State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd., Howrah ... vs Ashok Mallick, Son Of Late Ashwini ... on 23 July, 2013
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 FA/310/2012 (Arisen out of Order Dated 26.03.2012 in Case No. 65/2011 of District Howrah, Howrah DF). DATE OF FILING : 13.06.2012 DATE OF ORDER: 23.07.2013 APPELLANTS : 1. The New India Assurance Co. Ltd., Howrah Branch, Unit No.512200 at Madhusudan Apartment, P-19, Dobson lane, (2nd Floor), P.S. Golabari, District-Howrah-7111101 2. The Senior Divisional Manager, representing M/s New India Assurance Co. Ltd., Howrah Divisional Office, Unit No. 512260, at Madhusudan Apartment, 2nd Floor, P-18, Dobson Lane, P.S. & District-Howrah-711101 RESPONDENT : 1. Ashok Mallick, Son of Late Ashwini Mallick, Village and P.O. Midnapore, P.S. Katowali, District- Paschim Midnapore, PIN 720001. PROFORMA RESPONDENT : 2. Golden Trust Financial Services Ltd., having its registered office at 16, R.N. Mukherjee Road, Kolkata 700 001.. PRESIDING MEMBER
: MR. DEBASIS BHATTACHARYA MEMBER : MR. JAGANNATH BAG FOR THE APPELLANT : Mr. N.R. Mukherjee, Ld. Advocate FOR THE RESPONDENT :
Mr. Prasant Banerjee, Ld. Advocate Mr. Avik Kumar Dutta, Ld. Advocate.
Sri Debasis Bhattacharya , Member This appeal is directed against the order dated 26.03.2012 in Case No. 65/2011 passed by the Ld. District Forum, Howrah. By the impugned order, the Ld. District Forum has allowed the complaint on contest with costs against the OP Nos.1 & 2 and dismissed against the Proforma OP No.3 without cost. The Complainant was held to be entitled to the insured sum of Rs.5 lacs against her Policy No. 4751220001799/E. No.47-30834 together with interest @ 10% per annum since 08.03.2009 till full payment by the OP Nos. 1 & 2. The OPs were directed to disburse the insured amount to the claimant together with interest as directed within one month from the date of the order failing the amount shall carry interest @ 12% per annum. The Complainant was held further entitled to a compensation of Rs.50,000/- (Rupees fifty thousand) and litigation cost of Rs.10,000/- (Rupees ten thousand) from the OP Nos. 1 & 2 within one month from the date of the order failing the amount shall carry interest @ 10% per annum till full satisfaction. Being aggrieved and dissatisfied with it, the OP Nos. 1 & 2 thereof have preferred this appeal.
The case of the Complainant/Respondent No.1 in his petition of complaint, in nutshell, is that his wife Susmita Mallick (since deceased) had during her life time secured one Group Janata Personal Accident Insurance Policy from the OP No.1 through the Proforma OP No.3, being no. 4751220001799/E. N0.47-30834, of an insured sum of Rs.5 lacs (Rupees five lacs) for the period from 01.06.2000 to 31.05.2015, to which the Complainant was made the nominee. On 08.03.2009, his wife and others were proceeding from Bandel, Hooghly towards Mdinapore along NH-6 by a Tata Indica car bearing No. NB-16T-9860, which suddenly dashed a lorry from behind near Jindabazar within the Panskura P.S. As a result, the said car was badly damaged and four persons, including the wife of the Complainant died on the sport and two others severely inured. The incident was reported by the Complainant to the Officer-in-Charge, Panskura P.S., Midnapore (East) and accordingly, Panskura Case No.57/09 dated 08.03.2009, u/s 279/338/304A/427 IPC was started and G.R. No. 306/09 was registered. Post Mortem Report being No. 146 dated 09.03.2009 was submitted opining, inter alia, that the death was due to multiple injury and the injuries are ante mortem in nature. A death certificate was issued in usual manner on 26.03.2009. The unfortunate incident was intimated to the OP Nos. 1 & 2 on 23.04.2009 by the Complainant. He submitted duly filled in claim form, along with all the relevant papers which was asked for by the OP No. 2, through the OP No.3, on 02.07.2009 for onward transmission to the OP Nos. 1 & 2, which was forwarded to the OP No.2 vide letter dated 08.07.2009. As there was no response by the OP Nos. 1 & 2, Complainant made several representations dated 29.10.2009, 27.11.2009 and 03.02.100 requesting to settle the claim, but they sat over the matter without any steps towards settlement of the claim. Accordingly, he approached the Office of the Insurance Ombudsman for settlement of the claim by filing an application on 16.03.2010, in which an order was passed directing the Insurer to decide the claim on merit in accordance with the guidelines issued by the Honble High Court vide their order dated 16.03.2006 and to arrive at a decision, which was forwarded to the OP No.2 by the Complainant vide his letter dated 03.05.2011. Finally, the OP No.2 vide their letter dated 06.07.2001 repudiated the claim of the Complainant, which is absolutely baseless and unwarranted after the concerned policy was issued by the OP Nos. 1 & 2 on their objective satisfaction of the proposal made. Moreover, the Proforma OP No.3 vide their letter dated 08.07.2009 affirmed that the deceased insured person was their Fieldworker. Accordingly, the case.
On the other hand, the case of the OP Nos. 1 & 2/Appellants in their W.V., is that they deputed a Government Licensed Investigator, viz., Mr. Gautam Sarkar to investigate the veracity of the claim of the Complainant as per Section 64 (UN) of the Insurance Act, who submitted his report dated 30.04.2011 to the Insurance Company on 27.05.2011, wherein it has been specifically stated that no cogent and valid documents had been furnished from the end of the claimant regarding proof of relationships between the deceased and the Proforma OP No.3. The Fieldworker Certificate produced by the Proforma OP No.3 is a fabricated document and does not have any legal value. The Insurance Company finding no other alternative and in compliance with the Ld. Ombudsmans order dated 30.03.2011, repudiated the claim of the Complainant for non-furnishing the necessary documents vide its letter dated 06.07.2011, which cannot be said to be deficiency in service. So, the complaint be dismissed in limine.
It is to be considered if the impugned order suffers from any anomaly so as to reverse the same in this appeal.
Decision with reasons.
Ld. Advocate for the Appellants have submitted that the claimant on 24.05.2011 submitted a letter regarding business of potato by his wife and the IT return, but there is no mention of any salary and/or commission by the Proforma Respondent, i.e., G.T.F.S. There is, thus, no evidence at all to substantiate the certificate produced by the said G.T.F.S. stating that the deceased insured person was their Fieldworker. Actually, to ascertain the status of the deceased, certain documents were called for by a letter dated 04.06.2009 addressed to the claimant with copy to the G.T.F.S. In absence of any such document filed, the claim could not be processed and so finally repudiated by a letter dated 06.07.2011. He has referred a decision of the State Commission, Delhi, reported in I (1994) CPJ 176, where it was held that it is well settled that if a party in possession of the documentary evidence does not produce the same, adverse inference should be drawn against that party. Further, he has referred a decision of the Honble National Commission, reported in I (1996) CPJ 155 (NC), in which it was held that inability to render service due to reasons beyond the control of the OP to render service would not constitute deficiency in service. In this sphere, he has referred a decision of the State Commission, Bihar, reported in XI-XII- 1992 (2) CPR 738, and also of the Honble National Commission, reported in IX-1992 (2) CPR 448. Further, he has referred a decision of the Honble National Commission reported in 2008 (2) CPR 232 (NC), wherein it was held that it is for the Insurance Company to decide which papers are necessary for settling insurance claim by it. He has also referred a decision of the Honble Supreme Court, reported in AIR 1994 SC 853 in this matter.
Ld. Advocate for the Respondent No.1 has submitted that it was a genuine claim of the Complainant, whose wife died in Road Traffic Accident and the claim is within the scope of the policys terms and conditions. The Appellants have issued the policy in favour of the deceased, so they cannot avoid their liability. He has relied upon several decisions of this Commission in Case Nos. FA/452/2010, FA/130/2010, FA/139/2010, FA/23/2010, FA/268/2010, FA/296/2010, FA/383/2010, FA/198/2010, FA/219/2010, FA/430/2010 and Case No. 78/A/2007.
Ld. Advocate for the Proforma Respondent has made out that the proposal form and the premium being already accepted without any askance by the Appellants, such a policy to dupe the claim at the time only when contingency arose is dubious in nature. It is also difficult to produce all the documents after 6/7 years. He has referred the orders passed by the Honble Calcutta High Court, one in W.P. No.17808 (W) of 2004 and the other in W.P. No. 13359 (W) of 2008.
It is true that a relevant letter has been filed by the Insurance Company of the Complainant/Respondent No.1 dated 24.05.2011 stating the business of potato of his deceased wife, who was insured by such Group Janata Personal Accident Insurance Policy obtained through and at the behest of the Proforma Respondent, and IT return is also filed. Such letter does not specifically deny that she was not a registered Fieldworker of the Proforma Respondent. It may be that she did not show her income therefrom in the IT Return or she got no income at all from it. The instance of policy in between the Appellants and the Proforma Respondent the being principal showing the deceased as beneficiary is without question, so also the genuinity of the Road Traffic Accident by which she died. In view of a certificate issued by the Proforma Respondent showing the deceased insured as one of their Fieldworkers, coupled with the decisions of the Honble Calcutta High Court as well as Section 45 of the Insurance Act, such calling for additional documents only at the stage of settlement of claim is improper, unwholesome, unnecessary and without justification. It is not the case of any of the parties that the deceased insured fell within the Friend category. It is a war of words, or rather a power game in between the two main players, New India Assurance Co.
Ltd., in one hand and the G.T.F.S., on the other. It is found to be an inter-party dispute continuing for long. In it, the hapless consumer/claimant has been made a scapegoat, who is made to suffer on the happening of mishap of the legally insured person. There is nothing to disturb the findings made by the Ld. District Forum by its well reasoned order, which should be sustained.
In the result, the appeal fails.
Hence, Ordered that the appeal be and the same is dismissed on contest against the Respondents but without any order as to costs. The impugned order is hereby affirmed.
MEMBER MEMBER