In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. C.C/23 /2016
Date of filing: 09/02/2016. Date of Final Order: 22/03/2017
Sri Hiranmoy Mondal.
Vill.- Chandraprasadpur.
P.O.- Purandarpur.
Dist- Murshidabad, PIN-742171. ……………………………... Complainant
- Vs-
1).The Sr. Divisional Manager.
National Insurance Co. Ltd. Div. III.
8, India Exchange Place ( Ground Floor),
Kol.-700001.
2). Golden Trust Financial Services,
158/1 &158/2, R.N. Tagore Road ( Laldighi)
P.O.& P.S.- Berhampore.Dist.- Murshidabad.
Pin.742101. ………….…………………. Opposite Party
Aditya Nath Upadhyay. Ld. Advocate .…………………….…. for the complainant.
Mr.Ajoy Kumar Bhattacharjee. Ld. Advocate……………….for the Opposite Party No.1.
Sampa Roy, Ld. Advocate……………………………….. for the Opposite party No.2
Before: Hon'ble President, Anupam Bhattacharyya.
Hon'ble Member, Samaresh Kumar Mitra.
FINAL ORDER
Sri Samaresh Kumar Mitra, Member.
The complainant files this complaint u/s 12 of C. P. Act, 1986 praying for an order directing the opposite party to pay the Insurance Claim for Rs.2,00,000/- as submitted by the complainant and compensation for Rs.2,50,000/- from the OPs for mental pain and agony.
The case of the complainant, in brief, is that he obtained a Group Janata Personal Accident Insurance Policy bearing No.100300/47/01/9600022/3/96/30350 of National Insurance Co. Ltd through Golden Trust Finance Services. Total sum assured is Rs.2,00,000.00 and commencing from 08.01.2004 to 07.01.2019( Midnight). That the complainant is a driver by profession with valid driving license at the time of tragic accident on 28.06.2010 at 5 a.m. when the vehicle (Truck) bearing No.WB-57A-2643 drove by the complainant met with an accident on Salar Katwa Road with a private bus bearing No.WGD-1291 coming from the opposite direction with a high speed near Serandi Bus stoppage under Ketugram P.S., Dist- Birbhum resulting Multiple Injuries over the body and fractures, with bleeding and also burn in the lower portion of abdomen and the truck was heavily damaged. Moving here and there lastly he was admitted at Kolkata Medical College & Hospital and received treatment from 29.06.2010 to 21.12.2010 and subsequently he attended at OPD of Kolkata Medical College & Hospital for further treatment. The accident occurred due to rash & negligent driving of the offending bus driver so the complainant is living without job with painful life and starvation and cannot move without the help of other person. Due to this accident the complainant became permanent disablement of 65%. Accordingly he filed claim Form to the Insurance Company through the Golden Trust Financial Services in its Berhampore Office on 25.5.2015 and on 28.7.2015 send the certified copy of Charge Sheet/ Final Report to the National Insurance Company Ltd, Div-III,8, India Exchange Place ( Gr.Floor), Kol-700001 for settlement of claim but the Insurance Company did not taken any action for settlement of the bonafide claim of the complainant amounting to Rs.2,00,000/-. He also sent legal notice to the Sr. Divisional Manager, National Insurance Company Ltd, Div-III, with a copy to GTFS on 04.012016 but the concerned Insurance Companies did not pay any heed and till date no effective steps taken in that regard.
The OP No.1 by filing written version denied the allegations as leveled against him and assailed that this Forum has no jurisdiction and the alleged accident took place on 28.06.2010 but the complainant filed the intimation to the OP No.1 after 5 years on 08.04.2015 so the claim is barred by limitation. That the disability certificate dated 19.01.2011 of the complainant stated the percentage of disability is 65% and the case requires review after 5 years but after 5 years no review report has been filed by the complainant so it is clear that there is no permanent disability of the claimant arising out of the alleged accident. Hence the instant case does not come under the purview of the scope of cover of 9 P.A.
The OP No.2 in his written version denied the allegations as leveled against him and assailed that according to Memorandum of understanding existing amongst National Insurance Co. Ltd Div-III,8, India Exchange Place, Kol.-700001 and the OP No.2 Golden Multi Services Club of GTFS it empowers the OP No.2 to extend the Insurance coverage to its member Mr. Hironmoy Mondal under the said Group Janata Personal Accident Insurance Policy and the OP No.1 have an exclusive right and authority to entertain process and settlement of such claim. Golden Multi Services Club of GTFS are regarded as Insured facilitator and not as authorized agent or corporate agent of the Insurance Company for the said insurance coverage to its member without having any liability about settlement of the claim. So, the OP No.2 is never jointly and /or severally liable to settle the claim of the claimant. The authority to settle the Insurance claim is solely with the Insurer i.e. the OP No.1.
The complaint filed evidence on affidavit in which he assailed that he filed his claim application to the National Insurance Co. Ltd alongwith all necessary documents as asked for through the Golden Trust Finance Services its branch office at Berhampore as per their instruction on 25.05.2015 subsequently then on 28.07.2015, the certified copy of C.S. final report to the National Insurance Co. Ltd. Divn.III, 8 exchange place Kol.-700001. After getting the relevant documents the said insurance did not taken any steps for settlement of the bonafide claim of the complainant so he sent letters to the OPs for settling his claim. And the instant case does not come within the purview of the scope of cover of 9 P.A. as alleged by the answering OP.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Hiranmoy Mondal is a 'Consumer' of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Hiranmoy Mondal is a 'Consumer' of the opposite party?
From the materials on record it is transparent that the Complainant is a "Consumer" as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Group Janata Personal Accident Insurance Policy of the OP No.1 Insurance Company Act,1986. The complainant herein is the consumer of the OP, as he received through the OP No.2 so he is entitled to get service from the OPs.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party no.2 are residents/carrying on business within the district of Murshidabad. The complainant prayed Rs.2,00,000/- as per Group Janata Personal Accident Insurance Policy including interest @18% per annum and Rs.2,50,000/- for harassment, physical injury and for mental agony ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
It appears from the case record and the documents as produced by the parties in dispute that the complainant took a Group Janata Personal Accident Insurance Policy of OP No.1 through OP No.2 for the period from 08.01.2004 to 07.01.2019 being policy No.100300/47/01/9600022/3/96/30350 of National Insurance Co. and after taking the said policy the complainant being a driver of a truck met with an accident on28.06.2010 at about 5 a.m. on Salar Katwa road, when a private bus bearing No.WGD-1291 coming from the opposite direction with high speed resulting head collision in between the vehicles near Serandi Bus Stoppage under Ketugram P.S. , Dist.- Burdwan as a result the complainant being the driver of the victim vehicle sustained multiple injuries over the body and factures with bleeding and also suffered burn injury in the lower portion of the abdomen and the truck had been badly damaged. The driver of the truck i.e. the complainant was admitted at Bolpur Hospital and he was shifted to N.G. Hospital, Berhampore and lastly Kolkata Medical College & Hospital, Kolkata and admitted there from 29.06.2010 to 21.12.2010 and treated there and further course of treatment he used to visit O.P.D. of Kolkata Medical College & Hospital. Presently he lost his income and living depending upon the other members of the family and he became permanent disablement of 65%. He filed his claim application before the Insurance company through the Golden Trust Finance Services on 25.5.2015 and also filed certified copies of Charge Sheet/ Final Report on 28.7.2015 to the National Insurance Company Ltd., Div-III,8, India Exchange Place, Kol.700001 as per the instruction of OP for settling the claim but the OP took no measure to settle the claim of the complainant for which he got no alternative but to file the instant complaint before this Forum for redressal.
The OP No.1 by filing written version assailed that this Forum has no jurisdiction and the alleged accident took place on 28.06.2010 but the complainant filed the intimation to the OP No.1 after 5 years on 08.04.2015 so the claim is barred by limitation. That the disability certificate dated 19.01.2011 of the complainant stated the percentage of disability is 65% and the case requires review after 5 years but after 5 years no review report has been filed by the complainant so it is clear that there is no permanent disability of the claimant arising out of the alleged accident. Hence the instant case does not come under the purview of the scope of cover of 9 P.A.
The OP No.2 in his written version assailed that according to Memorandum of understanding existing amongst National Insurance Co. Ltd Div-III,8, India Exchange Place, Kol.-700001 and the OP No.2 Golden Multi Services Club of GTFS it empowers the OP No.2 to extend the Insurance coverage to its member Mr. Hironmoy Mondal under the said Group Janata Personal Accident Insurance Policy and the OP No.1 have an exclusive right and authority to entertain process and settlement of such claim. Golden Multi Services Club of GTFS are regarded as Insured facilitator and not as authorized agent or corporate agent of the Insurance Company for the said insurance coverage to its member without having any liability about settlement of the claim. So, the OP No.2 is never jointly and /or severally liable to settle the claim of the claimant. The authority to settle the Insurance claim is solely with the Insurer i.e. the OP No.1.
The letter dated 21.04.2015 of National Insurance Co. Ltd. to this complainant in which it is stated that they refer to their claim docket which has been received by them through GTFS. They regret to note the unexpected demise of the insured person and they have scrutinized the papers submitted and now requesting the complainant to kindly arrange to send them the following papers for their further action towards processing of the claim in question. The papers are, 1. Attested Photocopy of Ration Cards. Voters Cards, PAN Card of the deceased person and nominee, 2. Final Police report/ Charge sheet through the court, 3. Photocopy of the Bank Pass Book of the nominee, 4. Local Panchayat / Municipal Certificate regarding the incidence & status of the nominee, 5. Original J.P.A./ Gr.P.A. certificate, 6. Attested Photocopy of FIR & Ford Bayan, 7. Attested Photocopy of Driving Licence mentioning the validity period within 15 days for further proceedings. So the OP No.1 received the claim docket from the GTFS and enquired further papers from the complainant before 21.04.2015. Another letter dated 13th April, 2015 of GTFS to OP No.1 in which it is requested to proceed further in the matter of claim of Hironmoy Mondal who faced accident and became disable to the extent of 65%.
It appears from the Xerox copy of Disability Certificate of the complainant Hironmoy Mondal dated 19.01.2011 issued by Office of the Superintendant & Chairman handicapped Board Kandi S.D. Hospital, Murshidabad that he is disabled with ‘Post Burn contracture of foot with Toes with post traumatic stiffness’ and the percentage calculated as 65% but it not clear whether it is to be reviewed after 5 years or not. The advocate on behalf of the complainant during the period of argument argued that as the complainant being driver considering the nature of job though percentage of disablement is 65% but practically 100% so the complainant is entitled to get relief. The Complainant by filing evidence on affidavit assailed that he cannot move freely and is depend on other family members and he lost his income after the accident. The case record speaks that information of accident was communicated to the OP after the stipulated date. But receiving delayed information should not cause impediment for getting insured amount. The complainant being the driver of a truck was suffering from severe injuries in his body and admitted in the hospital for 6 months and due to lack of awareness he could not communicate the OP in time but his injury as well as suffering cannot be ousted. As he informed the OP in delay so his claim became delay i.e. he suffers from his own cause. There is no dispute regarding the accident of the complainant and the disablement certificate transpires that he is disabling and the percentage is 65%. There is no scope of disbelief that he has no capacity to earn his living after the accident and presently he is depending on others. The complainant is covered by the insurance during the period of accident. Insurance Company should extend their co-operation regarding the claim of the insured person. It is not desirable to repudiate the claim of the insured person merely on technical ground by the OP No.1. So we may safely conclude regarding the entitlement of claim of insurance.
From the above discussions we are in a considered opinion that the OP No.1 followed the terms & conditions as envisaged in the Group Janata Personal Accident Insurance Policy of OP No.1 to repudiate the claim of the complainant as Insurer & Golden Trust Financial Services as TPA has no authority to settle the claim of the complainant as per MOU as a result the claim of the complainant has not been settled for which he sought the redressal of this Forum. The OP No.1 being the sole authority to settle the claim of this complainant failed to settle the valid claim so he is deficient in providing service towards the claim of the complainant.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party No.1 could not avoid his responsibility of paying the claim of the
complainant including interest thereon as ascertained by this Forum.
ORDER
Hence, it is ordered that the complaint case being No.23/2016 be and the same is allowed in part against the Opposite Party No.1.
The Opposite Party No.1 is directed to pay a sum of Rs.2,00,000/- to this complainant including interest @10% since the date of filing this complaint case within 45 days from the date of final order.
The OP No.2 is exonerated from the liability.
No other reliefs are awarded to the complainant for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party No.1 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
Member, President.
