IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/114/2016
Date of Filing: 26.07.16 Date of Final Order: 25.04.19
Complainant: Desh Ranjan Sarkar,
S/O Late Subodh Chnadra Sarkar,
Vill-Tatipara, PO-Arungabad,
PS-Suti, Dist-Murshidabad,
Pin-742201
-Vs-
Opposite Party: 1. Branch Manager,
ICICI Lombard GIC Ltd.
Manjuri 1st Floor, 168,R.N. Tagore Road,
PO&PS-Berhampore,
Dist-Murshidabad,
Pin-742101
2. Branch Manager,
TVS Credit Service Ltd,
Kadbeltola, PO-Cossimbazar Raj,
PS-Berhampore,
Dist-Murshidabad,
Pin-742102
Agent/Advocate for the Complainant : Sri. Siddhartha Sankar Dhar
Agent/Advocate for the Opposite Party: OP No.1. Sri. Nilabja Datta
OP No.2. Sri. Indranil Banerjee
Present: Sri Asish Kumar Senapati…………….....…........President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Smt. Aloka Bandyopadhayay,Member.
This is a complaint under section 12 of the CP Act, 1986.
One Desh Ranjan Sarkar (here in after referred to as the Complainant) filed the case against The Branch Manager, ICICI Lombard GIC Ltd. and Others (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The brief fact of the case is as such:-
The son of the Complainant purchased a TVS Scooty Pept vide registration No. WB94A3965 through financial assistance of Opposite Party No.2 and the said Sccoty was insured through ICICI Lombard under a group secured mind policy being No.4080/TVS/95790234/00/000 from the ICICI Lombard General Insurance Ltd. This policy was valid from 30.10.14 to 29.10.16 but all of a sudden on 19.01.15 due to heart attack (Myocardial Infraction), the said son of the Complainant died. And after the death of the son, OP No.2 demanded their outstanding dues and the Complainant filed a claim application before the OP No.1 through OP No.2 for make up the said claim. But no positive result has been received by the Complainant . Again on 22.03.16. Complainant filed another application but no proper reply has been received by him and the Complainant paid all the dues of the OP No.2 from his own fund. Though the complainant has filed claim application before O.P-1but the said op has failed provide to proper reply . Finding no other alternative, Complainant filed the instant case before this Forum for appropriate relief.
After service of the notice OPs appeared by filing their written version. OP No.1 in the written statement stated that it is not possible by him to admit whether vehicle No.WB94A3965 was insured with this Opposite Party at the relevant point of time, unless further and better particulars are disclosed by the claimants and for this reason, the original policy documents and the alleged death of the owner of the vehicle be produced and failing which the name of this Opposite Party be expunged from this case and the complaint is liable to be dismissed.
OP No.2 in the written version stated that the present complainant is not a consumer of him, though the said vehicle was purchased on the basis of finance from the Opposite Party 2 as per loan agreement and after the expiry of the son of the Complainant, all the dues has been cleared by the Petitioner and the OP 2 issued NOC in favour of the Complainant and as such there is no deficiency on the part of this OP and the case is liable to be dismissed.
1.Now the question arises whether Complainant is a consumer?
2.Is the Complainant entitled to get relief, as prayed for?
Decision with reason
All the points are taken up together for consideration for convenience and brevity. Admittedly, the son of Complainant purchased TVS Scooty Pept vide registration No. WB94A3965 through financial assistance of OP No.2 and it is insured with ICICI Lombard General Insurance Ltd. under Group Secure Mind Policy being No.4080/TVS-TW/95790234/00/000 for the period from 30.10.14 to 29.10.16. But all of a sudden on 19.01.15 due to heart attack (Myocardial Infraction) the said son died and OP No.2 demanded their outstanding dues from the Complainant though he was not the purchaser of the said scooter but as a father he is legal heirs of the deceases son.
A vehicle purchased by the son can be used by his father, so as a user a father becomes consumer as per Consumer Protection Act, 1986. As per the petition of complaint the Complainant paid the dues amount to the O.P -2 on behalf of the said deceased son to get the benefit of the said vehicle. So, we have no doubt that the Complainant is a consumer.
It is also admitted by the OP No.2 that the Complainant has paid the dues for repayment of loan amount. But as per the petition of complaint, on repeated request for disbursement of the loan amount to the Complainant OP No.1 has failed to do so.
In the Written Version O.P-1 stated that the coverage of insurance is a contact under certain terms and conditions agreed and entered in between the Insured and the Insurer and therefore, in the event of breach of terms and conditions of the ‘Contract of Insurance’ this OP is not liable to indemnify the loss of the Complainant as the death of the insured was not accidental death.
But as per the critical care (Secure Mind) policy wordings part 11 of the schedule, in unforeseen and undesirable event, the heirs, executors, administrators, successor or legal representatives of the insured may present a claim on behalf of the insured to the company.
In the present case the Complainant lost his 24 years young son which is neither desirable nor foreseen. Such a situation as a legal heir the Complainant is fully entitled to place claim .It is true that there was delay in filing claim before O P 1 but a father who lost his young son was in grief due to death of his son , for that reason there was delay in intimidation to the O P insurance company. Considering the mental condition of a father we think that the delay can be condoned.
At the time of argument the learned counsel for the O P 1 cited a decision rendered by the Hon`ble National Commission in Sbi Life Insurance Co. Ltd. vs Mrs Y.Dayamani on 25May,2010 in Revision Petition No3375 of 2009 wherein the Hon`ble National Commission stated that the nearest ,Acute Myocardial Infarction(heart attack) can be said to be an accidental death would be if such an attack takes place as a result of some external factors/forces but it cannot certainly be said that a death due to heart attack in the normal course would fall in the category of an accidental death. The Ld Advocate for the complainant drew our attention to the Judgement passed by the Hon`ble State Consumer Dispute Redressal Commission , Punjab in Sbi Life Insurance Company…. vs Mrs. Kamaljeet Kaur W/O Mr.Gurlal ….on 22 November 2012 in First Appeal No. 1914/2011where in it has been stated that so death of a young person suddenly having no history of ailment, disease, treatment and having a good health and his death due to sudden heart attack is nothing but an accident .The Hon`ble State Commission further stated “ In the Revision Petition No 3375 of 2009 ‘SBI Life Insurance Co. Ltd Versus Mrs .Y. Dayamani’, desided on 25-05 2010, it was held by the Hon’ble National Commission as follows:- The State Commission further held that in the absence of any prior treatment for heart ailment, such a sudden heart attack can very well be said as an accidental death .No doubt a sudden stoke i.e. heart attack may occur all of a sudden, without any prior apprehension or any symptom and perhaps cannot be foreseen or anticipated .However , given the medical history of the life assured that he was suffering from Diabetes Mellitus for over a period of five years, as reported by the doctor from the railway hospital which cannot be disbelieved, the case of death resulting out of Acute Myocardial Infarction (heart attack), in this case cannot but be held to be a natural death. It is by now well established and acknowledged that diabetic individual more than non-diabetic persons are prone to heart attack/ stokes and such pre-disposition in case of the life assured could not be totally ignored Further a two fold ratio has been laid down in the aforesaid matter:
i)The nearest, Acute Myocardial Infarction (heart attack) can be said to be an accidental death would be if such an attack takes place as a result of some external and sudden incident such as trauma or shock induced by external factors / forces but it cannot certainly be said that a death due to heart attack in the normal course would fall in the category of an accidental death . ii) The State Commission further held that in the absence of any prior treatment for heart ailment, such a sudden heart attack can very well be said as an accidental death. No doubt a sudden stoke i.e. heart attack may occur all of a sudden, without prior apprehension or any symptom and perhaps cannot be foreseen or anticipated”. In this present case , there is no evidence that the deceased was having any heart ailment before his death and he had taken any treatment from any doctor or hospital. The deceased died due to sudden heart attack in such a young age without any prior apprehension . So the death of the deceased is very well fall in the ambit of accidental death as held by the Hon’ble State commission. On the basis of foregoing discussion and Considering the facts and circumstances and the documents filed before us and the argument advanced by the Ld. Advocated on behalf of the respective parties , we are of the opinion that there is deficiency in service on the part of the OP No.1 for not disbursing the claim amount as the policy was valid on the date of occurrence of such unexpected incident and the Complainant has claimed for the said amount . So, the Complainant being a consumer is entitled for relief as there is deficiency of services on the part of the O.P1 by not disbursing the claim amount to the complainant and the complainant has not prayed for any relief from O.P2 and we also do not find any deficiency on the part of OP2 so the case is dismissed against him without cost.
Reason for delay
The Case was filed on 26.07.16 and admitted on 22.08.16. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day order.
In the result, the Consumer case succeeds.
Fees paid are correct. Hence, it is
Ordered
that the Complaint Case No. CC/114/2016 is hereby allowed on contest against the OP No.1 with cost of 2000/- and dismissed against the OP No.2 on contest but without any cost.
The OP No.1 is directed to pay the assured sum to the complainant by sixty days from the date of this order.
The OP No.1 is further directed to pay a litigation cost of Rs.2,000/- and a compensation of Rs.2,000/- for mental pain and agony.
All such payments should be made within 60 days from the date of this order, otherwise the OP No.1 will have to pay interest @ 7% per annum on aforesaid total p amount from this day till payment .
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
Member
Member President.
