West Bengal

South 24 Parganas

CC/10/21

SMT. MALATI PRADHAN, WIFE OF LATE RABINDRA NATH PRADHAN. - Complainant(s)

Versus

1. SENIOR DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD.Division - III - Opp.Party(s)

BARUN PRASAD.

29 Nov 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _21_ OF ___2010__

 

DATE OF FILING :29.01.2010                    DATE OF PASSING JUDGEMENT:  29/11/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT             : Smt. Malati Pradhan,w/o late Rabindra Nath Pradhan of 96/7, Suren Sarkar Road, Kolkata – 10.

 

-VERSUS  -

 

O.P/O.Ps                            :  1. Senior Divisional Manager, National Insurance Co. Ltd. 8, India Exchange Place, Kolkata – 1, P.S. Hare Street,

                                              2.     National Insurance Co. Ltd. 3, Middleton Street, Kolkata – 71, P.S. Park Street.

                                               3. G.T.F.S , 16, R.N Mukherjee Road, Kolkata – 700 001.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

This is an application under section 12 of the C.P Act filed by the complainant on the ground that her husband Rabindranath Pradhan had one Janata personal accident Insurance Policy vide no.100300/47/01/9600022/03/96/30061 ,which he obtained from O.p-3 Golden Multi Services Club on 15.5.2003 to 14.5.2018 and said policy had a sum assured for Rs.3,00,000/-. Complainant was the nominee of the said insurance policy.  During the policy period husband of the complainant faced severe injury due to road traffic accident on 3.6.2005 at Nimtouri under the jurisdiction of Tamluk P.S. when an unidentified truck dashed him on the road and ran away. Immediately local residents sent him to purba Medinipur Sadar Hospital where he was admitted but as his condition was deteriorating said Hospital referred him to NRS Medical College and Hospital ,Kolkata . But on that date NRS Hospital refused to admit him for which he was admitted at Netaji Nursing Home , Khidderpore where he unfortunately succumbed to injuries on the same date .The Nursing Home referred the victim for post mortem as he died due to accidental injuries. The post mortem examination report reveals that the victim died due to se ere head injuries.  It has been stated that being an unfortunate wife of the deceased Rabindranath Pradhan, complainant became shocked about the sudden death of her husband due to accident and naturally took time for recovery and thereafter he lodged FIR before the Tamluk P.S. where occurrence took place . after one month from the date of occurrence. Tamluk P.S also lodged FIR no.111/2005 dated 7.7.2005 under section 279/304A of I.P.C  and investigated the mater and filed final report with the comment that the accused lorry could not be traced out. Naturally complainant being a nominee filed this case to recover the insurance amount of Rs. 3 lacs and claim petition was filed and Insurance company after getting information about the accidental death of Rabindranath Pradhan appointed their Investigator for verification and assessment of loss and after investigation of the case Insurance company sent a letter dated 18.7.2006 repudiating the claim of the complainant on the ground that the cause of death of the policy holder is suspicious and they also disputed the belated claim lodged by the complainant, lodging of the FIR before the Tamluk P.S. after a lapse of one month and different opinion by different authorities about the cause of death of the deceased. After receiving the repudiation letter dated 18.7.2006 complainant approached the Insurance Ombudsman and requested him to re-investigated the matter and settle the claim as early as possible. But the Insurance Ombudsman did not settle the claim nor sent any reply. Thereafter, complainant filed this case along with a condonation of delay with the complaint petition. It has further stated that the complainant has no knowledge that her husband took JPA Insurance policy and she stands as a nominee and she has no knowledge regarding the procedural matter of claiming the policy amount and due to the very unfortunate situation she was puzzled and delay was caused. Accordingly, she prays for direction upon the O.P to settle the amount of Rs.3 lacs with interest @12% p.a from the date of claim till payment ,compensation of Rs.50,000/- ,litigation cost Rs.5000/- etc.

The O.P-3 G.T.F.S initially contested the case filing written statement and has categorically supported the claim of the complainant but wanted to release them from any liability of deficiency in service and unfair trade practice on their part since O.P-3 did not take any payment of Insurance claim from the complainant.

Initially O.p nos. 1 and 2 did not contest the case when the case was filed before the South 24-parganas at Alipore in C.C.no.21 of 2010 and this bench passed order on 18.4.2010 dismissing the complaint in exparte against the O.P nos. 1 and 2 and on contest against the O.p-3 on the ground of territorial jurisdiction.

Thereafter complainant preferred an appeal before the Hon’ble State Commission being FA 284 of 2011 on 22.6.2011 and Hon’ble State Commission passed final order on 27.4.2012 ,wherein respondent no.1 and 2 and GTFS contested the case and submitted that accident took place at Tamluk and FIR was lodged there. So, according to section 11 of the C.P Act the complaint petition out to have filed at DCDRF, Medinipur at Tamluk and further submitted that the office of the Insurance company is situated within the jurisdiction of Calcutta Unit –II and the Ld. Advocate of the respondent no.3 GTFS submits that much delay has already been caused in the matter of disposal of the case and the object of enactment of C.P Act is being frustrated.

After hearing all the parties the Hon’ble State Commission has observed that under section 11 of the C.P. Act Ld. Forum shall have jurisdiction to entertain the complaint where the cause of action arose wholly or in part and in the instant case it is true that accident took place at Tamluk and FIR was lodged at Tamluk P.S. ,but is also to be borne in mind that patient was shifted from Purba Midinipure to Khidderpore Nursing Home under Ekbalpur P.S. where he succumbed to injury. The inquest and post mortem  were held in connection with Ekbalpur P.S. on 4.6.2005. So, it is clear that the cause of action arose in part at Khiderpore Nursing Home under Ekbalpur P.S. which falls within the jurisdiction of Learned District Forum at Alipore. The Learned District Forum ,therefore, was not justified in holding that it had no territorial jurisdiction to entertain the complaint. Accordingly appeal was allowed and impugned order was set aside, that is why the case has been re-opened before this bench and O.P nos. 1 and 2 filed written version before this Bench on 4.12.2015 and all the parties are contesting the case.

We have already stated that O.p-3 did not challenge anything ,rather support the case of the complainant and only wanted to get release from this case.

However, O.P nos. 1 and 23 contested the case filing written version and has denied all the allegations leveled against them ,specially variation on the contents of FIR and the complaint petition. It has further stated that one Sanjoy Pradhan was present as eye witness at the material time but he was not examined by the police authority during the course of investigation. It has also contended that onus is upon the claimant /nominee who has failed to provide satisfactory evident to the company in regards to the genuineness and actual cause of accident which attributed to violation of Policy condition no.2 and therefore claim was repudiated and pray for dismissal of the case.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps  repudiating the claim of the complainant ,or not.

                                                            Decision with reasons

We have perused the evidence of the parties as well as documentary evidence i.e. the FIR, Inquest report and Post Mortem report, wherefrom we find that Tamlook P.S. has drawn FIR on the basis of the complaint of the wife of the deceased u/s 279 and 304A of the IPC on 7.7.2010 and admittedly deceased Rabindranath Pradhan met with an accident on 3.6.2005 and on the same date local people shifted him to the Tamlook Hospital and thereafter considering the peculiar condition and seriousness the Tamlook Hospital referred the patient to the NRS hospital where due to non-availability of the bed , the victim was admitted at Khidderpore Nursing Home where unfortunate on the same date the victim succumbed to death. A question may arose why soon after accident FIR was not made and why the delay was caused.  But in parallel one thing should be borne in mind that how an unfortunate widow ,shocking at the news of accident of her husband and  having no knowledge , will file complaint before the Tamlook P.S. for the accident of her husband, particularly when the injured was shifted one after another hospital and then definitely ritual ceremonies and other shocking matters cannot be overlooked by this bench. So, this is a normal conduct of a lady firstly to escape from this unfortunate episode and thereafter it has come to her mind whether any policy is there or not, particularly when she was not aware about the JP Policy which has been claimed and lastly when she became aware, definitely with the assistance of the well-wisher of the family rushed to Tamluk P.S. for lodging complaint and that is why the reasonable delay was caused ,which in the eye of Law should be condoned because the natural things or occurrence or episode and comparing the stake of mind of the widow cannot be brushed aside at the time of passing judgment in this type of circumstances.

Thus the plea of delay in making FIR  and delay in making claim application has no leg to stand upon and the delay is not inordinate and there is sufficient cause for such delay. Thus the contention of the Ld. Advocate of the O.P- nos. 1 and 2 has no leg to stand upon  on the basis of the said point.

Now we turn our eyes on the Post Mortem Report wherefrom we find that 35 years old Rabindranath Pradhan sustained fatel injury as per inquest report. The cause of death was opined by the Autopsy Surgeon that “due to head injury which is antimortem in nature”. It may be argued by the Ld. Advocate of the O.P nos. 1 and 2 how the head injury was sustained ,whether it is accidental or falling down on the ground. 

It is true that Amit Dutta Gupta , being an Investigator of the Insurance Company has observed in page 5 that on 23.3.2006 at 16.30 a.m when he arrived at Mecheda and went to the place of occurrence and contacted some persons who verbally stated that on 3.6.2005 at about 3.25 p.m. they were not present at their respective shop nor they were  aware of the accident as mentioned in the FIR. They were not examined by police of Tamluk P.S. This contention cannot be considered by this Bench in a proceedings under the C.P Act and that will be considered by the Ld. Magistrate regarding the veracity of the complainant and why the investigation was not properly made. Again he has stated in page 7 that he has examined Sanjoy Pradhan and it is ascertained that Rabindra Nath Pradhan boarded a Tata Chasis and fell from the same ,the negligence act on the part of Rabidnra Nath prodhan resulted in the fatal accident. Police also did not care to ascertain from the informant as to why her husband went at Nimtauri NH 41 ,Tamluk on 3.6.2005 at 3.25 a.m. It has stated that Rabindranath Prodhan was sited on the right side of the driver of the chasis and Sanjoy Prodhan was the only eye witness into the incident but he was not asked to file the FIR,the reason best known to the police. In page 8 at the conclusion Investigator Amit Datta Gupta has observed that the deceased acted and travelled in a manner as mentioned above and for such negligent act in my opinion the claimant is not entitle to get any benefit from the Insurer. That is why accepting the same the case was repudiated by the O.P nos. 1 and 2.

            In this contest our considerable view is that in page 5 same persons have stated that they are not aware about the accident and accident not taken place ,which have no leg to stand upon because if we consider the examination of Sanjoy Prodhan in page 7 it reveals from the report of the Investigator that Rabindranath Prodhan boarded a Tata Chasis and fell from the same. It is not the statement of Sanjoy  Prodhan that due to negligence act on the part of Rabindranath Prodhan fatal accident occurred. It should be borne in mind that FIR was drawn under section 279 /304A IPC and it is needless to say meaning of Section 279/304A IPC. All the Magistrates are aware what is Section 279/304A IPC incluingt the ld. Advocates. So, negligent driving was proved and it was also proved that Rabindranath Prodhan was boarded in that vehicle (Tata Chasis) . It is true that boarding may attract Motor Vehicle Act but at the time of claim under the C.P Act it will not be attracted and it will be attracted in MACC case ,which will be decided by the Ld. Additional District Judge ,as the case may be. Moreover, in a summary trial there is no such scope. Whether the police has taken care to ascertain from the informant or like that, that is the matter of fault of investigation by the police and will be decided by the Ld. Magistrate at the time of accepting the final report . We are aware that before accepting the final report opinion of informant is required. Definitely Ld. Magistrate got that opinion from the informant and accepted the final report. So, that question was unnecessary put by the Ld. Investigator Amit Datta Gupta. So, all these things clearly suggest that Investigator investigated the matter for the interest of the O.Ps so that  deprived the legitimate claim of the widow/wife of deceased Rabindranath Prodhan who is the complainant and the O.P nos. 1 and 2 accepted the premium ,they are duty bound to pay the amount and their excuse as unfolded in the repudiation letter dated 18.7.2006 is nothing but a bogus one and it was based  on the basis of the report of the Investigator and Sr. Divisional Manager of O.P nos. 1 and 2 repudiated the legitimate claim of the complainant like a parrot on the basis of the investigation which has no leg to stand upon before this bench ,that is why the O.P-3 being the GTFS justifiably mentioned that fixing such unreasonable time limit is only directory and recommendatory and can never be mandatory ,because the words used in the policy condition read as “Unless reasonable cause is shown the insured should within the ………….. after a finding which may give rise to claim under this policy giving a written notice to the complainant with all particulars of the claim”. So use of the word “Should” in that column clearly demonstrates that it is not a mandatory. We have already discussed above that in what circumstances a widow and unfortunate lady shocking with the premature death of her husband     having no knowledge about the existence of JPA policy and somehow comes out after the episode  is over from the house and with the assistance of the well-wisher rushed to the Tamluk P.S.and lodged FIR and lodged claim application. So, we find that delay is reasonable. So, hammering argument of the Ld. Advocate for the O.P nos. 1 and 2 is attractive but there is no substance in the eye of Law.

Secondly Insurance company is bound to settle the dispute within one month  in view of IRDA guidelines. But the Insurer did not communicate such position like repudiation within 30 days.  So, being a reputed company if they failed to comply the strict direction of IRDA how that company ask for delay to the common people without considering the stake of mind o the poor widow ,having no support of believable male member in their family?

This is really unfortunate and not accepted from a Insurance Company like National Insurance Co. Ltd. where people has every believe and being a judge I must have to say I have also believed and faith of that company at the time of making insurance of the car avoiding so many telephonic requests from other companies. But today at the time of passing judgment I find how the poor man are getting shocked even after the loss of her husband in an immature time with the repudiation letter ,which is another shocking of the complainant. So, National Insurance Company should thing over it in near future in this matter.

It has been contended by the ld. Advocate of the O.P nos. 1 and 2 that the case is barred in view of section 24A of the C.P Act. But our considered view is that cause of action is continuous cause of action since after repudiation complainant rushed to the Ombudsman but no decision was taken by the Ombudsman and thereafter case was filed and until and unless the claim is settled the cause of action will be continuous cause of action when the delay was not within the domain of the complainant. It is the Ombudsman who did the delay to decide the appeal of the complainant against the repudiation and when complainant did not get any reply she comes to this Bench along with Section 24A application and the case was admitted. So, delay was condoned by my predecessor Bench at the time of admitting the case in the year 2010 vide order no.2. So, GTFS support the case of the complainant and it is true that GTFS ,O.P-3, has no role of deficiency of service but on the same score it is the duty of the GTFS to see that settlement may be made without further delay. So, the case of deficiency in service and unfair trade practice is proved against the O.P nos. 1 and 2.

Accordingly, it is

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.Ps.

The O.P nos. 1 and 2 are hereby directed to settle the dues positively within 30 days from the date of this order on the face of the policy i.e. Rs.3 lacs , in default they have to pay the entire amount of Rs.3 lacs along with interest @9% p.a from the date of filing of the case till its realization.

If the O.P nos. 1 and 2 paid the entire amount of Rs.3 lacs  within 30 days then they have to pay only litigation cost of Rs.5000/- along with token compensation of Rs.5000/- ,otherwise the compensation money will come to Rs.50,000/- and further interest will carry @12% p.a on the entire awarded amount from the date of default to till its realization.

Complainant is at liberty to execute the order  after the expiry of one month from the date of this order, if the same is not complied with in the meantime.

GTFS,O.P-3 is hereby directed to see that the amount which has already been directed to be paid by the O.P nos. 1 and 2  be complied with in toto because O.P-3 is the negotiator of the policy.

Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.

 

Member                                                                                                           President

Dictated and corrected by me

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

Ordered

That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.Ps.

The O.P nos. 1 and 2 are hereby directed to settle the dues positively within 30 days from the date of this order on the face of the policy i.e. Rs.3 lacs , in default they have to pay the entire amount of Rs.3 lacs along with interest @9% p.a from the date of filing of the case till its realization.

If the O.P nos. 1 and 2 paid the entire amount of Rs.3 lacs  within 30 days then they have to pay only litigation cost of Rs.5000/- along with token compensation of Rs.5000/- ,otherwise the compensation money will come to Rs.50,000/- and further interest will carry @12% p.a on the entire awarded amount from the date of default to till its realization.

Complainant is at liberty to execute the order  after the expiry of one month from the date of this order, if the same is not complied with in the meantime.

GTFS,O.P-3 is hereby directed to see that the amount which has already been directed to be paid by the O.P nos. 1 and 2  be complied with in toto because O.P-3 is the negotiator of the policy.

Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.

 

Member                                                                                                           President