DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 106 of 2015
Date of filing: 29.4.2015 Date of disposal: 27.01.2016
Complainant: Smt. Sipra Mondal, W/o. Late Raj Kumar Mondal, presently residing at Alamganj, Balir Bagan, Near Police Fanri, Nutanganj, Burdwan – 713 102.
-V E R S U S-
Opposite Party: 1. Branch Manager, The New India Assurance Co. Ltd., R.G.Bhaban, Parbirhata, G.T.Road, Burdwan – 713 101.
2. Divisional Manager, The New India Assurance Co. Ltd., Howrah Divisional Office, Madhysudan Apartment, 2nd Floor, P/18 Dobson Lane, Howrah – 711 101.
3. Authorised Officer, Golden Trust Financial Services, 16 R.N. Mukherjee Road, Kolkata – 700 001.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: R.S. Ganguly, Authorized Representative.
Appeared for the Opposite Party No. 1 & 2: Ld. Advocate, Saurabh Dey.
Appeared for the Opposite Party No.3: Ld. Advocate, Bibhas Mondal & Monalisha Banerjee.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the ops as the ops did not pay her legitimate insurance claim and not only that the ops specially the op-1 had not decided her insurance claim till filing of this complaint.
The brief fact of the case of the complainant is that her husband during his lifetime obtained one Janata Personal Accident insurance policy from the op-1 through the op-3 and the policy was issued in the name of the op-3 covering risk of accidental death/loss of limbs etc. Policy sum assured was of Rs. 9, 00,000=00 wherein this complainant was declared as nominee being his wife. The policy was for the period from 1999 to 2014. During validity of the policy the policy holder being the husband of the complainant died on 01.6.2013 due to gun-shot injury as stated in the Post Mortem report dated 02.6.2013 performed by the Department of Forensic & State Medicine, Burdwan Medical College & Hospital. The death intimation was sent to the Insurance Company by letter dated 31.7.2013 wherein the reason of delay of this intimation was explained. Acknowledging this intimation letter claim form was issued by the Insurance Company to the complainant on 28.10.2013 with the advice to return the enclosed claim form duly completed and signed together with related papers and documents in original. Since the claim form was not received by the complaisant the Insurance Company sent a duplicate claim form on 11.01.2013 advising as above. An affidavit was sworn before the Judicial Magistrate 2nd Court, 1st Class, Katwa on 31.12.2013 declaring that the complainant is the wife and nominee of the deceased Raj Kumar Mondal and the policy holder Raj Kumar Mondal, S/o. late Muktiram Mondal is the same, single and identical person. The GTFS in its letter dated 21.01.2014 to the Insurance Company submitted that the nominee-claimant has lodged a claim submitting the following documents in respect of the alleged murder (gun-shot) of her husband on 01.6.2013 i.e. complete claim form, original insurance certificate for Rs. 9,00,000=00 for the period from 08.5.1999 to 07.5.2014, original letter given by the claimant regarding non-submission of medical papers, original letter given by the claimant regarding delay submission of intimation, attested photocopy of death certificate, attested photocopy of FIR, photocopy of seizure list, attested photocopy of Final Police Report, attested photocopy of Post Mortem report, photocopy of disposal order, original affidavit regarding exact name of the nominee, original self-explanatory affidavit given by the nominee, attested photocopy of cremation receipt, attested photocopy of cremation certificate, doctor certificate in original. Photocopy of PAN Card, Voter I-Card and Ration Card of the nominee, attested photocopy of PAN card and Driving License of the insured and attested photocopy of IT return. In her letter dated 07.5.2014 the complainant requested the Insurance Company as well as the GTFS for early settlement of the claim stating that since her husband was the only bread earner in the family, she is passing her days with acute financial crisis. Upon receipt of the said letter the GTFS requested the op-1 by issuing letter dated 10.5.2014 to look into the matter on top priority basis. The op-3 also confirmed that the claim file was forwarded to the op-2 on 22.01.2014 but they have not received any response in this respect. The op-1 received this letter on 17.5.2014. On 13.6.2014 the complainant earnestly requested the Insurance Company for settlement of the claim and make payment of her legitimate claim against the policy of her husband. But no response has been received from any of the ops and the complainant had to wait for five months and thereafter she approached before the Bardhaman District Consumer Protection and Welfare Center on 04.11.2014 to take up the matter with the appropriate authority so that the death claim of her husband is made available at the earliest. On 11.11.2014 the BDCP&WC requested the Insurance Company to settle the claim of the claimant within 15 days from the date of receipt of the letter, failing which the matter will be placed under the shelter of proper forum for justice on behalf of the claimant and a copy of the said letter was also forwarded to GTFS for necessary information. The GTFS acknowledged the letter. But inspite of several letters and follow up there was no development in respect of the claim of the complainant and in this matter near about 15 months have been elapsed but no settlement has yet been done by the ops in respect of her claim. Thereafter having no alternative the complainant had approached by before this ld. Forum by filing its complaint praying for direction upon the ops specially the Insurance Company for making payment of Rs. 9,00,000=00 towards policy sum assured, compensation to the tune of Rs. 50,000=00 due to unnecessary harassment and mental agony and litigation cost of Rs. 5,000=00. The complainant has prayed for interest upon the total amount of Rs. 9, 55, 000=000 @12% p.a. from the date of submission of the claim from till realization.
The petition of complaint have been contested by the op-1&2 by filing written version contending that these ops made an agreement (MOU) with the op-3 on 30.12.1998 sitting that the Ops will issue JPA policy for their investor and their family members, field workers and their family members and friends under group insurance scheme, who are closely connected with the GTFS and the MOU was signed by the ops and the GTFS. But the GTFS has violated such MOU and issued certificate to the public in general. As per the MOU some documents are to be submitted by the claimant for early processing of the claim that are (a) if the insured/family members are investors, submit documentary evidences of investment certificate such as how much amount was invested to the said company (GRFS), (b) if the insured/family members are field workers, submit documentary evidences of agency license, identity card, appointment letter etc. (c) if the insured/family members are friends/associates before 06.7.1999 submit documentary evidences of the following that are how and why the insured had been associated with the GTFS as friends category giving documentary evidences. Moreover one person should be given not more than one policy and the sum assured shall be restricted to maximum of Rs. 1, 00,000=00. GTFS had appointed some field workers for this purpose and for this reason GTFS were unable to produce documentary evidence of field workers and investors. Be it mentioned that documents verification of field workers, investors and also friends are must for processing of JPA claims. It is submitted by the ops that the policy holder or the nominee being the complainant is duty bound to fulfill the requirement of the Insurance Company before settlement of her claims. By issuing letter dated 07.5.1999 to the GTFS cancelled their MOU in respect of friends category and against the said letter of cancellation the GTFS moved a Writ Application being WP No. 1144/1999 before the Hon’ble High Court, Kolkata wherein Their Lordships were pleased to pass an interim order on 06.7.1999 and by that order the Hon’ble High Court restrained the GTFS from collecting any premium from the category of friends. Inspite of such restraining order and subsequent orders passed by the Hon’ble High Court the GTFS at their own risks and whims collected premiums from the persons under different categories as specified in the MOU. It is mentioned that there are five categories of persons for which JPA insurance coverage was given under the MOU such as investors, their family members, field workers, their family members and friends. The complainant Smt. Sipra Mondal is absolutely silent as to the status of the insured late Raj Kumar Mondal which is very much required for the purpose of considering the eligibility under the said policy scheme. In absence of any document regarding the status of the insured these ops are not in a position to decide and settle the claim of the complainant. Moreover, the op-3 as also the complainant has miserably failed to establish the status of the insured. Therefore, the ops are not liable to pay under this policy, if there is any violations of the provisions and conditions of the questioned policy i.e. if there is any violation of provision no. 4 i.e. payment of compensation in respect of death, injury or disablement of the insured person from intentional self injury, suicide or attempted suicide, whilst under the influence of intoxicating liquor or drug, directly or indirectly caused by insanity, arising or resulting from the insured committing any breach of law with criminal intent. In this particular case the cause of death of insured was due to gun-shot and for this reason these ops are not liable to pay any compensation to the complainant as per policy condition no. 1. Wherein it is stated that upon the happening of any event which may give rise to claim under the policy, the insured shall forthwith give notice thereof to the company, unless reasonable caused is shown, the insured should within one calendar month, after the event which may give rise to a claim under the policy, give written notice to the company will full particulars of the claim. In this particular case there is prolonged delay in intimation of the claim by the complainant as the alleged accident took place on 01.6.2013 but the intimation was given by the complainant to these ops on 31.7.2013 i.e. after one calendar month from the date of alleged accident without valid and reasonable cause and for this reason the company is not liable for making payment of any compensation to the complainant. The ops have further stated that though the allege claim was referred to these ops by the GTFS but the necessary records, documents and papers i.e. proposal form, ID proof issued by GTFS to the insured person in detail, records of investment in case of investor, detailed records of field worker i.e. ID card issued, business contributed by the insured person, salary/commission paid by the GTFS etc. which are required for settlement of the claim and as such these Ops are not in a position to settle the claim accordingly. The Insurance Company took a policy decision to limit the sum insured under JPA policy up to Rs. 1, 00,000=00 and the period of insurance for 5 years for Group JPA policy. Under these circumstances by issuing a letter dated 10.8.2000 the long term JPA Policy more than Rs. 1, 00,000=00 and more than 5 years were cancelled. Inspite of this the GTFS issued this policy for 15 years and the sum assured of Rs. 9, 00,000=00 violating the aforesaid directions of the Ops and for this reason also the ops are not liable to pay any compensation to the complainant. After receipt of the claim form the GTFS was requested to submit the identity proof for status certificate of the insured but the same had not been provided to these ops. From the investigation report of Mr. Maloy Nag being the Investigator it appears that the deceased Raj Kumar Mondal was a retail businessman who was engaged as a businessman of onion and potatoes etc. Therefore, the insured was not involved in any job profile. The complainant also confirmed the Investigator through letter date 13.02.2014 that her husband was not involved with the GTFS as a field worker/agent and he was only engaged with his business of onion and potatoes. Hence now it is clear that the husband of the complainant cannot be termed as field worker/investor/their family member of the GTFS. As the Ops did not receive the said vital document regarding status proof, in view of the Hon’ble High Court’s order the ops cannot pay any amount because in the said order GTFS was restricted to collect any premium from the friends category. As without the said document the ops cannot decide the claim of the complainant, there is no deficiency in service as well as unfair trade practice on behalf of these ops. It is further stated that if either the complainant or the GTFS provides the said vital document these ops will decide the claim of the complainant based on the said document. According to the ops at present the complaint is devoid of any merit and the same has been filed by the complainant only to harass these ops of being a frivolous and speculative complaint. Prayer is made by the ops for dismissal of the complaint with exemplary cost of Rs. 10,000=00.
The op-3 has also contested the complaint by filing written version wherein it is stated that after filing the claim form along with relevant documents by the complainant the op-3 has duly forwarded the same to the Insurance Company for settlement of her claim. The duty of the GTFS is to collect premium from the approved category and remit the same to the Insurance Company and the GTFS has no liability to settle or decide any claim of the insured. The GTFS has another duty to provide the claim form to the claimant, if arises and send the filled up form to the Insurance Company. In this case also as the GTFS has discharged its liability to the full satisfaction and as per the MOU, there was no deficiency in service on its behalf. Accordingly the op-3 has prayed for dismissal of the complaint.
Complainant filed evidence on affidavit along with several papers and documents in support of her contention. The op-1&2 have filed written notes of argument. The op-1&2 have also filed several papers and documents in support their respective contention. We have carefully perused the entire record and papers and documents submitted by the contesting parties and heard argument advanced by the ld. Counsel for the parties at length.
It is seen by us that some admitted facts are involved in this complaint, that are, the husband of the complainant, since deceased, obtained one JPA insurance policy during his lifetime from the op-1 through the op-3, the policy was valid for the period from 08.5.1999 to 07.5.2014 covering risk of accidental death/loss of limbs etc., the sum insured of Rs. 9,00,000=00, the complainant was declared as nominee in the said policy being his wife, during validity of the policy the policy holder died on 01.6.2013 due to gun-shot injury, Post Mortem done, FIR lodged, intimation was given to the Insurance Company on 31.7.2013, reason for delay in intimation given, op-1 acknowledged the intimation letter through the op-3, claim form issued, claim was lodged by the complainant along with relevant papers and documents, the op-3 remitted the claim form along with the documents to the op-1 for settlement of the claim, requests was made by the complainant on several occasions for settlement of the claim as she was suffering from financial crisis, the op-1 sent a letter requesting to submit some documents for settlement of the claim from the complainant, the status report as required by the op-1 did not remit to the op-1 by the op-3, the claim is pending till date without any decision/settlement. The allegation of the complainant is that the op-1 did not settle her legitimate insurance claim till filing of this complaint and according to the complainant it is an example of unfair trade practice and deficiency in service on behalf of the ops. The contention of the op-1 is that and it is argued by the ld. Counsel for the op-1 during hearing that on several grounds the claim of the complainant cannot be allowed, that are, the complainant gave intimation about the death of the insured not within a calendar month from the date of death, which is one of the condition of the concerned policy, accidental death did not occur because the insured died due to gun-shot injury, the insured was neither a field worker nor investor of the GTFS which is evident from the report of the Investigator as well as the self-declaration of the instant complainant and moreover the status certificate of the insured did not remit by the op-3 inspite of request to it. According to the op-1 until and unless the status certificate of the insured is disclosed or submitted the claim of the complainant cannot be decided. The case of the op-3 is that it has no deficiency in service as well as unfair trade practice because after collecting the due premium from the intending insured the same was remitted to the op-1 and accordingly the op-1 issued the insurance certificate. Not only that after death of the insured the claim form along with the relevant papers and documents were also remitted to the Insurance Company and thereafter on several occasions requests were made by it for settlement of the claim on top priority basis. According to the op-3 in view of the MOU signed by and between the Insurance Company and it, the op-3 is not empowered to settle any claim of the insured in any manner and the Insurance Company enjoys only authority either to settle or to reject of any claim of the insured. Therefore as there is no deficiency in service on its part, prayer has been made by the op-3 for dismissal of the complaint against it.
During hearing he ld. Counsel for the op-1 has argued that according to the MOU by and between the op-1 and the op-3, the op-3 was not empowered to extend the policy to the public in general but in the case in hand as the husband of the complainant was not either an investor or field worker of the GTFS, the insured was not entitled to take the JPA policy but the op-3 provided this policy to the insured illegally and unauthorizedly going beyond the MOU and for this reason liability casts upon the shoulder of the op-3 to decide the insurance claim of the complainant. It is further argued by the op-1 that the insured does not fall within the category of friends because the Hon’ble High Court, Kolkata had restrained the GTFS by an order dated 06.7.1999 to collect any premium from the category of friends. Therefore, if the present insured falls within the category of friends, it is also the result of the wrong doing of the op-3 because the op-3 got restrained order from the Hon’ble High Court and inspite of existence of the said order the op-3 collected the premium from this insured in friends category. In this respect we are to say that in the case in hand premium was collected by the op-3 from the husband of the complainant before the order of the Hon’ble High Court and therefore as during that period friends category was in existence and to collect premium from the friends category was legal and proper, hence in our view the op-3 did not illegally act in collecting of the premium in friends category from the present insured. Next plea is taken by the op-1 as the present complainant gave intimation about the accidental death of the insured to it after lapse of more than one month, in view of the condition and terms of the policy, complainant’s claim cannot be allowed, in this respect we are to say that the complainant has stated on affidavit in the petition of complaint that original letter regarding delay submission of intimation as given to the op-1 along with the claim form and same was accepted by the op-1. Not only that upon receipt of the claim for along with the documents and papers from the claimant the op-1 had sought for further document from the complainant by issuing letter and in that letter the op-1 did not seek any explanation regarding delay submission of intimation from the complainant. Therefore, at the time of settlement of the claim the op-1 cannot take shelter under this plea. Next submission of the op-1 is that the complainant died due to gun-shot injury which reveals that the insured was engaged in criminal activity and breached the law of this country. In this respect the op-1 did not place any cogent document before us to prove its averment that the insured was engaged in the criminal activity and had breached the law of this land. Therefore, such plea does not stand at all. Lastly it is argued by the op-1 that as the status certificate of the insured did not remit to it either by the GTFS or by the complainant as per requirement of the settlement the claim could not be decided till date. In this respect we are to say that at the time of issuance of the policy admittedly the status was declared to it by the intending proposer through the GTFS and being satisfied with the document submitted to it policy certificate was issued by the op-1 in the name of the husband of the complainant. If the op-1 did not satisfy with the status of the intending proposer, it was the duty of the op-1 to cancel the proposal form of the proposer at that point of time. If once policy is issued in favour of the insured and at the time of settlement of any claim within their terms and conditions of the policy the Insurance Company cannot either repudiate any claim or pending the same for indefinite period taking the plea that the status certificate had not been provided to it. Therefore, the pleas as taken by the op-1 do not stand at all.
In the self-same matter the Hon’ble NCDRC has passed a judgment on 27.11.2015 clubbing together 67 cases wherein it has been held by Their Lordships in the paragraph no. 34 & 35 which runs as follows:
34. That taken us to the residual submission made by Mr. Rawat, ld. Counsel for the Insurance Company that in case the view taken by both the Forums below is affirmed by this Commission, then GTFS should also be made liable to share the amount of compensation payable under the subject policies. It was argued that non-furnishing of complete information by GTFS to the Insurance Company as also the documentary evidence, as sought for by us, vide order dated 04.6.2015, in order to demonstrate that proposal forms had duly been forwarded to the Insurance Company, these are cases of composite negligence. Having regard to the fact that despite our specific direction, GTFS has failed to furnish even semblance of material in support of the said plea, the contention of the Learned Counsel deserves to be accepted. We are amazed at the categorical statement made by Mr. Joy Basu, Ld. Senior Counsel appearing for the GTFS, on instructions, that the firm does not possess any kind of record, pertaining to the present complainants, except the code numbers allotted to the insured and mentioned in the list of names sent to the Insurance Company. Such a statement by a Concern earning crores of rupees only from the JPA policies under the said MOU is beyond our comprehension and carries little conviction. However, bearing in mind the fact that in its written version, filed in opposition to the Complaint, the Insurance Company has not leveled any allegation of fraud, connivance, etc. against GTFS, we refrain from commenting on its conduct, except to observe that it is wholly blameworthy. We are convinced that these are cases of composite negligence on the part of the 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 so as to bifurcate the amounts payable under the policies. Therefore under the circumstances, we hold that liability to pay the amounts in terms of the order passed by the Fora below, to the complainants before us will be joint and several on the Insurance Company and GTFS. It will be open to the complainants to enforce the orders in their favour against both or any of them.
35. In view of the foregoing discussion, we do not find any jurisdictional error in the impugned orders, holding the Insurance Company deficient in not processing the claims of the complainants, warranting interference in our limited revisional jurisdiction. Resultantly, save and except to the extent of our finding on composite negligence, all the revision petitions are fail and are dismissed accordingly. The complainants, represented before us shall be entitled to costs, quantified at 20,000=00 in each of the cases which shall be paid to them by the Insurance Company and GTFS in equal proportion, within two weeks of the receipt of a copy of this order.
As the Hon’ble NCDRC has passed the judgment on the self-same matter (as the instant complaint) in our view the said dictum can be implemented in the case hand. In the instant complaint admittedly the claim of the complainant was not settle by the Insurance Company due to want of status certificate of the insured, since deceased. It is true that either the insured or the present complainant is not the custodian of status certificate in respect of this insurance policy, either the op-1 or the op-3 is the real custodian of the status certificate of the deceased insured. If the op-3 did not remit the status certificate of the insured to the Insurance Company and for that reason the Insurance Company could not settle the claim within due period then liability lie upon the both parties, i.e., the Insurance Company and the GTFS. Therefore it can safely be said that due to deficient and negligent service of the Insurance Company as well as the GTFS the claim of the complainant had not been settled for long 15 months and for this reason complainant had to suffer from pecuniary and financial loss, such inaction on behalf of the op-1, 2 & 3 can be termed as deficiency in service and for such reason the complainant is entitle to get compensation from the ops. It is true that as the complainant’s grievance have not been redressed by the ops before approaching to the court of law and complainant had to file this complaint for getting her redressal, she has incurred some expenditure for this proceeding and for this reason she is also entitled to get litigation cost from the ops.
Going by the foregoing discussion, hence it is
O r d e r e d
that the complaint is allowed on contest with cost against the Ops. The Insurance Company (Opposite Party No. 1&2) shall pay Rs. 9, 00,000=00 (Rs. Nine lacs) only to the Complainant towards policy sum assured within 45 (forty five) days along with interest @6% (six per cent) per annum from the date of filing of this complaint till realization, in default, the interest component will be @8% (eight per cent) per annum as penal interest. The opposite Party No. 1 & 2 and OP-3 also is directed to pay compensation to the tune of Rs. 5,000=00 (Rs. Five thousand) only to the Complainant, out of which 50% (fifty per cent) shall be paid by the Insurance Company and 50% (fifty per cent) by the GTFS (Opposite Party No. 3). The Insurance Company and the GTFS are also directed for making payment of Rs. 2,000=00 (Rs. Two thousand) only to the complainant as litigation cost, out of which 50% (fifty per cent) shall be borne by the Insurance Company and balance amount shall be paid by the GTFS. Compensation and litigation cost shall be paid by the Insurance Company and the GTFS within 45 (forty five) days from the date of passing of this judgment, in default, the complainant will be at liberty to put the entire decree in execution as per provisions of law.
Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan