:    J U D G M E N T    :

The brief facts of the case is that Fultusi Sarkar has obtained a J.P.A policy from OP Insurance Company (vide policy No. 4751170000001/4751170030063) covering sum insured of Rs. 1,00,000/- for the period on and from 01.01.2001 to 31.12.2015 through Golden Trust Financial Services (OP 3).  The complainant / mother, Puspa Rani Sarkar is a nominee in the said policy.  The policy holder Fultushi Sarkar died on 31.12.2011 in an accident.  Post Mortem examination was held in N.R.S. Medical College and Hospital on 02.01.2012.  Thereafter the matter was informed to G.T.F.S./ OP 3.   Golden Trust Financial Services also informed the incident to OP Insurance Company and they (Sr. Divisional Manger) supplied a claim form to the complainant.  The complainant sent the said FORM duly filled up along with all relevant documents to G.T.F.S. (OP 3).  Golden Trust Financial Services also sent the said documents along with claim form to OP Insurance Company.  But OP Insurance Company kept mum.   The complainant requested on several occasions to settle the matter, but there was no response from the side of OP Insurance Company.   The cause of action arose on and from 07.12.2013 and continued day to day.  Under such circumstances the complainant claimed Rs. 1,00,000/- (sum insured) including interest @ 12% p.a. along with cost and compensation and for getting the relief, the complainant has knocked at the door of the Forum.

The OP Insurance Company contested this case by filing written version stating, inter alia, that G.T.F.S. was specifically restricted not to collect premium from category “friends”, hence, the Insurance Company specifically requested the claimant as well as the GTFS to disclose the status of the certificate holder in details along with documentary evidence.  But the GTFS has failed to do it.  Neither the GTFS nor the claimant has presented or submitted documentary proof regarding the status of the certificate holder.  As per the High Court order in reference GTFS is prohibited from collecting premium from category “friends”, hence, it is important to establish the identity of the certificate holder.  If the certificate holder belongs to category “friend” then the Insurance Company is not liable to extend the coverage to such person.  It was incumbent upon the claimant as well as the GTFS to establish the status of the claimant by way of documentary evidence to establish that they do not fall under the category “friend”.   As per investigator’s report vide No. INV/05/2015-2016 dtd.  02.06.15, it is clear that the victim/insured Fultushi Sarkar sustained burn injury on 28.12.2011 and attempted suicide with kerosene oil at Nazirpur, P.S. Tehatta, Dist. Nadia due to disturbance of family affairs, which was reflected in the declaration made by Puspa Rani Sarkar herself dtd.  25.05.2015.  The death of Fultushi Sarkar was not at all accidental but it was suicidal in nature.  So there was no deficiency in service on the part of the OP Insurance Company.  The present complainant has no locus standi to file the instant case.  So the complaint is liable to be dismissed. 

The Golden Trust Financial Services (OP No. 3) also contested this case by filing written version stating, inter alia, that as per MOU executed on 30.12.1998 by and between OP nos. 1 & 2 and OP No. 3, the JPA policy is to cover to their field workers and their family members, their investors and their family members as well as friends under the G.I. Scheme. 

As per MOU, the OP No. 3 GTFS is obliged to collect the premium from the proposer and to remit the same to OP Nos. 1 & 2.  Apart from this, there is no other liability to be borne by OP 3 as per said MOU.   The OP 3, GTFS acted bonafide and there is no negligence or deficiency in service on the part of OP GTFS. 

We have perused the complaint, WV filed by the parties, evidence on affidavit, written argument filed by the parties along with all relevant documents and case laws placed by the parties.

Now the Forum is to consider the following points:-

1. Whether the complainant is to be treated as consumer or not as per 

Consumer Protection Act 1986.

2. Whether there is any gross negligence or deficiency in service on the part of OPs or not,
3. Whether the complainant is entitled to get any relief as prayed for.

            DECISION WITH REASONS

Point No. 1.

            We have perused Annexure – 1, J.P.A. policy certificate issued by OP Insurance Company in favour of Fultusi Sarkar and as a mother, the complainant / Puspa Rani Sarkar is figured as a nominee in the said policy.  Documents on record indicate beyond doubt that the complainant happens to be a consumer as meaning of the term laid down under Section 2(d) of the Consumer Protection Act, 1986.   Point No. 1 is thus decided as per above observation. 

Point Nos. 2 &3:

            Now let us have a look to the admitted points in the case.

1. Policy is admitted
2. Death of Fultusi Sarkar is admitted
3. Nominee is admitted
4. The validity of the policy at the relevant time (at the time of death of the policy holder) is admitted.
5. The claim form along with relevant documents submitted by the complainant is admitted

There are all factual aspects of the complainant’s case and it is well settled that the admitted facts need not be proved.  Consequently the ambit of our discussion is very limited.

At the time of argument ld. counsel for the OP Insurance Company argued that the death of Fulltushi was not accidental but it was suicidal in nature which does not come within the purview of the policy coverage.

We have perused the policy certificate bearing No. 4751170000001/4751170030063 covering the period from 01.01.2001 to 31.12.15.  Fultusi Sarkar died on 31.12.2011 at 07.30 pm due to septicemia in a case of burn injury on 28.12.2011 which is clearly revealed from Death Certificate issued by N.R.S. Medical College, Kolkata 14 (Annexure – 7).  So it is clear that at the time of death of the policy holder, the policy is in force. 

Now, we have perused ‘Annexure – 8’ wherein Entally Police Station asked some questions and to that effect Nazirpur I.C., Tehatta Police Station provided replies (Annexure – 9) as against said question.  From the said reply we are satisfied that no foul play behind the death of the deceased comes in the screen of our mind.  Regarding the brief fact of the case, it is clear that during cooking time the said accident has been occurred and she received grievous injury on 28.12.2011 at night in her father-in-law’s house which is corroborating the cause of death clearly mentioned in the death certificate earlier discussed.  We have also perused post-mortem report (Annexure – 10).  From this report it is clear that the death of Fultusi Sarkar was due to the burn injury.  In the opinion column, there is a specification whether there is any indication of the wounds being homicidal, suicidal or otherwise.  It is clear from the said report that there is no such specific indication of suicide. 

We have perused a declaration of Puspa Rani Sarkar, dtd.  25.05.15 which was made after filing of the said case as the instant case was filed on 26.03.2015.  From this declaration there is no hesitation to hold that the declaration has been written by other.  It was not written by Puspa Rani Sarkar.  The said declaration has not been read over and explained in Bengali to the declarant as there is no such endorsement regarding this matter in the said declaration.  On the basis of said declaration Sri Sanjib Das, insurance investigator has prepared a report dtd.  02.06.2015.   Moreover, as per said report Gopal Pal, Sibu Sarkar and Kalachand Sarkar did not come before the Forum as witnesses for and on behalf of OP Insurance Company.  So as per our view it is a matter of after thought and it has been created for taking defence by the OP, Insurance Company.

So from the above discussion, in details, we have come to conclusion that Fultusi Sarkar died due to burn injuries which is accidental in nature and it comes within the purview of policy condition. 

Now, we turn into another point of law.

It is fact that as per MOU executed on 30.12.1998, the JPA policy is to cover their field workers and their family members, their investors and their family members as well as friends under Group Insurance Scheme.  As per said MOU, it is the duty of OP Golden Trust Financial Services to collect the premium and deposited the same with OP Insurance Company and thereafter the OP Insurance Company issued the certificate in favour of policy holder but at this proceeding stage the OP Insurance Company surprisingly raised the questions regarding status of insured which is not expected from a reputed Insurance Company like New India Assurance Company Ltd.  After the sad demise of the policy holder, it is very much unethical to raise such annoying question and this will put the complainant / claimant in an uncomfortable and distressed situation threatening the principle of natural justice, equity and fair play and which is also against the very spirit and object of JPA policy.   Thus, OP GTFS acted bonafide without fraud and deception and within the bounds of their authorities.  Moreover, it is also accepted view that after careful examination of all documents as well as status of insured, the policy is issued by OP Insurance Company in favour of insured.  In this regard we try to cite W.P. No. 13359 (W) of 2008, Monoranjan Mukherjee Vs. New India Assurance Co. Ltd. and Ors., wherein Hon'ble Justice, Sri Soumitra Pal clearly stated that it was evident from the certificate of insurance that the Insurance Company had given the certificate after being satisfied with the proposal and declaration submitted to the company.  So further queries were uncalled for.  In the lordship’s view once certificate has been issued…………………… as per the proposal and declaration submitted to the company, it cannot be reopened.  In this matter the Hon'ble Justice was pleased to direct the Insurance Company to settle the claim of the petitioner……………………. without raising any further query. 

            In Mat 918 of 2010 with CAN 6418 of 2010, the Insurance Company agreed to pay the full amount with regard to the sum assured to the tune of Rs. 5,00,000/- and also they made it clear that this order shall not be treated as precedence for any another matter before any other court.  From this fact, it is clear that it is only the submission of the OP Insurance Company in the instant case because there was no specific direction of Hon'ble Justice, Pinaki Ch. Ghosh and Sukla Kabir (Sinha) regarding not to be treated as a precedence.  In the instant case, the Insurance Company appellants herein is hereby directed to pay the admitted amount to the tune of Rs. 5,00,000/-. 

            However, regarding this matter Hon'ble National Commission has passed very speaking order in 47 pages on 27.11.2015 in revision petition No. 3095/2010, 1067/2012, 1218/2011, 16/15, 182/2011, 1847/13, 1848/13, 1902/13, 1902/15 & so on wherein the Hon'ble National Commission held that these are cases of composite negligence on the part of Insurance Company and GTFS.  It is on account of this composite negligence that the nominees of the insured are suffering.  Nevertheless, at this juncture, we do not have sufficient evidence on record to determine the extent of negligence on the part of GTFS.  It will be opened to the complainants to enforce the orders in their favour against both or any of them.

In this context it is pertinent to cite the observation of the Hon'ble Apex Court in the case of Bimal Krishna Bose, v. United India Insurance Company Limited and others, reported in III (2001) CPJ 10 (SC).  The Hon'ble Supreme Court had observed in the following manner. 

1. That the Insurance Companies are ‘state’ within the meaning of Art. 12 of the constitution of India and they are expected to act fairly and reasonably.
2. That the Insurance Companies are required to satisfy the requirement of reasonableness and fairness while dealing with customer.  They must not take any irrelevant and extraneous consideration while arriving to a decision.  Arbitrariness should not appear in their actions or decisions. 

In the light of above observation we hold that OP Insurance Company have brazenly flouted the above mentioned direction of Hon'ble Supreme Court by adopting unfair and unreasonable means to dodge the settlement of the death claim of the ill fated wretched window. 

Keeping in view of the discussion held above we find there is a clear cut deficiency in service on the part of OP Insurance Company.  But the GTFS acted bonafide without fraud and deception and within the bounds of their authority.  So there is no negligence / deficiency in service on their part as such they are not responsible in any manner what so ever for nonsettlement of the claim by the OP Insurance Company.  As the OP Insurance Company issued the policy being satisfied with the status of the insured it is under obligation to settle the claim of the complainant.  For physical and mental harassment the complainant is also entitled to get compensation from the OP Insurance Company in addition to the sum insured.  That the case succeeds.  Accordingly it is

Ordered,

             That the case CC/2015/51 be and the same is allowed on contest.  The complainant is entitled to get insured amount of Rs. 1,00,000/- along with compensation of Rs. 5,000/- for mental and physical harassment caused to her plus litigation cost of Rs. 1000/- total of Rs. 1,06,000/-.  The OPs Insurance Company are liable to make the payment of the decretal amount of Rs. 1,06,000/- within a period of 30 days since the date of passing this judgment.

            That in the event of noncompliance of this order by the OPs Insurance Company, interest @ 10% p.a. shall be charged upon the awarded amount and furthermore, that the OPs Insurance Company is bound to pay Rs. 50/- per day in Consumer Welfare Fund / Legal Aid Fund till full payment.       

            Let the copy of this order be supplied to the parties free of cost.