Presented by: -
Shri Debasish Bandyopadhyay, President.
This case has been instituted by the complainant against the OPs for realizing her claim of Rs. 39,674/- alongwith interest and also for getting compensation and litigation cost from the OPs
Brief fact of this case
Complainant Case : - The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that there was a claim policy which is standing in the name of Debabrata Haldar, husband of complainant covering the period between 11.06.2018 & 14.06.2018 and the said Policy No. is 153500/48/16/8500002911 for the period between 17.06.2016 & 16.06.2017 was in the name of the Debabrata Haldar since deceased who was the husband of the complainant. It is stated that the Pay Order of Rs. 4,158/- being No. 002594 dt. 14.06.2017 in the name of the complainant was sent by Branch Manager of Bank of India, Chunavati Branch, Howrah who is the OP No. 3 to the OP No. 1 Insurance Company to the OP No. 1 refunded the said amount of Rs. 4,158/- to the A/C of the Complainant maintained in the Branch of OP No. 3 on 13.07.2017 and it was not within the knowledge of the complainant. It is submitted that the OP No. 3 transferred an A/C of Rs. 4,267/- from the Savings Bank A/C of the complainant on 25.07.2017 to the OP No. 1 which fact was also not within the knowledge of the complainant. It is alleged that the complainant just before filing of the claim to the OP No. 1 that the policy was given effect only from 01.08.2017 to 31.07.2018 instead of 17.06.2017 to 16.06.2018. According to the case of the complainant the said policy premium amount was enhanced from Rs. 4,158/- to 4,267/- included G.S.T. and it is also noticed by the complainant that the name of the son of the complainant was not included in the portion where the names of the persons covered appeared and only the name of the complainant is appearing . It is alleged that the OPs cannot take advantage of their own wrong. It is also stated that the OP No. 1 with malafide intention issued the policy for the period 01.08.2017 to 31.07.2018 in the name of the complainant instead of issuing the policy with effect from 17.06.2017 to 16.06.2018 in order to defeat the claim of the complainant. According to the case of the complainant side the policy effective from 17.06.2016 to 16.06.2017 was standing in the name of the husband of the complainant Debabrata Haldar since deceased and it reveals from the note of the OP No. 3 that the name of the husband of the complainant was advised to be deleted from the said policy due to his death and also expunge the name of the daughter of the complainant who has been married and also to delete the name of the son of the complainant. It is further submitted that there is no question of issuing of the fresh policy in favour of the complainant by OP No. 1 and the complainant had no role to play in making payments of the premium amount and the responsibility of renewal of the policy on behalf of the complainant was with the OP Nos. 1 & 3. It is further stated that Clause No. 3.3 and renewal Clause No. 5.5 of National Swasthya Bima Policy are not applicable in the case of the complainant as neither there was any break of policy nor it is a case where payment of premium was made in time by OP No. 3 in favour of OP No. 1. It is pointed out by the complainant side that his gross deficiency in service on the part of the OPs in view of the arguments made above and there is negligence on the part of the OP Nos. 1 & 2 in the matter of allowing the claim of the complainant.
For all these reasons the complainant has prayed for granting relief as per prayer of the complaint petition.
Defense Case : - The OP Nos. 1 & 2 contested this case by filing W/V and denied each and every allegations made by the complainant in her complaint petition. This specific case of the OP Nos. 1 & 2 in a nutshell is that the complainant for the complaint is not maintainable as is framed and also in the eye of law. It is stated that the complainant has got no right to file the present case as the complainant has no cause of action either to file the instant case or otherwise against the replying the OPs. It is pointed out by OP Nos. 1 & 2 that there is no deficiency of service on the part of the OPs. It has been alleged that it is not correct statement that the OP No. 1 issued receipt on 16.06.2016 as alleged but the same may be issued on 16.06.2017 and the Policy No. 153500/48/16/850000291 stand in the name of the Debabrata Haldar and it is not known to the OPs that the husband of the complainant Debabrata Haldar expired on 14.01.2017 as no information is given either by the bank authority or by the complainant. It has also been submitted by the OP Nos. 1 & 2 that while the bank sending renewal draft did not mention that existing customer/insured has expired and policy should be renewed in the name of Tapasi Haldar to merely sent a letter dt. 14.06.2017 enclosing the Pay Order of Rs. 4,158/- for renewal of the above noted policy and since the name of the customer/insured was not matching, that draft is returned to the bank. The OP Nos. 1 & 2 has referred the Clause 3.3 of the Policy i.e break in policy occurs at the end of the existing period when the premium due on a given policy is not paid on or before renewal on date or within grace period. It is submitted that as there was any break of the policy there was no policy cover on relevant date and so Exclusion of Clause 4.3 was applied. It is also submitted that there was break in policy and the policy in the name of the complainant starts from 01.08.2017 and the date of hospitalization as alleged was not covered.
In all these reasons the OP Nos. 1 & 2 has prayed before this District Commission for dismissing this case with heavy cost.
OP No. 3
The OP No. 3 has also contested this case and pointed out that there is no allegation i.e. OP No. 3 and so the OP No. 3 is not at all responsible for making any payment to the complainant . It is pointed out by OP No. 3 that the husband of the complainant has been maintaining Savings A/C and renewed the same time to time and in continuation of the Policy for the period 17.06.2016 to 16.06.2017 was expired on 16.06.2017 and as per instruction of the complainant, the OP No. 3 in advance debited Rs. 4,156/- as advised by OP Nos. 1 & 2 against their acknowledgement. It is submitted that during continuation of the policy for the period 2016-2017 but original policy holder (husband of the complainant) died on 14.01.2017 and the complainant requested the OP No. 3 to continue the said policy and OP No. 3 also did so. According to the case of the OP No. 3 the Pay Order by renewal of policy was lying with OP Nos. 1 & 2 for more than 25 days and during this period on 01.07.2017 the G.S.T. was implemented and then the OP Nos. 1 & 2 returned the Pay Order with the reason that due to G.S.T. the renewal amount has been changed and the Pay Order of renewal of the policy was submitted well before 16.06.2017 but OP No. 1 has not renewed the same . As per to the case of the OP No. 3 there was no deficiency of service on the part of the OP No. 3.
For all these reasons the OP No. 3 has prayed for passing necessary order and to dismiss the claim against OP No. 3.
Points of consideration adopted in this case
On the basis of the pleadings of parties, this District Commission also after going through the material of the case record and for the interest of proper and complete disposal of this case has framed the following points of consideration :-
- Whether this District Commission has jurisdiction to try this case?
- Is this case maintainable in its present form and in the eye of law?
- Is the complainant a consumer under the OP Nos. 1,2 & 3 ?
- Whether the complainant is entitled to get the claim which has been prayed by her in this case or not?
- Whether the complainant is entitled to get any compensation and litigation cost from the OPs or not?
- To what other relief or reliefs the complainant is not entitled to get in this complaint case?
Evidence on record
The complainant in order to prove her case has filed evidence on affidavit and against the evidence on affidavit the OPs have filed interrogatories and thereafter the complainant also had given reply against those interrogatories.
Similarly, the OPs have also filed their evidence on affidavit to disprove the case of the complainant and against the said evidence on affidavit the complainant has filed interrogatories and the OPs also have given their reply against the interrogatories filed by the complainant.
Argument highlighted by Complainant & OPs
In course of argument the complainant and OPs have filed their Brief Notes of their Argument and in addition to submission Brief Notes of Argument, the parties of this case also have highlighted their verbal argument.
In course of verbal argument the complainant side has given emphasis on the evidence on affidavit filed by the complainant side and also on the documents which have been filed by the complainant side. On the contrary, the OPs in course of their argument lay emphasis on the terms & conditions of the Insurance Policy. As per argument of OP Nos. 1 & 2 due to break of the policy and as per Clause 3.3 of the Insurance Policy the complainant is not entitled to get any claim from the OP Insurance Company.
Decision with reason
The points of consideration Nos. 1 to 3 are related with one another and the questions involved in these points of consideration are interlinked and / or interconnected with one another and so these points of consideration are clubbed together and taken up for discussion jointly.
Relating point of jurisdiction this District Commission after going through the material of this case record finds that the complainant is a resident of Sankrail which is falling under the jurisdiction of the District Howrah and OP Nos. 2 & 3 are also running their business within the District of Howrah which are within the jurisdiction of this District Commission. This matter is clearly reflecting that this District Commission has territorial jurisdiction in respect of the trying this complaint case.
Relating to the question of pecuniary jurisdiction, this District Commission after going through the material of this case record finds that the claim of the complainant is below Rs. 20,00,000/- and so this District Commission has its pecuniary jurisdiction as well.
Regarding the question of maintainability of this case the OP Nos. 1 & 2 has raised the question on the ground that there is no cause of action. But fact remains that this District Commission on close examination of the material of this case record finds that the complainant has instituted this case within the period of 2 (two) years after repudiation of the claim of the complainant by OP Nos. 1 & 2 . More so, in this case the complainant has her continuing the cause of action and all these factors are clearly reflecting that this case is maintainable u/s 24A of the Consumer Protection Act, 1986 in connection with the question whether the complainant is a consumer under the OPs or not?
In order to arrive at just and proper decision over this issue, this District Commission after making scrutiny of the material of this case record finds that the Complainant’s husband had Insurance Policy under the OP Nos. 1 & 2 and he also continued his Savings Bank A/C under the OP No. 3 and after the demise of Complainant’s husband the complainant has also continued the Insurance Policy under the OP Nos. 1 & 2 and also continued the Savings Bank A/C under the OP No. 3.
All these factors are clearly reflecting that the Complainant’s husband as well as complainant are / is a consumer under the OPs and according to the Section 2 (i)(d) (i)(ii) of the Consumer Protection Act, 1986 the complainant is also a consumer in the eye of law.
Thus, all the above noted 3(three) points of consideration are decided in favour of the complainant side.
The points of consideration Nos. 4, 5 & 6 are related with the question whether the complainant is entitled to get her claim which has been lodged against OP Nos. 1 & 2 and whether the complainant is entitled to get any compensation from OP Nos. 1 & 2 and whether the complainant is entitled to get any litigation cost from OP Nos. 1 & 2 or not?
For the purpose of arriving at just and proper decision in respect of the above noted points of consideration, this District Commission after going through the material of this case record finds that the husband of the complainant continued the Insurance Policy during his life time and thereafter the complainant also continued the said policy after the demise of her husband. It is revealed from the evidence on record that in respect of the period of 17.06.2016 to 16.06.2017.
The OP No. 3 discharging the amount of premium of Rs. 4,158/- according to the advice of the OP No. 2 and the said Pay Order of renewal of policy was lying with OP No. 2 for more than 25 days and the Pay Order of renewal of policy was submitted well before the due date 16.06.2017 but the OP No. 2 had not renewed the same.
This factor is clearly reflecting that there is gross negligence on the part of the OP Nos. 1 & 2 and there is deficiency of service on the part of the OP Nos. 1 & 2. This matter is clearly reflecting that the complainant is entitled to get her claim of Rs. 39,674/- alongwith interest @ 9% per annum (19.02.2019) from the date of filing of this case.
It is revealed from the case record that OP No.3 has discharged the Pay Order in respect of the premium of above noted Insurance Policy in favour of the OP No.2 within time and so there is no negligence or deficiency of service on the part of the OP No. 3 Bank Authority. Moreover, the complainant has also not filed any claim against the OP No. 3. Considering these aspects this District Commission is of the view that there is no negligence or deficiency of service on the part of the OP No. 3 and so this case is liable to be dismissed against OP No. 3. However, as the OP Nos. 1 & 2 in spite of getting Pay Order within time has failed to continue the above noted Insurance Policy, there is negligence and deficiency of service on the part of the OP Nos. 1 & 2. So, the OP Nos. 1 & 2 are liable to pay the claim of Rs. 39,674/- alongwith interest @ 9% per annum from the date of filing of this case (19.02.2019 to the complainant).
In the result, it is accordingly,
ORDERED
That this Complaint Case be and the same is allowed on contest against OP Nos. 1 & 2 but it is dismissed against OP No.3.
It is held that the complainant is entitled to get her claim of Rs. 39,674/- alongwith interest @ 9% per annum from OP Nos. 1 & 2 and she is further entitled to get compensation of Rs. 25,000/- and litigation cost of Rs. 5,000/- from OP Nos. 1 & 2.
OP Nos. 1 & 2 are directed to pay the said amount to the complainant positively within 45 days from the date of passing of this judgment failing which the complainant is given liberty to execute this award as per law .
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment be uploaded in the official website of this District Commission immediately.
Dictated & corrected by me
President
