State Consumer Disputes Redressal Commission
Smt.Jagouti Bai vs Head Office Royal Sundaram Allianz ... on 24 July, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/280
Instituted on : 20.04.2017
Smt. Jagauti Bai, W/o Late Shri Kashiram,
Aged 60 years, R/o : Village - Dhelka,
Post - Beltara, P.S. Khamhariya,
Tehsil - Saja, District - Bemetara (C.G.) ...Appellant (Complainant)
Vs.
1. Manager,
Head Office - Royal Sundaram Allianz Insurance Co. Ltd.,
Sundaram Towers, 45 & 46, Whites Road,
Chennai
2. Manager,
Branch Office - Royal Sundaram Allianz Insurance Co. Ltd.
Raj Chamber, Office No.306, Third Floor,
Vidhan Sabha Road, Near Pool, Mova,
Raipur (C.G.). .... Respondents (OPs)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri L.P. Verma, Advocate for the appellant (complainant).
Shri Manoj Prasad, Advocate for the respondents (OPs).
ORDER
DATED : 24/07/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 27.02.2017, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2016/674. By the // 2 // impugned order, the complaint of the complainant has been dismissed by the District Forum.
2. Briefly stated the facts of the complaint of the complainant are that the son of the complainant, namely Tikaram Sahu was working as a driver in New Balaji Transport, Devpuri, Raipur (C.G.) and he was driver of vehicle Swaraj Mazda bearing registration No.C.G.04-J.C.-8988. Tikaram Sahu met with an accident with Highwa truck bearing registration No.C.G.04-J.C.8799 near Old Dhamtari - Raipur Road, Village Khorpa, P.S. Abhanpur, District Raipur in the intervening night of 23/24.04.2014 resulting which he died. The Police Station, Abhanpur registered Offence No.101/2014 under Section 304A of IPC. The matter was investigated by the Police and Khatma No.09/2014 was issued. The deceased Tikaram Sahu, during the course of his service in New Balaji Transport, Devpuri, Raipur, obtained insurance policy No.GPA000001 Certificate No.GPA0000022486 Membership No.W407001066 from the O.P. No.1 for the period from 07.06.2013 to 06.06.2014. According to Section 1 of the policy, in case of accidental death, the entire sum assured is payable. In the insurance policy, the name of the complainant is recorded as nominee. The complainant is mother of the deceased and she is widow. The deceased Tikaram Sahu was unmarried and healthy young man and after his death, being nominee and legal heir, the complainant is entitled to get the insured amount from the OPs. The O.P. No.1 is head office of the Insurance Co. and O.P. No.2 is branch office of the Insurance Company, // 3 // therefore, the OPs are jointly and severally liable to pay the insured amount to the complainant. The complainant submitted original insurance policy and other relevant documents before the O.P. No.2 for obtaining insured amount Rs.5,00,000/- and requested to pay the above amount to her, but the O.P. No.2 did not pay the same to the complainant till date and also did not give any intimation, which comes in the category of deficiency in service and unfair trade practice. When the O.P. No.2 did not pay the insured amount Rs.5,00,000/-, then on 10.06.2016, the complainant sent legal notice through advocate to the OPs and demanded the insured amount. The legal was received by the O.P. No.1 on 17.06.2016 and to O.P. No.2 on 11.06.2016, but till date the insured amount has not been paid to the complainant and also did not sent the reply of the legal notice. Hence, the complainant filed the instant complaint before the District Forum and prayed for granting reliefs as prayed in relief clause of the complaint.
3. The OPs have filed their written statement and averred that there is no cause of action in this present complaint as the complainant never lodged any claim with the OPs. Without lodging a written claim, it is impossible for the OPs to assume or presume about any claim. Further, under the agreed policy terms and conditions which governs this insurance policy, the insured is required to lodge a claim with the OPs. On submission, the OPs should be afforded an opportunity to scrutinize the same based on documents and investigation, if required, so as to ensure // 4 // that the claim is payable as per policy terms and conditions. Since, there is no claim lodged, there is no repudiation of the claim, there is no judiciable cause of action in the present case. The present complaint is misconceived, non-tenable and unwarranted as the complainant never bothered to lodge a claim whereby the OPs were not able to know about any claim whatsoever. The complaint is hopelessly barred by limitation under Section 24A of the Consumer Protection Act, 1986 as the death of the insured happened on 23/04/2014 and the complaint is dated 14.09.2016 i.e. not within two years limitation as prescribed under Section 24A. It is pertinent to note that the alleged advocate notice marked by the complainant in her complaint is dated 10.06.2016 which is after filing the present complaint. M/s Wital See Marketing Ltd. had taken a "Group Personal Accident Insurance Policy" for its customers from the OPs for a period commencing from 23.09.2013 to 22.09.2014 under Master Policy No.GPA0000001. Mr. Mustafa Jalal Shaikh was insured under Certificate GPA00-00022486 under the hereinabove mentioned policy. The said policy was issued subject to terms and conditions which governs this contract of insurance. Under the agreed policy, Condition No.1, it is required by the insured to make a written notice immediately with all particulars, and it is required to be made in 30 days. The complainant directly approached the District Forum without lodging a claim with the OPs. The present complaint is an abuse of the process of Consumer Protection Act, 1986 as the complainant did not lodge a claim, and is trying to abridge the claim // 5 // process as established by the Insurance Contract agreed upon by the parties in order to get the claim amount, thereby to gain undue benefit under the policy without following the due procedure / policy terms and conditions. From the above submitted facts and law, it is obviously clear that in the present complaint, there is no valid cause of action and the complaint is barred by limitation under Section 24A of the Consumer Protection Act, 1986. Without prejudice, there is an inordinate delay in lodging claim the claim which is in violation of the policy terms and conditions. Thus, the present complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure A-1 is Grouper Personal Accident Insurance Policy - Certificate of Insurance, Annexure A- 2 is registered legal notice dated 10.06.2016 sent by Shri L.P. Verma, Advocate to the OPs, Annexure A-3 is acknowledgement, Annexure A-4 is postal receipts, Annexure A-5 is Detailed Track Events for RC180167234IN, Annexure A-6 is Final Report (Under Section 173 Cr. P.C.), Annexure A-7 is First Information Report (Under Section 154Cr. P.C.), Annexure A-8 is Akal Maut Ki Suchna, Annexure A-9 is Crime Details Form, Annexure A-10 is Inquest Report, Annexure A-11 to Annexure A-13 are Property Seizure Memo, Annexure A-12 is Property Seizure Memo, Annexure A-14 is application for post mortem, Annexure A-15 is Post Mortem Examination Report, Annexure A-16 is DL extract, Annexure A-17 is affidavit of Smt. Jagauti Bai.
// 6 //
5. The OPs has filed documents. Annexure NA-1 is Group Personal Accident Insurance Policy Certificate of Insurance along with terms and conditions.
6. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint of the complainant.
7. Shri L.P. Verma, learned counsel appearing for the appellant (complainant) has argued that deceased Tikaram Sahu was working as driver in New Balaji Transport, Devpuri, Raipur (C.G.) and he was driver of vehicle Swaraj Mazda bearing registration No. C.G.04-JC-8988. During the course of his service, he obtained Group Personal Accident Insurance Policy from the O.P. No. for the period from 07.06.2013 to 06.06.2014. The complainant was made nominee in the insurance policy, who is mother of deceased Tikaram Sahu. In case the death of insured occurred due to accident, the sum assured Rs.5,00,000/- is payable to his nominee. On intervening night of 23-24/04/2014, Tikaram Sahu was driving the vehicle and the same was dashed with Highwa bearing registration No.C.G.04-JC- 8799 and due to accident he died. The matter was reported to Police Station, Abhanpur where offence No.101/2014 for offence under Section 304A of IPC was registered. Due to death of Tikaram Sahu on spot, Khatma No.09/2014 was issued. The appellant (complainant) submitted claim form along with relevant document before the respondent No.2 (O.P.No.2) on 17.06.2014 and requested for insured amount, but the // 7 // respondent No.2 (O.P. No.2) did not settle the claim of the appellant (complainant) and did not provide insured amount to the appellant (complainant). Then the appellant (complainant) sent legal notice to the respondents (OPs) on 0.06.2016, even then the insured amount was not paid by the respondent No.2 (O.P. No.2) to the appellant (complainant). The respondents (OPs) committed deficiency in service, but learned District Forum did not consider the above aspect of the matter and dismissed the complaint of the appellant (complainant). The impugned order passed by the learned District Forum, is erroneous and without application of mind. The District Forum, has not appreciated the facts in its proper perspective, therefore, the impugned order passed by the District Forum, is liable to be set aside. The appeal may be allowed and reliefs as prayed by the appellant (complainant) be granted.
8. Shri Manoj Prasad, learned counsel appearing for the respondents (OPs) has argued that the complaint of the appellant (complainant) is barred by time. The appellant (complainant) never lodger any claim with the respondents (OPs). Without lodging a written claim, it is not possible for the respondents (OPs) to assume or presume about any claim. The nominee of the insured is required to lodge a claim with the respondents (OPs), but in the instant case, no claim was lodged before the respondents (OPs), therefore, no question arise to repudiate the claim of the appellant (complainant). The respondents (OPs) did not commit any deficiency in service. The impugned order passed by the District Forum, is just and // 8 // proper and does not suffer from any infirmity, irregularity or infirmity. The appeal filed by the appellant (complainant) may be dismissed.
9. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as impugned order passed by the District Forum.
10. The appellant (complainant) pleaded that her son namely Tikaram Sahu was working as a driver in New Balaji Transport, Devpuri, Raipur (C.G.) and he obtained Group Personal Accident Insurance Policy from the respondent No.2 (O.P. No.2) which was effective for the period from 07.06.2013 to 06.06.014. The sum insured is Rs.5,00,000/-. On intervening night of 23-24/04/204 her son Tikaram met with accident and died on spot.
11. The appellant (complainant) has filed copy of insurance policy which is marked as Annexure A-1, which is Group Personal Accident Insurance Policy. In the insurance policy the name of the insured is mentioned Tikaram Sahu and the appellant (complanat) Smt. Jagauti Bai was made nominee in the insurance policy, by the insured, therefore, it is established that deceased Tikaram Sahu was duly insured with the respondents (OPs).
12. The appellant (complainant) pleaded that during the intervening night of 23-24/04/203, her son Tikaram Sahu met with an accident and died on spot. The matter was reported to the Police Station, Abhanpur, // 9 // where Offence No.101/2014 for offence under Section 304A was registered and Khatma No.09/2014 was issued. The appellant (complainant) filed copy of Final Report (Annexure A-6), First Information Report (Annexure A-7), Merg Intimation (Annexure A-8), Crime Details Form and Spot Map (Annexure A-9), Inquest Report (Annexure A-109), Property Seizure Memo (Annexure A-11 to Annexure A-13), Post Mortem Report (Annexure A-15). In the post mortem examination report, the mode of death is mentioned coma and cause of death is mentioned subdural hemorrhage leading to compression of brain.
13 Looking to the post mortem examination report, first information report and merg intimation, it appears that the insured Tikaram Sahu died due to accident and his death was accidental death.
14. Now we shall examine whether the complaint of the appellant (complainant) is time bared and the appellant (complainant) submitted her claim before the respondent No.2 (O.P. No.2) within time ?
15. The respondents (OPs) specifically pleaded that the death of the insured Tikaram Sahu was occurred on 24.04.2014 but no claim was submitted before the respondent No.2 (O.P. No.2). The appellant (complainant) simply pleaded in para 6 of the complaint that she submitted her claim form along with relevant documents before the respondent No.2 (O.P. No.2), but the appellant (complainant) did not plead regarding the date when she submitted claim form along with documents // 10 // before the respondent No.2 (O.P. No.2). It is essential for the appellant (complainant) to disclose the date when she submitted claim form before the respondent No.2 (O.P. No.2), but she did not disclose regarding the date of submission of the claim form before the respondent No.2 (O.P. No.2). In para 7 of the complaint, the appellant (complainant) pleaded that on 10.06.2016 she sent legal notice to the respondents (OPs). The appellant (complainant) did not file any document to prove that she submitted claim form along with documents before the respondent No.2 (O.P. No.2). The appellant (complainant) has filed copy of her affidavit dated 17.06.2014, but in the said affidavit it is not mentioned that affidavit was submitted before the respondent No.2 (O.P.) regarding her claim. Had the appellant (complainant) submitted claim form along with documents, the respondent No.2 (O.P.No.2) would have certainly gave acknowledgement regarding submission of claim form and documents, but no such acknowledgement has been filed by the appellant (complainant). It is essential for the appellant (complainant) to submit her claim within 12 months from the date of incident before the respondent No.2 (O.P. No.2). In the instant case, the appellant (complainant) has not filed any documents to prove that she submitted claim form along with documents before the respondent No.2 (O.P. No.2).
// 11 //
16. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"17. Section 24-A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. Recently, in SBI v. B.S.Agriculture Industries (I) this Court, while dealing with the same provision, has held: (SCC p. 125, paras 11-12) "11. ...It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is // 12 // brought, "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See Sidramappa v. Rajashetty.) In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."
17. In H.P.State Forest Co. Ltd. Vs. M/s. United India Insurance Co. Ltd, 2009 AIR SCW 865, Hon'ble Supreme Court observed thus:
"5. It is clear from the record that the timber had been washed away sometime in September 1988 and after prolonged correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant's claim. It is also clear from the counter-affidavit filed by the respondent that the appellant had, vide its letter dated 7th November, 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December, 1987, that is long before the flood. The claim of the appellant that the respondent - company had, even after the 13th October, 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant / appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994."
18. In Smita Madhav Patki Vs. National Insurance Co. Ltd. & Ors, I (2013) CPJ 331 (NC), Hon'ble National Commission observed thus:
"17. State Commission in its order has observed:
5. Cause of action for the insurance claim in question but arose on the death of late Madhav Patki and not on the date of repudiation of the insurance claim as alleged by the complainant. A useful reference can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & // 13 // Co. v. National Insurance Co. Ltd. and Others, 2009 CTJ 951 (SC) (CP). Insurance claim, thus, is preferred beyond the period of two years from the date of cause of action, supra and as such barred by limitation. There is no application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident Policy is on record. Amongst other terms it also submitted as under:
"It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such ...have been made the subject of a suit in a Court of Law then the claim shall for all purpose be deemed ... been abandoned and shall not thereafter be recoverable hereunder."
7. As held by the Apex Court in the matter of Himachal Pradesh State Forest Co. Ltd. v. United India Insurance Co. Ltd, (2009) 2 SCC 252, though above referred clause in view of Section 28 of the Contract Act will not be acted upon for the curtailment of the period of limitation still the later part of it which refers to extension of the right itself unless exercised within specified time can be enforced. Therefore, since the claim was not made within 12 calendar months from the date of happening, the claim shall for all purposes be deemed to have been abandoned and is not recoverable after the expiry of the said period.
8. For the above said reasons, we find that no fault can be found with the impugned order resulting into dismissal of consumer complaint. Holding accordingly, we pass the following order."
19. In National Flask Industries Ltd. vs. Dakshin Gujarat Vij Co. Ltd. & Ors., IV (2015) CPJ 566 (NC), Hon'ble National Commission has observed thus :-
"23. ....... The cause of action will arise from the date of incident and not from the date, when the Insurance Company has given a decision on the complaint/claim. The complainant should have filed the complaint immediately, within two years and should have given the notice to the OPs, within the said two years, in order to file the complaint within time."
// 14 //
20. The appellant (complainant) pleaded that the cause of action accrued when legal notice dated 10.06.2016 was sent to the respondents (OPs).
21. In United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Honble National Commission has observed thus :-
"6.......... correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Form committed error in allowing complaint."
22. In Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has observed that "Mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation."
23. Merely sending notice does not give rise to fresh cause of action and mere submission of legal notice or representation to competent authority does not arrest time.
// 15 //
24. In the instant case, the cause of action accrued on 24.04.2014 when the deceased insured died. The appellant (complainant) is unable to prove that she submitted claim before the respondent No.2 (O.P. No.2) and the respondent No.2 (O.P. No.2), did not settle her claim, therefore, the cause of action was accrued on 24.04.2014 when the insured Tikaram Sahu died,, whereas the complaint has been filed on 30.08.2016 i.e. after two years of the incident. The appellant (complainant) has not filed any application under Section 24A of the Consumer Protection Act, 1986 before the District Forum for condonation of delay. Therefore, the complaint of the appellant (complainant) is barred by the time. The appellant (complainant) has not filed any claim before the respondents (OPs), therefore, the respondents (OPs) have not committed any deficiency in service.
25. Therefore, the impugned order dated 27.02.2017, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
26. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
24/07/2017 24 /07/2017 24/07/2017