Sri Swapan Kumar Mahanty, President.
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the case are that one Appa Rao, since deceased during his lifetime had taken a Group Janata Personal Accident Insurance Policy being No.100300/47/01/9600022/04/ 96/30026 from the OPs1 and 2 on 15-04-2004 and the said policy is valid till midnight of 14-04-2019. Complainants are the legal heir of Appa Rao, since deceased. During valid period of said policy Appa Rao was lying near his house on 15-10-2007. Immediately, the complainants shifted Appa Rao to Bhatpara State General Hospital with the help of neighbours and the attending doctor declared him brought dead. The hospital authority informed the death intimation of Appa Rao to local P.S. Jagaddal P.S. sent the dead body for post-mortem examination. Autopsy Surgeon opined that the cause of death of Appa Rao was due to effect of poisoning and anti-mortem in nature, Viscera was kept reserved for FSL report;. A UD case being No.124 of 2007 dated 15-102-2007 was started regarding unnatural death of Appa Rao.
Further the case of the complainants are that on 28-05-2009 they lodged accident benefit claim of Appa Rao to the OP2 through their corporate agent (OP3) and the OP3 forwarded the claim of the complainants to the OP2 on 29-05-2009. Dr. B. Chowdhury, Senior Scientific Officer of Forensic Science Laboratory, Govt. of West Bengal, conducting Viscera examination and prepared a report. Jagaddal P.S. submitted final report before the Ld. ACJM Barrackpore, regarding unnatural death of Appa Rao. The complainants submitted all relevant documents with claim form to the OP2 but OPs1 and 2 did not settle the claim. The complainants by their letter dated 22-08-2016 further requested the OP2 to settle the claim but the OP2 arbitrarily repudiated the claim vide letter dated 24-08-2016. Such act of the OP2 amounts to deficiency in service. Ultimately, the complainants issued a legal notice to the OPs directing them to settle the legitimate claim of the complainants but in spite of notice OPs did not take any step in this regard.
Finding no other alternatives the complainant filed the instant complaint praying reliefs as mentioned in the prayer portion of the complaint.
The OPs 1 and 2 have filed a written version contending, inter alia, that the complainants have no cause of action against the answering OPs and the complaint is barred by limitation. The specific case of the answering OPs 1 and 2 are that the deceased Appa Rao was covered by a Janata Personal Accident Policy issued by them and the total sum assured was Rs.3 lakhs. The policy was issued under certain terms and conditions. On the demise of Appa Rao, the complainants submitted death intimation to the answering OPs but cause of death was not mentioned in the intimation. It is further alleged that the wife of Appa Rao submitted a statement in writing to the answering OPs where she had disclosed the cause of death of her husband. In the said statement, the wife of the deceased stated that her husband and his other colleagues had been to Kolkata to enjoy a party and at late night his dead body was found lying in front of her house. The answering OPs further alleged that the complainants have tried to make out the case that the death of Appa Rao was caused due to accident by administering of poison by any third party. The Viscera report does not existent of any poison exhibits any poising and in the disposal order of the dead body of Appa Rao the cause of death has been stated to be unknown. According to the answering OPs there is no deficiency and/or unfair trade practice on their part and they have no liability to pay any claim to the complainants on the death of Appa Rao. Hence, they have prayed for dismissal of the complaint with cost.
The OP3 has contested the complaint by filing a written version contending, inter alia, that Appa Rao, since deceased obtained a Group Janata Accident Insurance Coverage on 15-04-2004 from OP1 under Group Insurance Scheme through them. The said police is valid till midnight of 14-04-2019 and Smt. Tulshi Devi is the nominee of the policy. Group Janata Personal Accident Insurance Policy only covered accidental death or permanent total disability resulting purely from accident. The insured Appa Rao died due to poisoning as opined by the Autopsy Surgeon though the Forensic Expert did not trace any poison. As such, the complainant are not able to establish the cause of death. Suicide is expressly excluded under the Group Janata Personal Accident Insurance Policy coverage. In terms of the Memorandum of Understanding the OP2 have an exclusive right and authority to settle the claim. The answering OP3 have no role to play in this regard. Therefore, no liability attaches to the answering OP3 for deficiency in service. Further case of the OP3 is that complainants are not consumers under the OP3. Accordingly, the answering OP3 has prayed for expunge their name from the cause title of the complaint.
In the light of the pleadings of the parties the following points necessarily came up for determination : -
- Is the complainant barred by limitation?
- Have the OPs1 & 2 deficient in rendering service to the complainants?
- Have the OPs 1 & 2 repudiated the claim illegally or arbitrarily?
- Are the complainants entitled to get any relief as prayed for?
Decision with Reasons
Point No.1 :
The Ld. Advocate for the OPs 1 and 2 contended that the complaint is barred by limitation. He further contended that Appa Rao died on 15-10-2007 and the claim was repudiated on 25-01-2012. According to him the instant complaint has been filed on 17-08-2017 after a lapse of five years from the repudiation. It is also asserted that U/s.24A of the C.P. Act, 1986 is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression shall not admit a complaint occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own, whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only, if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have ordered ‘set aside’. In support of such contention the Ld. Advocate for the OPs 1 and 2 cited decisions reported in (2012) 2 CPJ 312 Hon’ble NCDRC (Chambal Fertilizers & Chemicals Ltd. – vs. – Iffco-Tokio General Insurance Co. Ltd. & Ors) and in the case of Kandimalla Raghavaiah & Company –vs.- National Insurance Company & Another ) in Civil Appeal No.4962 of 2002.
On the contrary, the Ld. Advocate for the complaint submitted that the complaint is not barred by limitation as no such repudiation letter dated 25-01-2012 received by the complainant No.1 from the OPs 1 and 2. The said repudiation letter is after-thought and manufactured by the OPs1 and 2 to avoid their legal responsibilities. He further submitted that the Sr. Divisional Manager of OP1 vide letter dated 24-08-2016 repudiated the claim of the complainants. He argued further that there are so many correspondences between the parties after so called repudiation and the OPs 1 and 2 neither file any postal receipt nor produce any delivery acknowledgement in respect of the purported repudiation letter dated 25-01-2012.
We have gone through the pleadings of the parties coupled with documents on record. We have also gone through the decisions cited by the Ld. Advocate appearing for the OPs 1 and 2.
Section 24A reads as follows : -
Limitation Period –
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything in Sub-Section(1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay.
According to the OPs1 and 2 the claim of the complainants repudiated on 25-01-2012 and complaint has been filed on 17-08-2017 after a lapse of 05 years from the repudiation. On the other hand, the complainants state that repudiation letter dated 25-01-2012 is afterthought and manufactured by the OPs 1 and 2 to avoid their legal responsibilities. The OPs 1 and 2 neither file any postal registration receipt nor produce any delivery acknowledgement in respect of said purported repudiation letter. On perusal of the documents on record, we find that there are several correspondences between the parties to the complaint after 25-01-2012 and ultimately the OPs 1 and 2 vide letter dated 24-08-2016 treat the claim as ‘No Claim’. As such, we have no hesitation in holding that the complaint is filed within two years from the date of refusal of the claim. Therefore, the complaint is not barred by limitation. Point No.1 thus decided in favour of the complainants.
Points No.2 to 4
These three points are taken up together for discussion for the sake of convenience and brevity.
Perused the evidences of both parties coupled with the documents on record.
It is an admitted fact that Appa Rao, since deceased, was covered by a Janata Personal Accident Policy issued by OPs 1and 2 and said policy is valid till the midnight of 14-04-2019. Appa Rao died on 15-10-2007, Enquest and Post Mortem Examination over the dead body were performed. Autopsy Surgeon opined that the cause of death of Appa Rao was due to effect of poisoning, anti-mortem in nature and final report was kept until receipt of FSI report. There is also no dispute that on 28-05-2009 the complainant no.1 lodged accident benefit claim of unnatural death of her husband to the OP2 through their corporate agent i.e. OP3 who in turn forwarded the claim to the OP2. Complainants forwarded the final report of Dr. D.K. Das including other documents to the OPs 1 and 2. Admittedly, Jagaddal P.S. submitted Final Report before the A.C.J.M., Barrackpore regarding unnatural death of Appa Rao. In spite of several letters the OPs 1 and 2 did not settle the claim and ultimately on 24-08-2016 the OP2 repudiated the claim of the complainants. According to the complaint, there is deficiency in service on the part of the OPs. The Ld. Advocate for the complainants cited a decision reported in II(2011) CPJ 5(NC) and submitted that the Autopsy Surgeon opined that the cause of death of Appa Rao was due to effect of poisoning anti-mortem in nature. He further, stated that on perusal of FSL Report Autopsy Surgeon stands on his earlier opinion. Therefore, the repudiated claim is arbitrary and illegal. It is not in dispute that the wife of deceased Appa Rao wrote a letter addressed to other OP1 disclosing the fact that her husband and his other colleagues had been to Kolkata to enjoy a party and at late night his body was found near the door of their residence. On perusal of the said letter dated 20-07-2013 we do not find any allegation of accident or administration of poison by any culprit. Complainants also relying the Final Report in connection with Jagaddal P.S. U.D. Case No.124 dated 15-10-2007. On perusal of the said report we find that during enquiry no foul play could be detected. Final Report dated 14-09-2008 do not support the case of suicide or self-administration of poison. In the FSL report no poison could be detected and post-mortem report is not conclusive regarding assertion of cause of death. In the disposal order of the dead body of Appa Rao the cause of death has been stated to be unknown. The Autopsy Surgeon himself referred the viscera of the deceased for FSL report to confirm cause of death. The report of FLS is otherwise and such report should be binding upon the Autopsy Surgeon.
In view of the above findings, we are of the opinion that the death of Appa Rao is due to any other reason and in terms of the coverage available under the policy the complainants are not entitled to get death benefit claim of deceased Appa Rao. In the case of Oriental Insurance Co. Ltd. – vs.- Gangu Bal & Another reported in II (2011) CPJ 5 (NC) the Hon’ble N.C.D.R.C. it was held that the Insurance Company has relied entirely on the report of the investigator appointed by it to conclude the deceased committed suicide. The detailed investigation conducted by the police has clearly concluded that the husband of the respondent died as a result of accidental throwning by falling into the wall.
Admittedly, in the instant case, police submitted Final Report in connection with Jagaddal P.S. U.D. Case No.124 dated 15-10-2007 u/s.174 of Code of Criminal Procedure to the effect that during enquiry no foul play could be detected regarding unnatural death of Appa Rao, if any, foul play be detected in future the case will be opened. No document is forthcoming on the part of the complainants that a specific case has been started against any person regarding the unnatural death of Appa Rao. Therefore, the decision cited by the Ld. Advocate for the complainants is not application in the instant case.
The insurance policy between the insurer and the insured represents a contract between the parties. Since, the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitation or terms of the policy expressly set out therein.
Based on the aforesaid discussion, we do not find any irregularity in the matter of repudiation of claim of the complainants and the OPs have not committed act of unfair trade practice and deficiency in service within the meaning of C.P. Act, 1986.
In the result, the case merits fail.
Hence,
Ordered
That the complaint case being No.326 of 2017 be and the same is dismissed on contest against the OPs.
However, there shall be no order as to costs.
