DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No.167 of 2012
Date of filing: 30.11.2012 Date of disposal: 19.6.2015
Complainant: Dilip Rakshit, S/o. Late Bholanath Rakshit, Village & Post Office: Panchra, Police Station: Jamalpur, District: Burdwan
-VERSUS-
Opposite Party: 1. Divisional Manager, The New India Assurance Co. Ltd., Madhusudan
Apartment, P-18 Dobson Lane, Howrah-01.
2. Manager, Golden Trust Financial Services, R.N.Mukherjee Road, Kol-01.
Present: Hon’ble Member: Sri Durga Sankar Das.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate Anindya Sundar Mondal.
Appeared for the Opposite Party No.1: None.
Appeared for the Opposite Party No.2: None.
J U D G E M E N T
This complaint if filed by the complainant u/S. 12 of the CP Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the Ops as they did not pay his legitimate insurance claim being a legal heir of the insured.
The brief fact of the case of the complainant is that being a member of unfortunate family who has lost ten members in a motor accident in a painful manner which happened in the night of 06.10.2008 at about 10.30 pm at Chouberial Canal Pool on Memari-Tarakeswar Road. On 06.10.2008, ten family members of the complainant
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went out to see the Durga Puja by Tata Sumo and on the way to return due to excessive speed and rash driving the vehicle fell into a canal jumping over the guard wall which was full of water and as a result all the members died inside the vehicle. The vehicle got registration in the name of Tarun Kanti Ghosh and Tushar Kanti Ghosh and the same was kept on control of one Sankar Mallick of same village who happened to be the friend of Asim Rakshit and at his insistence 10-members of the complainant’s family went to different puja pandals boarded in that vehicle. After such demise the complainant got severe mental shock and mental agony and the complainant and other family members started to search out personal belongings of the dead persons and during searching some papers and documents along with other things were obtained including a Janata Personal Accident Insurance Policy issued by the OP-1 through the OP-2 being no. 4751220001799/E-47-30906 which was valid for the period from 01.8.2000 to 31.7.2015. The said policy was taken in the name of Uttam Rakshit and sum assured was Rs. 2, 00,000=00. The insured, his wife being the nominee in the said policy and eight other members of the same family died in a motor accident. After some recovery from shock caused by death of the insured approached the OP-1 for disbursement of the policy money along with other members. The OP-1 directed him to obtain succession certificate in consultation with the legal hears of the deceased Uttam Rakshit. The succession certificate in connection with the case no. 102/2009 in respect of debts and securities of the deceased Uttam Rakshit was obtained from the office of ld. Judge, District Delegate, Burdwan including the policy value of Rs. 2, 00,000=00 of Group Janata Personal Accident Insurance Policy. Since the intimation of supporting documents none of the Ops responded. Subsequently the OP-Insurance Company by their letter dated 25.3.2011 asked the complainant to submit some
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documents along with the prescribed claim form which was complied. The OP-1 by their letter dated 29.8.2011 repudiated the claim stating that the claim was not as per terms and the conditions of the policy as well as the claim as lodged long after the date of death o the policy holder. Challenging the legality of the repudiation of particular claim the complainant sent a registered letter to the OP with request to reconsider the mater but the Insurance Company did not pay any heed to his request. Thereafter finding no other alternative the complainant has approached before this ld. Forum by filing this complaint praying for direction upon the Ops to pay/disburse the policy money to the extent of Rs. 2,00,0000, compensation to the tune of Res. 10,000=00 due to unnecessary harassment, mental pain and agony and litigation cost of Rs. 20,000=00.
The O.P. No.1 contested the case by filing written version, denying inter alia all the material allegations made in the complaint. The O.P. submits that the vehicle in question being No. WB 16F-6566, Tata Sumo is a private car and the alleged deceased was not the owner. At the relevant time of the alleged accident the vehicle bears private car number and the said vehicle was permitted to use as private vehicle only and the vehicle owner was not permitted to use the same as hire basis. All the passengers in question of the vehicle at the relevant time hired the said vehicle. The alleged registered owner violated the terms and condition of the insurance policy and the Insurance Company is not at all liable to pay any compensation to the complainant in the instant case.
The O.P. further stated that the deceased was not an investor or their family members employee, field worker or their family members, friend of GTFS as per MOU with M/s. GTFS and this O.P. It is also mentioned here that this O.P. i.e. The New India
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Assurance Company Ltd. cancelled the MOU with the GTFS vide their letter dated 07.5.1999. This O.P. cancelled all long term JPA Policies more than Rs. 1, 00,000=00 and more than five years terms vide their letter dated 01.8.2002. After the said letter the GTFS has no authority to collect any premium after the suit cancellation letter. It is needless to mention here that the petitioner did not disclose the status of the deceased in the petition as well as in the claim form, which is clear suppression of material fact. The O.P. also submits that the alleged accident took place on 06.10.2008 and the claimant intimated the same to this O.P. only on 14.7.2010 which is barred by limitation as per condition of the policy in question.
The O.P. further stated that as per official record it appears that the claimant has not submitted any proper claim since after the alleged occurrence, for to speak the other requirements in respect of the claim was not complied with. Moreover, it appears that during inspection by the investigator the proper co-operation has not been offered by the complainant. The claimant did not submit the original documents inspite of repeated demands by the O.P. There was no deficiency of service on the part of this O.P. nor there was any laches or negligence or the part of this O.P. and as such the instant case is liable to be dismissed with cost.
The O.P. No.2 has also contested the case by filing written version and has stated that this O.P. has acted bonafide and within the bounds of their authority and there has been no negligence or deficiency in their services and as such the complainant cannot have any grievance whatsoever against the O.P. No.2 and accordingly he is not entitled to any relief whatsoever against the O.P. No.2 and as such the instant case is liable to be dismissed as against the O.P. No.2.
We have carefully perused the entire record, several documents filed by the parties in support of their respective contentions, evidence on affidavit filed by the
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complainant and the order sheets of the succession petition as well as succession certificate and heard arguments from the ld. Counsel for the complainant. Be it mentioned that on 07.02.2014 this complaint was disposed of by this ld. Forum and being aggrieved with the said order the Insurance Company had preferred an Appeal before the Hon’ble SCDRC, WB in the First Appeal Case no. FA/296/2014, which was decided by the said Commission on 23.3.2015 whereby the Hon’ble Commission was pleased to allow the appeal setting aside the order impugned and remand back the case to this ld. Forum with a direction to make a fresh order after hearing both parties with liberty to adduce fresh evidence, if any, within a period of 60 days from the date of this order. In the said order the Hon’ble Commission directed the parties to appear before this ld. Forum on 06.4.2015. It is evident from the record that on 09.4.2015 the complainant appeared before this ld. Forum but the Ops restrained themselves from appearing and on that date opportunity was given to the parties for adducing evidence, if any, in view of the order passed by the Hon’ble SCDRC, West Bengal. On 29.4.2015 though the complainant appeared but as the Ops were not present, notices were issued intimating the next date of this complaint. On 18.5.2015 this complaint as was fixed for S/R and appearance of Ops and filing evidence, if any, by the parties. On 18.5.2015 the complainant filed evidence on affidavit. None is was present on behalf of the Ops inspite of valid service of notice. So this ld. Forum was pleased to fix 16.6.2015 for hearing. On 16.6.2015 Ops were absent as usual without taking any steps, but the complainant was present by filing hazira. As the Hon’ble SCDRC, WB mentioned in their order to make a fresh order after hearing both the parties within 60 days from the date of the Commission’s order, so we are not inclined to grant any adjournment further in view of the said direction made by the higher Forum/Commission. So we took up the hearing of the complaint from the complainant in absence of the Ops.
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Upon careful perusal of the material as available in the record it is seen by us that there are some admitted facts in the case in hand, i.e. the insured who obtained the JPA policy form the OP-1 through the OP-2 died due to accident along with eight other family members on 06.10.2008, the wife of the of the insured was declared as nominee of the said policy who died also on the said date due to same accident. due to unfortunate and untimely death of the insured the present complainant got severe shock and mental agony and being perplexed he is not in a position to search any document immediately after the death of the insured, during searching of papers the complainant along with other family members found the instant JPA policy obtained by the insured, the policy was valid for the from 01.8. 2000 to 31.7.2015, the policy sum assure was of Rs. 2, 00,000=00, the complainant obtained succession certificate from the competent court, the claim was lodged being a legal heir of the deceased along with relevant papers and documents, the Insurance Company by issuing letter dated 29.8.2011 had repudiated the claim staffing that the claim was lodged long after the date of death of the policy holder. The allegation of the complainant is that the Insurance Company has repudiated his legitimate claim on flimsy ground and arbitrarily and such activities of the Insurance Company reveals deficiency in service as well as unfair trade practice praying for certain reliefs along with sum assured the complainant has initiated this complaint.
The rebuttal case of the OP-1 is that as the claim has not been lodged within the statutory period as mentioned in the policy certificate hence the claim cannot be payable to the claimant. Prayer has been made by the OP-1 for dismissal of the complaint. The contention of the Op-2 is that it has no authority to settle the claim of the claimant being the legal heir of the insured. It only used to send proposal to the
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Insurance Company along with premium amount for issuance of insurance certificate and whenever claim cropped up then it has the duty to remit all necessary papers along with claim form to the Insurance Company for settlement of the claim. The OP-2 is acting as an agent of the OP-1, so settlement of the claim casts upon the shoulder the principal, not the agent. According to the OP-2 there was no deficiency in service as well as unfair trade practice on its part so the complaint does not lie against it.
It is evident from the judgment passed by the Hon’ble SCDRC dated 23.3.2015 wherein both parties were directed to appear before this ld. Forum on 06.4.2015. It is pertinent to mention that before the Hon’ble Commission during final hearing both parties were present. But the Ops did not bother to appear before this ld. Forum inspite of specific direction made by the Hon’ble SCDRC.
In the decision portion of the said judgment of the Hon’ble Commission it is seen by us that as the succession certificate as not annexed with the POC it was not possible for the Commission to know the exact position and moreover it was not clearly mentioned in the impugned order. For this reason Hon’ble Commission was pleased to send back the complaint on remand for trial afresh.
We have perused the order passed by the District Delegate, Burdwan in the case of Succession being no. 109/2009 dated 29.5.2010 wherein it has been mentioned which runs as follows:
“The case record is taken up for passing order. The petitioner Dilip Rakshit has filed the instant case praying for issuance of succession certificate in his favour in respect of scheduled mentioned debts and securities left by his brother Uttam Rakshit who died on 06.10.2008 along with his wife Tapati Rakshit and two minor children, namely,
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Ananya and Ayan in the said accident. Accordingly , the petitioner has filed the instant case praying for issuance of succession certificate in respect of scheduled mentioned debts and securities left by his brother Uttam Rakshit since other three sisters namely Shanti Dey, Sikha Sen and Itika Dey have submitted their joint ‘no objection’ petition in favour of the petitioner. To substantiate the case the petitioner Dilip Rakshit examined himself as PW-1 and proves the original death certificate of the deceased persons as Ext.-1 Series, the paper publication as Ext.-2. One of the married sisters, namely, Sikha Sen and brother Pradip Rakshit examined themselves as PW-2 and 3 respectively and proved their respective joint consent petition as Ext. 3&4. Considering the facts and circumstances of the case this Court is of the opinion that the prayer as sought for by the petitioner should be allowed since the other legal heirs and successors have given their consent in favour of the petitioner to get the succession certificate in respect of schedule mentioned debts and securities left by the deceased persons. It is ordered that the succession certificate case no. 109/2009 is allowed on contest.” In view of the said order passed by the Court of District Delegate Burdwan it can safely be said that the present complainant has already been declared as legal heir of the deceased insured by the competent court. Therefore, as the complainant after getting the succession certificate from the competent court had lodged the claim before the Insurance Company, in our view the complainant can be termed as the legal heir of the deceased insured. Admittedly, on that score the Insurance Company did not repudiate the claim. The Insurance Company had repudiated the claim on the ground as the claimant did not lodge the claim within the due period as prescribed in the policy note. Admittedly the complainant could not lodge the claim before the Insurance Company within due prescribed period but in this case the claim is very much unnatural as the
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insured, the nominee and his two children died in the same accident. Therefore, as there was not legal nominee in the said policy the complainant had to rush from pillar to post to get the succession certificate from the competent court and in this way several days had been elapsed, for which the present complainant is not liable. Secondly, after the sad demise of ten family members at a time in the same accident the complainant became so perplexed and got mental shock he was not in a position to search out the debts and the securities of the deceased insured immediately and in our opinion it cannot be possible for a human being. Therefore, the delay which cropped up in this case cannot be termed as unnatural which the Insurance Company under obligation to consider the same. Thus we find that when succession certificate already filed by the complainant to prove the genuineness as legal heir of the deceased the Insurance Company should release the policy money amounting to Rs. 2,00,000=00 immediately with an undertaking that the entire money will be distributed to the other legal heirs according to their share. As the OP-1 did not settle the claim considering the unfortunate and rare circumstances such action can easily be termed as deficiency in service and for this reason the complainant is entitled to get compensation from the OP-1. It is true that for redressal of his grievance the complainant had to rush before this ld. Forum initiating this complaint and incurred some expenses, so in our considered view the complainant is also entitled to get litigation cost.
Going by the foregoing discussion, hence, it is
O r d e r e d
that the complaint is allowed ex parte with cost against the OP-1 and dismissed ex parte without any cost against the OP-2. The OP-1 is hereby directed to pay Rs. 2, 00,000=00 towards the policy sum assured to the complainant within 45 days from the
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date of passing of this order, in default, the above-mentioned amount shall carry penal interest @9% per annum for the default period. The OP-1 is further directed for making payment compensation to the tune of Rs. 1,000=00 due to unnecessary harassment, mental pain and agony and litigation cost of Rs. 1,000=00, which shall be paid by the OP-1 within 45 days from the date of passing of this order. In default, the complainant will be at liberty to put the entire decree into execution as per provisions of law. The complainant is also directed to distribute the amount amongst all the legal heirs of the deceased. If any legal heir is minor then his/her parents will be entitled to get the money and deposit the same into the long term savings either in the Indian Post Office or Nationalized Bank till the minor become major.
Let a plain copy of this order be supplied to the parties free of charge.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Durga Sankar Das) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
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