DATE OF FILING : 04-01-2011.
DATE OF FINAL ORDER : 25-05-2011.
Manika Pramanik,
wife of Late Harendra Nath Pramanik
residing at Village and P.O. Rameswarnagar, P.S. Bauria, ,
District. Howrah,
PIN. 711 310. Complainant.
Versus
- The New India Assurance Company Limited,
Howrah Divisional Office, Unit No. 512200,
at Madhusudan Apartment 2 floor,
P 18, Dobson Lane, P.S. Golabari,
District. Howrah. 711 101.
2. The Divisional Manager,
representing The New India Assurance Co. Ltd.,
Howrah Divisional Office, Unit No. 512200,
at Madhusudan Apartment, 2 floor,
P 18, Dobson Lane, P.S. Golabari,
District. Howrah. 711 101. Opposite parties.
3. The Golden Trust Financial Services,
having its office at 16 R.N. Mukherjee road,
Kolkata.700001. Proforma opposite party..
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Smt. Samiksha Bhattacharya.
Representative for the complainant : Shri Sourav Sengupta,
Ld. Advocate.
Representative for the opposite party nos. 1 and 2
: Shri Rupak Banerjee,
Ld. Advocate.
Representative for the opposite party no. 3 : Smt. Pragya Bhowmick,
Authorised Signatory.
F I N A L O R D E R
This is to consider an application U/S 12 of the C.P. Act, 1986 regarding insurance claim on the ground of deficiency in service.
Fact of the case, in brief is that Late Harendra Nath Pramanik , husband of the complainant, was a field worker of the Golden Trust financial Services, in short, G.T.F.S., proforma o.p. no. no. 3. Harendra Nath Pramanik was covered one Group Janata Personal Accident Insurance Policy, in short, JPA Policy bearing no. 4751220001799 / E No. 47-30789 covering the risk period commencing from 23 April, 2000 ( i.e. the date of issuance of the certificate ) and expiring on 22 April, 2015 ( midnight ) for sum insured Rs. 1,00,000/- ( Rupees One Lakh only ) from the New India Assurance Company Ltd., o.ps. no. 1 and 2 through O.P. no. 3, G.T.F.S.
While the policy was in force, on 19-12-2008, the husband of the complainant, Late Harendra Nath Pramanik, was going towards Panihati by bicycle by the side ways of NH 6 at about 13 hours then one TATA India Car having registration no. WB 34M 8230 coming from the direction of Uluberia in a rush and negligent manner dashed him. As a result of the said accident the husband of the complainant sustained grievous injuries. He was immediately taken to the nearest hospital and thereafter shifted to West Bank Hospital for treatment where even after due treatment, he succumbed to his injuries and expired at about 11-30 p.m. on 21.12.2008. The said incident was immediately informed to the Officer-In-Chargem of Panchla Police Station by the uncle of the deceased namely Basanta Bhandari by a written complaint dated 19-12-2008 which was treated as an FIR and Panchla P.S. Case no. 250 of 2008 was initiated and investigation started by preparing seizure list on 22-12-2008 and charge sheet submitted on 29-10-2009 before the Court of the Ld. C.J.M., Howrah, in G.R. 3693 of 2008 wherein charges were levelled against the driver of the said vehicle U/Ss 279/338/427 and 304(A) of I.P.C. The dead body of the victim was post mortemed where it was found that the death of the deceased policy holder was caused due to the injuries sustained by him in the aforesaid accident.
Thereafter the complainant has undergone through tremendous mental shock and trauma due to sudden death of her husband. Immediately after starting to lead a normal life to some extent, the complainant being nominee / wife of the deceased policy holder lodged her initial claim as per JPA policy in question through the G.T.F.S. on 24-04-2009. Thereafter the O.Ps. no. 1 and 2 sent a claim form to the complainant along with a request by a letter dated 18-06-2009 to furnish certain documents along with completed claim form, the list of which was provided therewith. The G.T.F.S. forwarded the claim on 29-08-2009. The said documents were duly received along with the forwarding letter by the said insurance company on 01-09-2009. It would be pertinent to mention that the field worker certificate issued by O.P. no. 3 dated 21-08-2009 was also forwarded to the insurance company with necessary documents. Since the complainant could not obtain the copy of the F .I.R., seizure list , the charge sheet and branch of other necessary documents at the time of submission of claim form, after obtaining the same she immediately forwarded those documents to G.T. F.S. ( O.P. no. 3 ) which were again forwarded to the said insurance company by a forwarding letter dated 29-05-2010 by G.T.F.S. The same was duly received by the insurance company on 07-06-2010. Thereafter the complainant waited for a considerable period of time for claim but the insurance company did not settle her claim. The complainant wrote a letter to O.P. nos. 1 and 2 on 09-07-2010 through G.T.F.S. for settlement and consideration of her claim. The said letter was forwarded by G.T.F.S. through their letter July 17, 2010 which was duly received by the insurance company on 22-07-2010. But the insurance company did not settle her claim. Hence the application.
O.p. no. 3, G.T.F.S., has been impleaded in this case as proforma opposite party and there is no allegation or claim against them. However, o.p. no. 3 filed a written version supporting the claim of the complainant contending interalia that according to the MOU between G.T.F.S. and the insurance company the JPA policies including the instant policy were issued. The deceased policy holder was their field worker who also obtained the policy in question and after accidental death of the said policy holder his wife / nominee submitted the claim which was duly forwarded to the insurance company.
It has also been contended by o.p. no. 3, G.T.F.S., that the insurance company by two letters cancelled the MOU and the long term JPA policy and as such two writ petitions were filed being no. W.P. 1144/99 and W.P. No. 2343/02 before the Honble High Court, Calcutta, which are still pending. There is no stay order of the Honble High Court in respect of the JPA Policy in question. There is only one interim order restraining the G.T.F.S. from collecting the premium from the JPA policy holders of friends category. The policy in question did not come within the purview of the aforesaid interim order.
It is further contended by o.p. no. 3 that they have no liability for settlement of the claim. Their only duty as per MOU to collect the premium of the policy and remit the same to the insurance company by a consolidated cheque. The G.T.F.S., o.p. no. 3, also issued a certificate certifying that the deceased policy holder was their field worker who is entitled to get the policy in question. So there is no deficiency on the part of the G.T.F.S.
O.ps. no. 1 and 2 contested the case by filing a written version contending interalia that the complainant is wife / nominee of the deceased policy holder. The claim had not be repudiated but could not be settled due to the non-submission of some essential documents viz. agency certificate ( identity card ) of the claimants. In their written version they stated that impossibility to render service does not tantamount to deficiency in service. If any insurance claim cannot be considered by insurance company for non-submission of appropriate documents, then the same cannot be said to be deficiency in service. Counsel for o.ps. no. 1 and 2 states that the premium was collected by the G.T.F.S. from the deceased husband of the complainant, hence instant claimant cannot deny the legal niceties arises between the principal insured G.T.F.S. and the insurance company.
It is further argued by the o.ps. no. 1 and 2 that the insurance company had filed one interlocutory petition number being G.A. 1425 of 2009 in conjunction with W.P. No. 2343 of 2002 praying for modification of the interim order dated 01-10-2002 staying the operation of cancellation of all long term JPA policies show that claims made and order for payment passed by various Forums / Courts / Ombudsmn and further claims being made and / or be made under the policies of insurance issued by the insurance company i.e. the writ petitioner under the Memorandum of Understanding dated 30-12-1998 by keeping it abeyance till final disposal of W.P. No. 2343 of 2002 in order to restrain threats with arrest in various execution proceedings and orders compelling to pay of the claims and to provide for reliefs against impossibility for recompense, in case of the failure of the Writ Petition before the Honble High Court.
That in the aforesaid interlocutory petition the insurance company also prayed before the Honble High Court for direction to create a separate fund for the payment of the claims or to deposit such amount before the Honble High Court in order to save the unwarranted loss of public fund that would provide for relief against impossibility to recompense, in the case of the failure of the Writ Petition.
That since the legal dispute between the insurance company and the G.T.F.S. is still pending before the Honble High Court and the insurance company had moved before the Honble High Court by filing the aforesaid interlocutory petition and made prayers as aforesaid, so the entire matter is sub-judice before the Honble High Court and the present case should be stayed till the final order passed by the Honble High Court in the matter. The Honble High Court being the Superior Court of this State has authority to take up any matter which is simultaneously going on to any other sub-ordinate Court as per the Constitution of India. If any order is passed by the Learned Forum prejudicing the interest of the insurance company during the pendency of the aforesaid interlocutory petition before the Honble High Court, it would create great inconvenience to the insurance company So at this juncture the insurance company can not illegally take any decision regarding the payment of the claim amount to the respective claimants during the pendency of the matter before the Honble High Court, and also without verifying the agency certificate ( Identity Card ) of the claimants. The claim had not been repudiated but could not be settled due to the non-submission of aforesaid essential documents.
The O.Ps. no. 1 and 2 also filed affidavit of evidence. In this affidavit they have argued that the field worker certificate which was produced by the G.T.F.S. declaring their claimant as their field worker in course of their proceeding is a fabricated document and does not have any legal value. Neither the claimant nor the G.T.F.S. had produced any documentary evidence vide the photo identity card or agency lincece or kind of proof at the time of lodging the claim and now only to hide their misdeed and illegal act G..T.F.S. is manufacturing such field worker certificate and is thereby trying to mislead the Ld. Forum. The O.P. no. 1 and 2 also submitted an investigation report by their investigator for insurance claim. According to that document they have claimed that the complainants husband was not at all an agent of G.T.F.S. but merely was an employee of Forst Gloster Industries, Howrah. The complainant gave her written declaration on 10-03-2011 to this effect. They have further stated that the said surveyor vide his letter dated 17-03-2011 made certain queries before the G.T.F.S. for proper investigation and to remove the ambiguity as arises in the matter but the G.T.F.S. did not make any response to the said letter till date.
The counsel for o.p.1 and 2 argued that the instant complaint be dismissed or kept in abeyance till the final disposal of the aforesaid interlocutory petition for the ends of justice.
In view of the pleadings of the parties following points arose for determination :
Is there any deficiency in service on the part of the o.ps. ?
Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986 ?
Decision with reasons :
Points no. 1 and 2 :
Both the points are taken up together for the sake of convenience of discussion and for brevity.
It appears from the record of G.T.F.S. that Late Harendra Nath Pramanik being a field worker of G.T.F.S., o.p. no. 3, who obtained the JPA policy in question on 23-04-2000 through G.T.F.S. On 19-12-2008 he met with a road accident at about 13 hours when he was going by bicycle and a TATA India Car coming with an excessive speed ran over him and he sustained grievous injury. Then he was taken to the nearest hospital and thereafter shifted to West Bank Hospital for treatment where even after due treatment, he succumbed to his injury and expired at about 11-30 pm. on 21-12-2008. After receiving the complainant, the police authorities started investigation and filed a charge sheet / final police report U/S 279/338/427 and 304(A) of I.P.C. Be that as it may.
It also appears from the record that the complainant lodged her initial claim intimation on 24-04-2009. Accordingly the insurance company sent a claim form to the complainant with their letter dated 18-06-2009 to furnish certain documents along with the completed claim form. The complainant submitted the documents, which were with her, to the G.T.F.S. and the G.T.F.S. sent those documents with their forwarding letter to the insurance company on 01-09-2009. It is also relevant from the document that the complainant could not send the copy of F.IR,. the seizure list, the charge sheet and branch of other necessary documents at the time of submission of claim form as she did not obtain the same at that time. After receiving those documents she immediately forwarded the same to the G.T.F.S. which was again forwarded to the insurance company by the G.T.F.S. by a forwarding letter dated 29 May, 2010.
It further appears from the record that the complainant produced all the documents through the G.T.F.S including the document issued on 21-08-2009 by G.T.F.S. certifying that deceased policy holder was their field worker. In spite of production of all these documents regarding the status of the policy holder the insurance company did not consider the claim.
Now turning to the defence taken by the o.p. insurance company in their written version it appears that one interlocutory petition number being G.A. 1425 of 2009 in conjunction with W.P. No. 2343 of 2002 praying for modification of the interim order dated 01-10-2002 staying the operation of cancellation of all long term JPA Policies show that claims made and orders for payment passed by the various Forums / Courts / Ombudsman.
The policy in question was not also cancelled by the insurance company at any point of time. In fact, the JPA policy in question was in force at the time of accidental death of the deceased policy holder. So the insurance company shall have no ground to be escaped from their own liability in terms of the policy condition.
The only question we have to decide that whether the deceased policy holder was the field worker of G.T.F.S. or not . The G.T.F.S. claimed that the deceased policy holder was certainly their field worker. They have produced one document before us where it reveals that Late Harendra Nath Pramanik was under the scheme of 15 years JPA Policy, S. No. 1641, Reference no. 0172750/200000023573, sum insured Rs. 1,00,000/- but that document does not disclose regarding the status of the deceased policy holder.
Again the O.Ps. no. 1 also produced other document i.e. Surveyors report which opines that Late Harendra Nath Pramanik was working in Forst Gloster Industries Ltd., Howrah, and income proof certificate has been produced by the claimant. In that report it reveals that Late Harendra Nath Pramanik was not a member or field worker of M/s. Golden Trust Financial Services. This has been confirmed by insureds wife, Mrs. Monika Pramanik. They have also produced one document in which wife of the deceased policy holder has declared that Late Harendra Nath Pramanik was not working as an agent upto 18-12-2008.
The counsel for O.P. no. 3 challenged the above mentioned document as the surveyors report was prepared after the death of the policy holder. We also find that the document furnishing the status proof of the policy holder as a field worker is also prepared after the death of the policy holder. As per MOU we find one clause that The policy will be renewed in every year in time till the last insured person is in our book. But the O.Ps. did not produce any document which shows the renewal of the above policy. The complainant and the O.P. no. 3 argued that as per the declaration made by the wife of the deceased policy holder, Late Harendra Nath Pramanik, was not the agent of the G.T.F.S., but he was the field worker of the G.T.F.S.
But no document produced before us reveals that the deceased policy holder was certainly their field worker .
But the policy in question was in force and was not repudiated by the insurance company or was not cancelled by the insurance company in due course after the initiation of the policy. Therefore, the complainant / nominee is entitled to get the policy amount in question. The O.P. nos. 1 and 2 have not repudiated the claim but did not settle the claim due to want of certain documents. It is settled in law if insurance company cannot settle any claim due to want of certain documents that does not tantamount to deficiency in service.
One point should be mentioned here. Although the complainant made the O.P. no. 3 as proforma O.P. we are in the view that there is also liability on the part of O.P. no. 3 to settle the claim of the complainant.
Therefore, considering the facts and circumstances of the case having due regard to the materials on record the Forum holds and concludes that the complainant is entitled to get appropriate order in terms of Section 14 of the C.P.Act,1986 after fulfilling the required formalities.
Points under consideration are accordingly decided.
In the result the application succeeds.
Hence,
O R D E R E D
That the consumer complaint case is allowed on contest against o.ps. without cost.
That the O.P. no.3 G.T.FS. is hereby directed to produce the status certificate of the deceased policy holder at the time of holding the policy in question and the report of the deceased policy holder as a field worker and communicate the information to the insurance company within a month from the date of this order.
That the O.Ps. no. 1 and 2 are directed to settle the claim of the complainant in accordance with the law and communicate the decision to the complainant as expeditiously as possible and preferably within a period of three months from the date of receipt of aforesaid document.
Supply copy of the order to the parties, free of costs, as per rule.
