West Bengal

South 24 Parganas

CC/64/2015

Smt. Chhaya Adhikary, Wife of Sri Sailen Adhikary. - Complainant(s)

Versus

1. The Manager, The New India Assurance Co. Ltd. - Opp.Party(s)

Tapas Kumar Maity.

11 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _64_ OF ___2015_

 

DATE OF FILING : 9.2.2015                       DATE OF PASSING JUDGEMENT:  _11.04.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu 

                                                                             

COMPLAINANT        :    Smt. Chhaya Adhikary,w/o Sri Sailen Adhikary of Vill. & P.O Alampur, P.S. Nodakhali, Dist. South 24-Parganas.

 

•  VERSUS  -

 

O.P/O.Ps                            :  1. The Manager, the New India Assurance Co. Ltd. 39, Diamond Harbour Road, P.S Thakurpukur, Kolkata – 8

                                              2.    The Manager, Golden Trust Financial Services, 16, R.N. Mukherjee Road, Kolkata – 700 001.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Udayan Mukhopadhyay, President

This application under section 12 of the C.P Act, 1986 has been filed by the complainant on the ground that the insured Santu Adhikary ,son of the complainant purchased a Group Janata Personal Accident Insurance Policy from the O.P-1 being Policy no.4751220001799 valid from 1.8.2000 to 31.7.2005 and sum assured is Rs.3,00,000/-. A copy of the police is annexed as annexure A.

But due to accidental death of the insured Santu Adhikary on 8.5.2002 the complainant claimed to the O.P-1 on 21.3.2003 and O.P-1 sent a letter along with the claim form on 26.3.2003 and wanted sum documents which the complainant already submitted along with the claim form i.e. FIR, copy of charge sheet, death certificate and copy of P.M report. Copies of the said documents are annexed herewith as Serial no. D,E.F.G H. It has claimed that the O.P-1 appointed Investigator to investigate the matter on 27.6.2011 and Investigator assured the complainant that the matter will be settled at an early date but inspite of several requests even through lawyer’s letter , al although the O.P-1 assured that the matter is in process but no fruitful result as yet comes out, for which, complainant filed this case for realization of the assured amount with interest @12% p.a from the date of intimation till its realization.

It has claimed that due to sudden death of her son complainant was shocked ,for which she is unable to submit the claim in time and there was some delay which is not willful laches and negligence of the complainant. The complainant has prayed for assured money of Rs.3 lacs along with interest @12% p.a from the date of intimation till its realization and compensation of Rs.50,000/- and cost.

The O.P 2 filed written statement and has claimed that Santu Adhikary ,since deceased, was a field worker of Golden Trust Financial Services  ,O.P-2who obtained a Janata personal Accident Insurance Coverage of New India Assurance Company limited, Howrah Branch, Unit No.512200, Madhusudan Apartment, P-18, Dobson Lane, 2^nd Floor, Howrah-711101 under a group insurance scheme through the facilitation of Golden Trust Financial Services. It has claimed that the said Group Janata Insurance Policy was issued by the  New India Assurance Co. Ltd. Howrah Branch after receipt of due premium by way of consideration money through Golden Trust Financial Services covering the field worker Sri Santu Adhikary for the period from 1.8.2000 to 31.7.2005 for a sum of insured Rs.3lacs only. It has further stated that Mrs. Chhaya Adhikary is the mother and the nominee of the deceased member under the policy. It has further claimed that MOU executed on 30.12.1998 between the O.P nos. 1 and 2 to extend Janata Pesonal Accident policy to cover to their field workers and their family members , their investors and their family members, as well as friends under the Group Insurance scheme. It has claimed that New India Assurance Company Ltd. will be solely and directly responsible in case of any claim contingent upon death, disability ,injury of the insured person subject to terms ,conditions, warranty and exclusions of the policy concerned. It has claimed that the O.P-2 has no negligence or deficiency in service on their part. So, this answering O.P is not responsible in any manner for non-settlement or repudiation of the claim by the New India Assurance Co. Ltd. the O>P-1. It has claimed that complainant has informed that her son Santu Adhikary insured  had met with an accidental death on 8.5.2002. This O.P-2 also submitted that the complainant was advised to submit claim form along with FIR , charge sheet, PM report etc. and it was submitted but O.P-1 did not settle the claim nor inform about the status of the subject claim. Accordingly, O.P-2  has claimed that the withholding settlement and payment of claim to the nominee of the claimant for a long time without any reasonable cause amounts to deficiency in service on the part of the said Insurance Company i.e. O.P-1. It has claimed that the complainant is running from pillar to post and being utterly aggrieved approached the Forum for proper adjudication for ends of justice. Accordingly, this answering O.P has claimed that their names should be expunged or struck off from the complaint case as he has no deficiency of service.

The O.P-1 ,New India assurance Company Ltd. has contested the case by filing written version and has denied all the allegation of the complainant and claimed that the case is not maintainable having no jurisdiction. It has claimed that the insurance coverage as per MOU was to cover the filled workers and their family members , their investors and their family members, as well as friends under the Group Insurance scheme. It has claiemd that that GTFS, O.P-2, challenged the cancellation of MOU by filing a writ application being W.P no. 1144 of 1999 and in such writ application the Hon’ble High Court passed an interim order dated 6.7.1999 inter alia restricting the GTFS from collecting premium from category of friends from the date of such order. It has further stated that Hon’ble High Court stayed the cancellation of MOU and simultaneously injuncted GTFS from collecting premium from categories, friends, as it was argued before the Hon’ble Court that in the name category “friend” coverage was being issued indiscriminately to the public at large and there was no concept of a group. It has claimed that   Insurance Company took a policy decision to limit the sum assured under the Janata Personal Accident Policy  to Rs.1.00 lak and the period of insurance to five years for group JPA policies. Accordingly the existing Insurance Policy has a specific clause of termination being Clause no.5 ,for which a letter dated 1.8.2000 was issued and the long term JPA policy for more than Rs. 3 lakh and more than 5 years were cancelled. But some certificate holders led by one Moitry Roy moved the Hon’ble Court vide writ petition no.1144 of 1999 and the Hon’ble High Court vide order dated 16.6.1999 was inter alia pleased to restrain the insurance Co. from giving effect to the said letter dated 7.5.1999. Thereafter another writ petition was moved by the GTFS against same Insurance Company wherein order was passed by the Hon’ble High Court staying operation of the impugned letter dated 7.5.1999 from collecting any premium from category friend from the ate of the order dated 6.7.1999 SUPRA. It has claimed that considering clause no.5 the Insurance company vide letter dated 1.8.2002  cancelled the long term Janata Accident Policies of more than Rs. 1 lakh coverage for the period of insurance more than 5 years. But it was challenged before the Hon’ble High Court vide writ petition no. 2343 of 2002 and Hon’ble High Court stayed operation of the order dated 1.8.2002. The answering O.P-1 has specifically denied that the certificate holder expired on 8.5.2002 which is an accidental death. It has further stated that the status of the certificate holder was never been submitted and he was not a valid worker and if he was valid worker , complainant should be directed to submit the identity card of the valid worker, appointment letter, Income proof, cash receipt, etc. Accordingly O.P-1 has prayed to direct the GTFS or the complainant to prove the status of the insured with appropriate documents . It is stated that the claim could not be settled and the same was treated as closed due to non submission of proper documents by the claimant to establish the status of the certificate holder for which there is no deficiency in service on the part of the O.P-1  Insurance Company. It has claimed that Malay Nag being an Investigator was appointed to investigate the veracity of the claim raised by the complainant and in the process the said investigator visited the place of accident and also met the complainant at her house and further visited the office of the GTFS  and such visit proves that in the instant claim there is no document and GTFS refused to give any document in support of their certificate issued in the name of Santu Adhikary. The O.P-1 has claimed that the victim was in promoting business and was in no way connected with the GTFS as its field worker . So, status of victim is evidently clear on the face of the connecting FIR and charge sheet made in this regard. It has further stated that from the document it is clear that victim never died out of any accident but he was murdered for his own criminal activity which comes out from the police report under section 173 in connection with Nodakhali P.S case no.40  dated 8.5.2002 u/s 304/34 I.P.C.  It has claimed that from the documents it has come out that while victim was retreating with an armed gang holding a pistol in his hand after raiding a villager with malice and in the process was apprehended by the villager and was beaten to death. So, the death of the victim was not covered by the four corners of the subject policy and on such score the claim has been made as no claim inter alia amongst other stated grounds. Accordingly, O.P-1 prays for dismissal of the case.

Point for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                Decision with reasons

From the documents it appears that Santu Adhikary died which is an accidental death. But the O.P has claimed that the insured never died out of accident but he was murdered for his own criminal activity for which Nodakhali P.S. case no. 40 dated 8.5.2002 u/s 304/34 I.P.C was started.

So, we have to discuss regarding the “Meaning of accident” -  “The event insured against may be indicated in the policy solely by reference to the phrase “injury by accident” or the equivalent phrase ‘accident injury , or it may be indicated as ‘injury caused by or resulting from an accident’ . The word ‘accident’ or its adjective ‘accidental’ is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease or the natural /progression of some constitutional physical or mental defect, but the ambit of what is included by the work is not entirely clear. It has been said that what is postulated is the intervention of some cause which is brought into operation by chance so as to be fairly describable as fortuitous. The idea of something haphazard is not necessarily inherent in the word. It covers any unlooked for mishap or an untoward event which is not expected or designed or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence. It being irrelevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The stand point is that of the victim, so that even willful murder may be accidental as far as the victim is concerned”.

Relying on the aforesaid observation that from the stand point of the victim even willful murder may be accidental as far as the victim is concerned, contrary view even if it is possible in the given facts, the onus is on the insurer to prove the same. In the present facts the insurer having not proved in any way that the murder in the present case was not accidental even to the victim, the ground taken by the insurer in the present case cannot be relied on . Thus we hold that it is an accident since the nature of death is unnatural and it was beyond the scope of the insurer regarding his unnatural death. No one like to finish his life in this way save and except suicide. So, the Argument led by the Insurance company ,O.P-1, has no leg to stand.

The next argument of the O.P-1 is that coverage is extended only to the group consisting of three elements, i.e. investors, field workers and their family members. So, why the GTFS has failed to produce the status certificate in the instant vase and thereby it should not be possible to settle the same for want of status certificate. It is not dispute that the Insurance company already certified that certificate no.475/220001799 valid from 1.8.2000 to 31.7.2005 sum assured Rs. 3 lacs under the Group Janata Personal Accident Insurance Policy and name of the nominee was Chaya Adhikary who is the mother of the deceased and who happens to be the complainant in the present case. It is true that the said policy was surely issued after full satisfaction of the Insurance Company ,O.P-1 about the status of the insured, particularly when the insurance company is aware regarding the writ petition filed before the Hon’ble High Court, wherein, status is mandatory. Status of friend will not be accepted.

Be that as it may, question of verification of status after the death of the insured is highly irregular for the purpose of settlement of insurance claim which is beyond the condition of the policy. Moreover, we find from the photograph of the receipts which was sent by the O.P-2 to the O.P-1 regarding the payment of premium which are all received by the Howrah Branch office of the O.P-1. Apart from that from annexure C, it appears that Santu Adhikary was the policy holder and sum assured was Rs.3 lacs and O.P-1 has received the said amount and issued money receipts to that effect in all Rs.23,10,000/- on 1.8.2000 for all investors including deceased Santu Adhikary. So, after receiving of the premiums at the time of settlement the O.P-1 has awaken and submitted that the status of the insurer is required for the settlement of the claim which is not justified at all. We failed to understand what prompted the O.P-1 to appoint Moloy Nag , an Investigator to collect from the O.p-2 the certificate regarding status after death of the insurer Santu Adhikary. It should be at the time of acceptance of the policy but O.P-1 already collected premium and at the time of settlement, did all these things which is not at all justified. The O.P-2 filed BNA and also claimed and expressed his grievances against the O.P-1. It is the positive case of the O.P-2 that after receipt of the complete proposal Form, from the insured person, the said Insurance company was free either to accept the same or not to accept the same.  But once the proposal of the insured is accepted upon reciprocal consideration, it becomes a binding contract between the parties. It has further claimed that acceptance of the offer of the said insured ,since deceased, was duly completed by the said Insurance company with the issuance of policy certificate after taking requisite premium which can be termed as consideration for the said Insurance company for which the O.P-1 cannot go beyond the coverage of policy. It has strongly claimed that this insured person is the field worker of the O.P-1 for which the insurance certificate was issued after acceptance of the policy  and now the Insurance company cannot say that they are not liable to settle the same.

We are aware that the Hon’ble High Court has passed an interim order prohibiting the GTFS from collecting premium from the category of “Friend”. So, it was very natural that the insurer would remain quite aware that all such applications under the purview of GTFS policy should be governed accordingly. Moreover, there was no such circumstances to believe that O.P-1 was not aware of the same. So, O.P-1 ought to have accepted the proposal and send the certificate to the Insured Santu Adhikary after verification of all these things and the status of the deceased insured in question before and before issuing the certificate the status should be verified by their Investigator. So, at this stage their tears has no leg to stand in the eye of Law.

Lastly , in terms of Section 19 of the Contract Act, 1872 a contract would not be voidable if the consent was caused by misrepresentation or by silence , fraudulent and within the meaning of section 17 if the  party whose consent was so caused had the means of discovering the truth with ordinary diligence.

The insurer could have easily called for requisite documents from the GTFS about the status of the complainant’s son before issuance of the policy if they so desire even appointing their Investigator . So, O.P-1 accepted the premium in good faith without feeling necessary to check the status of the inured ,since deceased, and they should settle the claim without fail . Admittedly by virtue of MOU executed between the GTFS and the insurer (herein O.P-1) entire liability of settlement of insurance claim lies with the insurer. It is true that if the GTFS did any wrong it is up to the Insurance company to take proper legal steps as they deem fit and proper but not throwing the liability of the insured without any cogent ground. It is to be mentioned here that as to the issue of upper ceiling of insurance coverage to the tune of Rs.1 lac under the GTFS policy as per government norms as circulated by the insurer , it requires to be stated that if there was indeed such stipulation, it is the duty of the insurer who was aware of the fact not to receive such proposal which is more than Rs.1 lac and proportionate premium should be refunded. But after the accident , all these grievances should not be raised because they cannot retreat from their commitment. .

With that observation we find that a mother has lost her son and when the cause of death is unnatural death, the duty of the O.P-1 is to settle the claim. When Insurance company has not settled the claim it is no doubt deficiency in service.

Hence,

                                                                                    Ordered

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

The O.P-1 is directed to pay the assured amount of Rs.3 lacs to the complainant within 45 days from the date of this order, failing which, interest will carry @12% p.a from the date of default till its realization.

The O.P-1 has to pay compensation for harassment of the mother who has lost her son in the very early days of his life ,amounting to Rs.25000/- and litigation cost of Rs.5000/-  to the complainant within that stipulated period of 45 days ,failing which, 9% interest will carry on the total amount of cost and compensation from the date of default till its realization.

The O.P-2 GTFS is directed to see that payment should be made within the stipulated date and their active cooperation in the matter of recovery of the amount is badly needed because O.P-2 is the company who collected the money from the complainant’s son and sent the same to the O.P-1.

If the O.p-1 failed to pay the money within the stipulated period ,then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps  through speed post for expedite payment.   

 

Member                                               Member                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement 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-1 is directed to pay the assured amount of Rs.3 lacs to the complainant within 45 days from the date of this order, failing which, interest will carry @12% p.a from the date of default till its realization.

The O.P-1 has to pay compensation for harassment of the mother who has lost her son in the very early days of his life ,amounting to Rs.25000/- and litigation cost of Rs.5000/-  to the complainant within that stipulated period of 45 days ,failing which, 9% interest will carry on the total amount of cost and compensation from the date of default till its realization.

The O.P-2 GTFS is directed to see that payment should be made within the stipulated date and their active cooperation in the matter of recovery of the amount is badly needed because O.P-2 is the company who collected the money from the complainant’s son and sent the same to the O.P-1.

If the O.p-1 failed to pay the money within the stipulated period ,then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps  through speed post for expedite payment .

 

 

Member                                               Member                                                                       President