KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.707/05 JUDGMENT DATED 12..4..2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER The New India Assurance Company Ltd. Thiruvananthapuram Now reptd. by its Manager, -- APPELLANT Regional Office, M.G.Road, Kochi-11. (By Adv.Jacob Mathew.P) Vs. 1. P.V.Kamalakshmi Amma. D/0 P.Narayan Nair, Muthuvana Veedu, Ayinikkad.P.O, (via) Iringal, Kollandy Taluk, Kozhikode District. 2. P.V.Madhavan Nambiar S/0 P.Narayan Nair, Kizhakkemannath House, Ayinikkad.P.O, (via) Iringal, Kollandy Taluk, Kozhikode District. 3. P.V.radhamma, D/o P.Narayanan Nair -- RESPONDENTS -do- -do- 4. P.V.Indira, D/o P.Narayanan Nair -do- -do- 5. P.V.Shoba, D/o P.Narayanan Nair -do- -do- 6. Asianet Satellite Communications Pvt.Ltd, Corporate Office, 3rd Floor, Centre Plaza, Vazhuthacaud, Thiruvananthapuram – 695014. (R1 to R5 By Adv.Shyam Padman & R6 by Adv.George Cheriyan Karippaparambil) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMER Appellant was the second opposite party and respondents 1 to 5 were the complainants and the 6th respondent was the first opposite party in OP.335/03 on the file of CDRF, Kozhikode. The said complaint was filed alleging deficiency in service on the part of the second opposite party New India Assurance Company Ltd. in not disbursing the insurance amount due under the privilege insurance policy issued by the second opposite party in favour of the subscribers of the first opposite party Asianet Satellite Communications Private Ltd. The opposite parties 1 and 2 entered appearance and filed separate versions contending that there was no deficiency in service on the part of the opposite parties and that the complainants being the close relations and legal heirs of the insured are not entitled to benefit under the said policy. They also contended that the forum below is not having the territorial jurisdiction to entertain the complaint in OP.335/03. Thus, the opposite parties prayed for dismissal of the complaint. 2. Before the Forum below, on the side of the complainant, the second complainant was examined as PW1 and Exts.A1 to A17 were marked on their side. No oral evidence was adduced from the side of the opposite parties. Ext.B1 copy of the master policy agreement entered into between the opposite parties 1 and 2 was marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 26.5.05 directing the second opposite party/New India Assurance Company Ltd. to disburse the insurance amount of Rs.2 lakhs to the complainants with 12% interest per annum from the date of the complaint till realization with a further direction to pay compensation of Rs.5,000/-. Aggrieved by the said order, the present appeal is filed by the second opposite party therein. 3. We heard the learned counsel for the appellant/second opposite party and the respondents 1 to 5 (complainants). There was no representation for the 6th respondent/first opposite party. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B1 master policy agreement entered into between the opposite parties 1 and 2 and also A1 Privilege Insurance Enrolment Forum and argued for the position that the Forum below had no territorial jurisdiction to entertain the complaint in OP.335/03 and that the complainants being the close relatives and legal heirs of the insured are not entitled to get the benefits under the Privilege Insurance Policy issued by the appellant/second opposite party. On the other hand, the learned counsel for the respondents 1 to 5/complainants supported the impugned order passed by the Forum below. He vehemently argued for the position that in the absence of the class 1 heirs of the insured, the complainants being the class 2 heirs of the insured are entitled to get the benefits under the policy. He further submitted that there is no provision in the policy to debar the complainants from receiving the benefits under the policy. Thus, the respondents 1 to 5 requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1. Whether the Forum below had the jurisdiction to entertain the complaint in OP.335/03? 2. Whether the complainants in OP.335/03 are entitled to get the benefit under the privilege insurance policy issued by the second opposite party/New India Assurance Company Ltd. in favour of the subscribers of the first opposite party/Asianet Satellite Communication Private Ltd? 3. Is there any legally sustainable ground to interfere with the impugned order dated 26.5.05 passed by CDRF, Kozhikode in OP.335/03? 5. POINT NO.1:- There is no dispute that the complainants are the class 2 legal heirs of the insured covered under the Privilege Insurance Policy issued by the 2nd opposite party/New India Assurance Company Ltd. The insured were residing within the territorial jurisdiction of the CDRF, Kozhikode. The first insured P.V.Balakrishnan was the subscriber of the first opposite party/Asianet Satellite Communication Private Ltd. The cable T.V connection was given by the first opposite party in the name of the insured P.V.Balakrishnan and on availing such service; the first opposite party offered the benefit of insurance coverage under the Privilege Insurance Policy. It is based on the said offer the second opposite party issued the policy in favour of the subscriber P.V.Balakrishnan and 3 of his family members namely his wife and 2 children. Thereby, the persons named in A1 Privilege Insurance Enrolment Forum were treated as the insured under the policy and thereby the second opposite party/New India Assurance Company Ltd; issued the aforesaid policy. The aforesaid policy was issued on the basis of the master policy agreement entered into between the first opposite party/Asianet Satellite Communications Private Ltd and the second opposite party/New India Assurance Company Ltd. Ext. B1 is the said agreement entered into between the opposite parties 1 and 2 and it is dated 1st February 2001. The clause 11 of B1 agreement stipulates that “any disputes arising out of this accidental insurance coverage shall be subject to the exclusive jurisdiction of court in Trivandurm city only.” It is based on the aforesaid clause contained in B1 agreement, the opposite parties contended that the CDRF, Kozhikode had no territorial jurisdiction to entertain the complaint in OP.335/03. It is to be noted that the complainants or the insured were not parties to B1 Master policy agreement entered into between the opposite parties 1 and 2. So, the aforesaid condition regarding the jurisdiction of the courts in Trivandurm city to deal with the disputes arising out of this insurance coverage will bind only the parties to B1 agreement. The complainants being the legal heirs of the insured are not bound by the said condition No.11 incorporated in B1 agreement. It is also to be noted that A1 privilege Insurance Enrolment Forum was submitted by the subscriber P.V.Balakrishnan showing the names of the insured persons. It is dated 20.1.96. It is on the basis of A1 Privilege Insurance Enrolment Forum, the policy was issued. But, B1 master policy agreement was executed subsequent to A1 Privilege Insurance Enrolment Forum. So, at the time of submission of A1 document, the B1 agreement was not in existence. Thus, the insured are not governed by the conditions incorporated in B1 agreement. No doubt that the disputes between the opposite parties 1 and 2 can be subjected to the jurisdiction of the courts in Trivandum city. So, the contention of the opposite parties that the Forum below had no territorial jurisdiction to entertain the complaint in OP.335/03 cannot be upheld. 6. Another important aspect to be noted at this juncture is the settled position that the agencies including the consumer Forums constituted under the provisions of the Consumer Protection Act cannot be considered as courts and so the aforesaid restrictions contained in clause 11 of the B1 agreement will not bind the Consumer Forums constituted under the Consumer Protection Act, 1986. In that respect also, the CDRF, Kozhikode had the jurisdiction to entertain the complaint under the provisions of the Consumer Protection Act, 1986. So, we have no hesitation to hold that the Forum below had the jurisdiction to entertain the dispute involved in the complaint in OP.335/03. This point is answered accordingly. 7. POINTS 2 & 3:- Admittedly, the complainants 1 to 5 are the legal heirs and class 2 heirs of the insured under the Privilege Insurance Policy issued by the second opposite party New India Assurance Company Ltd. Ext.A1 document namely, Privilege Insurance Enrolment Forum submitted by the subscriber P.V.Balakrishnan would make it clear that the subscriber P.V.Balakrishnan and his wife Indira Balakrishnan and 2 children Bijul Nambiar and Bindya Balakrishnan were the insured under the said insurance policy issued by the second opposite party (appellant). There is no dispute that all the 4 insured persons died in road traffic accident. There is also no dispute that the total amount due to the 4 insured persons would come to Rs.2 lakhs. The complaint in OP.335/03 was filed by the complainants 2 to 5 being the class 2 heirs of the insured persons. So, the complainants 2 to 5 being the legal heirs of the insured are entitled to the benefit under the said policy. 8. The case of the opposite parties that only the insured or co-insured are entitled for the benefit under the policy cannot be accepted. It is to be noted that the mother of the subscriber P.V.Balakrishnan is not alive. There is no case that anyone of the class 1 heirs of the insured are alive. So, in the absence of class 1 heirs, the benefit under the policy must got to the class 2 heirs of the insured. There is no provision in B1 master policy agreement or in the A1 privilege Insurance Enrolment Forum debarring the benefits under the policy to the legal heirs of the insured persons. The recitals under clause 6 of B1 Master Policy Agreement would make it clear that the amount due under the insurance policy has to go in favour of the beneficiary of the insured under the scheme. It is also stipulated that the payment of the amount to the nominee/legal heir of the subscriber or his family members shall be sufficient discharge of the amount due under the policy. The Forum below has rightly directed the second opposite party/New India Assurance Company Ltd. to pay the insurance amount of Rs.2 lakhs to the complainants being the class 2 legal heirs of the insured persons in the absence of class 1 heirs of the insured. 9. The forum below has also directed the appellant/second opposite party to pay interest at the rate of 12% per annum on the insured amount of Rs.2 lakhs from the date of the complaint in OP.335/03 till realization. The learned counsel for the appellant/second opposite party much relied on clause 9 (c ) of B1 agreement and argued for the position that the amount due under the policy shall not carry any interest. It is to be noted that the insured died in August 2000 and the claim preferred to the first opposite party in October 2001 and that the second opposite party/Insurance Company was not prepared to disburse the insurance amount. They raised a very fantastic ground for repudiating the claim stating that beneficiary or the legal heirs of the insured are not entitled to get the benefit under the policy. It was the case of the appellant/second opposite party that the benefit under the policy will only go to the dependent and family members of the insured persons. But at any stretch of imagination, the benefit under the insurance policy cannot be denied to the beneficiaries under the policy. There can be no doubt about the fact that the complainants being the legal heirs of the insured persons are beneficiaries and they can very well put forward the claim under the said policy. So, the repudiation of the insurance claim by the appellant/second opposite party Insurance Company cannot be justified. The mere fact that in B1 agreement there is a stipulation that no interest will carry on the sum due under the policy cannot be taken as a ground to absolve the insurance company from the liability to pay interest on the insurance amount. The Insurance Company must be made liable to pay interest on the said amount for the delayed payment. More over, the complainants or the insured persons were not parties to B1 agreement. So, the aforesaid stipulation under clause 9 (c ) will not bind the complainants or the insured persons. The Forum below is justified in awarding interest at the rate of 12% per annum. The rate of interest ordered by the forum below can be taken as just and reasonable. 10. The Forum below has also awarded compensation of Rs.5000/- to the complainants. It is to be noted that the Forum below has not awarded any costs of the proceedings to the complainants. More over, the approach made by the second opposite party/Insurance Company would make them liable to pay compensation. There was no justification in denying the benefit to the complainants. The complainants were compelled to move the Forum below by filing the complaint in OP.335/03. Even, during the pendency of the complaint, the second opposite party/Insurance Company was not prepared to apply their mind on the issues involved in the complaint. They took a very adamant and arrogant stand and defended the litigation. But, the Forum below has taken a very lenient view in awarding compensation of Rs.5000/-. It is also to be borne in mind that no cost has been ordered by the Forum below. So, the compensation of Rs.5000/- awarded by the forum below can be treated as just and reasonable. We do not find any sustainable reason or ground to interfere with the impugned order passed by the Forum below. The present appeal deserves dismissal. Hence we do so. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order dated 26.5.05 passed by CDRF, Kozhikode in OP.335/03 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
