DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO.08/2007 Date of filing of the Case: 02.02.2007 Complainant | Opposite Parties | Sri Kalipada Roy ( 46 years) Son of Late Hataru Roy, Resident of Village-Nayapara, Post Office & Police Station- Gazole, District – Malda. | 1) | The Divisional Manager, National Insurance Co. Ltd., Division III, 8, India Exchange Place, Gr. Floor, Kolkata – 700 001. | 2) | The Divisional Manager, National Insurance Co. Ltd., Malda Division, 93-A, Rabindra Avenue, 2nd Floor, P.S.-Englishbazar, P.O. & Dist. - Malda | 3) | The Manager, The Golden Trust Financial Services, S.B. Mansion, 16 R.N. Mukherjee Road, Kolkata – 700 001. | 4) | The Manager, The Golden Trust Financial Services ( Near State Bank of India, Rathbari Branch), PO-Rathbari, N.H.-34, P.S. Englishbazar, Dist. Malda | | | | | | |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member | 3. | Shri A.K. Sinha, Member |
For the Petitioner : Tapan Kr. Roy, Krishna Gopal Das, Advocates For the O.P.s : For O.P. Nos,.1 & 2 Arijit Neogi, Maloy Bharati, Advocates For O.P. Nos.3 & 4 Md. Ziauallah, Tarit Ojha Advocates Order No. 12 Dt. 24.05.2007 In brief the petitioner’s case is that his son Bablu Roy who was subscriber of J.P.A. Policy for Rs. 1 Lack died in a motor accident on 21.03.2003 for which a complaint was lodged at Gazole P.S. on the basis of which Gazole P.S. Case No. 55/2003 dt. 21.03.2003 under section 279/304(A) IPC was started and Charge Sheet has been submitted bearing No. 92/2003 dt. 30.06.2003. Petitioner being the father and nominee of his son since deceased has filed the present complaint alleging that he submitted the claim form alongwith all relevant documents to the Manager, Golden Trust Financial Services ( O.P. No.4) on 12.01.2004 and all these documents have been received by O.P.No.1 at a subsequent stage but after lapse of longtime the O.P. No. 2 (Divisional Manager, NIC Ltd, Malda Division) intimated vide Letter No. 150700 /Tech/D.O.III/JPA/2006 dt. 24.05.2006 about appointment of one investigator and a copy of the same has been sent to the complainant but since then no steps have been taken by the Insurance Company to make payment to satisfy his legitimate claim, giving rise to the instant proceeding of the reliefs as have been mentioned in the petition of complaint. O.P. Nos 1 & 2 contest the case by filing a joint written version challenging the identity of the petitioner himself and delay in filing the relevant documents and that the petitioner cannot be termed as ‘Consumer’ and express their doubt about the place of occurrence and in such circumstances they have prayed for the dismissal of the petition of complaint. O.P. Nos 3 & 4 contest the case by filing a joint written version admitting therein about opening of one J.P.A. Policy with the National Insurance Company Ltd. by the deceased Bablu Roy through G.T.F.S. which was valid for a period from 31.03.2002 to 30.03.2017 and G.T.F.S. on receipt of the Claim Form sent all relevant documents to the N.I.C. and O.P. Nos. 3 & 4 had no other responsibility and pray for exemption from the present case. On pleadings of both sides the following points are required to be disposed of:- 1. Whether the petitioner is a ‘Consumer’ in terms of Sec. 2(1)(d) of the C.P. Act.? 2. Whether the service of the O.P. suffers from deficiency? 3. Whether the petitioner is entitled to get any reliefs as prayed for? Point No. 1 According to Section 2 (1)(d) of the Consumer Protection Act a person who hires any service for consideration may be defined as a ‘Consumer’; and ‘Service’ means ‘Service’ of any description which is made available to potential users and includes the provisions of facilities in connection with the insurance as defined in Clause (O) of Sub-section (1) of Section 2 of the Act. In the instant case petitioner has filed the xerox copy of the insurance certificate bearing Policy No. 100300/47/01/9600022/01/96/31164 which covers the period from 31.03.2002 to 30.03.2017 ( Ext-1) and therein Kalipada Roy, the present petitioner has been shown as nominee and the relationship between the deceased and the present petitioner is the son and the father. Thus having regard to the facts and circumstances of the case there can be no dispute that Bablu Roy since deceased hired the services of the Insurance Company and the present O.P. Nos: 1 & 2 must make its services available to the potential user who, in this case is the father of the deceased who has been named as nominee in Ext-1. Thus the petitioner comes within definition of ‘Consumer’ which disposes of the present point in the affirmative. Point No.2 O.P. Nos. 1 & 2 have challenged the identity of the petitioner. Ld.advocate on behalf of the O.P. Nos. 1 & 2 ( to be addressed as O.P.s hereinafter) submits that according to xerox copy of the FIR (Ext-A) the father of the deceased has been shown an ‘Late’ which has subsequently been deleted and in Charge Sheet also (Ext-8) the present petitioner has been shown as ‘LT’ at its page 4. Thus, taking assistance of these documents viz. Exts –A & 8 it has seriously been urged on behalf of the O.P.s that a dead man cannot file such a petition of complaint. In this connection this Forum has gone into the testimony of the petitioner himself wherein he has claimed himself to be the father of Bablu Roy, since deceased. The Forum has also taken into consideration the second page of the F.I.R. (Ext-5) wherein the name of the father of Bablu Roy has been shown as Kalipada Roy and the word ‘Late’ does not appear therein. That apart, Certificate of Death issued by Gazole Gram Panchayet, Malda (Ext-6) also specifically states that Kalipada Roy is the father of deceased Bablu Roy. In this connection the certificate dt. 28.05.2003 issued by Supdt. of District Hospital, Malda and the Post.Mortem Report (Ext-10 & 11) also specifically indicate that Kalipada Roy is since alive who has been shown as the father of Bablu Roy since deceased. In the facts and circumstances stated hereinabove that the challenge of the present petitioner about his identification by the O.P.s does not find any leg to stand on and it can safely be concluded that the present petitioner has not left the world till date, nor he is ‘late’. These O.P.s have alleged that the documents have not been placed before the authority within the specified time. True it is that according to the petitioner himself the documents were submitted before the G.T.F.S on 12.01.2004 and Ext – 3 indicates that on 04.07.2004 all those documents were sent to the Sr. Divisional Manager, NIC, Division III by the O.P. No. 4 and accordingly, there can be no denial of the fact that there was delay in submission of the relevant documents before the appropriate authority. Now the question arises as to whether such delay is condonable or not. After going through the documents and the testimony of the petitioner himself this Forum is satisfied that the petitioner is merely bit literate and a rustic village man and he is supposed to have taken much time for collection of relevant documents from the different authorities as is evident from the official stamp of different departments appearing in the exhibits including the copies of the F.I.R., Charge Sheet etc. which have been Exts 3 to 11. In view of above can it be said that there is serious lapse on the part of the petitioner to file the documents before the authority and if that be so can it be a valid ground to deprive the petitioner from getting his legitimate claim ? Having heard both sides this Forum has hereinbefore observed that though there was delay in submission of all relevant documents yet considering his status as village man and bit literate and the period covered for collection of relevant documents from different authorities this lapse of time for submission of the Claim Form and other documents seem to be condonable. True it is that the relevant condition appearing on the overleaf of the insurance certificate appearing in Item No.1 refers to the time within which such documents are to be submitted wherein the period has been mentioned as one calendar month but in this connection we should take into consideration the very purpose of inclusion of the above clause. To us it appears that the purpose of getting intimation within one calendar month is to give sufficient time for making scrutiny of the claim to avoid delay. The full particulars are insisted for the effective scrutiny of the claim the phraseology used in the above clause also give some latitude provided there is sufficient reason for late reporting. Be it noted herein that no penalty is provided for the above after the claim is not intimated within one calendar month. Therefore, this Forum is of considered opinion that the condition with regard to time limit is not mandatory; it is directory. This clause is meant for the interest of the insured in order to facilitate scrutiny of the claim. This clause, therefore, cannot be used in detriment to the interest of the insured. Accordingly, it cannot be said that as the documents have not been submitted within the time specified therefor, the claim does not appear to be entertainable . The submission on behalf of the O.P.s seems to be based on no valid ground. The third point which has been raised on behalf of the O.P.s is the place of occurrence. In support of his contention ld.advocate on behalf of the O.P.s has referred to Ext-2. It is the xerox copy of the claim form and the place of occurrence has been shown therein as Gazole Petrol Pump; but this place shifts when in the F.I.R. the P.O. has been shown as Rangovita, NH-34, in front of Teesta Hotel. In this connection we find opportunity of enter into Ext-5, second page of which specifically states that while proceeding towards Teesta Hotel the incident took place over NH-34 and may it be that there was existence of one petrol pump but there can be dispute that the incident took place and definitely within the periphery noted in Page – 2 of Ext-5 resulting death of Bablu Roy in motor accident who was the son of the present petitioner and accordingly, allegation about the shifting of the place of occurrence does not seem to be reasonable. In the present case complainant has lodged complaint alleging that the service of the O.P. Nos 1 & 2 suffers from deficiency. Be it mentioned herein that any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of service undertaken to be performed amounts to deficiency. After taking into consideration the submission by the ld.advocate on behalf of the O.P.s discussed hereinabove in details let us know to see whether the service of the O.P.s suffers from deficiency. It appears that the present petitioner as father of Late Bablu Roy was given a copy of Letter No. 150700/Tech/D.O.I I I/JPA/2006 dt. 24.05.2006 which was addressed to one Mr. Ajoy Chatterjee, Investigator, Malda, appointing him as Investigator to investigate the claim which has been referred to earlier for the assured sum of Rs. 1 Lack A/c(L) Bablu Roy. This document has been marked Ext-4 a perusal of which clearly and unambiguously manifests deficiency in service by O.P. Nos. 1 & 2, lest all the documents while received by the O.P. No.1 sent through G.T.F.S. vide G.T.F.S. No. 32640 dt. 31.07. 2004 why the matter of investigation was taken up by Insurance Company at such a related stage, i.e. after lapse of about two years ? Thus having given our anxious consideration over the matter and the exhaustive discussion held hereinabove there appears no ambiguity but to consider the service of the O.P. Nos. 1 & 2 suffers from deficiency. This point is thus disposed of. Point No.3 It appear that the O.P. Nos. 1 & 2 have filed one xerox copy of affidavit filed by one Smt. Rita Roy, wife of Late Bablu Roy who has claimed a portion of the amount as legal heir of his husband, since deceased. It appear from the testimony of the petitioner himself as PW-1 that his son Bablu Roy was married with Smt. Rita Roy who has sworn the affidavit and in that view of frank admission of the petitioner and taking into consideration that Smt Rita Roy is aged merely 20 years and noting has been shown that she has since been re-married, on her better protection and security this Forum thinks it prudent to allow a portion of the amount to be paid to Smt. Rita Roy. Accordingly, after due consideration of the matter Smt. Rita Roy is allowed Rs. 20,000/- to be paid from the total amount of Rs. 1 Lack. In the result the case succeeds. Proper fees have been paid. Hence, Ordered that Malda D.F. Case No.08/2007 is allowed on contest for Rs. 1 Lack against Divisional Manager, National Insurance Company Ltd. 8, India Exchange Place, Ground Floor, Kolkata – 700 001. and the Divisional Manager, National Insurance Company Ltd., Malda Division, 93A, Rabindra Avenue, 2nd Floor, P.S. Englishbazar, P.O. & Distt. Malda(O.P. Nos. 1 & 2) and stands dismissed as against O.P. Nos. 3 & 4. Out of Rs. 1 Lack the petitioner do get award for Rs. 80,000/- and Smt. Rita Roy do get award for Rs. 20,000/-. Both the O.P. Nos.1 & 2 do pay the aforesaid quantum of money jointly and severally to the above noted persons within 30 days from date failing which the amount shall carry interest @ 9 % p.a. till its final realization. In the peculiar circumstances of the case there will be no order as to cost. Let a copy of this order be given to both the parties free of cost. Sd/- Sd/- Sd/- Sumana Das A. K. Sinha S.K. Chakraborty Member, 24.05.2007 Member, 24.05.2007 President, 24.05.2007 D.C.D.R.F., Malda D.C.D.R.F., Malda D.C.D.R.F., Malda | 
