O R D E R
(By Sri. Ganesh Jadhav, President)
- The brief facts of complaint are as follows:
2. That the husband of complainant namely Ganga Goud was member in the Society of opposite party No.1 and holder of Kisan Credit Card (KCC) by covering personal accident Group Insurance Master Policy No.APG/10177896/51/04/C55123 from 01-02-2010 to 30-04-2011 through the insurance company of opposite party No.3 in view of tie-up with the opposite party No.2 Bank.
That the said Ganga Goud had sustained injuries in the motor accident occurred on 15-07-2010 and subsequently died on 27-07-2010 while taking treatment in the Gandhi Hospital, Hyderabad. The matter was reported to the PS police Pitlam who registered a case and issued FIR No.67/2010 and investigated into the matter and field the charge sheet which shows that the deceased Ganga Goud died due to the injuries sustained in the accident. The complainant has made claim before opposite parties 1 to 3 have not settled, but they have not settled the claim. Hence filed this complaint for payment of Rs.1,00,000/- under personal accident Group insurance policy with interest and compensation along with costs.
3. The opposite parties 1 and 2 have filed their counters separately but their replies are one and the same. They mainly contended that they are only facilitators for covering personal accident Group Insurance Policy to the KCC holders of Co-operative Society members from the insurance company of opposite party No.3 as per the norms of NABARD. It is bounden duty of opposite party No.3 company to settle the claim under Group policy. There is no negligence on their part and the complaint is liable to be dismissed against opposite parties 1 and 2.
4. The opposite party No.3 filed counter and stated that the complainant suppressed real facts and concocted story for wrong full gain and got issued FIR No.67 of 2010 of PS Pitlam, that the husband of complainant Ganga Goud was died accidently. As per exclusion No.(8) (v), the opposite party No.3 shall not liable under the policy. After death, any written notice either by complainant or by opposite parties 1 and 2 have not given nor furnished with full particulars to the opposite party No.3 for claim but reported on 18-07-2011 beyond the prescribed period. Therefore violated condition (11) (a & b) of the policy. The question of considering the claim does not arise at all and rightly repudiated the claim. This is a fraudulent claim on all false grounds created by complainant for wrongfull gains, as such the complaint is not maintainable either in-law or on facts. Further stated that the opposite party No.2 obtained Bharati Axa Group Personal Accident insurance policy No.APG/10177896/51/04/C55123 effective from 01-02-2010 to midnight 30-04-2011, covering KCC account holder of the bank for the risk of one lakh Rupees only without interest and costs under the policy. The liability of opposite party No.3 is strictly governed by terms and conditions, exclusions laid down in the policy. Any breach of terms and conditions does not make liable the opposite party No.3 for payment of any amount under the policy. All other allegations are denied. There is no deficiency or negligence on the part of opposite party No.3 and the complaint is fit to be dismissed with exemplary costs.
5. During enquiry, the complainant filed her affidavit as PW1 and got marked Ex.A1 to A8 documents and closed her evidence. The opposite parties 1 and 2 have filed the affidavit of Ananth Rao CEO NDCC Bank, Nizamabad as RW2 on their behalf and closed their evidence. The opposite party No.3 filed the affidavit of S.Naresh, Claims Analyst of Bharati Axa General Insurance Company Ltd., Hyderabad as RW1 and got marked Ex.B1 document on its behalf and closed its evidence.
6. Heard Arguments on both sides.
7. The points for consideration are:-
1) Whether there is any deficiency Service on the part of opposite parties in repudiating the claim under policy ?
2) To what relief?
8. Point No. 1 & 2: It is not in dispute that the insurance company of opposite party No.3 has issued personal accident group insurance master policy No.APG/10177896/51/04/C55123 valid from 01-02-2010 to 30-04-2011 in Ex.B1 for sum insured Rs.1,00,000/- each to the KCC (Kisan Credit Card) holders of Co-operative Societies in Nizamabad district as per tie-up with the NDCC (Nizamabad District Co-operative Central) Bank of opposite party No.2.
The opposite party No.3 Insurance company has resisted and repudiated the claim of complainant mainly on the premise that the death of deceased was not an accidental one and there was a delay in claim which are excluded under clause 8 (V) and violated the condition under clause 11 (a) & (b) of the respective policy terms conditions and exclusions.
The case of the complainant is that her husband Ganga Goud was a KCC holder through opposite party No.1 society and died accidentally. She submitted her claim through opposite parties 1 and 2, but the opposite party No.3 has repudiated the same. She relied upon Ex.A1 to A8 documents to prove her case.
Ex.A1 is Copy of FIR No.67/10 PS Pitlam dt.17-7-2010, Ex.A2 is Copy of Inquest, Ex.A3 is Copy of PME dt.28-7-2010, Ex.A4 is Copy of Charge sheet dt.6-9-2010, Ex.A5 is Copy of the KCC Account pass book, Ex.A6 is Copy of Repudiation letter addressed by OP No.3 dt.25-7-2011, Ex.A7 is Death Certificate of Ganga goud, and Ex.A8 Copy of MVI Report.
It is mentioned in Ex.B1 policy that the GPA policy was issued on UN-NAMED basis for KCC account holders of Nizamabad District Co-operative Central Bank (NDCCB) under its identification. The opposite parties 1 and 2 have admitted that the deceased was a KCC holder through the society of opposite party No.1 and enlisted his name into Personal Accident Group Insurance Master policy for the year 2010-2011 in Ex.B1. Ex.A5 is showing the KCC cum pass book in the name of deceased issued by opposite party No.1. Hence it is held that the deceased was KCC holder and his name was enlisted in Ex.B1 GPA policy.
The complainant has stated that her husband was died on 27-07-2010 accidentally in a motor accident occurred on 15-07-2010. Ex.A1 is the FIR, Ex.A2 is the inquest panchanama over the dead body, Ex.A3 is the post-mortem report and Ex.A4 is the charge sheet filed by police. It is mentioned in post-mortem report in Ex.A3 that opinion as to the cause of death is due to head injury. The version of the opposite party No.3 is that the death of the deceased was not accidental, but it is a concocted story which attracts the exclusion clause 8 (V) of Ex.B1 policy.
The exclusion clause 8 (V) of Ex.B1 policy is re-produced here under:-
General Exclusions:-
8 Any claim in respect of accidental death or permanent disablement of the insured person:
V) Arising or resulting from the insured person committing any breach of law or participating in an actual or attempted felony, riot, crime, misdemeanour or civil commotion.
No investigator is appointed nor adduced any piece of evidence by opposite party No.3 to rebutting the evidence in Ex.A1, Ex.A2, Ex.A3 and Ex.A4 adduced by complainant. We do not see any reason not to give credence to the evidence of post mortem report in Ex.A3 that the deceased was died accidentally due to head injury. 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 complainant’s claim is beyond prescribed period of one calendar month which is violated the condition in 11 (a) & (b) of the policy in Ex.B1 and repudiated the same as no claim.
As far as the intimation of accidental death is concerned, the complainant has stated that she submitted her claim within time.
The learned counsel for the opposite party No.3 has vehemently argued and filed written arguments that the liability of insurance company of opposite party No.3 is strictly governed by terms and conditions, exclusions laid down in Ex.B1 policy and he relied mainly on a common judgment of Hon’ble Apex court in a Civil Appeal No.1557 of 2004 between Export Credit Guarantee Corpn. of India Versus M/s Garg Sons International with Civil Appeal Nos.1553, 1548, 1555, 1556, 1549, 1552, 1551, 1558, 1550, 1559, 1543, 1542, 1546, 1544, 1545 and 1547 of 2004.
The learned counsel for the complainant also vehemently argued that there is no delay on the part of complainant in claiming GPA policy amount under Ex.B1. However, if it is presumed but not admitted that, the prescribed period of one calendar month mentioned in condition in 11 (a) & (b) of Ex.B1 policy is not a mandatory to repudiated genuine claim as no claim. The said condition is only a directory to speed-up the process of claim. The learned counsel for complainant further stated that the Hon’ble Apex court’s common judgment (stated supra) is not applicable to the facts of present case. He mainly relied upon Hon’ble Tamil Nadu State Commission judgment between New India Assurance Company Ltd., Versus N.Ekambaram reported in CPJ 2005 October part at page No.41.
In view of aforesaid submissions it is just and necessary to reproduce the condition mentioned in 11 (a) & (b) of Ex.B1 policy herein under:-
CONDITIONS:-
11) Duty of the insured / insured person on occurrence of loss: On the occurrence of loss within the scope of cover under the policy, the insured / insured person shall:-
- Give written notice with full particulars to the company immediately. In case of death, written notice of death must; unless reasonable cause is shown be so given before interment / cremation, and in any case within one calendar month after the death, and in the event of loss of sight or amputation of limb (s), written notice thereof must be given within one calendar month after such loss of sight or amputation.
- Proof satisfactory to the company shall be furnished on all matters upon which a claim is based.
On perusal of material on record we observed that there is no proof of intimation of death of insured given in writing to the insurance company of opposite party No.3 either by complainant or by opposite parties 1 and 2 within prescribed period from the date of accidental death of deceased. Therefore we are not inclined to accept the version of complainant that there is no delay in claiming GPA policy amount under Ex.B1
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 to 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 ‘only on declaration of shipments’ and ‘its overdue payments’. In the instant case the said 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. 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 in cited common judgment case and the Hon’ble Apex court judgment 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 as stated supra supporting to 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 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 II 2007 page No.300.
- New India Assurance Co Ltd., Versus Mr. Nanasaheb Hanumant Jadhav & others – Maharashtra State Commission – Reported in CPR (2) 2005 May / June part 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 the above cases holds that the condition with regard to the time limit is not mandatory. It is directory. The time limit clause is meant for the interest of the insured in order to facilitate prompt scrutiny of the claim. Therefore the time limit clause cannot be used in detriment to the interest of the insured.
In view of aforesaid discussion and findings we are of the view that the action of repudiation on the part of insurance company of opposite party No.3 is not at all justified. Therefore the Opposite Party No.3 is liable to pay the insurance claim to the complainant under Ex.B1 policy.
The role of opposite parties 1 and 2 is only facilitators for providing GPA insurance policy in Ex.B1 as per the norms of NABARD. They are not find fault in any part of action for repudiation of the claim. Hence the complaint is liable to be dismissed against opposite parties 1 and 2.
The complainant has not adduced any evidence for awarding compensation and damages.
9. IN THE RESULT, the complaint is allowed in part as under:-
1. The opposite party No.3 is directed to pay Rs.1,00,000/- (Rupees One Lakh only) to the complainant with 9% interest per annum from the date of complaint i.e. 21-03-2012 till realisation towards accidental death claim under Ex.B1 GPA insurance policy.
2. The opposite party No.3 also directed to pay Rs.1,000/- (Rupees One thousand only) to the complainant towards costs.
3. The complaint is DISMISSED against opposite party 1 and 2 without costs.
4. 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 and pronounced by me in Open Forum on this the 28th day of January 2014.
