DATE OF FILING : 10-06-2009.
DATE OF FINAL ORDER : 21-06-2010.
Salama Bibi,
wife of late Sk, Nur Haque,
village Dubrajdighi, Majipara, P.O. Bajepratappur,
District. Burdwan, Complainant.
Versus –
1. The New India Assurance Company Limited,
and its members of the Board having common seal
and perpetual succession, service through the
Chairman / Director, 87, No. Mahatma Gandhi Road, Fort,
Mumbai. 400 001.
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
3. The Golden Trust Financial Services,
having its office at 16 R.N. Mukherjee road,
Kolkata. 700001. Opposite parties.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainant : Complainant herself.
Representative for the opposite party nos. 1 and 2
: Ex parte.
Representatives for the opposite party no. 3 : Shri Abhik .K. Dutt.
Shri Sovan Ghosh,
Authorised Signatories.
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 Sk. Nur Haque, husband of the complainant, was a field worker of the Golden Trust financial Services, in short, G.T.F.S., o.p. no. no. 3. Late Sk. Nur Haque was covered one Group Janata Personal Accident Insurance Policy, in short, JPA Policy bearing no. 4751220001799 / E No. 47-30737 covering the risk period commencing from 31st March, 2000 ( i.e., the date of issuance of the certificate ) and expiring on 30th March, 2015 ( midnight ) for sum assured Rs. 1,00,000/- ( Rupees One Lakh only ) from the New India Assurance Company Ltd., o.ps. no. 1 and 2 through G.T.F.S., o.p. no. 3.
While the policy was in force on 12-03-2004, the husband of the complainant died of accident during treatment at Burdwan Medical College and Hospital The complainant submitted claim form as per norms before o.p. no. 3 who in turn sent required documents to o.p. no. 2 vide letter dated 1 April, 2004. Thereafter series of correspondences took place amongst the complainant and the o.p. on different dates viz. 8 June, 2004, 29 September, 2004, 25 November, 2005, 31 December, 2005, 13 February, 2006, 23 February, 2006, 23 March, 2006, 27 April, 2006, 1 June, 2006, 16 November, 2006 but to no effect ( all xerox copies of the correspondences are annexed with the complaint ). As the complainant was being denied claim she, as a last gesture had to send a lawyers notice on 26 February, 2007 to the o.ps. no. 1 and 2 inviting them to cause payment of Rs. 1,00,000/- together with multiple interest at 18 percent per annum from 12 May, 2004 to till date of payment and further sum of Rs. 50,000/- on account of mental harassment and Rs. 50,000/- for litigation costs.
O.p. no. 2 by his letter dated 1 March, 2007 asked the complainant to comply with certain requirements. Needless to record that the requirements asked to be fulfilled had been done by the complainant earlier. The o.p. no. 3 ( letter dated 7 March, 2007 ) also made it clear before o.p. no. 2 that no response was there from the end of o.p. no. 2. The complainant replied the letter of o.p. no. 2 through her ld. Advocate on 28 March, 2007. As inspite of all efforts and completion of all formalities o.p. nos. 1 and 2 denied the claim the complainant filed her case before DCDRF Kolkata Unit – II ( CDF/Unit II/CC NO. 220 of 2008). The aforesaid Forum has passed the order ( dated 24 April, 2009 ) as That the complainant is allowed to withdraw the complaint and if advised may file the same in appropriate Forum.
Challenging the aforesaid order the complainant moved a writ application being W.P. No. 9673 (W) of 2009 before the Honble High Court at Calcutta. The writ application was dismissed by an order dated 20 November, 2009 with liberty to prefer appeal under Section 15 of the Act.
In compliance with the above order an appeal being F.A. No. 44 of 2010 was preferred before the Honble State Commission and the appeal was disposed of 4 February, 2010 with liberty to file appeal in appropriate Forum. In compliance with the order this application was filed by the complainant before the D.C.D.R.F., Howrah.
Inspite of receiving the letter dated 28 March, 2007 the o.p. no. 2 remained silent till date. Hence the complainant prays for Rs. 1,00,000/- ( the sum assured of the JPA policy ) along with interest 18 percent per annum from 12 March, 2004 to the date of payment and compensation and litigation cost from o.p. nos. 1 to 3. Hence the application.
O.p. nos. 1 and 2 did not appear in this case though the notices were duly served upon them. So the case was heard ex parte against them.
O.p. no. 3, G .T.F.S., appeared in this case and filed their written version, affidavit on evidence and B.N.A. 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 polices 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.
Though o.ps. no. 1 and 2 did not appear before DCDRF, Howrah, it should be mentioned here that o.ps. no. 1 and 2 appeared and filed their written objection before DCDRF, Kolkata, Unit – II. It was reflected in the order passed by DCDRF, Kolkata, Unit – II, ( Case no.CDF/Unit II/CC NO. 220 of 2008,order dated 24-04-2009 ) that o.p. no. 2 has mentioned that Sk. Nur Haque was their field worker who was extended insurance coverage of JPA policy by o.p. no. 1 under Group Insurance Scheme being facilitated by the o.p. no. 3 i.e., GTFS. In the written version filed by o.p. nos. 1 and 2 before DCDRF, Kolkata, Unit – II, it was stated that neither the GTFS nor the claimant has provided documentary proof regarding the status of the certificate holder. They have also mentioned that impossibility to render service does not tantamount to deficiency in service. If any insurance claim cannot be considered by the insurance company for non -submission of appropriate documents, then the same cannot be said to be deficiency in service. It is incumbent upon the claimant as well as the GTFS to establish the status of the claimant by way of documentary evidence to establish that they do no fall under the category Friends.
O.ps. no. 1 and 2 in the aforesaid written version asked the complainant as well as GTFS, the o.p. no. 3 to furnish the agency certificate and has no intention to deny the instant claim. Moreover, as the legal dispute between the insurance company and the GTFS is still pending before the Honble High Court, Calcutta, and at this juncture the insurance company cannot illegally pay the claim amount without verifying the agency certificate. The claim has not been repudiated but could not be settled due to non submission of aforesaid essential documents.
But as o.ps. no. 1 and 2 did not appear before DCDRF, Howrah, it is the view of the Forum that they have nothing to say. .
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. 1 and 2 ?
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 that Late Sk. Nur Haque, husband of the complainant, was a field worker of the Golden Trust financial Services, in short, G.T.F.S., under coverage Insurance Policy bearing no. 4751220001799 / E No. 47-30737 covering the risk period commencing from 31st March, 2000 ( i.e., the date of issuance of the certificate ) and expiring on 30 March, 2015 ( midnight ) for sum assured Rs. 1,00,000/- ( Rupees One Lakh only ) from the New India Assurance Company Ltd., o.ps. no. 1 and 2 through G.T.F.S. The husband of the complainant died of accident on 12-03-2004 while he was under treatment at Burdwan Medical College and Hospital. Accordingly all papers supporting the claim was submitted by the complainant before o.p. no. 3 who in turn sent required documents to o.p. no. 2. Be that as it may.
It also appears from the record that the complainant submitted all relevant documents along with the claim form claiming the assured amount. But the insurance company, o.ps. no. 1 and 2, did not settle the matter.
By dint of MOU executed between the o.ps. no. 1 and o.p. no. 2, o.p. no. 3 GTFS is only obliged to collect premium from the proposer and to remit the same to the o.p. no. 1 – The New India Assurance Company Ltd. by a consolidated cheque with a list of insured person and apart from this there is no other liability to be borne by o.p. no. 3, GTFS, in this regard. The New India Assurance Company Ltd. will be solely and directly responsible in case of any claim contingent upon death, permanent disability, injury of the insured person subject to terms and conditions, warranty and exclusion of the policy concerned. It is evident from the documents that the said insurance company has issued the said certificate on the basis of proposals and declarations submitted to the company by the said insured, since deceased, which necessarily implied that the said insurance company had issued the certificate after being completely satisfied with the declaration as made in the proposal form by the deceased insured person. The o.p. no. 3 helps the claimant in completing necessary formalities for processing of their claim in the event of arising the same. It is very much pertinent to mention that the said firm is not an agent of any insurer or an insurer itself and as such, the said firm has no liability whatsoever to settle the claim.
It further appears from the record that the complainant produced all the documents through the G.T.F.S. which also confirmed that the deceased policy holder was their field worker. Inspite of production of all these documents regarding the status of the policy holder the insurance company did not consider the claim. O.p. nos. 1 and 2 have kept in abeyance payment of claim to the complainant. The o.ps. no. 1 and 2 are estopped from backing out of the promise out of payment after taking premium.
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.
Now turning to the merit of the claim the Forum is of the view that the complainant, being nominee of the deceased policy holder produced all the relevant documents in support of her claim but the insurance company did not settle the claim.
It is settled in law that when the insurance company deliberately makes delay in settlement of claim which is recoverable by the complainant under the terms of the policy, it amounts to deficiency in service (vide R.K.Industries-vs.-N.I.A. Company – 1985(2) CPJ 87 NC).
Therefore, considering the facts and circumstances of the case having due regard to the materials on record the Forum holds and concludes that the insurance company has committed deficiency in service by not settling the insurance claim within a reasonable time and for the said reason the complainant is entitled to get appropriate order in terms of Section 14 of the C.P.Act,1986.
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. no. 1 and 2 with cost assessed Rs. 10,000/- and dismissed against o.p. no. 3, G.T.F.S., without cost.
That the complainant shall get an award of compensation of Rs. 1,00,000/- on account of assured sum of the JPA Policy in question.
That the complainant shall also get an award of compensation of Rs. 30,000/- against o.ps. no.1 and 2, insurance company, on account of causing harassment and mental agony.
That the o.ps. no. 1 and 2, insurance company, are jointly and severally liable to comply with this order and they are directed to pay the aforesaid amount of compensation and cost to the complainant within 30 days hereof in default the said amount shall bear further interest at 8 percent per annum from the date of order till the payment or recovery.
Let certified copy of the order be supplied to the parties, free of costs.
