| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.549 of 15-11-2011 Decided on 18-04-2012
Hari Chand S/o Sh. Ram Sarup, R/o House No.165, village Kalyan Sukha, Tehsil and District Bathinda. .......Complainant Versus
Cholamandlam MS General Insurance Company Limited, Hari Niwas Towers, Ist Floor, 163 Thambu Chetty Street, Parry's Corner, Chennai-600001, through its Managing Director/Authorized Signatory. Bajaj Auto Finance Limited, Near Sepal Hotel, Tinkoni, GT Road, Bathinda, through its Prop./Managing Director.
........Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM
Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member
For the Complainant : Sh. Sukhraj Singh, counsel for the complainant For Opposite parties : Sh. Varun Gupta, counsel for opposite party No.1 Sh. Bansi Lal, counsel for opposite party No.2.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (here-in-after referred to as an 'Act'). In brief, the case of the complainant is that his son namely Karamjit Singh purchased one Motorcycle Discover of Bajaj Company from M/s Raja Motors, Bathinda on 09.11.2010 and its registration number was PB-03-X-4159. The said motorcycle was got financed from opposite party No.2 and insured with the opposite party No.1 under policy No.2823/00102632/ 000/00 by Bajaj Auto Finance Limited i.e. opposite party No.2 and the son of the complainant was also got insured with the opposite party No.2 under above said policy. The son of the complainant was died on 09.01.2011 in road accident. In this regard, an FIR No.5 dated 10.01.2011 u/s 304-A/427 IPC was got registered at Police Station, Sangat, District Bathinda and his post mortem examination was also conducted in Civil Hospital, Bathinda. The complainant has alleged that no policy documents were given to the deceased Karamjit Singh. During his life time, the deceased Karamjit Singh had been depositing the installments and he told the complainant that when he had purchased the said motorcycle, he and his motorcycle were got insured by opposite party No.2 with opposite party No.1 and he was insured for Rs.50,000/- and the complainant is the nominee in the said policy. The complainant sent intimation of the death of his son and submitted all the documents required for honouring the claim i.e. copy of FIR, Post Mortem Examination Report and Death Certificate etc.,with the opposite parties. The opposite party No.1 sent letter dated 11.08.2011 to the complainant as well as to the opposite party No.2 mentioning therein that : “Notification of claim was received by us after delay of 167 days from the date of loss, we regret to express our liability to entertain the claim” and the claim lodged by the complainant has been denied. The complainant alleged that he received the death certificate of his son on 02.02.2011 and thereafter, the same along with copies of FIR and Post Mortem report, was submitted by him to the opposite party No.2 which was received by Mr. Deepak Kumar and Mr. Gurmail, authorized agents of the opposite parties. They assured him that the claim would be disbursed to him by the opposite parties. Thereafter, the complainant approached the above said agents of the opposite parties many times and also wrote a letter dated 23.08.2011 requesting them to pay his claim but till today, nothing has been done by the opposite parties. Hence, the complainant has filed the present complaint seeking directions of this Forum to the opposite parties to pay the Insurance claim along with interest and compensation. The opposite parties filed their separate written statements. The opposite party No.1 in its separate written statement pleaded that before purchasing the above said policy, the Insured filled an application-cum-agreement No. B-7588432 which was duly signed by him after going through all the terms and conditions of the policy. The insured also made declaration under the said application-cum-agreement. The opposite party No.1 supplied the Insurance Policy along with terms and conditions to the insured which are in the possession of the complainant. The opposite party No.1 has denied that the complainant was nominated by the Insured while purchasing the said Insurance Policy as such he is not entitled to any claim amount. The claim, if any, is subject to terms and conditions of the policy which are in the possession of the complainant. The opposite party No. 1 has pleaded that Karamjit Singh died on 09.01.2011 and the intimation regarding his death, was given on 25.06.2011 i.e. after 167 days of his death but as per approval of the opposite party No.2, the intimation was to be given within 120 days from the date of accident as per condition No.7, Part-III of the terms and conditions of the policy. So, the claim of the complainant was repudiated. In this regard, the intimation was given to the complainant vide letter dated 11.08.2011 which was duly received and admitted by the complainant. The claim of the complainant has been repudiated on legal and valid grounds and as per terms and conditions of the policy. The opposite party No.2 has pleaded in its separate written reply that Karamjit Singh son of the complainant, approached opposite party No.2 and requested for financial facility for purchase of two wheeler (Bajaj Discover). The opposite party No.2 agreed to extend financial facility to the tune of Rs.35,244/- (including financial charges of Rs.5,844/- for 18 months) and on 30.11.2010, a Loan Agreement No.L2WBHT00792099 was executed. The monthly installment to be paid as per loan agreement, was Rs.1,958/- and the contract period was for 18 months (i.e. from 12.01.2011 to 12.06.2012). The opposite party No.2 has further pleaded that at the time of execution of the loan agreement, Karamjit Singh has understood all the terms and conditions of the loan agreement and only thereafter, he signed and executed the same. The opposite party No.2 has denied that the insurance of the vehicle was done by it rather the opposite party No.2 is only financier and Karamjit Singh has never handed over the cheques towards insurance premium to the opposite party No.2. The complainant has directly approached the opposite party No.1 and taken the Insurance Policy for his vehicle in question. The opposite party No.2 has further pleaded that Mr. Karamjit Singh is a debtor of the opposite party No.2 as such does not fall under the category of consumer as the relation of Debtor and Creditor applies here in between Mr. Karamjit Singh and opposite party No.2.
Parties have led their evidence in support of their respective pleadings. Arguments heard. Record along with written submissions submitted by the parties perused. The allegation of the complainant is that his son namely Karamjit Singh was insured under Personal Accident Insurance with opposite party No. 1 vide Insurance Policy No. 2823/00102632/000/00 and he is the nominee in the said policy. The son of the complainant died in an accident and he sent intimation and submitted all the required documents with opposite party No. 1, but his claim was declined by the opposite party No. 1 on the ground that the notification of claim was received after 167 days from the date of loss, so the claim is not payable as per policy terms and conditions, Part III- Condition – Point No. 7. The submission of the learned counsel for opposite party No. 1 is that the claim of the complainant is not payable as the claim was received by opposite party No. 1 after a delay of 167 days from the date of loss. He submitted that policy terms and conditions, Part III- Conditions – Point No. 7, provides that it is a condition precedent for any claim to be made by the insured under this policy that written notice of claim must be given to Insurance Company immediately upon the occurrence or commencement of any loss and in any event nor less than 30 days of such occurrence or commence. The learned counsel for opposite party No. 2 submitted that deceased Karamjit Singh has directly approached opposite party No. 1 and taken the Insurance policy for his vehicle in question and it was not arranged by opposite party No. 2. He submitted that deceased Karamjit Singh is a debtor of opposite party No. 2 as such, does not fall under the category of consumer under the 'Act'. The opposite party No. 1 has repudiated the claim of the complainant vide letter dated 11th August, 2011 Ex. C-5/Ex. R-1-A. The relevant portion of said letter is reproduced hereunder :- “...Re : Claim under Policy No. 2823/00102632/000/00; Claim No. 2823000769 – Insured Name – Bajaj Auto Finance Ltd., Date of accident 9-1-2011 We are in receipt of the claim documents towards accidental death of late Mr. Karamjit Singh. As per the claim documents it is evident that the said accident had occurred on 9-1-2011 and the intimation of the same was received on 25-6-2011. In this regard, we wish to bring your kind attention to the policy terms and conditions, Part III – Conditions – Point No. 7, which provides that it is a condition precedent for any claim to be made by the insured under this policy that written notice of claim must be given to us immediately upon the occurrence or commencement of any loss and in any event not later than 30 days of such occurrence or commencement. Since in the above mentioned claim, the notification of claim was received by us after a delay of 167 days from the date of loss, we regret to express our inability to entertain the claim. We once again regret to inform that we have no other option but to decline the claim under the above mentioned policy terms and conditions.” The complainant has alleged in his complaint that no policy alongwith terms & conditions was either supplied to deceased Karamjit Singh or to him. The opposite party No. 1 has repudiated the claim of the complainant by taking shelter of policy terms and conditions, Part III – Condition – Point No. 7, but the opposite party No. 1 has not placed on file copy of policy alongwith any such terms and conditions which has allegedly been sent to the complainant. The opposite party No. 1 has pleaded in para No. 2 of the written reply on merits that before purchasing the said policy, the insured filled application-cum-agreement No. B-7588432 which was duly signed by him after going through all the terms and conditions of the policy. The insured also made declaration under the said application-cum-agreement. The opposite party No. 1 supplied the insurance policy alongwith terms and conditions to the insured at the given address. The opposite party No. 1 has not placed on file any document to prove that through which mode the insurance policy in question has been sent to the deceased Karamjit Singh. Hence, the complainant is not bound by such terms and conditions which were never supplied to him. A perusal of Application cum Agreement Ex. R-5 and repudiation letter Ex. C-5 revels that this Application Form is of Bajaj Auto Finance i.e. opposite party No.2 and name of insured is mentioned as Bajaj Auto Finance Ltd, in repudiation letter. In such circumstances, it makes the position crystal clear that Personal Accident Insurance policy has been obtained by opposite party No. 2 from opposite party No. 1 whereas the opposite party No. 2 has taken false plea in its written reply that Karamjit Singh has directly approached opposite party No. 1 and taken the insurance policy in question. Thus, it seems that policy in question is either in the possession of opposite party No. 1 or opposite party No. 2 and it was not supplied to the deceased Karamjit Singh. The Claim of the complainant has been forwarded by opposite party No. 1 to its Head Office for approval vide Claim Note Ex. R-2. The relevant portion of said note reads as under :- “.....Insured - Bajaj Auto Finance Ltd., 2. The insured person had suffered an accident on 09-01-2011 and hence the loss would fall within the valid period of the policy i.e. 01-11-2010 to 31-10-2011. ... 5. There is delay in intimation of the case dated of accident is 09-01-2011 and date of intimation is 25-06-2011 i.e. with delay of 167 days. As approved for BAFL duration of intimation was approved to be within 120 days from the date of incident, since in the present case the delay is inordinate the case may be declined due to the same reason. Compensation in case of Death In case of death, Amount payable if any would be Sum Insured = Rs. 50,000/-” Keeping in view the facts, circumstances and the record place on file, this Forum is of the view that there is deficiency in service on the part of the opposite parties in not paying the genuine claim of the complainant. In this regard the special guidelines have been issued by the Insurance Regulatory and Development Authority vide Circular Ref. IRDA/HLTH/MISC/CIR/216/09/2011 dated 20-09-2011 to all the Insurance Companies. The relevant portion of said circular reads as under :- “The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the Insurance Industry, giving rise to excessive litigation.” Moreover, in the case of death claims, sometimes the claimant is under shock due to demise of his/her dear ones. Lodging the claim with delay of days cannot be given much weightage, it should not be in years. In this regard, the support can be sought by the precedent laid down by the Hon'ble National Commission, New Delhi, in case titled Toorent Securities Pvt. Ltd., Vs. National Insurance Co. Ltd., 2007 CTJ 384 (CP ) (NCDRC) wherein it has been held :- “Insurance – Deficiency in service – Consumer Protection Act, 1986 – Section 2(1)(g) – Section 2(1)(o) – Motor vehicle insured covering the risk of theft and damage for Rs. 2,34,000/- Vehicle allegedly stopped by some extremists on the road and set on fire – Claim repudiated on the ground that intimation of the accident given after about 13-1/2 months – District Forum held that the terms of the Policy be read down to advance the main purpose of the contract of insuring the loss cause to the vehicle – Accordingly the insurance company directed to pay the insured amount with interest at the then statutory rate of interest – However, the State Commission allowed the insurance company's appeal and reversed the Forum's order holding that the insured violated the terms and conditions of the policy for not reporting the burning of the vehicle for more than a year – Revision petition by the insured – Initially, at the time of commencement of insurance, the insurance company only gave the policy schedule indicating the insured's name, registration number, policy number, vehicle number and the premium amount but the detailed policy with its terms and conditions issued only after the insured made the present claim – Policy conditions, in the circumstances, not binding on the insured – Revision allowed – Order passed by the State Commission set aside – Insurance company directed to pay the insured amount with cost.” In view of what has been discussed above, this complaint is accepted against the opposite parties with cost and compensation of Rs. 5,000/-. The opposite party No. 1 is directed to pay to the complainant Rs. 50,000/- being the death claim of his deceased son Karamjit Singh. The amount of cost and compensation would be paid by both the opposite parties jointly and severally.
The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the claim amount of Rs. 50,000/- would yield interest @ 9% P.A. from the date of institution of this complaint i.e. 15-11-2011 till realization.
Copy of this order be sent to the parties concerned free of cost and the file be consigned.
Pronounced 18-04-2012 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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