Order No. 20 Date: 25.06.2019
FINAL ORDER/JUDGEMENT :-
Hon’ble Mr. Syed Nurul Hossain, President
This is a case under section 12 of the Consumer Protection Act, 1986, read with section 2(1)(c) of the Consumer Protection Act filed by the complainant Smt. Aparna Roy and others against the O.P New India Assurance Company Limited for payment of insurance amount of Rs. 2 lakhs covered by the Policy with interest @ 10% per annum thereon from 21.8.2017,compensation of Rs.10,000/- for mental agony and pain, Rs.7,000/- towards payment of litigation cost.
The case of the complainant in brief, inter alia, is that the complainant states that insured Manindra Nath Roy, since deceased, was covered under personal accidental insurance policy bearing no. 512301/47/02/00140 having insured value of Rs. 2,00,000/- for the period from 8.5.2002 to 7.5.2007. The complainants are wife, son and daughter of the deceased Manindra Nath Roy. Said Manindra Nath Roy was a Railway employee attached to New Maynaguri Railway Station. During his life-time he purchased said personal accidental insurance policy covering Rs. 2,00,000/- for the above period. It covered risk of accidental death, loss of limb, permanent total disablement. On 1.9.2016 at about 10 a.m. while Manindra Nath Roy was discharging his official duty for repairing light of lamp-post at New Maynaguri Railway Station suddenly he fell down from the ladder and sustained grievous injury. Then he was taken to Maynaguri Block hospital for treatment, but he was shifted to Jalpaiguri Sadar hospital. Thereafter he was referred for better treatment and management
to Anandalok Hospital, Siliguri. Unfortunately, he died there at 4 p.m. Consequent upon his death Bhaktinagar P.S. U.D case no. 115/2016 u/s.174 Cr.P.C dated 1.9.2016 was registered. Post mortem examination of deadbody was held on 2.9.2016. The complainant became mentally disturbed. They had no knowledge about the insurance policy of deceased Manindra Nath Roy. The complainant upon vigor search found one policy certificate purchased by deceased Manindra Nath Roy during his life-time covering risk for the aforesaid period. The complainant had been to the office of O.P Insurance Company and submitted an application on 21.8.2017 disclosing accidental death of Manindra Nath Roy on 1.9.2016. After lodging the claim application the complainant had been to the said insurance company on several occasions. Though assured, but no steps have yet been taken to settle the claim of the insurance amount due to death of Manindra Nath Roy on 31.8.2018. Lastly, the complainant went to the office of the insurance company but the insurance company had refused to settle the dispute without assigning any reason. Actionable deficiency in service on the part of the insurance company forces the complainant to file the instant case. So, they are entitled to get payment of the insurance amount of Rs.2 lakhs with interest thereon including compensation and litigation cost.
Denying the material allegations made in the complaint the O.P nos. 1 and 2 have filed Written Version stating, inter alia, that the O.P Golden Trust Financial Services alleges to have his own field personnel for the business of the insurance company. The insurance company decided to offer as incentive to its employees and investor the benefit of insurance covers under the head Mediclaim and Janata Personal Insurance Policy of New India Assurance Company Ltd. In 1998 two Memo. of understanding were executed by and between Golden Trust Financial Limited and New India Assurance Company Ltd. out of which one is for mediclaim and another is for personal accident. Two such Group Insurance Policies were issued in favour of Golden Trust by the New India Assurance Company Limited. The insurer was the New India Assurance Co. Ltd. and the agency was Golden Trust Financial Services. The Insurance coverage as per memorandum of understanding was to cover – i) the investors, ii) their family members, iii) Field Workers, iv) their family members and v) their friends. The premium was collected and remitted to the insurance company by the O.P Golden Trust periodically and in respect of such premium, the certificate in the name of The New India Assurance Company Ltd. was issued. On 7.5.2099 the Insurance Company issued a letter addressed to the O.P Golden Trust Financial Services for cancelling memo. of understanding, when O.P Golden Trust Financial Services moved a Writ application being WP no. 1144 of 1999 before the Hon’ble High Court and interim order dated 6.7.1999 was passed restricting the Golden Trust Financial Services from passing order from the date. The Hon’ble Court stayed the cancellation of memorandum of understanding but injuncted Golden Trust from collecting premium from categories “friends”. The company took a policy decision to limit the sum assured under Janata Personal Accidental Policy to Rs.1,00,000/- and the period of insurance covers to five years. The O.P by letter dated 1.8.2000 stated that long term Janata Personal Accidental Policy for more than Rs. 1 lakh covering more than five years stands cancelled. Accident Insurance Policy contains a cancellation clause to the effect that the company may at any time after giving notice in writing cancel the policy, provided that the company shall in that case return to the insurer the then last paid premium less a pro rata part thereof for the portion of the current insurance period which shall have expired. The insurance company also by letter dated 1.8.2002 cancelled long term Janata Personal Accidental Policy for more than Rs. 1 lakh covering more than one year. Challenging the letter of cancellation The O.P. Golden Trust Financial Services moved a Writ petition bearing no. 2343 of 2002 before the Hon’ble High Court and the operation of the said letter dated 1.8.2002 had been stayed. The deceased husband of the complainant was not a bona fide certificate holder, as he was a Railway employee. Therefore, no cause of action arose. The O.P Golden Trust Financial Services shall prove that the certificate-holders are its field workers. If the certificate holder actually belongs to friend category, then the O.P New India Assurance Company Ltd. is not liable to extend coverage to such person. Impossibility to render service does not tantamount to deficiency in service. If the insurance company for non-submission of documents cannot consider a insurance claim, the same cannot be said to be beneficiary in service. So they do not fall within the category of friends. The deceased-husband complainant cannot be treated as an employee of the O.P Golden Trust Financial Services. So, the O.P insurance company cannot settle the claim as the O.P Golden Trust Financial Services distributed insurance bond to Government employees. It was further urged that t he O.P Golden Trust Financial Services and the complainant are to prove status of deceased Manindra Nath Roy as bona fide service-holder. Therefore, the claimant is not entitled to get any relief under the Consumer Protection Act.
The proforma O.P. No.3 Golden Trust Financial Services in its Written version has stated, inter alia, that the Hon’ble Supreme Court by order dated 29.4.2016, 29.7.2016 and 25.11.2016 directed to pay the entire decretal amount to the nominees without security pending the final outcome of the said special leave petitions. Following same order the Hon’ble National Commission passed similar order dated 13.4.17 in both R.P. No. 1752 of 2016 and R.P No. 122 of 2016. Order dated 5.7.2017, passed in R.P No. 790/217 is pertinent. Manindra Nath Roy was Field Worker of Golden Trust Financial Services, who obtained Janata Personal Accident Insurance coverage of New India Assurance Company Ltd. under a Group Insurance Scheme through facilitation of Golden Trust Financial Services. Said Group Janata Personal Insurance Police was issued by New India Assurance Company Ltd. after receipt of due premium by way of consideration money covering the field worker Manindra Nath Roy, since deceased. By memorandum of understanding executed on 30.12.1998 by and between the O.P no.1 The New India Assurance Company Ltd and O.P no.3 Golden Trust Financial Services, a Group Janata Personal Accident Policy was extended by O.P New India Assurance Company Ltd. to cover to their field workers and their family members, their investors and friends under the Group Insurance Scheme. The Golden Trust Financial Services acted bonafide and within the bounds of their authority and there has been no negligence or deficiency in service on their part. In 2005(3) CHN 154 (Bimal Chandra vs. New India Assurance Co. Ltd.& others) it has been held, identity of the insured person as a field worker as well as the relationship between the insured person and Golden Trust Financial Services being insured/facilitator have been well elaborately dealt with and amplified giving appropriate importance to the premium forwarding list/letter mentioning the status of the insured person as field worker/investor and acknowledgement by New India Assurance Company Ltd. through an affidavit which had been deemed by the Hon’ble Court as sufficient proof of the status of the insured person with respect to Golden Trust Financial Limited and judgement was eventually was accepted by New India Assurance Company Ltd. In W.P No. 13359 (W) of 2008 (Monoranjan Mukherjee-Vs-New India Assurance Co. Ltd. & others) it has been held by the Hon’ble High Court that it was evident from certificate of insurance that insurance company after being satisfied with the proposal and declaration submitted to the Company, it cannot be re-opened. The Hon’ble Court directed the insurance company to settle the claim of the petitioner(Monoranjan Mukherjee) without any further query.
On the basis of the complaint and written version the following points for consideration are framed for complete and effective adjudication of the claim.
POINTS FOR CONSIDERATION :-
- Whether the O.P New India Assurance Company Ltd. and the Golden Trust
Financial Services had accepted personal accidental insurance policy of
Manindra Nath Roy, bearing no. 512301/47/02/00140 remaining valid from 8.5.2007 to 7.5.2017, after satisfying the criteria of both New India Assurance Company Ltd, OP and its authorized agent Golden Trust Financial Services after accepting the amount from the deceased Manindra Nath Roy ?
- Whether the doctrine of approbate and reprobate applies to the O.P New India Assurance Company Ltd subsequent to death of Manindra Nath Roy against denial of payment of the insured amount to heirs of Manindra Roy being complainant hereat ?
- Whether the O.P New India Assurance Company Ltd. had any document to prove that he was an employee of Indian Railway when Policy was being made under the O.P New India Assurance Company Ltd. on 8.5.2002 ?
- Whether death of Manindra Nath Roy during the period of insurance coverage entitles the complainants to get insurance amount from the New India Assurance Company Ltd ?
- Whether the complainant being legal heirs are entitled to get insured amount due to accidental death of Manindra Nath Roy while working in the Railways ?
- To what other relief or reliefs the claimant is entitled to both in law and equity including the complaint under law of torts ?
DECISION WITH REASONS :-
All the points are taken up together for the sake of convenience and brevity. It is fact that Manindra Nath Roy purchased Personal Accidental Insurance Policy bearing no. 512301/47/02/00140 having insured value of Rs. 2 lakhs for the period from 8.5.2002 to 7.5.2017. On the date as on 8.5.2002, there is no document placed by the Insurance company about employment of the deceased Manindra Nath Roy. Rather the complainants being heirs and the O.P once the insurance company accepted money from Manindra Nath Roy and issued insurance policy , then subsequent denial after death of Manindra Nath Roy cannot be taken in any manner whatsoever under doctrine of approbate and reprobate. Admittedly on 1.9.2016, at about 10 a.m. while Manindra Nath Roy was discharging his official duty at Maynaguri Railway Station he fell down from a ladder and sustained grievous injury. He was immediately taken to Maynaguri Block hospital but therefrom he was shifted to Jalpaiguri Sadar Hospital. Due to deterioration of the condition he was referred to Anandolok Hospital, Siliguri. Then he died there. Consequently unnatural death case bearing Bhaktinagar P.S U.D case u/s. 174 Cr.P.C no. 115/16 dated 1.9.2016 was registered. Post mortem examination report was held by the Autopsy Surgeon on 2.9.2016.
Referring the claim and counter-claim of both parties which is admitted that Manindra Nath Roy was a Field Worker of the Golden Trust Financial Services Ltd. for which he was being given personal accidental insurance of Rs. 2 lakhs by the O.P New India Assurance Company Ltd. since the date of death The O.P New India Assurance Company Ltd or its agent Golden Trust Financial Services Ltd raised no question as to whether he was Railway Employee at the time of Insured Policy taken. Once the Policy had been received after payment of the amount in question by Manindra Nath Roy, the O.P New India Assurance Company Ltd. cannot raise question that he made an accidental death during the insurance period while working at New Maynaguri Railway station. No supporting document as to whether Manindra Nath Roy was an employee of Indian Railways on the date of making insurance policy was produced by the O.P. When the O.Ps have accepted the money and insured his life, the O.P New India Assurance Company Ltd. is under bounden duty to provide the insurance amount. It is concluded agreement. During Janata Personal Accident Policy taken, the O.P New India Assurance Company Ltd. and/or its agent Golden Trust Financial Services did not raise any question as to eligibility of complainant to do insurance policy valued at Rs. 2 lakhs during his lifetime. Subsequent service of Manindra Nath Roy in the Railways at the time of death cannot be taken into consideration as the date of making insurance policy is the prime date for consideration of eligibility to do insurance policy. U/s.2(g) of Consumer Protection Act, deficiency in relation to service means any fault which has been undertaken to be performed by Insurance company in pursuance of contract by the between the complainant and O.Ps.
Moreover, in case of Monoranjan Mukherjee-Vs-New India Assurance Company Limited(WP 13359 100) of 2008) it has been held that once certificate has been issued as per proposal and declaration submitted to the Company, it cannot be re-opened. Thus, Insurance Policy taken by Manindra Nath Roy is concluded contrac with O.Ps. So, the O.P Insurance Company cannot deny in payment of insured amount.
It has been certified by the Prodhan of Mathabhanga I-Gram Panchayat that the complainants are the heirs of Manindra Nath Roy. Divisional Security officer certified that Manindra Nath Roy was repairing the Tubular Pole No.5 at platform no.1 of New Maynaguri Railway Station and he fell down from the ladder as a result of which he sustained grievous injury. Special occurrence report has been submitted by the Inspector-in-Charge of R.P.F. Post, Jalpaiguri Road, North Frontier Railway. In the unnatural death case it has been reported that Manindra Nath Roy died unnaturally. Also Medical certificate has been issued by Dr. Dipayan Pal of Anandolok hospital that Manindra Nath Roy died on 1.9.2016. It reveals from Annexure-‘E’ that Manindra Nath Roy, aged 23 years purchased Janata Personal Accident Insurance Policy of New India Assurance Company Ltd. covering insurance from 8.5.2002 to 7.5.2017. Insurance was of Rs. 2 (two)Lakhs. Also accidental death risk was covered in the said Policy. The New India Assurance Company Ltd. has issued Janata Personal Accident Insurance Policy certificate. The Golden Trust Financial Services in para-3 has stated that the Hon’ble Supreme Court by its order dated 29.4.16, 29.7.16 and 25.11.16 directed to pay the insured the entire decretal amount. Besides that there is no document before this tribunal above status of Manindra Nath Roy while died.
The Hon’ble National Consumer Disputes Redressal Commission in R.P. No.1752/2016 has categorically stated following direction of Hon’ble Supreme Court that the affected persons need not appear to contest the matter before the Commission, for the dispute is between the Insurance Company and the principal insured pertaining to determination of composite negligence. The stand of either side is that the principle of composite negligence would not be attracted as the factual matrix of the case would show that either the insurer or the principal insured would be liable. The Hon’ble Court has not granted any stay. As a matter of fact, it has directed the petitioner to deposit the entire amount awarded in favour of the complainant in the concerned District Forum with liberty to the complainant to withdraw the same without furnishing any security. In the light of the said order the Hon’ble Commission further directed that the issue surviving for consideration in this Revision is as to whether the lower Fora was justified in awarding compensation to the Complainant for mental agony suffered by her towards interest and costs etc. Consequently, the Revision petition was dismissed.
After going through the records and decisions submitted by the parties this Forum is of the view that the complainants being heirs of Manindra Nath Roy are entitled to get the insured sum of Rs.2(two) lakhs from the O.P New India Assurance Company Ltd. Also they will get compensation of Rs. 8,000/- towards mental pain and agony suffered by the complainant. Further-more, they are entitled to get Rs.5,000/- towards litigation cost. All the complainants will get the aforesaid amount in equal share. In the result, the case succeeds. Moreover, accidental death risk is covered by Policy. The O.P Insurance Company has verified eligible criterion at the time of Insurance Policy . Besides that, it has taken the amount for insurance policy. Doctrine of rule of estoppels will not allow the O.P Insurance to deny payment of insured amount. It is concluded contract by and between the insurer and insured. Subsequent to death of insured, his heirs are entitled to get insured sum. But they are being harassed and legal heirs were forced to sue against the O.P Insurance company.
All the points are decided in favour of the complainant .
Accordingly, it is
O R D E R E D :-
that the complaint case be and the same is allowed on contest . The O.P. New India Assurance Company Ltd. shall pay insured sum of Rs. 2 lakhs(Rupees two lakhs) to the complainant being heirs of Manindra Nath Roy. Besides, they will get compensation of
Rs.8,000/- towards mental pain and agony suffered by the complainants on account of
and deficiency of service of O.P New India Assurance Company Ltd. Further, they shall pay a sum of Rs.5,000/- towards towards litigation cost. All the complainants shall get the compensation money of Rs.(2,00,000 + 8,000 + 5,000) = Rs.2,13,000/- only in equal share. The O.P New India Assurance Company Ltd. is hereby directed to pay the aforesaid amount within one month from the date of order, in de fault the O.P New India Assurance Company shall pay interest @ 12% per annum thereon till realization of the same. There will be no order against the O.P. no.3 Golden Financial Limited.
Let copy of this order be handed over to each of the parties at free of cost.
