IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

CASE No.  CC/168 /2006.

 Date of Filing:            30.08.2006.                                             Date of Final Order: 24.08.2015.

Complainant: Swapan Kumar Halder, Vill & P.O. Panchgram, P.S. Nabagram, Dist. Murshidabad.

Vs

Opposite Party: 1. Divisional Manager, National Insurance Company Limited, National Insurance

                         Building (Ground floor), 8, India Exchange Place, Kolkata700001.

            2.         National Insurance Co. Ltd., Berhampore Branch, 26/23/1 Sahid Surya Sen Road,

                        P.O. Berhampore, Dist. Murshidabad.

            3.         Golden Trust Financial Services (G.T.F.S) , Panchantala (Opposite B.D.O. Office),

                        P.O. Berhampore, Dist. Murshidabad.

                       Present:  Sri Anupam Bhattacharyya   ………………….President.                                 

                                         Sri Samaresh Kumar Mitra ……………………..Member.           

                                                                        Smt. Pranati Ali ……….……………….……………. Member

FINAL ORDER

 Sri Anupam Bhattacharyya,Presiding Member.

The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for payment of Accident Insurance Claim for Rs.3 lacs.

            The complaint’s case, in brief, is that the complainant had accident insurance policy for his wife for Rs.3 lac with OPNational Insurance Co. through OP 3 , GTFS on 15.07.2004 and his wife met with road accident on 22.12.2004 as she was treated for a long time in Berhampore Sadar Hospital and for that accident she sustained cerebral injury as a result the upper portion of her body became paralyzed. The complainant applied for claim paper through OP No.3. But, for nonobtaining the policy certificate the delay has been caused. After getting policy certificate from Agent’s office, the claim form was issued from their office. Then, office of the Op No.3 disclosed that claim paper with documents is to be submitted with one              from the date of issuing the form. Accordingly, the complainant submitted all the papers including medical certificate and Hospital certificate with OP No.3 office and got receipt to that effect. After one year Head Office of OP no.3 requested the complainant to proceed with the settlement of claim on 11.4.06 but after some days on 16.5.06 the OPNational Insurance informed the complainant regretting the claim for delay in submission of claim papers. Compiling with the rules and regulations the claim papers were deposited with the OP No.3 –agent of the OP Nos. 1 & 2, National Insurance Co. and for that the complainant is entitled to get claim. Hence, the instant complaint case.

The written version filed by the OP No.1, in brief, is that the policy in question was not issued by the Berhampore Divisional Office nor his Divisional Office had any contract with the Golden Trust Financial Services. As this Berhampore Divisional Office had no agreement /contract with the alleged Golden Trust Financial Services, so this office has got no obligation to satisfy any award if at all awarded in this case. There are so many Regional Offices under the Head Office of National Insurance Co. Ltd and under every Regional Office there are so many Divional Offices and under every Divisional office there are so many branch offices. Every Divisional Office are administratively controlled by their respective Regional office. Individual act of any Divisional Office is not binding upon the other Divisional Office under different Regional Office and as such there is no administrative link between the Divisions under the control of different Regional office. In this case Divisional Office No.3 might have done agreement with Golden Trust Financial Services and only they are bound by the terms and conditions of that agreement and no the other Divisional Officers under different Regional Office. It is binding only when the agreement is being done by the direct controlling Regional Office or the Head Office. This Divisional Office has no administrative control over the Divisional Office No.3 and similarly Divisional Office No.3 has got no administrative control over this Berhampore Divisional Office and so this Berhampore Divisional Office is unnecessary party in this case. So, this Divisional Office be exempted from this case.

The written version filed by OP No.3, in brief, is that OP No.3 furnished Rebati Halder with a claim form for due completion and submission to them with other supporting documents towards substantiation of the claim for necessary transmission to National Insurance Co. Ltd, Div. III, Kolkata for their doing the needful. The completed claim form and other supporting documents have been furnished to the National Insurance Co. Ltd. Division III, Kolkata by Golden Multi Services Club Ltd on 9.5.2005 for processing settlement of claim. No liability is attached with OP No.3 for alleged deficiency in service. The OP No.3 be expunged from this claim petition. Hence, the instant written version.

            Considering the pleadings of all the parties the following points have been framed for the disposal of the case.

                                            Points for decision.

1. Whether the case is maintainable under the law and facts?
2. Whether the case is bad for misjoinder and non-joinder of parties?
3. Whether the Forum has got jurisdiction or not to try this case?
4. Whether the case is barred by principles or estoppels, waiver and acquiescence?
5. Whether the complainant is entitled to get any relief as prayed for?
6. To  what other relief/reliefs the complainant is entitled to get?

                                                        Decision with reasons

            Point Nos. 1 to 6.

All the points are taken up together for the sake of convenience.

The complainant has prayed for payment of Accident Insured Policy of Rs.3 lacs.

            This is a case on fresh remand giving opportunity of adducing evidence upon both sides.

The complaint’s case is that the complainant - complainant had accident insurance policy for his wife for Rs.3 lac with OP-National Insurance Co. through OP -3 , GTFS on 15.07.2004 and his wife met with road accident on 22.12.2004 as she was treated for a long time in Berhampore Sadar Hospital and for that accident she sustained cerebral injury as a result the upper portion of her body became paralyzed. The complainant applied for claim paper through OP No.3. But, for non-obtaining the policy certificate the delay has been caused. After getting policy certificate from Agent’s office, the claim form was issued from their office. Then, office of the Op No.3 disclosed that claim paper with documents is to be submitted with one              from the date of issuing the form. Accordingly, the complainant submitted all the papers including medical certificate and Hospital certificate with OP No.3 office and got receipt to that effect. After one year Head Office of OP no.3 requested the complainant to proceed with the settlement of claim on 11.4.06 but after some days on 16.5.06 the OP-National Insurance informed the complainant regretting the claim for delay in submission of claim papers. Compiling with the rules and regulations the claim papers were deposited with the OP No.3 –agent of the OP Nos. 1 & 2, National Insurance Co. The OP-Insurance Co. rejected the claim for the delay in submission of claim but the complainant had no laches and for that he is entitled to get Insurance Claim.

In this case after remand the complainant has filed evidence on affidavit. He has deposed on dock and has been cross-examined by OPNo.3 and Op No.1 separately.

The complainant has filed 21 documents by firisti including several medical papers, vouchers, discharge certificate of doctors and Janata Personal Insurance Claim Form,  Insurance Policy .

Pw-1 , the complainant has deposed in his cross-examination by OP No.1 –National Insurance Co. that he has filed this complaint with the consent of his wife praying for compensation for the accident sustained by his wife in a motor cycle accident and he did not lodge any complaint with any P.S for the said accident as he was busy for the treatment of his wife.

He has also deposed that after recovery he did not go to any P.S to lodge the complaint with the P.S. for the alleged accident.

He has deposed that from the medical papers it will be revealed that his wife was treated in the hospital for the motor cycle accident.

      He has further deposed that he has not filed any motor cycle accident claim case before the tribunal.

      He has deposed that after death of his wife he has not made his two sons as parties to this case.

      He has deposed during this cross-examination by OP No.3 Golden Trust Financial Services that at the time of filing this complainant his wife. Rebati Halder was alive and at that time she met with a motor-cycle accident on 22.12.2004 and she died on 01.02.2014.

      The ld. lawyer for the OP -3 has put suggestion to the complaint , PW-1 to the effect that he is not entitled to get any relief as he has filed this case beyond the period of limitation and he has denied the same.

      In this regard we find that Rebati Halder wife of the complainant met with an accident on 22.12.2004 and this complaint was filed on 30.06.2006 within the period of limitation and as such the OP No.3’s case as to  the point that the case is barred by limitation,  has no legs to stand upon.

      We find that his case is not barred by the law of limitation.

      During hearing argument the ld. lawyer for both the OP Nos. 1 & 2 , National Insurance Co. and the OP No.3 GTFS have raised objection referring the deposition of PW-1 in  his cross-examination by OP No.3  that his wife Rebati Halder died on 01.02.2014 leaving behind himself and his two sons only but said two sons have not been impleaded in this case after death of Rebati Halder, the policy holder.

      In this regard the complainant is admittedly the husband as well as nominee of the policy holder Rebati Halder of the impugned policy and the nominee is duly authorized person to receive the policy amount of the impugned Accident Policy and the nominee is to distribute the share of the amount to the legal heirs.

      Further, in this case after death of Rebati Halder during pendency of this case on 01.02.2014 her sons have not appeared before this Forum and prayed for adding them as party to this case claiming their share and as such we can safely conclude that non-joinder of the sons of the complaint after death of his wife Rebati Halder is not a case of defect of parties.

      The ld. lawyer for the OP No.3 has advanced argument that instant claim is for disablement of the policy holder of the impugned Accident Policy due to the motor-cycle accident met by the policy holder but no such disablement certificate has come before this Forum.

      At the same time the ld. lawyer for the OP Nos. 1 & 2 National Insurance Co. has advanced argument, referring the deposition of PW-1 in his cross-examination by OP No.3 to the effect that he did not lodge any complaint with any P.S. for the said accident, that the impugned policy is accident policy and for that the complainant is to prove that there was accident.

      Regarding the allegation as to documents relating to disablement and lodging FIR with the P.S. as well as the documents relating to the fact that the policy holder-wife of the complaint met with accident the entire deposition of PW-1 and the entire medical papers and other documents are to be taken into consideration very carefully.

      From the discharge certificate issued by Berhampore district Hospital it appears that Rebati Halder was under treatment in the hospital from 22.12.04 to 01.01.05 suffering from CVA-Cerebral Injury.

      From the Janata Personal Accident Insurance Policy Claim Form it appears that there is signature of Medical officer, District Hospital, Berhampore, Murshidabad with seal and date of 23.3.2005 being filled in the column No. 1 to 4 as Sadar Hospital, P.O. Berhampore, Dist. Murshidabad and date of admission on 22.12.2004 as in patient emergency case and discharged on 01.01.2005 and nature of injury as C.V.A

      The complainant has also filed certificate of Pradhan, Panchgram G.P. dt. 7.7.06 to the effect that at the relevant time Rebati Halder was unable and bedridden and she cannot move.

      The complainant has filed several medical papers and other relevant documents in support of his case including Medical Certificate of Dr. P.K. Debnath dt. 27.08.2008 certifying that Rebati Halder was suffering from left sided hemiflegia and was under his treatment from 4.2.08 till date 27.8.2008.

      The complainant’s case is that the policy holder Rebati Halder wife of the complaint met with accident on 22.12.2004 sustaining cerebral injury and she was admitted in Berhampore District Hospital. The claim application form was issued on 17.03.05 for the delay in giving policy certificate by OP No.3 and thereafter on 17.4.2005 the complainant submitted the claim form along with all the documents including Medical Certificate and hospital certificate and after one year on 16.5.2006 the OP no.1 sent letter rejecting the claim of the complainant for delay in intimating the claim.

      The complainant has adduced oral evidence on affidavit to the effect that he claimed the amount due to said accident before OP no.3 who asked him to submit the document and the then submitted all the relevant documents to OP No.3.

      Admittedly, OP No.3 is the agent of OP Nos. 1 & 2.

      The OP No.2 has filed the Memorandum of Understanding in between OP No.1 National Insurance Co. and OP No.3-GTFS.

      The complainant has filed his claim application as per supply of claim form by OP No.3 to the complainant and as per instruction of  OP No.3 the complainant filed the claim application on 17.04.2005 along with all the relevant documents within one month from the date of getting claim form 17.3.2005.

      There is no laches on the part of the complainant for filing claim application. The delay was    caused by OP No.3.

In this regard we find relying upon the averment of complaint in the complainant that the delay was caused for the delay in supplying the policy certificate by OP No.3.

      There is no rebuttable evidence of the same from the side of the OP No.3.

      Further, during hearing argument the Ld. lawyer for the OP Nos. 1 & 2 , National Insurance Co. and OP No.3,  GTFS-agent of OP Nos.  1 & 2 have not agitated on this point as to delay in lodging the complaint before the Insurance e Co. and for that OP no.1 referred to the claim of the complainant.

      Regarding the laches, if any, on the part of agent/broker of the Insurance Co. in the reported decision on 2015(2) CPR 843(NC) Aditya Biral Insurance broker Ltd. Vs.-Rathnamme & another, it has been held that Insurance Co. is vicariously liable for all commissions and omissions done by insurance broker.

      Relying upon this reported decision we find that even if there is any laches regarding delay though the same has not been argued by any of the ld. lawyers for the Ops, the OP-National Insurance Co. is liable and Op no.3 is not liable to pay any claim of the complainant.

      Considering the above discussions as a whole we can safely concluded that all these points are disposed of in favour of the complainant and as such the complainant is entitled to get policy amount of Rs.3 lacs plus interest @8% p.a. since the date of claim application on 23.03.2005 till its realization.

      Hence,

                                                                     Ordered

that the Consumer Complaint No. 168/2006  be and the same is hereby allowed on contest .

The OP No.1& 2 are directed to pay Rs.3 lacs  plus interest@ 8% p.a. from 23.3.2005 till its  realization to the complainant within two months from the date of this order failing which they have to pay Rs.50/- per day’s delay as fine and the amount so accumulated shall be deposited in the “Consumer Legal Aid Account”.

      There is no order as to cost.

Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post  to the concerned parties as per rules, for information and necessary action.

        Member                                           Member                                                             President

District Consumer Disputes              District Consumer Disputes                                   District Consumer Disputes

Redressal Forum.                                  Redressal Forum.                                                    Redressal Forum.

Murshidabad.                                        Murshidabad.                                                         Murshidabad.