West Bengal

Paschim Midnapore

CC/82/2012

RASHMI METALIKS LTD - Complainant(s)

Versus

The General Manager, The New India Assurance Co. Ltd - Opp.Party(s)

16 Apr 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No. 82/2012                                                         Date of disposal: 16/04/2013                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff: Mr. T. K. Mandal.

    For the Defendant/O.P.S.                          : Mr. M. K. Chowdhury.

           RASHMI METALIKS LTD., represented through its authorized signatory Sri Mukut

           Moni Ghosh S/o-Late Muktesh Ghosh of P.O.-Shyamraipur, P.S.-Kharagpur(L), Dist-

           Paschim Medinipur………Complainant.

                                                              Vs.

1. The General Manager, The New India Assurance Co. Ltd., Regd & H.O.-87, Mahatma Gandhi Road fort, Mumbai-400001
2. The Divisional Manager, The New India Assurance Co. Ltd., Inda, Kharagpur branch, P.S.-Kharagpur, Dist-Paschim Medinipur …………………Ops.           

By filing the present complaint the complainant has prayed for reimbursement of Rs.3,46,447/-(three lakh forty six thousand four hundred forty seven) from the Ops. in terms of Insurance policy no.512602/36/09/01/00000004 dated 05/05/2009 and further prayed for compensation and litigation cost from the Ops.

The case of the complainant, in a nutshell, is that the petitioner purchased the aforesaid policy on 05/05/2009 having the period of validity from 05/05/2009 to 04/05/2010. The complainant undertook the expansion works of its shade by employing global construction as contractor whose employee Dipankar Pillay met with in accident on 04/06/2009 while he was working for the complainant and died on the same date. The matter was informed to the local P.S. The complainant initiated a claim before the Ops. and on their request the complainant had lodged a claim on 31/07/2009 alongwith all necessary documents as required by the Ops. In the meantime the dependants of deceased. Dipankar Pillay lodged a complaint before the Commissioner, Workmen’s Compensation, West Bengal and vide order dated 28/08/2009 passed in case no.FAC/2/2009, the commission directed the complainant to deposit a sum of Rs.4,23,580/-(four lakh twenty three thousand five hundred eighty)  as compensation on account

Contd………….P/2

 

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of death of Dipankar Pillay. The complainant then forwarded the award to the Op-Insurance Company to make necessary payment to the dependents of deceased Dipankar but the Op-Insurance Company after applying their structured formula fixed   their liability of payment of Rs.3,46,447/-(three lakh forty six thousand four hundred forty seven) and informed about it to the complainant who, in his turn moved the Commissioner Workmen’s Compensation, West Bengal and vide order no.3026 dated 09/08/2010 the commissioner workmen compensation made recalculation and fixed the amount at Rs.3,46,368/-(three lakh forty six thousand three hundred sixty eight) for being paid to the dependant of deceased Dipankar Pillay towards compensation and accordingly the complainant paid the entire amount. Thereafter vide letter dated 30/11/2010 the complainant requested the Op-Insurance Company for reimbursement of such amount but the Op-Insurance Company without giving any importance into the matter and after lapse of considerable period of time, repudiated the claim of the complainant on the ground that the claimant (contractor’s employee) had covered under this policy, so we are unable to settle the claim. According to the complainant such repudiation on the part of the Op-Insurance Company was improper, unjust, and illegal.

The Ops. contisted the case by filing a written objection. The Ops. did not deny the Insurance Policy as mentioned by the complainant in his claim application. The specific contention of the Ops. was that the proposal form submitted by the complainant did not contain any proposal to cover the Insurance of the complainant’s contractor’s employee. Since Dipankar Pillay was an employee of the contractor engaged by the complainant his case was not covered by the Insurance policy. So the Ops. prayed for dismissal of this case.

It is now for our consideration as to how far the claim of the complainant entertainable.

 

Decisions with reasons:

           It is undisputed in this case that the complainant had purchased a workman’s compensation claim policy under policy no.512602/36/09/01/00000004 dated 05/05/2009. It is also undisputed that one Dipankar Pillay, a worker of the contractor engaged by the complainant for the purpose of a expansion of a shade, died while working for the complainant. The moot question to be considered in this case is that whether the complaint is entitled to get reimbursement of the amount which he paid towards compensation on account of death of Dipankar Pillay.

           The Op-Insurance Company repudiated the claim on the ground that Dipankar was contractor’s Employee and not covered under the policy. The Insurance policy in question shows that against the coloum of description of Employee, it has been mentioned that As per list attached. But neither of the parties could file any such list. To clarify the matter this Forum vide

Contd………….P/3

 

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its order dated 04/10/2012 directed the parties to file the list as noted in the proposal form as well as in the policy, by swearing affidavits. In compliance of that order, on the next fixed date i.e. on 01/11/2012, the complainant filed an affidavit duly sworn by him but the Op-Insurance Company did not file any affidavit till conclusion of the hearing of this case. In the affidavit filed on behalf of the Op-Insurance Company it appears that the policy in question was insured policy and as per terms of the policy there was no provision of giving the names of any employee, be it of the company or the contractor. It is also stated in the affidavit that the unnamed policy has been framed by the Insurance Company for the benefit of the contractors’ labourers also to avoid unwanted incident. The complainant specifically mentioned in the affidavit that the Insurance Company shall not be able to produce any ‘named policy’ end they will also not be able to show that any list of employees was given at the time of execution of the policy. Such statement could not be contradicted on behalf of the Op-Insurance Company by affidavit. Not only that, they also failed to file any affidavit incompliance of the order passed by this Forum which has already been mentioned. Such circumstances definitely lead us to hold that the policy in question was unnamed policy and the contractors employees who were working for the complainant were also included in the policy.

                 Next, it is very vital to note that vide letter dated 29/10/2010 issued by the Op-Insurance Company to the complainant, the Op-Insurance Company referred to the discussions held between them on 21/01/2010 and categorically admitted that as per workmen’s compensation structure formula, the liability of the Op-Insurance Company in the case of death of Dipankar Pillay shall be Rs.3,46,447/-(three lakh forty six thousand four hundred forty seven). After such acknowledgement in writing, the Op-Insurance Company can not refute its liability because the liability has clearly been admitted.

              Therefore upon consideration of the facts and circumstances of this case and the materials on record, we are of the view that the complainant is entitled to reimburse the amount from the Ops. which the complainant paid towards compensation to the dependents of deceased Dipankar Pillay as per order of the Commissioner Workmen’s Compensation, West Bengal.

               Now, the complainant in this case has claimed reimbursement of Rs.3,46,447/-(three lakh forty six thousand four hundred forty seven). The petition of complainant well as the other materials on record show that as per order of the Commissioner Workmen’s Compensation, West Bengal the complainant had deposited Rs.3,46,368/-(three lakh forty six thousand three hundred sixty eight) so the complainant is entitled to get the  reimbursement of that amount apart from the litigation cost.     

    Contd………….P/4

 

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                            Hence

                                       ordered            

                                                    that the case succeeds on contest.  The Ops. are hereby directed to pay Rs.3,46,368/-(three lakh forty six thousand three hundred sixty eight) and litigation cost of Rs.4,000/-(four thousand) to the complainant within 45 days from the from this date in default the total amount shall carry interest at the rate of 9% p.a. from the date of filing of this case till realization of the entire amount.

                  Parties be supplied with copy of this judgement free of cost.

Dic.& Corrected by me.

                                                         I agree               I agree                      

              

         President                                Member            Member                       President

                                                                                                                  District Forum

                                                                                                         Paschim Medinipur.