DATE OF FILING : 12-08-2010.
DATE OF S/R : 05-10-2010.
DATE OF FINAL ORDER : 10-05-2011.
Sri Pravash Mondal,
son of Late Manmatha Nath Mondal
of village – Mirapara, P.O. & P.S. Pandia,
District – Hooghly, -------------------------------------------------------------Complainant.
- Versus -
1. The Divisional Manager,
Howrah District, New India Assurance Co. Ltd.,
P.-18, Dobson Lane ( 2nd floor ),
Howrah – 711101.
2. The Branch Manager,
Howrah Branch, Unit No. 512200,
The New India Assurance Company Ltd.,
Madhusudan Apartment, P – 18, Dobson Lane,
Howrah – 711 101.
3. The New India Assurance Co. Ltd.
Through its Managing Director,
having its Registered Office at
87,Mahatma Gandhi Road, Fort,
Mumbai – 400 001.
4. The Golden Trust Financial Services,
Through its Managing Directors,
Having its office at 16 R.N. Mukherjee Road,
Kolkata – 700001.-------------------------------------------------- Opposite Parties.
P R E S E N T
1. Hon’ble President : Shri J.N. Ray.
2. Hon’ble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
1. Representative for the Complainant : Shri Rasomay Mandal,
Ld. Advocate.
2. Representatives for the O.P. nos. 1 – 3 : Shri Rupak Banerjee,
Ld. Advocate.
3. Representative for the O.P. no. 4 : Smt. Pragya Bhowmick,
Shri Shovan Ghose,
Authorised representatives.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 regarding insurance claim on the ground of deficiency in service.
Fact of the case, in brief, is that the complainant, being field worker of the Golden Trust Financial Services, in short, G.T.F.S., o.p. no.4, obtained Janata Personal Accident Insurance Policy, in short, JPA Policy bearing no. 4751220001799 / E No. 47-30915 dated 08/08/2000 for the period from 08/08/2000 to 07/08/2015 (mid night) for sum assured of Rs. 2,00,000/- through the G.T.F.S. On 29-01-2004 the complainant fell down from the train at Pandua Railway Station and sustained injury over his left hand. He was admitted to Hooghly Imambara Hospital from where he was transferred to Medical College and Hospital, Kolkata, on 07-02-2004 wherein he underwent operation namely amputation of left hand through wrist joint. Consequently he became permanently disabled to the extent of 70% as certified by the appropriate authority. The complainant subsequently filed claim before the new India Assurance Company Ltd., at Howrah branch, through the G.T.F.S., o.p. no. 4, on 05/04/2004. The application was received by the O.Ps.-1, 2 and 3. The complainant submitted claim form to the respondent authorities with all necessary injury report alongwith papers and documents and the same was received by the New India Assurance Co. Ltd. on 06/02/2005. But the respondent authorities did not release claim amount and sat tight over the matter. Thereafter the complainant filed a Writ Petition No. 15409 ( W ) / 2005 before the Hon’ble High Court, Calcutta. By order dated 16-08-2005 Hon’ble High Court directed the insurance company to settle the claim within a specified period. Complainant filed all necessary documents before the insurance company as per direction of the Hon’ble High Court but the insurance company did not settle the claim. Complainant then filed a Contempt Application being no. CPA 874/06 before the Hon’ble High Court, Calcutta, against the insurance company. Thereafter complainant as per requirement of the o.ps. filed all necessary documents including the document relating to proof of his status as field worker of G.T.F.S. But the insurance company by a letter dated 04-09-2007 repudiated the claim of the complainant on the ground that he could not prove his status as field worker of G.T.F.S.
O.Ps.-1, 2 & 3, The New India Assurance Company Ltd., and o.p. no. 4, G.T.F.S., contested the case by filing written versions separately.
O.p. no. 4, G.T.F.S., virtually supported the claim of the complainant contending interalia that the complainant was their field worker and according to the MOU between the insurance company and G.T.F.S., the JPA policies were issued in favour of the investor and field workers of the G.T.F.S. At the time of obtaining the policy proposal form furnishing all detailed information were submitted before the insurance company who after being satisfied issued the JPA policy certificate. At that time the insurance company did not question about the status of the policy holders. The complainant met with an accident and lost his left palm up to wrist and became disabled to the extent of 70%. He submitted the claim with all necessary documents which were duly forwarded to the insurance company. Complainant also filed writ petition before the Hon’ble High Court against the insurance company alleging non settlement of the claim and the Hon’ble High Court directed the insurance company to settle the claim in accordance with the law. There is no specific order upon the G.T.F.S., o.p. no. 4, in the said writ petition. However, as the insurance company raised the question of status of the complainant they issued necessary certificate confirming that the complainant was their field worker. So the entire responsibility for settling the claim is upon the insurance company and there is no liability or deficiency in service on the part of the G.T.F.S. in respect of the claim in question.
The O.P. no. 4 has clearly stated in the written version that two policies under the Group JPA Insurance Policy vide No. 4751220001799 endorsement no. 4730915 and policy no. 4751220001799 endorsement no. 4730933 were issued by the O.P. no. 1. This is most important to mention herein that since the JPA insurance is in the nature of benefit policy ( not an indemnity policy ) there is no specific bar or provision to have more than policy at a time. JPA policy is itself a benefit policy so an insured can easily have more than one policy at a time. Further it is stated that after considering the proposal form, once the certificate of insurance is issued by the insurance company as an acceptance towards the proposal and consideration flows in the form of premium from the insured person then it becomes an obligatory upon the insurance company to honour and pay the valid claim of the insured person in accordance with the terms and conditions of the policy. They have clearly stated that it is the matter of fact that this Forum has already passed an order in the HDF case no. 101 of 2008 where it was pleased to pass an award a compensation of Rs. 1,50,000/- in terms of JPA policy no. 4751220001799 endorsement no. 4730933 dated 23-08-2000 on account of complainant’s permanent disablement to the extent of 70%. Therefore, O.P. no. 4 submits that the GTFS would serve no purpose in the interest of justice and prays for expunging their name from the complaint.
The insurance company, o.ps. no. 1, 2 & 3 submitted a long written version stating different facts in respect of JPA policies. But the relevant portion of the written version with reference to the claim under consideration stated from para 1 to 6 of their written version.
In the said paras of the written version the insurance company contended that the complaint petition is misleading, motivated, harassing, misconceived and illegal one and it has been filed with ulterior motive to extract some money from the public exchequer – insurance company in a most arbitrary and illegal manner. The complainant has no locus standi to approach the Ld. Forum twice on the self same issue which had already been decided by way of passing an elaborate order by the Ld. Forum in a previous proceeding. So the instant case is barred under the principle of res- judicata and is not at all maintainable before this Forum for further adjudication. The complainant instituted a case being no. HDF 101 of 2008 before this Forum praying for his claim under the JPA policy due to his alleged injury / disablement of left hand. The aforesaid case was decreed in favour of the complainant and the insurance company in terms of the order of this Forum dated 06-04-2009 paid the total sum of Rs. 1,66,000/- to the complainant vide an A/C payee cheque bearing no. 188563 dated 19-03-2010. The discharged voucher was duly signed by the complainant. But in the present case complainant had not uttered a single word regarding the institution of the previous suit ( HDF 101 of 2008 ) on the same ground lodged before this Forum. After hearing both sides the Forum has passed an elaborate order considering every pros and cons of the matter and subsequently such order was complied by the insurance company. In their written version the insurance company it is stated that loss of limbs had already been covered by the insurance company, as aforesaid, who cannot grant any further coverage and / or compensation claimed for the same reason and / or cause of action under the laws of the land. It is also contention of the insurance company that this is an absurd proposition that O.P. insurance company will grant double coverage for a particular loss or injury allegedly caused to the complainant. As per terms of the MOU as executed between the insurance company and GTFS on 30-12-1998 the GTFS was entrusted to extent the coverage to the specified categories and hence it is clear that the two JPA policy certificates to the particular person were provide by GTFS and the insurance company should be saddled if any further liability regarding the double payment arising out of a particular loss / event to a particular person throwing away all the basic legal principles in this regard.
In their written version of O.Ps no. 1 to 3 it is also stated that in accordance with the regulation which came into effect from 15-01-1999 and as maintained by the insurance company regarding the grant of coverage under JPA policy “1 person should not be given not more than one policy” ( Annexures E & F filed by the O.Ps no. 1 to3 ).
In the said paras of the written version the insurance company contended that the complainant approached the Hon’ble High Court in Writ Petition No.15409 (w) /05 and Hon’ble Justice Jayanta Kumar Biswas vide its order dated 16-08-2005 directed insurance company to settle the claim of the complainant in accordance with the law. The insurance company vide its letter dated 06-01-2006, 19-02-2007 asked repeatedly to the complainant for production of all necessary documents ( Annexures I & J ) but the complainant failed to divulge the same. Again the O.P.no.1 requested the complainant to cooperate with them( Annexure K ). The insurance company was finally compelled to repudiate the claim of the complainant vide its letter dated 04-09-2007 for the sole reason of non furnishing the all necessary documents before it.
The insurance company had filed one interlocutory petition before the Hon’ble High Court no. being G.A. 1425 of 2009 in conjunction with W.P. No. 2343 of 2002 praying for modification of the interim order dated 01-10-2002 staying the operation of cancellation of all long term JPA policy. In the aforesaid petition the insurance comply has also prayed before the Hon’ble High Court for direction of creating a separate fund of the claims ought to deposit such amount before the Hon’ble High Court in order to save the unwarranted loss of public fund. So at this juncture the insurance company cannot illegally take any decision regarding the payment of the claim amount to the respective claimant and also without verifying the agency certificate ( identity card of the claimant ). Therefore the instant complaint petition should be dismissed in limini for the ends of justice.
Therefore, in view of the pleadings of the parties following points arose for determination :
1) Whether the application is maintainable before this Forum ?
2) Whether o.p. no. 1 , 2 & 3 committed any deficiency in service by repudiating the claim in question ?
3) Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986 ?
DECISION WITH REASONS :
POINT NO. 1
It is admitted that complainant had two JPA Policy being no. 4751220001799/E No. 4730933 for the period from 23-08-2000 to 22-08-2015 ( midnight ) for sum assured of Rs. 3,00,000/- and No. 4751220001799/ E No. 4730915 for the period from 08-08-2000 to 07-08-2015 ( midnight ) for the sum assured Rs. 2,00,000/-.
At the outset it may be noted that the complainant filed the instant application in respect of claim under JPA policy no. 4751220001799 / E No. 47-30915 dated 08-08-2000 as mentioned in para 1( a ) of the application.
It is also admitted fact that the complainant fell from the train at Pandua Railway Station on 29-01-2004 at about 7 p.m. and get injury over his left hand. He was seriously ill and was admitted to Hooghly Imambra Hospital on 29-01-2004 and thereafter transferred to Medical College and Hospital, Kolkata, on 07-02-2004 wherein after operation his left hand was amputed from wrist and declared partial disability calculated 70% .
Accordingly the complainant sent an application for claim of the said policy through O.P. no. 4 for issuance of claim form. Thereafter the complainant submitted the claim form to the respondent authority with all necessary injury report along with papers and documents and the same was received by the insurance company on 06-02-2005. But the respondent authority did not release the claim and sat tight over the matter.
Admittedly the complainant filed writ petition before the Hon’ble High Court, Calcutta, against the insurance company alleging non settlement of the insurance claim and the Hon’ble High Court by order dated 16-08-2005 directed the insurance company to settle the claim in accordance with the law.
Before discussing the matter whether the complainant is entitled to get the claim amount for the aforesaid policy we have to discuss whether this application is barred under the law of res- judicata. Though the complainant has not uttered a single word about the policy being no. 4751220001799 endorsement no. 4730933 but the complainant has annexed the judgment dated 06-04-2009 passed by this Forum wherein the complainant has got the decree of claim amount, compensation and cost. We have gone through the file of the HDF Case No. 101 of 2008. We have observed that the complainant had filed the aforesaid case to settle both the policies. The complainant had also filed all the documents for both the policies in the aforesaid case. Upon hearing of the both parties the Forum had passed the judgment dated 06-04-2009 of the aforesaid case wherein the decree for only one policy was declared. The present case is not maintainable before the Ld. Forum since the complainant in the previous proceeding being no. HDF 101 of 2008 raised the point that he was duly issued two policies certificates and paid premium for the said two certificates. Hence, the issuance of two policy certificates was raised by the complainant in the previous suit and as such suit was heard and finally adjudicated by the ld. Forum by way of a speaking order. As per Section 11 of CPC the doctrine of the res-judicata applies to a case when the points involved in the case had already been decided either of fact or of law, or of fact and law, in every subsequent proceeding between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permitted to re-open it in a subsequent litigation.
Suffice it to mention that the complainant had raised all the points before this Forum ( in HDF Case No. 101 of 2008 ) which passed an elaborate order after considering the merit of the case and decreed in favour of the complainant by way of directing the insurance company to make payment to the claimant for his accidental injury. After passing the order when the O.Ps. no. 1 to 3 did not comply with the order within the specified period of time the complainant filed an execution case for executing the aforesaid order and accordingly the O.Ps. no. 1 to 3 complied with the order. As the complainant did not go to the Hon’ble State Commission for revision of that order it appears that the complainant has satisfied with the order. The complainant has already received the decreetal amount for his one policy through the way of execution.
As per Explaination V of Section 11 of C.P.C. “Any relief claimed in a plaint, which is not expressly granted by the decree, shall, for the purpose of the section, be deemed to have been refused.” There are plethora of judgments passed by the Hon’ble Supreme Court in this regard.
The Forum has asked the complainant why he has not expressed in his present complaint about the aforesaid case being no. HDF case no. 101 of 2008 or did not go to the appeal Court for any revision of the judgment of the aforesaid case. The counsel for complainant could not give any satisfactory answer. Therefore, the present case is not maintainable before this Forum since it is barred under the Principle of Res – judicata / constructive res- judicata.
The O.P. no. 4, who supports the claim of the claimant also did not controvert the issue of res-judicata.
Moreover, one point should be noted there. The O.Ps. no. 1 to 3 repudiated the claim of the complainant on 04-09-2007. Here the instant case was filed by the complainant on 12-08-2010 which is much later after the expiry of two years. The complainant has not filed any petition for condonation of delay. So the instant case is also barred under the period of limitation ( U/S 24A of the C .P. Act, 1986 ).
Therefore, the case is not maintainable before this Forum.
POINT NOS. 2 & 3 :
As point no. 1 fails it is needless to discuss the points no. 2 & 3.
Therefore, considering the facts and circumstances of the case having regard to the materials on record and for the reasons recorded hereinbefore the Forum is of the view that for the aforesaid reasons the complainant is not entitled to get an appropriate order in terms of Section 14 of the C.P. Act, 1986.
In result the application fails.
Hence,
O R D E R E D
That the consumer complaint is dismissed on contest against all o.ps.
No order as to cost.
Let copies of the order be supplied to the parties, free of costs, as per rule.
