DATE OF FILING : 02-09-2011.
DATE OF S/R : 28-11-2011.
DATE OF FINAL ORDER : 26-03-2012.
Ashok Mallick,
Son of Late Ashwini Mallick,
Village and P.O. MIdnapore, P.S. Katowali,
District – Paschim Midnapore,
PIN – 720001, ----------------------------------------------------------------- COMPLAINANT.
- Versus -
1, The New India Assurance Co. Ltd.
Howrah Branch, Unit No. 512200,
at Madhusudan Apartment,
P.-18, Dobson Lane (2nd floor ), P. S. Golabari,
District – Howrah – 711101.
2. The Senior Divisional Manager,
representing M/S. New India Assurance Co. Ltd.,
Howrah Divisional Office, Unit No. 512200,
at Madhusudan Apartment, 2nd floor, P.-18, Dobson Lane,
P.S. & District – Howrah – 711101.
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. Hon’ble President : Shri T.K. Bhattacharya.
2. Hon’ble Member : Smt. Samiksha Bhattacharya.
F I N A L O R D E R
1. The complaint case ( HDF 65 of 2011 ) was filed by the complainant U/S
12 the C.P. Act, 1986, against the O.Ps. alleging deficiency in service, praying for direction upon the O.P nos. 1 & 2 to pay the insured sum of Rs. 5,00,000/- together with interest @ 18% per annum and for compensation to the tune of Rs. 50,000/- for causing unnecessary harassment.
2. The wife of the complainant, Susmita Mallick having life time coverage
under a policy namely Group Janata Personal Accident Insurance Policy from the O.P. no. 1 through proforma O.P. no. 3, Golden Trust Financial Services, the policy being no. 4751220001799 / E No. 47-30834 dated 1st June, 2000 covering till 31-05-2015, wherein complainant was made a nominee, met with a fatal accident on Bombay Road, near Jiadabazar, P.S. Paskura, while traveling in a TATA Indica Car bearing no. NB-16 T 9860, resulting death of Susmita Mallick with her minor son and others severely injured. In spite of production of post mortem report, F.I.R, death certificate and the claim policy as per requirement of the O.P. nos. 1 & 2, followed by good many number of correspondences, the o.ps. New India Assurance Company Ltd. repudiated the claim and hence this case.
3. O.P. nos. 1 & 2 contended in their written version that the insurance
coverage as per MOU with the O.P. no. 3 was to cover the investors, their family members, field workers, their family members and their friends. As the insured did not belong to any friend category nor was the field worker, the claimant is not entitled to the claim. They have further contended that the certificate issued by the O.P. no. 3 declaring the claimant as their field worker is a fabricated document and as such the claim was repudiated and there occur no deficiency in service. So the complaint shall be dismissed.
4. The proforma O.P. no. 3, Golden Trust Financial Services in their written version supported the claim of the complainant and denied the allegations of the O.P. nos. 1 & 2 as enjoined in their written version and contended interalia that the O.P. no. 3 was obliged to collect the premium from the proposer and to remit the same to the O.P. nos. 1 & 2 by a consolidated cheque ; that there was no negligence or deficiency in service on the part of the O.P. no. 3 ; that all the supporting documents after the accidental death of Susmita, the insured, were produced before the O.P. nos. 1 & 2 on 08-07-2009 for early settlement of the claim ; that the deceased Susmita was a field worker under O.P. no. 3.
5. Upon pleadings of both parties two points arose for consideration.
a) Is there any deficiency in service on the part of the O.Ps. ?
b) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
6. Both the points are taken up together for the sake of convenience and brevity.
The facts leading to the claim of insurance are so telling and shuddering that they may be taken to have been written in blood of the deceased wife Susmita and her minor son who was compelled to leave this brutal world most untimely in a fatal road accident which ruthlessly crushed them to death along with other boarders of the unfortunate vehicle on 08-03-2009. Not that we are here to handdown a requiem for the departed souls who inhabited this world very briefly. Our profound concern for the grisly accident raising the death toll to 3 / 4 persons are not wholly irrelevant in deciding this case. The claim for insurance has the genesis from this accident where Susmita Mallick , aged about 39 / 40 years, the policy holder of Group Janata Personal Accident Policy Insurance , died.
7. Admittedly Susmita Mallick was insured with New India Assurance Company Ltd., Howrah Branch, under Janata Personal Accident Policy being No. 4751220001 E No. 47-30834 for a period from 01-06-2000 to 31-05-2015 with the insured capital sum of Rs. 5 lacs and her husband Ashok Mallick was her nominee. The Annexure I is the photo copy of the policy issued by the O.P. nos. 1 & 2, the New India Assurance Company Ltd. certifying that ‘as per the proposal and declaration submitted to the company and subject to terms, conditions, exclusion, definitions of the Group Janata Personal Accident Insurance Policy, this policy is issued.’ The terms and conditions are embodied in separate page. Annexure II is the copy of the Memorandum of Understanding showing that the New India Assurance Company Ltd. agreed to allow the Golden Trust Financial Services to extend Janata Personal Accident Insurance Cover to their investors, their family members, field workers and their friends under Group Insurance Claim. In Item no. 2 of the M.O.U. it is embodied that the O.P. no. 3 G.T.F.S. will collect premium from the proposers and remit the same to Howrah Divisional Office by a consolidated cheque every week with list of insured persons. Annexure III contains 3 pages. The last page shows the list dated 01-06-2000. The name of Susmita Mallick appeared in Sl. No. 629 showing Rs.5 lacs as the sum insured.
8. Therefore, it appears that Susmita Mallick was a bonafide policy holder and on her untimely death within the coverage period, her nominee Ashok Mallick cannot be disentitled from the claim amount. But the O.P. nos. 1 & 2 are in no mood to release the claim amount as a doubt has been cast if Susmita was a genuine filed worker. To dispel this doubt these o.ps. engaged a private investigator Goutam Naskar to confirm on this score. After conclusion of investigation he observed that the R.T.A. is genuine in nature as so is her policy. But for lack of any proof , not supplied by the claimant or the O.P. no. 3, it is not possible to confirm if Susmita was a field worker.
9. Relying on the report of the investigators the O.P. nos. 1 & 2 repudiated the claim of the claimant. Now the question arises if the o.ps. can repudiate the claim arbitrarily when the policy in question was issued by none but by themselves on 01-06-2000 after accepting the proposal. The policy ( Annexure I ) was printed at the behest of the O.P. nos. 1 & 2 and not at the whims of the O.P. no. 3. Be it mentioned here that after receiving the completed proposal form from the insured person ( Susmita Mallick ), the o.ps. were free either to accept the same or to throw it away. But once the proposal of the insured is accepted upon reciprocal consideration, it becomes a binding contract upon the parties. The acceptance of the offer of Susmita Mallick, since deceased, was duly completed by the O.P. company with the issuance of the policy certificate after accepting requisite premium, to be precise, ‘consideration’ for the insurance contract. Therefore, it is now incumbent upon the company to release the insured amount as claimed in favour of the petitioner as the contingency ( death ) is covered under the insurance policy. The o.ps. no. 1 & 2 cannot have any respite from the rigors of law and tenors of the contract. From the inception of the policy in question till 08-09-2009, the O.P. company had sufficient opportunity to investigate if Susmita was a field worker or not. For long 9 years the policy remained in force without any verification. The O.P. no. 3 is neither an agent of the insurer nor an insurer itself and as such it has no liability whatsoever to settle the claim unlike O.P. nos. 1 & 2 upon whom the sole liability rests and exclusive power to settle the claim is vested.
10. The O.P. nos. 1 & 2 had ample opportunity to scrutinize if the insured ( Susmita Mallick ) was field worker under the O.P. no. 3 while her proposal was under process. In stead her proposal was accepted having found the same satisfactory and consequently policy was issued. By sleeping over the opportunity to unilaterally cancel her proposal during scrutiny, the O.P. company cannot now cry aloud to wriggle out of the default clause whether Susmita Mallick ( insured ) was a field worker or falls into the ‘friend’ category or none of the either. Likewise the O.P. company cannot disentitle the nominee of the insured raising a tempest in the teapot and by conveniently picking up a laboured fault whether she was a field worker or not.
11. Hon’ble High Court while disposing of a G.A. No. 312 of 2003 together with Writ Petition No. 2343 of 2002 on 16-03-20006 was pleased to observe, “if on account of any claim any beneficiary is entitled to any benefit, then such benefit shall be extended without any delay whatsoever” irrespective of free hand of the company to decide the claim according to law. Unfortunately the O.P. company in repudiating the claim arbitrarily showed less respect to the provision of the Law of Contract. The company cannot blow hot and cold in the same breath. Once the proposal was accepted and policy was issued in favour of the insured, on her death in the road accident, the O.P. company cannot unilaterally disentitle the claim who is the nominee of the deceased.
In the result we are of the view that the claimant Ashok Mallick is entitled to the claim amount together with the other relief as prayed for. Both the points are accordingly disposed of.
Hence,
O r d e r e d
That the C. C. Case No.65 of 2011 ( HDF 65 of 2011 ) be allowed on contest with costs against O.P. nos. 1 & 2 and dismissed against the proforma O.P. no. 3 without cost.
The complainant is entitled to the insured sum of Rs. 5 lacs against her policy no. 4751220001799 / E No. 47-30834 together with the interest @ 10% per annum since 08-03-2009 till full payment by the O.P. nos. 1 & 2.
The o.ps. shall disburse the insured amount to the claimant together with interest as directed within one month from the date of this order failing the amount shall carry interest @ 12% per annum.
The complainant is further entitled to a compensation of Rs. 50,000/- from the O.P. nos. 1 & 2 for the prolonged mental agony and harassment perpetrated upon him in realizing the insured amount.
The complainant is further entitled to a litigation cost of Rs. 10,000/-.
The o.ps. do pay the compensation amount together with the litigation cost aggregating Rs. 60,000/- to the complainant within one month from the date of this order failing the amount shall carry interest @ 10% per annum till full satisfaction.
Supply the copies of the order to the parties, free of costs, as per rule.
