Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the proforma op took an insurance policy on behalf of the complainant through West Bengal Mountaineering and Sports Foundation (WBMSF) which is under the department of youth services and sport govt. of West Bengal being policy no.156042421810000135 dated 26.9.2018 (policy was valid from 29.9.2018 to 26.10.2019) for organization and expedition for Male team to peak Mount Sudarshan (6507 Meter) and jogging III (6101 meter) in Garwal, Himalaya during September to October, 2018.  This was the approved expedition out of eleven persons, this complainant is the no.7 in which sum assured of Rs.500000/- was covered.   After taking the said policy, they started expedition on and from 28^th September, 2018 but unfortunately they fell down accident on 21.10.2018 which was caused by frost bite by four members of the said expedition team including this complainant.  As a  result  both hand fingers and toes were affected and as soon as they descended down from the peak.  Complainant was taken to college of medicine and Sagar Dutta Hospital, Kamarhati, Kolkata on which he was treated in the emergency department on 26.10.2018 and he was treated in the CMRI, Hospital, Kolkata by Dr. Anupam Golash on 29.10.2018 and thereafter he was treated by the doctors in the said hospital on 10.11.2018 and thereafter he was also treated under the said doctor on 01.12.2018 and on 12.12.2018.  Afterwards, he was admitted on 01.06.2019 and treated by the doctors of SSKM (PG) where his both fingers of hands and toes were amputed and discharged on 08.06.2019 and after discharging from the said hospital, he was completely permanent disabled person and which was assessed by the doctor of Chinsurah Imambara Sadar Hospital to the extent of 80% disability. Now the complainant is a totally handicapped person and could cot work or walk easily. In this circumstances adviser of Mountaineering and directors of youth service Govt. of West Bengal sent a letter to the senior divisional manager, National Insurance Co. Ltd. dt. 30.10.2018 for intimation of Group Personal Accident Policy but the said office did not paid any heed to that matter. Again the said advisory of mountaineering director of youth services Govt. of West Bengal sent another letter dt. 24.1.2020 to the manager but the  office also did not pay any heed of that matter nor settled the matter. Lastly on 28.9.2020 the complainant submitted a claim form to the National Insurance Co. Ltd. stating all the facts of the accidental incident but the office still now did not pay any heed to that matter nor settled the claim.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 5,00,000/- along with Rs. 1,00,000/- for mental pain and suffering and Rs. 30,000/- for litigation cost.

Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant has claimed that he had gone on an expedition on 28^th September, 2018 wherein he fell down and that the same had been caused due to frost bite.  Nonetheless it is to be mentioned that the first intimation of any sort which have been received by the ops regarding such alleged incident was on 3.2.2020, which is nearly after l16 months from the actual date of the incident as stated by the claimant.  Further it is submitted that the claim form in this regard had been submitted on 29.9.2020 which almost 2 years from the date of the incident as stated by the claimant.  The claimant has further stated that in paragraph 5 of the claim petition that ‘both fingers of his hands and toes were amputed’  in this regard the ops would beg to draw the attention of ld. Commission to the terms and conditions of the policy.

As per policy condition as stated above, in the event amputation of limbs or permanent total disablement, written notice must be given within one calendar month after such loss.  It is an admitted fact that the complainant policy holder (through group insurance) and as per settled law, in a contract of insurance, rights and obligations are governed by the terms of the Insurance contract.  The terms of a contract of Insurance have to be strictly construed and no exception can be made on the grounds of equity.  As such it is most humbly submitted that the very fact that the intimation of the any manner regarding the alleged incident not only been received within one calendar month, but the first intimation was made after the expiry of nearly 16 months from the date of occurrence of the alleged incident, on 03.02.2022 and the claim form was received after expiry of about two years from the date of occurrence of the alleged incident, on 29.9.2020- which is ipso facto, a violation of the above quoted policy condition no.6.5(iii) of the Insurance policy contract.

It is also to be stated that the claimant has stated that he fell down accidentally which was caused due to frost bit.  In this regard it is to be stated that the claimant, had alongwith other members of his team, gone on a expedition, wherein they had been exposed to prolonged extreme cold conditions, and such the incident of ‘frost bite’ cannot be treated an unforeseeable incident, and ergo cannot be considered as an accident.  As per recent apex court ruling in this regard, and the fact that the claimant has violated the terms and condition of the insurance policy contract, the claim of the complainant had been rightly repudiated on 15.3.2021.  As such, no unfair trade practice or any deficiency or service of the part of the op arise and the claim is false, malafide, unjust, illegal, ultra vires to the terms and conditions of the Insurance policy contract, and manufactured for the purposes of wrongful gain and is liable to dismissed by the Hon’ble commission with costs to this op Insurance company. 

This op further submits that the claim of the petition is not payable as per condition of policy the amount of claim by the petition is false, fabricated, misconceived, illegal, with mala fide intentions and for wrongful gain.  Thus the petitioners are not entitled to get any claim from this op party insurance co. as because deficiency of the service does not arise at all.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Pandua, Hooghly and op no. 1 has it’s office at Chandannagore, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that  the complainant was a member of expedition team in the matter of mountaineering expedition on the peak of Mount Sudarshan issued at Garwal on Himalayan Mountain.
2. It is also admitted fact that the said expedition team was under the control of West Bengal mountaineering and sports foundation which is under the department of youth services and sports of the Govt. of West Bengal.
3. There is no dispute over the issue that regarding the said mountaineering expedition one Insurance policy being no. 156042421810000135 dated 26.9.2018 was opened in the matter of Insurance coverage of the Members of said mountaineering expedition team.
4. There is no controversy over the issue that the said insurance policy was under the OP Insurance Company.
5. It is admitted fact that the said insurance policy was covered in which sum assured was Rs.500000/-.
6. It is also admitted fact that said insurance policy was valid from 29.9.2018 to 26.10.2019.
7. There is no controversy over the issue that the complainant and the expedition team went out for expedition of the peak Mount Sudarshan in Garwal of Himalayan Mountain.
8. There is no dispute over the issue that unfortunately the members of the said mountain expedition team at the time of expedition had to face an accident on 21.10.2018. 
9. It is admitted fact that said accident was occurred due to frost bite and 4 members of the expedition team including complainant became seriously injured.
10. It is also admitted fact that as a result of the said accident both hand fingers and toes of the leg of complainant were affected.
11. There is no controversy over the issue that as a result of the said accident the complainant and other injured persons descended down from the peak.           
12. It is admitted fact that thereafter the complainant was medically treated at Sagardatta Hospital Kolkata, CMRI Hospital Kolkata, SSKM Hospital Kolkata from 26.10.2018 to 12.12.2018.
13. It is also admitted fact that both fingers of the hands and toes of the complainant were amputed.
14. There is no controversy over the issue that the complainant lodged a claim before the OP Insurance company for getting the sum assured.
15. It is admitted fact that the OP Insurance company repudiated the said claim of complainant.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant in this case adopted the plea that inspite of existence of valid Insurance coverage under OP Insurance Company, the OPs no.1&2 have not disbursed the claim of the complainant which is undoubtedly a deficiency of service on the part of the op Insurance Company but on the other hand the OP Insurance Company has taken the defence alibi that the complainant has filed his claim after long gap which is against the terms and conditions of the Insurance policy and so the OP Insurance Company has rightly repudiated the claim.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant has filed all the medical documents showing his medical treatment at Sagardatta Hospital Kolkata, CMRI Hospital Kolkata and at SSKM Hospital Kolkata.  It is also revealed from the evidence on record that the fingers of both hands and fingers of toes of the complainant have been amputed.  This part of evidence has not been controverted / or shakened in any way by the OP.  In other words it can be said that the OP has failed to produce any cogent evidence to contradict or demolish the above noted part of evidence given by complainant side.  It is admitted fact that the Imambara Sadar Hospital Authority has declared the complainant 80% handicapped.  This part of documentary evidence has also not been controverted by the OP side.   Thus it is crystal clear that the complainant has proved his case in respect of points of consideration no.4 & 5. In this connection the definition of service which is embodied in Section 2 (o) of the Consumer Protection Act, 1986 is very important. Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service in the matter of not granting claim of the complainants. In view of this position the op nos. 1, 1(A) and 1(B) are liable and responsible to pay the claim of the complainants and so the points of consideration nos. 4 and 5 are decided in favour of the complainants.

In the result it is accordingly

ordered

that the complaint case being no. 41 of 2022 be and the same is allowed on contest but in part against OP-1 & 2.

 It is held that the complainant is entitled to get the claim of Rs.500000/- alongwith interest @9% p.a. from OP-1&2.

Opposite party nos. 1 and 2 are directed to pay the said amount within 45 days from the date of this order otherwise the complainants are given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 10000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.