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State Consumer Disputes Redressal Commission

New India Assurance Company Ltd., vs Smt.Sitabai Ramachandra Hogale, on 7 August, 2009

                                  1                         F.A.No. :2216/2004



                               Date of filing:25.11.2004
                               Date of order:07.08.2009
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.


F.A. NO.: 2216 OF 2004
IN COMPLAINT CASE NO. :11 OF 2003
DISTRICT FORUM :OSMANABAD.

New India Assurance Company Ltd.,
Divisional Office Shivaji Chowk,
Dist.Osmanabad.                                ....APPELLANT
                                               (Org.Opponent)

VERSUS


1.   Smt.Sitabai Ramachandra Hogale,
     A/p Gopalwadi, Dist.Osmanabad.

2.   Managing Director,
     Terna Shetkari Sahakari Sakhar Karkhana Ltd.,
     At Terna Nagar, Post Dhoki,
     Dist.Osmanabad.                        ....RESPONDENTS
                                            (No.1-Org.Complainant,
                                             No.2-Org.Opp.No.2)



           Coram :     Shri.S.G.Deshmukh, Hon`ble Presiding Judicial
                       Member.

Mrs.Uma S.Bora, Hon`ble Member.

Present : Adv.Shri.V.R.Mundada for appellant, Adv.Shri.M.S.Kulkarni for respondent No.1, None for respondent No.2.

O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

1. The present appeal is filed by New India Assurance Co.Ltd. against the judgment and order dated 12.10.2004 in complaint case No. 11/2003 passed by District Forum, Osmanabad.

2. Respondent No.1/Org.Complainant`s case before the Forum is that, her deceased husband Ramchandra Baburao Hogale was the member of respondent No.2. It is contended that respondent No.2 had obtained Janata Personal Accident Policy for sum assured of Rs.1,00,000/- for their 16783 labours. It is contended that deceased Ramchandra who was labour and member of respondent No.2 died in road accident on 17.3.2001 while doing work of cutting and carrying sugarcane. It is contended that accident was informed to the appellant and claim was preferred. The claim was not settled by appellant and thus appellant being nominee and wife of deceased approached the Forum.

3. Present appellant appeared before the Forum and resisted the claim. It is contended that appellant had requested to make proper compliance of the claim and submit all relevant papers. But respondent did not comply with the basic requirement of the policy and about death intimation etc. She did not give correct information about the death of insured. They have denied the contention that respondent No.1/complainant is legal representative of deceased Ramchandra. It is also contended that policy numbers, intimation of incident, discloser of the facts behind the alleged death were not conveyed and thus for non compliance of basic requirements, there cannot be deficiency on their part.

4. The Forum below after going through the papers and hearing the parties allowed the complaint and directed appellant to pay Rs.1,00,000/- with interest @ 6% p.a. from 17.01.2003.

5. Being aggrieved by the said judgment and order passed by the District Forum, Osmanabad, New India Assurance Co.Ltd. came in appeal.

6. Notices were issued to the appellant as well as respondents. Learned counsel Shri.V.R.Mundada appeared on behalf of appellant whereas learned counsel Shri.M.S.Kulkarni appeared on behalf of respondent No.1. We heard both the counsels at sufficient length. Learned counsel Shri.Mundada submitted that respondent had not given correct information about insurance policy and its validity. She also did not give correct information about death of insured. He submitted that during life time of Ramchandra he had obtained another policy from the company, at that time he had not disclosed any information in respect of other policy. He submitted that insurance company has paid the claim filed by respondent No.2 for JPA group policy in whole and hence considering existing contribution clause of Janata Personal Accident Policy and ceiling therein the present claim can not be paid. Appellant repudiated the claim on 22.9.2003 on the ground of already made payment against same JPA policy. According to them lower court did not permit them to put on record said repudiation letter.

7. On the other hand, learned counsel Shri.Kulkarni for the respondent submitted that ground raised by appellant that the deceased had not given correct information about earlier insurance policy and he did not disclose information about other policy while obtaining this policy have not been pleaded by the appellant in the written statement filed before the Forum. In that respect learned counsel relied on 'Ghaziabad Development Authority -Vs- Col.R.N.Kalra' reported in S.C.& National Commission Consumer Law Cases (2005-2008) page 134. He submitted that the alleged grounds which are raised in the appeal were not part of 4 F.A.No. :2216/2004 written statement and thus this ground cannot be considered in the appeal. He further submitted that policy document is on record. Terms and conditions of the policy are not brought on record by the appellant to show upper ceiling of the policy in case similar other policy had been obtained by the insured. Learned counsel in that respect relied on 'Pushpa Devi Jain -Vs- United India Insurance Co.Ltd.' reported in I(2006) CPJ 605.

8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels and citations relied by respondent. On perusal of papers, it reveals that, claim of the complainant was not repudiated till complainant approached the Forum. It appears that present appellant filed their written statement before the Forum in April 2003. Till filing of written statement, it appears, that the neither claim was settled nor the same was repudiated. It appears from the appeal memo that claim was repudiated on 22.9.2003 on the ground of non discloser of fact of other policy and on the ground that already made payment against same JPA policy. It was necessary for the appellant to mention all these facts in their written statement. Pleading regarding non discloser of other policy and payment against JPA policy did not find the place in their written statement. It appears that appellant for the first time raised this plea in the appeal memo. Pleadings which do not form the part of written statement can not be considered in the appeal. In 'Ghaziabad Development Authority' s case (Supra) the Hon`ble National Commission has held;

(ii) Consumer Protection Act, 1986, Section 21-Appeal-New plea-Not part of pleading-Appellant estopped from raising a new plea which was never a part of pleadings or grounds of appeal.

9. Even if the appellant is allowed to raise the plea that appellant made payment against JPA policy the claim can not be repudiated. We have mentioned that policy document is not brought on record, even terms and conditions of policy are also not brought on record by the appellant. Nothing is produced by appellant to show that there is upper ceiling limit of the policy in case similar policy has been obtained by insured. It is the contention of appellant that deceased had obtained similar JPA from the appellant only in which complainant has been paid insurance amount. We have mentioned that nothing has been brought on record by appellant to show that there was upper ceiling limit in the JPA group policy, in case similar another policy is obtained by the policy holder. In the circumstances, there is no reason to repudiate the claim of complainant when premiums for both policies have been paid by deceased. We are not inclined to interfere the order passed by the Forum. We pass the following order.

                                   O   R       D   E   R


     1.     Appeal is dismissed.

2. Appellant to pay the cost of Rs.1000/- to the respondent.

3. Copies of the order be sent to both the parties.

Mrs.Uma S.Bora                                   S.G.Deshmukh,
     Member                                Presiding Judicial Member

Mane