Consumer Complaint No. 172 of 2015
Date of filing: 13-8-2015 Date of disposal: 27-10-2016.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Sri Pankaj Kr. Sinha Hon’ble Member,
Gita Mallah @ Malla,
W/O Late Birendra Mallah @ Malla,
Vill.-Uttarpalshura, P.O.-Amritpara,
Dist.-Burdwan, Pin-722 207. Complainant.
VERSUS
- Branch Manager, Pan Card Clubs Ltd.,
City Centre, Durgapur-16, Dist.-Burdwan.
- Chairman, Pan Card Clubs Ltd.,111/113,
Kaliandas Udyog Bhavan, Near Centrury Bazar,
Prabhadevi, Mumbai-400 025.
- Divisional Manager,
The New India Assurance Company Ltd.,
D.O.-170100, B-201, Pinak Galaxy, Opposite
Big Bazar, Kapurbawdi Junction, Majiwade,
Thane (W), Pin-400 607. Opposite Parties.
Appeared for the complainant : Ld. Advocate Debdas Rudra.
Appeared for the O. P. Nos. 1 & 2 : Ld. Advocate Rabindra Nath Mondal.
Appeared for the O. P. No.3 : Ld. Advocate Shyamal Kr. Ganguli.
JUDGEMENT
This is a case U/s.12 of the C.P. Act,1986 for an award directing the O.P. No.3 to pay Rs. 5,00,000/- as accidental death benefit of the deceased Birendra Mallah @ Malla, to pay Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.25,000/- as litigation cost to the complainant.
The complainant’s case in short is that the complainant is the wife of deceased Birendra Mallah @ Malla. Said Birendra Mallah @ Malla purchased 240 Room Nights under New Regular Holiday from Pan Card Clubs Ltd., City Centre, Durgapur-16, District-Burdwan on 29.3.2010 on offer price of Rs.1,02,000/- for ten years with an administration charge of Rs.400/-. He deposited total sum of Rs.1,02,400/- in cash at the office of the O.P. No.1 at Durgapur vide receipt No.DDD-065032 and Folio No.Dur/B-79928 dated 29.3.2010. The O.P. No.2 issued certificate being No.947545, Folio No.DUR/B79928 with insurance coverage which are personal accident death insurance policy vide Policy No.250300/42//09/8200001837 of Rs.5,00,000/- and Mediclaim insurance vide Policy No.GMC 0000532000100 of Rs.1,05,000/-. of Birendra Mallah @ Malla, the husband of the complainant. The Premium of said policies was paid by the O.P. No.2 to the O.P. No.3. The O.P. No. 3 being the insurer issued those certificates. In said policy the name of the complainant was mentioned as nominee. During continuation of said Room Nights-New Regular Holiday and Insurance Policies the husband of the complainant named Birendra Mallah @ Malla died in a motor vehicle accident on 6.1.2015 on N.H.-2 near Panagarh Air Force More under Kanksa Police Station. In that connection a police case was started vide Kanksa P.S. Case No.10/15 dated 7.1.2015 U/s. 279/304A/427 IPC and necessary postmortem over the dead body was held by the M.O. of S.D. Hospital, Durgapur. The complainant lodged claim of Rs.5,00,000/- as accidental death benefit for the death of her husband before the O.P. No.1 on 27.3.2015 vide claim application No.DUR/1/3478 and deposited required documents along with an application explaining the reasion of late submission of claim. The O.P. No.1 forwarded the same to the O.P. No.3 but the O.P. No.3 repudiated the claim of the complainant on 9.4.2015 on the ground of ‘not reporting within time limit of 70 days’. Such repudiation is illegal, improper and arbitrary. For such act of the O.P. No.3 and deficiency in service on the part of the O.P. No. 3, the complainant has been suffering from mental pain and agony. The complainant was completely broken down due to such premature death of her husband and became mentally upset for a long time. The complainant had no knowledge about the existence of said Room Nights of New Regular Holiday certificate and benefit of accidental death coverage with O.P. No.3 and immediately after knowing the existence of the said certificate from the agent Swapan Kumar Sarkar, the complainant submitted the claim application along with necessary documents and an application explaining the delay. There was no laches on the part of the complainant to inform the death of her husband to the O.P. No.1. The complainant is an illiterate lady and she had no knowledge about the terms and conditions of said policy. The complainant is entitled to get Rs.5,00,000/- as accidental death benefit for the death of her husband in an accident, to get Rs.50,000/- as compensation towards mental pain, agony and harassment and to get Rs.25,000/- as litigation cost. Hence, this case with the prayer as mentioned above.
The O.P. No.1 & 2 contested this case by filing joint written version while almost admitting the case of the complainant and stating that there was no laches or deficiency in service on the part of the O.P. No.1 & 2, Birendra Mallah @ Malla purchased Room Nights in the Hotels of the Company under the scheme of New Regular Holiday and necessary parafarnia was observed, there was no dispute and in terms of business of Pan Card Club, the purchaser was provided insurance benefit at the cost of the Company as the purchaser Birendra Mallah @ Malla completed the transaction and executed necessary documents, he was provided such insurance benefit/Policy certificate by the O.P. No.3, New India Assurance Company Ltd. as per agreement made between the O.P. No.1 & 2 in one side and O.P. No.3 in another side, the O.P. company jointly carried the business with New India Assurance Company Ltd. which is IRDA approved Insurance Company and the business has been continued for long past, since the insurance policy was handed over to the customer, he can get insurance benefit as available in terms of policy, the insurance benefit commenced from the end of 90 days from the date of starting of the policy, the O.P. No.1 & 2 assisted the complainant in forwarding the claim petition to the insurance company and the Pan Card Club shall not be responsible for rejection of the claim or for any action taken by the O.P. No.3, the deceased Birendra Mallah @ Malla purchased Room Nights from the Pan Card Club thereby executed agreement on 29.3.2010 and he was provided with Insurance Policy of Rs.5,00,000/- as accidental death benefit and with Insurance Policy of Rs.1,05,000/- as mediclaim benefit issued by New India Assurance Company Ltd., the wife of Birendra Mallah @ Malla made claim on 27.3.2015 before the O.P. No.1 and the same was duly forwarded by these O.Ps. to the O.P. No.3 as per practice. It has been further claimed by these O.Ps. that the case against the O.P. No.1 & 2 is liable to be dismissed as there was no deficiency in service on their part.
The O.P. No.3 contested this case by filing separate written version while stating inter-alia that the case is not maintainable, this forum has no jurisdiction to try this case, the complainant is not a consumer as per provision of C.P. Act, the O.P. No.1 Pan Card Clubs Ltd. certified that in acceptance of the application for purchase of
Room Night, the company was pleased to admit Birendra Mallah @ Malla as a Member of Pan Card Clubs-Luxury Holiday as per details mentioned in schedule, the company assured fulfillment of all benefits under Luxury Holiday as per the terms and conditions mentioned on the reverse of the application form, the onus of sanctioning/rejecting A.D.I.C. (Accident Death Insurance Claim) totally depends on the O.P. No.3, the Pan Card Company i.e. O.P. No.1 have no right to sanction/reject the claim, as per terms and conditions of Personal Accident Death Claim Policy (Group Accident Policy), death claim file should be submitted within 60 days from the date of accident at any Pan Card office, the O.P. No.3 repudiated the claim of Birendra Mallah @ Malla for delay in intimation, the claim has been reported beyond extended time limit of 70 days as agreed in Tripartite Agreement, as per Tripartite Agreement for G.P.A. Policy for the year 2012-13, the existing dad line of 60 days for registration of claim file is extended upto 70 days for all the genuine case based on merit, in this particular case the motor vehicular accidental death of victim occurred on 6.1.2015 and the date of intimation was on 27.3.2015 and as such there was in ordinate delay in intimation vide claim No.DUR/1/3478 of Birendra Mallah @ Malla and as the claim was reported beyond the extended time limit of 70 days, the same was repudiated by the O.P. No.3, New India Assurance Company Ltd. It has been claimed by this O.P. that the case is liable to be dismissed with cost.
DECISION WITH REASONS
To prove her case the complainant has relied upon her evidences on affidavit submitted on 31.3.2016 and 3.8.2016 and also upon the photocopies of money receipt being No.DDO-065032, certificate No.947545, FIR connected with Kanksa P.S. Case No.10/2015 dated 7.1.2015, Postmortem Report of Birendra Mallah @ Malla, repudiation letter issued by the O.P. Insurance Company, death claim application No.DUR/1/3478 and cremation certificate issued by the S.D. Hospital, Durgapur. The complainant has also relied upon the observations of the Hon’ble Apex Court made in M/s. B.P.Khemka Pvt. Ltd. Vs. Birendra Kr. Bhowmik and another case reported in AIR 1997 Supreme Court 1010 and made in Ganesh Prasad Sah Keshri and another Vs. Lakshmi Narayan Gupta case reported in AIR 1985 Supreme Court 964 and also upon the observation of the Hon’ble Himachal Pradesh State Commission made in Principal, Government Polytechnic of Women, Kondaghat, District-Solan (HP) reported in 2013(1) CPR 1991 (HP). On the other hand the contesting O.P. No.3 has relied upon the evidence on affidavit sworn by Sri Suvodip Mallick, filed on 13.5.2016 and upon the documents which are blank agreement/application form, photocopy of New Regular Holiday Agreement, photocopy of certificate issued by O.P. No.1 & 2, photocopy of Insurance Policy, photocopy of death claim application submitted by the complainant, photocopy of forwarding letter and photocopy of repudiation letter in support of his case.
We have carefully perused the evidence adduced by the parties. It is not disputed that Birendra Mallah @ Malla the husband of the complainant purchased 240 Room Nights under New Regular Holiday from Pan Card Clubs Ltd., City Centre, Durgapur-16, District-Burdwan on 29.3.2010 by depositing the offer price of Rs.1,02,000/- for ten years with an administration charge of Rs.400/-, total Rs.1,02,400/- in cash in the office of the O.P. No.1 at Durgapur vide receipt No.DDD-065032 and Folio No.Dur/B-79928 dated 29.3.2010, the O.P. No.2 issued certificate being No.947545, Folio No.DUR/B79928 with coverage of personal accidental death insurance policy vide Policy No.250300/42//09/8200001837 for Rs.5,00,000/- and Mediclaim insurance vide Policy No.GMC 0000532000100 for Rs.1,05,000/-, Premium towards the same was paid by the O.P. No.2 to the O.P. No.3 who being the insurer issued those certificates and in said policies the name of the complainant was noted as nominee. It is also not disputed that during continuation of said Room Nights-New Regular Holiday and Insurance Policy the husband of the complainant named Birendra Mallah @ Malla died in a motor vehicle accident on 6.1.2015 on N.H.-2 near Panagarh Air Force More under Kanksa Police Station, in that connection Kanksa P.S. Case No.10/15 dated 7.1.2015 U/s. 279/304A/427 IPC was started and necessary postmortem over the dead body was held by the M.O. of S.D. Hospital, Durgapur. The case that the complainant lodged claim of Rs.5,00,000/- as accidental death benefit for the death of her husband before the O.P. No.1 on 27.3.2015 vide claim application No.DUR/1/3478 and deposited required documents along with an application explaining the reason of late submission of claim, through O.P. No.1 who forwarded the same to the O.P. No.3 but the O.P. No.3 repudiated the claim of the complainant on 9.4.2015 on the ground that the reporting was not made within the time limit of 70 days, is admitted by the O.P. No. 3.
In the complaint petition the complainant has brought no allegation against the O.P. No.1 & 2. By adducing evidence the complainant has not stated that there was deficiency in service on the part of the O.P. No.1 & 2 in the matter of the dispute involved in this case. By filing this complaint the complainant has prayed no relief
against the O.P. No.1 & 2. In the above premises we hold that the case shall be dismissed on contest against the O.P. No.1 & 2.
In view of our discussions made in foregoing lines, the only question that whether the complainant is entitled to get the award as prayed for against the O.P. No. 3 where the claim was not registered within the time limit of 70 days as settled in triparted agreement, is left for consideration. It is admitted that the husband of the complainant/insured died on 6.1.2015 in a motor accident and the claim petition was lodged on 27.3.2015 i.e. more or less 10 days after expiry of the agreed period of 70 days. In this connection the O.P. No.3 has relied upon the photocopy of the letter dated 11.4.2012 issued by the O.P. No.1 & 2. Clause No.5 of the said letter shows that the existing dead line of 60 days for registration of claim file should be extended up to 70 days for all the genuine case based on merit. Now the question whether this the period of 70 days as fixed in Tripartite Agreement, is a mandatory or directory, is required to be decided.
Hon’ble Apex Court in M/s. B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmik and another case in discussing the provisions of Section-17(3) of W.B. Premises Tenancy Act, has been pleased to observe that expression “shall” provision for striking out defence is directory not mandatory. The Hon’ble Apex Court in Ganesh Prasad Sah Keshri and another Vs. Lakshmi Narayan Gupta case in discussing the provisions of Section-11(a) Bihar Building (Lease, Rant, Eviction) Control Act, has been pleased to observe that the word “shall” is directory and not mandatory and must be read as “may”. The Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Simla in Principal, Government of Polytechnic for women, Kendaghat, District-Solan Vs. Reliance General Insurance Ltd. case, has been pleased to observe “Delay in informing insurer about date of death may be a good ground for repudiation of claim in a case where there is serious dispute creating reasonable doubt about death or cause of death of insured person, but not in a case like present one, where there is no dispute that insured employee had died and her death was accidental”. In said case the Hon’ble State Commission, Himachal Pradesh has also been pleased to observe that “The death claim cannot be repudiated only on the ground of delay in intimation”.
In the present case, the claim of death of Birendra Mallah @ Malla, the insured on 6.1.2015 in a motor vehicle accident on N.H.-2, near Panagarh Air Force More under Kanksa P.S. and also the case that the intimation of such death was given on
27.3.2015 vide claim application No.DUR/1/3478 before the O.P. No.1, have not been challenged by the O.P. No.3. So, there is no dispute regarding death of the insured Birendra Mallah @ Malla in a motor accident. So, in this case the death claim cannot be repudiated only on the ground of delay in intimation. Moreover the complainant has explained the cause of delay in writing with the claim application. The photocopy of the letter dated 9.4.2015 issued by the O.P. No.3 to the complainant shows that the O.P. No.3 repudiated the claim of the complainant on the ground that the claim was not reported within the time limit of 70 days as agreed with. In view of our above discussions and the observations of the Superior Authorities as mentioned above, we are of the opinion that the repudiation letter dated 9.4.2015 is illegal and the O.P. No.3 being insurer has no authority to repudiate the claim of the complainant who is the wife of the deceased Birendra Mallah @ Malla and nominee of the insurance policy in question. The acts of the O.P. No. 3 in this connection clearly supports the deficiency in service on the part of the O.P. No.3.
In view of the above discussions, we hold that the complainant is entitled to get Rs.5,00,000/- along with interest @ 8% p.a. from the date of repudiation i.e. from 9.4.2015 as accidental death benefit for the death of insured Birendra Mallah @ Malla, from O.P. No. 3..
From the materials on record it is clear that for the illegal acts and deficiency in service on the part of the O.P. Nop.3, the complainant has been harassed and she has been forced to come before this Forum. So the complainant is entitled to get an amount as compensation and also further an amount as litigation cost from O.P. No. 3. Considering the facts and circumstances of this case, we hold that Rs.10,000/- as compensation for mental pain, agony and harassment of the complainant and Rs.3,000/- as litigation cost, will meet the ends of justice.
Accordingly, the case succeeds against the O.P. No.3 but the case fails against the O.P. No.1 & 2.
Fees paid is correct. Hence, it is
Ordered
that the complaint case being No.172/2015 is allowed on contest against the O.P. No.3 but the same is dismissed on contest against the O.P. No.1 & 2.
that the complainant do get an award directing the O.P. No.3 only to pay Rs.5,00,000/- along with interest @8% p.a. on such amount which will be calculated from the date of repudiation i.e. from 9.4.2015, to pay Rs.10,000/- as compensation for mental pain, agony and harassment and to pay Rs.3000/- as litigation cost to the complainant within 45 days from this day, failing which the entire awarded amount shall carry further interest @ 12% p.a. till the date of realization and the complainant will be at liberty to put this award in execution in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President (Sri Pankaj Kr. Sinha)
D.C.D.R.F., Burdwan Member
D.C.D.R.F., Burdwan
