Sri. Apurba Kr. Ghosh.........President.

The complainant has filed this case U/S 11 & 12 of Consumer Protection Act 1986  against the OPs and praying for the following relief/order:

1. Direction against the OPs to pay a sum of Rs. 3,00,000/- to the complainant towards the claim amount as well as for harassment, mental agony etc.
2. Direction against the OPs to pay cost of legal proceedings.
3. Any other relief/reliefs to which the complainant is legally entitled.

BRIEF FACT OF THE COMPLAINT

1. The son of the complainant namely Shanti Arja was a valid policy holder of Group Janata Personal Accident Insurance Policy before the OP’s in which the complainant is a nominee.
2. The Son of the complainant had policy being in Certificate No. 0477737 and Serial No. 01227007/010000010729, branch office at Siliguri for personal accident from the period of 08/06/2001 to 07/06/2016 (Annexure-A).
3. The Son of the complainant met with an accident on 21.04.2016 while  he has going towards Chapar on the NH-31, near Barkanda Peoples’ Academy H.S. School  under Nayahat Out Post  and was died (Annexure-B).
4. The Police of Nayahat Out Post District Dhupri also supported and issued death related documents in respect of death of the Son of the complainant (Annexure-C series).
5. That after death of the Son of the complainant death claim was made before the OP no. 1  when they said as the matter is connected with the OP no. 2 they will inform the complainant after taking permission from the OP no. 2.
6. That on several occasions the complainant requested the OP no. 1 but of no result and on 21.06.2018 the complainant demanded to entertain the application of claim but the OP’s take no initiative (Annexure- D).
7. The OP no. 1 did not accept the claim application and took no initiative towards process.
8. That the cause of action of this case arose on 21.06.2018 when the application for claim was made, thereafter when the last intimation was given before the OPs and then on each & every day when the complainant demanded for claim which is still continuing.
9. The OP’s have intentionally harassed and denied to disburse the claim of the complainant which is a deficiency in service.

In support of the complaint the complainant has filed the following documents:-

1. Xerox copy of  the insurance receipt (Annexure-A).
2. Xerox copy of the Nayahat Gaon Panchayat death certificate (Annexure-B).
3. Police Station papers (Annexure-C)
4. Application dated 21.06.2018 (Annexure-D).

Notice was issued from this Commission upon the O.Ps.  On receipt of notice both the OPs have appeared before this Commission through Vokalatnama. The OP no. 1 filed written version, denied  all the allegations of the complainant. In the written version  the OP no. 1 has stated that the instant case is bad in law and the complainant has filed this case on some false allegations. The OP no. 1 has also stated that in the year 1998 two MOU were executed between the OP no. 1 & OP no. 2 on 29.07.1998 for Mediclaim  and on 30.12.1998 for personal accident and two group insurance policy were  issued  in favour of Golden Trust by the New India Assurance Co. Ltd. The New India Assurance Co. Ltd.  was the insurer and Golden Trust Finance Services was the insured. It is further stated that the premium was collected and remitted to the insurance company by the Golden Trust periodically and in respect of the premium the certificate was issued in the name of New India Assurance Co. Ltd. to each such persons by GTFS  and the Insurance Company  issued a letter dated 07/05/1999 addressed to the insured Golden Trust Financial Service for cancelling the MOU. It is further stated by the OP no. 1 that, the accident Insurance Policy contains a cancellation clause in clause- 5 stating that the company may cancel the policy at any time by giving notice in writing and in that case the insurance company shall return to the insurer the then last paid premium less a pro-rata thereof for the portion of the current insurance period which shall have expired and the insurance company vide letter dated 01/08/2002 cancelled the long term JPA policy of more than 1 lac, period of insurance  more than five years. The OP  No. 1 has further stated that neither the GTFS nor the complainant has provided documentary proof regarding the status of the certificate holder. The OP no. 1 has also stated that the certificate holder expired on 21.04.2016 which is denied that the certificate holder had suffered an accidental death the documentary evidence regarding the status of certificate holder was never submitted and the complainant has no right to claim from the OP and the complainant is not entitled to get any relief.

The OP no. 2 on receiving the notice appeared before this Commission but subsequently did not turned up to contest this case. By filing the written version the OP no.1 praying for dismissal of this case.

Having heard the Ld. Advocate of both the sides and on perusal of the complaint, written version, documents of the parties the following points are to be considered by this Commission.

Points for consideration

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the Complainant was given liberty to file evidence. The complainant has adduced evidence by fling examination in chief in the form of an affidavit. The complainant has also files documents by a firisti. In the written deposition the complainant has corroborated the contents of her complaint. In the deposition she specifically corroborated on which day her son purchased the policy, who issued the policy certificate, the tenure of the policy, its number, date of death of her son, cause of his death and also corroborated that she demanded the death claim from the OP’s but they make not payment.

The OP No. 1 by filing written version as well as by filing written notes of argument claims that the complainant has no cause of action to file this case and the OP no. 1 is not liable to pay the death claim amount to the complainant.

During argument the Ld. Advocate of the complainant argued that the complainant  has been able to prove the case against the OP’s and they are liable to pay the death claim to the complainant as per prayer of the complaint.

By filing written notes of argument the OP no. 1 claims that the complainant has failed to prove the case against the OP no. 1 and by suppressing the material facts the complainant has filed this case. Ld. advocate of the OP no. 1 in the written notes of argument has stated that the Hon’ble High Court has been pleased to restrained the GTFS not to collect any premium from friend category and it was the responsibility of the OP no. 2 to comply the direction and ensure that no premium was collected from the category of friend, otherwise the act of GTFS would be deemed as illegal and cannot bind the OP no. 1. It is also argued that, the Insurance Company Vide letter dated 01/08/2002 cancelled the long term JPA policy of more than 1 lac, period of Insurance more  than five years.

Having heard the Ld. Advocate of both the sides and on perusal of the evidence, record it is admitted fact that, the son of the complainant during his life time on 08/06/2001 purchased Group Janata Personal Accident Insurance Policy and Policy Certificate No.  0477737 and serial No. 01227007/010000010729. It is also admitted fact that the Policy was effective from 08.06.2001 to 07.06.2016. It is also admitted fact that, the OP No. 1  issued the certificate in the name of Shanti Arja and risk covered for accidental death/loss of limbs/permanent disablement for an overall capital sum insured of Rs. 2,00,000/-.

From the written version as well as from the written notes of argument of the OP no. 1 it reveals that the OP no. 1 has stated that, the certificate holder expired on 21.04.2016 due to an accident is denied by the OP no. 1. But in the written complaint, written evidence, in the written notes of argument the complainant has specifically stated that, the son of the complainant has met with an accident on 21.04.2016 and died. Moreover the complainant to prove the death of her son has annexed death certificate as Annexure-B which was issued by the Nayahat Gaon Panchayat. The complainant has also annexed death related subsequent papers in respect of the death of the son of the complainant which was issued by police of Nayahat Out Post District Dhubri and those documents are annexed as Annexure-C series. To falsify those Annexure-B (death certificate) and Annexure –C series the OP no. 1 neither file any counter Affidavit nor produced any cogent evidence to substantiate the claim of OP no. 1 that the Son of the complainant has not expired due to an accident.

From the death certificate (Annexure-B) and from the death related paper (Annexure-C series) it is safely presumed that, the complainant has been able to prove that, the Son of the complainant met with an accident on 21.04.2016 and died.

From the Annexure-A (Group Janata Personal Accident Insurance Policy) which has been annexed by the complainant it reveals that, the OP no. 1 specifically stated that, the risk cover for accidental death form overall capital sum insured of Rs. 2,00,000/-. But the OP’s did no disburse the death benefit to the complainant who is nominee of the Certificate Holder. It is also the case of the complainant that on several occasions the complainant requested the OP’s for disbursement of the death claim benefit but they did not disburse the same which clearly proves that, the OP’s have intentionally denied to disburse the claim of the complainant which is a deficiency in service as well as restrictive trade practice on the part of the OP’s towards the Complainant.

Considering all we are of the view that, mere claim of the OP no. 1 regarding cancellation of MOU between the OP No. 1 & OP No. 2 does not  absolve their liability to pay the death claim of the complainant for the accidental death of her Son (Policy Holder). We are also of the view that, both the OP’s are jointly & severally liable to pay the awarded amount.

Hence,

O R D E R E D

That, the instant Consumer Case being in No. 86/2018 be and the same is allowed on contest against the OP No. 1 and Ex-parte against OP no. 2. Both the OP’s are Jointly and severally liable to pay the awarded amount. Both the OP’s are directed to pay a sum of Rs. 2,00,000/- (Rupees Two laks) only to the complainant towards death claim benefit for the death of her son. The OP’s are also directed to pay a sum of Rs. 30,000/-( Rupees Thirty thousand) only to the complainant for mental pain, agony as well as for deficiency in service on the part of the OP’s towards the complainant. The OP’s are also directed to pay a  sum of Rs. 10,000/-  (Rupees Ten Thousand) only to the complainant as cost of legal proceedings. The OP’s are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

The OP’s are directed to pay interest at the rate of 5% per annum on the awarded amount of the complainant with effect from the date of filing of this case till making payment of the entire amount.

The OP’s are directed to pay the awarded amount within 45 days from this day failing which they will have to pay interest @ 7% per annum with effect from the date of filing of this case till making payment of the entire amount.

The complainant is given liberty to take proper steps against the OP’s after 45 days from this day if the awarded amount is not paid to her by the OP’s.

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