Notices have been duly served upon O.P. No.1 (Divisional Manager, The New India Assurance Company Ltd., Howrah Divisional Office) but none appears. Hence the case be heard exparte as against O.P. No.1. O.P. No.2 (Branch Manager, New India Assurance Company Ltd, Malda) contests the case by filing a written version denying material allegations contending inter-alia that the claim of the complainant is completely based on imagination and also fabricated for unlawful gain. O.P. No.2 admitted that due to non-submission of relevant documents the claim of the complaint could not have been settled. O.P. No.2 also alleged in their written version that the brother of the complainant died due to act of some criminal offence and so they challenge the legality of the claim of the complainant as per exclusion terms of the policy in question and accordingly the claim against this O.P. will liable to be rejected.

 

 

 

 

 

-:DECISION WITH REASONS:-

 

Point No.1:

 

          In the true spirit of consumerism, the Act has not confined its sole to the original higher above, alone, but equally extended it to the subsequent beneficiaries of the services as well. The aforesaid view is buttressed when reference to clause (i) pertaining to the consumer who buys goods for consideration. Herein also the definition does not confined himself the original subscriber of JPA Policy, but it further extended to the beneficiary, who is none else but the present petitioner, with the approval of her deceased elder brother as is evident from Exbt.1 wherein the present petitioner has been shown as nominee. The larger Principle which permits the definition with regard to the purchase of goods and beneficiary of services is thus identical which disposes of the present point in the affirmative.

 

Point No.2:

 

          It has been urged by O.P. No.2 that the present petition is barred by limitation but in support thereof, no specific averment has been made out in para 2 of the written statement.

 

          In this regard this Forum finds opportunities to go through the exhibits, records and testimony of the petitioner herself. As P.W. – 1 the petitioner has stated that immediately after death of his deceased insured brother she had no knowledge of the JPA policy subscribed by her deceased brother in 1998 with sum assured of Rs.1 lakh. In September 2000 when the policy was traced the petitioner (P.W. – 1) reported the death of her deceased brother to O.P. No.4 and O.P. No.4 accordingly sent the claim form in September 2000.   P.W. – 1 also stated that she submitted the filled up claim form with all relevant documents to the O.Ps. on 12.10.2000 after prolonged persuasion by visiting the office of O.P. No.4. She received memo (Exbt.5) from O.P. No.1 wherein the O.P No.1 informing acknowledgement of duly completed claim form with original insurance certificate (Exbt.1), carbon copy of FIR (Exbt.2), xerox copy of death certificate (Exbt.4), xerox certified copy of P.M report (Exbt.3) and asked P.W. – 1 to submit the final police investigation report (Exbt.9). She submitted Exbt.9 on 14.10.2004 through O.P. No.4. P.W. – 1 also stated that she personally contacted O.P. No.4 and O.P. – 1 on several occasions for settlement of claim by submitting petition but no receipt was ever given to her.

 

          On scrutiny of the records it further appears that after strenuous endavour she could collect the reports which was acknowledged by O.P. No.1 & 4 as per Exbt.5 and Exbt.6 respectively. It appears from Exbt.6 which is a report dated 8.11.2004 of P.W. – 1 through O.P. No.4 being the intimation that certified copy of final police investigation was prayed from the Hob’ble Court and the same would be forwarded as an when the same will received. Exbt.7 is a memo dated 10.08.2004 of O.P. No.1 wherein he called for a certified copy of Final Police Investigation report through O.P. no.4. Ultimately Exbt.9 was deposited to the O.Ps. by P.W. – 1 on 14.10.04 as it appears from seal and signature of O.P. No.4 on the letter dated 14.10.2004 of P.W. – 1 to O.P. No.1 informing the cause of delay in collecting Exbt.9, which was ultimately issued from Ld. court on 19.12.2005.

 

          All the documents referred to hereinabove, clearly manifest that delay is of all the machineries of which the petitioner had no hand and applicable in all levels of various departments connected with the Exbts supra.  

 

          It may be mentioned here that none of the O.Ps. has shackened the P.W. – 1 in the cross examination on the point of delay in lodging the claim.

 

          It further appears from records that the petitioner has filed a petition u/s 24(A) of the C.P. Act along with her petition of complaint wherein she admitted that she is illiterate, simply can sign her name and had no knowledge of official procedures and always has to be dependent on some one in absence of any male member in the family and her attempts were futile to get the claim inspite of submission of relevant documents on 24.12.2005 to the O.Ps. and lastly she took shelter of an advocate who served legal notice on 17.12.2007 to the O.Ps. Therefore, she prays for condoning the delay in filing the case.

 

          In view of above it is needless to mention that none of the O.Ps. raised any specific objection on the points of limitation nor P.W. – 1 was shakened in her cross examination. However, in this connection this Forum is fortified with the observation of our Appex Court appearing in (1996) 3 SCC 132 wherein our Appex Court has been pleased to observed that “the delay is required to be condoned in the interest of Justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay.” It has also been observed in (1988) 7 Sec.123 the primary function of the court is to adjudicate the dispute between the parties and to advance substantial justice……….. “Rules of limitations are not to destroy the rights of parties. They are meant to see that parties does not resort to dilatory tactis but seek their remedy for plea.”

 

          Thus this point is disposed of in the negative.

 

Point Nos. 3 & 4:

 

          Both the points are taken together as they are interrelated.

 

          It appears from the records that O.P. No. – 1 (The Divisional Manager, The New India Assurance Company Ltd, Howrah Divisional Office, 512200, P – 18, Dobson Lane, Howrah – 711101) has not made his appearance either by himself or through his representative to defend his case inspite of receipt of notice with all documents as appearing in the report of Manager Customer Care Malda H.P.O. dated 11.03.2008 that RLAD No.619 dated 31.1.2008 was delivered to O.P. No.1 on 4.2.2008. Hence his case will be heard exparte.

 

          O.P. No.2 contested his case by filing written version and has takes plea in para 4 that due to non submission of relevant required documents visible copy of P.M. report and copy of final investigation report to O.P. No.1 the claim of the petitioner could not have been possible to settle.

 

          In para 5 supra the O.P. No.2 contended that the cause of death arose out of any committed action which becomes criminal offence, and absolutely distinguishable from entitlement of any coverage condition as per exclusion terms of the policy in question until and unless it is proved before the Forum on that part of the petitioner in respect of any over riding provision or any conditions for which the petitioner may entitle to get any relief on the strength of the policy in question.

 

          It appears from the testimony of P.W. – 1 that O.P. No.4 & 5 duly sent her claim form on receipt of the news of death of her deceased insured brother, and also duly sent the completed claim from alongwith relevant documents to O.P. no.1. These O.Ps. have filed Ext.A showing Sl. 3 manifest the name of Ruhidas Bhowmik and forwarding of JPA claim to NIAC ltd. Howrah Divn. And also filed Exbt.B which manifest that letter of the petitioner dated 14.10.2004 in c/w the JPA claim No.47-2000-2001-209 A/C Late Ruhidas Bhowmik received by them on 25.10.2004 sent to O.P. No.1 for doing needful wherein official seal & signature dated 02.11.2004 appears as token of receipt. Ld. advocate for these O.Ps. submitted that O.P. No.3 & 4 have got no authority to make final settlement and disbursement of the claim as per MOU between O.P. No.1 and O.P. No.3 & 4 mentioned in the written objection. Thus it appears that the service of O.P. no.3 & 4 does not suffer from deficiency.

 

          Let us discuss the points of O.P. No.2 referred to para 4 and 5 of the written objection supra. In para 4 of the above it is stated that due to non-submission of relevant required documents i.e. visible copy of P.M report and final investigation report by P.W. - 1 the claim could not have been possible to settle.

 

          On scrutiny of Exbt.5 which is a report of acknowledgement of duly completed claim form with original Insurance Certificate, xerox copy of Death Certificate, carbon copy of FIR & xerox certified copy of P.M report from the petitioner. Nowhere it is mentioned that xerox certified copy of P.M report is not legible (Visible as per O.P. No.2) and in Exbt.5 the O.P. No.1 requested the petitioner to send final police Investigation report.

 

          It further appears from Exbt.7 which is a memo dated 10.08.2004 of O.P. No.1 addressed to the petitioner asking to supply a certified copy of final police investigation report as the photo copy of final report is illegible. A perusal of Exbt.6 it manifest that the petitioner sent photocopy of Final police investigation report duly attested by local police station to O.P. No.1 on 8.11.2004 through O.P. no.4. The petitioner further sent certified copy of aforesaid documents through O.P. no.4 after the same was collected from the Ld. Court of SDJM, Malda on 19.12.2005. Ld. advocate for the O.P. No.2 has not advanced any evidence to establish his point of allegation that legible copies of P.M. report and Final investigation report were not sent to O.P. No.1.

 

          Record point of objection being para 5 of the written objection referred to hereinabove that the cause of death arose out of committed action which becomes criminal offence and distinguishable from entitlement of any coverage condition as per exclusion terms of the policy.

 

          Let us find out how the death of deceased was caused. It appears from Exbt.2 which in the FIR that deceased insured was an employee of one Ashit Kr. Biswas of Sankarpur, P.S. Gazole who in his petition of complaint dated 20.07.2000 stated that on 19/20-7-2000 at about 12/12:30 AM the deceased after collecting cash from his customer of Falakata got down at Gazole bus stand and rang him up for accompanying him. Subsequently the deceased alongwith a known person started proceeding to the shop (GADI) of the petitioner and on the way he was attacked by 8/9 miscreants who snatched away the brief-case containing cash after hitting the deceased with sharp cutting weapon. He was shifted to Malda Sadar Hospital in an injured condition where he succumbed to the injuries. It appears from Exbt.9 which is charge sheet against 5 accused persons u/s 396, 412 IPC after arrest of miscreants responsible and recovery of stolen properties. Thus the death of deceased insured was resulted in course of dacoity for snatching away the brief-case containing cash from the custody of victims.

 

          In view of above this Forum finds opportunity to refer 2006 CTJ 983 (CP) (NCDRC) wherein para 6 of the observation which is very relevant to this case which reads as follows:-

 

          “The Hon’ble Supreme Court had occasion to go in the similar set of circumstances, in the case of “Smt. Rita Debi v. New India Assurance Co. Ltd.” [2000 SOL Case No.289] Para 9 of this judgement is relevant for our purpose, which is as follows:- 

 

          “The question, therefore, is can a murder be an accident in any given case? There is no doubt that ‘murder’ as it is understood. In the common parlance is a felonious act where death is cause with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a ‘murder’ which is not an accident and ‘murder’ which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the act of felony is the kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was cause in furtherance of any other felonious act then such murder is an accidental murder.” (emphasis supplied).

 

          Thus from the above observation and from the facts & circumstances referred to in Exbt.2 and Exbt.9 it can be said that the act of murder of deceased insured was originally not intended by the miscreants, their intention was to snatch away the brief-case containing cash by use of force and the murder was caused in furtherance of felonious act i.e. use of force violently by assaulting the victim with sharp cutting weapon which resulted the death, then such murder is an accidental murder. Moreover, the police case in question is subjudice and the cause of death is yet to be decided by the Ld. trying Court.

 

          Thus from the above facts & circumstances it can safely be said that the service of O.P. No.1 & 2 suffers from deficiency by not disbursing claim of the petitioner after receiving duly completed claim form with required relevant documents within 24.12.2005.

 

          Both the points are thus disposed of in the affirmative.

 

          Proper fees have been paid.

 

that Malda D.F. Case No.10/2008 is decreed on contest as against O.p. No.1 and 2 (The Divisional Manager, The New India Assurance Company Limited, Howrah Divisional Office – 512200, P-18, Dobson Lane, Howrah – 711 101 and The Branch Manager, The New India Assurance Company Limited, 21/22, Rabindra Avenue, P.O. & Dist. Malda 732101) and dismissed against O.P. Nos. 3 & 4 (The Manager, The Golden Trust Financial Services, S.B. Manson, 16, R.N. Mukherjee Road, Kolkata – 700 001 and The Manager, The Golden Trust Financial Services, at Rathbari, P.O. Rathbari, P.S. English Bazar, Dist. Malda). The petitioner do get award of Rs.1,00,000/- (rupees one lakh) only. The O.P. Nos. 1 & 2 jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which the amount shall corry interest @9% per annum till its final realization.

 

          The petitioner also do get compensation of Rs.5,000/- (rupees five thousand) only towards harassment and mental agony. O.P. No.1 & 2 jointly and severally do pay the aforesaid amount within 30 days from the date of receipt of the order.

 

          Failure to comply the above orders the petitioner will be at liberty to take recourse to law.

 

          Let copy of order be given to both parties free of cost at once.

 

 

Sumana Das                                     A.K. Sinha