DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, MALDA,

MALDA D.F.ORIGINAL CASE No.47/2007.

Date of filing of the Case: 21.08.2007

For the Petitioner :   Krishnagopal Das & Tapan Kr. Roy, Advocates.

For the O.P.s              Arijit Neogi, Advocate for the O.P. Nos. 1 & 2.

                                    Tarit Ojha, Md. Ziaullah & Nilkantha Kundu, Advocates

for O.P. Nos. 3 & 4

Order No. 12   Dt. 18.12.2007

             The husband of the petitioner who was a poor rustic village people subscribed a Group Janata Personal Accident Insurance Policy which was insured by O.P. Nos. 1 & 2 for a sum of Rs.1,00,000/- through Golden Trust Financial Service (O.P. Nos. 3 & 4).  On 24.09.2005 the husband of the petitioner suddenly fell down from the tree when he was cutting firewood for which he was shifted to Kaliachak Hospital and thereafter to Malda Sadar Hospital.  But on 26.09.2005 at 3 A.M. he died on way to Kolkata.  On the basis of that an U/D case No.16/2005 dt.26.09.2005 was started at Kaliachak Police Station.  The information of death was given to the Insurance Company through Manager, Golden Trust Financial Services, who in his turn informed the insurance company and submitted the filled in claim form to the authority but her claim has not yet been disbursed for which the petitioner, being the wife of the deceased has filed the present case for the reliefs made out in the petition of complaint.

          O.P. Nos. 1 & 2 contest the case by filing a joint written version denying material allegations contending inter-alia that the claim is completely based on imagination and also fabricated for unlawful gain.  The case is also barred by limitation and hence the petitioner is not entitled to get any reliefs as prayed for. 

          Both O.P. Nos. 3 & 4 contest the case by filing a joint written version stating therein that Md. Amirul Sk. since deceased obtained a Personal Accident Insurance Coverage under Group Janata Personal Accident Policy being Policy No.100300/47/01/9600022/01/96/30198 corroborating the statements of the petitioner appearing in the original petition of complaint stating further that the Post Mortem report is clear about the cause of death which is ante-mortem in nature and the final investigation report has corroborated the statement of the Autopsy Surgeon that there was no foul play behind the death of Md. Amirul Sk. which is accidental in nature and all the documents were sent to the appropriate authority immediately after the receipt of the same but the prayer has not yet been granted.

          On pleadings of both parties the following points have been emerged.

1.                 Whether the petitioner is a ‘Consumer’ in terms of Sec.2(1)(d)(ii) of the Consumer Protection Act.?

2.                 Whether the service of O.Ps. suffers from any deficiency ?

3.                 Whether the petitioner is entitled to get any relief as prayed for ?

:DECISION WITH REASONS:

Point No.1

          ‘Consumer’ means any person who hires services for consideration.  ‘Service’ means service of any description which is made available to potential users and includes provision of facilities in connection with the insurance as defined in clause (O) of Sub. Sec.1(i) of Sec. 2 of the Act.  The definition, however does not stop at that.  It proceeds further to bring within its ambit of second category also viz. any beneficiary of such services.  The definition is thus, an inclusive and extensive one designedly it brings within its scope not only the person who has the privity of contract with the person hiring out the services, but also subsequent beneficiaries thereof, even though the later may not be a party to the original contract or have a direct nexious thereof.  In the true spirit of consumerism the Act. has not confined itself to the original hirer alone, but equally extends it to the subsequent beneficiaries of the services as well. 

          In the instant case Md. Amirul Sk. subscribed one policy of Rs.1,00,000/- wherein Salima Bibi (Bewa) has been shown as nominee and the relationship between the two appears therein as husband and wife respectively vide Ext.2.  This being the position, the present petitioner, the wife of deceased Amirul Sk., can be safely concluded coming within the ambit of Sec.2(1)(d) (ii) of the C.P. Act. which disposes of the present point in the affirmative.

Point No.2

          The pertinant question requires to be disposed of at the stage is whether the services of the O.Ps. suffer from deficiency. 

            In the instant case the petitioner has been examined as P.W. – 1 and in course of her cross-examination with regard to O.P. Nos. 3 & 4 the petitioner appears to have stated that all the documents were submitted to G.T.F.S. who in their turn has submitted those documents before the authority and nothing transpires on perusal of the record about any adversary against them.

            Now this Forum intends to deal with any deficiency of O.P. Nos. 1 & 2  [1)The Divisional Manager, National Insurance Company Ltd., Division – III, 8, India Exchange Place, Ground floor, Kol-1 and 2)The Divisional Manager, National Insurance Co. Ltd., Malda Division, 93, A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda].  It appears that the petitioner has filed the Claim Form (Ext.1) which manifests that the same has been sent by the Superintendent, District Hospital Malda dated 23.02.2006.  The accident is also stated to have taken place on 24.09.2005.  This Ext.1 also indicates that Md. Amirul Sk. was first admitted in Kaliachak Hospital and after transferred to Malda Sadar Hospital. 

          The important question which has vehemently been challenged on behalf of O.P. Nos. 1 & 2 is that the documents have been submitted at a belated stage.  This Forum finds much substance in submission of the Ld. advocate on behalf of O.P. Nos. 1 & 2.  True it is that the policy claim form (Ext.1) which is one of the annexures of the documents were submitted before the G.T.F.S. is dated 11.02.2006.  Admittedly, a policy claim form has been sent by the Supdt. District Hospital Malda  on 23.02.2006 for which this Forum has reason to believe that the present petitioner being a rustic village woman found no other alternative but to wait for submission of the relevant documents to G.T.F.S. for a long time and as such she had to wait for a long time to submit documents and ultimately finding no other alternative she had to submit all the documents to G.T.F.S. on 11.02.2006 without inclusion of Ext.1 and this Ext. 1 could be obtained by the petitioner after submission of the documents before G.T.F.S. but it is a known fact that in absence of claim form any document relating to death does not carry any value and this claim form has been signed by Supdt. on 23.02.2006. 

          In view of above, delay in submission of the documents by the present petitioner before the G.T.F.S. appears to be justifiable. 

          One important point which cannot be overlooked at the stage is the submission of the Ld. advocate on behalf of the O.P. Nos. 1 & 2 which relates to F.I.R. (Ext.9).  Notice has been drawn of the Forum on behalf of the O.P. Nos. 1 & 2 that date of accident has been shown as 24.09.2005 but in the F.I.R. the date and hour of death has been shown as 25.10.2005 at about 3 P.M.  Much stress has been laid on behalf of both the O.Ps. on both the dates referred to hereinabove and a discrepancy has also been shown on behalf of the above O.Ps. that the place of death has been shown as near Pagla Bridge on way to Kolkata but why the body was kept at the residence of the deceased has not been explained and what was the necessity of collecting one certificate   from Kaliachak – II Gram Panchayet (Ext.8) ?

          In this connection this Forum thinks it sufficient to say the date of death shown in the F.I.R. (Ext.9) has been scribed by one Police Officer and not by any relative or a person who lodged F.I.R. at Kaliachak P.S. because the copy of the informant’s statement appearing in Ext-9 specifically discloses that the accident took place on 24.09.2005  and this complaint has been lodged by non else than the father of the deceased himself and as such discrepancy about the death of accident as contended on behalf of O.P. Nos. 1 & 2 does not appear to be tenable.

          May it be that Md. Amirul Sk. expired near Pagla Bridge which also corroborates the informant’s statement appearing in Ext-9 showing therein that his son expired near Pagla Bridge while proceeding towards Kolkata.

          The post mortem report ( Ext-6) also discloses that the inquest papers were obtained on 26.09.2005 and on the self-same date at about 2-40 P.M. an autopsy was commenced. The said Ext-6 at Page 6 in Item No. 5(ii) also discloses that the immediate cause of death is the effect of ante-mortem injuries and septicemia.

          It cannot be denied on the part of the O.P. Nos. 1 & 2 that the prayer of the petitioner for payment about Rs. 1,00,000/- has not been fruitful. It may also be remembered in this connection that insurance is a matter of contract between the parties and the period within which all documents are required to be submitted is 30 days as has been envisaged in the conditions; but we have mentioned hereinbefore in our many orders being fortified with salutary observations that this condition is directory but not mandatory  because the insurance company has the intention to dispose of such matter within a very short period so as to make speedy disposal and to minimize the harassment of the insured person.

          This policy comes within ambit of Group Janata Personal Accident Policy which necessarily means that this policy is exclusively made as and when any accident takes place.  In the instant case there can be no denial of the fact that the husband of the present petitioner fell from the tree while cutting fire woods as has been disclosed in the informant’s statement in the F.I.R. and that has not been denied on behalf of either of the O.P. Nos. 1  & 2.

          Consequently there appears reason to believe that the reason for non-acceptance of the prayer of the petitioner cannot but be treated as a deficiency on the part of the O.P. Nos. 1 & 2 which disposes of the present point in the affirmative.

          Ld.advocate on behalf of the O.P. Nos. 1 & 2 has submitted one observation of our Apex Court appearing in [ 2007 (60)AIC 146 (SC) ]. In this connection be it noted that the Provision of Sec. – 3 of the C.P. Act is somehow unique in its nature and despite pointed question cannot trace or refer to any identical provision extending thereto any other statute and the above section specifically provide that the Provisions of the Act especially in addition to and not in derogation of the provisions of any other law for the time being enforce.

          In the instant case the petitioner has filed the complaint under the provision of C.P. Act seeking appropriate relief and the complainant suffering damage is entitled to seek  appropriate relief under the Act.

          In the above view of the matter the Act being in assistance with other Acts and not in derogation of any other law for the time being enforce this Forum is of considered opinion that in the facts and circumstances the observation referred to hereinabove does not appear to be applicable being distinguishable from facts & circumstances of the present case.

Point No. 3

          In the result the case succeeds.

          Proper fees have been paid.

Hence,                                              ordred

that Malda D.F. Case No. 47/2007 succeeds in part on contest against O.P. Nos. 1 & 2 [1)The Divisional Manager, National Insurance Company Ltd., Division – III, 8, India Exchange Place, Ground floor, Kol-1 and 2)The Divisional Manager, National Insurance Co. Ltd., Malda Division, 93, A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda] and stands dismissed on contest against O.P. Nos. 3 & 4 [ 3)The Manager The Golden Trust Financial Services, S.B. Mansion, 16, R.N. Mukherjee Road, Kolkata – 1. 4)The Manager, The Golden Trust Financial Services, (Near State Bank of India, Rathbari Branch), P.O. Rathbari, N.H. – 34,  P.S. Englishbazar, Dist. Malda.]

            The petitioner do get award of Rs. 1,00,000(Rupees One Lac Only). O.P. Nos. 1 & 2 [1)The Divisional Manager, National Insurance Company Ltd., Division – III, 8, India Exchange Place, Ground floor, Kol-1 and 2)The Divisional Manager, National Insurance Co. Ltd., Malda Division, 93, A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda]jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which the petitioner be at liberty to take recourse to law.

          Let a copy of the order be given to both the parties free of cost.

Sd/-                                                                               Sd/-

Sumana Das                                                                  S.K. Chakraborty

Member                                                                         President

D.C.D.R.F., Malda                                                          D.C.D.R.F., Malda