State Consumer Disputes Redressal Commission
Chandrakant Chandrakar vs Sewa Sahkari Samiti Kumhali & Anr. on 26 February, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.FA/12/559
Instituted on 09.10.12
Chandrakant Chandrakar,
S/o: Late Shri Tikaram Chandrakar,
R/o: Village - Bhainsbod (Kumhali),
Po. Pouha, Thana - Ranchirai,
Tah. & Dist. DURG (C.G.) ... Appellant.
Vs.
1.Sewa Sahkari Samiti Kumhali, Branch - Jamgaon (R), Through: Manager, Jila Sahkari Kendriya Maryadit Bank, Opp. District Hospital, G.E.Road, Durg, Tah. & Dist. DURG (C.G.)
2. The Oriental Insurance Co. Ltd., Divisional Office, Parmanand Bhawan, Nr. Rajendra Park Chowk, G.E.Road, Durg, Tah. & Dist. DURG (C.G.) ... Respondents.
PRESENT: ‐ HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT HON'BLE SMT. VEENA MISRA, MEMBER HON'BLE SHRI V.K. PATIL, MEMBER COUNSEL FOR THE PARTIES: ‐ Shri R.K. Bhawnani, for appellant.
Shri Sudhir Tiwari, for respondent no.1.
Shri L.K.Joshi, for respondent no.2.
ORDER Dated: 26/02/2013 PER: ‐ HON'BLE SHRI V.K.PATIL, MEMBER This appeal is directed against order dated 20.09.2012 of District Consumer Disputes Redressal Forum,Durg (hereinafter referred for short as "District Forum") in complaint case no.361/2010 whereby // {PAGE } // complaint of the appellant/ complainant, alleging deficiency on the part of respondents for not paying the insurance claim, was dismissed.
2. Briefly stated facts of the case are that complainant is the son of late Tika Ram Chandrakar who had been a holder of a Farmer Credit card with OP no.1, which had insured the lives of its account holders under Group Personal Accident Unnamed policy no.152500 / 48 / 2010 / 1192 with OP.no.2 / insurance company. OPno.1 bank had deducted Rs.100/‐ from the account of late Tikaram Chandrakar towards premium and remitted it to the OP.no.2/insurance company through Jila Sahkari Kendriya Bank Mydt, Durg. Complainant averred that as per terms & conditions of the insurance policy, the sum assured Rs.5,00,000/‐ was payable to the nominee/legal heirs of the deceased member in case of death by accident. Complainant averred that his father late Tika Ram Chandrakar while traveling from a village on 10.11.2009, became a victim due to attack of honey bees whereby he was gravely injured and was shifted to hospital at sector 9 Bhilai and after treatment of about 10 days he died there on 20.11.2009. Intimation was given to OP.No.1 which forwarded claim papers submitted by the complainant to OP No.2/insurance company but it repudiated the claim on unreasonable ground. Complainant alleged that the act of OPs, in denying the insurance claim despite collecting premium // {PAGE } // amount amounted to deficiency in service, so prayed before learned District Forum seeking direction to OPs to pay him the sum assured Rs.5,00,000/‐ in terms of the (GPA UNNAMED) insurance policy along with interest @ of 12 % p.a. Compensation towards mental agony and cost of litigation was also prayed for.
3. OP no.1 in its reply averred that it had forwarded the claim papers, submitted by the complainant, to OP no.2 /insurance company. OP no.1 also averred that the complainant had no where in his complaint alleged any sort of deficiency in service on its part, so demand of compensation from it, was not proper. OP no.1 averred that in case of any dispute, the complainant should have given notice to it as per provisions of Co‐operative Societies Act whereby the jurisdiction to settle the dispute was with Sub Registrar Co operative Societies, Durg. OP no.1 prayed for dismissal of the complainant.
4. OP no.2 in its reply, while denying other averments of the complainant, averred that it had issued an UNNAMED Group personal Accident Policy no.152500/48/10/1192 for period 17.11.2009 to 16.11.2010 in favour of OP no.1 where under the sum assured Rs.5,00,000/‐ was payable on the death of insured member due to // {PAGE } // accident during subsistence of the policy. OP.2 averred that the insurance claim was placed before it but since the incident of honey bee attack occurred on 10.11.2009 with the deceased member, which was prior to the issuance of insurance policy i.e. 17.11.2009, it had no liability and as such the claim was repudiated giving due intimation to OP no.1 and the complainant as well. OP no.2 averred that it had not committed any deficiency in service, so prayed for dismissal of the complainant.
5. Learned District Forum having perused the documents produced before it and heard argument of parties, dismissed the complaint.
6. We have perused the documents on record and heard arguments advanced by parties.
7. Earlier the complaint was allowed by learned District Forum by way of its order dated 31.12.2011 directing the insurance company to pay the sum assured against which an appeal no.FA/12/37 was filed by the Insurance company before this commission which was allowed vide order dated 05.06.2012 and the case was remanded back to // {PAGE } // learned District Forum with the direction to provide reasonable opportunity to all the parties to adduce evidence in the form of affidavits and documents, where after complying the said directions, complaint was decided afresh thereby dismissing the complaint by way of the impugned order of learned District Forum, which is under challenge in this appeal.
8. The only question to be decided is whether respondents have committed deficiency in service by denying the insurance claim amount to the appellant/complainant on the death of his father due to accident and if so, compensation there for ?
9. It is not in dispute that the deceased father of the appellant/complainant was a farmer Credit Card holder and had an account with respondent no.1 which had debited an amount of Rs.100/‐ from his saving account towards insurance. It is also not in dispute that respondent no.2 / insurance company had issued a group insurance policy GPA UNNAMED no.152500/48/2010/1192 covering risk of Rs.5,00,000/‐ in case of death of its members due to accident.
// {PAGE } //
10. Contention of the appellant/complainant is that his father, while traveling through a village area, became a victim of honey bees attack on 10.11.2009 so was gravely injured and was taken to hospital of sector 9 Bhilai where he died having undergone treatment there, even then the insurance claim amount was not paid.
11. We find that the appellant/complainant has filed the complaint in the capacity of a legal heir of the deceased but he has not filed any document to show whether he is the only legal heir of the deceased and if there are other legal heirs also, then no authority in his favor has been filed, however said fact has not been disputed by the respondents so we do not find it necessary to indulge into it.
12. As per documents available on record, the only evidence to show coverage of insurance to the deceased father of the appellant/complainant is the insurance policy (document no.D‐1 supported by documents AN‐9 & AN‐10. There is no evidence at all to show that the deceased had been provided insurance cover by respondent no1 or Jila Sahkari Kendriya Bank Mydt. Durg, immediately on becoming its account holder.
// {PAGE } //
13. As per the questioned policy (document no. D‐1), the insurance contract was between respondent no.2/ insurance company and Jila Sahkari Kendriya Bank Ltd,Durg but while filing the consumer complaint, Jika Sahkari Kendriya Bank has not been impleaded as party in the case by the appellant/complainant.
14. The two documents (1) Memo of Understanding and (2) Memo of Agreement, executed between the respondent no.2 / insurance company and the Jila Sahkari Kendriya Bank Ltd., are necessarily required to be referred, so as to avoid confusion.
As per MEMO OF UNDERSTANDING dated 2.10.2009 executed between the two parties, vide its clause no.2 they had entered into a MEMO OF AGREEMENT MOA dated....... on the terms and conditions set forth therein by virtue of which the bank had agreed that it would refer its customers through its branches to the Oriental Insurance for marketing Oriental Insurance Products.
As per MEMO OF AGREEMENT dated 2.10.2009 produced at appellate stage during final hearing, it has been mentioned in its 4th para of first page as under;
"Whereas 'Oriental Insurance' is in the business of, inter alia, selling non‐life insurance products (hereinafter called "Oriental Insurance Products", and // {PAGE } // desirous of having a tie up with Bank for referral services (referral services means referring its customers by bank to the authorized representatives of 'Oriental Insurance' at the branches of Bank for the purpose of soliciting non‐ life insurance business, hereinafter called "the services"). Further clause no.2 of Memo of Agreement, under caption BANK'S OBLIGATIONS the relevant provision has been mentioned as under;
(i). Put in its all efforts to refer its customers and prospective customers through all its branches to "Oriental Insurance" for distribution of "Oriental Insurance Products.
(ii). Not solicit business of "oriental Insurance Products" directly or indirectly for or on behalf of "Oriental Insurance". However, it has been mutually and unconditionally agreed upon that the bank is at liberty to provide banking facility, as a part of its routine banking facility/service to any other insurance company or to customers of " Oriental Insurance"
(iii). Not collect any monies directly from customers or accept any insurance policies for or on behalf of " Oriental Insurance" unless authorized by "Oriental Insurance".
(iv), (v).vi,vii. ...................................................
// {PAGE } //
15. From the aforesaid provisions it is clear that the bank had not been authorized to sell insurance products on behalf of the respondent no.2/insurance company but only to refer its customers for marketing of Oriental Insurance Products. Thus customers were free to buy insurance product from the insurance company or to deny it. Bank has not been the agent of the respondent no.2/insurance company so it cannot be inferred that it had debited the account of the deceased father of the appellant/complainant on behalf of the insurance company.
16. Further respondent no.1/Seva Sahkari Samiti, Kumhli, Jamgaon Branch in reply supported by the affidavit dated 18.11.2011 of its manager Ku. Sarita Rangari has not clarified under what obligation it had assisted the appellant/complainant in forwarding the claim forms to OP no.2/insurance company and how it had been imleaded as party in the complainant, however in para no.2 of its written arguments dated 19.12.2011, it has stated that it is a branch functioning under the jurisdiction of Jila Sahkari Bank Jamgaon and Jila Sahkari bank, Durg for the welfare of farmers. It had been functioning to recover loan and to collect premiums from the Farmers Credit card holders and other // {PAGE } // account holders and then to remit the collected amount to higher financial institutions and to remit the collected premium amount to the head quarter of Jila Sahkari Bank. Thus respondent no.1 had been functioning as primary service centre for its customers like the deceased father of the appellant/complainant, on behalf of Jila Sahkari Kendriya Bank Ltd. Durg which collects premium from various its branches and remit the consolidated amount to the insurance company. Under the situation Jila Sahkari Kendriya Bank Ltd. should also have been impleaded, as party.
17. Since there is no other evidence to show that the deceased father of the appellant/complainant was assured of any insurance cover immediately on becoming the account holder of the bank, the insurance policy available on record has only to be relied upon.
18. The questioned insurance policy was issued by OP no.2 insurance company on I7.11.09 in favour of Jila Sahkari Kendriya Bank Mydt, Durg (document no. D‐1 ) providing insurance cover of Rs.5,00,000/‐ to 115826 members due to death by accident during the period I7.11.2009 to I6.11.20I0 for which it had collected consolidated premium Rs.1,15,62,600/‐ .
// {PAGE } //
19. Contention of the appellant/complainant is that premium Rs.100/‐ was deducted from his account on 09.11.2009 by respondent no.1 and the incidence of honey bee attack on his deceased father, occurred on 10.11.2009 where after he died on 20.11.2009 following treatment in the hospital, so the insurance claim was payable. Defence of the counsel for the respondent / insurance company is that the cause of action had arisen on happening of attack of honey bees i.e. 10.11.2009 which was prior to the commencement of risk i.e. 17.11.2009 so the insurance claim was not payable. The relevant provision of condition no.1 of the insurance policy stipulates as under:
"If at any time during the currency of this policy the insured shall sustain any bodily injury result solely and directly from accident caused by external violent and visible means, then the company shall pay to the insured or his legal representatives, as the case may be, the sum or sums hereinafter set forth ..............."
20. We find that the incident of honey bees attack on the deceased insured member occurred on 10.11.2009 and he died subsequently on 20.11.2009 whereas risk under the insurance policy had commenced on 17.11.2009, so the date of incident vis a vis accident was prior to the // {PAGE } // commencement of risk i.e. 17.11.2009 so his legal heirs/legal representatives were not entitled for insurance claim in terms aforementioned condition no.1 of the insurance policy.
21. Learned counsel for respondent no.2/insurance company produced in support of its contention photocopy of section 64 VB of "The Insurance Act 1938" the relevant portion of which lays down that;
" No risk to be assumed unless premium is received in advance"............
(1) ..................
(2) For the purpose of this section, in the case of risks for which premium can be ascertained in advance,the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer."
22. In the instant case as per insurance policy (document no.D‐1) the date of collection of premium amount was 17.11.2009 which was after the date of incident 10.11.2009 vis a vis accident due to honey bees bite, as such on the date of accident the insurance policy was not in existence so the appellant / complainant was not entitled to get the insurance benefit.
// {PAGE } //
23. Learned counsel for the respondent no.2/insurance company cited case of National Insurance Co. Ltd Vs. Ashokbhai Babarbhai Patel, II (2011) CPJ 26 NC In that case, Group Janta Personal Accident Insurance Policy was issued for period 26.01,2005 to 1.10.2005 where under risk cover due to accidental death was Rs.1 Lakh. The lady covered under the policy became a victim of severe fire burns on 23.01.2005 and died on 26.01.2995. It was held that occurrence of incident which was the direct cause of death did not take place during the period of insurance, so, the revision petition was allowed and orders of forums below, were set aside. Facts of the aforesaid case are squarely applicable in the instant case also.
24. Learned counsel for respondent no.2 / Insurance Company also relied upon the pronouncement of Hon'ble High Court Bombay in the First Appeal of Oriental Fire and General Insurance Co. Ltd. Vs. Panvel Industrial Co‐operative Estates Ltd, AIR 1992 BOMBAY 107, whereby it was held that mere payment of premium amount and its acceptance by agent cannot amount to concluded contract of insurance and assumption of risk on part of insurcance company.
// {PAGE } //
25. Although the facts of the aforesaid case are altogether different since it involved a proposal in respect of insurance on the life of an individual for which the premium cheque was delivered to the concerned agent, but risk was not accepted by the insurer. In the instant case, the matter related to acceptance of proposal under Group Insurance Scheme for the benefit of a group of persons. The Jila Sahkari Kendriya Bank Ltd., Durg, after collecting the amount from various primary co‐operative societies within its jurisdiction including the respondent no.1 Sewa Sahkari Samiti, Kumhali (Jamgaon), remitted the consolidated amount to the respondent no.2 Insurance Company which after due consideration accepted the risk under Group Janta Assurance Unnamed Policy w.e.f. 17.11.2009.
26. In the facts of the case and foregoing discussion we do not find substance in the appeal to succeed, therefore it is dismissed with aforesaid observation. No order as to cost.
(Justice S.C.Vyas) (Smt. Veena Misra) (V.K. Patil)
President Membe Member
/02/2013 /02/2013 /02/2013