DATE OF FILING: 13.11.2013
DATE OF DISPOSAL: 24.11.2016
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act 1986 alleging deficiency in insurance service against the Opposite Parties (for short, O.Ps ) and for redressal of her grievance before this Forum.
2. Briefly stated the case of the complainant is that the OPs are the life insurance company Ltd dealing with life insurance policy as well as insurance of the vehicles. The local branch agent of the O.P. had approached late Krishna @ Kora Swain and explained him the benefit of the policy on the happening of unforeseen event like death and damage if any to the vehicle. He persuaded him to do the insurance. On their approach the deceased did the insurance from the O.Ps. The deceased Krishna @ Kora Swain the Owner-cum-Driver of his Motor cycle bearing Registration No. H-10 AG 1383 had entered into an agreement in the aforesaid policy No.FTW/S0676827/Q1/10/K1Q11D Account No. Q 1000153 on 1.10.2012 on his life for value of Rs.1,00,000/- (One Lakh) only and for the Motor Cycle (MC) (Honda CBR-150 DLX) valuing Rs.1,70,388/- which the deceased had purchased from D.G. Motors (P) Ltd, Authorized Dealer HONDA MOTOR CYCLE & SCOOTER INDIA(PVT) LTD. P.O. Dhansar, Dhanbad (Jharkhand) on 1.10.2011. The date of commencement of the risk was from 1.10.2012 to midnight of 30.09.2013. Accordingly, the insured deceased Krishna @ Kora Swain paid annual premium of Rs.1773.04 including compensation towards PA coverage of Rs.50/- for owner- cum-driver. While the above noted policy was in force, the policy holder (deceased Krishna @ Kora Swain) met with an accident on 14.5.2013 at about 12.30 P.M. while returning from village Sheragada to his native village Dasamunduli, via-Gardeswar Siba Temple, Kulagada on his above noted MC along with the pillion rider deceased Budu @ Sibaram Jena. It is also stated that the MC bearing No.7H 10AG 1383 was being driven by the deceased policy holder Krishna @ Kora Swain and while they all three were talking, the involved/offending truck bearing Registration No. OR 18 C -135 came from front side in a rash and negligent manner in a high speed from the opposite direction i.e. from Aska side that too without blowing horn dashed them from the front by coming in wrong side, as a result they were thrown away to a distance, being driven by its driver, who could not able to control over the vehicle and dashed from the front side of the motor cycle, as a result the deceased persons Krishna @ Kora Swain, Pillion rider Budu @ Sibaram Jena and Krishna Chandra Das fell down on the road being thrown away. Krishna @ Kora Swain received grievous head injury along with fatal injuries on his other parts of the body whereas Budu @ Sibaram Jena and Krushna Chandra Das succumbed to the death at the spot due to grievous and fatal injuries on their persons. Soon after the occurrence, deceased Krishna @ Kora Swain was shifted to M.K.C.G. Medical College Hospital Berhampur in a 108 Ambulance and unfortunately he died on the way to the Hospital and was received dead at Causality of M.K.C.G. Medical Colleges, Hospital Berhampur by C.M.O. Dr. P.K.Rath on the same day at 2.25 P.M. Basing on that, the B.N. Pur Police Station registered a U.D. Case No. 180 dated 14.5.2013 and enquired into the matter and simultaneously a case was also registered at Sheragada Police station bearing case No.26 dated 14.5.2013 U/S 279/337/338/304(a) of IPC on the report of one Nakula Das brother of Krushna Chandra Das. The same is sub-judice before the JMFC, Aska vide GR No. 251/2013. Annexure 6 is the Driving License, Annexure 7 is the postmortem report and Annexure 8 is the voter identity card of the deceased Krishna @ Kora swain. The official name of the deceased is Kora Swain and the local name is Krishna, as such he is Krishna @ Kora Swain for all purposes. The deceased Kora Swain is the only earning member of the family. It is also mentioned in the complaint that on behalf of the complainant, her Advocate Sri Upendra Sahu had written to the General Manager, Bharati AXA General Insurance Company Ltd, 1st Floor, Fems Icon, Survey No.28, Doddankundi villages K.R.Puram Hoble Bangalore -37 on 26.6.2013 for relief under the aforesaid insurance, but till today the same is to be received. In turn he advised to contact to Mr. Ananta Patnaik and Mr. Sudipta Ray of the 3rd party department of the Insurance Company and our Advocate did so, but of no use. However, for getting the claim our Advocate also registered the claim vide Registration No. FO 326464 dated 24.10.2013. The cause of action arose on 1.10.2012 when the deceased paid premium to the O.P. and on 14.5.2013 when the deceased met with a road accident in which he died and on 22.6.2013 when our Advocate sent a registered letter to the O.Ps with a prayer to give compensation and till now the cause of action is continuing and the complainant yet to get the claim. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay compensation of Rs.1,00,000/- towards the death benefit of the policy, to pay the cost of the motor cycle i.e. Rs.1,30,388/- and to pay Rs.10,000/- towards litigation charges in the interest of justice.
3. Upon notice the O.Ps filed version through his learned counsel Mr. R.K. Panigrahi. In the written version, it is stated that the averments made in the complaint are all not true and correct and those are not specifically admitted herein are deemed to have been denied and the complainant is put to strict proof of the same. The complaint is not maintainable on the ground of jurisdiction. The complainant is residing at Jharkhand as she is working in the Kolliary the vehicle purchased at Jharkhand and also policy obtained from the office of O.P.No.2 at Jharkhand. Hence there is no office of the O.Ps within the jurisdiction of this Hon’ble Forum. Hence the present claim is not maintainable and the same is liable to be dismissed. The deceased is the dependent on the complainant. Now the complainant is working in the Kolliary at Jharkhand. Hence the present complaint is not maintainable and the same is liable to dismiss on the jurisdiction point of view as well as non-joinder of necessary parties. The deceased on the date and time of accident carried two pillion riders and colluded face to face with the Truck, as a result two pillion rider died at the spot and the deceased motor cyclist died on the same day during treatment. The deceased has violated the conditions of insurance policy by carrying two pillion riders on the date and time of accident. Soon after the accident, the present complainant did not intimate the Insurance Company O.P.No.2, nor made any claim for the damage of the motor cycle. The complainant has not repaired the motor cycle and for that she has not made any claim before the O.P.No.2. Hence mere issuance of letter through an advocate (i.e. after long lapse of 5 months) in the present case is not maintainable. The complainant is also not intimated about the death of the deceased to the O.P.No.2 about accident death of the deceased Krushna Swain for the purpose of P.A. claim. The complainant has also not lodged any claim with the O.Ps in this regard. The complainant filed the present complaint seeking reliefs for the two claims (i.e. PA claim for the death of the Krushna Swain and Motor Cycle damage claim for the damages of the claims) are not maintainable as per the conditions of the insurance policy, and the same are liable to be dismissed. The cause of action against Insurance Company would arise when a claim is lodged after which either no decision is given or delayed decision is given or a claim is wholly or partially repudiated. When no such claim is lodged for the damage of the motor cycle, occasion would not arise for this O.P. to give a response/decision. In the present case no such claim was ever raised with the Insurance Company (O.P.No.2 the policy issuing Branch) for which no occasion arose before it to render any service. Hence the complainant is not backed by any legitimate cause of action. That for the purpose of the present litigation a cause of action was attempted to invent by the present complaint, which did not possess any merit and the question of deficiency of service does not arise and hence the case against this O.P. is not maintainable. Such a vexatious creation of cause in bringing the present litigation be viewed with heavy hand and the complainant be asked to submit authentic evidence of lodging of claim before the Insurance Company. There is no such claim ever made by the complainant before the O.Ps. There is no allegation of deficiency of service in anywhere in the complainant. Hence the present claim is also not maintainable under the provisions of the Act. The averments made in the complaint against these O.Ps are all baseless and created exclusively for the purpose of putting a claim against this O.Ps. The complainant has not approached with clean hands and he has played fraud, has misled, has adhered to all such frivolous activities, has deliberately suppressed the material evidence, and has concealed the truth for the purpose of the claim. Hence the complainant is not entitled for any such relief. The complainant suffers from wrong joinder and non-joinder of widow of the deceased as necessary of parties. The complainant is not sole legal heir/successor of the deceased. Hence the present claim is not maintainable and is liable to be dismissed. Keeping in view of the above facts and circumstances, the O.Ps submits that the complainant should be suitably liable for the unnecessarily vexatious litigation as well as wastage of public money. There is no cause of action to bring out such a case against these O.Ps. The complaint is not maintainable and the Hon’ble Forum has no jurisdiction to try the present dispute. Hence the O.Ps prayed to dismiss the complaint and pass suitable order with a direction to the complainant for payment of cost and damages towards the vexatious litigation against these O.Ps, in the interest of justice.
4. On the date of hearing of the consumer dispute, we heard the arguments from both the learned counsel for complainant as well as for the O.Ps and have also gone through the complaint, written version and written arguments of parties. We have also verified the materials placed on the case record marked as Annexures and perused the documents.
During the course of hearing of the consumer dispute and oral argument, the learned counsel for the complainant argued that the deceased policy holder was insured his motor cycle with the O.Ps at Ranchi on payment of Rs.1773.04 towards premium and the present complaint was nominated as nominee of the said insurance policy. Under the insurance policy, a sum of Rs.1,00,000/- is allowed for personal accident claim and the nominee complainant claimed the amount after death of the deceased policy holder on 14.5.2013. Despite several requests the O.Ps did not prefer to settle the claim of the complainant hence the complainant filed this complaint with a prayer to direct the O.Ps to pay Rs.1,00,000/- towards personal accident benefit under the policy and to pay Rs.1,30,338/- towards damage of the motor cycle along with up to date interest and Rs.10,000/- towards litigation cost in the interest of justice.
Per contra, the learned counsel for the O.Ps in his oral and written argument contended that the motor cycle bearing No.JH-10AG-1383 was purchased at Jharkhand. The registration done at Jharkhand and the insurance policy obtained from the Branch Office at Ranchi (Jharkhand). There is no branch office at Berhampur or at Bhubaneswar in Odisha. The present claim is not maintainable as the cause of action arose at out of Odisha and the case is not maintainable under the jurisdiction of Ganjam Consumer Forum. Moreover, the complainant has not lodged any claim with the O.Ps in this regard. Hence the present claim is liable to be dismissed as not maintainable. It is also argued that the petitioner Smt. Tamala Swain, the nominee and mother of the deceased policy holder but in the MACT case the claimants are wife, children and mother. It is further contended that the petitioners of MACT claim has claimed towards the damage of the vehicle as per the column -29 of MAC 148/2013, pending before the Hon’ble M.A.C.T. Tribunal so the claim towards damage of the alleged vehicle does not arise. In view of the aforesaid fact and circumstances of the case and in view of the jurisdiction and claim made in MAC 148/2013, the present claim is not maintainable and the same is liable to be dismissed.
5. We have heard arguments of both parties and have also perused the pleadings and verified the material documents placed on the case record.
On verification of materials placed on the case record, we found that there is no dispute that the deceased had purchased the CBR 150 DLX Model Motor Cycle from D.G. Motors (P) Ltd, Dhanbad, Jharkhand, on payment of Rs.1,70,388/- towards consideration of the said Motor Cycle. It is also beyond dispute that the said motor cycle was insured with the O.Ps vide policy bearing No.FTW/S0676827/Q1/10/K1Q110 on payment of Rs.1773.04 towards premium of the said policy and the address of the deceased policy holder has been mentioned in the body of policy bond as At/PO-Dashamundili, PS: Patapur, Aska, Odisha. The premium paid for the said policy includes premium for own damage and for personal accident. Under the said policy, a sum of Rs.1,00,000/- has been assured for personal damage cover for owner-driver in case of death or bodily injury and the present complainant was nominated as nominee of the said policy by the deceased policy holder which is also not in dispute. The policy was issued on 01.10.2012 at Ranchi by the O.Ps with the seal and signature of the insurance company. It is also a fact that the deceased was having a valid driving license while driving the said motor cycle vide driving license No.OD-0720130335696 dated 29.04.2013 issued by the RTO, Chatrapur, Ganjam and the validity of the driving license is up to 28.4.2033. The motor cycle was also duly registered under the Motor Vehicle Act in Jharkhad State bearing Registration No.JH 10AG 1383 during October 2012. On verification of documents, we also found that the deceased policy holder was died due to road accident as per the report of B.N. Pur Police Station vide U.D. Case No.180 dated 14.5.2013 and subsequently the Post Mortem of the deceased was conducted by the M.K.C.G. Medical College and Hospital, Berhampur, Ganjam and copy of the Post Mortem Report is placed in the case record as Annexure-7. From the aforesaid discussion it is clear that the deceased policy holder died out of road accident while the insurance policy of the Motor Cycle was in force. The complainant through her advocate has also filed an affidavit stating that she has also intimated the claim to the O.Ps and the claim was registered in the office of the insurance company vide Registration No.AR 0596314347 dated 28.11.2013 and has also intimated the Forum through the said affidavit that the O.Ps have deputed a surveyor on 03.02.2014 for enquiry and spot verification of the accident and damage of the vehicle. However, the learned counsel for O.Ps has raised an objection on the point of maintainability of this consumer dispute since the Motor Cycle bearing Registration No.JH-10AG-1383 was purchased at Jharkhand. The registration done at Jharkhand and the insurance policy obtained from the Branch Office at Ranchi and there is no branch office at Berhampur or at Bhubaneswar. The O.Ps have also raised objections that this case is also not maintainable on the ground that the complainant has also filed a M.A.C.T. claim in the M.A.C.T. Tribunal for damage of the vehicle. The sole point of dispute to be decided by this Forum whether the complaint of the complainant is not maintainable in this Forum?
6. On careful verification of materials like insurance policy document, Driving License, post mortem report etc placed on the case record, we found that though the deceased policy holder procured the policy from Ranchi office but in fact the address of the policy holder is mentioned on the body of insurance policy as At/PO-Dashamundili, PS-Patapur, Aska which is in the district of Ganjam. We also found that the deceased policy holder had nominated his mother as nominee of the said policy who is the present complainant in this consumer dispute. The mother of the deceased policy holder who is nominee of the said policy is belongs to Ganjam district and the permanent address of the deceased policy holder as discussed above has been mentioned in the policy document as At/PO-Dashamundili, PS-Patapur, Aska, i.e. well within the geographical area of Ganjam district. Hence, in our view, there is not wrong if the nominee complainant files the case within the jurisdiction where the policy was procured or where she permanently resides. In this connection, we would like to say that the deceased policy holder has not suppressed any material information with regard to his identity or residence while procuring the said insurance policy and he has voluntarily disclosed his place of permanent residence at Dashamundili village which is in Ganjam district within the jurisdiction of this Forum. Thus, when a bona fide insurance policy not settled by the O.Ps even after duly intimation to the company, the nominee complainant can prefer a complaint either in the jurisdiction where the policy was procured or where she permanently resides, since the Consumer Protection Act, 1986 is a welfare legislation enacted by the Parliament for the best interest of the poor and helpless consumers for protection of their legitimate economic rights. Hence, there is no wrong filing a complaint in the territorial jurisdiction of this Consumer Forum. Besides, in our observation, the claim of the nominee complaint is not to be settled by the Ranchi Office of the insurance company but certainly to be settled by the head office i.e. either by O.P. No.1 and 3 or jointly. In this dispute, as per the case record, when the notice was served to the office of O.P.No.2 for appearance, the notice was returned to this Forum without service. In fact, the notice was not received by the O.P. No.2 from the postman and returned to this Forum. In our view, what prevent them not to receive the notice and to intimate the claim to the head office for final settlement of the claim of the nominee complainant? That apart, it is also a fact that the present contract of insurance is neither void nor unlawful and the insurance policy is also in force at the material time of accident of the deceased policy holder. Under the said insurance policy, there is a provision for P.A. cover of Rs.1,00,000/- for owner-driver in case of accident which is also not denied or disputed by the O.Ps. The Post Mortem Report and police case documents reveals that the deceased policy holder was died due to fatal road accident during riding of the said motor cycle and his driving license is found to be valid and effective at the material time of accident. However, the leaned counsel for the O.Ps has also raised a contention that the nominee complainant is the mother of the deceased motor cyclist but in M.A.C.T. case the claimants are wife, children and mother. The petitioners of M.A.C.T. claim has claimed towards the damage of vehicle as per column-29 of MAC 148 of 2013 pending before Hon’ble M.A.C.T. Tribunal hence the claim towards damage of the alleged vehicle does not arise and not maintainable. In this regard we would like to clarify that the aforesaid M.A.C.T. claim has been filed by the family members for damage of the vehicle and in the instant insurance claim the nominee complainant has claimed for insurance benefit under P.A. coverage of the policy in dispute for owner driver in case of accident as per the policy conditions. On careful examination of the contentions, we feel that there is no force in the arguments of the learned counsel for O.Ps advanced before us, since the M.A.C.T. claim filed by the family members in the Tribunal has got no bearing in this instant insurance claim hence we are not inclined to accept the same.
7. Under the above fact and circumstances and in a sequel to the aforesaid discussion, we would like to say that it is moral duty of insurance company to stand by the aggrieved family and to extend insurance support as a token of help of corporate social responsibility. The deceased policy holder had deposited a handsome amount, deposited the premiums under a valid contract of insurance. In this dispute, the insurance contract is neither a void agreement nor unlawful and it was very much in force at the time of accident of the deceased policy holder. The equity justice and good conscience say that the insurance company should settle the insurance claim of the victimized mother of the deceased policy holder who stands as nominee of the insurance policy and should not turn down the claim on technical grounds. This is a welfare society and in a welfare state, the Insurance Company is to help the legal representatives of the deceased in their crisis period and not to discard the claim on technical and legal grounds. In our considered view, in case of a genuine insurance claim, the Insurance Company should settle the claim honestly by observing necessary official formalities and it should not be denied on technical grounds like lack of territorial jurisdiction so that it can help enhance goodwill and integrity of the company in the field of insurance business in the country.
8. In the result, we partially allowed the complaint of the complainant against all O.Ps. The O.Ps who are jointly and severally liable directed to settle the P.A. claim of the petitioner after receipt of claim application from the nominee complainant. Simultaneously, we also direct the nominee complainant to intimate the claim afresh to the O.P. No.2 within 15 days of receipt of this order along with all relevant documents for settlement of the insurance claim. The aforesaid order shall be complied by the O.Ps within 60 days from the date of receipt of the claim application from the nominee complainant failing which the claim amount shall carry interest @7% per annum. The consumer dispute of the complainant disposed off accordingly however in the fact and circumstances, we are not inclined to impose any cost.
9. The order is pronounced on this 24th day of November 2016 under the signature and seal of this Forum. The office is directed to supply copies of this order to the parties free of cost.
