Orissa

Cuttak

CC/17/2015

Kiran Devi Joshi - Complainant(s)

Versus

Divisional Manager,LIC Of India - Opp.Party(s)

M Agrawal

27 Apr 2017

ORDER

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

                                                                                    C.C. No.17/2015

1.           Kiran Devi Joshi,

W/O:Late Deoki Nanda Joshi,

Res. of Laxmi Bhawan,Bakhrabad,

Cuttack-2.

 

2.            Jagannath Joshi,

S/O:Late Deoki Nanda Joshi,

Res. of Laxmi Bhawan,Bakhrabad,

Cuttack-2.                                                                                          … Complainants.

 

                Vrs.

 

The Divisional Manager,

Life Insurance Corporation of India,

Cuttack Divisional Office,

“Jeevan Prakash”,P.O.Box No.36,

Cuttack-753001.                                                                               … Opp. Party.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     18.02.2016

Date of Order:   27.04.2017

 

For the complainants:      Mr. Mohit Agrawal,Adv. & Associates.

For Opp.Party:                   Mr. R.K.Pattnaik ,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

                The complainant having attributed deficiency in service and unfair trade practice to the O.P has filed this case against him seeking appropriate relief in terms of his prayer made in the complaint petition.

1. The factual aspect of the complainant’s case in short reveals that Late D.N.Joshi is the husband of complainant No.1 and the father of the complainant No.2 who had obtained two L.I.C policies (Jeevan Anand) from the O.P in his name.  The first Policy bearing No.586390456 with insurance coverage of five lakhs commenced on 10.04.2005 and the complainant no.1 was the nominee in the said policy bond.  The second policy bears No.586390455 with the insurance coverage of Rs.2.00 lakhs which commenced on 11.5.2005 and the nominee was the complainant no.2 in the said policy.  Copies of both the policies have been filed and marked as Annexure-1 series. 
2. The policy holder died of gum cancer in mouth on 20.11.2005 at about 3 PM. at his residence  Bakhrabad, Cuttack-2.  On 26.04.2006 the complainant lodged death claim in respect of the above two policies with the O.P. with all relevant documents.  Copies of the two death claims are filed and marked as Annexure-2 series. On 02.01.2007 the O.P requested the complainants to submit necessary prescriptions and pathological report of the treatment of the policy holder which were duly complied with by the complainants by their letter dt.09.01.2007.  Copies of both the letters have been filed and marked as Annexure-3 series.  The O.P. in order to settle the claim of the complainant thereafter issued reminder to him vide his letter dt.31.01.2007.  Then the O.P. vide his letter dt.7.5.2007 again requested the complainant to submit those medical papers and it was duly replied by the complainant on 6.6.2007 clarifying his stand that those documents has already been submitted earlier.  Copy of the above 3 letters dt.. 31.11.07, 7.5.2007 and 6.6.2007 have been filed and marked as Annexdure-4 series.
3. On 27.8.2007 the O.P again made several queries to the complainant and thereafter sat over the matter without settling his claim.  The latter brought this fact to the notice of the O.P vide his letters dt.4.3.08, 5.5.08.22.5.08, 14.7.08 and so on and lastly on 27.9.11.  Copies of those correspondences have been filed and marked as Annexure-5 series.  In the mean time the Investigating Officer was deputed to the residence of the complainant twice who investigated into the matter and submitted his report dt.20.3.12 to the O.P. recommending that the claim of the complainant may be admitted and released.  Copy of the report of such investigation dt.20.3.12 has been filed and marked as Annexure-6.  In spite of it claim could not be settled for which the complainant issued legal notice on 6.8.12 to the O.P through speed post.  Annexure-7 is the copy of the said legal notice.  It did not evoke any response from the O.P and then the complainant filed Consumer Complaint bearing C .C. No.207 of 2012 against the O.P before this Forum on 22.8.2012 with appropriate relieves.  The O.P in that case had filed the written version stating that the claim of the complainants had been closed in the year 2010 due to non-submission of relevant documents.  This Forum having heard the matter on merit passed final order on 27.01.2014 directing the O.P to settle the claim of the complainants within a period of 2 months hence on the basis of the documents already submitted.  Final order of this Forum was challenged in the appeal by the O.P before the State Commission in F.A No.123 of 2014 and stay was granted by the Appellate authority on 12.5.2014 against operation of the final order of this Forum.  But during pendency of such appeal, the O.P. suo-moto reviewed its stand and settled the claim of the complainants.  The O.P also paid the policy amount to the complainants along with bonus on the premium amount vide claim settlement letter dt.26.8.2014.  Thereafter the said appeal was withdrawn vide order dt.2.9.2014 on the basis of a memo filed by the appellant to that effect.  Copies of the claim settlement letter dt.26.8.14 have been filed and marked as Annexure-8 & 9 respectively.
4. It is specifically alleged against the O.P that it caused undue delay in settling the claim of the complainants and thereby the O.P is liable for violation of different provisions under Clause-8 of the Insurance Regulatory and Development Authority(Protection of Policy Holders Interest) Regulation,2002.( in short IRDA).  It is stated that where there is delay on the part of the insurer in processing the claim for a reason other than the one covered by sub-clause-4, the Insurance Company shall pay interest on the claim amount at a rate which is 2% above the bank rate prevailing at the beginning of the financial year in which the claim was reviewed by it as per clause-8(5) of IRDA.  In that view of the matter it is further stated that the O.P. is liable to pay 11% rate of interest on the claim amount from 26.10.2006 till settlement of the claim on 11.08.2014 which comes to Rs.6,00,178/-.  Hence it is prayed that the O.P may be directed to pay him Rs.6,00,178/- towards statutory interest on the policy amount for delay in settlement of their claim, Rs.50,000/- towards compensation for unfair trade practice, deficiency in service and also for causing mental agony, injuries and willful harassment caused to the complainant  and Rs.10,000/- towards cost of litigation.
5. The O.P contested the case by filing written version wherein the maintainability of this case has been seriously called in question on the ground of principle of constructive res-judicata.  It is stated that the complainant had earlier filed C.C Case No.207 of 2012 against the present O.P on the same subject matter with the same relief and it has been finally disposed of with the direction to the O.P for early settlement of his claim.  His prayer for compensation was not allowed which has been raised in the subsequent case but in a in a different form. In addition to interest  he has also prayed for compensation separately.  Therefore the present case is hit by constructive res-judicata.  Copy of the final order dt.27.01.2014 passed in C.C No.207 of 12 has been filed and marked as Annexure-A/1.  Annexure-A/2 is the copy of the complaint in C.C Case No.207 of 2012.
6. With regard to delay in settlement of the claim of the complainant it is specifically stated that non-settlement of the claim of the complainant in time was attributed to the negligence of the complainant for non-submission of the relevant documents to O.P despite repeated letters and reminders.  It is further stated that IRDA Regulation has no relevance in the context of the present case in as much as the policy holder/complainant being a party to the contract has not adhered to terms and conditions of the policy for non-submission of the required documents in time for consideration of his claim.  Annexure-B series are copies of different letters issued by the O.P to the complainant asking for timely submission of documents required for the purpose.  That apart, the other material averments in the complaints are also denied by the O.P.  Hence it is prayed that the complaint case is devoid of merit and may be dismissed with cost.
7. We have heard the learned counsels of both the sides and gone through all the annexures filed by them respectively in this case.  Main thrust of argument of the learned counsel for the O.P is that the entire case of the complainant is not maintainable being hit by the principle of constructive res-judicata in as much as he has filed a complaint case bearing No.C.C 207/2012 against the same O.P on the same subject matter before this Forum and the reliefs prayed for in that case are more or less same like that in the present case.  Annexure-A/2 is the copy of the complaint in C.C Case No.207/2012 which was disposed of on contest by this Forum vide order dt.27.01.2014.  Annexure-A/2 is the copy of the said final order passed in C.C No.207/2012.  In the earlier case, the complainant has prayed for reliefs seeking direction to the O.P for settlement of his death claim which has been long pending with the latter on the basis of the documents already submitted and to pay compensation of Rs.50,000/- to him for the deficiency in service and unfair trade practice on the part of O.P as well as for the serious mental agony and undue hardship caused to him by the delay occasioned due to inaction of the O.P in settlement of his claim and to award Rs.10,000/- to him towards cost of litigation.
8. In the final order vide Annexure-A/1 direction was given to the O.P to finally settle the claim of the complainant within the stipulated period of 2 months and also to pay Rs.5000/- to him towards cost of litigation.  That final order is silent as to the prayer for awarding compensation to the complainant although undue delay in settlement of his death claim despite submission of all relevant documents by him was taken as a plea in his complaint petition. In this circumstance, it is implied that the prayer for compensation was heard on merit and rejected.  In the present case the reliefs claimed by the complainant are almost same like that in C.C Case No.207 of 2012.  He has prayed for compensation of Rs.50,000/- and cost of litigation of Rs.10,000/- in addition to statutory interest of Rs.6,00,178/- on the policy amount for inordinate  delay in settlement of his claim.   Out of the above, first two prayers have already been heard and disposed of on merit.  So far as the third prayer i.e. payment of statutory interest amounting to Rs.6,00,178/- is concerned, it is held that  interest is an important component of compensation. Grant of compensation in addition to interest is not permissible under law.  This view has been taken in a decision reported in III(2001) CPJ-509 TN SCDRC.
9. In view of the above, it is held that the reliefs claimed for by the complainant in the present case are almost same in sum and substance like that in the earlier case.
10. The principle of constructive res-judicata envisages that if a party had taken a plea in a proceeding between him and his opponent he should not be permitted to take the same plea against the same party on the same subject matter in a subsequent proceeding.  It is based on the principle that for the one and same cause, no person shall be vexed twice.  It is important to leave a mention here that the learned advocate for the complainant has not raised  serious objection to the principle of constructive res-judicata argued and relied upon by his counterpart. 

In view of the above, the present complaint is found devoid of merit.  Hence ordered;

                                                                                ORDER

                The case of the complainant be and the same is dismissed on contest against the O.P.  No cost.

                Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 27^th    day of April, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                   President.

                                                                                                              (Sri B.N.Tripathy )

                                                                                                                         Member.

                                                                                                            (Smt. Sarmistha Nath)

                    Member(W)