DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.27/2008. Date of filing of the Case: 10.04.2008 Complainant | Opposite Parties | Sikha Nandi, age 43 years Wife and nominee of Late Sachin Kumar Nandi Vill. Marnai P.S. Itahar, Dist. Uttar Dinajpur. | 1. | The Chief General Manager The New India Assurance Co. Ltd., of 8 T Mahatama Gandhi Road, Mumbai – 400 001. | 2. | The Divisional Manager The New India Assurance Co. Ltd. Howrah D.O. 512200, Madhusudan Apartment 2nd floor, P-18 Dobson Lane, Howrah – 711101. | 3. | The Branch Manager The New India Assurance Co. Ltd. Malda Branch, 21/22 Rabindra Avenue, P.O. & Dist. Malda. | 4. | The Divisional Manager The Golden Trust Financial Services, being represented by the Divisional Manager, Golden Trust Financial Services, 16 R.N. Mukherjee Road, Kolkata – 700 001. | 5. | The Branch Manager The Golden Trust Financial Service, Malda Branch, Rathbari, P.O. & Dist. Malda. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Amar Kr. Mishra, Advocate. For the O.Ps.: For O.P. No.1 none appeared. For the O.P. No2&3 Arijit Neogi, Advocate. For the O.Ps. No.4 & 5 Md. Ziaullaha, Advocate. Order No. 09 Dt. 02.09.2008 The fact of the case in brief is that petitioner’s husband subscribed one Janata Personal Accident Policy bearing No.475122000085 on 26.12.1997 with sum assured of Rs.1,00,000/- from the O.Ps. the same was and valid for 25.12.2007. The petitioner was selected as nominee of the policy. The insured died by a road accident on 28.06.2004 and over the incident FIR was lodged at Gazole P.S. & Post Mortem examination was also arranged. Subsequently the petitioner submitted her duly filled up claim form vide claim No.5122004700058 to O.P. No.2 (Divisional Manager, The New India Assurance Co. Ltd. Howrah D.O. 512200, Madhusudan Apartment 2nd floor, P-18 Dobson Lane, Howrah – 711101) through O.P. No.5. On her persuasion O.P. No.2 issued a letter dated 7.9.2004 requesting to send all necessary papers although the same was received by O.P. No.2 on 21.06.2005 through O.P. No.5. Inspite of submission of claim form with relevant document the insurance company has not proceeded to step forward to settle the matter and the petitioner lastly served lawyer’s notice on 3.8.2007 which was not honoured by the O.Ps. This gives rise to the instant petition for the reliefs as have been made in the petition of complaint. O.P. No.1 neither appears nor he is represented by any body inspite of receipt of notice and case is heard exparte. O.P. No.2 & 3 has filed joint written version and O.P. No.4 & 5 has also filed joint written version. O.P. No.2 and 3 deny the material allegations against them stating that they neither issued any claim form nor received any intimation of claim and also stated that under any circumstances this O.P. will not be involved to indemnify any liability if arose on the strength of alleged policy. Hence the claim of the petitioner is liable to be rejected. O.P. No.4 and 5 stated that since deceased Sachin Kumar Nandi obtained J.P.A. Policy from The New India Assurance Company through GTFS and since the death of Late Sachin Kumar Nandi is accidental in nature the GTFS immediately sent all the documents to the appropriate authority as per a MOU. These O.Ps. also further stated that GTFS shall not have any liability with regard to settlement of claim, if any, under the policy and the New India Assurance Co. Ltd will be solely and directly responsible in case of any claim contingent upon death, disability, injury of the insured person subject to terms and conditions, warranty and exclusion of the policy condition. Hence prayed for justice to expunge / struck down their names from the petition. On pleadings of both parties the following points have emerged for effective disposal of the case. 1. Whether the petitioner be termed as consumer? 2. Whether the services of the O.Ps. suffers from deficiency? 3. Whether the petitioner is entitled to get any relief as prayed for? : DECISION WITH REASONS: All the points are taken up together for simultaneous disposal. The petitioner has adduced evidence as P.W. – 1 claiming to be the nominee in respect of Janata Personal Accident Policy bearing No.4751220000605 of O.P. No.1 to 3 through O.P. No.4 & 5 subscribed by her deceased husband who expired on 28.06.2004 while returning to home from Gazole driving his motor cycle No.WB/60A-8982 and was dashed by a car bearing No.WMC-4425. She also stated that the JPA policy was in force till December 2007. The petitioner has filed xerox copy of the Policy (Ext.-4) which has been issued only of her payment of premium as has been settled by The New India Assurance Company Ltd. In view of above by no stretch of imagination it cannot be said that the present petitioner is not a consumer under the C.P. Act and he not is entitled to get the reliefs in respect of the sum assured of Rs.1,00,000/-. P.W – 1 has filed the xerox copies of FIR of Gazole P.S. Case No.137/04 dated 28.06.2004 u/s 279/338/304/A IPC (Exbt – 1), P.M. report on the death of insured (Exbt. – 2) where the nature of death has been opined as due to the injuries which are accidental in nature, original death certificate of Sachin Kr. Nandi issued by Chairman Raiganj Municipality of charge sheet of Police (Exbt – 5), xerox copy of filled up claim form dated 11.02.2005 (Exbt – 6), copy of letter No.17363 dated 05.08.2005 of O.P. No.-4 alongwith completed claim form and other relevant documents to O.P. No.2 for expediting the matter (Exbt – 7), letter to O.P. No.2 through O.P. No.5 dated 17.02.2007 for immediate settlement of the claim (Exbt. – 8), copy of lawyer’s letter to O.P. No.2 dated 10.08.2007 and O.P. No.5 and postal receipts of registered letters (Exbt. 10 series). It is needless to mention that insurance contracts are ‘uberrima-fibes’ are founded upon utmost good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the others. This legal position has been reiterated time and again by our Apex Court as well as by many Hon’ble High Court. In the instant case the petitioner has been examined as P.W. – 1 and has produced documents referred to hereinabove as Exbt. – 1 to 10 which go to establish that all relevant documents were submitted to The New India Assurance Company Ltd. and nothing transpires on perusal of the record about adversary against them. O.P. No.2 & 3 who represent the New India Assurance Company Ltd. have contested the case by filling a joint written version denying all material allegations and has denied to have received claim form and other relevant documents. This O.Ps. also claimed that the case is not maintainable and barred by limitation. It appears from Exbt. – 7 that claim form along with relevant documents were sent to O.P. No.2 by O.P. No.4 on 5.5.2005 and from Exbt. – A it appears that O.P. No.2 acknowledged the same on 12.9.2005 under seal & signature. It further appears from records that the petitioner submitted the aforesaid documents to O.P. No.2 through O.P. no.5 on 21.06.2005 which was also received under seal & signature. Admittedly, all the documents were submitted in a belated stage, yet there can be no definite law that all the documents must be submitted within a month. This clause is more directory and can never be mandatory as collection of all such documents from different authorities is a time consuming matter nor such any excuse has been afford by the O.P. No.2 & 3. This policy comes within the ambit of Group Janata Personal Accident Policy which necessarily means that this policy is exclusively made as and when accident takes place. In the instant case the petitioner died due to motor accident which has been evident from Exbt. 1, 2 and Exbt. 8 and has not been challenged by O.P. No. 2 & 3 in course of pleadings nor these O.P.s have adduced any other evidence in support of their written version. O.P. No. 4 & 5 contended that as per terms and conditions as well as MOU executed by and between the O.P. No.1, 2 and 3 and O.P. No.4 and 5 they are not legally bound to pay any sum insured on behalf of the New India Assurance Company Ltd. O.P. No.4 & 5 also filed Exbt. – A which manifest that the claim form and relevant documents submitted by the petitioner to O.P. No.2 & 3 through them have duly been forwarded and were accepted by these O.Ps. on 12.9.2005. As to the question of bar by limitation as contended by the Ld. advocate for the O.P. No.2 & 3 it may be said that on careful scrutiny of documents filed by the petitioner that she submitted the claim form and other documents to the O.Ps. on 21.06.2005 which was received by O.P. No.2 on 15.9.2005 (Exbt.A), subsequently after prolong persuasion issued a letter dated 17.2.2007 (Exbt.-8) for expediting the claim and ultimately issued Lawyer’s letter under registered with A/D dated 16.8.2007, the case is therefore is not barred by limitation. In view of the above facts and circumstances, there appears reason to believe that the reason for non-acceptance of the prayer of the petitioner instead of getting all documents cannot but be treated as a deficiency on the part of O.P. No.1 to 3. The case against O.P. No.1 is heard exparte, the reasons of which has been referred to hereinabove. Proper fees have been paid. All the above points are thus disposed of in favour of the petitioner. Hence, ordered, that Malda D.F. Case No.27/2008 succeeds in part on contest against O.P. No.2 to 3 and exparte against O.P. No.1 (The Chief General Manager The New India Assurance Co. Ltd., of 8 T Mahatama Gandhi Road, Mumbai – 400 001) and stands dismissed against O.P. No.4 & 5 (The Divisional Manager, The Golden Trust Financial Services, being represented by the Divisional Manager, Golden Trust Financial Services, 16 R.N. Mukherjee Road, Kolkata – 700 001 and The Branch Manager, The Golden Trust Financial Service, Malda Branch, Rathbari, P.O. & Dist. Malda). The petitioner do get award of Rs.1,00,000/- (rupees one lakh) only. O.P. No. 1 to 3 jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which the entire amount shall carry interest @10% per annum till its final realization. Failure to comply the order the petitioner will be at liberty to put the decree in execution. Let copy of this order be given to both parties free of cost at once. Sd/- Sd/- Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
