Present (1)  Sri Nisha Nath Ojha

  District & Sessions Judge (Retd.)

                   President

            (2)    Sri Sheo Shankar Prasad Singh,

                   Member.

            Date of Order – 21.01.15

                                                   ORDER

 Sheo Shankar Prasad Singh

1. The complainant approached this forum for following reliefs against Opposite Parties:-

1. To pay Rs. 5,00,000/-(Five lacs only) for settling the claim.
2. To pay Rs. 50,000/-(Fifty thousand only) for compensation.

2.       The brief facts of the case is as follows:-
   1. The complainant is a policy holder of Janta Personal Accident Insurance Policy No. 100300/47/01/ 9600022/ 03/96/30359 for Rs. 5,00,000/-(Five lacs Only) which was issued by National Insurance Company Limited, Kolkata and policy has been issued through Golden Multi Services Club of Golden Trust Financial Services, Kolkata and its Patna Office is at Fraser Road Patna-1 and this policy commenced from 15.01.14 and expired on 14.01.09.
   2. On 20.10.06 the complainant along with his wife had come to his father-in-law‘s house at Khajur Banna Mohalla at Pathar Ki Maszid, P.S.- Sultanganj, Patna-6 at about 8:30 P.M. and they were standing to enter into the house, two unknown criminals were standing behind the complainant and his wife and one of the criminal caught hair of the complainant’s wife then the complainant made objection then criminal fired from his pistol to the complainant, then he fell down near the door.

3. After that complainant was admitted in Rajeshwar Hospital, Kankarbagh, Patna for his treatment. F.I.R. has been lodged by Dr. Deepak Kumar, who is brother in law of the complainant in Sultanganj Police Station at 10:30 P.M. on 20.10.06.       

4. From Rajeshwar Hospital, Patna the complainant was admitted in A.I.I.M.S., New Delhi from where he was referred to Safdarganj Hospital, New Delhi for his best treatment but he could not be cured and now he is not in a position to move and to do his daily routine work. He has been declared 70% handicapped by the Civil Surgeon, Patna. The complainant lodged claim on 15.12.06 to the National Insurance Company Limited, Kolkata through Golden Multi Services Club of Golden Trust Financial Services, Patna within the stipulated time.

5. After lapse of two and half years Janta Personal Accident (JPA) claim has not been settled by the National Insurance Company and the complainant has sent several written reminders and oral reminder to the National Insurance Co. Ltd. Kolkata.

6. National Insurance Co. Ltd. has made objection that monthly income of the complainant is Rs. 8,500/-(Eight thousand five hundred only) per month in the proposal from dated 24.12.03.
7. At the time of claim settlement insurance company has required income proof from the complainant and the complainant has submitted his income from his business only i.e. Rs. 45,000/-(Forty five thousand only) per annum (Rs. 3,750/-Per month) and he has not submitted his agriculture income i.e. Rs. 57,000/-(Fifty seven thousand only) per annum hence the difference of income shown.    

8. Now the insurance company has pointed out that the income of the complainant is different as the complainant could not obtain agriculture income certificate from the office, hence he could not submit his agriculture income to National Insurance Company and he only submitted his business income proof i.e. 3,750/-(Three Thousand Seven Hundred Fifty Only) per month. Therefore there is difference in the monthly income shown at the time of proposal form and at the time of claim settlement.  Monthly income or yearly income can be decreased or increase but it can affect the claim.

3. The Opposite Party No. 1, 2 and 3 in their written statement has submitted following assertion:-
   1. It is stated that Vide Letter dated 18.02.09  (i.e. Annexue-8 of the complaint petition) the claim of the complainant was repudiated on the ground of misrepresentation of materials fact by mentioning wrong and exaggerated income in the proposal form i.e. Rs. 8,500/-(Eight Thousand Five Hundred Only) per month and while processing the claim, the National Insurance Co. Ltd. asked for the income proof, the complainant produced two income certificates issued vide circle officer letter dated 16.01.09  for Rs. 45,000/-(Forty Five Thousand Only) and another vide letter dated 07.09.09 for Rs. 57,000/-(Fifty Seven Thousand Only) which goes to show that he manufactured those two income certificates to justify his false statement given in the Proposal Form otherwise there was no need of getting two income certificates.

2. It is not out of place to mention that first income certificates for Rs. 45,000/-(Forty Five Thousand Only) as submitted by the complainant already mentioned his Gross Annual Income as Rs. 45,000/-(Forty Five Thousand Only) i.e. Rs. 3,750/-(Three Thousand Seven Hundred Fifty Only) per month and just to justify the monthly income as stated in the proposal form he again manufactured another income certificate for Rs. 57,000/-(Fifty Seven Thousand Only) which itself goes to show his malafide intention and as such, the National Insurance Co. Ltd. has rightly repudiated his claim as no claim since insurance is a contract of utmost good faith and any violation of it hits at the root of the contract.

3. It is further submitted that in the case of United India Insurance Co. Ltd. V/s. Harchand Rai Chandan Lal, as reported in 2004 (4) PLJR 185 (SC), the Hon’ble Supreme Court had already settled the law that “the Insurance policy is a contract between the parties and both the parties are bound by the terms of contracts. Once a party has agreed to a particular conditions and definition, he is bound by it. Terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of the policy and not with reference to the definition given in any other laws”. The Hon’ble Supreme Court in the aforesaid case also holds that “terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous”.
4. The procedure prescribed under the condition clause of the policy is mandatory in nature and not mere directive in nature. As such, non fulfillment of the said condition debars the complainant for any claim whatsoever. It is further submitted that the Insurance Policy is granted to the Insured on the basis of averments made in the  Proposal Form which is duly signed by the insured supported by a declaration that he understood the terms and conditions of the Insurance Policy.

5. There was no deficiency in service on the part of the answering Opposite Parties sine the complainant failed to made available the mandatory documents as called for and which was required for disposal of the claim and hence, in the absence of the required documents it is difficult to process the claim.     

6. Even otherwise the Disablement Certificate dated 20.12.07 as submitted by the complainant does not cover his disablement as stipulated on the back of the policy itself, which will be elaborated at the time of the hearing. None of the Benefit Clause are covered as per his Disablement Certificate since firstly disablement is only 70% and that too neither it is a case of permanent total disablement for it is a case of total and irrecoverable loss as mentioned in the terms and conditions of the policy and secondly, because of the fact that Disablement Certificate itself mentioned that his condition is likely to improve and Reassessment is recommended after a period of five years which means it is not permanent in nature.
7. Under the aforesaid circumstances claim of the complainant is not maintainable and as such, the National Insurance Co. Ltd. had rightly treated his claim as No Claim.
8. The present complaint petition also suffers from Mis-Joinder and Non- Joinder of necessary parties since G.T.F.S. i.e. Golden Trust Financial Serviced being a necessary party is not brought on record as party defendant and as such, the present complaint petition is fit to be dismissed in limine.
9. Present complaint case is also not maintainable because of the fact it is barred by the law of limitation as well as on the basis of the principles of estoppels, waiver and acquiescence.

4. That during pendency GTFS has been added as Opposite Party No. 4 on the prayer of the complainant and the Opposite Party NO. 4 has too submitted his written statement stating therein submitted that Mr. Kanhaiya Prasad obtained a Group Janata Personal Accident Insurance coverage from National Insurance Company Limited, Division-III, 8 India Exchange Place, Kolkata-700001 under a Group Insurance Policy through the facilitation of Golden Multi Services Club of GTFS.
5. The said Group Janata Personal Accident Insurance Policy no. 100300/47/01/9600022/03/96/30359 was issued by National Insurance Company Limited, Division – III, 8 India Exchange Place, Kolkata-700001 in favour of Golden Multi Services Club of GTFS covering the members Mr. Kanhaiya Prasad for the period from 15.01.04 to 14.01.19 for sum insured of Rs. 5,00,000/-(Five Lac Only) Mrs. Suman Verma is the wife and the nominee of the insured member under the policy. Following points will clarify the status of the answering Opposite Party no. 4.

6. According to Memorandum of Understanding existing amongst National Insurance Company Limited, Division – III, 8 India Exchange Place, Kolkata and Answering Opposite Party Golden Multi Services Club of GTFS, it empowers Golden Multi Services Club of GTFS to extend the insurance coverage to  its member Mr. Kanhaiya Prasad under the said Group Janata Personal Accident Insurance policy. National Insurance Company Limited, Division – III, Kolkata has an exclusive right and authority to entertain process and settlement of such claim. Golden Multi Services Club of GTFS have no role to play in this regard or any authority being vested to them in so far as claim settlement/ payment of insurance claim/ delayed settlement of claim/ rejection of claim is concerned. Therefore, no liability attaches to Golden Multi Services Club of GTFS for the deficiency in service. Golden Multi Services Club of GTFS is regarded as Insured Facilitator and not as Authorized Agent or Corporate Agent of the Insurance Company for the said insurance coverage to it members without having any liability about settlement of the claim. In no way does Golden Multi Service Club of GTFS act as the Insurer nor does it step in the Insurer’s shoes. It will also be contrary to the law and against the law of the land if Golden Multi Services Club of GTFS is allowed to perform like a licensed insurer, which they cannot, allowing them to settle the insurance claim. Definitely, Insurance Regulatory and Development Authority (IRDA) would not approve of such illegal and indiscipline approach. As such, Golden Multi Services Club of GTFS is never jointly and / or severally liable to settle the claim of the claimant. The authority to settle the insurance claim is solely with the insurer (Opposite Party No. 1,2 and 3).

7. It has been reported by the complainant Kanhaiya Prasad that two criminals at the gun point while abducting his wife has  fired on him for protesting on 20.10.10 at 8:30 P.M.  at Khajur, at Pather Ki Maszid P.S.- Alamganj, Patna. The complainant Kanhaiya Prasad fell down and due to bullet injury he was initially admitted to Rajeshwar Hospital, Patna and FIR was lodged to Sultanganj Police Station on  20.10.06  at 10:30 P.M. and it was followed by normal police procedures.

8. The claimant submitted his claim and as it has been observed from the records that following receipt of the documents namely completed claim Form, Original Insurance Certificate, Copy of FIR, Discharge Summary from Rajeshwar Hospital, Original prescription from AIIMS, Delhi, Original discharge summary from Safdarganj Hospital and several treatment papers and test reports Golden Multi Services Club of GTFS have submitted those documents to National Insurance Company Limited, Division – III, Kolkata on 03.01.07 towards substantiation of the subject disability claim to Mr. Kanhaiya Prasad with a copy to the insured, A copy of the said letter dated 03.01.07 is enclosed as Annexure – A to the written statement.

9. Further, on receipt of letter dated 24.09.07 from National Insurance Company Limited, Division –III, Kolkata advising submission of further additional documents the following documents were submitted to National Insurance Company limited, Division – III Kolkata on 13.12.07. The documents namely are attested copy of Voter I-card of the insured a certificate about the incidence issued by Local Ward Member, attested copy of Handicapped Certificate, attested copy of FIR and police Final Report, Muscle Testing Chart etc. On request the Xerox copy of the proposal form bearing serial no. AA/1415274 was also submitted to National Insurance Company Limited, Division – III, Kolkata on 20.02.09, a and b to the written statement.

The crux of the problem as gathered from the records and the complaint petition is the anomaly of the income of the insured as mentioned in the proposal form and as declared subsequently by the insured. It is pertinent to note that while computing the income of the insured the insurer have not considered the agriculture income, simply considered the business income only.

To obtain benefit of the policy from the said insurance company, the complainant is running from pillar to post and being utterly frustrated and he has approached the forum for adjudication of the case.

  Settlement of the claim is beyond the scope and authority of opposite party No. 4. The sole authority to settle the claim is with Opposite Party No. 1 to 3 and none else.

We have perused the material available on the record and have also heard the Learned Counsel of the both the parties

During the hearing Learned Counsel appearing for the Opposite parties have submitted that there is no circular regarding income limit for the purpose of grant of policy in question.

Considering the material placed on the record and after hearing the parties We are of the opinion that the Opposite parties, Insurance Company has repudiated the claim of the complainant on the ground that the complainant has violated the term and condition of the policy in relation to his annual income but they failed to produce before us any documents /circular in support of their version that there was any such circular in vogue at the relevant time regarding income ceiling for grant of policy and as such We find deficiency in service on the part of the Opposite party No.1 , 2 and 3.

Accordingly We direct the Opposite party No.1, 2 and 3 jointly and severally to pay to the complainant Rs. 3,50,000/-(Three lacs fifty thousand only) on account of the complainant being 70% handicapped vide the report of Civil Surgeon, Patna  within a period of two months from the date of receipt of this order failing which the aforesaid amount will carry an interest @ 9% per annum from the date of receipt of this order till its final payment.

Further We also direct the Opposite party No.1 , 2 and 3 to pay to the complainant Rs. 10,000/-(Ten thousand only) as composite charge for compensation and litigation cost.   

Thus this complaint petition stands allowed to the extent indicated above.

        Member                                                           President