BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/230 of 30.3.2010 

                                                Decided on:          25.8.2011

Madhu Garg aged about 41 years, wife of Late Sh.Mukesh Kumar Garg R/o Police Post Road, Samana, District Patiala.

                                                                            -----------Complainant

                                      Versus

1.                 Cholamandalam MS General Insurance Co.Ltd., of GPO, Patiala through its Branch Incharge

2.                 Cholamandalam MS General Insurance Co.Ltd., 1^st Floor, Plot no.6, Purba Road, near Metro Pillar No.81, New Delhi, through its Zonal Manager.

3.                 Bharat Sanchar Nigam Ltd., Samana, District Patiala through its SDE(Telephones)

4.                 Bharat Sanchar Nigam Ltd., District Patiala through its GM(Patiala)

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Sh.Amarjit Singh Dhindsa, Member

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.K.S.Sidhu, Advocate

For ops no.1&2:            Sh.D.P.S.Anand, Advocate

For ops no.3&4:            Sh.J.S.Grewal,Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

                 Late Mukesh Kumar Garg was the holder of the land line connection No.01764-220026 at Samana got issued from Bharat Sanchar Nigam Ltd.,Samana i.e. op no.3.In order to attract the customers ops no.3&4 had obtained an insurance cover of the subscribers from Cholamandalam MS General Insurance Company Ltd. i.e. ops no.1&2 covering the risk of accidental death in a sum of Rs.50,000/-. However, ops had not issued policy to the subscribers including late Mukesh Kumar Garg and no terms and conditions of the master policy were brought to the notice of the subscribers and the members of his family.

2.              Mukesh Kumar Garg died in a road side accident on 4.7.2009. In the said accident, the complainant as also her minor daughter sustained injuries .The driver of the vehicle namely Hardeep Singh had also died. The complainant was rushed to Amar Hospital,Patiala from where she was referred to DMC and Hospital,Ludhiana,where she remained admitted.

3.              The complainant had informed SDE telephones Samana after recovering from the injuries and gave in writing on 5.12.2009 about the death of her husband and she again issued the reminders to G.M. Telephones,Patiala on 8.1.2010.The complainant completed all the formalities as directed by the ops in having supplied the documents regarding the legal heirship of the deceased, FIR, postmortem examination report, death certificate, copy of the ration card etc.

4.       However, op no.2 informed the complainant vide a letter that she had not submitted the claim within 60 days of the accident and therefore, it was a case of no claim. At this the complainant approached ops no.1,3&4 but they failed to listen her. She then sent request letter dated 20.1.2010 to reconsider her claim but to no effect. Accordingly the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act)

5.              On notice, ops appeared and filed their written versions.

6.              Ops no.1&2 filed their joint written statement, who denied the deceased having held the land line telephone no.op1764-220026 at Samana. Rather, it was in the name of M/s Rama Mills, which is not covered under the terms and conditions of the policy. However, op no.1 admitted the personal accident policy issued for the period 14.1.2009 to 13.1.2010 covering the risk of accidental death and permanent total disability to all the subscribers distinctively identifiable in view of working land line to the tune of Rs.50,000/-.

7.              It is admitted that the complainant had lodged the claim on 26.12.2009, whereas the accident had taken place on 4.7.2009 beyond the permissible limit of 60days and   therefore, the claim was repudiated and the complainant was informed accordingly on 5.1.2010.

8.              It is further averred that against the aforesaid repudiation, the complainant filed representation which was also rejected and the complainant was informed about the same vide letter dated 5.3.2010. After denouncing the over averments of the complaint , it was prayed to dismiss the complaint.

9.              Ops no.3&4 also filed the written statement. It is averred that as per Dot Soft No.01764-220026 is working in the name of Mukesh Kumar Garg and that the instructions regarding the insurance policy were printed on the back side of the telephone bills. The case regarding insurance claim was received in the office of AO(TR) office of GMT Patiala on 16.12.2009 from DO(T) Samana vide his office letter no.SDOP/MA/220026 dated 5.12.2009 and the same was forwarded to M/s Cholamandalam General Insurance Company vide letter no.TR/PA/Personal Accident death/permanent/total disability/47 dated 16.12.2009.It is also averred that there is no deficiency in serice on the part of ops no.3&4 and ultimately, it was prayed to dismiss the complaint.

10.            In support of her claim the complainant produced in evidence her sworn affidavit,Ex.C1, alongwith the documents,Exs.C2 to C26 and her learned counsel closed evidence.

11.            On the other hand, on behalf of ops no.1&2 their learned counsel produced in evidence,Ex.R1, the sworn affidavit of Rakhi Anand,Manager of op no.2 alongwith documents,Exs.R2 and R3 and closed their evidence.

12.            Similarly on behalf of ops no.3&4 their learned counsel tendered in evidence the documents,Exs.R4 and R5 and closed the evidence.

13.            The parties filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

14.            Ex.C13, is the copy of letter dated 5.1.2010 written by op no.2 to the complainant in respect of PA claim of late Mukesh Kumar Garg, claim no.BSNL/99/01642 and she was informed that the claim  had been intimated to them belatedly beyond permissible limit. It was disclosed that para no.5 of BSNL Personal Accident Insurance Scheme provided that the time fixed for submission of claims by the BSNL customers shall be 60 days from the date of occurrence of accident. It was further informed that since the date of loss for the captioned claim was 4.7.2009 whereas they had received the same  on 26.12.2009 and therefore, they regretted their inability to consider her claim.

15.            Apparently op no.2 acted illegally in having repudiated the claim of the complainant in violation of the terms and conditions of the insurance policy. Ex.R3 is the schedule of the Group Personal Accident Policy, bearing No.APJ/00004021 000-00 and having customer code CF222160. Under condition no.5 the time limit fixed for settlement of claims by the BSNL customers has been provided as 60 days from the date of occurrence of the accident. However, condition no.9 contained in the schedule of the Group Personal Accident Policy provides that completed claim form with written evidence of loss must be furnished to the company within thirty days after the date of such loss. Failure to furnish evidence within such time as required shall not invalidate or reduce the claim if the insured satisfied that it was not reasonably possible to do so within such time. In any event, no proof furnished beyond one year from the date of loss shall be accepted.

16.            Similarly condition no.21 of the schedule provides that no action at law or in equity shall be brought to recover on this policy prior to the expiration of 60 days after written proof of loss has been furnished in accordance with the requirements of this policy. If no proof of loss has been furnished within one year of the date upon which it should have been furnished then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable under this policy

17.            Ex.C12, is the copy of the application dated 5.12.2009, written by the complainant to SDE Telephone BSNL Samana, whereby she had informed that her husband, the subscriber of  land line connection no.01764-220026 had expired in an accident on 4.7.2009 and that she was submitting the insurance claim alongwith the documents. Ex.C14 is the copy of the application sent by the complainant to the G.M.Telephones,BSNL,Patiala through registered post on 8.1.2010 having explained that her husband had died in an accident on 4.7.2009 and that she also remained admitted in DMC and hospital,Ludhiana having sustained severe injuries for her treatment. She was not in a position to lodge the claim documents on 5.12.2009.She had submitted the claim documents to SDE(Telephones) Samana. To the similar effect she had written another application,Ex.C15 dated 20.1.2010 to op no.2 through registered post. In this way from the aforesaid evidence led by the complainant it would appear that she had explained the circumstances under which she could not file the claim within the prescribed period of 60 days from the date of the accident. No order was  ever passed by the ops that  they were not satisfied with the aforesaid explanation furnished by the complainant nor it is so discussed in the repudiation letter,Ex.C13 dated 5.1.2010.

18.            When it is provided under the terms and conditions of the policy that failure to furnish evidence within such time as required  shall not invalidate or reduce the claim, if the insured satisfied that it was not reasonably possible   to do so within such time and in any event  no proof furnished beyond one year from the date of loss shall be accepted,it was not justified on the part of the ops in having repudiated the claim of the complainant particularly when the complainant had furnished the explanation for not having submitted the claim within 60 days within a period of one year as would appear from Ex.C14.

19.            In the case of the citation H.P.State Forest Company Ltd. Versus United India Insurance Co.Ltd.2009(2)CLT 19, the Hon’ble Supreme Court of India, a reference was made  to National Insurance Company Ltd. vs. Sujir Ganesh Nayak & Co. & Anr.,1997(4)SCC 366 for the following observations, “ From the case-law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the ContractAct. That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired.But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if a claim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. This in brief, seems to be the settled legal position. We may now apply if to the facts of this case”.

20.            It would appear that there being conditionno.9 in the schedule of the policy that a claimant could satisfy the insurer about the reasonable delay in not having lodged the claim within the stipulated period within a period of one year from the date of the loss, it could not be said that the said condition operates to the extinguish claim of the complainant. When the policy contains a salutory provision for the benefit of the claimant, the same could not be denied. Op no.2 has not applied its mind to conditions no.9 and 21 of the schedule and out rightly rejected the claim of the complainant simply on the ground that the claim was not lodged within 60 days from the date of the loss. No decision was taken with regard to the explanation furnished by the complainant vide,Ex.C14 in having not submitted the claim within 60 days but having furnished the explanation within one year from the date of the loss and consequently we find that the repudiation of the claim of the complainant was unjustified.

21.            The complainant has led the cogent evidence to show the death of the subscriber namely Mukesh Kumar Garg having died in an accident consisting of Ex.C19, the copy of the FIR no.319 dated 5.7.2009 lodged with P.S.Sadar,Patiala by Jaipal Garg disclosing the circumstances under which the deceased Mukesh Kumar Garg had died in the accident,Ex.C20 , the copy of the postmortem  examination report of the deceased Mukesh Kumar Garg having died on 4.7.2009,Ex.C21, the copy of the death certificate of Mukesh Kumar Garg and other evidence to show that the complainant is the legal heir of the deceased Mukesh Kumar Garg being his widow as would appear from,Ex.C23, the copy of the ration card, Ex.C26 the sworn affidavit of Jaipal Garg.Consequently, we accept the complaint and direct ops no.1&2 to release the amount of insurance of Rs.50,000/- in favour of the complainant within one month from the receipt of certified copy of the order with interest @9% per annum from the date of the repudiation of the claim i.e.5.1.2010 and we further direct ops no.1&2 to pay the complainant a sum of Rs.10,000/-as costs of the complaint.

Pronounced.

Dated:25.8.2011

                             Neelam Gupta      Amarjit Singh Dhindsa    D.R.Arora

                             Member                Member                            President