Orissa

Cuttak

CC/42/2016

Sebati Swain - Complainant(s)

Versus

Chief General Manager,Future Generali India Insurance Company Ltd - Opp.Party(s)

B Barik

15 Apr 2017

ORDER

 

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.42/2016

Sebati Swain,

Res. of Vill/PO:Sukarpada,

P.S:NIschintakoili,Dist:Cuttack.                                             … Complainant.

 

                Vrs.

 

1.  Chief General Manager,

Future Generali India Insurance Co. Ltd.,

Corporate Office:At:Indiabulls Finance Centre,

Tower-3,6^th Floor,Senapati Bapat Marg,

Elphinstone(W),Mumbai..

 

2. The Manager,

Future Generali India Insurance Co. Ltd.,

Branch Office:3^rd Floor,230 A,Chitrakoot Building,

AJC Bose Road,Kolkata,India.

 

3. The Manager,

Future Generali India Insurance Co. Ltd.,

3^rd Floor,Sumitra Plaza,Near Govt. Bus Stand,

Badambadi,Cuttack,Odisha.                                                      … Opp. Parties.

 

Present:          Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     30.03.2016

Date of Order:  15.04.2017.

 

For the complainant:    Sri B.R.Barik,Adv. & Associates.

For O.Ps(O.P.1 & 2) :    Adam Alki Khan,Adv. & Associates.

 

 

Sri Bichitra Nanda Tripathy, Member.

                The complaint is against deficiency in service on the part of O.Ps.

1. The complainant is the mother of Late Satyabrata Swain, S/O: Late Natabar Swain of Village: Sakarpada P.S:Nischintakoili,Dist:Cuttack.  The case of the complainant in nutshell is that her son Late Satyabrata Swain was the owner of a Tata Indigo ECS LX car which was hypothecated to Mahindra & Mahindra Finance Service Ltd.,Bhubaneswar.  The said vehicle was with Regd. No.OR-05-AU-3232 with RTA.Cuttack(Annexure-1) & was insured with O.Ps.  The registered owner suddenly died on 15.01.2014.  The mother of the deceased being the legal heir intimated the same to O.P No.3.  Since the vehicle was hypothecated to Mahindra & Mahindra and the loan amount was not cleared the ownership of the vehicle could not be transferred.  As the complainant wanted to run the vehicle she approached the O.P No.3  to accept the premium and insure the vehicle.  Copy of such application is vide Annexure-2.  The O.Ps renewed the insurance policy and issued the cover note on 30.01.2014 w.e.f 30.1.2014 to 29.01.2015 vide policy No.2014-V2844383-FPV. (Annexure-3).  On 27.12.2014 midnight the said vehicle was stolen from the premises of Sri Sri Thakur Nigamanda Ashram,Sukarpada.  On the next day FIR was lodged with Nischintakoili Police Station with P.S case No.110/2014, corresponding to G.R.Case No.898/2014.  Copy of such FIR dt.28.12.2014 is annexed vide Annexure-4.  On 02.01.2015 the complainant submitted application along with death certificate and claim form before the claim manager of the O.P.1 Insurance Company (Annexure-5).  After clearing of the loan amount Mahindra & Mahindra Finance Service Ltd. issued letter for cancellation of hypothecation to RTA,Cuttack on 28.1.15 and the complainant applied for transfer of ownership (Annexure-6).  The O.P, Insurance Company vide their letter dt.23.02.2015 intimated the complainant regarding repudiation of the claim and closed the claim as “No claim” (Annexure-7).  The police completed the investigation in the meantime and submitted final report as FIR true but no clue vide F.F. No.28 dt.8.4.2015 (Annexure-8).  The complainant served a legal notice on O.Ps.1,2 & 3 on 20/05/2015.(Annexure-9).  O.P No.2 vide letter dt.4.6.2015 replied that the complainant /claimant  did not declare the material facts in proposal form and has made wrong declaration on the proposal form violating policy condition No.8 for which  the competent authority of the O.P, Insurance Company has treated the claim as “No claim”(Annexure-10).  Finding no other alternative the complainant has taken shelter of this Hon’ble Forum.  She has prayed to direct the O.Ps to pay a sum of Rs.4,50,000/- towards loss of the vehicle and negligence in duty, a sum of Rs.30,000/- towards mental agony and harassment and a further sum of Rs.5000/- towards cost of notice and stationary and postage.
2. O.Ps (No.1 to 3) vide their written brief dt. Have intimated that O.P No.3 accepted the proposal form in good faith and issued the insurance certificate bearing No.2014-V-2844383-FPV which was valid from 30.1.14 to 29.01.2015 subject to terms and conditions of the said policy.  (Proposal form, copy of insurance certificate and policy conditions are annexed vide (Annexure-A,B & C).  During the currency of insurance policy one Sebati Swain had lodged a claim on 2.1.2015 claiming that the vehicle bearing Regd. No.OR-05AU-3232 which was insured vide policy no.V2844383-FPV was stolen on 27.12.2014 when the same was kept in the premises of Shri Shri Thakur Nigamanda Ashram,Sukarpada.  The O.Ps conducted investigation through investigating agency regarding theft of such vehicle and also regarding vehicular documents after receipt of such claim.  The investigating Agency submitted their report and intimated that such claim is not maintainable and same has to be closed as “No claim”.   The investigating agency has submitted their report and intimated that such claim is not maintainable because from the death certificate as submitted by the complainant it was clear that the insured Satyabrata Swain has died on 15.01.2014.  (Investigation report and death certificate are annexed vide Annexure-D & E respectively).  Even if the insured died on 15.1.2014, such facts were suppressed by the legal heirs till they submit such claim.  On 29.01.2014, the policy was renewed without intimating the O.Ps that the insured was dead for which the claim was repudiated as the condition No.8 & 9 of the insurance policy were violated.  Such facts were communicated to the legal heirs of the insured Late Satyabrata Swain by the O.Ps vide letter dt.23.02.2015 (Annexure-F).  Due to suppression of material facts regarding the death of the insured at the time of renewal of such policy, the policy becomes void ab-initio.  The R.C book and ownership of the vehicle was also not changed.
3. We have gone through the case in details, perused the papers/documents as filed by the complainant and as well as by the O.Ps, heard the learned advocates at length from both the sides and we have observed that the insurance policy was made from 30.1.2014 to 29.01.2015 in the name of Satyabrata Swain vide policy No.2014-V 284323-FPV.  The proposal form for such policy is submitted as if signed by Satyabrata Swain on 29.1.2015(as per the copy of such proposal form as submitted by O.Ps) whereas the insured Satyabrata Swain died on 15.012014 as per copy of death certificate as submitted by the complainant.  The vehicle was stolen on 27.12.2014 at mid night for which FIR was lodged with P.S.Nischintakoili on 28.12.2014.  On 28.01.2015 M/s. Mahindra Finance intimated R.T.A,Cuttack that they have no objection in transferring the vehicle to the name of Sebati Swain.  The O.Ps repudiated the claim on 23.2.2015 for violation of policy conditions No.8 & 9.  The policy condition No.8 says that “The due observance and fulfillment of the terms, conditions and endorsement of this policy is so far they relate to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent  to any liability of the company to make payment under the policy” whereas policy condition No.9 says that “In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of death of the insured or until the expiry of this policy(whichever is earlier).  In the present case the policy was taken in the name of the insured who was dead prior to commencement of policy period.  The Investigating agency also

 

 

vide their investigation report (at page-10 under the headings conclusion) has intimated as follows:-

“During investigation it was confirmed insured Mr. Satyabrata Swain was died on 15.1.2014 due to dengue fever and our policy was issued on 30.1.2014 after 15 days from th3edate of insured death.

 

The vehicle was theft on 27.12.2014 and till the date of the theft no endorsement done for transfer the vehicle to any other name in any concern RTO or in insurance company.

 

Here the case is comes under violation of GR 17 and in this case company is not liable to pay any compensation to insured.  The deceased family side should be changed the ownership of the vehicle in RTO office within 3 months as well as endorsed the policy within prescribed time of three months prior to insured death.

 

Finally we came to an opinion the claim cannot maintainable and the claim NO CLAIM.”

Basing on the facts and circumstances as stated above and to meet the ends of justice and also basing on the decision of Hon’ble National Commission as reported in 2014(4) CPR at page-356 and as decided in the case of Smt. Sarada Jain Vrs. United India Insurance Company vide Revision Petition Nos. 3430 to 3433 of 2013 wherein it was decided that “Insurance policy obtained in the name of a dead person is void abnitio.  In the present case the insured has died

 

 

on 15.01.2014 but the policy was obtained in the name of the deceased which was valid from 30.1.2014 to 29.01.2015 and as such the policy was issued in the name of the deceased.  The complainant also failed to prove that the application for such policy in the name of the mother of the deceased was given to the O.Ps while making the policy/renewing the policy for the above noted period.

ORDER

It is clear from above that the complainant failed to prove deficiency in service on the part of O.Ps. Hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 15^th day of April,2017 under the seal and signature of this Forum.

                                                                                                                                   (Sri B.N.Tripathy )

                                                                                                                                                        Member.

 

                                                                                                                                               

                                                                                                                                                  (  Sri D.C.Barik )

                                                                                                                                                         President.

 

 

                                                                                                                                                     (Smt. Sarmistha Nath) 

                                                                                                                                                Member(W).