Sri. Apurba Kr. Ghosh ……….President

The Complainant has filed this case against the OP u/s 12 of the Consumer Protection Act 1986 and praying for the following order / reliefs:-

1. Direction against the O.P. to pay the insured sum of Rs. 15,00,000/-.
2. Direction against the OP to pay an amount of Rs. 5,00,000/- on account of compensation for deficiency of service as well as for professional loss, harassment and mental agony caused to the complainant No. 1.
3. Direction against the OP to pay a sum of Rs. 25,000/- towards cost of legal proceedings.
4. Any other relief/reliefs to which the complainants are entitled as per law.

   BRIEF FACT OF THE COMPLAINT

1. That the Complainant is a law abiding citizen and legally weded wife of late Pradip Das resident of Dayaram Jote under District- Darjeeling.
2. That the husband of the complainant was a consumer of the OP and the complainant No. 2 is the minor son of the complainant No. 1 and her deceased husband.
3. That, the OP is a private Insurance Company and the Proforma-OP is mother in law of the complainant No. 1.
4. That, the husband of the complainant No. 1 met with an Motor Cycle accident on 26.09.2019 near Matigara underpass, Siliguri and he died.
5. That a police case being Matigara P.S. Case No. 812/2019 dated 26.09.2019 was started and it was caused by the driver of Tanker No. NA-6KH-9626 resulted the death of the husband of the complainant No. 1.
6. That, post mortem was done and the Post Mortem Report dated 27.09.2019 and death certificate dated 29.09.2019 of the deceased Pradip Das was issued .
7. That, during the life time of Pradip Das he purchased one two wheeler package policy from the OP being policy No. OG-20-2404-1826-00001344 being customer ID No. 155065591 for vehicle No. WB 74AZ 2304 and the policy was valid and those certificate of registration of the vehicle and the two wheeler package policy schedule is lying with the complainant No.1.
8. That, the complainant No. 1 subsequently approached the OP through letter of intimation dated 19.12.2019 to claim for the insurance which was purchased by her deceased husband.
9. That, following the death of husband of the complainant No. 1 she was forced to leave her matrimonial home by the Proforma-OP. The address of the deceased husband of the complainant No. 1 was at Dayaram Jote Naxalbari, P.O. & P.S.- Naxalbari, Dist.- Darjeeling.
10. That, due to communication gap the complainant No. 1 did not receive any reminder/letter from the OP which resulted the closing of the claim No. OC-20-2024-1826-00000193.
11. That, as soon as the complainant No. 1 came to know that the claim was closed she approached the OP again vide a letter dated 25.08.2020 requested to reopen the claim case.
12. That, the complainant No. 1 in good faith approached the opposite party’s office at Siliguri on several occasions requesting for settlement of her claim case but of no result.
13. That, the complainant No. 1 also wrote and sent formal request for reopening the claim case but the officials of the OP always tried to postpone the matter by giving excuse and by demanding documents which the complainant No. 1 did not possess. That the complainant No. 1 has in her possession the letter dated 19.12.2019 and 25.08.2020 which were sent to the OP.
14. That, the complainant No. 1 sent legal notice dated 10.10.2020 to the OP annexing all the relevant and required documents in respect to the insurance policy.
15. That, despite receiving the legal notice as well as documents the OP did not re-open the claim case.
16. That, the acts of the OP has denied the facility or benefit which the complainant No. 1 as a consumer was entitled to and therefore there has been deficiency of service on the part of the OP.
17. That, the cause of action of this case arose on 10.10.2020 when the complainant No. 1 sent the legal notice requesting the OP for reopening the claim case and the said cause of action is still continuing.

In support of the complaint the complainant has filed the following documents:-

1. Photocopy of Adhaar Card of late Pradip Das, the Complainant’s husband.
2. Photocopy of marriage Certificate of the complainant dt. 30.05.2016.
3. Photocopy of F.I.R. being No. 812/2019 dated 26.09.2019.
4. Photocopy of death certificate of the complainant’s deceased husband.
5. Photocopy of the post mortem report of the complainant’s husband.
6. Photocopy of two wheeler package policy being policy no. OG-20-2404-1826-00001344.
7. Photocopy of certificate of registration for vehicle No. WB74AZ2304.
8. Photocopy of letter of intimation dated 19.12.2019 & letter dated 25.08.2020.
9. Photocopy of legal notice dated 10.10.2020 along with postal receipt.
10.  Photocopy of online postal tracking dated 02.11.2020.

Notice was issued from this Commission for causing service of the same upon the OP. On receipt of notice the OP appears before this Commission through Vokalatnama filed written version, denied all the allegations of the complainants.

In the written version the OP has stated that, the case is not maintainable either in law or in facts/the claim of the complainant is not lawful, proper and bona fide/this Commission has no jurisdiction to entertain and determine the unjust complaint/there is no cause of action against the OP/ the complainant has filed this case with an ulterior motive to derive unlawful pecuniary gain on some false allegations that the point of maintainability must be decided first instance/the instant complaint is frivolous and harassive. The OP has further stated in the W.V. that, the statements made in Para No. 1 to 5 and 7 to 12 of the complaint are matter of record and the complainant is bound to prove the same/the statement of Para No. 6 of the complaint is true and admitted by the OP/the statements of Para No. 13 & 14 (1^st Part) of the complaint are totally false and disputed by the OP/statements of Para No. 14 (2^nd part) and 15 of the complaint are true and admitted by the OP/ statements made in Para No. 16 to 20 of the complaint are totally false baseless and the same are disputed by the OP.

The OP has further stated in the W.V. that, the Pradip Das had purchased a Two Wheeler Package Policy from the OP vide policy No. OG-20-2404-1826-00001344 for vehicle No. WB-74-AZ2304 valid from 30.07.2019 to 29.07.2020 but the same is subject to terms, conditions exclusions and definition contained therein. It is also stated that, in the event of any claim arises of the insurance policy it is the prima facie duty of the insured/claimant to give all such information and assistance as the company shall require for processing the claim as per terms and conditions of the policy but there was no response given by the complainant to the OP towards the letter/reminder and finding no other alternative the OP closed the claim case on 25.08.2020. By filing the  written version the OP praying for dismissal of this case.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, documents filed by the complainants, written version of the OP the following points are taken to be considered/decided by this Commission.

POINTS FOR CONSIDERARTION  

1. Whether the Complainants are a consumer?
2. Whether the case is maintainable under the C.P. Act?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainants?
4. Is the Complainants entitled to get any award and relief as prayed for as per the prayer of her Complaint?

Decision with Reasons

 All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the complainant has adduced evidence. In the written evidence the complainant No. 1 has corroborated the contents of her written complaint. She specifically stated that, her husband had purchased Two Wheeler Package Policy during his life time and on 26.09.2019 her husband met with an accident and he died. The complainant No. 1 has further stated in her evidence that, she subsequently wrote a letter to the OP asking to pay the insurance claim in respect of the policy being in No. OG-20-2404-1826-00000193 which was subsequently closed. The complainant No. 1 has also stated that, when she came to know about the closing of that claim she requested the OP by writing a letter on 25.08.2020 for reopening the claim case but the OP paid no heed and thereby she sent legal notice dated 11.10.2020 which was received by the OP on 13.10.2020 but of no result though she stated that, she sent all the required documents along with the legal notice for processing the insurance claim.

At the time of argument Ld. Advocate of the complainant submits that, they have already filed the written notes of argument and stated everything. It is also argument of the complainant that, the complainant No. 1 submitted claim intimation on 19.12.2019 which was duly acknowledged by the OP and the OP in its written version as well as in their written evidence admits the same. It is further argument that, after getting claim intimation of the complainant No. 1 the OP appointed one investigator who visited the house of the insured, had met with the claimant and the same has also been admitted by the OP in its evidence. It is further argument of Ld. Advocate of the complainant that, the investigator had submitted a false report in respect of the claim case of the complainant No. 1 and on the basis of that false investigation report the OP had closed the claim of the complainant. It is also the argument of the complainant that, the complainant intimate the new address to the OP through an intimation dated 19.12.2019 but the OP made no communication with the complainant and there after the complainant made an application on 25.08.2020 for reopening the claim which was within the period of limitation in the time of pandemic Covid-19 but the OP after getting the request letter of the complainant intimate that they have closed the claim and that practice of the OP is nothing but an unfair trade practice towards the complainant.

The OP was given opportunity to adduce evidence on their behalf. To falsify the case of the complainant the OP adduced evidence in the form of an Affidavit and in their written evidence they corroborated their written version. In the evidence the OP has stated that, on several occasions they requested the complainant to provide the relevant documents for processing the claim case but the complainant did not provide the same. In the written evidence as well as in their written notes of argument the OP has claimed that, immediately after getting intimation from the complainant about the death of the insured they appointed surveyor who visited the house of the insured, met with the complainant and asked them to provide relevant documents but they did not provide the same. It is also argument of the OP that, the complainant after lodging intimation on 19.12.2019 had never turned up to provide the relevant documents except the claim form. It is also argument of the OP that, they sent reminder letter dated 01.01.2020 and 25.02.2020 to the complainant requesting her to provide required documents mandatory to process the claim but the complainant did not provide the same within 7 days from the receipt of the letter and on 25.08.2020 the claim was closed. During argument Ld. Advocate of the OP submits that, there was no deficiency of service as well as restrictive trade practice on the side of the OP and the complainant has filed this case by suppressing the actual fact to extort compensation amount from the OP.

Having heard the Ld. Advocate of both the parties and on perusal of the evidence of the complainant, OP and on perusal of their documents including the written notes of argument in is admitted fact that, the husband of the complainant No. 1 had purchased the “Two Wheeler Package Policy” being in No. OG-20-2404-1826-00001344 from the OP. It is also admitted fact that, the policy was valid and effective when the insured met with an accident on 26.09.2019 and died. It is also admitted by the OP that the complainant No. 1 sent claim intimation to the OP on 19.12.2019 which was duly acknowledged by the OP. It is claim of the complainant No. 1 that, she intimate the OP regarding her new address as she was compelled to leave her matrimonial home. But it is not denied by the OP that they did not get the new address of the complainant No. 1.

From the evidence of the OP as well as from their written notes of argument it is claim of the OP that, the complainant after lodging the simple intimation on 19.12.2019 had never turned up to provide the required documents to the OP to process the claim and they sent reminder letter on 01.01.2020 & on 25.02.2020 to the complainant. But in support of their claim the OP did not produce any documents before this Commission to prove the fact that, that reminder letter was duly received by the complainant No. 1. On the other hand the complainant No. 1 by producing photocopy of letter dated 19.12.2019 & 25.08.2020 has been able to prove that, she sent those letters to the OP disclosing her new address also.

More over the complainants have filed the photocopy of legal notice dated 10.10.2020 along with postal receipt, postal track report dated 02.11.2020 which clearly proves that, the said legal notice was duly served upon the OP. From the said legal notice it is also proves that, the complainant No. 1 had sent relevant required documents along with that legal notice to the OP for settlement of the claim . But the said claim of the complainant No. 1 has not been challenged by the OP. Therefore it can safely be presumed that, the complainant no. 1 sent not only the legal notice but also documents.

From the evidence of the OP and from their written notes of argument it appears that, the OP claims that, immediately on getting intimation of insurance claim from the complainant on 19.12.2019 they appointed an investigator who visited the house of the insured, met with the complainants and submitted the report on 01.11.2019.

From the evidence of the OP it reveals that, in the written evidence of the OP has specifically stated that, the investigator submitted his report on 01.11.2019. But that claim of the OP is not at all correct because the complainant No. 1 submitted the claim intimation to the OP on 19.12.2019 and therefore it would not be possible for the investigator to submit his report on 01.11.2019 which is 50 days prior to giving intimation of claim by the complainant No. 1 to the OP. Accordingly we can safely hold that, the report of the investigator was nothing but a table work who without investigating the matter had submitted the perfunctory report. In this regard the answer given by the OP to the questionnaires of the complainant it is admitted by the OP that, the report of the investigator was not true.

From the evidence of the complainant No. 1 it reveals that, she has stated that, she submitted her new address to the OP on 19.12.2019 and the same had not been challenged by the OP. But the OP has failed to explain before this Commission as to why they made no communication with the complainant No. 1 to her new address.

From the record it further reveals that, on 25.08.2020 the complainant No. 1 sent a letter to the OP requesting for reopening the claim case and the OP on the same day closed the claim application of the complainant No. 1. But the OP did not explain and did not provide any clarification in their evidence as to why after waiting of 11 months for settlement of claim the OP closed the claim immediately on receiving the application from the complainant No. 1 for re-opening the claim. That whimsical closure of the claim of the complainant without assigning proper reasons/explanation by the OP is nothing but the deficiency of service.

Considering all we are of the view that, the complainants have been able to prove the case against the OP and there was deficiency of service on the part of the OP towards the complainants.

Hence, it is therefore,

O R D E R E D

That the instant Consumer Case being No. 05/2021 is hereby allowed on contest against the OP. But in part.

The OP is directed to pay a sum of Rs. 15,00,000/- (Rupees Fifteen Lakh) only to the legal heirs of the deceased husband of the complainant No. 1 towards personal accident  benefit. The OP is also directed to pay a sum of Rs. 50,000/- (Rupees Fifty thousand) only to the legal heirs of the deceased (Pradip Das) towards compensation for causing mental pain, agony and Rs. 10,000/- (Rupees Ten Thousand) only to the said legal heirs of the deceased husband of the complainant No. 1 as cost of legal proceedings. The OP is also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

The OP is directed to pay the awarded amount within 45 days from this day, by issuing three Account Payee Cheques of equal amount (two in the name of the complainant No. 1 and one in the name of Kalpana Das (Promorma OP i.e. mother of the deceased). The complainant  No. 1 is directed to deposit the amount of the complainant No. 2 (Minor Son) with any profitable scheme in any Nationalized Bank or Post office till the minor son (Complainant No. 2) attain majority.

Complainant No. 1 is given liberty to withdraw interest therefrom time to time, if so required for the benefit and welfare of the minor.

The OP is directed to pay the awarded amount within 45 days from this day failing which the complainants have liberty to take proper steps against the OP as per law.

Let a copy of this order be given to the parties free of cost.