed by Dr. Prabhat Kumar Simlandi.

            It is the further case of the complainant that the West Bengal Police purchased Mediclaim policy from the OP Insurance Company for all the police personnel and their family. That in that policy there is a benefit for personal accident and sum assured is Rs. 3,00,000/ for P.A.

            The OP Insurance Company reimbursed the expenses for the treatment of the complainant as per terms and condition.

 

           

Panrui P.S. Station started case being No. 6/16 dated 22/01/20216 U/S 279/337/338/427 I.P.C. The Superintendent of Police, Birbhum reported the matter to the Inspector General (Welfare), West Bengal, Bhabani Bhawan, Alipore, for payment of compensation to S.I. Asim Kumar Chakraborty of Birbhum by his letter vide Memo No. 1326/RO dated 26/09/2016.

Thereafter, M.S. Poonia, Inspector General of Police (Welfare), West Bengal sent a letter requesting the OP Insurance Company to take necessary arrangement for settlement of the PA claim in respect of SI, Asim Kumar Chakraborty of Birbhum as per terms and condition. Inspite of receiving the above referred letter the OP Insurance Company did not settle the claim arbitrarily.

            Hence, after finding no other alternative, the complainant is compelled to file this case before this Forum/Commission for proper reliefs and prays:

1. To pass an order directing the OP to pay Rs. 3,00,000/ as personal accident claim to the complainant.
2. To pass an order directing the OP to give interest @ 12% p.a. on Rs. 3,00,000/ since the date of claim preferred till realization of the claim.
3. To pass an order directing the OP to pay Rs. 1,00,000/ as compensation for mental agony and harassment.
4. To pass an order directing the OP to pay Rs. 10,000/ as litigation cost.
5. For other relief/reliefs.

            The OP/National Insurance Company Ltd. filed their written version, OPW, written notes on argument and also files some relevant documents with Firisti before us.

            The OP/National Insurance Company Ltd. stated in Para 3 of their Additional written version as “….that petitioner filed another claim case before the Motor Accident Claim Tribunal, Birbhum being M.A.C. Case No. 251/16 (Suri) [Sri Ashim Kumar Chakraborty –Vs.- Cholamandalam M/S General Insurance Company Ltd.] subsequently transferred & pending before the Fast Tract Court, Suri, Birbhum in selfsame cause of action and claiming his injuries relating to his selfsame accident on 19/01/2016 (Panrui P.S. Case No.- 6/2016).”

            The OP/National Insurance Company Ltd. also stated in page 4 of their written notes on argument that the said petitioner already received the awarded/compensation money of Rs. 11,33,200/- along with interest @ 6% P.A. from the date of filing of this Motor Accident Claim Case from the insurance company under IRDA.

            Copy of Court information dated 24/12/2018 also filed by the Ld. Advocate for the OP sides.

            So, petitioner has already received money for his injuries in selfsame matter & cause of action i.e. in the captioned D.C.F. Case No.- 73/2017 Suri, Birbhum, W.B.

 

Copy of Court information dated 24/12/2018 is annexed here with for kind perusal of this Commission.

Thus, the OP sides prays for dismissal of the case with cost.

            Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and those are compared with original documents. Thereafter, respective Ld. Advocates for both sides made oral argument in support of their case.

Heard Ld. advocates for both sides.

 Considered.

Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, WB Police purchased the same on payment of proper fees and which covered personal accident insurance policy. Thus, the complainant was a consumer under the OP/National Insurance Company Ltd. and the OP/National Insurance Company Ltd. is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 i.e. Rs. 20,00,000/. OP No. 2, Suri Branch situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 19/06/2016 and the case has been filed on 01/09/2017 and as such it can be said that the complainant has  filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

In the instant case, the complainant lost his left eye on 19/01/2016 during on duty. The West Bengal Police department purchased a Mediclaim policy from the OP Insurance Company for all the police personnel and their family. This policy also covered personal accident. The sum assured of this

 

policy was Rs. 3,00,000/- and the premium of the said policy was deducted from the salary account of the complainant.

It is stated in clause 3 of the terms and condition of the said policy as:

In case of accident claim (Only for employee):

One organ disable for disable in one eye .. claim should be 100% of the sum assured.

It is necessary to mention that the complainant had already received the awarded money Rs. 11,33,200/ along with interest @ 6% p.a. from the date of filing of MAC Case No. 251/16 (Suri) from the OP/Cholamandalam General Insurance Company Limited against the same accident.

Ld. Advocate for the complainant argued that the claim which the complainant had already received from OP side that was the third party insurance claim. But, the present dispute as against my personal accident claim which is covered my insurance policy. Though the incident or accident was same, the complainant is entitled to get his legitimate claim.

Ld. Advocate for the OP side argued on the point, the accident or incident or cause of action for the two claims i.e. MAC Case No. 251/16 (Suri) and DCDRF Case No. 73/2017, Suri, Birbhum are the same, the petitioner has already received the awarded/compensation money of Rs. 11,33,200/- from another OP/Cholamandalam General Insurance Company Limited. So, the complainant is not entitled to get the claim in the instant case.

Now, it is the question before this Commission that in the instant case, whether the complainant may be entitled to get the claim against OP/National Insurance Company Limited or not.

            From the above discussion this Commission is of the view that the complainant/petitioner had already received Motor accident claim that was a third party insurance claim under the Motor Vehicle Act, 1988. In MAC case the insured was the owner of the vehicle and insurer was the Cholamandalam General Insurance Company Limited. Thus, the owner of the vehicle paid the premium in respect of his vehicle to the Cholamandalam General Insurance Company Limited and that’s why it was the obligation of Cholamandalam General Insurance Company Limited to pay the motor accident claim to third party. In that MAC case, Asim Kumar Chakraborty was not insured of the said policy, he received the insurance claim as he was the third party in MACC under the Motor Vehicle Act, 1988.

            In the instant case, the complainant filed this case against OP/National Insurance Company Ltd. before this Commission for his personal accident claim, as he lost his left eye during the same accident. The policy was purchased by the complainant/Asim Kumar Chakraborty and the premium for the said policy was deducted from his salary account. Hence, the complainant is insured and it is the obligation of insurer/National Insurance Company Limited to pay the insurance claim to the complainant, as it was a separate contract between the insured/complainant, Asim Kumar Chakraborty and insurer/OP, National Insurance Company Limited.

 

            Hence, the OP/National Insurance Company Limited had given an offer for purchasing their policy to the insured/complainant and the complainant accepted the offer and purchased the same policy and paid the consideration money as premium on regular basis. Thus, a contract made between two parties. As per terms and conditions of the said policy....one organ disable.... for disable in one eye ….claim should be 100% of the sum assured.

Sec. 3 of the Consumer Protection Act, 1986 or Sec. 100 of the Consumer Protection Act, 2019 shows that “Act not in derogation of any other law.... The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

            Jurisdiction of Consumer Fora vis à vis specific remedies.... Having due regard to the scheme of the Act and to protect the interest of the consumers, which the Act aims at, the provisions of the Act are to be interpreted broadly, positively and purposefully so as to give additional and/or extended jurisdiction, particularly when sec. 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar … Secretary, Thirumurugan Co-operative v.          M. Lalitha (2004) 1 SCC 305.

            We find in Indian Constitution Law by M P Jain, Eighth Edition Page No. 1139 as “Article 20(2) is limited to indictment before a criminal court. Therefore, Article 20(2) does not bar proceedings before a civil court for disobedience of an injunction along with criminal proceedings as the former are not in the nature of criminal proceedings.”.... Bachcha Lal Vs. Lalji, AIR 1976 All 393.

In the light of observation made by their Lordship in the above decision we find us safe to follow them and apply the ratio in the present dispute.

Therefore, payment made for third party insurance claim in MACC under Motor Vehicle Act does not bar to file a case under Consumer Protection Act.

            Question of ‘Res Judicata’ or ‘Double Jeopardy’ is not applicable here.

            However, at the time of writing Judgement under the Consumer Protection Act, the question of “Just Compensation” and “Unjust Enrichment” should be considered.

It is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1)(g) of C.P. Act, 1986 as well as unfair trade practice as per     Sec. 2(1)(r) of C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubt.

Point No. 4:

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

 

 

 

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

As per terms and conditions of the said insurance policy the complainant is entitled to get the claim as 100% of the sum assured i.e. Rs. 3,00,000/-.

• We find in Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• We also find in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. from the date of filing of this case.

            In our opinion, 9% interest on insurance claim is enough as relief in form of compensation as well as litigation cost. Hence, additional relief in form of compensation and litigation cost should not be awarded to the petitioner.

Hence, it is,

O R D E R E D,

                           that the instant C.F. Case No. 73/2017 be and same is allowed on contest with cost.

The  OP Nos. 1 & 2/National Insurance Company Limited are jointly and severally directed to pay the sum assured of  Rs. 3,00,000/- (Three lakh only)  along with interest thereon @ 9% per annum calculating on and from 01/09/2017 (i.e. from the date of filing of this case) till realization.

The entire decree will be complied by the OP members within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.