ORDER

(Per: Mr. D.K. Tyagi, Member):

This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by appellant-opposite party No. 1-insurance company against the order dated 19.08.2011 passed by the District Forum, Dehradun in consumer complaint No. 159 of 2008, whereby the District Forum has allowed the consumer complaint against the opposite party No. 1 and directed the opposite party No. 1-insurance company to pay to the complainant a sum of Rs. 2,00,000/- together with interest @ 9% per annum from the date of filing the consumer complaint till the date of payment and also to pay a sum of Rs. 10,000/- towards mental agony and cost of litigation to the complainant, within one month (30 days) from the date of order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that Akshay Vashishth, son of complainant, had died on 18.11.2005 in road accident at Mata Maai Mandir, Lachchiwala, Dehradun. The deceased had an account No. 0111000110736186 in Punjab National Bank, Branch Office, Paltan Bazar, Dehradun and a debit card                No. 5048840111000010282 was issued by the bank to the deceased. The New India Assurance Company Ltd.-opposite party No. 1 had issued an insurance policy reference No. 311100/42/05/00009 to Akshay Vashishth under the bank plan at the time of issuance of debit card.  The complainant had written several letters to the opposite parties, but neither the opposite parties replied these letters nor the complainant received any claim.  The complainant wrote a letter dated 25.06.2007 for settlement of claim and submitted the required documents, but the opposite parties did not reply the same.  There after the complainant sent a legal notice through her advocate to the opposite party No. 1-insurance company on 09.07.2008 and also sent a notice to the opposite party No. 2 through UPC and all the documents were attached with the notice.  The complainant had sent letters to the opposite parties on 16.02.2006 and again on 23.06.2008, but the opposite parties did not reply those letters. Besides letters and notice, the complainant herself visited the office of opposite party No. 1-insurance company several times, but the opposite party No. 1 gave only assurance and not paid the claim amount to the complainant.  By the act of opposite parties, the complainant suffered mental agony as well as physical and economical loss.  The cause of action has arose on 18.11.2005, when complainant’s son died and on 16.02.2006, 23.06.2008 and 09.07.2008 when the complainant sent letters as well as notices to the opposite parties.  The opposite party No. 2-Punjab National Bank had sent a letter dated 22.07.2008 to the advocate of the complainant and informed that the claim of the complainant has been repudiated.  In this way, there is deficiency in service on the part of the opposite parties.  The complainant has filed a consumer complaint with a relief for a sum of Rs. 2.00 lacs as sum assured, Rs. 1.00 lac for mental agony, physical & economical loss and Rs. 10,000/- as litigation charges.

3.       The opposite party No. 1-The New India Assurance Co. Ltd. has filed its written statement before the District Forum and pleaded that it is not admitted that Sh. Akshay Vashisht died on 18.11.2005 in a road accident.  It is admitted that it is true that a policy was issued by the answering opposite party.  It is wrong to say that the complainant has written number of letters to the answering opposite party, but the reply was not given.  Facts are that the answering opposite party has not received any letter from the complainant.  It is wrong to say that inspite of service of letters of the answering opposite party, no action was taken by the answering opposite party.  It is also wrong to say that that complainant has several times visited the office of the answering opposite party.  It is also wrong to say that any assurance was given by the answering opposite party to the complainant.  Facts are that the complainant never visited the office of the answering opposite party and as such the question of giving the assurance by the answering opposite party does not arise.  No cause of action has arisen in favour of the complainant to file the present complaint and as such, the complaint of the complainant is liable to be dismissed.  There is no deficiency in service on the part of the answering opposite party.  In additional pleas, the answering opposite party has pleaded that there is no consumer dispute between the parties.  As per the version of complainant, her son Akshay Vashisht died in road accident on 18.11.2005, whereas no intimation of death was given to the answering opposite party by the complainant. The complainant has not submitted the claim form and has also not completed the other formalities. As per the terms and conditions of the policy, it was the duty of the complainant to immediately inform the answering opposite party upon the occurrence of any incident. The complainant has not complied with the terms and conditions of the policy and has violated the same and as such the answering opposite party is not liable to pay any amount to the complainant. The consumer complaint is barred by time.

4.       The opposite party No. 2-Punjab National Bank has filed written statement before the District Forum and has admitted that Akshay Vashishth had an account with the answering opposite party and he had been issued a debit card.  It is also admitted that there was an Accidental Insurance Cover for a debit card holder in the sum of Rs. 2.00 lacs, which was through the office of the opposite party No. 1-insurance company.  It is denied that the answering opposite party has received any letters from the complainant.  It is absolutely wrong to allege that any notice dated 09.07.2008 was received by the answering opposite party.  There is no deficiency in service on the part of the answering opposite party. The complaint is barred by limitation, since as per the complaint, the cause of action had arose on 18.11.2005 and the present complaint has been filed in the year 2008 and, hence, beyond the limitation of two years.  In additional pleas, the answering opposite party has pleaded that Akshay Vashishth had opened an account with the answering opposite party on 24.03.2005 and subsequently 23.09.2005 and, thereafter, the account had zero balance and finally the same was closed on 20.05.2007.  In any case the matter regarding the payment of insurance claim is between the complainant and the opposite party No. 1-insurnace company and the answering opposite party has no say or interference in the matter.  The complainant has not made any allegations of deficiency in service on the part of the answering opposite party.  The answering opposite party is not a necessary party to the present complaint, hence, the complaint against the answering opposite party is liable to be dismissed. 

5.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint No. 159 of 2008 vide order dated 19.08.2011 in the above manner.  Aggrieved by the said order, the opposite party No. 1-insurance company has filed the present appeal.

6.       We have heard Sh. M.N. Mishra, learned counsel for the appellant-insurance company and Smt. Seema Sharma-respondent No. 1 in person and gone through the entire record of the District Forum and also perused the material placed on record.   None appeared on behalf of respondent   No. 2.

7.       Learned counsel for the appellant has submitted before this Commission that the consumer complaint filed by the respondent No. 1-complainant before the District Forum is time barred and respondent No. 1 had not intimated the appellant-insurance company about the death of her son, therefore, the insurance company had rightly repudiated the respondent No.1’s claim.  Learned counsel has also argued that the Forum below has not considered the fact that the respondent No. 1 has neither ever intimated the death of her son due to road accident under the prescribed time limit of the policy to the appellant or respondent No. 2. The Forum below has not considered the fact that the respondent No.1 has submitted the claim papers through respondent No. 2 only on 29.10.2007, which were received by the appellant on 02.11.2007 just after the period of two years of death. The District Forum has not considered the fact that the respondent No. 1 has clearly violated the terms and conditions of the policy by not intimating the claim within 30 days from the date of death as per the terms and conditions of policy. In absence of any claim intimation within 30 days from the date of incident, filing the claim papers within the prescribed time as per the terms and conditions of the policy and registration of claim showing the liability of company, the Court below has wrongly interpreted the letter dated 02.11.2007 of the appellant to respondent No. 2 that the claim was repudiated by the appellant on 02.11.2007 and wrongly held that the complaint filed by the respondent No. 1 was not time barred.  The Court below has wrongly awarded interest @ 9% per annum, which is on the higher side and also wrongly allowed Rs. 10,000/- towards mental agony.  The interest and compensation cannot be considered together.

8.       Smt. Seema Sharma-respondent No. 1 herself appeared before this Commission and has submitted orally that she had intimated the appellant-insurance company as well as respondent No. 2-Punjab National Bank through several letters.  The respondent No. 2-Punjab National Bank has also sent all the documents regarding respondent No.1’s son Akshay Vashishth alongwith the claim form to the appellant, even then the appellant repudiated the claim of respondent No. 1. 

9.       Respondent No. 1 Smt. Seema Sharma has filed copy of death certificate of Akshay Vashishth, copy of F.I.R., copy of Post Mortem report, copy of bank account pass book of Punjab National Bank alongwith copy of debit card, copy of letter dated 16.02.2006 written to Manager, New India Insurance Company and Manager, Punjab National Bank, Branch Paltan Bazar, Dehradun, copy of letter dated 25.06.2007 written to Manager, New India Insurance Company, copy of letter dated 23.06.2008 written to Manager, New India Insurance Company, copy of legal notice dated 26.06.2007 sent by Sh. Narinder Kumar Sarin, Advocate to Manager, Punjab National Bank, copy of legal notice dated 08.07.2008 sent by Archana Bhatia, Advocate to Manager, New India Insurance Company and Manager, Punjab National Bank, original letter dated 22.07.2008 sent by Manager, Punjab National Bank to Archana Bhatia, Advocate, copy of letter dated 08.11.2007 sent by Manager, Punjab National Bank to Smt. Seema Sharma-respondent No. 1, copy of letter of repudiation dated 02.11.2007 by The New India Assurance Company Ltd. to Manager, Punjab National Bank (paper Nos. 11kha/2 to 11kha/17 on the District Forum’s record).  Respondent No. 1 has also filed two original U.P.C. dated 16.02.2006 and 23.06.2008, original under certificate of posting dated 09.07.2008, original registry receipts dated 28.06.2007 and 09.07.2008 (paper Nos. 11kha/18 to 11kha/22 on the District Forum’s record).

10.     Admittedly, Akshay Vashishth, son of respondent No. 1, had died on 18.11.2005 in road accident near Lachchiwala, Dehradun.  F.I.R. was lodged on the same day by one Lalit Kumar regarding accident and death of Akshay Vashishth.  Post-mortem of the body of Akshay Vashishth was also conducted on 19.11.2005 showing multiple injuries on the body.  It is also admitted that there was an account with the Punjab National Bank and Punjab National Bank had issued debit card in favour of Akshay Vashishth.  Smt. Seema Sharma-respondent No. 1, mother of deceased, who had written a letter on 16.02.2006 to the Manager of insurance company-appellant as well as Manager of Punjab National Bank-respondent No. 2.  There is an UPC dated 16.02.2006 of Post Office, Kutchery Branch, which reveals that letter dated 16.02.2006 was sent to both the appellant as well as respondent No. 2 (paper No. 11kha/7 to 11kha/8 on the District Forum’s record).  In this letter dated 16.02.2006, respondent No. 1 has mentioned that she had visited so many times in the office of insurance company-appellant, even then the insurance company did not take any action regarding payment of claim.  Similarly, respondent No. 1 again sent a letter to the appellant on 23.06.2008 for which an UPC is filed at paper No. 11kha/9 to 11kha/10 on the District Forum’s record. The respondent No. 1 had also sent a legal notice dated 26.06.2007 through Sh. Narinder Kumar Sarin, Advocate to the appellant for which a registry receipt is filed at paper No. 11kha/21 on the District Forum’s record and she had also sent another legal notice dated 08.07.2008 through Ms. Archana Bhatia, Advocate to the Manager of insurance company and Manager of Punjab National Bank, for which an UPC as well as registry receipt is filed at paper Nos. 11kha/20 and 11kha/22 on the District Forum’s record.

11.     From the perusal of the letter dated 16.02.2006 of respondent No. 1 alongwith certificate of UPC (paper No. 6kha/19 on the District Forum’s record), it is evident that the respondent No. 1 had intimated both the insurance company as well as the bank regarding death of her son in road accident on 18.11.2005.  In the said letter, respondent No. 1 has also written that she had visited in the office of insurance company several times, even then the insurance company failed to pay the claim amount.  So far intimation given by the respondent No. 1 and bank is concerned, the claimant, mother of deceased Akshay Vashishth, is not assured.  Therefore, some delay in intimating about the death of her son is natural and on this basis repudiation by the insurance company, is a hyper technical conduct of the appellant. It may be due to not in knowledge of respondent No. 1 that her son had obtained any debit card from the bank and on that basis, the bank had given some insurance cover to the deceased.  In these conditions, we are of the view that intimation about the death of son of respondent No. 1 with some delay, cannot be treated as the violation of terms and conditions of the policy.  Similarly, the claim was repudiated by the insurance company-appellant on 02.11.2007 (paper No. 11kha/17 on the District Forum’s record), therefore, the cause of action for filing the consumer complaint had arisen on 02.11.2007.  Meaning thereby, respondent No. 1 could have filed the consumer complaint after 02.11.2007 up to next two years, i.e. up to 02.11.2009.  The consumer complaint has been filed on 29.07.2008, therefore, the same is within time and is not time barred.  Therefore, in these conditions, we are of the view that by repudiating the claim of respondent No. 1-complainant, there is deficiency in service on the part of the insurance company.

12.     So far interest @ 9% per annum on the insured sum is concerned, it is on higher side and cannot be awarded alongwith compensation against mental agony. Therefore, impugned judgment and order dated 19.08.2011 is modified up to the extent that the order regarding payment of interest @ 9% per annum is set aside.  Rest of the order passed by the District Forum is hereby confirmed. Thus, the appeals succeeds partly and the order impugned is modified accordingly.

13.     In view of the above, the appeal is partly allowed. The impugned order dated 19.08.2011 passed by the District Forum, Dehradun in consumer complaint No. 159 of 2008 is modified and the appellant is directed to pay a sum of Rs. 2.00 lacs as insured sum and Rs. 10,000/- towards mental agony and litigation charges to the respondent No. 1-complainant. The award of interest @ 9% per annum passed by the District Forum is hereby set aside.  Cost of the appeal is made easy. The amount deposited by the appellant as statutory amount at the time of filing the appeal and 50% of the awarded amount deposited by the appellant for staying the order be released in appellant’s favour.