West Bengal

Dakshin Dinajpur

CC/10/15

Dipti Rani Paul - Complainant(s)

Versus

The Sr. Divisional Manager - Opp.Party(s)

Ld.Adv

31 Dec 2010

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 15/2010

Smt. Dipti Rani Paul,

W/o Mahadeb Paul

Vill: Gopalpur,

P.O. Nayabazar, P.S.: Gangarampur,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

1. The Sr .Divisional Manager,

National Insurance Co. Ltd.

Division III, 8, India Exchange Place (Gr. Floor), Kolkata-700 001.

2. The Branch Manager, N.I.C. Ltd.

P.O. & P.S. Balurghat,

Dist-Dakshin Dinajpur.

3. M/s. Golden Trust Financial Services,

16 R.N. Mukherjee Road, Kolkata-700 001. …………Opposite Parties

For complainant ……………… - Sri Anjan Kumar Chakraborty, Ld. Adv.

For OPs No. 1 & 2………………- Sri Goutam Das, Ld. Adv.

For OPs No. 3 …………………- Sri Bidyut Kr. Roy, Ld. Adv.

&

- Sri Anish Das, Ld. Adv.

Date of Filing : 19.04.2010

Date of Disposal : 31.12.2010

Judgment & Order dt. 31.12.2010

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Smt. Dipti Rani Paul on 19.04.2010 against the two officials of National Insurance Co. Ltd., and the Golden Multi Service Club Ltd. alleging deficiency in service.

Complainant’s case as it appears from the said complaint, in brief, is that her son Ganesh Paul got from the OP NIC on 31.03.2003 coverage of Group Janata Personal Accident Insurance Policy bearing policy No.100300/47/01/9600022/02/96/30442 with a period of coverage from 31.3.2003 to 30.3.2018. A certificate as to the extension of the policy was issued in favour of the said Ganesh Paul under Sl. No.7657/102031323953 dt. 31.3.03. The sum assured under the policy was Rs.2,00,000/- and the complainant figures as a nominee in the said policy.

On 18.8.2006 at 3:30 pm the said Ganesh Paul was working as a linesman to repair the telephone line with the help at a ladder and suddenly he fell down from the ladder. The local people hurriedly took him to Ganagarampur Sub-Divisional Hospital and the attending Doctor, after examination, declared that he was dead. Thereafter the dead body was transferred to Superintendent of Balurghat Sardar Hospital for postmortem and the Gangarampur PS started an U/D Case No.81/06 dt. 18.8.2006. The attending Doctor, after postmortem, opined that the cause of death due to above injury which is antemortem in nature.

The complainant intimated the OPs about the incident. The complainant claimed the insurance money which was registered a G.P.A. Claim No.100300/47/06/969000/373. But the said claim was repudiated by the OP 1 on 18.12.08 on the ground of delay in furnishing intimation and non-compliance of mandatory documents. The complainant requested on 22.01.09 to pay her claim. But the said application was also repudiated with an endorsement “that further no communication shall be entertained in this respect.”

In such situation, the complainant brought the complaint seeking payment of the sum assured under the policy, compensation for mental agony caused to her and costs of this proceeding.

The proceeding has been contested on behalf of OPs 1,2 & 3 on whose behalf written versions were presented on 12.8.10 and 25.8.10 respectively.

OP Nos. 1 & 2 contested this case by filing written version stating inter alia that the OP 2 is not involved in any way with the policy. The OP No.3 had the policy with OP 1 directly and there is no transaction with OP 2. OP Nos.1 & 2 further stated that the complainant did not supply the copy of U.D. Case to the Senior Divisional Manager, Div.-III, Kolkata. The complainant sent the claim petition through G.T.F.S. and which was received by N.I.C. after laps of 7 months. The complainant has failed to supply the certified copy or original copy of FIR. All copies were received on 12.02.2007 except FIR and UD case. So there is a clear violation of policy condition and it is mandatory that the complainant should inform the matter forthwith. The complainant should inform the matter within the one calendar month after the event which may give rise to a claim under the policy. There was a clear violation of policy condition on the part of complainant. So there is no deficiency in service on the part of OP Nos.1 & 2. Thus the complaint brought by the complainant stands rejected.

OP 3 G.M.S.C. Ltd. in its written version admitted about the extension of coverage of the personal accident insurance policy to the said Ganesh but has said that in accordance with the MOU executed in between it and OP Nos. 1 & 2 Insurer company it only got the insurance coverage extended to the said Ganesh – its member. After the accidental death of the said Ganesh, the complainant, being the nominee under the policy, submitted her claim form for the benefit under the policy and such OP 3 after initial verification forwarded the said claim form to the NIC Divi-III on 20.2.2007 for early settlement. On 18.02.2009 i.e. after 2 years the OP 1 issued a letter of repudiation on the

ground of delayed in furnishing intimation. A considerable time is spent for collecting document in support of such claims and so the delay in submitting the claim form should not stand in the way of settlement. The OP 3 does not have any authority to settle any claim for the sum assured. It is the insurer company only which has the authority to settle the claim laid by the claimant. The act of repudiation of the claim, therefore, cannot be said to have been a deficiency in service on the part of OP 3 but of the OPs No. 1 & 2.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Has there been deficiency in service on the part of the OPs?

2. Is the complainant entitled to the reliefs sought for in the complaint?

Decision with reasons

The averments made in the complaint have been verified by the complainant herself. In support of her complaint, complainant also filed in this case on 19.04.2010 a good number of documents with notice to the other side. Such documents include certificate of death marked as Ext.4, Postmortem Report marked as Ext.5, Inquest Report or Surathal Report marked as Ext.6 etc.

The averments made in the written version of OP 3 – GMSC Ltd. have been verified by an official of Balurghat Branch of such OP 3. Such OP 3 in support of his case filed, beside another, the copy of understanding dt. 17.7.01 marked as Ext.B issued by OP 1 NIC Division-III.

The written version of the OPs NIC have also been verified by the Branch Manager, Balurghat Branch of NIC Ltd. in support of his case. Such OPs NIC also filed on 12.8.10, besides others, copy of its letter of repudiation dt. 18.12.08 and 18.2.09 marked as Ext.G and Ext.H respectively and claim form marked as Ext.D, claim petition marked as Ext.E and policy certificate marked as Ext.F.

No other evidence was adduced in this case from any of the sides even though opportunity was given from the end of the Forum.

Let us now enter into the determination on the thee points formulated above.

Point No.1:

Here the copy of the insurance policy certificate filed by the OPs purport and it is not in dispute that the coverage of Group Personal Accidental Policy of the OP 1 was extended to Ganesh Pual. It also virtually remains admitted by the sides that the said insured Ganesh Paul sustained injuries by an accident that took place on 18.8.2006 and thereafter on the self same date he died.

In course of hearing bold contentions advanced by the Ld. Counsel appearing for the OPs Insurer were as under:

1. There is a clear violation of the terms & conditions contained in the policy and as such the claim was repudiated by the OP 1 NIC Div.-III on 18.12.2008.

2. The complainant submitted her claim through GTFS which was received by OP NIC Div-III after expiry of period of seven (7) months.

3. All copies except FIR and UD Case were received on 12.2.2007 which causes clear violation of the terms & conditions of the said policy. It should be necessary to inform the matter forthwith and within one calendar month after the event which may give rise to a claim.

Contentions advanced by the Ld. Counsel for the complainant, on the other hand, were as under:

1. It is true that the claim application was submitted to GMSC Ltd. on 19.2.07 and thereafter it was forwarded to OP 1 Div.-III NIC on 20.2.07.

2. That the terms in the policy certificate fixing time for furnishing intimation of accident or for submission of the claim form are only directory in nature and the claim for the benefit could not be turned down solely on such ground.

Submission advanced by the Ld. Counsel for the OP 3 GMSC Ltd. was that such OP 3 duly forwarded the complainant’s claim form to the OP 1 NIC Div.-III and also issued remainder for the settlement and so it cannot be said that there was a deficiency in service on its part.

We have carefully considered the submission advanced on behalf of the sides and have gone through the materials on record brought on behalf of the sides.

An Item No. 1 under the heading “Conditions” printed on the back side of the insurance coverage certificate there appears a clause that upon the happening of any event which may give rise to a claim under the policy, written notice with all particulars must be given to the insurer company immediately and that in case of death of the insured such notice must, unless reasonable cause in shown, be given before the cremation and in any case within one calendar month after the death.

It also appears to have been expressed under the heading “notice of claim” appearing on the back side of the policy certificate that claim intimation should be given within 30 days by the claimant / GMSC Ltd. to NIC.

The Ld. Counsel for OPs 1 & 2 NIC argued that there is a delay of 7 months in respect of giving intimation to the insurer. But in view of Ext. 3, OP 1 NIC Div. III admitted that the claim was intimated on 17.1.2007 and the insured Ganesh Paul died on 18.8.2006. If we calculate the actual delay, we find that there is only delay of about 5 months regarding intimation to OPs NIC.

Copy of the certificate of death marked as Ext.4 filed by the complainant purports and it appears to be virtually not in dispute that the insured Ganesh Paul died on 18.8.06. In view of Ext.D policy claim form, the OP 3 GTFS Kolkata received the claim form on 19.2.07 and forwarded the same on 20.2.07 by OP 3 GTFS which was also received on 22.2.07 by OP 1 N.I.C. Divison-III, as it appears in the letter dt. 20.2.2007 marked as Ext. B1.

So it is virtually not in dispute that the claim application was actually laid before the OP 1 NIC Div.-III about 6 months after the death of the insured.

However, it has been laid down therein that a claim has to be repudiated simply in view of delay and non-supply of documents.

In the case of Sri Bimla Devi & Ors vs. LIC relied upon from the side of the complainant it has virtually been held by the Hon’ble H.P. State Commission that the condition of furnishing of information within a certain span of time is directory. It has been observed therein that the purpose of giving information within a certain period appears to be to enable the insurer to ascertain factual position regarding the nature of disability and its extent. It has further been observed thereafter in Para-II of the Judgement that it hardly needs to be emphasized that when grant of substantial justice is pitted against a technical plea, the latter will give way to the former. Similar pronouncement have also been made by the Delhi, SCDRC in the case of General Insurance Co. Ltd. & Anr. vs- Abhijit Saini & Anr. reported in 2009 (1) CPR 302, by the Jharkhand SCDRC in the case of GTFS & Anr. vs- Malwa Devi reported in 2009 (2) CPR 202, by the Chattisgarh SCDRC in the case of Smt. Ramayanavati vs- Sr. Divisional Manager, Oriental Insurance Co. Ltd. & Anr. reported in 2007 (2) CPR 200.

Having kept in view the observation recorded in the judgement reported in 2007 (3) CPR 74 reproduced above it appears to us that the delay in furnishing intimation or in submitting the claim form was not so fatal or substantial as to entitled OP Ins. Co. to repudiate the claim as has virtually been done by the OP insurer in the instant case.

We perused the Postmortem Report marked as Ext.5. It is clear from the said document an UD Case bearing No.81/06 dt. 18.8.06 was started in Gangarampur Police Station. Further Ext.5 shows that the cause of death in the opinion of Doctor as regard injury is ante mortem in nature.

Further we also perused Ext. 6 Surathal report prepared by Sri Jayanta Kr. Dutta S.I. of police, Gangarampur Police Station. Moreover, Ext.6 also shows the details report and description of insured Ganesh (died on 18.8.06).

The information which may be acquired from FIR and UD case, the same reports and information have already been acquired from Surathal Reprt and PM Report which are accordingly marked Ext. as 5 & 6 respectively.

It is also our view that the terms & conditions contained on the back side of the policy certificate are not mandatory. These are directory in nature.

From a consideration of the materials on record and the circumstances, we thus find that the repudiation of the complainant’s claim for the benefit by the Ins. Co. has not been proper and that such act of repudiation amounts to deficiency in service on the part of OP 1 NIC Div.-III Kolkata.

As regards OP 3 GMSC Ltd. we have already observed that OP 3 sent the intimation and delivered the claim petition to the OP NIC Div.III Kol. within the proper time. So as per our view there is no fault or deficiency in service on the part of OP 3 GMSC Ltd.

Point No. 1 is answered.

Point No.2

The present proceeding has been brought by Smt. Dipti Rani Paul claiming herself to have been the mother of the insured Ganesh as also the nominee under the policy. Copy of the policy coverage certificate filed by the OPs purport that one Dipti Rani Paul mother of the insured figures as the nominee. However in the written version it has not been the case of the OP’s that the complainant is not the mother insured Ganesh.

Now in view of our determination on point no.1 we think that the OP-1 should be directed to pay to the complainant a sum of Rs.2 Lac being the sum assured under the policy and interest thereon at the rate of 9% per annum w.e.f 19.4.2010 – the date of presentation of the complaint.

Point no-2 is the decided

In the instant case the complaint was filed on 19.4.2010. However all of the OPs appeared in the proceeding first on 21.07.2010. Instt. proceeding is thus getting disposed of about 5 months after the appearance of the parties in the case. This is,as it appears from the case record, mainly in view of a number of adjournments sought for from the end of the complainant and of the OPs insurance company.

Under such circumstance it is.

O R D E R E D

That the complaint u/s 12, C.P. Act brought by the complainant Smt. Dipti Rani Paul on 19.4.2010 is allowed on contest.

The OP-1 NIC Div-III, Kolkata - shall pay to the complainant an amount of Rs. 2 Lac by the way of benefit under the Group Janata Personal Accident Policy in view of accidental death of the insured Ganesh Paul and interest thereon @ 9% per annum w.e.f 19.4.2010- the date of presentation of the complaint

The payment aforesaid is to be made within 45 days from the service of copy of this order upon the respective sides .

In the event of failure in making payment aforesaid or any part thereof, the complainant shall have the liberty to put this order in execution.

Let plain copies of this order be supplied to the parties forthwith free of cost.

Dictated & corrected

(S.K. Ghosh),

Member

I concur

(Swapna Saha)

Member