BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.458/2012 against C.C.No.33/2011 District Forum, Mahaboobnagar.
Between
M/s Road Safety Club Private Limited
Rep. by its Authorized Signatory Sri N.Mani
S/o.Sri Nagadhani, aged 47 years,
R/o.Administrative Office 2-A,
II floor, Prakasam Road,
T.Nagar, Chennai-600 017. …Appellant/
opposite party No.1
And
1. Smt.G.Nageshwaramma @ Swathi W/o.late
G.Srinivasulu, aged 30 years, Occ:Household
R/o.H.No.17-1/14A, Near Saraswathi Mandir
Kothakota Mandal, Mahaboobnagar District.
2. Kum. G.Nandidi D/o.late G.Srinivasulu,
Aged 7 years.
3. Kum.G.Rajitha D/o.late G.Srinivasulu,
Aged 5 years.
(complainants 2 and 3 are minors under
Guardianship of their Natural mother
Smt.G.Nageshwaramma) Respondents/
Complainants.
4. M/s Ski Retail Capital Limited,
Shop No.586, (Upstairs) MSEWA complex,
Behind Control Room, Park Road,
Kurnool.
5. Bajaj Allianz General Insurance Company Ltd.,
G.E.Plaza Airport Road, Yarawada, Pune-411 006. Respondents/
Opp.parties 2 & 3
Counsel for the Appellant : M/s. M.V.R.Suresh & Associates
Counsel for the Respondents: Mr.R.Srinivasulu R1
Mr.Naresh Byrapaneni-R5
F.A.No.648/2012 against C.C.No.33/2011 District Forum, Mahaboobnagar.
Between
Bajaj Allianz General Insurance Company Ltd.,
G.E.Plaza Airport Road, Yarawada, Pune-411 006. ..Appellant/
3rd opp.party
And
1. Smt.G.Nageshwaramma @ Swathi W/o.late
G.Srinivasulu, aged 31years, Occ:Household
R/o.H.No.17-1/14A, Near Saraswathi Mandir
Kothakota Mandal, Mahaboobnagar District.
2. Kum. G.Nandidi D/o.late G.Srinivasulu,
Aged 7 years.
3. Kum.G.Rajitha D/o.late G.Srinivasulu,
Aged 5 years.
(complainants 2 and 3 are minors under
Guardianship of their Natural mother
1st respondent herein) Respondents/
Complainants.
4. M/s Road Safety Club Private Limited
No.1,Sambandam Street,
G.N.Chetty Road, T.Nagar, Chennai-600 017.
5. Ski Retail Capital Limited,
Shop No.586, (Upstairs) MSEWA complex,
Behind Control Room, Park Road,
Kurnool. Respondents/
Opp.parties 1 & 2
Counsel for the Appellant: Mr.Naresh Byrapaneni
Counsel for the Respondents: Mr.R.Srinivasulu –R1 to R3
Mr.M.V.R.Suresh-R4
R5-Notice held sufficient
QUORUM: SMT.M.SHREESHA, HON’BLE Incharge President
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
WEDNESDAY, THE TENTH DAY OF APRIL,
TWO THOUSAND THIRTEEN
Order (Per Smt.M.Shreesha, Hon’ble Incharge President)
***
Aggrieved by the order in C.C.No.33/2011 on the file of District Forum, Mahaboobnagar, opposite party No.1 i.e. Road Safety Club Privte Limited preferred appeal, F.A.No. 458/2012 and opposite party No.3 preferred F.A.No.648/2012. Sine both the appeal deal with similar facts, they are being disposed of by a common order.
The brief facts as set out in the complaint are that the 1st complainant is the wife and complainants 2 and 3 are the children of late G.Srinivasulu who was a member of Road Safety Club Private Limited which had tie up with opposite parties 2 and 3 and its members will get insurance benefit and the insurance cover was as follows: a) silver card for two wheeler owned by them b) Classic card-personal accident to the member. The complimentary insurance cover would be extended to the period equivalent of membership. The complainant’s husband has obtained Classic card membership and paid a premium of Rs.3,500/- through voucher No.0097093 on 07-8-2002 and the opposite party No.1 issued a membership certificate No.57829 on 21-8-2002 and also a classic membership card which covered the period from 8/2002 to 8/2010. The complainant No.1 submitted that on 15-12-2009 her husband met with a fatal accident at bypass road of NH-7 and the police registered a case in Crime No.216/2009 and the death was intimated to opposite parties 1 to 3 and submitted an application for settlement of the policy on 27-2-2010 along with required documents. The complainant requested the opposite parties several times for settlement of the policy but the opposite parties postponed the same on one pretext or the other. The complainant submitted that opposite parties are liable to pay Rs.3,00,000/- and other benefits but subjected the complainant to mental agony and addressed letters dated 08-7-2010, 28-9-2010 and 13-8-2010. Thereafter the complainant got issued a legal notice on 16-12-2010 to opposite party No.1 along with photo copies of all necessary documents. Hence the complaint for a direction to the opposite parties to pay the death claim amount of Rs. 3,00,000/- with assured bonus and interest at 12% p.a. from the date of complaint till realization together with compensation and costs.
Opposite party No.1 filed counter admitting that late G.Srinivasulu was a member of Road Safety Club and that he was given a Classic Card for 8 years for the period from 07-8-2002 to 08-6-2010 but denied the way and manner in which the alleged accident took place involving death of Mr.G.Srinivasulu. Opposite party No.1 further contended that the insurance provided by opposite party No.3 for the period from 07-8-2009 to 6-8-2010 is subject to terms and conditions and it had nothing to do with the claim of the complainants. It further submitted that the complainants made a claim on 01-4-2010 and the same was forwarded to opposite party No.3 on 09-4-2010 for immediate registration and speedy process and on the same day another letter was also sent to the complainant to furnish some more documents. Thereafter the complainant got issued a legal notice on 28-12-2010 and OP sent a reply on 04-1-2010 and submitted that it had forwarded the claims papers received from the complainant to opposite party No.3 for settlement and the contract is between the deceased and the insurance company and there is no deficiency in service on its part and prayed for dismissal of the complaint with costs.
O.P.2 i.e. Ski Retail Capital Limited remained exparte.
Opposite party No.3 filed counter resisting the complaint. It contended that there is no privity of contract between this opposite party and the complainant and hence it is not liable to pay any amount as it is not a signatory to the membership card and the same is not binding on it. Opposite party No.3 submitted that opposite party No.1 had tie up it from 07-8-09 to 6-8-09 and it did not renew the policy and no premium was paid to it after 06-8-09 and therefore there is no policy coverage existing as on the date of the alleged accident i.e. on 15-12-09 and hence not liable to compensate the complainant as the group personal accident master policy issued in favour of O.P.1 covering the risk against its members expired. Opposite party No.3 further contended that as per Sec.64 VB of Insurance Act, the risk can be incepted by any insurer in India only on remittance of premium in advance and though the deceased joined as member on 7-8-2002, there is no cause of action as the tie up ended by August, 2008 and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A16 and B1 to B3 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties jointly and severally to pay the complainants a sum of Rs.3,00,000/- with assured bonus and interest @ 9% p.a. from the date of filing of the complaint i.e. 4-2-2011 till realization together with Rs.5,000/- towards compensation and Rs.1,000/- towards costs within one month. It further observed that from out of such amount, complainant No.1 is entitled to half of the amount towards her share while complainants 2 and 3 are entitled to equal share out of the balance amount and the amount fell to their share be kept in any nationalized bank till they attain majority.
Aggrieved by the said order, opposite party No.1 i.e. Road Safety Club Private Limited preferred appeal, F.A.No. 458/2012 and opposite party No.3 preferred F.A.No.648/2012.
Complainant and O.P. 1 filed written arguments.
The facts not in dispute are that the first complainant is the wife of late G.Srinivasulu who is a member of Road Safety Club which is opposite party No.1 herein and as per the terms and conditions of safety club programme, each member will get insurance benefit and the complainant’s husband obtained Classic card membership by paying a premium of Rs.3,500/- and a membership certificate was issued on 21-8-2002 evidenced under Ex.A1 for a period of 8 years from 7-8-2002 to 6-8-2010. While so, on 15-12-2009, the first complainant’s husband met with an accident and FIR No.216/2009 was also registered evidenced under Ex.A7 and his death is established by Ex.A9 death certificate and Ex.A8 post mortem report. The complainant also got issued a legal notice on 16-12-2010 evidenced under Ex.A15 when the opposite parties failed to respond to her request to settle the claim of Rs.3,00,000/- with other benefits.
It is the case of the appellant/Road Safety Club that it is only a facilitator and its role is only confined to processing the claim and forwarding the same to opposite party No.3, insurance company. The learned counsel for the appellant, Road Safety Club contended that this Commission has no jurisdiction to entertain the complaint keeping in view clause 17 which states that any dispute arising of the agreement should be referred to an arbitrator. The Apex court has consistently held that merely because an arbitration clause exists in the agreement, it does not bar the jurisdiction of the consumer Forum and this additional remedy was discussed at length in Fair Air Engineers Pvt. Ltd., V. N.K.Modi reported in 1996 (6)SCC 385 and Hindustan Petroleum corporation Ltd., V. Pink City Midway Petroleum reported in 2003(6) SCC 503. Similarly the Supreme Court in Indochem Electronic and another V. Addl. Collector of Customs, A.P. reported in 2006 (3) SCC 721 held that the Consumer protection Act provides an additional remedy and therefore this consumer Commission has jurisdiction to entertain this complaint.
It is an admitted fact that opposite party no.1 issued the membership certificate and the insurance classic card. Ex.B1 is the certificate of insurance issued by opposite party No.3 and Ex.B2 is the list of Group Policy Holders which shows that the complainant’s late husband, G.Srinivasulu was also a policy holder. It is the case of the appellant/Road Safety club that they have forwarded the claim papers of the first complainant to opposite party No.3. They admit that a classic card membership was issued to the complainant’s husband covering the period 07-8-2002 for a period of 8 years till 8/2010. It is not in dispute that the policy holder died in a road accident on 15-12-2009 which is within the period of coverage. The appellant submits that he has forwarded the claim on 01-4-2010 and with all papers forwarded again on 09-4-2010 for immediate registration. The appellant also relies on a clause in the agreement which states the member shall not hold the issuer responsible for any matter arising out of or in connection with the insurance cover and any such matter will be addressed to the insurance company only. The appellant submits that there is no deficiency in service as it is only a facilitator and has forwarded the claim papers on time.
Whereas it is the appellant/insurance company case that the contract between the insurance company and the Road Safety Club cease to exist by September, 2008 and relied on Ex.B3 letter dated 26-2-2011 addressed by Road Safety club stating that the agreement has ceased since September, 2008. Ex.B1 is a certificate of insurance issued under the Master Policy to Road Safety Club for the period 7-8-2009 to 6-8-2010 and Ex.B2 clearly shows that the policy holder is also a member of the same scheme. In Ex.B3 Road Safety Club has also stated that there is an outstanding amount of Rs.11,13,555/- lying in the credit of insurance books and this letter cannot come in the way of settling the claim of the complainants as admittedly Ex.B1 shows the period of insurance from 07-8-2009 to 6-8-2010 issued to Road Safety Club and if really the arrangement ceased by September, 2008, then Ex.B1, certificate of insurance, would not have been issued. Therefore it can be construed keeping in view Ex.A1 and B1 that the accident took place well within the coverage period and that the policy is very much in force and hence the contention of the appellant/insurance company that there is no privity of contract between the insurance company and the complainant is unsustainable, as, to reiterate, all the members of opposite party no.1/Road Safety club are beneficiaries of the Master Policy, Ex.B1 and the policy holder is insured by opposite party no.3. it is the also the further contention of appellant/insurance company that the tie up of the insurance company with Road Safety Club is from 7-8-2008 to 6-8-2009 and it did not renew the policy and no premium was paid to the company after 06-8-2009 and that the Group Personal Master Policy issued by their company has expired. But Ex.B1 evidences that the period of insurance from 7-8-2009 to 6-8-2010 therefore this contention is unsustainable and if this certificate of insurance has been issued by the insurance company though there was some premium due, it is an internal matter between opposite party No.3 and opposite party No.1 and the complainants cannot be made to suffer in the light of Exs.A1 and B1 which are the Classic Card Membership from 2002 to 2010 and Ex.B1 is the certificate of insurance issued to opposite party No.1. We rely on the decision of the National Commission in Road Safety Club Pvt. Ltd., V. Kodi Lakshminarayanamma and others in F.A.NO.191/2009 in which the National Commission held that the role of facilitator is confined to the time till the insurance policy is issued in favour of its member and in the instant case, Ex.B1, certificate of insurance has already been issued by O.P.3 insurance company. While we observe that there is deficiency in service on behalf of opposite party No.3 in not settling the claim, we are of the considered view that O.P.1/Road Safety Club, which is only a facilitator cannot be made liable. Hence the appeal preferred by Road Safety Club F.A.No.458/2012 is allowed and the order of the District Forum against this appellant i.e. Road Safety club is set aside and the appeal, F.A.No.648/2012 preferred by insurance company is dismissed and the order of the District Forum is modified confining the liability as against O.P.3/insurance company only.
In the result appeal preferred by Road Safety Club F.A.No.458/2012 is allowed and the order of the District Forum against this appellant i.e. Road Safety club is set aside and the appeal, F.A.No.648/2012 preferred by insurance company is dismissed and the order of the District Forum is modified confining the liability as against O.P.3/insurance company only.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.10-4-2013.
