C.F. CASE No. : CC/10/106
COMPLAINANT : Jyostna Maity,
W/o Lt. Sudarshan Maity
Vill. Chettlangia Lane,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
OPPOSITE PARTIES/OPs : 1) Branch Manager
AXIS Bank Ltd.
Krishnagar Branch,
12, M.M. Ghosh Street,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
2) Branch Manager,
Bajaj Allianz General Insurance Co. Ltd.
Podder Court Gate No. 3, 7th Floor,
18, Rabindra Sarani, Kolkata - 700001
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 12th January, 2011
: J U D G M E N T :
In brief, the case of the complainant is that her husband late Sudarshan Maity had a savings account in the branch of the OP No. 1 who got one UTI Bank International debit card valid upto May, 2010. According to the terms and conditions the debit card holder is entitled to a comprehensive insurance cover free of cost and was allowed to avail of the personal accident cover upto Rs. 2,00,000/- under this insurance policy. It is her further case that said Sudarshan Maity died on 23.02.06 in an accident regarding which Kotwali P.S. started a case No. 52/06 dtd. 22.02.06 under section 326 I.P.C. with adding section 302 I.P.C. After the death of her husband she met the office of the OP No. 1 several times and intimated about the incident, but the authority of the OP No. 1 did not hand over any insurance claim form to her on the ground that it was a murder case. On 23.12.09 she submitted a written application to the OP No. 1 describing all the facts of the accidental death of her husband with a prayer to give her the insurance money, but to no effect. Thereafter she sent a lawyer’s letter to the OP No. 1 on 11.01.10. On 17.01.10 the OP No. 1 issued a claim form to her which she filed at the branch office of the OP No. 1 on 16.02.10 after filling it duly. By a letter dtd. 17.04.10 the OP No. 2 repudiated her claim on the ground that the claim form was submitted at a belated period as the accident took place on 23.02.06 but the claim form was submitted on 10.04.10, i.e., not within 60 days from the date of the accident. So in view of this the claim was repudiated by the OPs. Thereafter having no other alternative, she has filed this case praying for the reliefs as stated in the petition of complaint.
The OP No. 1 has contested this case by filing a written version, inter alia, stating that the case is maintainable against him as it is the duty of the Insurance Co. to pay any claim amount as covered by the insurance and to that extent there is a MOU executed by and between the OP No. 1 & 2. Besides this the case is barred by limitation also as the complainant did not intimate the incident of the death of her husband within a period of 60 days either to him or to the OP No. 2 which she is duty bound as per the norms of the insurance policy, rather she submitted the documents along with claim form after laps of 3 years 11 months. A booklet was supplied to the card holder at the time of issuing the debit card but the policy rules are not followed by this claimant. The personal accident insurance cover will come in force after the card holder makes his first successful payment transaction at any Merchant Outlet using the debit card in the 365 days prior to the occurrence of the incident and have maintained a minimum balance. In this case the complainant’s husband did not also make any such transaction with any Merchant Outlet within 365 days prior to the incident of his death. If there is any liability i.e., upon the Insurance Co. to consider the case of the complainant and this OP has no role to play in it. So the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
OP No. 2 has also filed a written version in this case, inter alia, stating that the present case is not maintainable in its present form and nature. It is barred by limitation also as it is not filed within a period of two years since the date of the incident. He has also admitted that late Sudarshan Maity had one savings account in the OP UTI bank with one comprehensive insurance coverage policy free of cost. Regarding the accidental death, it is his submission that late Sudarshan Maity and the complainant were involved in a family dispute along with the other inmates and the murder of that Sudarshan Maity cannot be stated as a mere accidental death. It is his specific contention that as the alleged accidental death of Sudarshan Maity took place on 23.02.06, but this complainant submitted the claim form before the OP on 23.12.09 which was not actually submitted within the period of 60 days since the date of the incident as per the norms of the insurance policy. So the case is barred by limitation also and hence the complainant has no cause of action to file this case. So it is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get any benefit as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with the annexed documents and the written version filed by the OPs and after hearing the argument advanced by the ld. lawyers of the parties it is available on record that the complainant’s husband one Sudarshan Maity had a debit card under the OP No. 1 with the facility of personal accidental coverage upto Rs. 2,00,000/- under a insurance facility with the OP No. 2. From the record it is available that on 23.02.06 that Sudarshan Maity expired in an accident regarding which Kotwali P.S. case No. 52/06 dtd. 22.02.06 under Section 326 with adding section 302 I.P.C. was started. From the copy of the charge sheet filed by the complainant it is available that on 22.02.06 that Sudarshan Maity requested his relatives, i.e., Ananda Modak alias Gokul to stop generator regarding which an altercation took place and at that time said Ananda Modak assaulted him with a sharp cutting weapon which caused bleeding injury and ultimately the victim succumbed at Hospital on 23.02.06. Regarding this it is the case of the OPs that actually Sudarshan Maity was murdered and his death was not an accidental one. In this context, ld. lawyer for the complainant has cited a ruling from NCDRC page 3 of 23 in connection with Revision Petition No. 973 of 2007 and the judgment was passed on 24.10.2007 in which the Hon'ble National Commission decided that “Accidental injury, 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. 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 regard 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.”
On a careful perusal of this above cited ruling, we hold that it is applicable in this instant case also as the death of victim was an accidental one which happened from an altercation between the victim and the accused. The accused assaulted the victim with a sharp cutting weapon which caused serious bleeding injury and ultimately the victim succumbed to his injuries. The accused assaulted him not with the intention to cause murder, but ultimately due to this injury the victim expired due to which section 302 I.P.C. was added in the charge sheet though originally the case was started under section 326 I.P.C. So we have no hesitation to hold that the death of Sudarshan Maity was an accidental one.
Complainant submits that she met the OP No. 1 time and again intimating him about the accidental death of her husband and to avail herself of insurance policy facility, but to no effect. Finally, on 23.12.09 she submitted a written complaint to the OP No. 1 describing the facts of the incident with a prayer to grant insurance money. Thereafter, she sent a lawyer’s letter to the OP No. 1 on 11.01.10 and on receipt of that letter the OP No. 1 issued one claim form in her favour which she submitted before the OP No. 1 on 16.02.10 along with all the relevant documents. By a letter dtd. 17.04.10 the OP No. 2 intimated her repudiation of the claim on the ground that the incident was caused on 23.02.06, but the application was filed on 10.04.10 after a lapse of 4 years and 2 months of late intimation, though as per insurance policy condition, it is the duty of the complainant to intimate the OP about the incident of death within the period of 60 days since the date of the accident. On a careful perusal of the petition of complaint, we find that the complainant has stated that she went several times to the branch office of the OP No. 1 and verbally informed this incident, but no date is mentioned in the petition of complaint. Even there is no whisper in the petition of complaint as to why she remained silent for about 4 years and did not take any step for claiming relief from the OP No. 1 & 2. Admittedly she did not submit any application before the OP No. 1 during this period asking to supply her claim application. From the conduct of the OP No. 1, we find that on receipt of the ld. lawyer’s letter of the complainant, the OP No. 1 forthwith supplied claim form and on receipt of the same the complainant submitted that form duly filled in by her along with relevant documents before the OP No. 1 on 16.02.10. As per policy condition of the Insurance Co. ‘point 7’ speaks that “As per the terms of the insurance policy, all claims have to be intimated to the Insurance Co. within 30 days of the occurrence of the event. Claims shall not be admissible after this period.” This period of 30 days is subsequently extended to 60 days as per averment of the OP No. 2, but it is on record that the complainant did neither approach the OP No. 1 to supply her claim form nor even intimated regarding the death of her husband within the period of 60 days since the date of the incident which happened on 23.02.06. It is also available on record that she intimated the OP No. 1 regarding the death of her husband by filing an application on 23.12.09 regarding the accidental death of her husband for the first time and thereafter the claim application was submitted by her on 16.02.10. So considering the facts of this case along with the insurance regulations and the documents filed by the complainant our considered view is that the complainant herself has violated the insurance policy rules in belated filing of her claim application on 23.12.09 though the accidental death of her husband happened on 23.02.06. We do further hold that she cannot get any benefit for her willful violation of the insurance policy rules. Besides this in the insurance rule there is a point to avail of the Personal Accident insurance cover, it is necessary for a customer to use his debit card at a Merchant Outlet and the Personal Accident insurance cover will be considered to be in force at the time of the incident only if he has made a successful payment transactions at any Merchant Outlet using the debit card in the 365 days prior to the occurrence of the incident and has maintained a minimum average quarterly balance. From the petition of complaint we find that there is no whisper to that extent that the complainant’s husband made a successful transaction at any Merchant Outlet using his debit card within 365 days prior to the date of his accidental death. On this point also the insurance policy condition violated.
Therefore, considering the facts of this case along with the annexed documents filed by the parties, we are inclined to hold that the complainant submitted claim application at a belated stage, i.e., after a lapse of about 4 years since the date of accidental death of her husband. We do also hold that the card holder, Sudarshan Maity did not comply the other provisions of the insurance policy by making transactions with a Merchant Outlet within 365 days since the date of his death.
In view of all this we hold that the complainant has not become able to prove her case and so she is not entitled to get any reliefs as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/10/106 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
