The Complainant has filed this case under Section 35 of the Consumer Protection Act 2019 against the O.P’s. and praying for following relief / reliefs :-

1. Direction against the O.P’s. to pay Personal Accident Benefit Compensation amounting to Rs. 15,00,000/-

( Rupees Fifteen Lakhs) Only.

2. Interest from 01.05.2021 till date.
3. Amount for mental torture and cost of complaint.
4. Any other relief or reliefs.

BRIEF FACTS OF THE COMPLAINT

1. The Complainant is a citizen of India by birth and resident at North Baman Para,  Ward No. 20 of Jalpaiguri Municipality, P.O. – Kharia, P.S. – Kotwali, Dist- Jalpaiguri, Pin- 735102.
2. That the son of the Complainant namely Shibu Das while on 22.04.2021 at about 12.30 a.m. was returning from Ram Navami Mela to his house at Ashrampara, Jatwswar, P.S.- Falakata, Dist.- Alipurduar, Pin-735216 riding by his new Motor Cycle vide No. W.P- 70-P-6372 and when he reached near TVS Showroom at that time the offending vehicle vide no. WB74Y1617 dashed the victim’s motorcycle bearing No. WP-70-P-6372 and he fell down on the left side of Pacca Road as a result of which he sustained grievous injury on his head and rest part of body and he was taken to Falakata Hospital and the M.O. of the said Hospital referred him to NBMC, Siliguri but he was treated at Greenage Hospital Pvt. Ltd. at Siliguri while he died on 01.05.2021.
3. That on 19.05.2021 the Complainant had lodged a Police Case with  the Police of Falakata Police Station being No. 210/2021 dated on 19.05.2021 u/s 279/304A of IPC.
4. That  , Shibu Das has died due to accident while he was riding his motor cycle bearing No. WB-70-P06372 having valid Policy No. OG-21-2404-1826-00008928 valid upto  18.02.2022 and the Motor Cycle was driving by Shibu Das himself having Driving License bearing No. WB-5920160931004 valid up to 16.12.2036 and thereby the Complainant is entitled the sum of Rs. 15,00,000/- ( Rupees Fifteen Lakhs) Only towards Personal Accidental Benefit due to the death of owner himself .
5. That due to demise of Shibu Das the Complainant lodged a P.A. Claim Application through online in customer care number vide No. 1800-102-5858 for the compensation of Rs. 15,00,000/-            ( Rupees Fifteen Lakhs) Only of P.A. cover by her one relative who has been living at Jalpaiguri who operate the claim application through her mobile and she had given there a mobile No.9093179500 for contact her in last week of May 2021 and in the meantime due to second weave of the COVID-19 period the Office of the O.P. were working through by only few staffs and after lodging such P.A. Claim Application she waited for the same that the Office will sent investigator in her house but nobody came to her house and on several occasions she met in the Division Office at Siliguri.
6. That the Complainant lodged a claim within period through customer case ( Number Vide No. 1800-102-5858)  in the last week of May 2021 and the process showed success but the Company did not work due to Second weave of COVID-19 and at that time of registration of claim application she did not take any receipt copy from the on line process from her relative and after lodging such Complaint she went to the Division Office of the O.P’s Company who stated that investigator of the  Company will visit her house but till to date only one time they sent investigator from their office in the month of March 2023 but did not pay the  claim amount .
7. That the Complainant also submits that her husband is suffering from various ailments after demise of their only son and she is also suffering from various ailments  and unable to visit any office and she as being  an illiterate lady she know nothing about the process of disbursing the Personal Accident Benefit Compensation due to the death of the owner of the vehicle  and she was waited about two years after lodging intimation through the customer care.
8. That the Complainant went to the Division Office of the O.P’s. at Siliguri when they stated that the investigator will go to her house but till March 2023 nobody visit her house for investigation and in the Month of April 2023 the investigator went to her house for enquiry , but till 22.05.2023 the Complainant did not get any compensation.
9. That on 23.05.2023 she made a fresh complaint through off-line to the General Manager, Head Quarter Pune Bajaj Allianz General Insurance Company Ltd, Bajaj Allianz House, Air Port Road, Opposite of Gunjan Theaters Yerwarda, Pune, Maharastra – 411006  through Speed Post dt. 24.05.2023 which was duly received by the Manager on 30.05.2023 but no action was taken by the O.P’s.
10. That on 25.07.2023 the Complainant send a Demand Notice through her Ld. Advocate requesting the O.P’s. to pay the personal accident benefit compensation due to the death of the owner of Rs. 15,00,000/- along with interest 9 % from the date of death till making payment and the said Demand Notice was duly received by the Manager on 30.07.2023 but no action had been taken by the O.P’s.
11. That Shibu Das had died due to accident while he was riding his Motor Cycle bearing no. WB-70-P-63-72 having Valid Policy No. OG-21-2404-1826-00008928 which was valid up to 18.02.2022 and he had valid Driving Licence bearing no. 5920160931004 valid up to 16.12.2036 and that’s why payment of Rs. 15,00,000/- for Personal Accident benefit due to the death of owner himself is mandatory.
12. That in the last week of 2021 the Complainant lodged a complaint through online customer care being in number 1800-102-5858 according to that the cause of action started and cause of action is continuing after filing off line demand on 23.05.2023 by the Complainant and said cause of action is still continuing since 25.07.2023 when the Ld. Advocate sent demand notice to O.P’s.

In support of the Complaint the Complainant has filed the following documents:-

1. Certified copy of Formal and Written F.I.R.
2. Certified Copy of Charge sheet No. – 386/2022 dt. 20.06.2022.
3. Certified Copy of Seizure List Dated on 08.07.2021.
4. Certified Copy of Seizure List Dated on 08.03.2021.
5. Insurance Policy No. – OG-21-2404-1826-00008928 valid up to 18.02.2026 & own damage and P.A. Cover till on 18.02.2022.
6. Receipt of R.T.O. No. – WB69D21020000866/ WB21021979841033 dated of receipt – 20.02.2021.
7. Driving License of my son vide no.- WB5920160931004 VALID UPTO 16.12.2036.
8. Post Mortem Report of my son,
9. Death Certificate of my son vide registration no. D- 202219-90176-000087 Dt. 08.01.2022.
10. Voter Card of my son vide no. RIY1892801.
11. Aadhaar Card of my son vide no- 463623438937.
12. My Voter Identity Card vide no. – RIY1892777.
13. Claim Application dated – 23.05.2023 with Postal receipt no. EW916587226IN dated 24.05.2023 and delivery status Report.
14.  Advocate Notice dated 25.07.2023 with Postal receipt no.- EW916495860 IN dated 26.07.2023 and delivery status report.

Notice was served upon the O.P’s. and on receiptof notice both the O.P’s have appeared before this Commission through Vokalatnama, filed their Written Version , denied all the allegations of the Complaint. In the Written Version the O.P’s. have stated the Complaint is not maintainable either in law or on facts and this Commission has no jurisdiction to entertain, determine the instant Complaint as the provisions of Consumer Protection Act is not attracted against the O.P’s.

In the Written Version they have also stated that non - compliance of claim or if the Insurance Policy is hit by breach of contract, then in that case civil case is only competent forum to adjudicate the matter in accordance with law / the Complainant has suppressed the actual fact in its complaint / there is no cause of action against the O.P’s. and as such Complaint is liable to be dismissed / the Complainant has filed this case against the O.P’s. with an ulterior motive to derive unlawful pecuniary gain basing upon falsehood / the point of maintainability must be decided at the first instance before considering the merit of a case / the Complaint is frivolous, vexatious and harassive and the instant Complaint is not maintainable against the O.P’s. In the Written Version the O.P’s have stated that the statement made in Para No. 2 to 4 of the Complaint are matter on record and the Complainant is bound to prove the same by producing relevant documents and it is admitted fact that the insured Shibu Das got his vehicle bearing No. WB-70-P-6372 insured with the said O.P. vide Policy No.og-21-2404-1826-00008928 which was valid for the period from 19.02.2021 to 18.02.2023 with PA Coverage for Owner-Driver for sum Insured of Rs. 15,00,000/- but the same is subject to Policy Terms and Conditions / the statement made in Para NO. 5 to 11 of the Complaint are disputed by the O.P’s and the statement made in Para No. 12 the O.P. has no knowledge about the same / no cause of action arose against the O.P’s at any point of time since the Complainant has never lodge any claim to the Insurance Company either Personal or through any other means and as such there was no deficiency of service on the part of the O.P’s towards the Complainant and the Complainant is not entitled to get any relief or reliefs as prayed for in Para No. 14 of the Complaint. It is also stated in the Written Version of the O.P’s that as per general rules and policy terms & conditions in the event of any incident and / claim, the intimation should be given in writing to the insurance company immediately. It is also stated in the Written Version that in the present case the Complainant if being the nominee was required to lodge the claim intimation towards the P.A. Coverage, to the insurance company along with relevant documents namely Claim Form, Driving License of the deceased insured, Registration Certificate, F.I.R., Charge-Sheet, Post Mortem Report, Driving License of the deceased and nominee’s I Card etc. For processing for them but no such procedure was followed by the Complainant. It is also stated in the Written Version by the O.P’s that in a case of death – claim the nominee has to lodge the claim intimation personally along with all relevant documents as required by the Insurance Company for processing the claim but in the case in hand the Complainant has neither lodged any claim to the Insurance Company at any point of time nor she has submitted any such documents so that the claim could have been registered and processed by the Insurance Company and the accident occurred on 22.04.2021 but the Complainant lodged the F.I.R. to the Police Station being Falakata P.S. Case No. 210 /2021 dated 19.05.2021 i.e. after a delay of 27 (Twenty Seven) days whereas as per the Policy Terms & Conditions, in the event of any incident, loss or damage, the intimation should be given in writing to the concerned Police Station immediately and there is a significant delay in intimation which is breach to the Policy Terms & Conditions. The O.P’s. have also stated that this is not a case that the Complainant has lodged the claim along with the Claim Form and provided all the required relevant documents to the Insurance Company and had repudiated the same and in the instant case since the Insurance Company did not received any claim intimation from the end of the Complainant by any means and hence neither any claim was registered by the said O.P. nor any claim could be processed. The OPs have also stated in their written version that, the claim under the policy becomes admissible and payable subject to the Terms and Conditions and Definitions contained in the policy and neither the Complainant nor the OP Insurance Company can go beyond, bypass and ignore the scope and benefits as per law and there was no negligence/ no breach of contract or violation of any such policy terms and conditions. It is also stated by the OPs that, the claim of the Complainant is not at all admissible and / or payable by the OPs as per the terms and conditions of the policy in question/ the Complainant herself has violated the policy conditions and that’s why she could not take advantage for the wrong committed by herself and thereby there was no cause of action as alleged by the complainant. It is further stated in the W/V that, the question of providing service comes only after the policy condition precedent and satisfied by the insured/ complainant/ Consumer which is mandatory binding upon both the parties’ i.e Complainant and OP. Both the OPs have also stated that the instant complaint is frivolous/ vexatious and harassive which is neither maintainable nor tenable in law nor on facts. By filing the writtenversion the OP praying for dismissal of this case.

Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version, Documents filed by the parties the following points are taken to be considered by this Commissioion.

Points for consideration :-

1. Whether the Complainant is a Consumer?
2. Whether the case is maintainable under the Consumer Protection Act 2019?
3. Whether there is any deficiency in service on the part of the O.P’s. as alleged by the Complainant?
4. Whether the Complainant is entitled to get the relief as prayed for ?      Decision with reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainant was given liberty to file evidence in support of her complaint. In order to prove the case the Complainant has filed Written Deposition in the form of an Affidavit. In the Written Deposition the Complainant has specifically corroborated the contents of the Complaint. It is further stated in the Evidence that the son of the Complainant namely Sibu Das was the owner of the Motor Cycle being no. WP 70- P 6372 which had valid insurance policy being no. OG 21-2404-1826-00008928 valid up to  18.02.2022. The Complainant has also stated in the written evidence that, her son Sibu Das had valid driving license bearing no. WB5920160931004 which was valid upto 16.12.2036 and as the Motor Bike was having the effective Insurance Policy and she is entitled to get death benefit of Rs. 15,00,000/- towards personal accident benefit due to death of owner of the Motor Cycle having effective insurance policy. Not only the Complainant herself but also another witness namely Putul Pramanik has corroborated the case of the Complainant by adducing evidence before this Commission. In the written deposition the Complainant herself has stated that, immediately after the death of her son she raised claim for personal accident benefit due to the death of her only son and the claim was raised against the OPs and on several occasions she visited the office of the OP No. 1 but till today they make no payment towards the personal accident benefits.

At the time of argument, Ld. Advocate of the Complainant argued that, they have already filed Brief Notes of Argument to prove the case of the complainant. He further argued that, the Complainant has been able to prove her case against the OPs not only through the evidence of PW 1 & PW 2 but also by filing several documents including the insurance policy, driving license, written FIR claim application, death certificate to prove its case. Ld. Advocate of the Complainant has further argued that, despite receiving the claim application along with required documents, the OPs had not disburse the personal accident benefits in favour of the Complainant which is clear indication of deficiency of service on the part of the OPs as well as unfair trade practice.

At the time of hearing of argument, Ld. Advocate of the Complainant referred the decisions of :

1. I (2023) CPJ 147 (WB)
2. IV (2023) CPJ 54 (SC)
3. II (2022) CPJ 157
4. II (2022) CPJ 455

To falsify the case of the Complainant the OPs were given liberty to produce their evidence. The OPs have also filed written evidence in the form of an affidavit wherein they have denied the allegations of the complainant. In the written evidence the OPs have stated that, the Complainant did not file the claim application regarding personal accident benefit for the death of her son before the OPs within time and the Complainant herself as well as the deceased Sibu Das have violated the policy terms and conditions and that’s why the Complainant is not at all entitled to get the personal accident benefit. In the written evidence the OP has further corroborated the statements made in their written version.

At the time of hearing of argument, Ld. Advocate of the OP’s have stated that, they have already filed their Brief Notes of Argument where they specifically stated that, the Complainant has violated the policy terms and conditions and Complainant being the nominee of the insurance policy she required to lodge claim intimation towards the personal accident coverage to the insurance company along with documents like claim form, Driving License of the deceased- insured, Registration Certificate, FIR, Charge-sheet, Post Mortem Report, Identity card of the nominee for processing the insurance claim but in the instant case the Complainant did not comply the terms and condition of the policy by supplying those documents. It is further argument of the OPs that, in case of death claim the nominee has to lodge a claim application personally along with the documents mentioned in the policy terms and condition but in the instant case the Complainant has neither raised any claim nor filed documents to the OPs for settlement of accident claim. It is further argument of the OPs that, the incident of the accident occurred on 22.04.2021 but the Complainant lodged the FIR with the Police of Falakat Police Station on 19.05.2021 being Falakat PS Case No. 210/21 which was delays for 27 days and the delay in intimation is nothing but the breach to the Policy Terms and condition and since the insurance company did not receive any claim intimation from the side of the Complainant and neither the claim was registered with the OP that’s why there is no question of repudiation of the same. At the time of argument, Ld. Advocate of the OPs have also argued that, the Complainant has not been able to prove the case against the OPs and the Complainant is not  entitled to get any relief as prayed for.

Having heard the Ld. Advocate of both the sides and on perusal of the entire record including the evidence of the parties it is admitted fact that, the son of the Complainant namely Sibu Das was owner of a Motor Cycle having effective insurance policy. It is also admitted fact by both the parties that, the insured Sibu Das met with an accident on 22.04.2021 when he reached near TVS Showroom the offending vehicle bearing no. WB 74 Y1617 dashed the Motor Cycle of that Sibu Das and as a result of which he died. It is also admitted fact that, Sibu Das got his vehicle bearing no. WB 70 P 6372 insured with the OP vide policy no. OG -21-2404-1826-00008928 valid for the period from 19.02.2021 to 18.02.2023 with PA Coverage for owner driver for the sum insured of Rs. 15,00,000/-. It is also admitted fact that, the Complainant being the mother of the deceased Sibu Das was the nominee of that insurance policy. The OPs have also admits that, the Complainant has lodged a police case being Falakata PS Case no. 210/2021 dated 19.05.2021.

Only dispute in this case is that, the Complainant is claiming that due to her ignorance of law as well as due to pandemic situation of COVID 19 she was not able to initiate the claim for getting personal accident claim from the OPs within time but she lodged the claim and submitted all the relevant documents and she is entitled to get the relief as prayed for.

On the other hand the dispute of the OPs is that, the Complainant being the nominee of the deceased insured requires to submit claim application along with all relevant documents for processing the claim in respect of PA Coverage but the Complainant neither raise any claim application in proper format nor she submitted documents requires for settlement of the claim.

Now let us see, how far the Complainant has been able to prove the case against the OPs or not And whether the OPs have been able to falsify the case of the Complainant or not?

From the record it is proved that, the Complainant is none but the mother of the deceased insured Sibu Das. The Complainant has also been able to prove the fact that, her son Sibu Das was the owner of the Motor Cycle having its effective Insurance policy with the OP Insurance Company having personal accident coverage. The Complainant has also been able to prove the Registration Certificate of the Motor Cycle of her deceased son as well as insurance policy certificate, death certificate in support of the claim. From the evidence of the Complainant it is also proved that, she annexed all the relevant required documents for processing the PA Coverage when she filed her evidence including the Certified copy of Formal FIR, Written FIR, Seizure List dated 08.07.2021, 08.03.2021, charge sheet being no. 386/2022 dated 20.06.2022, Insurance Policy Certificate, Driving License of the deceased Sibu Das, Post Mortem Report, Death Certificate, Voter ID Card as well as Adhar Card of Deceased Sibu Das, Complainant’s own Voter ID, along with claim application dated 23.05.2023 & Postal receipt, Advocate Notice dated 25.07.2023. From the record it further reveals that, when the Complainant has proved all those documents there was no challenge on the side of the OPs either through cross examination of witness by putting questionnaires or through production of relevant documents before this Commission. It is also not denied on the side of the OPs that, they did not receive the claim application dated 23.05.2023 nor they denied the receipt of Demand Notice dated 25.07.2023 which was sent to the OPs through the Ld. Advocate of the complainant. It was settled provisions of law vide decision of I (2023) CPJ 147, regarding delay in intimating the Insurance Company cannot be good ground to deny the claim of Insured- Incident is very genuine one- repudiation of claim of the Complainant is not at all correct and proper.

It is also settled provisions of law vide decision of IV (2023) CPJ 54 (SC) wherein it was held that, “Rejecting Genuine claim on purely technical grounds in a mechanical fashion will result in  policy holders losing the confidence in Insurance Industry. “

It was also held vide decision of II (2022) CPJ 157 that “It would be just and proper to require opposite parties to settle the claim of the appellant on the basis of documents which were attached with the complaint at time of filing with District Forum “.

In the case in hand, the Complainant has proved by adducing evidence that, she has raised a claim application previously as well as on 23.05.2023 with the OP Insurance Company. She has also been able to prove that,  at the time of filing her instant  complaint as well as at the time of filling evidence the Complainant has filed all the relevant documents required for processing the claim of PA Coverage.

Considering all, we are of the view that, the OPs have tried to thwart the case of the Complainant by adducing evidence as well as by filing Brief Notes of Argument but they have failed to falsify the case of the complainant. On the other hand the Complainant has been able to prove the fact that, there was deficiency of service on the part of the OPs. In the instant case both the OPs are liable to pay the awarded amount jointly as well as severally.

Hence it is therefore,

                                                     ORDERED

That, the instant Consumer Case being No. 66/2023 is hereby allowed on contest but in part. The OPs are directed to pay a sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs) Only to the Complainant towards PA Coverage for the death of Sibu Das. The OPs are also directed to pay a sum of Rs. 30,000/-(Rupees Thirty Thousand) only to the Complainant towards compensation as well as for causing mental pain, agony and harassment to the complainant. The OPs are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the Complainant towards the cost of legal proceedings and the OPs are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) in the Consumer Legal Aid Account of this Commission.

The OPs are directed to pay the awarded amount to the Complainant within 45 days from this day failing which the Complainant will have the liberty to take steps against the OPs as per law.

Let a copy of this Order / Judgement be given to the parties free of cost.