State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd.,& Ors. vs Sh. Kuldeep Chand & Ors. on 8 October, 2009
H
H.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
SHIMLA-9.
F.A. No. 539 of 2007 Decided
on 8.10.2009.
1.
The New India
Assurance Co. Ltd.,
Branch Office, Mandi
Through its Senior Divisional Manager
IIIrd Floor, Block
No. 7, SDA Complex,
Shimla-171009.
2.
The New India
Assurance Co. Ltd.,
Branch Office, Shree Ganesh Chamber,
Laxminage Sq. Nagpur
Through its Senior Divisional Manager
IIIrd Floor, Block No.7, SDA Complex,
Shimla-171009.
....Appellants.
Versus
1.
Sh. Kuldeep Chand
S/o Sh. Joginder
Singh R/o Village-Pungh,
P.O. Sunder Nagaar-1, Tehsil Sunder Nagar,
District Mandi
(H.P) (Mentally infirm person)
Through Smt. Kaushalya Devi,
Wife of Sh. Kuldeep
Chand.
2.
M/s Westerm Coal Fields Ltd.,
Coal Estate Civil Lines,
Nagpur-440001 ( Maharashtra)
Through its Manager. ..Respondents.
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Honble Mr. Justice Arun Kumar Goel (Retd.), President.
Honble Mrs. Saroj
Sharma, Member.
Honble Mr. Chander
Shekher Sharma, Member.
Whether approved for reporting
?
For the Appellant. Mr. Ratish
Sharma, Advocate
For the Respondents.
Mr. Naresh
Sharma, Advocate
for respondent
No.1.
None for respondent No.2 though
duly served as
per office report.
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ORDER
Justice Arun Kumar Goel (Retd.) President.
1. District Forum, Mandi while allowing complaint No. 1033/2003 on 23.10.2007 has directed the appellants to compensate respondent No.1 in the sum of Rs. 5 lacs with interest @ 9% per annum from the date of institution till payment with cost assessed at Rs. 2000/-. Respondent No.1 was admittedly employee of respondent No.2. For its entire work force respondent No.2 as emoloyer, had obtained Group Janta Personal Accident Policy from the appellants. It is not in dispute that during the subsistence of this policy respondent No.1 was working as Haulpak Operator in Open Caste SA in Wani Area, Chanderpur ( Maharashtra), with his employer-respondent No.2. Sum insured in case of every member of its work force was Rs. 5 lacs.
2. Respondent No.1 proceeded on leave on 1st July to his native place in District Mandi. He got down from train at New Delhi Railway Station on 7.7.2001 in the morning. While he was on his way to inter state bus terminus from Delhi railway station, he met with an accident. As a result of it he sustained multiple injuries of serious nature. He remained admitted at Sushruta Trauma Centre Hospital, Delhi upto 28.7.2001. Thereafter he was under treatment at IGMC, at Shimla. As a result of this accident he received permanent injury which required 24 hours attendance. Medical Board after examining him, certified his dis-ability to be 100%, permanent in character.
3. In this background he preferred claim for being indemnified in the sum of Rs. 5 lacs i.e the sum insured, by the appellants. Notice was also sent to this effect on 27.1.2003.
His claim was rejected by the Branch Manager of appellant-Insurance Company, at Nagpur. This resulted in filing of the complaint. Complaint was resisted by the appellants. According to them it was barred by time, was not maintainable and District Forum, Mandi had no jurisdiction to entertain and try the same. Insurance cover having been issuesd in the sum of Rs. 5 lacs in case of each member of the work force of respondent No.2 was admitted during the period from 6.1.1999 to 14.3.2009 under the Group Janta Personal Insurance Accident Policy. However, it was pleaded by the appellants that requisite insurance premium was not paid by the employer-respondent No.2. During the audit this deficiency was detected by the Auditors. Respondent No.2 was called upon by them to make the deficiency good of insurance premium. On its failure to do the needful, appellant No.2 cancelled the above referred Group Janta Personal Accident Policy.
4. Cancellation of insurance policy by the appellants was challenged by respondent No.2 in Writ Petition No. 3321/2002, before the Nagpur Bench, of the Bombay High Court. This writ petition was allowed on 2.9.2005. Copy of this order has been placed on record alongwith their notes of arguments by the respondent No.2 in this appeal. When this matter was taken up in Petition(s) for Special Leave to Appeal (Civil) No. 1733/2006 by the appellants, it was dismissed by Honble Supreme Court on 22.1.2007. Copy of this order is also placed on record of this appeal by respondent No.2. Its direct consequence is that cancellation of policy by the appellants became non-est. Respondent No.2 did not contest the complaint before Distict Forum below, wherein it was arrayed as O.P. No. 3. After hearing the parties present, complaint was allowed. Hence this appeal by the appellants only.
5. Mr. Ratish Sharma, learned counsel for the appellants submitted that District Forum, at Mandi had no territorial jurisdiction to have entertained as well as tried the complaint, as no part of cause of action accrued in favour of respondent No.1 within its jurisdiction. Because neither the insurance was undertaken, nor accident had taken place in Mandi District. As such according to him, this appeal deserves to be allowed on this ground alone.
6. We specifically asked Sh. Sharma as to whether his client has an office at Mandi, within the jurisdiction of District Forum, Mandi, his answer was that one of the Divisional Offices of the appellant-Insurance Company is at Mandi. In the face of this admission , as also keeping in view section 11 (2) (a) of the Consumer Protection Act, 1986 District Forum, Mandi had the jurisdiction to entertain, as well as to have adjudicated upon the complaint. As such plea to the contrary is rejected, being without any merit.
7. Sh. Sharma while advancing the case of his cleints further urged, that accident had taken place on 7.7.2001 at Delhi, whereas policy in this case was cancelled by his client on 14.9.2002 on the failure of respondent No.2 to make good the deficiency of insurance premium, despite having been called upon to do the needful after it was detected by the Auditors. Therefore, according to him when complaint was filed there was no subsisting policy, on the basis of which his clients can be held liable to indemnify the respondent No.1. This plea is being noted to be rejected . Reason being that right to maintain the complaint accrued in favour of respondent No.1 when he met with accident, i.e. on 7.7.2001 which resulted in his suffering 100% dis-ability of permanent character. This is the date when rights of the parties are to be seen. In addition to this, in the face of the order of Nagpur Bench, of the Bombay High court in Writ Petition No. 3321/2002, decided on 2.9.2005, and SLP against it having been dismissed on 22.7.2007, by the Supreme Court, this plea cannot allowed to be pressed into service by the appellants, hence rejected.
8. While challenging the dis-ability certificate, Sh. Sharma submitted that no doubt it certifies the dis-ability of respondent No.1 to be 100% of permanent character, however his mental dis-ability had been assessed marginal at 50% and Hemiplegia Lt 75%, i.e paralysis of left side. Thus per him claim based on disability certificate was not tenable.
There is no rebuttal to this certificate of the Medical Board, whereby dis-ability had been certified to be 100% of permanent character. In this behalf we may mention here, that the respondent No.1 is a person under mental dis-ability, thus he had filed the complaint through his wife, Smt. Kaushalya Devi. From the complaint it is clearly established that the dis-ability of respondent No.1 is both physical, as well as mental. There is no rebuttal any whatsoever on this aspect of the complaint by the appellants, to controvert the stand of respondent No.1.
In these circumstances, we uphold the findings of the District Forum below that this is a case of 100% dis-ability of permanent character suffered by respondent No.1, and all the pleas to the contrary raised on behalf of the appellants are rejected.
9. So far plea of Mr. Sharma that the matter regarding cancellation of policy was sub-judice is concerned, in the light of the decision of Nagpur Bench of the Bombay High Court, as well as of Honble Supreme Court, this plea has become meaningless.
10. Catching last straw with a view to get his clients exonerated, Mr. Sharma submitted that the terms of an insurance contract is like any other contract entered into between the parties, and its terms have to be strictly construed by referring to those. He thus submitted, that respondent No.2 was duty bound in terms of the insurance policy, to have intimated his client regarding accident within its 15 days of the occurrence. Needful was not done, as such even if his clients are held liable to indemnify the respondent No.1, while exonerating them, liability needs to be fastened on respondent No.2. As according to him, no intimation was provided by respondent No.2 regarding the accident to the appellants, nor any claim was lodged with them in this behalf. Thus he prayed for allowing the appeal.
11. In this context, we are of the view that no doubt respondent No.2 the employer of respondent No.1 should have intimated the appellants as well as lodged the claim as per terms of the policy, but then the question arises whether for inaction of his employer and at this belated stage, it would be advisable to direct the respondent No.1 to recover the amount from respondent No.2. And more especially in the face of his state of health, when he is suffering from 100% dis-ability of permanent character, besides being a mentally infirm person partially.
Our answer is, no.
12. In this context, we may notice here, that the appellant-Insurance Company is wholly owned and controlled Public Sector Undertaking of the Government of India, same is the position of respondent No.2-the employer of respondent No.1. Above all more than 8 years have passed when respondent No.1 met with an accident and till date he has not seen the face of the coin. All that he has got till now is the litigation from one court to the other.
13. As such we are of the view that equities will be well adjusted, by directing the appellants in the first instanace to indemnify the respondent No.1 for the compensation awarded by District Forum below while allowing his complaint case No. 1033/2003 on 23.10.2007.
And after having done the needful, to take such action against the respondent No.2 for being indemnified as is available to it under law. It is clarified that during the course of such action by the appellants, respondent No.2 will entitled to satisfy the court/forum, that it had complied with the terms and conditions of the policy, including lodging of the claim as well as having provided timely intimation about the incident as required under insurance policy. And in such a situation, court/forum would be free to proceed further while deciding the issue in accordance with law, without being influenced by anything said in this order. Appeal is disposed of subject to these directions, so far inter-se matter between the appellants and respondent No.2 is concerned, leaving the parties to bear their own costs.
14. All interim orders passed from time to time shall stand vacated forthwith.
15. Learned counsel for the appellant has undertaken to collect copy of this order free of cost from the Court Secretary as per Rules, whereas Mr. Naresh Sharma, Advocate for respondent No.1 submitted that the copy be sent to him at his District Courts address at Mandi. Prayer allowed and office is directed to do the needful. Copy of this order will be sent in the like manner to respondent No.2 by the office.
(Justice Arun Kumar Goel)Retd.
President (Saroj Sharma) Member (Chander Shekher Sharma) Member Suneera 8.10.2009