State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Smt. Meena Devi. & Anr. on 27 February, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 233/2018
Date of Presentation: 04.06.2018
Order Reserved on : 18.12.2018
Date of Order : 27.02.2019
......
New India Assurance Company Limited Divisional Office 3rd
Floor Block No.7 SDA Complex Kasumpti Shimla-9 H.P.
through its Senior Divisional Manager.
...... Appellant/Opposite party No.2/Non-applicant No.2
Versus
1. Smt. Meena Devi w/o Shri Gauri Dutt presently working as
Daily Wager in the office of Assistant Engineer HPPWD
NH-22 Sub Division Chambaghat Solan Tehsil and
District Solan H.P.
......Respondent/Complainant/Applicant
2. The Assistant Engineer HPPWD NH-22 Sub Division
Chambaghat Solan Tehsil and District Solan H.P.
......Respondent/Opposite party No.1/Non-applicant No.1
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member.
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate
For Respondent No.1: Mr. S.R. Pandeyar Advocate
For Respondent No.2: None despite service.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) 24.04.2018 announced by Learned District Forum in M.A. No.6/2017 titled Meena Devi Versus The Assistant Engineer NH Sub Division HPPWD & Anr.
Brief facts of matter:
2. Complainant Meena Devi filed consumer complaint No. CC/58/2017 under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is an employee of office of Assistant Engineer HPPWD NH Sub Division Chambaghat Solan (HP). It is pleaded that husband of complainant namely Gauri Dutt died on dated 12.10.2005.
It is further pleaded that life insurance policy was obtained by deceased Gauri Dutt through opposite party No.1. It is further pleaded that Gauri Dutt died on dated 12.10.2005 leaving complainant as his legal heir being widow of deceased Gauri Dutt. It is further pleaded that all insurance papers were lying in the office of opposite party No.1 and were not in the residential house of complainant. It is further pleaded that complainant Meena Devi is the legal-heir of deceased Gauri Dutt and it is further pleaded that factum of insurance policy came to the knowledge of Meena Devi complainant on dated 17.12.2016 and thereafter Meena Devi complainant served legal notice upon opposite parties for release of death insurance claim. Complainant sought relief of release of death insurance amount alongwith upto date interest. Complainant 2 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) also sought relief of costs of litigation and also sought damages.
3. During the pendency of consumer complaint Smt. Meena Devi filed application under Section 24(1) of Consumer Protection Act 1986 for condonation of delay in filing consumer complaint.
4. Per contra response of condonation application was filed on behalf of opposite party No.1 i.e. Assistant Engineer HPPWD NH Sub Division Chambaghat District Solan H.P. pleaded therein that husband of complainant died in the year 2005 and it is also admitted that Smt. Meena Devi served legal notice on dated 17.12.2016 upon opposite party No.1. It is further pleaded that death claim was filed before insurance company by opposite party No.1 on dated 08.03.2010. It is further pleaded that insurance company vide letter dated 23.03.2010 repudiated the claim. Prayer for dismissal of condonation application and consumer complaint sought.
5. Per contra separate response filed on behalf of insurance company pleaded therein that JPA (Janta Personal Accident) insurance policy was issued in favour of deceased Gauri Dutt. It is further pleaded that insurance policy was operative w.e.f. 08.03.2005 to 07.03.2006. It is pleaded that 3 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) on dated 23.03.2010 death insurance claim was repudiated by insurance company as time barred. It is further pleaded that Smt. Meena Devi is working in the office of Assistant Engineer NH Sub Division HPPWD Chambaghat District Solan H.P. and has been regularized. It is pleaded that consumer complaint is barred under Consumer Protection Act 1986. Prayer for dismissal of condonation application and consumer complaint sought.
6. Learned District Forum on dated 11.05.2017 held that there are sufficient grounds for condonation of delay in filing the consumer complaint. Learned District Forum condoned the delay in filing the consumer complaint. Feeling aggrieved against the order insurance company filed F.A. No.160/2017 titled New India Assurance Company Limited Versus Smt. Meena Devi & Anr. which was decided on dated 06.01.2018 by State Commission. State Commission remanded the matter to the learned District Forum with order to receive evidence of parties relating to controversial facts of limitation strictly as per modes mentioned under Section 13(4) of Consumer Protection Act 1986. State Commission further ordered that thereafter learned District Forum would dispose of application for condonation of delay afresh strictly in accordance with law and strictly in accordance with proved facts.
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New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018)
7. Thereafter learned District Forum obtained evidence of parties upon condonation application by way of affidavits and again disposed of condonation application i.e. M.A. No.6/2017 on dated 24.04.2018 afresh. Learned District Form held that there are sufficient grounds for condonation of delay in filing the consumer complaint. Learned District Forum condoned the delay and registered the consumer complaint for disposal in accordance with law.
8. Feeling aggrieved against the order dated 24.04.2018 passed by learned District Forum in M.A. No.06/2017 insurance company filed present appeal before State Commission.
9. We have heard learned advocates appearing on behalf of appellant and co-respondent No.1 and we have also perused entire record carefully.
10. Following points arise for determination in present appeal.
1. Whether appeal filed by insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal and whether it is essential on the part of insurance company to communicate repudiation letter to beneficial nominee/legal-heir mentioned in the insurance policy?
5 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018)
2. Final order.
Findings upon point No.1 with reasons:
11. Complainant Meena Devi filed affidavit in evidence. There is recital in the affidavit that deponent is illiterate lady. There is further recital in affidavit that deceased husband of deponent was working as Baildar in the office of opposite party No.1. There is further recital in affidavit that after the death of husband of deponent Smt. Meena Devi was employed as Daily Wage employee in the office of opposite party No.1 and thereafter deponent was regularized by opposite party No.1. There is further recital in affidavit that husband of deponent namely Gauri Dutt died on dated 12.10.2005. There is further recital in affidavit that death insurance policy was issued by opposite party No.2 in favour of deceased Gauri Dutt through opposite party No.1.
There is further recital in affidavit that deponent came to know about death insurance policy in the month of December 2016 and thereafter deponent issued legal notice to the opposite parties for release of death insurance claim but death insurance claim was not released by insurance company.
12. Complainant also filed affidavit of Shri Raju in evidence Ex. AW-2. There is recital in the affidavit that deponent worked with husband of complainant. There is 6 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) further recital in affidavit that husband of complainant Meena Devi died on dated 12.10.2005 when he was in service. There is further recital in affidavit that husband of Meena Devi was working as Baildar and death group insurance policy was obtained. There is further recital in affidavit that husband of Meena Devi died in the accident. There is further recital in affidavit that factum of death insurance policy came to the knowledge of Meena Devi in the year 2017.
13. Assistant Engineer HPPWD did not adduce any evidence by way of affidavit.
14. Insurance company filed affidavit of K.K. Gupta Divisional Manager in evidence. There is recital in the affidavit that in the year 2010 death insurance claim was filed by Assistant Engineer HPPWD relating to death of Shri Gauri Dutt before insurance company. There is further recital in affidavit that life insurance policy was operative w.e.f. 08.03.2005 to 07.03.2006. There is further recital in affidavit that death insurance claim was repudiated by insurance company on dated 23.03.2010 vide letter Annexure R2-A. There is further recital in affidavit that Meena Devi is working in the office of Assistant Engineer HPPWD since many years and has claimed all the service benefits of deceased. There is further recital in the affidavit that Smt. Meena Devi has been regularized by Assistant Engineer HPPWD.
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New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018)
15. Submission of learned advocate appearing on behalf of Insurance Company that repudiation letter was issued by the Insurance Company on dated 23.03.2010 and there are no sufficient grounds for condonation of delay in filing the consumer complaint and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused the letter issued by insurance company dated 23.03.2010. Repudiation letter issued by insurance company is quoted in toto:
The New India Assurance Company Divisional Office: (351400) Shimla 3rd Floor Block No.7 SDA Complex Shimla-1 Tel. 0177-2623184, 2622398 Fax:0177-2623294 S.T.R. No.AAACN4165 CST 178
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SDO: CLAIMS:2010 REGD. 23rd March 2010 Without Prejudice Assistant Engineer NH Sub Division HPPWD Chambaghat Solan HP
Reg: Death Claim of Late Sh. Gauri Dutt Daily Waged Beldar S/o Sh. Premu Ram. Date of death 12.10.2005. Policy No.35140042040000195 w.e.f. 8.3.2005 to 7.3.2006 Dear Sir This has reference to your letter No. SSD/E-11/09-10-1065-67 dated 8.3.2010 sending therewith claim intimation/papers in respect of the above deceased.
Please note that you have sent us claim intimation/documents in support of the above claim under the above mentioned policy after lapse of more than 4 years from the date of accident of late Sh. Gauri Dutt which is not entertainable at this belated stage as per the scheme it is mandatory to serve the intimation regarding accidental claim immediately (Within time period of 30 days) 8 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) Since you have intimated the claim after such a belated stage therefore we cannot entertain this claim and has repudiated our liability which please note.
Thanking you Yours faithfully Sd/-
DEPUTY MANAGER CC: Chief Engineer HPPWD U.S. Club Shimla for information please. CC: Executive Engineer National Highway Divn. HPPWD Solan for information.
CC: Executive Engineer Divn. No.III HPPWD Shimla for information.
16. It is proved on record that repudiation letter Annexure R2-A was communicated to the Assistant Engineer NH Sub Division HPPWD Chambaghat Solan H.P. There is no evidence on record in order to prove that copy of repudiation letter was communicated by the Insurance Company to legal heir/nominee of deceased namely Smt. Meena Devi mentioned in Insurance Policy. It is well settled law that communication of repudiation letter of death claim should be sent to nominee or legal heir of deceased mentioned in the Insurance Policy. It is well settled law that nominee/legal heir should be mentioned in the death insurance policy in a positive manner. As per new nomination rules 2015 concept of beneficial nominee has been introduced and as per new nomination Rules 2015 beneficial nominees are direct dependents of insured policy holder i.e. (i) Spouse (ii) Children 9 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018)
(iii) Parents. Complainant Meena Devi falls within the definition of beneficial nominee being direct dependent of deceased Gauri Dutt. There is no evidence on record in order to prove that deceased Gauri Dutt had executed any testamentary document disinheriting Smt. Meena Devi from his property. No reason assigned by the Insurance Company as to why repudiation letter was not communicated to the nominee/legal heir of deceased. In the absence of communication of repudiation letter to nominee/legal heir of deceased it is held that cause of action of Smt. Meena Devi is continuity in nature.
17. It is well settled law that when cause of action is continuity in nature then limitation mentioned under Consumer Protection Act 1986 does not operate. See 1998 (2) CPC 577 NC Time Properties & Promoters Etc. Versus Rakesh Jain. See 1999 (2) CPJ 13 NC titled State Bank of India Versus Ananda Mohan Saha.
18. It is well settled law that cause of action would accrue to the complainant from the date of communication of repudiation letter to complainant issued by Insurance Company. Till date repudiation letter dated 23.03.2010 has not been communicated to Smt. Meena Devi by Insurance Company. See 1995 (3) CPJ 28 Apex Court Housing Board Haryana Versus Housing Board Colony Welfare Association & 10 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) Ors. It is held that communication of repudiation letter to legal heir/nominee after the death of Insured is essential on behalf of Insurance Company. It is held that Insurance Company could not be allowed to take benefits of its own inaction and laxity. It is held that right of compensation survives to legal heir/nominee after the death of insured in death insurance policy automatically. See 2006 (2) CPC 667 SC titled Mukesh Kumari Versus M. Lal Oswal Cancer Treatment and Research Foundation & Anr.
19. Submission of learned advocate appearing on behalf of Insurance Company that Smt. Meena Devi was regularized by Assistant Engineer HPPWD two years back and on this ground appeal filed by Insurance Company be allowed and condonation application filed by widow of deceased namely Smt. Meena Devi be dismissed is decided accordingly. State Commission is of the opinion that service regularization of Smt. Meena Devi has no nexus with death insurance claim. Service regularization of Smt. Meena Devi and release of death insurance claim are entirely two different concepts under law.
20. Submission of learned advocate appearing on behalf of Insurance Company that keeping in view the rulings reported in (i) Civil Appeal No.6974 and 6975 of 2013 dated 22.08.2013 Apex Court in case titled Basawaraj & Ors. 11
New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) Versus The Special Land Acquisition Officer (ii) Special Leave Petition (Civil Appeal No.6609-6613 of 2014) decided on dated 24.03.2014 titled Brijesh Kumar Versus State of Haryana and Ors. (iii) 2013 (12) SCC 649 titled Esha Bhattacharjee Versus Managing Committee of Reghunathpur Academy (iv) 2008 (17) SCC 448 titled Pundlik Jalam Patel (Deceased by LRs) Versus Executive Engineer Jalgaon Medium Project & Anr. present appeal filed by Insurance Company be allowed is decided accordingly. State Commission has carefully perused the above stated rulings. In the above stated rulings factum of communication of repudiation letter to nominee/legal heir of insured in death claim was not in issue but in the present matter communication of repudiation letter to nominee/legal heir after the death of insured is involved. Hence rulings citied supra are distinguishable and are not applicable in the facts and circumstances of present matter.
21. Submission of learned advocate appearing on behalf of complainant that order of learned District Forum is in accordance with law and proved facts and on this ground appeal filed by Insurance Company be dismissed is decided accordingly. It is held that order of learned District Forum is in accordance with law and in accordance with proved facts. Learned District Forum has specifically mentioned in the order that there is no document on record in order to prove 12 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) that communication of repudiation letter was sent by Insurance Company and Assistant Engineer HPPWD to legal heir/nominee of deceased namely Smt. Meena Devi. It is held that repudiation letter issued by insurance company dated 23.03.2010 not communicated to complainant who is legal heir/nominee of deceased is not operative upon complainant. As per Section 2(b)(v) of Consumer Protection Act 1986 amended w.e.f. 15.03.2003 in case of death of consumer his legal heir or representative would fall within the definition of complainant. It is held that Smt. Meena Devi falls within the definition of consumer as defined under Section 2(b)(v) of Consumer Protection Act 1986 amended w.e.f. 15.03.2003. It is also held that even as per section 2(d)(ii) of Consumer Protection Act 1986 beneficiary falls within the definition of consumer. It is held that Smt. Meena Devi falls within the definition of beneficiary of death Insurance policy being legal heir/widow/nominee of deceased Gauri Dutt insured. Point No.1 is decided accordingly.
Point No.2: Final Order
22. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum dated 24.04.2018 announced in M.A. No.06/2017 is affirmed keeping in view the fact that Smt. Meena Devi is illiterate Baildar and widow of deceased Gauri Dutt. Observations shall not effect the 13 New India Assurance Company Ltd. Versus Smt. Meena Devi & Anr. (F.A. No.233/2018) merits of consumer complaint in any manner. Learned District Forum shall dispose of consumer complaint within two months after receipt of certified copy of order in accordance with law and in accordance with proved facts. Learned District Forum shall issue notices to the learned advocates engaged by the parties before learned District Forum. Certified copy of order be sent to learned District Forum forthwith for compliance and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 27.02.2019.
*GUPTA* 14