Sri. Apurba Kr. Ghosh............President.

The complainant has filed this case against the OP’s and praying for the following relief / orders:-

1. Direction against the OP’s to pay a sum of Rs. 2,00,000/- ( Two lakhs rupees) only to the complainant as claim amount.
2. Direction against the OP’s to pay a sum of Rs. 4,00,000/- (Four lakhs rupees) only to the complainant for harassment, mental agony and expenses.
3. Cost of the proceedings.
4. Any other relief/reliefs which the complainant is legally entitled.

BRIEF FACT OF THE COMPLAINT

1. That the husband of the complainant was owner of a private car being in registration No. WB 74-AA-5320 for which her husband purchased insurance policy being in No. FOP1088286 from the OP’s and the said policy was valid from 28.02.2015 to 27.02.2016.
2. That, the husband of the complainant died on 04.06.2015 due to car accident leaving behind the complainant as his nominee.
3. Post mortem of the deceased husband of the complainant was done on 04.06.2015 at Kisangang Sadar Hospital.
4. That, the Motor Accident inspector, Kisangang issued accident report on 17.08.2015.
5. That, the complainant files claim application before the OP’s and sent all the relevant documents.
6. That, the complainant being the nominee of her deceased husband has right to file claim application and the OP’s have no authority to disallow the claim of the complainant.
7. That, the OP’s have not disbursed the claim of the complainant and harassed her by several pretext though the husband of the complainant had valid driving license being in no. WB 2629B139 including all valid papers of the vehicle.
8. The, the cause of action of this case arose on 04.06.2015 when the husband of the complainant died and on 22.06.2015 when the first information was given and hereafter on each & every date of demand of claim by the complainant.
9. That, the OP’s have intentionally harassed and denied the complainant to disburse the claim of the complainant which is the deficiency in service on the part of the OP’s.

In order to prove the case the complainant has filed the following documents:-

1. Xerox copy of policy certificate – Annexure-A,
2. Xerox copy of death certificate – Annexure-B,
3. Xerox copy of post mortem repot –Annexure-C,
4. Xerox copy of certificate of the Motor vehicle inspector Annexure-D,
5. Copy of intimation letter dated 22.06.2015-Annexure-E.

Notice was issued from this Commission on receipt of notice both the OP’s have appeared before this commission through Vokalatnama, they filed written version. The OP’s have denied all the material allegation of the complainant and they have stated that the complainant has filed this case against them only to extort huge amount of compensation. In the written version both the OP’s have stated that, the complainant has filed this case prematurely and without any bona fide cause of action as the complainant never lodged any personal accident claim for the death of her husband. The further case of the OP’s is that the complainant has filed the case prematurely approached this commission without lodging a claim and without submitting necessary documents. The further case of the OP’s is that, in absence of a claim the OP’s cannot assume or presumed any liability in respect of the policy and mere giving intimation of accident to the company will not amount to registration of a claim. The OP’s have also stated about the procedure for registration of a claim. The OP’s  have also stated that, the deceased insured  had taken a policy for his car Ford Fiesta for a period of insurance from 28.02.2015 to 27.02.2016 vide policy No. FOP 1088286000100, subject to terms and conditions and the complainant being nominee of the deceased insured filed a Motor Accident Claims case in the Motor Accident Claims Tribunal, Siliguri being in MACT Case No. 33(04) of 2016 and the complainant without lodging a formal claim for personal accident approached before this Commission as well as before the Motor Accident Claim Tribunal. The OP’s by filing the written version praying for dismissal of this case.

The OPs have also filed the policy certificate, MACT claim application to falsify the case of the complainant.

Having heard the Ld. Advocate of both the parties and on perusal of the complaint, written version, documents filed by the parties including their evidence the following points are taken up for consideration by this Commission.

POINTS FOR CONSIDERATION

1. Whether the complainant is a consumer as per the provision of C.P. Act. ?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the complainant?
4. Whether there was deficiency in service on the part of the OP as alleged by the complainant?
5. Is the complainant has able to prove this case and entitled to get any relief as prayed for?

DECISION WITH REASONS 

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

At the time of argument Ld. Advocate of the complainant argued that, the complainant has been able to prove the case against the OP’s through her written deposition as well as by producing documents. By filing written notes of argument the complainant has stated that, within the effective insurance policy period the husband of the complainant died on 04.06.2015 and policy period was effective from 28.02.2015 to 27.02.2016. He further argued that the Motor Accident inspector, Kisanganj has submitted the motor accident report dated 17.08.2015 and the complainant handed over a letter along with the documents before the OP’s on 22.06.2015 for raising claim. It is also argument of the complainant that, the Insurance  cover note of the OP has cleared the limits of liability which cover for owner-driver is of Rs. 2,00,000/-. Further argument of the complainant is that, the complainant being nominee of the insured has right to claim the insurance and the OP’s have no authority to stop from discharge their obligation. It is also argument of the complainant is that, under section III the Owner-driver should compensate minimum by Rs. 2,00,000/- and under section II (i) of the policy death or bodily injury compensation should be compensate as per Motor vehicle Act, 1988.

At the time of argument Ld. Advocate of the OP’s submits that, they have already filed their written notes of argument and the complainant has failed to prove the case against the OP’s. He also argued that the instant case is not maintainable on the grounds that the complainant has already filed Motor Accident claims case before the Tribunal being in MACT case No. 33(4) of 2016 and Ld. Advocate of the OP’s also referred section 3 of the Consumer Protection Act, sections 165, 175 of the Motor Vehicle Act, 1988 and submits that, the complainant has no right to file this case against the OP’s. Ld. advocate of the OP’s also referred decisions of the Hon’ble Supreme Court in AIR 1995 page 1384 and claims that, the complainant is not entitled to get any relief as sprayed for.

Having heard the Ld. Advocate of both the sides and on perusal of the entire record including the written notes of argument filed by the parties it is admitted fact by both the side that, the husband of the complainant during his lifetime purchased insurance policy being in no.  FOP 1088286 which was valid from 28.02.2015 to 27.02.2016. It is also admitted fact that, the husband of the complainant died on 04.06.2015 which was within the validity of the insurance policy.

It is also admitted fact that, the complainant submitted intimation to the OP’s on 22.06.02015 regarding claim and also submitted documents.

It is not denied by the OP’s that, the insurance cover note disclosed the limits of liability as the policy covers death or boldly injury and Personal Accident Cover for Owner-Driver is of Rs. 2,00,000/-. It is also reflected in the cover note of the insurance policy that under section- III Owner-Driver should compensate minimum by Rs. 2 lakhs.

Ld. Advocate of the OP’s during argument has stated that one MACT Case being in No. 33(4) of 2016 was filed by the complainant and for which the complainant is not at all entitled to get any relief from this commission. It is true that, the complainant had file one MACT case but that does not mean that she will not be entitled to get any relief as per the provisions of the Consumer Protection Act. Because the compensation awarded by the Motor Accident Claims Tribunal in a MACT Case is totally different from the claim awarded by the Consumer Commission in a case on the issue of Mediclaim.

In the written version the OP’s have admits that, the intimation of accident was reported to them by the complainant. But they claims that mere giving  of intimation of accident will not amount to registration of claim. In this regard the OP’s have failed to explain before this Commission as to what steps they had taken on receiving the intimation of death of the accident from the complainant. Despite receiving the intimation of death due to accident the OP’s took no steps though they had liability towards the complainant so that being nominee of the inusred she could get her claim and said act of the OP’s are nothing but the deficiency in service on the part of the OP’s who failed to discharge their obligation. Mere non filing of the claim form by the complainant in the usual format of the insurance company does not ipso facto absolve the liability of the OP’s since when they received proper information from the complainant regarding death of the insured.

Considering all, we are of the view that, the complainant has been able to prove her case against the OP’s and the OP’s are jointly and severally liable to pay the awarded amount.

The decisions referred on the side of the OP’s are not applicable to the facts and circumstances of this case.

Hence, it is therefore,

O R D E R E D

That the instant Consumer Case being in No. 111/2016 be and the same is allowed on contest but in part. The OP’s are directed to pay a sum of Rs. 2,00,000/- (Two Lakhs Rupees) only to the complainant towards the claim amount.

The OP’s are also directed to pay a sum of Rs. 30,000/- (Thirty Thousand Rupees) only to the complainant as compensation for harassment, mental agony caused to the complainant by the OP’s as well as for deficiency in service on the part of the OP’s.

The OP’s are also directed to pay a sum of Rs. 10,000/- (Ten Thousand Rupees) only to the complainant as litigation cost and the OP’s are further directed to pay a sum of Rs. 10,000/- (Ten Thousand Rupees) only to the Consumer Legal Aid Account of this Commission.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which the OP’s will have to pay interest @ 9% per annum with effect from this day till making payment of the entire amount.

Let a copy of this final order/judgment be given to the parties free of cost.