Order No. 08 Dt. 11.10.2007
The complainant’s case, in brief, is that his elder brother subscribed one Janata Personnel Accident Insurance Policy through O.P. No.4 for a sum of Rs.50,000/- for which premium was paid and accepted wherein the present petitioner has been shown as nominee and the policy was issued. But the insured died on account of an accident on 06.08.2003 and after a straneous endeavour the petitioner could obtain the corrected copy of death certificate on 25.01.2006 from KMC, Kolkata and thereafter he submitted claim form along with all relevant documents to G.T.F.S., Malda on 17.03.2006 who, in their turn, sent the same to the Sr. Divisional Manager NIC, (O.P.No.1). But inspite of exercise of his best effort he has been kept in dark till date giving rise to the instant application for the reliefs as have been mentioned in the petition of complaint.
O.P. Nos. 1 & 2 contest the case by filing a joint written version denying material allegations challenging the limitation and other points of law and submit that the present case is hit by order 7 Rule – 11 CPC. Both O.P. Nos. 3 & 4 also contest the case by filing joint written version contending therein that they have acted honestly and sincerely to process the papers and forwarded the same to the Sr. Dvnl. Manager NIC vide letter No.GTFS/CLAIMS-SKB/TPA/09/99 DT.13.04.2006 and hence the question of deficiency in service is not tenable and hence prayer is for dismissal of the petition of complaint.
On pleadings of both parties the following points have been raised for effective disposal of the case.
- Whether the petitioner be termed ‘consumer’ in view of Sec.2(1)(ii) of the Act.
- Whether the case is barred by limitation.?
- Whether the service of the O.Ps. suffers for deficiency?
- Whether the petitioner is entitled to reliefs as prayed for?
DECISION WITH REASONS
Point No.1.
A plain reading of clause (ii) of sub-section (1) of Section 2 of the Act, which specifically pertains to the hiring of services, would make it manifest that the Statute visualizes two distinct categories of “consumers” thereby. Inevitably, the first one is the original consumer who hires such services for a consideration. The definition, however, does not stop at that. It proceeds further to bring within its ambit a second category also, namely, any beneficiary of such services, when these are availed with the approval of the original consumer. The definition is, thus, an inclusive and extensive one. Designedly it brings within its scope not only the person who has the privity of contract with the person hiring out the services, but also subsequent beneficiaries thereof, even though the latter may not be a party to the original contract or have a direct nexus therewith.
In the true spirit of consumerism, the act has not confined itself to the original hirer alone, but equally extended it so the subsequent beneficiaries of the services as well the aforesaid view is buttressed when reference to clause (i), pertaining to the consumer who buys goods for consideration. Herein also the definition does not confined himself the original subscriber of JPA Policy, but it further extends to the beneficiary, who is nonelse but the present petitioner, with the approval of his deceased elder brother as is evident from Ext.2 wherein the present petitioner as a brother of the deceased has been shown as nominee. The larger principle which permits the definition with regard to the purchaser of goods and beneficiary of services is thus identical which disposes of present points in the affirmative.
Point No.2
It has been urged on behalf of both O.P. No.1 & O.P. No.2 that the present petition is barred by limitation and in support thereof specific averment has been made in para 5 of the written statement that the present opposite parties have got no intimation either from G.T.F.S. or from the petitioner and about lapse of two and half years there appears no satisfactory explanation about the cause of delay about the non-submission of claim form.
In this regard this Forum finds opportunities to go through the exhibits as well as the testimony of the petitioner himself. As P.W. – 1, petitioner has stated after about one and half years after death of his elder brother under existence of such JPA, and thereafter he submitted claim form alongwith all relevant documents to G.T.F.S.
On scrutiny of the records it further appears that after straneous endeavour he could obtain the copy of the FIR, (Ext.3) and C.S/Fr (Ext.4) copy of death certificate of his deceased brother (Ext.5) manifest that the same has been issued on 2.7.2004 and the name of his deceased brother has subsequently corrected on 25.01.2006. Be it further noted herein that is appears strong to see that name of his deceased brother has been corrected by MC & H Kolkata on 26.09.2005 and Ext.6 reveals that date of death is 06.08.2003.
All the documents referred to herein above clearly manifest that the delay is of all the machineries of which the petitioner had no hand and the claim form has been submitted to G.T.F.S. on 17.3.2006, who, in their turn sent the form alongwith all documents to O.P. No.1 on 13.04.2006 vide Ext.9.
Now the pertinent question arises as to whether the instant claim is barred by limitation we have made it clear in our discussion held supra that the cause of delay was not for the petitioner but for the dilatory procedure applicable in all levels of various departments including MC & H. & KMC, Kolkata. In this connection this Forum is fortified with the observation of our Appex Court wherein it has been pleased to observe that the delay is required to be condoned in the interest of justice where no gross negligence or deliberate in action or lack of party seeking condonation of delay”. It has also been observed in (1988) 7 Sec.23 the dispute between the parties and to advance substantial justice………… Rules of limitation are not to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy for plea.”
In this connection it may be noted that in the present case the petitioner himself has not adopted any dilatory tactics in submission of all relevant documents before the authority. On the contrary, he has exercised his best effort to obtain all documents from different authorities which has consumed a lot of time on the part of the petitioner because of his being a man of rustic village people in the district of Malda. That apart, we must not shut his eyes in a case like the present one where one month time has been fixed for submission of all documents so that the authority may take action promptly. This is in the form of direction but herein it would not of place to mention that this direction is mandatory.
In the premises, this Forum is of considered opinion that the instant proceeding is not bad for limitation which disposes of the present point in the negative.
Point No.3
O.P. Nos. 1 & 2 has taken the plea in para – 5 on their written version even after lapse of two and half hears they have not got any written explanation from the petitioner about the cause of delay behind non-submission of claim form but this matter has exhaustively been discussed hereinabove.
Nothing has also been urged on behalf of O.P. Nos. 1 & 2 that the claim of the petitioner is vague and baseless, nor his claim has been repudiated only the plea taken on their behalf is that the petition be liable to be rejected under Order – 9 Rule – 7 CPC. True that the Statute speaks in un-ambiguous term the reason for rejection of plaint but such rule, we afraid, does not appear to be applicable in a case which comes within ambit of Consumer Protection Act. nor it can be said that the allegation is vaxious and in such circumstances the inevitable conclusion is that the service of O.P. Nos. 1 & 2 does suffer from deficiency which disposes of the present point in the affirmative.
Point No.4.
The petitioner has proved his case through oral and documentary evidence and hence there is no hesitation to accept the same that the petitioner has become entitled to reliefs as prayed for.
Proper fees has been paid.
Hence, ordered,
that the Malda D.F. Case No.42/2007 is allowed on contest against O.P. Nos. 1 & 2 (The Sr. Divisional Manager, National Insurance Co. Limited, Division – III, 8, Indian Exchange Place [Ground floor], Kolkata – 1 and The Divisional Manager, National Insurance Co. Limited, Malda Division, 93 – A, Rabindra Avenue, [2nd floor], P.O. & District Malda) and stands dismissed on contest as against O.P. Nos. 3 & 4. The petitioner do get award of Rs.50,000/- (Rupees fifty thousand) only.
O.P. Nos. 1 & 2 jointly and severally do pay aforesaid quantum of money within 30 days of date failing which the petitioner be at liberty to take recourse to law.
Let the copy of this order be given both the parties free of cost.
