State Consumer Disputes Redressal Commission
Sr. Divisional Manager , National ... vs Narayan Chandra Biswas on 16 January, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO-206/A/07 DATE OF FILING : 15.6.07 DATE OF FINAL ORDER: 16.1.09 APPELLANTS/COMPLAINANTS : 1.
Sr. Divisional Manager, National Insurance Company Ltd, Division-III, I,Shakespeare Sarani, Kolkata-700 071.
2. Divisional Manager, Jalpaiguri Division, National Insurance Company Ltd, Thana Road, P.S- Kowtali, PO& Dist- Jalpaiguri, RESPONDENTS/O.P.S : :
1.
Narayan Chandra Biswas, Son of Late Satish Biswas , Of Vill & PO-Dangapara Ashram, PO- Maynaguri, PS- Maynaguri, Dist-
Jalpaiguri,
2. The Manager, Golden Trust Financial Services, 16, R.N. Mukherjee Road, Kolkata- 700 001.
3. The Branch Manager, Golden Trust Financial Services, Jalpaiguri Branch, Basudeb Complex, Kadamtala, PO& Dist- Jalpaiguri.
BEFORE : HONBLE JUSTICE :
MEMBER : Shri. A.K.Ray.
MEMBER : Shri. P.K. Chattopadhyay FOR THE PETITIONER / APPELLANT :
Shri .G.P.De( Advocate) FOR THE RESPONDENT / O.P.S. : Shri R. Biswas (Advocate) Shri P.K. Chattopadhyay,. Member, This appeal arose out of judgement and order in DCDRF , Jalpaiguri case no 64 of 2006 where the Complainant/Respondent case was that the Complainant was a nominee in respect of his brother Bishnu Chandra Biswas who had a Janata Personal Accident Insurance Policy valid from 23.12.01 to 22.12.03 on a sum assured of Rs. 1 lakh. and the insured Bishnu Chandra Biswas died on 27.9.02 by a Truck Accident. A belated claim was lodged under the said policy subsequent to the Complainants knowledge of his being the nominee but the claim was repudiated on grounds of violation of the policy condition. OPs entered appearance and contested the case reiterating violation of conditions of the policy when the matter was heard from respective sides and the Ld. Forum passed its judgement and order as under :
That the case is decreed on contest against the OP No 1 & 2 and dismissed against the OP No 3 & 4.
The complainant is entitled to get a sum of Rs. 1 lakh ( Rs. I lakh only) towards settlement of the claim from the Op no 1& 2 with interest @ Rs. 6 % from the date of this order till realization.
2. The complainant is also entitled to get a sum of Rs. 1,000/- ( Rs. one thousand only) as compensation for suffering physical and mental harassment from OP No 1& 2.
The complainant is further entitled to get a sum of Rs. 200/- (Rs. two hundred only) as litigation cost from OP No 1 & 2.
The OP No 1& 2 have to make all the payments within 1 (one) month from the date of this order.
3. Being aggrieved and dissatisfied with the impugned judgement and order the OP No 1 & 2 in the Forum namely Senior Divisional Manager , National Insurance Company Ltd and Divisional Manager, Jalpaiguri Division , National Insurance Company Ltd filed this appeal stating inter alia that the impugned judgement and order was passed without taking into considerations the period of limitation and also on the ground that the undated claim was submitted. It is also contended that the Ld Forum ought to have found out whether the deceased policy holder died intestate and whether any amount was received from Motor Accident claim tribunal towards compensation making oblique reference to the status of the nominee . Arguing that the impugned judgement and order was passed mechanically without taking into account Respondent 2 & 3s liability in regard to the claim, the Appellant prayed for setting aside the impugned judgement and order and for other orders as deemed necessary.
4. The Respondents namely Sri Narayan Chandra Biswas Respondent no 1 and Golden Trust Financial Services through its manager and branch Manager respectively being Respondents 2 & 3 entered appearance and contested the appeal, reiterating their cases and supporting the impugned judgement and order. The Respondent no 1 argued that there was no infirmity in the judegement and order and there being acknowledged delay on the information as to who is the nominee ,the claim was filed belatedly which was corroborated through affidavit affirmed by authority of Respondent no 2 & 3, namely Golden Trust Financial Services. As to the fact of event of the death of the deceased policy holder or his ( Respondent-1) being genuine nominee, there was no contrary evidence .As for any onus in part or whole on the said claim on part of the Respondent 2 & 3 it is already settled law repeatedly affirmed in various judgements as were cited. That it was the National Insurance Company Ltd the Appellant who had the legal responsibility to make payment of the claim on the aforesaid policy and none else,was also settled law.
5. Respondent no 2& 3 namely Golden Trust Financial Services argued inter alia that the subject policy was good Insurance policy & the role of Respondent no 2 & 3 was essentially that of all facilitation , who under given terms of the policy and MOU signed therein before had no liability to pay the claim , which was essentially the liability of the Appellants. In the given case Respondents 2 & 3 with process acted as a catalytic agent for the filing & claim and finally transmitted the papers relating to the claim of the Respondent 1 as per terms who had no obligation towards verification and the Respondent no 2 & 3 duly discharged these obligations and any non settlement or repudiation , being the liability of the Appellants, the said liability solely rested on them. Stating that the impugned judgement and order was quite justified having regard to the facts and circumstances of the case. Respondent no 2 & 3 prayed for affirmation of the same without any modification and /or alternation.
The matter was heard from all the contesting parties with submission of respective written notes of argument .
DISCUSSION (A) In regard to Appellants argument on limitation for delay in filing the claim in the capacity of the legal heir/ nominee of the policy, the fact is transparent and clear. On Belated knowledge of the Complainant being the nominee in respect of the policy one undated claim was filed after a long period before the Appellants, through Respondents 2 & 3 , as per stipulation and there was no specific condonation of delay allowed on part of the Ld. Forum below or was such prayed for. However, the fact remains that this position was unequivocally disclosed by the Complainant, the nominee for the insured, & duly corroborated such delayed knowledge of his being nominee through an affidavit affirmed with the authority of Respondent no 2 & 3 , who as per terms processed the claim and filed it before the Appellants and at no stage of proceedings ongoing in the Forum. the Appellants took recourse to any revision application upon the said condonation of delay or on stated absence of any delay application. Therefore agitation of this point at this juncture is clearly an afterthought and therefore not maintainable under provisions of law.
(B) As for the issue of belated submission of the claim beyond period mentioned in the policy term & its voidability therefor, the Appellants contentions do not hold water. This is so because firstly, in the given fact and circumstances of the case where the delayed knowledge of being the nominee was itself a fact duly sought to be established & not disproved otherwise and secondly where the provisions of contract Act u/s 28 sub-section B provides as under.
every agreement , - which extinguishes rights all in part thereto, or discharges any party thereto from any liability, under or in respect all in contract on the expiry of a satisfied period was as to restrict any party from enforcing his rights , is void to that extent.
Exception 1- Saving of contract to refer to arbitration dispute that may arise.- This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Exception 2- Saving of contract to refer questions that have already arisen.- Nor shall this section render illegal any contract in writing , by which two or more persons agree to refer to arbitration any question between them which has already arisen , or affect any provisions of any law in force for the time being as to references to arbitration.
Therefore we do not find that the Appellant has in case of this ground also.
(C) As for other points taken by the Appellants like lack of information / clarification of whether any motor accident claim was received or not and whether there was any other heir of the deceased insured and the Ld. Forums silence thereto, we find no impropriety here as well . So far the facts and circumstances of this case are concerned it is immaterial as to any claim or disbursement thereof relating to Motor Accident Tribunal Award and as for their being any legal heir of the diseased insured it is not pertinent so long the nomination of the policy concerned is valid and so long the nominee is genuine , on which again there is no contrary evidence.
(D) In above view of fact and law we do not find any infirmity whatsoever in the impugned judgement and order of the Ld. Forum below which adjudicated the case on due course and passed its judgement and order after weighting entire fact and applicable provisions of law. We are therefore inclined to agree and to accept the impugned judgement and order of the Ld. Forum below as sustainable and in order and thus the appeal is liable to be dismissed on contest without cost.
Order The Appeal is dismissed on contest without cost. The impugned judgement and order of the Ld. Forum below is affirmed.
Member Member