DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, MALDA,

MALDA D.F.ORIGINAL CASE NO.07/2007

Date of filing of the Case: 02.02.2007

For the Petitioner :  Rajib Acharya, Tapan Joardar, Mukul Kr. Dey, Advocates

For the O.P.s        :   For O.P. Nos. 1 & 2 Md. Ziaullah, Advocate

                                    For O.P. Nos. 3 & 4 Archan Kr. Pramanik, Advocate                            

Order No.09      Dt. 11.05.2007               

            The petitioner’s case, in brief, is that she, being the mother of her deceased son, Dulal Ghosh who died on 26.09.2003 by an accident caused by blasting of an oil tanker, files this case. Her son Dulal Ghosh during his lifetime made one Janata Personal Accident Policy of Rs. 50,000/- with National Insurance Company Ltd. through G.T.F.S. and mother Santana Ghosh was the nominee. After the accidental death of the insured she approached O.P. Nos. 3 and 4 through O.P. Nos 1 and 2 to settle the claim and to that effect she filed the claim form alongwith all relevant documents but inspite of repeated requests her claim has not produced any fruitful results, giving rise to the instant proceeding for the reliefs as have been made out in the petition of complaint. 

GTFS ( O.P. Nos. 1 & 2) contest the case by filing a joint written version contending therein that they are not necessary parties and also that the service of the O.P. Nos. 1 & 2 suffers from deficiency and in such circumstances the prayer is for expunging their names.

O.P. Nos. 3 & 4  jointly contest this case by filing a joint written version denying therein material allegations contending inter-alia that the death of the insured was an accidental death and the negligence on the part of  the petitioner to submit application after about 15 months of the instance has permitted the present O.P. s to repudiate the claim of the present petitioner  and hence the petition of complaint is liable to be dismissed with cost.

On pleadings of both parties the following points arise for effective disposal of the case.

1)Whether the petitioner is a ‘Consumer’ as defined in Section 2(1)(d) of the C.P. Act ?

2)Whether the service of the O.P.s suffers from deficiency ?

3)Whether the petitioner is entitled to get any reliefs as prayed for ?  

:DECISION WITH REASONS:

Point No.1

           Section 2(1)(d) of the Consumer Protection Act defines the word ‘Consumer’ as a person who hires any services for  consideration.

        ‘Service’ means ‘Service’ of any description which is made available to potential users and includes the provision of facilities in connection with the insurance as defined in Clause (0)  of Sub-section (1) of Section 2 of the Act. In the instant case the petitioner has filed the xerox copy of the insurance certificate  bearing Policy No. 100300/47/41/9600022/01/96/00398 which covers the period from 08.01.2002 to 17.01.2017 bearing Serial No. 290900 (Ext-1)wherein the present petitioner Smt. Santana Ghosh has been shown as nominee and the relationship shown therein is that the present petitioner is the mother of deceased Dulal Ghosh.

        Thus, having regard to the facts and circumstances of the case there can be no dispute that the complainant has hired the services, on death of her son of The National Insurance Co. Ltd. in connection with the insurance, for a consideration. There can be no dispute that the Insurance Company makes available its services in connection with the insurance of potential users. Thus, the complainant has become the ‘Consumer’ within the meaning of the Act which disposes of the present point in the affirmative.

Point No. 2

            The complainant has lodged complaint that the services of the Insurance Company suffers from deficiency. Any fault, imperfection, shortcoming or negligence in the quality, nature, manner of purpose of service undertaken to be performed amounts to deficiency.  O.P. Nos. 3  & 4 have urged before the Forum that after lapse of 15 months from the date of death the petitioner has filed the documents and their argument is based on two grounds, viz. that there was delay in filing the present case before the authority and that the death, alleged to have taken place, is not accidental.

            Now this Forum intends to take up the second point at the very outset for its discussion.  In this connection this Forum has gone into the xerox copy of the F.I.R. and the Charge Sheet(Ext 2  & 3 respectively) a perusal of which reveals that the accident took place on 26.09.2003 and one criminal case was lodged u/s 304 (A) / 338 I.P.C., that apart, the petitioner has filed the Post Mortem Report (Ext-7) wherein the immediate cause of death has been written as “ Combined effect of ante-mortem injuries and burns as stated above and also the external injuries appearing therein as lacerated injury over sculf, lacerated injury on left leg, burn over face, and some other external injuries vide Ext-7.” The claim form which has been duly signed by Supdt. District Hospital, Malda on 14.08.2004 also reveals that the portion and malleable injuries were the cause of death of Dulal Ghosh ( Ext-5). The petitioner has also filed the certificate of death (Ext-4). The written complaint which is a part of Ext-2 also states that during repairment of one tanker when being welded by mechanic Dulal Ghosh it suddenly burnt resulting death of mechanic Dulal Ghosh  on the spot. It is true that the F.I.R. and the Post-Mortem Report are necessary only to prove accident.  It is not mandatory that there should be necessarily F.I.R. or Post Mortem Report and if accidental death is proved otherwise than in the absence of F.I.R. or otherwise the claim should not be rejected. In the instant case we have discussed the documents referred to hereinabove and in that view of the matter there cannot be any reason to create suspicion  in the accidental death of the insured. In the instant case the death of the insured was only due to the accident, thus this case is fully covered under the policy and therefore, the claim of the O.P.s that the accidental death should not be taken into consideration in the instant case is not valid ground to cause delay in settlement  of the claim of the present petitioner. 

In addition to what has been stated above, the next point is that  the documents including the claim form has been submitted at about 15 months after death of the insured are sufficient to disentitle the petitioner to satisfy the claim.

            In this connection ld.advocate on behalf of the O.P. Nos. 3 & 4 has referred to the second page of Ext –1 which is the policy issued by the N.I.C. in respect of the deceased Dulal Ghosh and has drawn attraction of the Forum that upon the happening of any event which may give rise to the policy the insured forthwith give notice thereof to the Company. Unless reasonable cause is shown the insured should within one calendar month after the incident which may give rise to the claim under the policy, give written notice to the Company with full particulars of the claim.

            In the instant case it should not be out of place to mention that the petitioner is a rustic village woman; even she does not know to write her name as is evident from the Vokalatnama and the LTIS appearing in each page of the petition of complaint itself. Such woman is likely to depend on other to collect all relevant documents from different authorities including the copies of the F.I.R. Complaint, Charge Sheet, Certificate of Death, signature of the authority in the Claim Form and the Post Mortem Report ( Exts. 1 to 7 except Ext – 6). In view of above whether submission of the Claim Form after lapse of about fifteen months can be a reasonable ground to deprive the petitioner from getting her legitimate claim ?

            We have heard ld.advocate on behalf of both sides. According to the submission of the Insurance Company the petitioner has no valid and legal reason to submit such relevant documents after lapse of about 15 months. We have given our anxious consideration to the submission advanced on behalf of O.P. Nos. 3 & 4. It may be said that Insurance Company cannot repudiate the genuine claim of the insured simply on the ground that there was no communication about accident within a period of one calendar month. The relevant condition appearing on the overleaf of the Insurance Certificate with the captioned conditions with Item No.1 may be referred to in this connection which has been referred to beforehand. But 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 have 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 would also give some latitude provided there is sufficient reason for late reporting. There is no penalty provided in the above clause if 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 prompt scrutiny of the claim. This clause, therefore, cannot be used in detriment to the interest of the insured, therefore, the action taken in this case on the part of the Insurance Company is not at all justified.

            On consideration of the above facts and circumstances stated hereinabove this Forum has reached the conclusion that the service of the O.P. Nos 3 & 4 ( of the National Insurance Co. Ltd. ) suffers from deficiency which disposes of the present point in the affirmative.

            Golden Trust Financial Service ( GTFS) are, in no way, be held responsible.

 Point No. 3

            In the result the case succeeds.

            Proper fees have been paid.

Hence,                                                Ordered

that Malda D.F. Case No. 07/2007 is allowed on contest against National Insurance Co. Ltd. (O.P. Nos: 3 & 4) and dismissed on contest as against G.T.F.S.(O.P. Nos:1 & 2).

            Petitioner do get award of Rs. 50,000/-. The Divisional Manager, National Insurance Company Ltd., Malda Division and the Divisional Manager, National Insurance Company Ltd., Division III, jointly and severally do pay the aforesaid quantum of money within 30 days from date failing which this amount shall carry interest @ 9 % p.a. after expiry of 30 days hence till realization of the decreetal amount.

            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                         Member                               President

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