FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is a complaint case filed u/s.12 of the C.P. Act, 1986.

The complainants  are son and daughter of Late Soumen Samanta who died in a road accident on  03.09.2005. During his lifetime Soumen Samanta was one of the insured of one group Janata personnel accident policy bearing No. 100300/47/01/9600022/02/96/30376 dated 08.02.2003 for sum assured of  Rs. 2,00,000/-. The date of birth of the complainant Nos. 1 and 2 are  05.12.1997 and 08.01.1999 respectively. The complainants state that after the death of their father they were born and brought up at their uncle’s house. The complainant further states that as they were minor they did not able to claim the insured sum. On attaining majority on 05.12.2015 and 08.01.2017  the complainants 1 and 2  enquired the OP office where they were asked to send a written request for reimbursement of insured claim of Rs.2,00,000/-. The complainant sent legal notice dated 24.07.2017 which got returned to the advocate with the remarks ‘Left’. Thereafter, another legal notice dated 02.08.2017 was sent to the OP-1 requesting to reimburse the insured sum of Rs. 2,00,000/- within 10 days. The OP-1 did not respond to the legal notice. The complainants visited the office of the OP-1 several times with the legal notice dated 02.08.2017 but no response was received from the OP-1. The cause of action arose on 05.12.2015 when the complainant  No. 1 attains majority  and on 08.01.2017 when the complainant No. 2 attains majority. Since, the OP-1 did not make the payment of the insured sum to the complainants,  the complainants have no other option but to approach the commission for justice with relief as detailed in the complaint petition.  

The OP-1 has contested the case by filing WV contending inter alia that the case is prima facie barred by limitation. It is an admitted fact that the deceased expired in the year 2005 and the first intimation of death has been given in the year 2017 i.e. after 12 years. It is established position of law, in case no claim has been lodged, the cause of action starts from the date of incident which can give rise to the claim. The instant case has been filed after 12 years from  date of accrual of cause of action and that too without filing any application U/s 24A of the CP Act, 1986 praying for condonation of delay. As no earlier claim was lodged, the theory of continuous cause of action can also not be applied in this case too. Therefore, before entering into the subject matter of the case, this OP-1 submits that the present complaint is hopelessly by limitation and is liable to be dismissed in limini. The OP-1 denies all the allegation leveled against them excepting those which are established as per record. The OP-1 admits that deceased father of the complainants was covered by a Janata Personnel Accident Policy with sum assured of Rs.  2,00,000/-. Any claim is subject to certain terms and conditions of the policy. The complainants tried to establish the death of the deceased was accidental and to prove the same they have filed the copy of PMR of the  deceased insured. But the said document cannot be considered as  conclusive of dealh arising out of any accident.

The burden of proof about the accidental death lies with the complainant. For being entitled to a claim prima facie, submission of original policy bond as well as submission claim form by the nominee of the policy is essential. In the instant case only one letter by the Ld. Advocate of the complainants was submitted. In this policy itself, wife of deceased policy holder has been specifically incorporated as nominee and in absence of her,  even if for the sake of argument it is assumed though not admitted that the complainants are at all entitled to any claim, in that case too, the present complaint petition cannot be entitled in absence of nominee. Therefore, besides other available defenses, on this ground too, the present complaint is liable to be dismissed.

The OP-1 further  states that they are not at all responsible to pay any claim to the complainants and therefore, they are not deficient in rendering service and there is no unfair trade practice on their part also.  

The OP-2 has also contested the case by filing their WV contending inter alia that the said group Janata Personnel Accident policy was issued by the OP-1 in favour of Golden Multi Service Club of GTFS (Pricinpal Insured)  w.e.f 08.02.2003 to 07.02.2010 for Rs. 2,00,000/- covering Mr. Soumen Samanta also since diseased. It is pertinent to mention that the complainants are not the nominee of the policy. Unfortunately, there is no mention of the nominee or any succession certificate in favour the complainants being filed herein. It is extremely pertinent to mention that OP-2 had received only intimation of the alleged  accidental death of the policy holder on 26.09.2005. No further document was submitted to substantiate the claim. The instant case only throws wild allegations against the OPs without any evidence in support of such allegations. Nor has any petition for condonation of delay been filed to uphold such huge delay in filing this instant case. According to the memorandum of understanding in between the OPs 1 and 2, the answering OP-2 is empowered to extend the insurance coverage to it’s members and the OP-1 being the insurance company have an exclusive right and authority to entertain/process and settlement of the said claim where the OP-2 has absolutely no role to play  in this regard or any authority being vested to them in so far as claim settlement/payment of insurance/delay settlement of claim/rejection of claim is concerned. The OP-2 acts as Principal Insured cum facilitator for the said insurance coverage and not as authorized agent/corporate agent/ institutionalized agent of the insurance company for the said insurance coverage to its member. In no way, does the OP-2 act as the insurer nor does it step in the insurer’s shoes. As such, the OP-2 is never jointly and/or severally liable for the misdeeds of the insurance company alone. The authority to settle the insurance claim is solely with the insurer i.e. the OP-1. It is also pointed out that the complainants are not a consumer to the answering OP-2 as they had not retained any consideration from the deceased insured person.  The correct role of OP-2 had been meticulously dealt with by the Hon’ble NCDRC in analogous matter in General Manager, GTFS and Anr.  Vs. Anil Kumar  (RP No. 4107 of 2008) decided on 28.07.2010 and similar other cases. As such, the answering the OP-2 prays for expunging their name from the petition of the complaint keeping in view of the orders passed by the Hon’ble NCDRC.

Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OPs are deficient in rendering proper service to the Complainant?
            2)  Whether the OPs have indulged in unfair trade practice?

           3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake convenience and brevity in discussion.

We have travelled over documents placed on record. The complainants, the OP-1 and OP-2 have filed their evidence supported by  affidavit.  Replies to the questionnaire set forth by their adversaries have been filed by the Parties. BNAs have been submitted by both sides.

The fact of the case is that complainants’ father Soumen Samanta since deceased obtained a group Janata Personnel Accident Insurance Coverage  from the National Insurance Co. Ltd. being the OP-1 under a group Insurance Scheme through the facilitation of Golden Multi Services Club of Golden Trust Financial Services being the OP-2.  The said group Janata Personnel Accident Insurance Policy was issued by the National Insurance Co. Ltd., in favour of Golden Multi Services Club of GTFS (As the Principal Insured) w.e.f. 08.02.2003 to 07.02.2010 for Rs. 2,00,000/- covering Soumen Samanta since deceased. Soumen Samanta expired on 03.09.2005 as per death certificate produced. As per the terms and conditions of the policy the death claim amount is payable to the nominee of the said policy as per record.  Smt. Jharna Samanta being the wife of deceased Soumen Samanta is recoded as registered nominee of the said policy. The said fact is admitted by all the parties involved herein. As per section 39 of Insurance Act,  1938 the insurer gets a valid discharge of its liability under the policy by making the payment  to the recorded nominee. Here in the present case, the insured member Soumen Samanta expired on 03.09.2005. But no intimation of death was submitted to the OP-1 Insurance Company by the nominee Smt. Jharna Samanta. It is learnt from the record that the whereabouts of Smt. Jharna Samanta is not available since the death of the insured Soumen Samanta. The first official intimation was sent to the OP-1 through legal notice dated 02.08.2017 i.e. after a lapse of almost 12 years from the date of death. The death intimation should be submitted within one months from date of death and fulfillment of terms and conditions of the policy is a condition precedent for being entitled to a claim as per the terms and conditions. Admittedly, the claim intimation has been given for the first time in August 2017 i.e. after a period of  12 years from the date of deceased insured.  The OPs 1 and 2 have pointed out that the case is hopelessly barred by law of limitation.  Section 24A of the CP Act, 1986  in the matter of limitation speaks as under.:-

“ Limitation period.- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub – section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the  State Commission or the National Commission, as the case may be that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

 The limitation period is absolutely unchanged under section 69 of the prevailing  C.P. Act of 2019. As per the said section we do not find any document or any application with proper explanation why such huge delay of filing the case will be condoned by the commission.

The Judgment of Civil appeal No.4962 of 2002 decided on 10.07.2009 by the Hon’ble Supreme Court of India is very much relevant.

As per conditions of the policy :

“Upon the happening of any event which may give rise to a claim under 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 event which may give rise to a claim under this policy, give written notice to the company with full particulars of the claim.

In the instant case, there is no trace of the recorded nominee and since the missing is more than 07 years the usual legal formalities for obtaining Presumption of Death Certificate has not been completed. Even no action has been taken by the legal heirs of the deceased insured Sourmen Samanta  in the matter of submission of succession certificate without which the insurance company cannot settle the claim. In that respect, the judgment in AIR 1999 Supreme Court 3252 under Civil Appeal No.  4913 of  1997 decided on 19.08.1999 is relevant wherein the Hon’ble Court has observed that “the insurance policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with statutory limitations or terms  of the policy expressly set out therein. ”

On perusal of the records, we do not find the above essential documents submitted by the complainants to the OP Insurance Company. Submission of legal notice with death certificate only does not confer any right to claim the benefits of the policy. It is absolutely a pre condition to fulfill the terms and conditions of the policy  which is strictly binding on both sides.   Moreover, OP-2 has acted as a facilitator in obtaining the policy and there is no financial transaction  in between the complainants  and the OP-2 and there is no legal compulsion of settlement of death claim on the part of the OP-2 for which there is no active role on the part of the OP-2 to play in the matter of settlement of the impugned death claim. Hence, the case deserves to be dismissed against them.

In the light  of the above observation, we are of the opinion that the complainants have not established the case against the OPs.

All the points under determination are answered accordingly.

In the result, the Consumer Complaint  fails.

Hence,          

Ordered

That the complaint case be and the same is dismissed  on contest against the OPs without any cost.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties