Dr. Aswini Kumar Mahapatra,President:
The case record is received from the Hon’ble State CDR Commission, Odisha, Cuttack with an order in First Appeal No. 31 of 2013 dated 26.08.2020 (arising Ganjam District C.C.No. 43 of 2011 ) the matter is remanded to the District Forum by allowing the appeal with a direction for giving opportunity to both the parties to hear the argument afresh and to dispose of the matter on merit within 30 days from the date of receipt of this order. Hon’ble State Commission have not made any observation on the merit of the case and learned District Forum to pass the speaking order basing on the materials produced before it within the stipulated period.
The case record re-opened accordingly again notice served to the parties to adduce evidence in support of their respective cases. Both the parties are appeared through their advocates and prays for time to file evidence in their support but till today except the learned counsel for the complainant. O.Ps are not filed any materials in support of their case.
2. The case of the complainant in brief is that the deceased husband of the complainant had a RJS ii savings bank account at the O.P.No.1 Branch vide A/C No. RJS ii which was opened on 25.2.2006 and was regularly operated till 11.02.2011 its last balance amount Rs.75/-. The above said account is also incorporated with an insurance for Rs.1,00,000/- to cover the risk of natural death of the account holder. The husband of the account holder was died on 2.6.2008 after his death when the said pass book was found being the nominee and legal heir of the deceased account holder Santosh Kumar Jena. The complainant had submitted the claim form alongwith all the required documents before the O.P.No.1 for disbursement of the insurance amount but for no use till yet. Hence there is deficiency in service by the O.Ps so she prayed before this Forum to direct the O.Ps to allow the insurance amount of Rs.1,00,000/- besides compensation Rs.10,000/- for mental agony financial loss and cost of litigation in the ends of justice.
The complainant is the widow of the deceased Santosh Kumar Jena had opened a savings pass book in his name in the Bank of O.P.No.1 vide account No. RJS 11 which is called as Rushikulya Jeevan Surakshya with his party code No.168 for which the complainant is the nominee of the said account. Due to ill luck the complainant’s husband expired on 2.6.2008. The complainant submitted a written application before the O.P.No.1 stating the death of her husband on 2.6.2008 and requested for payment of policy amount in her favour as she is the successor to her deceased husband and O.P.No.1 sent a letter to O.P.No.2 on 9.7.2008 intimating the date of death of santosh kumar jena, husband of complainant bearing Account No. RJS 11 and further requested to submit the claim papers, other relevant papers and prescribed documents which are necessary for settlement of claim amount in favour of complainant, but to her utter surprise, no such communication has been made to her, though in the meantime about more than 2 years have been passed. On 22.11.2008 the O.P.No.2 sent a letter to O.P.No.1 to furnish the claim papers duly filled up, which were mentioned for requirement at an earliest and thereafter, on 31.8.2010 the O.P.No.1 sent a letter to O.P.No.2 requesting to take early steps for settlement of claim amount to the complainant, but inspite of all attempts, the complainant so far has not received any death claim amount of her deceased husband. On 9.7.2008 the O.P.No.1 sent a letter to O.P.No.2 intimating the date of death of Santosh Kumar Jena and thereafter, on 22.11.2008 while the O.P.No.2 sent a letter to O.P.No.1 to furnish the claim papers with duly filled in which are the requirement and thereafter on 26.3.2011 when the complainant sent legal demand notice to both the O.Ps and thereafter on 30.3.2011while both the O.Ps received demand notice and kept quite silence. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay the death claim amount of Rs.1,00,000/- and compensation of Rs.10,000/- in the interest of justice. Hence this complaint.
3. Upon notice the O.P.No.1 appeared through his advocate who files vakalatanama but not filed any materials in favour of their case. Only the version accompanied documents filed earlier wherein contended that all the allegations made in the complaint are not true and correct. During the life time of late S.K.Jena he had opened a RJS S.B. Account in RGB Digapahandi A/C No. RJS 11 on 25.2.2006 as agreed to abide by the rules, terms and conditions applicable to said scheme. Rule 8 of the Scheme of RJS said that the question of settlement of insurance claim if any is the sole discretion of the Bajaj Alliance Life Insurance Company. RGB will act only as a facilitator as per Rule 11 the beneficiary has to intimate in writing within 30 days about the date of death of the account holder alongwith claim forms before the Bank to submit to the Insurance Company within 180 days from the date of death but the beneficiary is not submitting the claim papers within the stipulated period. In case of delay and default made by the complainant, O.P.No.1 could not be held liable. Regarding the death claim of the deceased account holder the O.P. Bank has informed to O.P.No.2 vide his Letter No. RGB/76-RJS-217 dated 09.07.2008 requesting to furnish the claim papers for settlement of the claim in favour of the complainant. After receiving the claim forms alongwith other related documents from the complainant O.P.No.1 Bank forwarded to the same to O.P.No.2 vide letter No.RGB-76-10-234 dated 18.08.2009 with a request for early settlement of the claim in favour of the complainant with further subsequent several persuasion RGB -76-10-474 dated 31.03.2010 in connection with the claim once again forwarded all the related documents by letter No. RGB-76-RJS claims/88 dated 31.08.2010 and letter No. RGB 76–RJS claim-122 dated 22.11.2010 for settlement of the insurance claim. The premium of the deceased deposited had been remitted from time to time to the O.P.No.2 by the O.P.No.1 vide D.D.No.193958 of Rs.7235/- dated 1.11.2007 for the period of insurance coverage from 1.11.2007 to 30.10.2008. The O.P.No.2 received vide receipt No. 0109780231 dated 30.11.2007.
4. Upon notice the O.P.No.2 though filed vakalatanama but not filed any material evidence to substantiate to their case except earlier certain annexure accompanied written version contended therein that the deceased A/C holder Santosh Kumar Jena is the customer of O.P.No.1 who had opened RJS 11 savings account at O.P.No.1 which is insured by O.P.No.2 vide policy No. RCN 0000135 of the deceased S.K. Jena under the Group Insurance Policy issued by the O.P.No.1 to the O.P.No.2 which covers its 2724 members, the said policy is not an individual policy issued in the name of the deceased husband of the complainant as thus, the death claim of the deceased husband S.K.Jena has been rejected by the O.P.No.2 as the deceased had not covered under policy No. RC0000135 and that has been communicated to the O.P.No.1 and also the complaint is barred by limitation violating section 24A of CP Act. The cause of action arose on 19th July 2008 when the complainant submitted the application to the O.P.No.1 but the present complaint filed in the year 2011. The O.P.No.2 has intimated to the O.P.No.1 that the deceased account holder has not covered under the said policy as his death of birth is missing. When the O.P.No.2 sought the relevant documents from the O.P.No.1 connected with this policy the O.P.No.1 failed to furnish the relevant documents to the O.P.No.2. As the date of birth of deceased S.K.Jena have been missed in absence of that the plan of the policy is not determined. Hence prayed to dismiss the case against O.P.No.2.
The counsel for the complainant has filed copy of certain annexure. The counsel for O.P.No.1 had submitted materials earlier in support of their case. The O.P.No.2 has not filed anything except their counter version.
Heard the parties at length, verified the documents available in the record, perused the material documents. It is admitted fact that the deceased S.K.Jena is the customer of O.P.No.1 during his life time he had opened a Rushikulya Jevan Surakhya –II- savings account at the branch of O.P.No.1 the above said account is also incorporated with Bajaj Alliance LIC (O.P. No.2) insured by O.P.No.2 vide policy No.RCN 0000135 under Group Insurance Policy which covers 2724 members, the premium amount had been remitted in time to the O.P.No.2 by the O.P.No.1. The O.P.No.2 had received the D.D No.193958 of Rs.7,235/- dated 1.11.2007 acknowledges the receipt No0109780231 dated 30.11.2007 for the period from 1.11.2007 to 30.10.2008.
While the validity of the insurance in force the account holder died on 2.6.2008 the complainant said to have that the complainant being the nominee/wife of the account holder she have been claimed for the insurance benefit but the O.Ps rejected the claim.
It is ascertained from the record that the date of death of the deceased account holder alongwith claim form had submitted before the O.P.No.1 as required by the O.P.No.2 but the O.P.No.2 rejected the claim on the ground of late submission of claim form and missing date of birth of the deceased a/c holder as it was a group insurance scheme. But the O.P.No.2 received the premium from O.P.No.1 against the said insurance vide No.RCN 0000135.
The Lrd. counsel of O.P.No.2 contended that the complaint is barred by limitation U/S 24 A of C. P. Act, 1986 and claimed to dismiss the complaint on the other hand the complainant has contended that the cause of action counts not from the date of submission of claim application before O.P.No.1 but from the date of repudiation of the claim by the O.Ps. It is revealed from the record that the cause of action is continuing in this context furthermore it can be stated that the date of rejection/repudiation of the claim no where disclosed by the O.Ps in their averments. But the O.P.No.2 received the premium through D.D. from O.P.No.1 against the said insurance of the deceased and rejected the claim mentioning not covered under the scheme as the policy is not an individual policy and missing of date of birth of the deceased but till filing of this case that was not communicated to the complainant neither by O.P.No.1 nor by O.P.No.2.
Both the O.Ps are failed to adduce any evidence to prove that the letter of rejection of the claim duly communicated to the complainant in this regard. Law is well settled that rejection or acceptance of insurance proposal must be expressly communicated to the proposer N.C., D.P. 278 CPR N. Venketasorulu versus The BPM and other 2011 (4) CPR 278 (N.C.).
In another case it is clear that once proposal is accepted and policy bond is issued LIC is liable for payment of claim 2011 (4) CPR LIC of India versus Pravas Ranjan Nayak.
As the records and submissions of the complainant through sworn affidavit admitted by this Forum and in absence of any evidence filed by the O.Ps we hold that the deceased had his pass book active till his death. The insurance also valid up to 30.10.2008 and the account holder died 02.06.2008 so also the benefits of the insurance also accrue to his nominee (complainant). There is nothing to disbelieve the contents of the complainant.
Further more the contention of the O.Ps that the claim was not filed within 180 days does not hold good as the claimant is mearly a nominee and claimant of death benefits of her husband and not a party to the contract of insurance. If any contract there exists was only between OP No.2 & 1 hence the terms of the policy can not be strictly construed against the present complainant if there is any delay in filing of the claim the same can not be repudiated by the sole ground of late filing of the claim. Hence it is unambiguity clear that the complainant is a legitimate claimant of the insurance and the O.P. can not repudiate to pay the legitimate claim showing one from other pleas.
No doubts burden of proving negligence always rests with the complainant even when the maxim of Res-IPSA-Loquitur applies but one the initial burden of the negligence is proved the onus shifts on the other party to prove his innocence at least any cogent evidence in support of their contention in the counter by the O.Ps would have been filed and without any thus the Ops are held guilty of willful negligence.
The complainant is an orphan widow she was under a pitiable condition she became helpless after death of her husband and could not find out any means to get back the money from the O.Ps in these critical situation of the complainant the rejection of her insurance claim on hyper technical grounds was not justified.
On foregoing discussion and taking the sole testimony of the complainant into consideration all the facts as above we admit the complaint and hold that there is negligent and deficiency in service on the part of the O.Ps and the complainant is entitled to get the claim of insurance amount against the O.Ps.
In the result the O.P.No.2 is hereby directed to settle the insurance claim sum of Rs.1,00,000/- in favour of the complainant and O.P.No.1 is directed to cooperate the O.P.No.2 for early settlement of the claim. In the peculiar facts and circumstances of the case there is no order as to compensation and cost. The above direction shall be complied by the O.Ps within 60 days of despatch of this order failing which the awarded sum will bear 8% interest per annum till its realization.
The order is pronounced on this day of 8th December 2021 under the signature and seal of this Forum. The office is directed to supply copy of order to the concerned parties free of cost and a copy of same is to be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
