- The Complainant Nirupama Behera and Advaita Mishra have filed this Complaint petition against the O.P. No.1 & 2 Bajaj Allianz General Insurance Co.Ltd and O.P. No.3 is the proforma O.P. Advaita Mishra has been impleaded as a Complainant after an amendment along with O.P. No.3.
The Case of the Complainants is that Arabinda Mishra was the registered owner of car bearing No. AP 28-DC-9340 and was insured with O.P. No.2 Arabinda Mishra while traveling in the car being driven by his driver from Hyderabad to Bangalore to join a new job met an accident. One truck bearing No. KA-01B-5733 came from opposite direction, dashed the car and caused casualty of the insured and driver on the spot on 10.04.2011.
Arabinda Mishra, deceased had purchased the car on loan basis in 2009 and while he was working under Microsoft India (R&D) Pvt. Ltd. having policy No. OG-10-1801-1801-00019275 and valid for 14.08.2009 to 13.08.2010 MN. Again the policy was renewed on 13.08.2010 on payment of the premium, the O.P. No.2 issued Cover note bearing No. MC 1000331802 covering the period 14.08.2010 to 13.08.2011 MN. The insured value of the car is Rs. 4,30,000.00. in the policy, as comprehensive policy owner driver are covered for personal Accident benefit i.e. death to the tune of Rs. 2,00,000/-.
The Regd. office of the O.P. No.2 is located atYerwada,Pune and branches all over India. The O.P. No.1 harassed the Complainant after several approach in assuring claim from and formalities. The Complainant served a registered letter dated 07.06.2011, intimated the details of accident of deceased, submitted cover note policy, FIR, PM report, Death certificate along with marriage certificate to serve a claim from for damage of insured vehicle.
On 10.04.2011 at about 6.15AM Arabinda Mishra met the accident near Hanusamaranahallichowk under Yelahanka Traffic Police station, Bangalore city. Yelahanka Police registered Ps Case No. 64/2011 dated 10.04.2011 u/s 279/304(A) IPC, intimated about casualty of her husband over phone on the same day. The Complainant was at Sambalpur, rushed to in-laws house at Bargarh for ritual work. One of the relative informed O.P. No.2 about the accident over phone but the O.P. NO.2 did not depute any surveyor for spot survey. No correspondence also made by the O.P. No.2. The Complainant filed the case alleging deficiency in service of the O.P. No.2.
- The O.P. No.1 & 2 after appearance in the case filed their version through their authorized representative. The Contesting O.P.s challenged the complaint on maintainability locus standi of the Complainants, territorial jurisdiction of this court. Further reply of the O.P. No.1 & 2 is that they are not deficient in their service.
The contesting O.Ps further replied that the policy of insurance for the period 14.08.2010 to 1308.2011 MN was not there with the deceased Arabinda Mishra and the company. The Complainants are not entitled to get any relief.
- On perusal of the Complaint, version of the contesting O.Ps and documents filed by the parties the following issues are framed:
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- Whether the Complainant are ‘Consumer’ of the O.P. No.2?
- Whether the present court has territorial jurisdiction to decide the present case?
- During the period of death of deceased was there only valid contract between the deceased and Insurance Company?
- Are the O.P. No.1 & 2 deficient in their service?
- What relief the Complainants are entitled to ?
ISSUE NO.1:- Whether the Complainants are ‘Consumer’ of the O.P. No.2?
The Complainants have filed a legal heir certificate issued by Tahasildar, Bargarh in Misc. Case No. 55/2011 dated 05.07.2011. In the certificate the Complainants along with Ballavi Mahapatra cited as legal heirs. Further the Complainants made Ballavi Mahapatra as proforma O.P.
Now the question arises whether the deceased Arabinda Mishra was a ‘Consumer’ of the O.Ps No.1 & 2 are not. In the presentcase dispute regarding validity of cover note and between Arabinda Mishra and Bajaj Allianz General Insurance Co. is a different issue. The documents filed by the Complainants clearly reflect the cheque bearing No. 045840 dated 12.08.2010 in favour of the O.Ps for an amount Rs. 10,101/- which is duly received by the company and thereafter issued the cover note. Risk was valid for the period 14.08.2010 to 13.08.2011. From the above document it is clear that there was consumer relationship between Arabinda Mishra and Bajaj Allianz Insurance Co. O.P. No.2. After the death of a consumer his legal heirs may complaint against the deficiency in service, right of consumer passes to his legal heirs.
Accordingly, the Complainants have locus standi to file a complaint against any violation of rights of the consumer as legal-heirs.
The issue is answered in favour of the Complainants.
ISSUE NO.2:Whether the present court has territorial jurisdiction to decide the present case?
The Complainant Nirupama Behera filed a petition dated 10.11.2014 before the court. The contesting O.Ps filed their objection dated 20.01.2017. The O.Ps agitated that neither the policy has been taken by deceased at Sambalpur nor the accident took place at Sambalpur, on the day of accident there was no valid insurance policy existing. Learned advocate for O.P. No.1 & 2 Sri. Purohit submitted that there is no any cause of action wholly or partly arose at Sambalpur (Section 11 ofthe old Act, 2019 emphasized) Sri. Purohit cited M/S Somic surgical Vs National Insurance Co. Ltd., AIR 2010 Sc Supp. 298. wherein the Hon’ble Supreme court held that it is not that the case can be filed anywhere in the country where the Branch office of the opposite party situates, but it is filed at a place of existing branch office of the insurance company where the cause of action arose. He further submitted that the present case was filed under the C.P. Act, 1986, the old provisions are applicable and not the new C.P. Act, 2019.
The Complainant filed the amendment petition dated 10.04.2012 serving a copy to the O.Ps. The O.Ps failed to file objection on 24.04.2012, 21.05.2012, 05.06.2012, 26.06.2012 and ultimately the court allowed the amendment and directed the Complainant to file consolidated Complaint on 19.07.2012. Amended Complaint was served to O.P. No.1on 25.09.2012 but the O.Ps failed to file objection on 11.10.2012, 07.11.2012, 05.12.2012, 07.01.2013, 24.01.2013, 07.03.2013, 02.05.2013, 20.05.2013, 17.06.2013, 22.07.2013 and also on subsequent dates. The O.P. No.1 & 2 have taken extra-ordinary time for filing of version and accordingly their objection that reasonable opportunities not given is not tenable under the law. The Court has rightly proceeded with the case.
Now question of territorial jurisdiction of the present court discussed. It is admitted by both the parties that the accident of the insured took place on 10.04.2011 under Yalahanka Traffic insurance policy cover note issued by O.P. No.2 at Bangalore on 13.08.2010. This is the starting point of cause of action at Hyderabad. From the documents posted by Complainant it reveals that the claim form was sought for from Sambalpur where the heirs of the deceased reside and the O.P. No.1 is a registered Branch of the O.P. No.2 situated at Sambalpur. Section 11(eleven) of the C.P. Act, 1986 clearly describe the jurisdiction of the court. The O.P. No.2 run its insurance business at Sambalpur and works for gain. After the death of Arabinda Mishra, his legal heirs reside at Sambalpur, the right to sue passes to them and the territorial jurisdiction is extended to Sambalpur also, from where the claim was made. Accordingly the right to sue as partly arose from Sambalpur and the O.Ps have business at Sambalpur the Contention of Sri. Purohit, learned advocate for the O.P. No.1 & 2 is not acceptable. As such there in specific provision in the new legislation the C.P. Act, 2019. Accordingly, I am of the view that this Commission has jurisdiction (earlier forum) to entertain the case.
The issue is answered in favour of the Complainants.
ISSUE NO.3:During the period of death of deceased was there only valid contract between the deceased and Insurance Company?
It is admitted by both the parties that after the purchase of the vehicle No. AP-28-DC 9340 it was having a valid policy from 14.08.2009 to 13.08.2010, an amount of Rs. 10,101/- ICICI Bank Ltd, Microsoft Campus Branch, Madhupur, Hyderabad was issued by the deceased in favour of O.P. No.2 Insurance Company, cover note for renewal for the period 14.08.2010 to 13.08.2011 was issued by the O.P. No.2 in favour of deceased.
The accident of Arabinda Mishra took place on 10.04.2011. During the time the insured had no policy bond except the cover note issued by the O.P. No.2.
Sri. B.K.Purohit learned advocate for O.P. no.1 & 2 contended that cover note No. MC 1000331802 was issued basing on cheque No. 045840 dated 12.08.2010 as mode of payment to-wards premium. The said cheque was returned by the Bank with endorsement insufficient fund on 24.11.2010. As the O.Ps did not get the premium to the cover note after giving written letter to the Complainant returned the cheque. The policy was not existing on the day of death of insured i.e. on 10.04.2011. Accordingly as there was no valid contract between the parties the claim is not maintainable.
Learned advocate for the Complainants Sri. N.C. Behera contended that during the period 1308.2010 to 18.08.2010 there was sufficient fund in the account of the deceased. From the Sambalpur Branch of the O.P. No.1 after 07.06.2011 when registered letter was insured by Complainant, they got the status report against cover note No. MC 1000331802 from station report it reveals that cover note was approved on 30.11.2010 and again on 30.11.2010 it was disapproved. For the negligent act of the O.Ps from 13.08.2010 to 30.11.2010, it creates doubt why they have not taken any steps for issuance of the policy bond.
From the contention of parties the question arises was there any valid contract during the time of death of insured. The O.Ps in their version simply pleaded that “it is specifically denied that there was any policy of insurance for the period 14.08.2010 to 13.08.2011 in between any Arabinda Mishra with the company Bajaj Allianz General Insurance Co. Ltd.” The Complainant when filed the amendment petition dated 10.04.2012, thereafter also the O.Ps failed to file the additional version to the amended complaint. In the objection to the amendment petition of Complaint the O.Ps said that the cheque was dishonored on 24.11.2010, the objection was filed on 21.04.2022 only by the O.Ps.Here question arises from Dtd.14.8.2010 , to 24.11.2010 why the Opp.Parties have not taken steps for collection of the chequeand nowhere the delay of collection has been narrated. It proves the deficiency in service of the O.P.No.1 and 2. Another question arises, to whom the dishonoured cheque was returned? The Opp.Parties failed to establish that the dishonoured cheque was returned to Arabinda Mishra on a specific date with proof of acknowledgement.
From the aforesaid discussion it is crystally clear that during the death time the insurance policy of deceased was not in force and it can be concluded that Arabinda Mishra was not a consumer on the day of death and subsequently his legal heirs . But from the aforesaid supra discussion it is clear that within a reasonable time the Opp.Parties failed to collect the premium amount from the deceased and when the cheque was placed, there was insufficient fund in the account and for insufficiency of fund the policy bond could not be renewed. The deficiency in the service of the Opp.Party No.2 is proved .Each and every hour of the insured is important after giving the payment. The O.Ps failed to explain the cause of delay in collection of the premium amount.
Accordingly the issue No.3 is answered.
ISSUE NO.4:-Are the O.P.No.1 and 2 deficient in their service?
The O.P; No.1 is a Branch of O.P.No.2 and there is no any separate legal entity .From the supra discussion conclusion is drawn that the O.P.No.2 is deficient in its service.
The issue is answered against the O.P.No.1 and 2.
ISSUE NO.5:-What relief the complainants are entitled to ?
The complainant including O.P.No.3 are the legal heirs of the deceased ArabindaMishra . The insured has never been informed by the O.P.No.2 about the lapse of policy after his death. During claim and thereafter said fact came to light .Deficiency in service of O.P.No.2 is proved. Accordingly, the complainants along with proforma O.P.No.3 are entitled for the relief claimed for. It is ordered:
O R D E R .
The complaint is allowed on contest. The O.P.No.1 and 2 are deficient in their service which invalidated the insurance contract. Accordingly the O.P.No.1 and 2 are directed to pay the cost of insured vehicle amounting to Rs.4,30,000/- (Rupees four lakh thirty thousand ) only compensation and towards harassment Rs.60,000/- (Rupees sixty thousand) only to the complainant along with O./P.No.3 including personal Accident Benefit of deceased Rs.2,00,000/- (Rupees two lakh) with 4% interest from the day of death of the deceased i,e, from 10.4.2011 within one month of this order, failing which the amount will carry 12% interest till realization . The O.P.No.1 and 2 are to pay Rs.5,000/- (Rupees five thousand) litigation expenses to the complainants.
Order pronounced in open court on this 26th day of April,2022.
Supply free copies to the parties.
