J. Bag, Member:
The present appeal is directed against the judgment and order dated 5.11.2012 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in C.C.Case No. 327/2011, whereby Ld. Forum below allowed the complaint against OP Nos. 1 - 3 with cost, compensation and penalty and dismissed the same against the Proforma OP No. 4 without any cost.
The Complaint case, in brief, was as follows:
The petitioner is the wife of late Gaya Rabi Das, who had obtained a Group Janata Personal Accident Insurance Policy (No. 100300/47/2K/9601062/2K/96/00260 dated 01.02.2001) from the OP insurance company. The insured, Gaya Rabi Das, was run over by the train No. DN 25/8 Express near eastern cabin of the railway gate at Pakur in Jharkhand on 8.3.2009. The Complainant being the nominee and beneficiary of the insured submitted insurance claim to OP No. 1 along with all relevant documents including copies of the Death Certificate, Post Mortem Report, Hospital documents, but no response was received from the OP Nos. 1 - 3. On 29.6.2010 after expiry of about one year from the date of submitting the claim, the Complainant received a letter of repudiation. In that letter, it was stated that the cause of death of the insured was rather suicidal than accidental in nature. After having received the letter of repudiation, the Complainant made correspondences with the OP Nos. 1- 3 denying the allegation of suicide, but to no effect. Having no other alternative the Complainant filed the petition of complaint before the Ld. District Forum below.
The Complaint was contested by OP Nos. 1 - 3 and also by the OP No. 4 with separate written versions. OP Nos. 1 - 3 stated in their written version that the case was barred by limitation and there was no territorial and pecuniary jurisdiction of the Ld. District Forum below. It was specifically stated that the policy was issued by OP No. 1 in the name of the Proforma OP No. 4/GTFS as the principal insured. They did not receive any premium directly for the policy from the Complainant and as such, there was no liability with regard to the settlement of the said claim by the OPs. Further, it was submitted that the Complainant was under obligation to inform the OPs about the alleged incident of death, but the Complainant failed to do so. As a result, OP Nos. 1 - 3 did not get any scope to investigate about the matter. In fact, the Complainant did not submit necessary documents , including the application in accordance with the terms of the policy within specified time. The Complainant having violated the terms and conditions of the policy , the claim could not be entertained.
Proforma OP No. 4 submitted that their role was to collect the premium from the proposer and remit the same to OP No.1 with a list of insured persons . They had no liability regarding the settlement of the claim under the policy. Moreover, they did not have any authority to settle the claim and they had no responsibility for repudiation of the claim made by the OP No. 1.
Ld. District Forum below after having considered all material facts, as on record, were of the view that the Post Mortem Report and FRT corroborate the fact of death of the insured due to head injury, which amounts to accidental death. Moreover, they were convinced that being run over by a train while the gates were closed, is not tantamount to suicidal death. Ld. Forum below accordingly allowed the Complaint on contest with an award of Rs. 1,00,000/- to the Complainant apart from directing the OPs 1-3 to pay a sum of Rs. 20,000/- to the Complainant as compensation for mental agony, pain, anxiety and unnecessary harassment. A litigation cost of Rs. 1,000/- was also allowed. Another sum of Rs. 20,000/- was directed to be paid to the head of State Consumer Welfare Fund. All the amounts were to be paid within one month from the date of the order failing which a sum of Rs. 200/- per day was to be realized till realization as interest, out of which 50% should be paid to the Complainant and the rest 50% to be deposited by the OPs to the State Consumer Welfare Fund.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellants have come up before this Commission with the present appeal.
We have gone through the Memo. of Appeal together with the impugned order, the Petition of Complaint, written version of OP Nos. 1 - 3 and the correspondences between the Proforma Respondent and the Insurance Company etc.
Ld. Advocates appearing for the Appellants and the Respondents have been heard.
Ld. Advocate appearing for the Appellants submitted that the complainant, who appears to be the nominee of the deceased insured, preferred her claim after four months of the alleged incident. The delay in submission of the Claim Form was not explained. It was the Respondent No. 4 only who was insured and the Complainant never submitted any documents as to how the deceased insured became a member of the Respondent No. 2. Further, the incident in every respect appears to be suicidal in nature, as from the report of the Post Mortem, it was found that his head was run over while the train was crossing the gates, which were closed. The insured had definitely an intention of committing suicide and as such, he desperately moved along the railway track in spite of the fact that the train was running speedily. Further, the sum of Rs. 20,000/- as allowed in favour of the complainant as compensation for mental agony, pain and anxiety and another sum of Rs. 20,000/- awarded as penal amount for unfair trade practice were unjust and illegal. The impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent/Complainant submitted that the nominee of the Complainant being the wife and nominee of the insured was an illiterate person and not made conversant with the terms and conditions of the policy in question and more so, after the sudden death of the insured she was overwhelmed with the shock and could not pay attention to the matter of insurance claim. Further, the documents that were necessary in connection with filing of insurance claim could not be instantly procured from different authorities. It took some time to collect all those documents and submit the same to the Proforma Respondent No. 2 being the OP No. 4 in the complaint . The allegation of the Appellants/OPs that the death of the insured was not accidental has not been proved with any cogent evidence before the Ld. Forum below. It is only from the report of the Surveyor appointed by the Appellants/OPs that they came to know that the insured died when he attempted to cross the railway track though the railway gates were closed. This does not prove by itself that the death was suicidal . Ld. Forum below has consulted the Post Mortem report and the Police report from where they have been convinced that the death was accidental in nature and the claim deserves to be allowed by the OPs /Appellants. There is no legal infirmity or material irregularity in the impugned order. As such, the order should be upheld by the Honble Commission.
Ld Advocate of the Respondent , in support of his augments, referred to decisions of this State Commission in FA No. 345 of 2010, FA FA NO. 476 of 2010 and FA No. 533/2010
Ld. Advocate appearing on behalf of the Respondent No. 2 pointed out that the filing of intimation about any claim is not that mandatory as claimed to have been made by the Appellant in so far as the fact goes that such intimation should be furnished forthwith to the Insurance Company and preferably within one calendar month from the date of the incident. Referring to the decision of Honble High Court , Calcutta, in Writ Petition NO. 17808(W) of 2004 it was emphasized that reasonable cause being shown in regard to delay in sending notice to the insurance company about the incident of death, the claim should have not been repudiated .
DECISION WITH REASONS:
From the submissions of the Ld. Advocates appearing for both parties as well as from the documents placed on record we find that the deceased husband of the Complainant was insured with the OPs /Insurance Company and the role of OP No.4/Proforma Respondent was that of facilitator who collected the premium from the insured and deposited to the OP/Insurance Company .
The plea of the Complainant/Respondent that she is an illiterate lady cannot be ignored altogether and that she being shattered by the shock caused by the sudden death of her husband could not arrange all the necessary documents as quickly as desired by the insurer and submit the same to the Insurance Company through Proforma Respondent No. 2 is quite acceptable.
There is a point of the Complainant in referring to IRDA Regulations 2002 as made out under Para-16(E) of the original complaint which provides that “ œEvery insurer shall inform and keep informed periodically the insured regarding lodging of a claim arising in terms of the policy and the procedure to be followed by him to enable the insurer to settle a claim early.
This is very important in so far as in ensuring proper service to the insured / nominee the insurer is required to make the provisions of the policy clear to the insured and apprise them of such formalities as are required for early settlement of claims that may arise out of the policy in question. This practice is not found to have been adopted in the present case. On the contrary, they prefer to blame the Complainant that she delayed in filing her insurance claim to them.
Ld. Forum below after consulting every document was satisfied about the claim and allowed the complaint with cost. However, the penalty for compensation of Rs. 20,000/- only being inflicted upon the Appellants, it has been agitated by the Appellants that there was strictly no cause for such penalty as there was no adoption of unfair trade on their part.
The fact goes that the Appellants failed to appreciate that the widow of the insured was not in a position to intimate about the death of her husband forthwith after the incident and that they solely relied upon the report of the investigator as regards the cause of death. The death has not been proved with any evidence to be suicidal in nature , as pointed out by Ld. Advocate of the Respondent in citing the decision in FA No. 345 of 2010. In his Post Mortem Report , the concerned doctor opined that there was no foul play behind the death of Gaya Rabi Das and such death was accidental and ante mortem in nature. In the absence of any proper evidence, circumstantial or otherwise, it can not be believed, as contended by the Appellants, that the death was suicidal.
Going by the material facts, as on record ,we are of the considered view that there was deficiency in service on the part of the OPs /Appellants and we find no reason to interfere with the impugned order except for the fact that the penalty on account of unfair trade practice has been imposed upon the OPs/Appellants without any agitation in this regard by the Complainant/Respondent. More so, a sum of Rs. 20,000/- being ordered by the Ld. Forum below to be paid to the Complainant as compensation , another sum of Rs. 20,000/- as penalty does not stand justified in the given circumstances. We are, therefore, inclined to amend that part of the impugned order and the appeal stands disposed of accordingly with the following order :
The appeal is allowed in part on contest. The penalty of Rs.20,000/-only on account of unfair trade practice is deleted. Other parts of the impugned order shall remain unchanged. The impugned order stands modified. There shall be no order as to costs.