DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.25/2008. Date of filing of the Case: 28.03.2008 Complainant-Dhr. | Opposite Parties-Jdrs. | Smt. Durga Rani Sarkar (68 yrs) W/O. Lt. Akshay Kumar Sarkar, Vill. Gobindapara, P.O. Malatipur, P.S. Chanchal, Dist. Malda PIN – 732149. | 1 | The Senior Divisional Manager National Insurance Company Ltd. Division – III. 8, India Exchange Place, Ground floor Kolkata – 700 001. | 2 | The Divisional Manager National Insurance Company Ltd. Malda Division, 93 – A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda.PIN.732101 | 3 | The Manager, Golden Trust Financial Service, (Near State Bank of India, Rathbari Branch), P.O. Rathbari, N.H. 34., P.S. Englishbazar, Dist. Malda. | 4 | The Manager The Golden Trust Financial Services S.B. Manson, 16, R.N. Mukherjee Road, Kolkata – 700 001. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Tapan Kr. Roy, Krishnagopal Das, Uttam Chowdhury, Advocates. For the O.Ps.: For the O.P. Nos. 1 & 2. Arijit Neogi, Maloy Bharati, Advocates For the O.P. Nos. 3 & 4. Md. Ziaullah & Nilkantha Kundu, Advocates. Order No. 08 Dt. 17.07.2008 The fact of the case in brief is that the deceased son late Dilip Kumar Sarkar subscribed one Group Janata Personal Accident Policy No.100300/47/01/9600022/02/96/30395 from the O.Ps. with sum assured of Rs.2 lakh on payment of fees of Rs.587 and the same was valid from 23.2.2003 to 22.2.2013. The petitioner was selected as nominee of the policy. On 26/27-04-04 the insured expired by a road accident at Samsi Rly. Station falling down from Kamrup Express. Post mortem examination of dead body of Dilip Kr. Sarkar was done. The news of the incident of death was reported to the O.Ps. and duly filled in claim form was received by O.P. No.3 on 25.11.2004. On 20.10.2005 O.P. No.1 repudiated the claim and a further prayer was submitted on 30.01.2006 to the O.Ps. to consider the claim. The petitioner then appeared before Ombudsman and after hearing of both parties on 23.05.2007 O.P. No.1 (name…NIC Ltd) was directed to complete the investigation process and to review the decision of repudiation. It is also stated that investigator was appointed on 31.08.2007 but till date the O.P.s did not disburse the claim this gives rise to the petition of complaint for the reliefs as have been made out in the petition of complaint. O.P. No.1 & 2 and O.P. No.3 & 4 have filed separate joint written versions denying all material allegations. O.P. National Insurance Company denies that O.P. No.2 is not under the control of O.P. No.1 and also stated that alleged disputed matter has already been decided by the Ombudsman according to the provision of Redressal of public grievance Rule 1998. It is further contended that if the petitioner is aggrieved against the findings of judgement he is at liberty to prefer an appeal before proper Forum and re-adjudication of the case before this Forum is absolutely barred by law of jurisdiction. O.P. No.3 & 4 have contended that O.P. No.1 has an exclusive right and authority to entertain the process and settlement of the claim. These O.Ps. attach no liability for deficiency of service as explained in the petition of complaint, hence the case against O.P. No.3 & 4 is liable to be dismissed. On pleadings of both parties the following points have come up for effective disposal of the case. 1. Whether the service of the O.Ps. suffers from deficiency? 2. Whether the petitioner is entitled to the reliefs as prayed for? :DECISION WITH REASONS: Point Nos. 1 & 2: Both the points are taken together for simultaneous disposal as they are inter-related. In appears from the record that the petitioner has filed affidavit in chief as PW. – 1 and she corroborated the petition of complaint. It is also stated that the wife of deceased insured Bibhra Mandal died on 17.7.2007 and she has become the sole heir of the claim. She has filed xerox copies of J.P.A. Policy No.100300/47/01/9600022/02/96/30395 valid from 23.2.2003 to 22.2.2013 issued by N.I.C. Division –II (Ext. – 1), first premium receipt No.8661 (Ext.-2), death certificate of Dilip Kr. Sarkar (Ext. – 3), death certificate of Bibhra Mandal w/o. L. Dilip Sarkar (Ext.-4), filled up claim form dated 5.10.04 (Ext.5). Intimation of sending of completed claim form and other relevant documents to O.P. No.1 dated 5.10.04 of GTFS (Ext. – 6), U.D. Case No.24/04 dated 27.4.2004 of Malda G.RPS (Ext.7), final report of police enquiry (Ext.8), post mortem report-dated 28.4.04 of Dilip Kr. Sarkar (Ext.9), report of the office Insurance ombudsman dated 23.5.2007 (Ext.10) and letter of Sr. Divisional Manager dated 7.8.2007 to Sr. Divisional Manager Malda (Ext.11). The above documents have been marked exhibits as noted against each with consecutive numbers. In the cross examination by O.P. No.1 & 2 the P.W. – 1 stated that Bibhra Mandal, w/o. deceased Dilip Sarkar expired when she filed this complaint. She also admitted the deceased Bibhra accompanied her before Insurance Ombudsman. She denied that she is not entitled to the claim. In corss examination by O.P. No. 3 & 4 she admitted that these O.P.s supplied claim form and arranged to send the same alongwith relevant documents to O.P. No. 1 & 2. The receipt copy of the same is marked Ext.A. None among O.P. No.1 & 2 and O.P. No. 3 & 4 adduced any other evidence in support of their respective cases. Heard, arguments of Ld. advocate for O.P. No.1 & 2. It is not disputed that the deceased son of the petitioner subscribed the J.P.A. Policy in question who died in a rail accident on 27.4.2004 at Samsi Railway station by Kamrup Express and Malda GRPS U.D Case No.24/04 dated 27.04.2004 was started (Ext.7) followed by his death certificate (Ext.3), Ext.8 being the final report of I/C Malda Town GRPS where in it reveals that on receipt of memo from Samsi Rly. Station the I/O reached near Samsi Rly. Station detected one dead body subsequently identified as Dilip Sarkar, lying on the Rly. Track, cut into pieces. One journey ticket No.9866, 9987 (GS) dated 26.4.2004 from Malda Rly. Station to Samsi was recovered. It was ascertained by the I/O that up Kamrup passenger left Samsi at 03:05 hrs on 26/27-04-04 and incident was reported by Rly. staff of ASM Samsi on 27/4/04 at 05:30 AM. The dead body was sent for Post Mortem examination (evidenced vide Ext.8) and Dr. M. L. Das opined the death due to effect of antimortem injuries, and it was case of accidental death by fall down from up Kamrup train. It appears from record that claim form with relevant documents were received by O.P. No.1 through O.P. No.3 & 4 on 18.2.2005 under dated seal and signature (Ext.A), Ext. 10, which is the recommendation of ombudsman, Kolkata on the complaint of the present petitioner reveals that there was a direction to the insurance authorities to complete the entire process of investigation of claim and review the decision of repudiation within 30 days from the date of receipt of consent letter from the complainant hearing before ombudsman was held on 23.5.2007. A perusal of Ext.11 it appears that O.P. No.1 issued the memo dated 7.8.2007 to O.P. No.2 to appoint one investigator to investigate the claim against JPA claim No.1003004704969000934 & Policy No.10030047-019600022. P.W. – 1 stated in affidavit in chief that no claim has been settled till date. Ld. advocate for O.P. No.1 & 2 during argument raised strong objection to entertain such complaint on question of jurisdiction. He has contended that the alleged matter of disputes has already been decided by the ombudsman who become an Arbitrary according to the provision of Redressal of Public Grievance Rules 1998 and accordingly the disputes in question has already adjudged and if the petitioner is aggrieved against the findings of judgment she will have the liberty to prefer appeal before proper Forum and as such the alleged claims for re-adjudging by placing before this Forum is absolutely barred by law of jurisdiction. Ld. advocate for O.P. No.3 & 4 submitted that they are not proper authority to settle the claim and they have given proper service to the petitioner by sending her claim form with all relevant document to O.P. No.1 on proper receipt. In view of above argument of O.P. No.1 & 2 this Forum finds opportunity to take the assistance of the observations in first appeal No.1440 of 2005 arising out of the case Brij Kishore Aggarwal :VS: New India Assurance Company Ltd. and others referred to 2006 CTJ 694 (CP)(SCDRC) and National Commission’s Judgement in Kamleshwari Prasad Singh :VS: National Insurance Co. Ltd, 2005 CTJ – 747 (C.D) wherein it was held “that role of ombudsman is to investigate individual complaints against mal administration especially that of public authorities. The ombudsman does not discharge any judicial or quasi – judicial functions. The complainant may not accept the decision of the ombudsman and on the rejection of his claim by the insurer, can approach District Forum if he so likes. It was further held that the purpose of appointing ombudsman is to see that the disputes are settled quickly, but while doing so he does not discharge judicial or quasi-judicial functions.” In para 13 of the observation of National Commission’s judgement referred to hereinabove it is stated that “In view of the above discussion, it is held that the decision of the ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act. In view of above it is concluded that this Forum has rightly entertained the petition of complaint and adjudicated the case of the petitioner having gone through the evidences on record and taking into consideration of the discussion referred to hereinabove. It can safely be concluded that the service of the O.P. No.1 & 2 (The Senior Divisional Manager, National Insurance Company Ltd. Division – III., 8, India Exchange Place, Ground, floor Kolkata – 700 001 and The Divisional Manager, National Insurance Company Ltd. Malda Division, 93 – A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda), suffers from deficiency and the petitioner is also entitled to compensation for mental agony & harassment. No evidence is available against O.P. No.3 & 4, hence case against them is liable to be dismissed. Proper fees have been paid. Hence, ordered, that Malda D. F. Case No.25/2008 is decreed on contest against O.P. No.1 & 2 (The Senior Divisional Manager, National Insurance Company Ltd. Division – III., 8, India Exchange Place, Ground, floor Kolkata – 700 001 and The Divisional Manager, National Insurance Company Ltd. Malda Division, 93 – A, Rabindra Avenue, 2nd floor, P.S. Englishbazar, P.O. & Dist. Malda) and dismissed against O.P. No.3 & 4 (The Manager, Golden Trust Financial Service, (Near State Bank of India, Rathbari Branch), P.O. Rathbari, N.H. 34., P.S. Englishbazar, Dist. Malda and The Manager, The Golden Trust Financial Services, S.B. Manson, 16, R.N. Mukherjee Road, Kolkata – 700 001). The following orders are passed. 1. The petitioner do get Rs.2,00,000/- (Rupees two lakh) only towards the claim. O.P. Nos.1 & 2 jointly and severally do pay Rs.2,00,000/- (two lakh) within 30 days from date failing which entire amount shall carry interest @9% per annum. 2. The petitioner do get Rs.5,000/- (Rupees five thousand) only towards compensation & Rs.2,000/- (Rupees two thousand) only towards litigation cost. O.P. Nos.1 & 2 do pay Rs.5000/-. & Rs.2,000/- jointly & severally towards compensation & litigation cost respectively within 30 days from date of receipt of the order. The petitioner will be at liberty to take recourse to law in case of failure to comply the order by the O.Ps. Let copy of the order be given both the parties free of cost. Sd/- Sd/- Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda |
