DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO.01/2007 Date of filing of the Case: 03.01.2007 Complainant | Opposite Parties | Smt. Minu Rabidas, (36 years) W/o. Late Niru Rabidas, Sukantapally, Ward No. 21, P.O. Jhaljhalia, P.S. English Bazar, Dist. Malda | 1. | Divisional Manager, National Insurance Company Ltd., Divn. – III, 1, Shakespeare Sarani, (6th Floor), Kolkata – 700 071. | 2. | The Manager, National Insurance Company Ltd.(Regd. Office) 3, Middleton Street, Kolkata – 700 071. | 3. | The Manager, National Insurance Company Ltd. (Malda Branch) Rabindra Avenue, P.O. & Dist. – Malda | 4. | The Manager, Golden Trust Financial Services, S.B.I. Building ( 3rd. Floor), N.H. 34, Rathbari, Malda – 732 101. | 5. | The Manager, Golden Trust Financial Services, 16, R.N. Mukherjee Road, Kolkata – 700 001. | | | | |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member | 3. | Shri A.K. Sinha, Member |
For the Petitioner : Mannaful Haque, Advocate For the O.P.s For O.P. No. 1 2 and 3 Arijit Neogi, Sudipta Ganguly, Advocates For O.P. No. 4 & 5 Md. Ziaullah, Advocate Order No. 12 Dt. 26.04.2007 In essence, petitioner’s case is that husband of the petitioner made Janata Personal Accident Insurance Policy with National Insurance Company through G.T.F.S. wherein petitioner has been shown as sole nominee covering the period from 08.08.2002 to 07.08.2017 for Rs. 50,000/-. Further case of the petitioner is that on death of her husband in a street accident on 16.11.2005 by a truck she has become entitled to receive amount for which E.B.P.S. Case No. 548 / 5 dt. 16.11.2005 was started u/s 279 /304 (A) IPC but even after receipt of the relevant documents through G.T.F.S. (O.P. Nos. 4 and 5) the claim has not yet been settled causing her deprivation and harassment relating to payment of her legitimate claim which gives rise of the present case for the reliefs as have been mentioned in the petition of complaint. O.P. Nos. 1,2 & 3 jointly contest the case by filing a written version alleging therein about mis-description in respect of exact age of the insured prior to obtain the policy has been given which, due to factual position with regard to disclosed statements, are required to be thoroughly examined by the appropriate Court of Law and the present redressal forum is not entitled to enter into such complex factual position and the present O.P.s are, in no way, legally liable to pay the compensation and hence the prayer is for dismissal of the petition of complaint. O.P. Nos. 4 and 5 also contest the case admitting the claim of the petitioner and have stated about delivery of all relevant documents to O.P. Nos. 1 to 3 and the present O.P.s have no liability or responsibility in this regard. On pleadings of both the parties the following points have emerged for effective disposal of the case. 1) Whether the petitioner is a ‘Consumer’ in the present case in terms of Sec.2(1)(d) of the C.P. Act ? 2) Whether the service of the O.P.s suffers from any deficiency ? 3) Whether the petitioner is entitled to get any relief ? :DECISION WITH REASONS: Point No. 1 ‘Consumer’ is a person who hires any services for consideration. ‘Service’ means ‘Service’ of any description which is made available to potential users and includes the provision of facilities in connection with the insurance as defined in Clause (o) of Subsection (1) of Section 2 of the Act. Having regard to facts and circumstances of the case, there can be no dispute that the complainant’s husband hired the services of the National Insurance Company in connection with insurance for consideration and the present petitioner, on death of her husband in a road accident, has stepped into the shoe of her predecessor as she has been shown as ‘nominee’ in the policy (Ext-1). Thus the complainant be defined as ‘Consumer’ within the meaning of the Act which disposes of the present point in the affirmative. Point No. 2 The word ‘insured’ has been defined at page 707 in the Book Consize Oxford Dictionary, 9th Edition, as a person “ covered by insurance ”. In the instant case the ‘insured person’, as has been defined in Consize Oxford Dictionary, is Niru Rabidas, (since deceased) husband of Smt. Minu Rabidas, the present petitioner. It has been urged on behalf of the petitioner that though she has been named as ‘nominee’ and has submitted all relevant documents, yet she has been deprived of getting her legitimate claim from the Insurance Company. The fact of death of her husband on 16.11.2005 in motor accident is known to the O.P.s which is an unnatural death. She has also filed some documents which have been marked Ext 1, 2 & 3. This submission of the petitioner has seriously been challenged by the O.P. Nos. 1,2 &3 (to be called O.Ps. hereinafter) on the sole ground that the age of the insured does not tally with the age given in the original policy wherein the age of the insured has been shown as 40 years by Ext-1 and the age of the insured has been shown in the voters’ identity card as 42 years as it stood on 01.01.1995. Ld.counsel on behalf of the O.Ps has also submitted that principle of good faith is inherent in insurance and when there is such a gulf of difference between the age of the insured shown in the insurance policy ( Ext-1) and in the voters’ identity card(Ext-A), the claimant is not entitled to get any relief for violation of the condition which is the essence of the contract between the parties. Heard ld.advocate on behalf of both the parties. Perused the evidence of the Smt. Minu Rabidas ( PW-1) and her son ( PW-2) and in this connection this Forum finds opportunity to go through the observation of the Hon’ble Supreme Court appearing in [2006(9) SCJD189(SC)]. Taking assistance of this observation ld.advocate on behalf of the O.P.s has submitted that the difference of age appearing in the policy (Ext-1) which covers the period from 08.08.2002 to 07.08.2017 and the xerox copy of the voters’ identity card (Ext-A) of the insured wherein the age of the insured stands at 42 years on 01.01.1995, the claim of the petitioner does not find any reason to be entertained by O.P.s and hence, ld.advocate for the O.P.s submits that the service of the O.P.s does not suffer from any deficiency and the application of the petitioner should be rejected with cost for causing harassment to these O.P.s. It has been contended on behalf of the petitioner that the information about the age of the insured given in both the Exts 1 and A may differ, yet the factum of accident relating in death and policy are not in dispute and, therefore, the claim of the petitioner is to be allowed. True it is that there is no dispute regarding genuineness of the policy and the death of the insured but the dispute arises about the disclosure of the age of the insured appearing in the proposal form and in the voters’ identity card. This Forum finds much substance in submission of ld.advocate appearing on behalf of the O.P.s that the principle of good faith is inherent in insurance and there is a clear violation of the same as is apparent in both the exhibits referred to hereinabove. The petitioner has brought on record one xerox copy of the Insurance Policy wherein it is mentioned that the age of the insured was 40 years on date of opening of the policy i.e. on 08.08. 2002 vide Ext-1 and admittedly the xerox copy of the voters’ identity card of the insured filed by the O.P.s clearly manifests that on 01.01.1995 the insured was 42 years and as such it cannot be denied that there is suppression of material fact which is relevant to the coverage of policy and as such mutual trust between the insured and the Insurance Company has been shattered by the insured himself and hence the petitioner is not entitled to get any relief. In this regard this Forum is fortified with the observation appearing in the Hon’ble Supreme Court referred to supra that there is mis-declaration in the proposal form on the date of opening the policy i.e. on 08.08.2002 which has been discussed in details above. The proceeding before this Forum be deemed to be essentially summary in nature and issues which involve disputed factual position should not be adjusted by it. This Forum cannot resist but to quote a portion of the observation of the Hon’ble Supreme Court which is as follows: “The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.” On consideration of the above facts and circumstances by any stretch of imagination can it be said that the service of the O.P.s suffers from any deficiency which disposes of the present point in the negative. Point No. 3 In the result, the case fails and should be dismissed. Proper fees have been paid. Hence, Ordered that Malda D.F. Case No. 01/2007 be and stands dismissed on contest against all the opposite parties. In the peculiar circumstances of the case this Forum does not pass any order as to cost. Let a copy of this order be given to both the parties free of cost. Sd/- Sd/- Sd/- Sumana Das A. K. Sinha S.K. Chakraborty Member Member President D.C.D.R.F., Malda D.C.D.R.F., Malda D.C.D.R.F., Malda | 
