State Consumer Disputes Redressal Commission
Manoj Sonkar vs Post Master & Anr. on 4 June, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.FA/12/472
Instituted on 03.09.12
Manoj Sonkar, S/o: Shri Kanhaiyalal Sonkar,
R/o: Nevrikala, Thana & Tah. Balod,
Dist. DURG (C.G.) ... Appellant.
Vs.
1. Post Master, S.B./M.I.S. (L.O.)Durg,
Nr. Patel Chowk, District Postal Department, Durg,
Tah. & Dist. DURG (C.G.)
2. Oriental Insurance Co. Ltd.,
Through: Divisional Manager, Parmanand Bhawan,
Nr. Rajendra Park Chowk, G.E.Road,
DURG (C.G.) ... Respondents.
PRESENT: -
HON'BLE SMT. VEENA MISRA, PRESIDING MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K.Bhawnani, for appellant.
Shri Abhinav Agrawal, for respondent no.1.
Shri L.K.Joshi, for respondent no.2.
ORDER
Dated: 04/06/2013 PER: - HON'BLE SMT.VEENA MISRA, PRESIDING MEMBER This appeal under Section 15 of the Consumer Protection Act, 1986, is directed against order dated 06.07.2012 passed by District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short) in complaint case No.04/2010, whereby the // 2 // complaint filed by the complainant was dismissed. Aggrieved complainant has approached us by way of the present appeal.
2. Brief facts necessary for disposal of this appeal are that the complainant's mother, Smt. RamkaliSonkar had a Savings Account No.545982 with OP no.1 at the Post Office, Nevarikala, Tah. Balod.She had obtained group insurance cover from OP No.2 and premium of Rs.15/- for that coverage was deducted from her account. Thereafter on 23.10.2006, Smt. Ramkali Sonkar died due to road accident at village Tekapar, Tah. Balod. Nominee laid claim before OP No.1. Then OP No.2 was intimated by OP No.1 regarding the claim, but no amount was paid. Hence, complaint before the District Forum was filed seeking direction for payment of assured sum together with Rs.30,000/- towards mental harassment and cost of proceedings.
3. OP No.1 resisted the claim and averred that premium for insurance of Ramkali Sonkar was forwarded to Main Post Office, Durgwith that of 72 other account holders. Prior to sending proposal together with premium, Ramkali Sonkar died on 23.10.2006. On 14.11.2006, the premium was sent to Main Post Office, Durg and thereafter on 07.12.2006, a draft bearing No.822434 was prepared for forwarding consolidated premium to OP No.2, which was received by the said OP on 11.12.2006. It was averred that there was no deficiency // 3 // in service on part of the OP No.1. Prior to insurance coverage, Smt. Ramkali Sonkar had died. Hence, the claim was not payable. It was prayed that the complaint be dismissed with cost.
4. OP No.2 also contested and took the plea that it is not clear as to on which date the complainant had laid claim before the Insurance Company. Mother of the complainant had died in road accident on 23.10.2006, but no documents regarding her death have been filed. It was further averred that the complaint has been filed after a long period of death of the complainant's mother, hence, is barred by limitation. The OP No.2 is not liable to pay the assured sum in the present case and prayed for dismissal of compliant.
5. District Forum held in Para-9 of the order that the complaint was belated, otherwise also it was observed that as premium was not received by the insurer prior to death of the complainant's mother, it was not liable to make payment of the assured sum.
6. Final arguments heard. Record of the District Forum perused.
7. Counsel for the appellant submitted that the District Forum has come to a wrong finding regarding limitation. The claim of the complainant was never repudiated by the insurer still the District // 4 // Forum has found the complaint to be beyond limitation. Such an order cannot be permitted to stand. Despite notice given by the complainant, the Insurance Company had failed to decide the claim, hence complaint was required to be filed and it cannot be dismissed on such technical ground.
8. Counsel for the appellant further submitted that the District Forum had failed to appreciate the fact that the premium was deducted from the account of the complainant's mother on 20.10.2006 and she died on 23.10.2006. The District Forum ought to have ordered the insurer to pay the assured sum. The complainant is entitled to receive the claim amount, but the District Forum has passed an erroneous order because it has failed to appreciate the material placed on record in its proper prospective. Counsel for the appellant prayed for setting aside the impugned order allowing the appeal as well as the complaint.
9. Counsel for respondent No.1 as well as that of respondent No.2 submitted that they have filed MOU between the parties and as per MOU, the insurer was not liable, unless the premium was received by the insurer. In this case admittedly, the premium was forwarded to the insurer in the month of December, whereas the complainant's mother had died on 23.10.2006. Counsel for both respondents further // 5 // submitted that they have filed document relating to Operating Procedure for the scheme and it is clear from the said document that the procedure provided under it was bound to take time for finally handing over Acceptance Forms with Consolidated Premium to the insurer. They also pointed our attention towards Clause 10 of the Operating Procedure, wherein it was clearly mentioned that 'Risk cover will commence from the date and time of receipt of premium in OIC office and not from the date of debiting the account.' They submitted that it is evident from the Operating Procedure that no deficiency in service has been committed by either of the respondents. They submitted that the order of the District Forum is proper in the facts of the case and prayed for dismissal of appeal.
10. Counsel for the respondent no.2 relied on Chandrakant Chandrakar Vs. Sewa Sahkari Samiti Kumhali &Anr, Appeal No. FA/12/559 decided by this Commission on 26.02.2013; National Insurance Co. Ltd. Vs. Ashokbhai Babarbhai Patel, II (2011) CPJ 26 (NC); Union of India &Anr.Vs. Anita Singhvi, IV (2011) CPJ 170 (NC); Senior Supdt.Of Post Offices &Anr. Vs. Subhadra Kumar &Ors., IV (2012) CPJ 477 (NC) and also drew our attention towards Section 64 VB of the Insurance Act, 1938, wherein it is provided that 'No risk to be assumed unless premium is received in advance'. Both counsel for respondents prayed for dismissal of appeal.
// 6 //
11. On consideration of material placed before us, we find that finding of the District Forum has referred to Ganpat Rama Madhavi Vs. New India Insurance Co. Ltd, IV (2011) CPJ 210 (NC)and RamratanShrivasVs. JayantThakkar, IV (2011) CPJ 114 (NC) for holding the complaint to be time barred. Though RamratanShrivas(Supra),- relates to some different facts but the facts of Ganpat Rama Madhavi(Supra) are quite the same as limitation in both cases has been claimed on the ground of non-repudiation of claim by the insurer for a long time and it was held by the Hon'le National Commission that if the insurance company had not repudiated the claim and taken more than two years to take decision of claim, aggrieved insured would not have waited indefinitely and would have had filed complaint within time from the date of occurrence of peril as period of limitation cannot be reckoned from date of repudiation of claim. In view of aforesaid decision the finding of the District Forum holding the complaint to be time barred cannot be said to be erroneous.
12. We also find that the legal position is very clear that unless the premium is received by the Insurance Company, no liability can be fixed on the insurer. In this case, the premium was deducted on 20.10.2006 and the account holder died on 23.10.2006 in road accident. It is evident from Operating Procedure placed before us by the // 7 // respondents that the Branch Post Office was required to send the Acceptance Forms and a consolidated list of names and account numbers of the willing account holders to the Sub-Office and in turn, it was to be sent by the Sub-Office to Main Office with its own forms and consolidated list. Thereafter the Head Office was required to staple all the Acceptance Forms received from the insurance optees of Branch Offices, Sub-Offices and also those of Head Office and hand it over to the person deputed by the insurer along with one consolidated cheque covering premium payment of Post Office Savings Bank optees. From the aforementioned multi-layer procedure it is evident that the forms and premium would require considerable time to reach the insurer. As the insured died only after three days of debit of premium amount from her account it cannot be expected or supposed to reach the insurer prior to death of the insured following such a long procedure. We have also noted that under clause 10 of the Operating Procedure it is provided in very clear and un-ambiguous terms that 'Risk cover will commence from the date and time of receipt of premium in OIC office and not from the date of debiting the account.' This provision is also in consonance with S.64 VB of the Insurance Act.
13. So we believe that if the premium was not transmitted to the insurer, within a period of 3 days, before death of the complainant's mother, OP no.1 cannot be held to be deficient in service nor the // 8 // insurer can be held liable to pay compensation, as no policy in favour of the deceased came into existence. In view of settled legal position we do not find it necessary to discuss various case law relied by respondents. Earlier also we have decided cases on the same point and we still hold the same view. The order of the District Forum cannot be faulted with hence it is affirmed. The appeal being devoid of any merits is hereby dismissed. No order as to cost.
(Smt. Veena Misra) (V.K. Patil) (Ms.Heena Thakkar)
Presiding Member Member Member
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