Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs : Raj Kumar Mondal
Date of filing of the case :10.09.2021
Date of Disposal of the case :30.05.2024
Final Order / Judgment dtd.30.05.2024
The basic fact of the case of the complainant is that the complainant husband Prasanta Biswas purchased a Group Janata Personal
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Accident Policy of NIC vide policy no.100300/47/01/9600022/01/96/31164 in his name for Rs.1,00,000/- through GTFS, Baranagar, Kolkata for the period covered from 31.03.2002 to 30.03.2017 in which the complainant is the nominee as the wife. The said Prasanta Biswas died in a road accident on 05.08.2010, Chapra P.S, Nadia and a case was started vide Chapra P.S case no.462/2010 dated 17.09.2010 u/s 279/304A/338 of IPC. After investigation police submitted C/S against the driver of the vehicle bearing no.WB52F/0607. The complainant filed claim application along with all the relevant documents to the OPs NIC but the OPs did not respond to the same. On 29.03.2021 the OPs sent one letter stating inter-alia that the complainant could not trace out the documents and again asked the complainant to send the relevant papers for settlement of the claim. The Advocate of the complainant sent all the documents to the OP No.1 on 30.07.2021. Despite sending the documents the OP No.1 did not settle the claim. The complainant has been suffering financial crisis due to not getting the insurance claim. The OPs have neglected to settle the claim which caused deficiency in service. So, the present case is filed. The cause of action arose on 05.08.2010. And thereafter, each day till the filing of this case. The complainant , therefore, prayed for an award against the OPs directing to settle the claim and pay all the insurance benefits , Rs.50,000/- towards compensation for the loss and suffering , mental pain and agony and Rs.25,000/- for litigation cost. The OPs contested the case by filing W/V. The OPs challenged the case as not maintainable on the ground that the case is bad for defect of parties, barred by limitation. The positive defence case of OP No.1 is that the policy holder died on 05.08.2010 but the complainant filed the complaint in 2021 that is after more than 10 years which is absolutely barred by law of limitation.
The positive defence case of OP No.2 Golden Multi Services Club of GTFS is that the Golden Trust Financial Services OP No.2 was not an agent of any insurer. It is a body providing certain facilities to its members. On 1st January, 2001 the GTFS entered into a MOU with the NIC with an aim that the insurance coverage under the group Janata Personal Accident Insurance Policy extended to the members of the said club upon receipt of premium from the respective members. It was agreed that in case of arising of any claim under the said group Janata Insurance Policy the responsibility and the law will be upon the insurance company and nothing else. Pursuant to the MOU the said club used to collect insurance premium from the respective insured person and deposit the same with the insurance company. The said club had very limited role. The said club used to help the members in completing the formality regarding
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the claim. The insurance company used to issue a specially designed proposal form for making insurance . The said club has no authority to settle or repudiate any claim. It acted as a facilitator for providing the insurance benefit to its members. The said club scrutinised the claim document as submitted by the claimant and forwarded the same to the insurance company. The OP No.3 is not liable to settle the claim. They have been impleaded as a parties to this case without any reason .
The positive defence case of OP No.3 is that the insurance policy was issued by NIC. The complainant raised no allegation against the OP No.3. It is not clear as to why the OP No.3 has been made party to this case. The OP No.3 has not acted as a service provider. So, the complainant does not fall within the definition of same. There is no service provider and consumer relationship between the complainant and the OP No.3. The OP No.3 has no relation with the NIC. The OP No.3 claimed that case should be dismissed for mis-joinder of party.
Point of dispute involved in the case demands for ascertainment of the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the present case is barred by limitation and maintainable in law.
Point No.2.
Whether the case is bad for defect of parties.
Point No.3.
Whether the complainant is entitled to get the relief as prayed for.
Point No.4.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1 &2.
Both the points related to the question of law and as such these are taken up together for brevity and convenience of discussion.
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The OPs challenged the case as not maintainable on the ground that it is barred by limitation and bad for defect of parties.
Ld. Defence Counsel for OP No.1 argued that it is a case of accidental benefit. The husband of the complainant died on 05.08.2010. So, the cause of action arose on and from 05.08.2010. Since then the complainant never contacted with the OPs. There is nothing to show that the complainant corresponded with the OPs for getting the accident claim . The present case is filed after 10 years of the death of husband of the complainant. So, it is barred by limitation because for accidental benefit, case has to be filed within two years from the date of death.
He further argued that the cause of action cannot arise from the date of sending letter of advocate in a case.
The complainant proved one document as annexure-2 which is a letter to the Divisional Manager National Insurance Company Limited, Division-III, Kolkata-700 001. The complainant further proved postal receipt wherefrom it is event that the complainant send the letter to the OPs NIC and GTFS on 18.07.2018. In the said letter the complainant stated inter-alia that after the death of her husband on 05.08.2010 in a road accident she went to Office of the OPs and submitted all the documents but did not receive to claim amount.
As per the Evidence Act ,if a letter is sent by registered post to the addressee of the addressee then it would be presumed that the letter has been served upon the addressee unless any contrary is proved.
The OPs could not discard the said document with valid and cogent evidence .
Thereafter, the complainant also sent a legal notice through her advocate on 24.03.2021 regarding the said claim to the NIC and GTFS. Thus the complainant took reasonable steps from time to time since the death of husband of the complainant. But there is no document to show that the OPs responded to the said intimation by the complainant. So, the complainant rightly filed the case within two years from the date of arising the cause of action.
Ld. Defence Counsel further argued that this Commission has no power to try this case as it is barred by territorial jurisdiction.
He also argued that the complainant is residing North 24 Parganas but she filed the case in Nadia.
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Ld. Advocate for the complainant counter argued that the complainant has categorically stated that she is presently residing at Kaikhali P.S Hanskhali , Nadia. So, this Commission has jurisdiction to try the case.
The argument has reasonable force . In the cause title of the complaint it transpires that the complainant categorically stated that she is presently residing within the jurisdiction of this Commission. Accordingly, the case is not barred by territorial jurisdiction.
Although , OP No.2&3 pleaded that the case is bad for mis-joinder of parties yet the Ld. Advocate did not advance any document on that point.
However, having perused the pleadings of the parties and the evidence in the case record the Commission is of the view that the case not bad for mis-joinder of parties.
Accordingly, point 1&2 are answered in affirmative and decided in favour of the complainant.
Point No.3&4.
These points relate to ascertainment as to whether the complainant is entitled to get the relief prayed for or not.
It is the specific case of the complainant that the husband of the complainant died in a road accident on 05.08.2010 for which a criminal case was started. The complainant in order to get the insurance claim of her husband informed the said incident to the OPs along with the relevant documents but they did not pay the insurance claim of the complainant.
Complainant in order to substantiate the case proved the following documents in course of trial of this case:-
Annexure-1 is the insurance policy in the name of Prasanta Biswas bearing insurance policy no. 100300/47/01/9600022/01/96/31164 for the period 31.03.2002 to 30.03.2017 for a sum of Rs.1,00,000/-.
Annexure-2 is the letter given by the complainant Minati Biswas to the Divisional Manager, NIC Limited, Division-III, Kolkata-700 001 with a copy to GTFS, Krishnagar Branch, Nadia. Two Postal Receipts which are part of annexure-2 showing the letter sent by registered post to the OP No.1&2.
Annexure-3 is the FIR regarding death of the husband of the complainant .
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Annexure-4 is the seizure list.
Annexure-5 is the report/charge sheet.
Annexure-6 is the death certificate of Prasanta Biswas.
Annexure-7 is the copy of letter of Advocate.
Annexure-8 is the Track Report.
Annexure-9 is the letter of National Insurance Company dated 29.03.2021 to the Advocate for the complainant.
The OPs could not discard any of the documents filed by the complainant and proved in course of the trial.
The complainant categorically stated in her evidence in support of her case by filing affidavit in chief. During cross examination the complainant categorically stated that the OP No.1 did not give any claim form to her regarding the said insurance claim.
The complainant further stated in cross-examination that she filed the FIR charge sheet, PM report regarding the accidental death of her husband.
The OP No.2 tried to escape the liability for payment of insurance claim on the ground stated in their written version. But the complainant categorically fastened the liability of the OP No.2 as joint and several since she stated in reply to question no.3 that OP No.2 is not an insurance company but they collected the insurance premium. During cross-examination the OP No.2 could not discard the claim of the complainant save and except put some suggestions only vide question no.4 to 12.
Ld. Defence Counsel argued that within two years of the death of husband of the complainant no claim is raised or no claim form is submitted.
The argument does not reduce the merit of the case in as much as the complainant categorically stated that the OP company did not issue any claim letter of the complainant by registered post.
Ld. Advocate for the complainant also argued that there is nothing to show by the OPs that they repudiated the claim of the complainant.
The argument has reasonable force in as much as, as per annexure no.9 the OP No.1 further issued a letter dated 29.03.2021 to
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the advocate of the complainant stating inter-alia that “we could not trace having received any documents. We would request you to kindly provide us the detail papers submitted to us for our doing the needful . Assuring you of our best services at all times.”
The said letter was issued by Divisional Manager of OP No.1 company.
The said letter has great implication . It implies that the company could not trace the document. Ld. Advocate for the complainant rightly argued that the company lost the file and then stating that it was not traced out.
The argument has reasonable force. The said letter also does not specify that the claim of the complainant was repudiated . So, the cause of action has a continuous link and the claim of the complainant is verified by this letter .
The aforesaid demeanour on the part of the OPs clearly leads to hold that the OPs have acted in a manner which tantamount to deficiency in service . That being the state of affairs and the role played by the OPs put the complainant in an uncertainty without getting her legitimate death benefit insurance claim.
Ld. Advocate for the OP No.2&3 referred to a decision reported in revision petition no.4107 of 2008 passed by Hon’ble N.C.D.R.C wherein it was held that GTFS is not liable for claim payable by NIC.
The said case law is considered.
In the backdrop of the aforesaid discussion and observation made hereinabove the Commission comes to the finding that the complainant is entitled to get the relief as prayed for.
In the result point no.3&4 are answered in affirmative and decided in favour of the complainant.
Consequently , the complaint case succeeds on contest with cost.
Hence,
It is
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Ordered
that the complaint case no.CC/72/2021 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 &3 with cost of Rs.5,000/- (Rupees five thousand). The complainant do get an award with a direction to the OP No.1 to settle the claim of the complainant covered under policy no. 100300/47/01/9600022/01/96/31164 in the name of the husband of the complainant and give all insurance benefits with an interest @ 12% p.a from the date of death till the date of payment, Rs.20,000/- (Rupees twenty thousand) towards compensation for deficiency in service , mental pain and agony. The OP No.1 is directed to supply with the award and pay Rs.25,000/- (Rupees twenty five thousand) along with the insurance benefit as passed within 30 days from the date of passing the final award failing which the entire award money shall carry an interest @8% p.a from the date of passing the award till its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(SHRI NIROD BARAN ROY CHOWDHURY)
