O R D E R
(By Smt K.Vinaya Kumari, Member)
1. This is a complaint filed U/Sec.12 OF Consumer Protection Act, 1986.
2. The brief facts of the complaint are:
3. The complainant is the wife of the deceased insured Sri. Beemari Chinna Pochaiah. During his life time Sri. Beemari Chinna Pochaiah was a member of agricultural Co-Operative Society of Bibipet Mandal, Nizamabad Distirct and was issued Kisan Credit Card Cum pass book Vide No. 3649. The KCC account holder of Op No.2 are covered under Personal Accident Scheme issued by Op No. 3, the insurance company. The insured amount due to accidental death is Rs. 1,00,000/-. The insurance premium was paid by the KCC holder.
The complainant husband Sri. Beemari Chinna Pochaiah who is KCC member of the Op No. 1 was included in the Personal Accident Master Policy issued by Op No. 3 vide Policy No. APG/10177896/51/04/C55123 valid from 01-02-2010 to 30-04-2011.
Unfortunately the complainant husband died on 17-04-2011 due to motor vehicle accident. The matter was reported to the police and FIR was registered vide No.87/2011 U/s 304-A of IPC.
The complainant being the wife and nominee of the diseased submitted duly filed in claim application with all the necessary and required documents for processing the claim to op No. 1.
Inspite of repeated oral demands made by the complainant the Ops did not settled the claim of the complainant which is deficiency of the service on part of Ops 1 to 3 to the complainant.
Therefore approached the forum with a prayer to direct Ops 1 to 2 to pay the insured amount of Rs. 1,00,000/- under the policy, compensation of Rs. 50,000/- towards pain suffering and mental agony and also to pay Rs. 26,000/- towards damages @ 24% per annum interest on the policy amount from 17-08-2010 till the date of the realization and also future interest till realization along with Rs. 5,000/- towards costs of the complaint.
4. The Opposite Party No.1 filed counter initially stating that, the complaint against this Op is not tenable in law and all the allegations made against them are false subject to proof of the same. In counter Opposite Part No.1 stated that they are only facilitators and paid the insurance premium to the insurance company i.e. Opposite Party No. 3 through Opposite Party No. 2. After the scrutiny, the Opposite Party No. 3 has issued the policy. All the required documents for processing the claim were submitted to the insurance company by them, after receiving them from the complainant. As the insurance policy is issued by Opposite Party No. 3 it is the sole responsibility of the insurance company to pay the benefits under the policy/claim amount to the complainant as per terms and conditions of the policy. As there is no deficiency of service on their part prayed to dismiss the complaint against them with cost in the ends of justice and equity.
Opposite Party No. 2 filed counter stating that all the allegations made by the complainant against them are false subject to proof of the same.
In their counter, Opposite Party No. 2 submits that their role is to facilitate the member of the Opposite Party No. 1 to make them aware about the policy and to get benefits under the policy. As per norms of the NABARD they also contributed the insurance premium at the ratio of 2:1. Unless and until they complied all the relevant formalities the insurance company would not have issued insurance policy. It is also admitted by the complainant that insurance policy was issued by the insurance company. The liability to pay the benefits under the policy is only on the insurance company.
Finally prayed that they are not liable to pay any amount to the complainant. As there is no deficiency of service prayed to dismiss the complaint against them in the ends of justice and equity.
Opposite Party No. 3 in their counter denied all the allegations made by the complainant against them subject to the proof of the same.
Opposite Party No. 3 in their counter stated that they issued personalaccident Insurance Policy vide No. APG/10177896/51/04/C55123 effective from 01-02-2010 to 30-04-2011 to the Kisan Credit Card holders of Opposite Party No. 2 bank and the bank paid the premium of Rs. 76,80,218/- . The total sum insured per Kisan Credit Card account holder is Rs. 1,00,000/- without interest and costs. The liability of the insurance company is strictly governed by the terms and conditions, exclusions laid down in the policy agreed by the parties. Any breach of terms and conditions does not make the insurance company liable for any amount under the policy.
Further stated that as per exclusion No. 8 (V) of the policy they are not liable for any payment to the complainant. After the death of insured neither the complainant nor Opposite Party No. 1 and 2 gave any written intimation with full particulars to them within one calendar month. The death intimation was reported to them beyond the prescribed period mentioned in condition-11 ( a) & ( b). Therefore stated that the question of considering the claim does not arise and they rightly repudiated the claim of the complainant and as such they are not liable to pay any amount to the complainant.
Finally contended as there is no deficiency of service on their part to the complainant prayed to dismiss the complaint against them with exemplary costs in the interest of justice.
5. During the enquiry the complainant filed her chief affidavit as PW1 in lieu of evidence and got marked Ex. A1 to A9 documents. On behalf of Op No. 3 Sri .S. Naresh Claim analyst filed his chief affidavit as RW1 and got marked Ex. B1 Insurance Policy. On behalf of Op No.2 Sri. Anand Rao CEO, NDCC Bank, Nizamabad Branch filed his chief affidavit as RW2 and no document was marked.
6. Heard arguments of both sides counsels and perused the written arguments and judgment of the Hon’ble Supreme Court filed by the Opposite Party No. 3 in support of their version. Perused the judgments of various commission filed by the counsel for complainant in support of his version.
7. The following points arose for consideration.
i) Whether there is any deficiency of the service on the part of Opposite Parties No. 1 to 3 to the complainant?
ii) Whether the complainant is entitled for any reliefs prayed for?
iii) To what relief?
8. POINT NO.1
The admitted and undisputed facts are, the complainant husband Sri. Beemari Chinna Pochaiah was member of Opposite party No.1 vide account No. 3649. He was covered under Personal Accident Master Policy vide No. APG/10177896/51/04/C55123 issued by Opposite Party No.3 valid from 01-02-2010 to 30-04-2011. The insured amount due to accidental death is Rs. 1,00,000/-. At the time of death of the insured the policy was in force.
The disputed facts are:-
The complainant alleged that inspite of submission of required documents and repeated request, the Opposite Parties 1 to 3 did not settle her claim which is deficiency of service on the part of Opposite Parties 1 to 3. The complainant filed her chief affidavit as PW1 in lieu of evidence and got marked Ex. A1 to A9 documents. Opposite Parties 1 and 2 counter the said allegation of the complainant and contented that they are only facilitators and they have no role in payment of the insurance amount. After receiving the required documents for processing the claim from the complainant they forwarded them to the insurance company i.e. Opposite Party No.3. As the policy was issued by insurance company it is for the insurance company to indemnify the loss in case of accidental death of the insured as per the terms of the policy. Therefore prayed to dismiss the complaint against them as there is no deficiency in their service to the complainant and filed chief affidavit of Sri. Ananth Rao CEO, NDCCB branch, Nizamabad in lieu of evidence on their behalf. No document marked.
Opposite Party No. 3 resisted the allegation of the complainant admitting issuing of personal accident master policy to the Kisan Credit Card Account holders of Opposite Party No. 2 valid from 01-02-2010 to 30-04-2011 subject to the fulfillment of terms and conditions exclusions laid down in the policy agreed by parties. As per exclusion clause No. 8 (V) and violation of condition No. 11(a) & (b) they are not liable for payment of insurance amount to the complainant under the policy and contended that they rightly repudiated the claim as no claim and filed chief affidavit of Sri. S. Naresh Claims analyst of Bharathi Axa General Insurance Co. Hyderabad in lieu of evidence and got marked Ex. B1 document.
The document Ex. A1 support the version of the complainant, that her deceased husband was member of Co-operative Society (Op No.1) and was issued Kisan Credit Card Cum Pass Book Vide No. 2048 by Opposite Party No. 2.
The affidavit of complainant coupled with Ex.A2 ( FIR), inquest panchanama Ex.A3, Post Mortem Report Ex. A4, Death Certificate Ex.A5, lend to prove that the insured died on 17-04-2011 due Motor Vehicle accident. As per Ex. A6 Family member certificate, the complainant is the wife of the insured. Ex. B1 equal to Ex.A9 is the attested true copy of the Group Personal Accident Insurance Policy issued by Opposite party No. 3 covering Kisan Credit Card Account holders of Opposite Party No.2. The sum assured under the policy is Rs. 1,00,000/-.
The insurance company contended that the death of the insured deceased was not accidental but a concocted storey, as no satisfactory proof is produced which attracts the exclusion clause 8 (v) of Ex. B1 policy.
The Opposite party though alleged that there is fraud or misrepresentation and the death of insured due to accident is false and based on concocted stories did not produce any evidence to the contrary to rebut the evidence of the complainant in Ex.A2 to A5.
The National Commission in case of New India Insurance Co. Ltd., V/s. State of Haryana & others reported in II (2008) CPJ 371 (NC) held that insurer can not discount and reject reports and statement of Government Hospital authorities and also the Gram Panchayat and other Government authorities without evidence to contrary and stated that repudiation of claim by insurance company is deficiency in service.
Therefore there is no stuff in the plea of opposite party No. 3 that the death of deceased was not accidental and attracts the exclusion clause 8 (V) of Ex. B1 policy.
Further the case of Opposite party No. 3 is that the claim of the complainant is beyond prescribed period of one month which is violation of condition in 11 (a) & (b) of the policy.
The counsel for Opposite Party No. 3 vehemently argued that breach of terms and conditions of the policy does not make the insurance company liable for payment of insurance amount and relied upon the Hon’ble Supreme Court judgments in Civil Appeal No. 1557/04 in case of Export Credit Guarantee Corporation of India V/s M/s. Garg Sons International.
The learned counsel for the complainant retaliated the said contention of the Insurance company and contended that there was no delay on their part in claiming GPA policy amount under Ex. B1. However if it is presumed but not admitted that prescribed period of one month mentioned in condition 11(a) & (b) of Ex.B1 policy is not a mandatory, to repudiate genuine claim as no claim. Further contended that the Hon’ble Apex Court judgment (stated supra) is not applicable to the facts of the present case. Counsel for complainant relied upon Hon’ble Tamilnadu State Commission judgment between New India Assurance Company Ltd., V/s N. Ekabaram reported in CPJ (IV) 2005, Pg. 41.
On perusal of material on record we observe that there is no evidence of intimation of death of insured to the insurance company either by the complainant or the Opposite Parties 1 & 2. Therefore we are not inclined to accept the version of the complainant that there is no delay in claiming GPA Policy amount under Ex.B1
The point for discussion is:-
Whether the delay in claim beyond prescribed period of one calendar month mentioned as condition No.11 under clauses (a) & (b) of Ex.B1 policy is a mandatory for repudiation of claim as no claim? or only a directory to speed-up the process of claim?
The counsel for opposite party No.3 has cited the Hon’ble Apex Court common judgment as stated supra supporting his contention. In said case, the facts are that the export credit Guarantee Corporation of India Ltd., is a Government Company, dealing the business of insuring exporters. M/s Garg Sons International purchased a policy on 23-3-1995 for insuring a shipment to foreign buyers i.e. M/s Natural Selection Co Ltd., of U.K. and the said buyer committed default in making payments towards such policy from 28-12-1995 onwards with respect to the said consignment. Hence failed to comply with the clause 8 (b) of insurance agreement. Therefore the claims were rejected. The Hon’ble Apex court held that while upholding the rejection of claims that it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance.
As per clause 8 (b) of agreement, the insured shall declare and deliver the shipments and its overdues on or before 15th day of every month to the insurer which remained wholly or partly unpaid for more than 30 days.
Therefore the matrix of case is that the coverage of insurance with respect to consignment is only on declaration of shipments and its overdue payments. In the instant case the mandatory requirement of declaration for the insurance coverage of certain claims periodically is not necessary. The present claim of case is based on Group Personal Accident insurance policy to bear the risk of KCC ( Kisan Credit Card) holders and agriculture loan account holders under the control of opposite parties 1 and 2. The master policy in Ex.B1 was issued for a period of one year. The risk will be covered during the policy period. Therefore we are of the view that the facts in present case are quite different with the facts cited in the case and the Hon’ble Apex court judgement in Civil Appeal No.1557 of 2004 and its batch is not applicable to the present case.
The learned counsel for complainant has cited the Hon’ble Tamilnadu State Commission judgment supporting his version. The fact of the case is that the claim is repudiated on the ground that the complainant has not chosen to inform about the accident immediately and thus there is breach of condition. The Hon’ble State Commission held that the condition even if not complied not fatal to claim as it does not amount to fundamental breach – company liable under policy.
There are also similar judgments on delay in insurance claim as follows:-
- Bimla Devi & Others versus life insurance corporation of India. H.P. State Commission – Reported in CPJ volume II, part V, May 2007 page No.300.
- New India Assurance Co Ltd., Versus Mr. Nanasaheb Hanumant Jadhav & others – Maharashtra State Commission – Reported in CPR part V and VI 2005 May / June page No.24.
- Reliance General Insurance Co Ltd., Versus Sri AVN Ganesh – RP No.3572/2011 dated 29-11-2011 N.C. New Delhi.
In all above cases the condition of intimation for the death of the insured within one month is only directory and not mandatory. Merely because the claim is not made within the stipulated time the claim is not void. The time limit clause is meant for the interest of the insured in order to facilitator prompt scrutiny of the claim.
After careful consideration of the submissions by both parties and on perusal of record we are of the opinion that the Opposite Parties 1 and 2 are only facilitators for providing GPA Insurance policy (Ex.B1) as per norms of NABARD and they have no role in payments of the insurance amount as the insurance policy was issued by Opposite Party No. 3. The Opposite Parties 1 and 2 forwarded the claim of the complainant to the insurance company i.e. Opposite Party No. 3 after receiving the required claim documents from the complainant. Therefore we are of the considered opinion that there is no deficiency in service on the part of Opposite Parties 1 and 2 in discharging their duties towards complainant.
In view of discussion held supra and the judgments referred above we are of the considered opinion that there is deficiency of service on the part of Opposite Parties No.3 only, in repudiating the claim of the complainant.
9. POINT NO.2 & 3:
In view of our findings on the foregoing point No.1 and the reasons mentioned there in, we are of the considered opinion that the complainant is entitled for the following reliefs.
The Opposite party No.3 is directed to pay Rs. 1,00,000/- ( Rupees one lakh only) under Personal Accident Master Policy vide No. APG/10177896/51/04/C55123 to the complainant along with interest @ 9% per annum from the date of filing of the complaint till the date of realization. The Opposite party No.3 is also directed to pay Rs. 1,000/- towards costs of the complaint. The complaint against Opposite party No. 1 & 2 is dismissed without costs.
10. In the result, the complaint of the complainant is allowed in part as under directing the Opposite party No.3.
i) To pay Rs. 1,00,000/- ( Rupees One lakh only) the insured amount under Personal Accident Master Policy vide No. APG/10177896/51/04/C55123 to the complainant along with interest @ 9% per annum from the date of filing of the complaint till the date of realization.
ii) And also to pay Rs. 1000/- ( Rupees One thousand only) towards costs of the complaint.
iii) The complaint against Opposite party No. 1 & 2 is “DISMISSED” without costs.
iv) The Opposite party No.3 also further directed to comply the above 1 and 2 directions within a month from the date of receipt of this order.
Typed to dictation, corrected by me, pronounced by us in Open Forum on this the 28th day of January, 2014.
