Tripura

StateCommission

A/23/2015

Golden Trust Financial Service - Complainant(s)

Versus

Shajana Marak & Others - Opp.Party(s)

Mr. Sudipta Sekhar Debnath

27 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/23/2015

 

 

1. Golden Trust Financial Services,

Head Office at 16, R.N. Mukherjee Road,

Kolkata - 700001,

Represented by -

The Branch Manager,

Golden Trust Financial Services,

Having its Branch Office at Udaipur,

P.S. & P.O. – R.K. Pur, Udaipur, South Tripura.

 

                                                  ….    ….    ….    ….    Appellant/Petitioner.

 

                   Vs

 

1. Shajana Marak,

D/o Late Mahindra Marak

Of East Chandrapur, Basankhola,

P.O. – Abani Reang Para, P.S. – R.K. Pur, Udaipur,

Gomati District, Tripura. 

 

 

2. Bajaj Allianz General Insurance Co. Ltd.,

Represented by –

The Deputy Manager – Claim,

3.  

(Old No. AA-II/BLK-21, IT) New Town, Rajarhat,

•  

                              ….    ….    ….    ….    Respondents/Opposite Parties.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

For the Appellant               :         Mr. Sudipta Sekhar Debnath, Adv.

For the Respondent No.1    :         Mr. Arjun Acharjee, Adv.

For the Respondent No.2    :         Mr. Karnajit De, Adv.

Date of Hearing       :         23.05.2016.

Date of delivery of Judgment:       27.06.2016

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 17.06.2015 by the appellant-Golden Trust Financial Services under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 06.04.2015 passed by the Gomati District Consumer Disputes Redressal Forum (in short District Forum), Udaipur, passed in case No.CC-10/2014 whereby the Ld. District Forum allowed the application filed under section 12 of the C.P. Act directing the present appellant being the corporate authorized agent of Bajaj Allianz General Insurance Company Ltd. to pay the assured sum of Rs. 50,000/- to the nominee complainant, the respondent no.1 herein with a further direction to pay interest @9% per annum over the said assured amount from the date of filing of the petition i.e.23.05.2014 till payment is made. By the said judgment the Ld. Forum also allowed Rs.10,000/- as compensation to the complainant for deficiency in service.

2. The case of the appellant-Golden Trust Financial Services who was the opposite party no.2 in the District Forum, as narrated in the memo of appeal, in brief, is that the complainant Shajana Marak being the nominee and sister of the deceased insured Bishnu Marak lodged the complaint petition alleging that the said insured purchased a Personal Accident Policy from Bajaj Allianz General Insurance Company Ltd. for a sum of Rs.50,000/- w.e.f. 23.10.2005 to 22.10.2006, but after the purchase of the policy Bishnu Marak was reported to have suffered an accidental death. It is also alleged that the subject claim was not settled by the insurer due to non-submission of certain documents. It is also alleged that the present appellant who otherwise known as Golden Multi Services Club of Golden Trust Financial Services had facilitated the Group Personal Accident Insurance coverage to Bishnu Marak, since deceased on the strength of Memorandum of Understanding dated 04.02.2004 between the present appellant and the respondent no.2, insurer Bajaj Allianz General Insurance Company Ltd.   
3. It is also alleged that as per said Memorandum of Understanding, for any insurance claim, the insurer would be solely liable and under no circumstance, the present appellant Golden Trust Financial Services would have any liability in that regard.
4. It is also alleged that as a good gesture for the benefit of the distressed claimants, at times, the appellant used to pursue the pending claims with the insurer whenever there was any unreasonable delay.
5. It is also alleged that the appellant had no role to play in the settlement of the insurance claim and as such, the appellant cannot be blamed with any allegation of deficiency in service for non-settlement/delayed settlement of any insurance claim, but the Ld. District Forum in a most careless and mis-informed manner passed the impugned judgment arbitrarily saddling the present appellant, a mere corporate agent of the insurer, with liability instead of the insurer Bajaj Allianz General Insurance Company Ltd.
6. Being aggrieved by and dissatisfied with the impugned judgment, the present appellant has preferred this appeal assailing the impugned judgment on the grounds that the Ld. Forum erred in distinguishing the insurer with their role, liabilities and responsibilities amongst the opposite parties impleaded in the District Forum, that the Ld. Forum failed to appreciate that Personal Accident Insurance Policy was between the insured Bishnu Marak and the insurer, Bajaj Allianz General Insurance Company Ltd. and that the impugned judgment is otherwise bad, unreasonable and untenable both on facts as well as in law and hence, the instant appeal has been filed praying for setting aside the impugned judgment.

Points for Consideration

7. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in awarding the compensation and other benefits payable by the present appellant in passing the impugned judgment and (ii) whether the judgment under appeal is liable to be set aside or otherwise as prayed for.

Decision with Reasons     

8. Both the points are taken up together for the sake of convenience and brevity.
9. At the outset, we find it appropriate to mention that the Ld. Forum passed the impugned judgment fastening the present appellant with liability to make compensation and other benefits to the complainant-respondent no.1, but the insurer Bajaj Allianz General Insurance Company Ltd., the respondent no.2 herein did not prefer any appeal challenging the justifiability of the impugned judgment passed by the Ld. Forum nor the said insurance company made any payment to the complainant, respondent no.1 herein as per the said judgment, rather the present appellant and the insurer both are contesting in the present appeal.
10. In this regard, we also find it proper to mention that the Ld. Counsel for the respondent no.1-complainant, who was present all through in this appeal, did not turn up to participate on the date of final hearing of the appeal. It further appears that even after completion of the hearing of appeal none from the side of the complainant appeared with any proper application seeking any further opportunity to make submission in the final hearing of the appeal.
11. The Ld. Counsel for the appellant submitted before us that as per Memorandum of Understanding for Group Personal Accident Insurance, the appellant was a mere corporate agent and its duty was to facilitate the payment of premium to the insurer for the members of the Golden Trust Multi Services Group. He also submitted that admittedly, the insured Bishnu Marak by way of purchasing the said policy became a member of the said group. He also submitted that as per said understanding, the claim arising out of insurance policy will be settled directly in favour of the members/beneficiaries under the policy. He also submitted that the appellant acts for the insurer practically on commission basis and as such, this corporate agent is under no legal obligation to make payment of any assured sum or compensation arising out of insurance claim disputes.
12. In this regard, the Ld. Counsel for the appellant has referred to the three decisions of the Hon’ble National Commission held in Revision Petition no.4566 of 2013, Revision Petition no.4107 of 2008 and Revision Petition no.4451 of 2010. Referring to the above cited three decisions, Ld. Counsel for the appellant submitted before us that the appellant is a mere facilitator between the insured person and the insurance company and collected the insurance premium from the members and forwarded the same to the insurance company. He also submitted that in the above mentioned three referring cases, the Hon’ble National Commission granted exemption to Golden Trust Financial Services like the present appellant and has been pleased to hold that only the insurance company would pay the entire claimed amount as allowed to the complainant. He also submitted that the Ld. District Forum erroneously passed the award against the present appellant i.e. Golden Trust Financial Services, a facilitator between the insured person and the insurance company and as such, in view of the decision of the Hon’ble National Commission enunciated in the three above mentioned referred cases, the impugned judgment containing the direction of the Ld. District Forum to make payment to the complainant by the present appellant cannot be sustained in the eye of law and should be set aside.
13. The Ld. Counsel for the respondent no.2, Bajaj Allianz General Insurance Company Ltd. submitted that the Ld. District Forum entertained a time barred complaint and as such, the impugned judgment containing the award should be set aside and the complaint should be held non-maintainable being time barred. The Ld. Counsel for the respondent no.2 in this regard has referred to a decision of this Commission pronounced in an appeal being FA-12/2014 on 27.12.2014 and submitted that in the said referred case, the Ld. District Forum entertained a time barred complaint and erroneously passed the award against the insurance company. He also submitted that this Hon’ble Commission in the said referred appeal set aside the judgment passed by the Ld. District Forum holding that the complaint lodged by the complainant before the Ld. Forum being time barred by law of limitation under section 24 A of the Consumer Protection Act, 1986 was not legally maintainable. He also submitted that in the instant case, the Ld. District Forum passed the impugned judgment on a time barred complaint and as such, it is not sustainable in the eye of law and should be set aside.
14. It has already been mentioned that the Ld. Counsel for the respondent no.1-complainant Shajana Marak did not participate in the final hearing of the appeal.
15. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and memo of appeal. We have also considered the submissions made by the Ld. Counsels of the parties. Going through the same, we find certain admitted facts. Admittedly, the deceased Bishnu Marak during his life time purchased one insurance policy for an assured sum of Rs.50,000/- vide policy no.OG-05-2401-9960-00000039 covering the risk of accidental death/loss of limbs/permanent total disablement for the risk period i.e. on and from 23.10.2005 to 22.10.2006. It is also found admitted position that the life assured Bishnu Marak met a motor accident on 18.01.2006 and died on the same date. It is also admitted position that the present respondent no.1-complainant Shajana Marak is the sister-cum-nominee of said deceased Bishnu Marak in respect of said insurance policy. It is also admitted fact that over the said motor accident, Gandacherra Police Station Case No.01/2006 under section 279/304A of the IPC dated 18.01.2006 was registered and the medical officer of Gandacherra Hospital held postmortem examination over the dead body of said deceased Bishnu Marak on 19.01.2006. It is also admitted fact as appearing from the certified copy of the FIR that one Debashis Banik lodged the FIR before the O/C, Gandacherra Police Station on 18.01.2006 mentioning therein about the said motor accident which caused the death of Bishnu Marak aged 18 years who was then working in the said motor/Truck as assistant of the driver.
16. It is also found admitted position that although the said motor accident took place on 18.01.2006, but the complaint under section 12 of the C.P. Act, 1986 was lodged before the Ld. District Forum, South Tripura, Udaipur on 23.05.2014 i.e. after more than 8 (eight) years from the date of the death of the insured. It is also admitted fact that the complainant did not file any application under section 24 A of the C.P. Act along with the complaint petition explaining the delay so caused in filing the complaint before the District Forum.
17. It transpires that the o.p. no.1 Bajaj Allianz General Insurance Company Ltd. in their written objection took the plea of non-maintainability of the case being barred under section 24A of the C.P. Act. It also appears that the o.p.no.1 in their written objection stated in para-4 that the insurance company sent repudiation letter dated 30.09.2007 in which it was stated that as per policy condition no.2, the insurance company is constrained to close the claim without payment as the complainant failed to make any response concerning letters dated 12.06.2007 and 20.04.2007. It further appears that although the copy of the said letter dated 30.09.2007 has been shown and marked as Annexure-A, but actually no such annexure regarding the letter dated 30.09.2007 has been filed along with the written objection. On the other hand, it appears that the present appellant sent a letter to the Deputy Manager, Claims of the said insurance company on 16.12.2014 stating that the appellant who forwarded the documents furnished by the complainant/claimant to the insurance company did not hear anything from the insurance company till 16.12.2014 regarding the fate of the claim application submitted by the complainant to the insurance company.
18. It is no doubt that on the death of the insured Bishnu Marak, the claim under the insurance policy payable to the complainant as nominee in respect of that policy by the Bajaj Allianz General Insurance Company Ltd. has become due after the expiry of 18.01.2006 on which the insured Bishnu Marak succumbed to his injuries caused in the motor vehicle accident. We find from the letter dated 3^rd April, 2007 that the complainant submitted the required documents in the office of the present appellant, Golden Trust Financial Services before 3^rd April, 2007 and on 3^rd April, 2007 the present appellant forwarded as many as seven documents to the present respondent no.1, insurance company who received the same on 4^th April, 2007. So, it is palpable that the claim application along with the documents had reached to the office of the o.p.no.1 on 4^th April, 2007 as appearing from the letter dated 3^rd April, 2007 (Annexure-III). It further appears from the Annexure-IV i.e. letter dated 07.12.2007 that the present appellant asked the complainant to submit attested copy of final investigation report of police/charge-sheet along with a clarification explaining the reason for delay in giving intimation to them regarding the death of the insured Bishnu Marak.
19. It is the specific case of the complainant that initially she was not aware about the existence of the said insurance policy which has made her a nominee of the insured, but subsequently, in course of searching on 25^th March, 2007 as mentioned in para-5 of the complaint, the existence of the said insurance policy of the deceased Bishnu Marak has came to her notice.
20. Thereafter, she submitted her claim application along with other documents before the present appellant who forwarded the same to the insurance company as appearing from the letter dated 3^rd April, 2007 (Annexure-III). So, it is palpable that immediately after coming to know about the said insurance company, she submitted her claim application accompanied by a number of documents and therefore, it cannot be said that there was any long delay in presentation of the claim application before the insurance company through the present appellant Golden Trust Financial Services.
21. It is true that as per letter dated 07.12.2007 (Annexure-IV), the insurance company asked for an attested copy of final investigation report of police/charge-sheet in respect of the said police case arising out of the motor vehicle accident in which the insured Bishnu Marak died. We find nothing specific to form any opinion if the complainant submitted the attested copy of the final investigation report/charge-sheet as asked for. But we find a postal registration receipt showing sending something to the Bajaj Allianz General Insurance Company Ltd. on 24.12.2007, although no specific presumption can be drawn from such postal registration receipt, but one thing it is clear that the complainant did something immediately after getting the intimation from the present appellant as per letter dated 07.12.2007. Assuming that the complainant did not submit the said attested copy of charge-sheet or final investigation report of police, but from the letter dated 3^rd April, 2007 forwarded by the present appellant to the insurance company we find that the original claim application was accompanied by original insurance certificate, attested photocopy of death certificate, attested photocopy of FIR, attested photocopy of postmortem report, photocopy of affidavit and photocopy of newspaper cutting. The death certificate, FIR and the postmortem examination report together prove the death of Bishnu Marak as a result of motor vehicle accident. There is no ground to believe and hold that it was not possible on the part of the insurance company for coming to a conclusion regarding the death of Bishnu Marak in the motor vehicle accident in the absence of charge-sheet/police investigation report. It simply suggests that the insurance company somehow and on this or that ground was delaying in settling the claim of the complainant.
22. The case of insurance company is that the insured Bishnu Marak died on 18.01.2006 and as a nominee of the deceased Bishnu Marak, the complainant Shajana Marak was legally bound to lodge the complaint before the Ld. District Forum within two years from the date of death of Bishnu Marak as provided under section 24 A of the C.P. Act, but the complainant lodged the complaint before the Ld. District Forum almost after eight years from the date of death of Bishnu Marak and as such, it is a time barred complaint, but the Ld. District Forum allowed the complaint petition which, being legally time barred, is not maintainable.

We find it appropriate to quote the provision of section 24A of the C.P. Act, 1986 which runs as follows:-

24A. 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 contained in sub-section (1), a complaint may be entertained after the period specified 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.

23. From the above section 24A we find that two years period have been prescribed for lodging a complaint either before the Ld. District Forum or before the State Commission or before the National Commission from the date on which the cause of action has arisen. A cause of action is a bundle of facts. It is not only a particular date. It is true that the claim of the nominee Shajana Marak became due after the expiry of 18.01.2006 i.e. after the death of insured Bishnu Marak. It has been mentioned that the complainant submitted her claim application before the insurance company immediately after coming to know about the existence of the insurance policy standing in the name of her brother Bishnu Marak. Although the respondent no.1 insurance company in their written objection in the Ld. Forum has taken a plea that the claim of the complainant was repudiated and that matter of repudiation was intimated to the complainant by its letter dated 30.09.2007. This apparently becomes a disbelievable story, not only for non-production of the said letter either before the Ld. Forum or before this Commission in appeal, but also as appearing from the letter dated 07.12.2007 which is a subsequent date to 30.09.2007. Furthermore, the sending of the letter by the present appellant to the insurance company on 16.12.2014 also has made it clear that the story of repudiation of the claim of the complainant mentioned in the written objection of the o.p.-respondent no.1, insurance company addressed to the said insurance company becomes a myth.
24. It is the specific case of the complainant that when the insurance company did nothing and remained silent in respect of her claim application submitted with documents, she was compelled to serve a legal notice on 07.01.2014 upon the insurance company giving 30 days time to settle the claim, otherwise she would take shelter of law. It transpires that even after the expiry of said 30 days the insurance company made no response regarding the claim of the complainant and finding no alternative, she lodged the complaint before the Ld. District Forum on 23.05.2014 which is within two years from the date of accrual of the last cause of action. From that standpoint it can be said without any hesitation that the complaint was lodged before the Ld. District Forum within two years from the date of accrual of the last cause of action which arose after 30 days of the sending of the legal notice dated 07.01.2014 as the claim of the complainant was not repudiated by sending any letter of repudiation of the claim by the insurance company. We have gone through the findings of Ld. District Forum made in the impugned judgment regarding the question of limitation in lodging the complaint. We are in agreement with the findings of Ld. District Forum that the cause of action was continuous one and it ended on the expiry of the 30 days from the date of issue of the letter dated 07.01.2014.
25. We have gone through the copy of the judgment passed by this Commission in FA-12/2014 relied on by the Ld. Counsel for the insurance company. In the said referred judgment we find that the insured was murdered in the night of 07.02.2006 and the nominee complainant sent the documents to the office of the insurance company on 06.12.2010. It is clear from the said referred case that more than two years period were passed in presenting the claim application along with the documents to the office of the insurance company from the date of murder of the insured person and the complaint petition was lodged before the District Forum on 18.04.2012 and as such, this Commission vide that judgment arrived at the conclusion that the complaint was time barred one and set aside the judgment. In the instant case, the insured Bishnu Marak died on 18.01.2006 and the nominee complainant submitted the claim application along with documents through the present appellant to the insurance company on 4^th April, 2007. So, it is clear that the claim was submitted well within the period of limitation. Therefore, it is also clear that the facts and circumstances of the referred case is altogether different from the facts and circumstances of the present case and as such, the decision arrived at by this Commission in the referred case is not applicable in the instant case.
26. It has already been mentioned that the Ld. District Forum passed the award by the impugned judgment only against the Golden Trust Financial Services, the present appellant herein. No award has been passed against the insurance company. It is also not mentioned in the impugned judgment as to why the award containing the assured sum and the compensation has not been awarded against the insurance company. From the Memorandum of Understanding for Group Personal Accidental Insurance executed by and between the insurance company and the present appellant on 04.02.2004 and also the letter dated 2^nd July, 2004 containing tie-up arrangement issued by the insurance company to the present appellant, we find that any claim under personal accident insurance facilitated by the present appellant will be settled directly by the insurance company and there will be no liability of the present appellant for the same. These two documents have made it clear that the present appellant is only a facilitator and at best can be said to be a corporate agent of the insurance company. So, the order of the Ld. District Forum awarding the assured sum and compensation against the present appellant is against the Memorandum of Understanding and the tie-up arrangement as mentioned above.
27. It transpires from the judgment dated 28.07.2010 of the Hon’ble National Commission passed in Revision Petition no.4107 of 2008 (supra) between General Manager, Golden Trust Financial Services and another (petitioners) Vs. Anil Kumar and another (respondents) that the Ld. District Forum of the referred case allowed the complaint and passed the award directing to make payment by the said appellant and insurance company jointly and severally. It further appears from the said referred case that the State Commission dismissed the appeal, but the Hon’ble National Commission in revision set aside the order by which the petitioner (facilitator) was made liable jointly and severally along with the insurance company to make payment. It further appears that the Hon’ble National Commission gave liberty to the complainant to execute the decree against the insurance company. It further appears from another Revision Petition being no.4566 of 2013 between Golden Trust Financial Services Vs. National Insurance Company and the complainant that the Hon’ble National Commission following the decision of the revision petition no.4107 of 2008 granted exemption to the petitioner Golden Trust Financial Services making the insurance company solely liable for making payment as per decree. It further appears from another decision of the Hon’ble National Commission passed in revision petition no.4451 of 2010 between Golden Trust Financial Services Vs Achchlal Shah and another referred by the Ld. Counsel for the appellant, the Hon’ble National Commission passed that judgment following the judgment passed in RP No.4107 of 2008. In the instant case, the Ld. District Forum placed the entire burden of making payment to the complainant upon Golden Trust Financial Services, the present appellant herein, but that findings of the Ld. District Forum is totally against the principle of law laid down by the Hon’ble National Commission in the above cited three revision petitions and as such, the findings of the Ld. District Forum directing the present appellant Golden Trust Financial Services to make payment of assured sum of Rs. 50,000/- along with interest @9% per annum over the said assured sum from the date of filing of the complaint petition i.e. on and from 23.05.2014 till the payment is made and also directing to make payment of Rs.10,000/- as compensation for deficiency of service for causing delay to the complainant is unsustainable in law and as such, the said direction of the Ld. District Forum passed in the impugned judgment stands set aside.
28. In the instant case, we see as to how the insurance company was trying to avoid the legitimate claim of the claimant. Without disposing of the claim application submitted before it, the insurance company cannot remain idle over it. The insurance company also cannot take the advantage of its own trick remaining silent for an indefinite period. It has already been mentioned that the sending of the legal notice dated 07.01.2014 demanding the settlement of the claim of the complainant is the last date of accrual of the cause of action and as the cause of action was continuous one due to the pending of the claim application before the insurance company, the complaint petition lodged before the Ld. District Forum is not time barred one.
29. We have made it clear that the appellant Golden Trust Financial Services being only a facilitator of insurance policy of the insurance company has no liability to make any payment concerning any insurance claim. The assured sum of Rs.50,000/-, the interest @9% per annum over the assured sum from 23.05.2014 till the date of payment and also Rs.10,000/- as compensation will be paid by the respondent no.2-insurance company to the complainant-respondent no.1. The complainant is at liberty to execute the decree for realization of the entire due amount as per judgment of the Ld. District Forum against the present respondent no.2 Bajaj Allianz General Insurance Company Ltd.
30. The appeal is, thus, allowed on the above mentioned terms.

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura