Orissa

Baleshwar

CC/74/2022

Smt. Bhaktilata Patra, aged about 51 years - Complainant(s)

Versus

Regional Manager, National Insurance Com. Ltd., Bhubaneswar - Opp.Party(s)

Sri Lambodar Nayak & Others

09 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BALASORE
AT- KATCHERY HATA, NEAR COLLECTORATE, P.O, DIST- BALASORE-756001
 
Complaint Case No. CC/74/2022
( Date of Filing : 23 Dec 2022 )
 
1. Smt. Bhaktilata Patra, aged about 51 years
W/o. Late Sushanta Kumar Patra, At- Jugadiha, P.O- Dagara, P.S- Baliapal, Dist- Balasore.
Odisha
...........Complainant(s)
Versus
1. Regional Manager, National Insurance Com. Ltd., Bhubaneswar
Regional Office, At- IDCO Tower, 6th Floor, Janapath, Bhubaneswar- 751022.
Khordha
Odisha
2. The Branch Manager, National Insurance Com. Ltd., Balasore
At- Zilla School Road, P.S- Town, P.O/ Dist- Balasore.
Odisha
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. NILAKANTHA PANDA PRESIDENT
 HON'BLE MR. JIBAN KRUSHNA BEHERA MEMBER
 
PRESENT:Sri Lambodar Nayak & Others, Advocate for the Complainant 1
 Sri Amarendra Kumar Panda, Advocate for the Opp. Party 1
 Sri Amarendra Kumar Panda, Advocate for the Opp. Party 1
Dated : 09 Jan 2024
Final Order / Judgement

SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) alleging a “deficiency-in-service” by the Ops, where Op No.1 is the Regional Manager, National Insurance Co. Ltd., Bhubaneswar and Op No.2 is the Branch Manager, National Insurance Co. Ltd., Balasore.

2.         The factual matrix of this case is that the complainant is the wife of deceased Sushanta Kumar Patra, who was the owner of one Splender plus motor cycle bearing Registration No.OD-01E-2855 which was insured under the Ops vide Insurance Policy No.163005311810000113 valid from 11.4.2018 to 10.4.2019 and the complainant was the nominee of that policy.

            It is the further case of the complainant that on dt.14.4.2018 at about 7.00 PM, while the deceased husband of the complainant was going to his village Jugadiha from Balasore by riding his motor cycle, in between Simulia – Kalipada, he met with lightening and died at the spot. Local people shifted him to Baliapal CHC where autopsy was conducted. For the death of deceased, Baliapal PS UD Case No.8 of 2018 was registered on the same day and on completion of inquiry submitted final report.

            It is further stated that the premium of Rs.1383/- for the insurance policy was paid by the deceased which covers for compensation against personal accident. At the time of incident, the deceased was having a valid and effective driving license and was valid till dt.9.4.2022. Due to her disturbed mind and to collect butter and bread for her and for her child, she was completely ignored about the claim of insurance. Thus, on dt.6.12.2019, the complainant moved the OP No.2 and asked about the procedure of compensation, who advised her to file one application claiming personal accident compensation for Rs.1,00,000/-. On the same day, the complainant applied for compensation by filing application before OP No.2 and was advised to contact after 15 days.

            It is also stated that till April, 2022 no intimation was received from the OP No.2. Thus, the complainant again on dt.20.5.2022 submitted one application before OP No.2, who stated that her earlier application dt. 6.12.2019 has already been sent to OP No.1 and she will be intimated after receiving reply from OP No.1. Till dt.15.8.2022, neither the complainant received any information from the Ops nor was her compensation granted. As such, the complainant not only harassed but also suffered mental agony and by moving from office to office, she has spent Rs.50,000/-.

            It is further averred that on dt.12.9.2022, the complainant received a letter from OP No.2 wherein it has been mentioned that his office will have no liability for the claim and finding no alternative closed the case. Thereafter, the complainant time and again visited the office of OP No.2 to settle her problem, but lastly on dt.9.11.2022, OP No.2 denied her claim and suggested to consult with OP No.1. Thus, the complainant went to the office of OP No.1 and after discussion, denied her to settle the claim. In this way, the Ops have played unfair trade practice and deficiency in service towards the complainant.

            The cause of action arose for filing the case on dt.12.9.2022, when the OP No.2 sent letter to the complainant to close the claim and on dt.6.12.2022, when the OP No.1 finally denied to settle the claim favour of the complainant. Hence, this case.

            To substantiate her case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

  1. Photocopy of Aadhar card.
  2. Photocopy of Aadhar card of deceased Sushanta Kumar Patra.
  3. Photocopy of certificate of registration.
  4. Photocopy of driving license of deceased.
  5. Photocopy of death certificate of deceased.
  6. Photocopy of first information report.
  7. Photocopy of information by the MO, CHC, Baliapal to the police station.
  8. Photocopy of final report in Baliapal PS UD Case No.8/18.
  9. Photocopy of dead body challan.
  10. Photocopy of PM report.
  11. Photocopy of inquest report.
  12. Photocopy of claim application dated 20.5.2022.
  13. Photocopy of letter to the complainant by OP No.2.
  14. Photocopy of letter dated 6.12.2019 to OP No.2 by the complainant.
  15. Photocopy of insurance policy in respect of the motor cycle.

3.         In the present case, both the Ops made their appearance and filed joint written version. In their written version, the Ops not only challenged the averments made in the complaint petition but also the cause of action and maintainability of the case. They have stated, inter alia, that the deceased husband of the complainant had purchased two wheeler package policy for his vehicle in question for the period from dt.11.4.2018 to dt.10.4.2019. On the application claiming insurance coverage on the motor cycle of deceased, the complainant was asked to submit all relevant documents, who submitted the relevant documents on dt.12.6.2022. On receipt of the documents, OP No.2 scrutinized the claim file of the complainant and ascertained that the insured Sushanta Kumar Patra succumbed to injury caused due to lightening on dt.14.4.2018, but the complainant intimated the above fact of accident to OP No.2 in a belated stage. That apart, the complainant has foisted this case by planting the vehicle in question in the alleged lightening. Further, OP No.2 has repudiated the claim of the complainant as per terms and conditions of the policy which does not constitute any deficiency of service on the part of the Ops. Hence, it is prayed to dismiss the case with cost.

            To substantiate their case, the Ops have relied on the following documents, which are placed in the record, as mentioned hereunder-

  1. Photocopy of policy package in respect of policy of alleged motor cycle.
  2. Photocopy of letter of the complainant to OP No.2.
  3. Photocopy of claim form submitted by the complainant.
  4. Photocopy of FIR in respect of UD Case No.202 of 2018.
  5. Photocopy of Final report of the said case.
  6. Photocopy of inquest report.
  7. Photocopy of dead body challan.
  8. Photocopy of post-mortem report.
  9. Photocopy of letter of MO, CHC, Baliapal to IIC, Baliapal PS.
  10. Photocopy of letter of OP No.2 to the complainant dated 12.9.22.
  11. Photocopy of letter of OP No.2 to one Adv. Ashok Kumar Panda.     

4.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the Complainant is a Consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

5.         First of all it is to be determined as to whether the complainant is a consumer or not. It is made clear that the deceased husband of the complainant is dead and he died due to lightening. From the averments made in the pleadings of both the parties so also documents produced, it is clear that the complainant is a consumer under the Ops. The deceased husband of the complainant insured his vehicle bearing Registration No.OD-01E-2855 under the Ops vide Insurance Policy No.163005311810000113 which was valid from dt.11.4.2018 to dt.10.4.2019 and the complainant was the nominee of that policy. Therefore, the complainant is covered under the definition of a consumer as defined under the provisions of the Consumer Protection Act, 2019.  

6.         Before delving into the merits of the case, it is required to be decided how far the complainant is able to prove his case with regard to the cause of action and maintainability of the complaint. Learned counsel for the complainant has submitted that on dt.14.4.2018 at about 7.00 PM, while the deceased husband of the complainant was going to his village Jugadiha from Balasore by riding his motor cycle, in between Simulia – Kalipada, he met with lightening and died at the spot. Local people shifted him to Baliapal CHC where autopsy was conducted. For the death of deceased, Baliapal PS UD Case No.8 of 2018 was registered on the same day and on completion of inquiry submitted final report. It is further submitted that premium of Rs.1383/- for the insurance policy was paid by the deceased which covers for compensation against personal accident. At the time of incident, the deceased was having a valid and effective driving license. For her disturbed mind and to collect butter and bread for her and for her child, the complainant was completely ignored about the claim of insurance. So, on dt.6.12.2019, the complainant moved the OP No.2 and asked about the procedure of compensation. At that time OP No.2 advised her to file one application claiming personal accident compensation for Rs.1,00,000/- and on the same day, the complainant applied for compensation by filing application before OP No.2 and was advised to contact after 15 days. It is further argued that till April, 2022 as no intimation was received from the OP No.2, the complainant again on dt.20.5.2022 submitted one application before OP No.2, who stated that her earlier application dt. 6.12.2019 has already been sent to OP No.1 and she will be intimated after receiving reply from OP No.1.  It is further argued that on dt.12.9.2022, the complainant received a letter from OP No.2 wherein it has been mentioned that his office will have no liability for the claim and finding no alternative closed the case. Thereafter, the complainant time and again visited the office of OP No.2 to settle her problem, but lastly on dt.9.11.2022, OP No.2 denied her claim and suggested to consult with OP No.1. Thus, the complainant went to the office of OP No.1 and after discussion, denied her to settle the claim. In this way, the Ops have played unfair trade practice and deficiency in service towards the complainant.

7.         On the other hand, learned counsel for the Ops vehemently urged that the complainant has no cause of action to file the case and the case is not maintainable. Further this Commission has no jurisdiction to entertain the present case and there is no deficiency of service or negligence on the part of the Ops. It is mentioned in the written version that “Deficiency” as defined U/s 2(17) of the Consumer Protection Act, 2019 means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of the contract. 

8.         From the above rival submissions of the parties, it is found that the deceased husband of the complainant had purchased one policy package from OP No.2 in respect of his motor cycle bearing Registration No. OD-01E-2855 which was insured under the Ops vide Insurance Policy No.163005311810000113 valid from dt.11.4.2018 to dt.10.4.2019 and the complainant was the nominee of that policy (vide Annexure-A). Insurance policy is nothing but a legal contract between the policy holder and the company and the benefits are payable as per the terms and conditions of said policy. It is stated by the complainant that her deceased husband died on dt.14.4.2018 at about 7.00 PM, while he was coming to his village Jugadiha from Balasore by riding his motor cycle and he met with lightening in between Simulia – Kalipada and died at the spot. When the claimed the compensation before the Ops, they did not listen to her, rather, without considering her claim application, they denied any compensation to her (vide Annexure-13). On the other hand, the Ops have not placed any document to show that this Commission has got no jurisdiction to sit over the matter. Whether the Ops are guilty of deficiency in service or not, it requires thorough examination which should be discussed later on, but at the same time, it cannot be said that the case is not maintainable and the complainant has got no cause of action to file the case. Therefore, the complainant has cause of action to file the case and the case is maintainable.

9.         Learned counsel for the Ops emphatically submitted that the alleged motor cycle does not have any relation with the death of the insured and the complainant has developed a story that on dt.14.4.2018 the deceased-insured while proceeding to his village from Balasore in the motor cycle in question met with lightening. In that regard, not a single document is placed on behalf of the complainant to show that on the very day the deceased-insured has ever met with lightening while he was driving the alleged motor cycle. So, the involvement of the motor cycle in question is an after-thought. Further, it is submitted that the complainant is purely a house wife and has no legal knowledge regarding the insurance and its claim, all these story are concocted and imaginary. The complainant has not intimated the fact of death of her deceased husband to the Ops immediately.

10.        On the other hand, learned counsel for the complainant submitted that the complainant is a rustic village woman, she is ignorant about the fact that a motor cycle positively requires an insurance policy and she does have any knowledge as to whether the vehicle in question had either any insurance or not and thus, it was obviously out of her knowledge how to claim insurance and when & why it is claimed. Further, the complainant has not lodged any FIR before the local Police Station and the papers prepared by the police itself. Regarding the preparation of documents like, inquest report, dead body challan, post-mortem report, the complainant had no knowledge and the local police has not examined her in the Baliapal PS UD Case No.8 of 2018 nor any of her family members. That apart, police has not examined any eye witness in this case, who have seen the accident in question and tried to rescue the deceased at the spot. When the complainant is a rustic village woman and a pardanashin lady, submission of claim application at a belated stage cannot be a good ground to throw her case away. It is further submitted that at the time of accident, the insured had a valid driving license and the insurance policy in respect of the motor cycle in question was in force.

11.        Taking into consideration the submissions of both parties, first of all it is seen that the Ops have agitated their claim that the alleged motor cycle was not involved in the case and the insured-driver did not ride the motor cycle while met with lightening. In this regard, it is wise to go through the documents submitted by the parties. It is seen that both the parties have filed similar documents, apart from some documents. However, from Annexure-8 (Annexure-E marked on behalf of the Ops), It is the Final Report of the Police Officer who conducted inquiry dt. 13.11.2019. Annexure-11 (Annexure-F) shows that police conducted inquest over the dead body of deceased on dt.15.4.2018 at about 8.30 AM and sent the dead body to CHC, Baliapal for post-mortem examination vide Annexure-9 (Annexure-G). it is seen that the documents are the photocopies of the certified copies obtained by both the parties from the office of the SDM, Balasore. Those documents are prepared from one and same document by xerox process and then certified to be true.

12.        First of all, while taking into consideration the Final Report vide Annexure-8 (Annexure-E), it came to light that the Police Officer who made this report has emphatically written that – “During course of enquiry, it is ascertain that on dt. 14.4.18 at about 7 PM while deceased Susanta Kumar Patra was going to his house from Balasore to Jugadiha on the way in between Simulia-Kalipada road by his motor cycle on the he died due to lightening and local people sent him to CHC . The very word by his motor cycle on the found to have been cut by someone. The Police Officer who wrote the contents of Annexure-8 & E has not at all put his initial while manipulating such correction. Further, Annexure-8 & E, both are the photocopies of certified copies obtained by the parties. From the above, it is clearly made out that the Inquiring Officer who inquired into this case has not committed such type of error and had he been committed such error he must have put his initial at the beginning of the error and at the end of the error. That means, above corrections or error has been made after submission of the Final Report to the competent authority and that too just before obtaining of certified copies by the parties. That apart, in the aforesaid Baliapal PS UD Case No.8 of 2018, the Inquiring Officer has not examined any independent or eye witnesses to unearth the real truth. Besides the above, the accident took place on dt.14.4.2018 at about 7.00 PM on Simulia-Kalipada road which runs from Balasore to Baliapal. Thus, it cannot be said that the aforesaid road is not a busy road. But, as it appears from Annexure-7 (Annexure-I) that the concerned Medical Officer has received the dead body of the deceased on dt.14.4.2018 at about 8.00 PM and reported the matter to the IIC, Baliapal PS on the same night and the IIC, Baliapal PS received the said information on dt.15.4.2018 at about 8.00 AM and on registration of the PS UD Case, directed SI P.Muduli of Jamukunda Out Post to take up enquiry. Thereafter, The Inquiring Officer held inquest over the dead body of deceased on dt.15.4.2018 at about 8.30 AM on the veranda in front of Male Ward of CHC, Baliapal. So, from the above, it is crystal clear that the Inquiring Officer has not visited the spot of accident and to that effect not a single document is prepared, which is a vital lacuna on the part of the Inquiring Officer. Further, the I.O. has not examined the persons who had taken the deceased to the CHC, Baliapal. Their statement by the Police is highly required so that true state of affair could have been came to light. None of the relatives of the deceased has also been examined by the IO in this case. Therefore, non-visiting of the spot by the IO, omission to prepare spot map, non-examination of the eye witnesses and material witnesses and further manipulation/error in the Final Report, casts a doubt in the mind of this Commission that the motor cycle in question has not been involved in the alleged accident. Thus, all the police papers submitted by the Ops do not through any cogent evidence to prove that the deceased was not riding the motor cycle in question at the time of accident. On the other hand, when the Ops have admitted that the deceased was coming from Balasore to his native and on the way he met with accident and died, they failed to satisfy this Commission as to whether the deceased was standing nearby the spot or went to his native by walking or otherwise. If at all, the submission of the learned counsel for the Ops that the alleged motor cycle was not involved in the accident is believed to be true, then what prevented the Ops to make an investigation by their agency and produced the investigation report before the Commission. The Ops have not made any investigation about the incident to collect true state of affair. Therefore, without any valid documents, the claim of the Ops that the motor cycle of the deceased in question was not involved in the alleged accident and the complainant has planted the alleged vehicle in the alleged lightening, is not accepted.    

13.        Learned counsel for the Ops argued that the complainant has not intimated the fact of death of her deceased husband to the Ops immediately after the alleged accident and with a view to hood wink the sum insured, the complainant submitted her claim application at a belated stage. While taking into consideration the alleged stand taken by the Ops, first of all it is to be discussed about the status of the complainant. As it appears from the case record, the complainant is a rustic village woman. It is a fact that the mind of the village women generally perturbed soon after the death of one’s husband until her death. Village women have also no knowledge about any kind of policy either medical or on any goods purchased by their husbands. Similarly, the complainant might have no knowledge about the insurance of the motor cycle in question purchased by her deceased husband and after she knew about it, either by her near & dear or by some other person, she claimed insurance. The Ops have claimed that the complainant should have intimated the alleged accident to the Ops soon after the incident and the documents filed by them shows that the claim should be made within 30 days. But at the same time, it cannot be ignored that Hon’ble Apex Court, Hon’ble National Commission as well as Hon’ble State Commission have been pleased to extend their emphasis “from the date of knowledge”. It is in the pleadings of the complainant that on being aware about the insurance policy with the Ops, she made the claim. On the other hand, the claim of the complainant cannot be said to be a false claim and not for the purpose of hood wink the sum assured in that policy. Therefore, the submission of the Ops that the complainant is not entitled to the sum insured amount as the claim has not been made within the stipulated period, cannot be accepted.

14.        To fulfil the criteria to enabling the sum assured, both, the complainant and Ops, have admitted that the deceased had purchased insurance policy bearing No.163005311810000113 in respect of his Hero Honda Splendor & Plus Drum Kick bearing Registration No.OD-01E-2855 which was valid from dt.11.4.2018 to dt.10.4.2019. The alleged accident of lightening was taken place on dt.14.4.2018. Therefore, it can safely be said that the insurance policy in respect of the motor cycle of the deceased was effective on the date of accident. Next coming to the point as to whether the deceased was possessed a valid driving licence or not. As it appears from the pleadings of the complainant that the deceased possessed a driving license on the date of accident vide Registration No.OR-01-20060027747 and it was valid and effective till 9.4.2022. On this score, the Ops have not raised any objection. Therefore, it can safely be held that the motor cycle in question had a valid and effective insurance policy so also the deceased had a valid driving license on the date of accident with lightening. Hence, the complainant is entitled to the sum insured amount, as claimed for.

15.        Next coming to the point as to whether deficiency in service is attributed as against the Ops or not. In this regard, learned counsel for the complainant submitted that on dt.6.12.2019, the complainant moved the OP No.2 and asked about the procedure of compensation, who advised her to file one application claiming personal accident compensation for Rs.1,00,000/-, thus, on the same day, the complainant applied for compensation by filing application before OP No.2 and was advised to contact after 15 days. Till April, 2022 as no intimation was received from the OP No.2, the complainant again on dt.20.5.2022 submitted one application before OP No.2, who stated that her earlier application dt. 6.12.2019 has already been sent to OP No.1 and she will be intimated after receiving reply from OP No.1. Till dt.15.8.2022, neither the complainant received any information from the Ops nor was her compensation granted. As such, the complainant not only harassed but also suffered mental agony. It is also submitted that on dt.12.9.2022, the complainant received a letter from OP No.2 wherein it has mentioned that their office will have no liability for the claim and finding no alternative closed the case. Thereafter, the complainant time and again visited the office of OP No.2 to settle her problem, but lastly on dt.9.11.2022, OP No.2 denied her claim and suggested to consult with OP No.1. Thus, the complainant went to the office of OP No.1 and after discussion, denied her to settle the claim. In this way, the Ops have played unfair trade practice and deficiency in service towards the complainant. On the other hand, the Ops have denied the claim of the complainant on the grounds that, (1) there is no evidence of death of owner-cum-driver Mr. Sushanta Kumar Patra during riding/mounting into/dismounting from or travelling as a driver/co-driver on insured motor cycle/vehicle bearing regd. No. OD-01E-2855, and (2) there is also inordinate delay in intimation of claim (which is near about 1 year and 8 months) after the said event (vide Annexure-J). From the foregoing discussions, when it has already been held that the death of owner-cum-driver Sushanta Kumar Patra occurred due to lightening while he was riding his own motor cycle and was travelling from Balasore to his native and the reason for non-intimation about the incident to the Ops immediately, it is held that the Ops are guilty of deficiency in service in providing the sum insured to the complainant. Therefore, both the Ops are jointly and severally liable to pay the insured amount along with compensation and other reliefs to the complainant. 

             Hence, it is ordered -

                                                                 O   R   D   E   R

             The complaint of the complainant be and the same is allowed on contest against the Ops. Both the Ops are directed to pay the sum insured of Rs.1,00,000/- in respect of the vehicle in question along with compensation of Rs.50,000/- for harassment and mental agony and Rs.10,000/- for litigation expenses to the complainant within two months hence, failing which the Ops are liable to pay interest @ 9% P.A in respect of the sum insured from the date of actual cause of action till its realization. In case of any deviation, the complainant is at liberty to realize the same through the process of law. 

             Pronounced in the open Court of this Commission on this day i.e. the 09th day of January, 2024 given under my Signature & Seal of the commission.

 
 
[HON'BLE MR. NILAKANTHA PANDA]
PRESIDENT
 
 
[HON'BLE MR. JIBAN KRUSHNA BEHERA]
MEMBER
 

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