State Consumer Disputes Redressal Commission
Arati Bose vs New India Insurance Co. Ltd. & Anr. on 2 December, 2014
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street,
Kolkata - 700087
First Appeal No.
FA/97/2014
(Arisen out of Order
Dated 01/10/2013 in Case No. CC/216/2012 of District Kolkata-II)
1.
Arati Bose
W/o
Late Joydeb Bose, Vill. - Sheakhala, P.S. - Chanditala, Dist. Hoogly,
Pin - 712 706.
...........Appellant(s)
Versus
1.
New India Insurance Co. Ltd.
87,
Mahatma Gandhi Road, Fort, Mumbai - 400 001 & its issuing office-
Madhusudan Apartment, 2nd Floor, P-18, Dobson Lane, Howrah - 711 101.
2.
Golden Trust Financial Services
155,
Lenin Sarani, P.S. Taltala, Kolkata - 700 013.
...........Respondent(s)
BEFORE:
HON'BLE
MR. DEBASIS BHATTACHARYA PRESIDING MEMBER
HON'BLE
MR. JAGANNATH BAG MEMBER
For
the Appellant:
Mr.
Soumendra Roy Chowdhury Ms. Banasree Nandy, Advocate
For
the Respondent:
Mr.
Pralay Kar., Advocate
Mr.
Abhik Kumar Dutt., Advocate
ORDER
Date:
02-12-2014 Sri Debasis Bhattacharya This appeal is directed against the order dt. 01/10/2013 in Case No. 216/2012, passed by the Ld. District Forum, Kolkata Unit II, whereby the complaint case has been dismissed on contest.
Being aggrieved by and dissatisfied with the same, the Complainant thereof has preferred this appeal.
Case of the Complainant, briefly stated, is that her husband, during his lifetime, took a Policy on 04-06-2000 bearing District No. 5751220001799 from the OP No. 1 through the OP No. 2. The instant policy indemnifies accidental death of the insured against payment of one time premium and the said policy has had a validity period from 23-06-2000 to 22-06-2015. The insured died of a road accident on 28-05-2010 and accordingly, the Complainant submitted her claim to the OP No. 2 as well as to the OP No. 1 along with death certificate, post mortem report, money receipts, policy certificate and such other necessary documents, including proof of her being the legal heir and representative of the deceased. Citing pendency of a case before the Honble High Court, the OPs withheld her insurance claim and repeated persuasion of the matter did not cut any ice with the OPs. One Mr. Goutam Naskar caused due enquiry into the matter and submitted his report to the insurer. So, the case.
The case of the OP Insurer is that the neither the claimant nor the GTFS submitted any documentary proof in support of the status of the certificateholder though it is important to ascertain his status in view of the order passed by the Honble High Court on 06-07-1999, whereby GTFS has been restricted to extent any coverage to the category of Friend. So, it is incumbent upon the Complainant as well as the GTFS to prove that the deceased insured did not belong to the Friend category. The Surveyor, Mr. Goutam Naskar in his investigation report dated 09-09-2011 has categorically stated that deceased insured was working as a daily labour under a contractor and his monthly income was Rs. 2,000/-, but the Complainant could not produce any supporting document to establish that the deceased was at all associated with any kind of job with the GTFS. Neither the GTFS nor the Complainant has produced any documentary evidence, viz, Photo Identity Card or Agency License, or any kind of proof at the time of lodging the claim and now only to hide their misdeed and illegal act, GTFS has manufactured such Fieldworker certificate. The specific queries made by the investigator to the GTFS vide letter dated 08-09-2011 remained unanswered till now.
So, the case should be dismissed.
It is the case of the GTFS that the mere fact that the deceased insured person was a daily labour does not debar him from being enrolled as a Fieldworker with them. Such presumption on the part of the insurer is an arbitrary one.
At the time of issuing the Certificate of Insurance the insurer must have satisfied themselves regarding the insured persons status. Had it not been so, they would not have issued the Certificate of Insurance at all. After the death of the insured person, denial of claim, by raising such unfounded queries is nothing but a dilatory tactic to avoid its contractual liability.
Point for consideration in this appeal is whether there is any factual/legal infirmity in the impugned order or not.
Decision with reasons Ld. Advocate for the Appellant has submitted that the insured, in his capacity as a Fieldworker of GTFS, took a Group Janata Personal Accident Policy (hereinafter referred to as GJPA Policy) from the OP insurer. After his death in a road accident, a claim was lodged with the insurer through the GTFS by the Appellant for according death benefit to her, being the nominee of deceased insured. However, instead of keeping its promise, the OP insurer has kept the matter pending on one pretext or the other over a prolonged period of time. On careful perusal of necessary documentation and after receipt of requisite premium thereof, the OP insurer issued the policy in favour of the insured. However, what is intrigue, when the accidental death of the insured gave rise to an insurance claim, the OP insurer swing into action to find fault with Complainants claim by hook or crook. Although the Complainant petitioned before the Ld. District Forum, out of her ardent hope of redressal of her grievance, the Ld. District Forum dismissed the case having failed to appreciate the sinister design of the OP insurer.
Ld. Advocate for the Respondent No. 1, i.e. the insurer, on the other hand, has stated that the insured obtained the GJPA policy through fraudulent means. When they sought for the documentary proof to ascertain the status of the insured, both the GTFS as well as the Complainant developed cold feet and failed to furnish any corroborative document to prove the bona fide of her claim. Since the GJPA policy is meant for a niche group of people, it is imperative that the status of insured is established beyond all reasonable doubt.
By dismissing the instant petition, the Ld. District Forum very rightly vindicated their position in this regard and therefore, it should be sustained.
Ld. Advocate for the Respondent No. 2 simply stated that the deceased insured used to work as a Fieldworker with them and there being no dispute as to the accidental death of the insured, the OP insurer should have settled the legitimate claim of the Complainant. The Ld. Advocate, in his defense, has referred to the order of the Honble High Court, Calcutta in W.P. No. 17808 (W) of 2004 as also the decisions of this Commission in FA/598/2013 and FA/668/2013.
The GJPA policy in question was issued by the OPs in favour of the insured on 23-06-2000 and the insured died on 28-05-2010 i.e. after almost 10 years since inception of the policy in question. It transpires from the WV submitted by the OP insurer before the Principal Secretary, Consumer Affairs Department, Govt. of West Bengal in respect of Complaint Index no. 67/CAD-G/11-12 that the GTFS issued a certificate declaring the deceased insured as one of their ex-Fieldworkers. However, the OP insurer smelt rat over such claim of the GTFS because of their failure to furnish any photo ID card or agency license etc. in respect of the deceased insured. In this regard, we feel that, the OP insurer cannot pass the buck of establishing the status of the insured entirely upon the GTFS and/or claimant. As a co-signatory of the policy in question, the insurer was equally responsible to cross-check the status of insured before accepting premium from a proposer. Before accepting such proposals or accepting premium thereof, it was their bounden duty to find out the status, income and the means of the income of the proposer, if at all required. After the acceptance of premium, when peril occurs to deny the policy amount on altogether made up ground is certainly tantamount to unfair trade practice on the part of the officials of the insurance company.
In this regard, we feel it necessary to quote Section 19 of the Contract Act, 1872:-
Voidability of agreements without free consent.-When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to a contract whose consent was caused by fraud or is representation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
Exception.-If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
Explanation.-A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.
A bare reading of exception, as stated above, makes the position clear that the contract would not be voidable if the consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. If the insurer so desired, they could have easily verified the whereabouts of a proposer before issuing a policy by calling for necessary supportive document from their representative.
For any misdeed of its authorized representative, if at all done, the principal cannot escape its liability.
GJPA policy, unlike other life insurance policies, does not offer any guaranteed return. Under this policy only accidental death of an insured, that too, within the stipulated time, gives rise to a claim. No one can predict how one would die. If a comparison is made between natural death vis--vis accidental death, the percentage of people falling victim of accidental death is quite miniscule. Therefore, it is most unlikely that one would resort to falsehood to come under the purview of an insurance policy, chances of return from which is literally remote. Besides, it also baffles one, as to why an authorized representative would draw the ire of its principal by fudging facts. There is nothing on record to establish any sort of unholy hobnobbing between the GTFS and Complainant/deceased insured.
Be that as it may, in the light of confirmation of the GTFS as to the status of the deceased insured as one of their Fieldworkers, the onus of proving them wrong lies with the insurer, which they have miserably failed. On the basis of mere suspicion, an insurer cannot withheld a claim. If the GTFS had not issued any photo ID card to the insured, it is the fault of GTFS. For the lapses on the part of its authorized representative the insurer cannot take a claimant for a ride.
Although the insurer cast shadow over the status of the deceased insured on the ground that he was a daily labour by profession, it bears mentioning that there is nothing on record to show that the job of a Fieldworker is a whole time job or there is any bar for a Fieldworker of the GTFS to get engaged with other assignments/professions.
Most importantly, in terms of Section 45 of the Insurance Act, a Life Insurance Policy cannot be called in question after two years from the date on which it was effected. In the instant case, the claim was lodged after nearly ten years since its issuance. Therefore, on this ground too, the insurer cannot deny settlement of Complainants claim.
It is nobodys case, including the investigator, that the deceased insured belong to Friend category. Therefore, there is no reason whatsoever as to why the claim of the Complainant should be withheld citing pendency of case before the Honble High Court, Calcutta.
In this view of the matter, in our considered opinion, the insurance company is duty bound to pay the sum assured to the Complainant as per the policy.
In the result, the appeal succeeds.
Hence, ORDERED that the appeal be and the same is allowed on contest against the Respondent No. 1 and dismissed against the Respondent No. 2, but without any order as to costs. The Respondent No. 1 shall pay Rs. 3,00,000/- within 45 days hence, in default to pay an interest @ 9% p.a. on it till full payment. The impugned order is, thus, set aside.
JAGANNATH BAG DEBASIS BHATTACHARYA MEMBER MEMBER