DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 31^st  day of October   2011

Present  : Smt.Seena H, President

             : Smt. Preetha.G. Nair, Member       

             : Smt. Bhanumathi.A.K, Member             Date of filing: 24/05/2004

                                                (C.C.No.77/2004)           

K.Chenthamarakshan,

S/o.Unnikrishnan,

Kalathil House, S.N.Nagar,

Malampuzha (PO),

Palakkad.

(By Adv.P.G.Menon)                                                          -        Complainant                               

V/s

1.M/s.Jana Seva Foundation for

   Public Welfare, Regency Centre,

  Calvary Road, West Fort,

  Thrissur – 680 004.

  (By Adv.P.Vatsala)

2. Branch Manager,

    M/s.National Insurance Co.Ltd.

    M.G.Road, City Branch,

    Thrissur.

    (By Adv.Ajitha.A)                                               -        Opposite parties                                      

O R D E R

            By  Smt.PREETHA G NAIR,  MEMBER

The complainant’s case in brief is as follows:

The complainant took a mediclaim policy through agent of 1^st opposite party Sri.Jayaprakash by paying Rs.2,000/- for the treatment of the injuries sustained.  The 1^st opposite party gave a receipt for that bearing No.1221294 dated 13/9/01.  The complainant met with a motorvehicle accident on 24/8/03.  The complainant had availed mediclaim policy from 2^nd opposite party through 1^st opposite party on the latters insistence.  The bond has not been given to the complainant inspite of sending letters and notices to the opposite parties nor have they cared to honour the claim.  The complainant has sustained serious injuries on Rt.Rupture of Rt Eyeball, fracture Rt.Calcaneum, Blunt injury abdomen, Rupture spleen, Lacerations on Liver, Multiple lacerated wounds over right side of face and scalp, lost Rt.Eyeball etc.  A huge sum has been spent for his treatment.  There is deficiency in service on the part of opposite parties, they are jointly and severally liable to pay compensation to the complainant.  Hence the claim for compensation for Rs.75,000/- from opposite parties.

The 1^st opposite party  filed version contending that the complainant had joined the insurance policy of 2^nd opposite party in the group insurance policy.  Except in 2003, the complainant had not asked for getting the bond from this opposite party.  It is likely that the complainant would have been issued with the bond and he would have misplaced the same.  This opposite party is only an agent.  If the complainant is entitled to get mediclaim, the same is liable to be disbursed by 2^nd opposite party.  There is no deficiency in service and hence the prayer for dismissal of the complaint.

The 2^nd opposite party filed version contending that Jayaprakash is not their agent and that no amount has been received form the complainant.  This opposite party has not issued any policy in the name of 1^st opposite party.  As there is no issuance of Insurance Certificate no liability can be fastened on this opposite party.  The amount claimed is exorbitant and hence the prayer for dismissal of the complaint.

Complainant filed proof affidavit and marked Ext.A1 to A5 on his side.  Opposite parties filed Ext.B1 and B2.

Heard the parties.  The complaint allowed.  The 1^st opposite party filed appeal before the Hon’ble State Commission.  Complaint remanded for fresh disposal on merits. Also the  Hon’ble State Commission directed to allow the I.A.210/05 & 211/05 filed by the 1^st opposite party.  Hence the Forum allowed I.A.210/05 & 211/05  filed by  1^st opposite party to reopen the evidence and call for documents from 2^nd opposite party.  Then the 2^nd opposite party filed affidavit stated that the policy certificate with regard to the policy number 570704/42/2001/8204540 issued from the Thrissur branch of the company in the year 2001 are not presently available with the branch.

Both parties not adduced further evidence.  Heard.

Issue to be considered are 

1)    Whether there is any deficiency in service on the part of opposite  parties ?

2)    If so, what is the relief and cost entitled to the complainant ?

Issue 1 & 2

We perused relevant documents on record.  The complainant had paid Rs.2,000/- towards insurance premium through the 1^st opposite party.  Ext.A1 is the receipt dated 13/9/01 issued by the 1^st opposite party to the complainant.  The 1^st opposite party stated that the 2^nd opposite party issued group insurance for the insured persons including the complainant.  But the 2^nd opposite  party denied the issuance of insurance policy in the name of the complainant.  Ext.B1 is the Group Insurance Policy issued to 52 persons with policy No.2001/8204540 for a period from 22/2/2002 to 21/2/2007.  The 2^nd opposite party has produced Ext.B2 list of 52 persons covered by the policy.  But the 2^nd opposite party has not produced the original list of the persons covered by the policy.  In Ext.B2 the 2^nd opposite party mentioned that “The CTC of the policy along with the list of 52 members.  You may kindly advise the Advocate the following:- The 52 persons covered as 18 (1^st page) 14 (2^nd page) and 20 (last 2 pages).  Since the photocopy has been taken from the full book other names have also kept in”.  As per the order in I.A.211/05 the 2^nd opposite party filed affidavit stated that the policy particulars with regard to the policy number 570704/42/2001/8204540 issued from the Thrissur branch of the company in the year 2001 are not presently available with the branch.  The 2^nd opposite party has issued the Ext.B1 policy. It is the bounden duty of 2^nd opposite party to produce the policy particulars of 52 insured persons.  The 2^nd opposite party has not produced evidence to prove that not issued any insurance policy in the name of the complainant. The 1^st opposite party stated that the complainant had taken a valid insurance policy issued by the 2^nd opposite party. But in Ext.B1 shows the group insurance in the name of 1^st opposite party. The definite case of 1^st opposite party that the 2^nd opposite party issued group insurance for the insured persons including the complainant.  The details of insured persons was not produced by opposite parties.  It is further contented that Jayaprakash was not an agent of the 2^nd opposite party at any point of time.  The complainant stated that it is learnt on enquiries that Jayaprakash is absconding and his whereabouts are not known. No contradictory evidence was produced by opposite parties.  The material issue is whether the complainant was covered by the Group Insurance Policy issued by the 2^nd opposite party.  The daily  statement dated  13/9/01 by the 2^nd opposite party clearly shows whether the complainant was covered by the group insurance policy.  But the 2^nd opposite party failed to produce the daily statement dated 13/9/2001.   Ext.A1 is the receipt dated 13/9/2001 issued to the complainant for acceptance of insurance premium by the 1^st opposite party. In Ext.B1, the 2^nd opposite party issued the Personal Accident Policy in the name of 1^st opposite party.  The complainant stated that 1^st opposite party never handed over a bond to him.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties.  In the result the complaint allowed.

We direct both opposite parties jointly and severally to pay Rs.50,000/- (Rupees Fifty thousand only) as compensation for mental agony and pay Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings to the complainant. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 31^st  day of  October 2011.

  Sd/-

Seena.H

President

    Sd/-

Preetha G Nair

Member

   Sd/-

Bhanumathi.A.K.