State Consumer Disputes Redressal Commission
Maharashtra State Electricity Board ... vs Smt.Ranjana Hindurao Dabhole And Ors. on 1 March, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE FIRST APPEAL NO.1314/2005 Filed on : 29/07/2005 IN CONSUMER COMPLAINT NO.35/2004 Date of order: 01/3/08 DISTRICT CONSUMER FORUM, KOLHAPUR MISC.APPLICATION NO.1672/2005 1. Executive Engineer Maharashtra State Electricity Board Kolhapur, Rural Division II Vidyut Bhavan, Tarabai park Kolhapur 2. Maharashtra State Electricity Board Prakash Gad, Plot no.G-9 Bandra (East), Mumbai 400 051 .Appellant/org.O.P.nos.3&4 V/s. 1. Smt.Ranjana Hindurao Dabhole R/o.426, A ward Laksha Tirth Vasahat, Kolhapur ..Respondent/org.complainant 2. National Insurance Co.Ltd. Pune Division Office II 586, Sadashiv Peth, Laxmi Road Pune 3. Shri R.S.Dandekar Sr.Divisional Manager National Insurance Co.Ltd. Pune Division office II 586, Sadashiv Peth, Laxmi Road, Pune ..Respondents/org.O.P.nos.1&2 Corum: Justice Mr.B.B.Vagyani, Honble President Mr.P.N.Kashalkar, Honble Judicial Member
Smt.S.P.Lale, Honble Member Present: Mr.S.S.Jinsiwale -Advocate for the appellants.
Mr.K.N.Lokhande-Advocate for the respondent/org.complainant.
Mr.A.S.Vidyarthi-Advocate for respondent nos.2&3/ Insurance Co.
ORDER Per Justice Mr.B.B.Vagyani, Honble President
1. This appeal filed by Maharashtra State Electricity Board, Prakash Gad, Mumbai, original O.P.nos.3&4 is directed against the order dated 22/6/05 passed by District Consumer Forum, Kolhapur in consumer complaint no.35/04. District Consumer Forum, Kolhapur directed National Insurance Co.Ltd. and Maharashtra State Electricity Board to pay Rs.1,00,000/- each to the complainant together with interest @ 10% p.a. Forum below further directed National Insurance Co.Ltd. and Maharashtra State Electricity Board to pay Rs.1000/- each by way of Advocate fees, Rs.200/- towards cost of the litigation and Rs.1000/- each by way of compensation for mental harassment. Maharashtra State Electricity Board has taken exception to this order and has come up in appeal.
2. Late Hindurao Dabhole was working as Lineman in Kolhapur Rural division no.II of MSEB. While on duty, he sustained electric shock on 30/3/01. He died on 20/4/01. After death of Hindurao Dabhole, his widow Ranjana, who is complainant in consumer complaint no.35/04 asked to extend benefits of Janata Personal Accident (Group) Policy. National Insurance Co.Ltd. repudiated the claim by letter dated 20/10/03. Thereafter widow of Hindurao Dabhole filed consumer complaint.
3. Said consumer complaint was resisted by the National Insurance Co.Ltd. Insurance Co. contended in the written statement that the claim should have been preferred within one calendar month after happening of accident. MSEB contended in the written statement that there was no deficiency in service on its part.
4. Forum below allowed the complaint and imposed joint liability on the National Insurance Co.Ltd. and MSEB. It is transpired from the material placed on record that long term Janata Personal Accident (Group) policy was made applicable to injured persons or heirs of deceased employees. Ld.Advocate Mr.Jinsiwale for the appellant pointed out that insurance cover for all employees of MSEB was taken for the period 26/2/1998 to 25/2/2010. He further pointed out that MSEB paid an amount of Rs.2,42,00,000/- to the National Insurance Co.Ltd. towards premium @ Rs.200/- per employee through Maharashtra State Electricity Board Staff Welfare Fund. As per the insurance policy, injured employee or his heirs in case of death is to get Rs.2 lakhs from the Insurance Co. Ld.Advocate Mr.Jinsiwale further pointed out that no amount was recovered from the employees towards premium. As a welfare step, Janata Personal Accident (Group) policy was taken and therefore the Forum below should not have imposed liability on the employer. According to Mr.Jinsiwale-Advocate for the appellant, it was the sole responsibility of the Insurance Co. to pay Rs.2 lakhs to the widow of late employee of MSEB.
5. Ld.Advocate Mr.Lokhande for respondent no.1/org.complainant argued that the widow of the deceased is entitled to receive Rs.2 lakhs. Ld.Advocate Mr.Lokhande submitted that the MSEB employer of late Hindurao Dabhole intimated the death to the Insurance Co. at belated stage and therefore employer and the Insurance Co. both are liable to pay Rs.2 lakhs.
6. We gave anxious consideration to the rival submissions advanced at the bar.
Condition no.1 of Janata Personal Accident Group policy reads as under:-
Upon the happening of any event which may give rise to a claim under this policy the insured shall forthwith give notice thereof to the company. Unless reasonable cause is shown the insured should within one calendar month after the event which may give rise to a claim under the policy give written notice to the company with full particulars on the claim.
7. So far as factual position is concerned, no claim was preferred within one calendar month from the happening of event. There was delay in submission of a claim. Late submission of claim does not deprive the claimant of the benefits of policy, because time is not essence of the contract. Question whether or not time was essence of the contract would essentially be a question of intention of the parties to be gathered from the terms of the contract. Condition no.1 does not stipulate a penalty clause. Moreover, it is not the intention of the parties to make the time as essence of the contract. Fixation within which the contract has to be performed, does not make the stipulation as to the time the essence of the contract.
8. Breach of condition no.1 is not a fundamental breach of insurance policy. The State Commission has taken a view in the case of New India Assurance Co.Ltd. V/s. Nanasaheb Hanumant Jadhav and others respondents 2005(2) CPR 24 that the clause regarding intimation of accident within one month is a directory and not mandatory. Very purpose of giving intimation within one calendar month is to have sufficient time for making scrutiny of the claim to avoid delay in the matter of payment. The full particulars are insisted for the effective scrutiny of the claim. The phraseology used in clause no.1 would also go to show that some latitude is provided, if sufficient reasons are shown for belated reporting of the incident. The time limit is prescribed for the interest of the insured in order to facilitate prompt scrutiny of the claim. Therefore, this clause cannot be used in detriment to the interest of the insured.
9. It is revealed from the material placed on record that there was no direct obligation on the legal heirs of the deceased insured to submit a claim to the Insurance Co. within a period of one month from the date of happening of accident. The Head office of MSEB issued a circular on 16/11/98. As per this circular, the Executive Engineer of a concerned division is required to intimate death arising out of an accident. Some times the legal heir is not aware about the Janata Personal Accident Group policy. We cannot expect from illiterate person from rural area to submit a claim within one month from the date of happening of event in absence of adequate knowledge with regard to insurance policy and conditions therein. One has to draw a line between Life Insurance policy and Group Insurance policy. In case of Life Insurance policy, policy is with the insured. In Group Insurance policy, the policy is not with the insured employee. Under the circumstances, it is very difficult for the legal heirs to submit a claim within a period of one calendar month from the date of happening of accident. Executive Engineer is the first person to know the death of employee of MSEB while discharging duties. Therefore we hold that action of repudiation by the Insurance Co. is not justified in law.
10. This takes us to consider the important question with regard to sharing of liability. We carefully perused the averments made in the complaint and prayer clause. In clause no.10 of the complaint, it is stated that National Insurance Co.Ltd. be directed to pay Rs.2 lakhs. Amendment was made in the complaint and thereafter MSEB is brought on record as O.P. In the amendment application, no direction is asked against MSEB, so far as insurance amount is concerned. MSEB is brought on record to explain the delay in submission of the claim. However no relief is claimed against MSEB.
11. As per policy, Insurance Co. is responsible to pay the entire amount of Rs.2 lakhs. Employer is not under obligation to pay insurance amount. Employee died when policy was subsisting and therefore legal heir of deceased employee is entitled to get entire insurance amount of Rs.2 lakhs from the Insurance Co. and not from the employer. At the most it can be said that employer was not prompt in forwarding the claim papers to the Insurance Co. However delay in submission of claim papers at a belated stage does not warrant direction to share the proportionate liability.
12. Honble Supreme Court in the case of Delhi Electric Supply Undertaking v/s. Basanti Devi 1999 AIR SCW 4161 directed LIC to pay insurance amount and exonerated the employer. In that case LIC was wrongly discharged. Supreme Court under its inherent powers and powers under order 41 Rule 33 of Civil Procedure Code directed LIC to pay amount of insurance to the representatives of employees, thus substituting LIC for the employer.
13. In the case in hand, employer is not under any obligation to pay insurance amount in equal proportion to the heirs of deceased employee. We are aware that the complainant has not preferred any appeal. We therefore heard Ld.Advocate Mr.A. S.Vidyarthi for the National Insurance Co. at length. We are also aware that the provisions of Order 41 Rule 33 of CPC are not applicable to the provisions of Consumer Protection Act, 1986. The Consumer Forums have no inherent powers similar to Civil Courts. However we can not forget the motto of Consumer Protection Act, 1986. Consumer Forums are supposed to protect and promote the interest of consumers. In this case National Insurance Co. Ltd. is under legal obligation to pay entire insurance amount to the complainant. Lower forum has wrongly imposed the proportionate liability on the employer because of delay in submitting claim papers to the Insurance Co. The circumstances for invoking principles lying under Order 41 Rule 33 of CPC are however present. All the parties before Lower Forum are before us. The question raised is properly arise out of the judgement of the Lower court. However, we exercise our revisional jurisdiction under section 17(1)(b) of Consumer Protection Act, 1986 to set things right and to render complete justice between the parties. Technicalities do not over ride dispensation of justice. Lower forum should have taken into consideration that MSEB had paid Rs.2,42,00,000/- to the Insurance Co. by way of premium. Welfare of the employees was the paramount consideration in taking Janata Personal Accident Group policy. Nothing was recovered from the employees. Employer has in fact rendered free service to the employees in case of Insurance policy. At the most, Forum below could have imposed heavy cost for belated submission of claim papers to the Insurance company. The Forum below has acted in exercise of its jurisdiction illegally as against MSEB. We therefore hold that the order under challenge is partially incorrect. Any payment made earlier in response to the award is to be taken into consideration in the matter of identification of liability.
In the result, we pass following order:-
ORDER
1.
Appeal is partly allowed.
2. Direction to pay Rs.1,00,000/- together with interest @ 10% p.a. so far as appellant MSEB is concerned is quashed and set aside.
3. Complaint stands dismissed as against appellant/MSEB. However we maintain the direction to pay cost of the litigation and compensation, which is too meager.
4. National Insurance Co.Ltd./org.O.P.no.1 is hereby directed to pay entire insurance amount of Rs.2 lakhs to the original complainant together with interest @ 10% p.a. from the date of repudiation till the date of realization.
5. Order is to be complied with within a period of one month from the receipt of order.
6. Misc.application stands disposed of.
7. Parties are directed to bear their own cost.
8. Copies of the order herein be furnished to the parties.
(S.P.Lale) (P.N.Kashalkar) (B.B.Vagyani) Member Judicial Member President Ms.