This complaint is coming on for final hearing before us in the presence of Sri K.Phalguna Rao, Advocate for the complainant and Respondent No.1 I.Suresh, and D.Venkata Rao respondent No.2, 3 and 4 OP’s are called absent and having stood over for consideration, the Forum made the following:-
O R D E R
G.APPALA NAIDU, MEMBER
This complaint is filed U/s-12 of C.P.Act seeking relief to direct the respondents to pay the claim amount of Rs.2,00,000/- with interest at 24% per annum from 15.02.2005 on which date the policy holder Sanyasappadu died till realization, to pay compensation of amount of Rs.25,000/- for physical and mental agony and for correspondence and with other or further reliefs as the Hon’ble Forum deems fit and proper with costs of the petition in the interest of justice on the following everments:-
The complainant submits that her husband Dharmavarapu Sanyasappadu obtained group Janata personal accident Insurance policy bearing no.100300/47/01/9600022/03/96/30339 and the policy amount is Rs.2,00,000/- covering for the period from 31.12.2003 to 30.12.2013. As per the terms of the policy if it is a death claim the complainant is entitled for 100% of the sum assured. It is also submitted that the 1st respondent is a financial organization having tie up with respondent no.2 organisation to undertake the business of insurance and getting policies and accordingly the husband of the complainant joined as a member in the 1st respondent organization at Vizianagaram being the middleman and the second respondent issued policy certificate to the husband of the complainant under group Janata personal accident insurance policy whereas the respondent no.3 and 4 are added as a National insurance company is doing business all over India. The original policy holder i.e. Sanyasappadu nominated his wife i.e. the complainant in the above policy unfortunately her husband i.e. Sanyasappadu met with electrical accident due to electrical shock on 14.02.2005 while working on electrical pole. Being the Lineman of electrical department at Jarjapupeta village, Nellimarla Mandal, Vizianagaram district and died on 15.02.2005 while taking treatment in MIMS hospital, Nellimarla. Immediately the fact of death of Sanyasappadu was intimated to respondent no.1 and 2 and as per the advise of the 1st respondent dated 31.05.2005 the complainant sent claim form duly filled and signed, Original insurance policy certificate, Death certificate, Post mortem report, FIR copy and Voter identity card to the 1st respondents after receipt of which the 1st respondent wrote a letter to the 2nd respondent on 15.09.2005 by marking a copy of the said proceedings to the complainant. The 1st respondent also wrote another letter to the 2nd respondent on 13.08.2007 to dispose of the above said death claim at an early date and copy of the same was also marked to the complainant. However both the respondents did not settle the claim of the complainant and also not intimated anything to the complainant. She waited all these days with a hope that both the respondents will settle the aforesaid claim but her hopes turned futile. Therefore she got issued a legal notice to the 1st and 2nd respondents on 02.01.2011 with a copy marked to the 3rd respondent. However the 1st and 3rd respondents issued replies and the 1st respondent stated that he forwarded the claim of the complainant to the 2nd respondent who provided the insurance cover to the deceased Sanyasappadu for taking necessary action and the 3rd respondent stated that they sent a letter to the 2nd respondent and asked the complainant’s counsel to contact Culcutta office for the claim settlement. They did not settle the claim even though they are legally bound to settle the same with interest. The inaction of the respondents in not settling the claim amounts to deficiency in service and unfair trade practice. Hence this complaint.
Counter filed by OP-1 denying the averments made in the complaint except those which are specifically admitted there in and puts the complainant to strict proof of the same. It is submitted in the counter that as per the procedure the premium holders or their nominees if they are legally entitled for the claim amount from the 2nd OP, claimants have to submit necessary forms to the 1st OP who in-turn will forward the same to the 2nd OP and the 2nd OP on verification of the eligibility or otherwise with claimants and in case the 2nd OP is satisfied that the claimant is entitled for the amount claimed as per procedure and as per the provisions of law then the 2nd OP will directly send the claim amount to the respective claimants.
It is further submitted by the 1st OP that he will join the members and collect the premium and send it to the 2nd OP and as and when any claim is made by the claimants they have to submit the necessary forms to the 1st OP who in turn will forward the same to the 2nd OP who is having the primary liability and responsibility to pay the claim amount but the 1st OP is not at all legally or as per the terms of the contact is liable to pay any claim amount.
It is also submitted that whatever loss is caused to the complainant due to non payment of claim amount it is the OP No.2 to 4 alone will have to compensate but the OP No.1 is in no way liable for the same. Further soon after receipt of information the 1st OP informed the insurance company as well as the complainant and thereafter the complainant has to submit the necessary papers to the OP No.3. Further the repudiation of the claim or legal entitlement of the complainant is to be decided by OP No-3 alone as such OP No.1 is not a necessary and proper party to the proceedings and his role is only a limited one. Since there is no deficiency of service on the part of OP No.1 he prays the Hon’ble Forum to dismiss the complaint against him.
2nd OP filed counter denying the material averments made in the complaint except those which are specifically admitted therein and puts the complainant to strict proof of the same. It is stated that there is no relationship between the complainant and this respondent and also no knowledge with regard to alleged electrical accident and death of D.Sanyasappadu or submission of claim form to the 1st respondent along with documents referred in the complaint. Further at no occasion, the 2nd respondent acknowledged the receipt of claim form together with material documents as no such duly filled form was received by them. As per memorandum of understanding between the 1st and 2nd respondents vide clause-15 claim intimation should be given within 30 days by the claimant/GMSC Ltd to the NIC Ltd claim form along with necessary supporting documents should be submitted within 90 days from the happening of the accident. Any claims submitted after 90 days from the happening of the accident shall not be entertained. Whereas in this case even as per the complainants version, the accident happened on 14.02.2005 and claim form submitted to 1st respondent (not to 2nd respondent) on 03.07.2005 and 1st respondent addressed letter to 2nd respondent on 15.09.2005. Hence the claim form was not submitted within the stipulated time, even if such submission is true.
It is further stated that as per clause “H” of M.O.U, the parties fixed the territorial jurisdiction of the courts at Calcutta and as such this form has no territorial jurisdiction.
Also stated that the claim which is filed about 6 years after the alleged accident, is barred by limitation of the consumer Act, since the time stipulated under the said Act is only two years and hence the complainant cannot claim it to be a continuation of cause of action because at no occasion the 2nd respondent company assured the complainant that her claim is under process. Unless and until such an assurance is given, it cannot be treated as continuous cause of action and therefore the complaint is barred by time.
Further stated that when no claim is so far submitted before the 2nd respondent together with duly filled form and documents and at no occasion the 2nd respondent repudiated such claim, there is no question of deficiency of service on the part of the 2nd respondent and accordingly the petition of the complaint is liable to be dismissed in the interest of justice also that this Forum has no jurisdiction to entertain the complaint. OP 3 also reiterated almost the same stand as that of OP 2 in their counter filed.
Complainant filed evidence Affidavit and brief written arguments. OP 1,2 and 3 filed counters, Also evidence affidavit and brief written arguments of OP-2 and also chief affidavit of OP-2.
Exhibit A1 to A12 are marked on behalf of the complainant, whereas no documents are marked on behalf of the OP’s.
Exhibit A1 is copy of the Janata personal accident insurance policy claim form. Exhibit A2 is the copy of the policy issued by National Insurance Company Ltd. Exhibit A3 is the copy of post mortem certificate. Exhibit A4 is the copy of death certificate. Exhibit A5 is copy of the FIR. Exhibit A6 is the copy of Voter identity card of the deceased. Exhibit A7 is the copy of acknowledgement from Golden Trust Financial services. Exhibit A8 is the copy of G.T.F.S. (Golden Trust Financial Services) letter addressed to the Senior Divisional Manager, NICL, Calcutta on 15.09.2005. Exhibit A9 is copy of another letter of G.T.F.S. dated 13th August,2007 addressed to the Senior Divisional Manager, NICL Calcutta. Exhibit A10 is the copy of registered Legal notice issued by the advocate of the complainant on 02.01.2011 to the Golden Trust Financial Services, Calcutta and the Senior Divisional Manager, NICL Culcutta. Exhibit A11 is the letter dated 14.01.2011 addressed by the Senior Divisional Manager, NICL to the Divisional Manager, D.O-III, Calcutta. Exhibit A12 is the reply given by Golden Trust financial Services, Calcutta to the Advocate of the complainant for the legal notice given by him.
Heard arguments and posted for orders. The orders are as follows:-
The counsel for both the parties, advanced arguments by reiterating what they have stated in the complaint, counters, affidavits and brief written arguments respectively.
However as per I.A.39/2011 in C.C.No-2011 filed, this Forum directed (vide its order Dt.23.09.2011) the complainant to send a fresh claim application to the respondent No.2 within 15 days and the 2nd respondent is directed to consider the same within one month by condoning the delay of 4 years 45 days as it is not intentional. Further direction is to Number the C.C. if the claim is not settled within one month 15 days or one month from the date of receipt of claim by the 2nd respondent. Accordingly the complainant sent a letter dated 20.10.2011 (since the said order copy was received by the complainant on 19.10.2011) to the 2nd respondent fresh claim form along with relevant documents (Xerox copies) as the originals were already sent, who acknowledged the same on 01.11.2011.
Memo dated 10.04.2012 was filed by the complainant in this Forum stating that inspite of her compliance with regard to the requirements of the National Insurance Company Ltd they have not settled the claim till date on one pretest or the other.
Now the point for consideration is whether there is deficiency in service, and un-fair trade practice on the part of OP’s:-
From the material available on record the delay of 4 years 45 days in filing the complaint is condoned by this Forum vide its order dated 23.09.2011 in I.A.No-39/2011 as the delay is not intentional and there is a continuous cause of action also in terms of the judgement delivered by the Hon’ble Supreme Court in II (2007) CPJ 35 (SC) between Transport Corporation of India Ltd., Vs.Veljan Hydrair Ltd., and the relevant paras are reproduced here under:-
PARA-11: “Section-24A of the Consumer Protection Act, 1986 provides that neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. The term “cause of action” is of wide impact and has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. It refers to all circumstances or bundle of facts which if proved or admitted entitles the plaintiff (complainant) to the relief prayed for. In the context of limitation with reference to a contract for carriage of goods, the date of cause of action may refer to the date on which the goods are entrusted, date of issue of consignment note, the date stipulated for delivery, the date of delivery, the date of refusal to deliver, the date of intimation of carrier’s request to wait for delivery as the goods are being traced, the date of intimation of loss of goods, or the date of acknowledgement of liability.”
PARA-12: “ In this case, the consignment was entrusted to the appellant on 10.05.1996. On 08-11-1996, the respondent instructed the appellant to re-book the consignment. On 08-08-1998, 13.10.1998, 07-11-1998 and 08-12-1998, the respondent demanded delivery. By letters Dt:15-12-1998, 21-06-1999 and 03-07-1999, the appellant assured the respondent that it was in the process of locating the goods and requested the respondent to wait and assured that it will inform about the status. Thereafter, the appellant did not inform the status. The complaint has been filed within two years from the date of receipt of the said letter dated 03-07-1999 and is in time. In fact, in view of the request of the appellant to the respondent to wait till the consignment was traced, the limitation for an action would not start to run until there was a communication from the appellant either informing about the loss or expressing its inability to deliver or refusal to deliver, or until the respondent makes a demand for delivery or payment of value of the consignment after waiting for a reasonable period and there is non-compliance. Therefore, the complaint is not barred under section-24A of C.P.Act.
In view of the above Judgement, there is continuous cause of action in the case on hand and such delay of 4 years 45 days is condoned by this Forum as the respondents took a plea that they have not received the claim Form and the said delay is not intentional. The following further vital points are also to be taken into consideration:-
1. Both parties have admitted that the policy is in live condition from
31.12.2003 to 30.12.2013.
2. The deceased who died on 15.02.2005 was working as Assistant
Lineman in the electrical department since about 16 years and the
cause of death is high voltage electric shock.
3. The final conclusion in the FIR is indicative that the death of the deceased is due to electrical shock which was narrated in English language only and was also signed by the concerned police and the Assistant Divisional Engineer, Operation (Town) APEPDCL, Vizianagaram.
4. Clause No.26 of M.O.U dealing with claim settlement speaks that GMSC Ltd shall inter-alia endeavour to extend following services in connection with claims if any arising under the policy issued to it by NIC Limited.
(a) Co-ordinate with the insured MembersNos/beneficiaries regarding submission of intimation of claim in the prescribed form of NIC Limited.
(b) Co-ordinate with NIC Limited regarding settlement of claims on behalf of its members.
(c) Other services which may be either required by NIC Limited or the insured. NIC Limited shall similarly make sincere endeavours to settle claims lodged either by the insured or the GMSC Limited preferably within 30 days after receipt of all the requisite papers and/or information.
(d) Claims will be paid to beneficiaries only and claim cheque to be sent directly to the climant.
5. It is also evident from the material available that the Insurance company had not repudiated the claim, which is under process.
Further the record shows that GMSC Limited made best efforts in following up the matter with regard to issue of claim with the insured and also with the Insurance company and discharged their duty. The complainant also furnished the required information/ papers connected with the claim issue originally and also subsequently as per the direction of this Forum. However the Insurance Copmpany i.e. NIC Limited in one pretest or the other is postponing the settlement of claim, which is deemed to be intentional.
In view of all the above discussions, citations and facts narrated therein the complaint is liable to be partly allowed directing the respondents 2 to 4 jointly and severally to settle the insurance claim, since there is deficiency of service and un-fair trade practice on the part of Insurance company.
In the result the respondents 2 to 4 are directed jointly and severally to settle the claim and pay the amount of Rs.2,00,000/- to the complainant with costs of Rs.6,000/- which includes Advocate fee of Rs.1,000/-. The respondent No.1 i.e. Golden Trust Financial Services is directed to follow-up the matter with the NIC Limited to insure settlement of the said claim at the very earliest. This order shall be complied within two months from today failing which the OP’s 2 to 4 are liable to pay interest at 12% p.a. on the claim amount of Rs.2,00,000/- from the date of complaint till the date of realization.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 7th day of March, 2014.
Member President
C.C.No.18/2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1. RW 1.
DOCUMENTS MARKED
For complainant:-
Ex.A-1 is the Janata is the personal accident insurance policy claim
form.
Ex.A-2 is the copy of the policy issued by National Insurance Company
Ltd.
Ex.A-3 is the copy of Post Mortem Certificate.
Ex.A-4 is the copy of Death Certificate.
Ex.A-5 is the copy of FIR.
Ex.A-6 is the copy of water identity card of the decease.
Ex.A-7 is the copy of acknowledgement from Golden Trust Financial
Service.
Ex.A-8 is the copy of G.T.F.S letter addressed to the Senior Divisional
Manager, NICL Calcutta on 15.09.2005.
Ex.A-9 is another letter dated 13th August 2007 addressed to the
Senior Divisional Manager, NICL Calcutta.
Ex.A-10 is the copy of Registered legal notice issued by the Advocate
of the complainant on 02.01.2011 to the Golden Trust Financial
services, Calcutta and the senior Divisional Manager, NICL,
Calcutta.
Ex.A-11 is the letter dated 14.01.2011 addressed by the Senior
Divisional Manager, NICL to the Divisional Manager, D.O-3,
Calcutta.
Ex.A-12 is the reply given by Golden Trust Financial Services, Calctutta
to the advocate of the complainant for the legal notice given by
him.
For O.P – Nil -
President
