Dipankar Datta, J.
1. An unfortunate mother who lost her son in a road accident on 6.12.05, has knocked the doors of the Writ Court craving for justice.
2. Her son, the victim Surajit Das (since deceased) was covered under a Group Personal Accident Policy of National Insurance Company Limited (hereafter the insurance company) for the period 15.9.04 to 14.9.09. The certificate of insurance was issued by Golden Multi Services Club Limited (hereafter the Club), respondent No. 4 in pursuance of an internal arrangement between it and the insurance company and such certificate has not been disputed by the insurance company. It is further not in dispute that the victim during his life time was regular in payment of premium and the insurance cover was in for force at the time of his death.
3. It appears from the counter affidavit filed by the Club that it is a service club formed with the object of providing health and insurance related assistance to its members, to provide emergency ambulance services to them, to advise them on scientific method of career building, etc.
4. It further appears therefrom that a Memorandum of Understanding (hereafter the MOU) was entered into by it with the insurance company on 2.4.04. It was agreed by and between the parties that the insurance company would issue group personal accident policy to the Club for the benefit of its listed members being the beneficiaries, a list whereof would be provided by it to the insurance company from time to time, subject to payment of premium on their behalf before the commencement of risk as per the Insurance Act, 1938 and other relevant statutory provisions.
5. In terms of the MOU, the Club is obliged to discharge obligations as specified therein. In terms of clause 15 thereof, the Club agreed as follows:
Claim intimation should be given within 30 days by claimant/GMSC Ltd. to NIC Ltd. In regards to claim services, claim form along with necessary supporting documents should be submitted within 90 days from the happening of the accident. Any claims submitted after 90 days shall not be entertained.
6. It appears from the certificate of insurance issued by the Club in favour of the victim that it also contains the same condition.
7. The petitioner being the nominee in respect of the concerned policy intimated the Club on 14.12.05 regarding the death of her son on 6.12.05. The Club in its turn had given necessary intimation to the insurance company on 20.12.05. She duly submitted the claim papers to the Club on 27.2.06. However, the Club submitted the claim papers to the insurance company on 9.3.06. The insurance company repudiated the claim by its letter dated 29.6.06 on the ground that the claim was submitted after three months three days from the date of death and, therefore, attracts violation of terms and conditions of the concerned policy. Accordingly, the insurance company was unable to entertain the claim and treated the claim as 'no claim'.
8. The petitioner challenged the decision of the Insurance company by approaching the Insurance Ombudsman, Kolkata in terms of provisions contained in the Redressal of Public Grievance Rules, 1998, framed in exercise of powers conferred by Section 114(1) of the Insurance Act, 1938. By an order dated 17.7.2007, the Ombudsman upheld the decision of the insurance company while returning a finding that though there was no delay in intimation of the accident resulting in death of the petitioner's son, there was a delay of three days in submission of claim before the insurance company.
9. The decision of the insurance company repudiating the claim and the decision of the Ombudsman confirming the decision of the insurance company form the subject matter of challenge in the present petition.
10. Mr. Pal, learned Counsel appearing for the petitioner submitted that she did not violate any of the conditions mentioned in the concerned policy inasmuch as she had submitted necessary intimation regarding death of her son to the Club within 30 days and had also submitted the claim papers before the Club on the 83rd day of the accident resulting in death of her son. For any delay in submission of claim papers by the Club before the insurance company, the petitioner should not be held responsible or at fault. Accordingly, the action of the insurance company in repudiating the claim ought to be branded illegal and arbitrary.
11. He relied on the decision of a learned Single Judge of this Court reported in : 2005(3)CHN154 Bimal Chandra v. Regional Manager, New India Assurance Company Limited and Ors. to contend that in a similar situation, the Court had granted relief to the unfortunate father of the deceased policy holder. He urged the Court to follow the decision and to grant similar relief. Mr. Gangopadhyay, learned Counsel appearing for the insurance company contended that the clauses of the agreement between the insurance company and the Club are clear. Even if some of the clauses operated harshly against the petitioner, the same cannot be rewritten or altered by the Court. The Club having submitted claim papers before the insurance company three days after the stipulated period, the insurance company did not commit any error in treating the claim as 'no claim'. He relied on the decision of the Apex Court reported in : AIR1965SC1288 The Central Bank of India Limited, Amritsar v. Hatford Fire Insurance Company Limited for the proposition that if the words in an agreement are clear, plain and categorical language cannot be radically changed by relying upon surrounding circumstances. There is very little that the Court has to do and the Court must give effect to the plain meaning of the words, however it may dislike the result. He, accordingly, urged the Court to dismiss the writ petition.
12. Mr. Mukherjee, learned Counsel appearing for the Ombudsman, the respondent No. 6 supported the impugned order dated 17.7.07 by contending that in view of the agreement entered into by and between the parties which did not contain a waiver clause, the Ombudsman had no other option but to confirm the decision of the insurance company admittedly when the claim papers were submitted beyond 90 days.
13. Mr. Sengupta, learned Counsel appearing for the Club placed the counter affidavit filed by it. He sought to impress the Court that there was no intentional delay on the part of the Club to submit the claim papers before the insurance company within the stipulated period of 90 days. He referred to documents to show that the insurance company on previous occasions had directed the Club to forward claim form and other documents 'at onego'. The action of the Club was sought to be justified by submitting that the claim form along with the relevant documents were submitted by the petitioner on 27.2.06 at its Tarakeswar Branch. These documents were received by the Head Office of the Club at Kolkata on 7.3.06. The documents were, thereafter, scrutinized and forwarded to the insurance company under a covering letter dated 9.3.06. He invited the attention of the Court to paragraph 8 of the counter affidavit wherein it has been pleaded that 'as per the existing arrangement and mutual understanding the submission of claim papers by any claimant to the answering respondent is considered to be equivalent to that of submitting the same to the said insurance company'. In view thereof exception taken by the insurance company in this particular case, according to him, is absolutely unreasonable and, therefore, the Court may consider granting relief to the petitioner, particularly having regard to the fact that despite liberty granted by the Court by order dated 20.6.08 to the insurance company to deal with the counter affidavit filed by the Club no such affidavit had been filed and the Court should, therefore, proceed on the basis that statements made in paragraph 8 of the counter affidavit filed by the Club is admitted by the insurance company.
14. This Court has heard learned Counsel for the parties and examined the materials on record. Whatever be the terms and conditions agreed upon by and between the Club and the insurance company, the policy holder or his nominee may not be bound by those terms. At least, nothing has been placed before this Court to show that they are so bound. He/she, however, would be bound by the terms and conditions as specifically laid down in the certificate of insurance. It is not in dispute that the certificate of insurance contains the following clause : 'Claim intimation should be given within 30 days by claimant/GMSC Ltd. to NIC Ltd. In regards to claim services, claim form along with necessary supporting documents should be submitted within 90 days from the happening of the accident. Any claims submitted after 90 days shall not be entertained. Death certificate, First Information Report to police, Final Investigation Report of Police, Post-mortem Report and Doctor's certificate to be sent along with the claim form in case of death. For loss of limb/s/permanent total disablement all the treatment papers of hospital/nursing home, disablement certificate and certificate of Medical Board to be sent. All other terms and condition will be as per MOU'.
15. According to Mr. Gangopadhyay, the clause providing that 'any claims submitted after 90 days shall not be entertained' is a negative one and he urged this Court to read the clause as it is on the authority of the decision in Central Bank of India by giving effect to the plain meaning of the words used. This Court upon examining the clause is of the clear view that what it requires is, a claim intimation should be given within 30 days of happening of any event which may give rise to a claim under the policy by the claimant or by the Club to the insurance company. However, the clause ipso facto does not oblige the claimant to submit claim form along with necessary documents within 90 days with the insurance company; on the contrary, it requires submission of claim form along with the necessary supporting documents within 90 days from the happening of the accident. It is silent as to the authority with which the claim form along with supporting documents is to be submitted. If it had been the intention of the insurance company that the claim form along with necessary supporting documents should be submitted within 90 days from the happening of the accident to it only for being considered for settlement of claim, there is no reason as to why such intention was not clearly expressed in the said clause although it appears to be the express intention that the claim intimation upon happening of any event, which may give rise to a claim under the policy, has to be given either by the claimant or by the Club to it within 30 days. This Court thus holds that submission of claim either with the Club or the insurance company within 90 days would be sufficient compliance with the requirement of the clause. As has been stated in the counter affidavit filed by the Club, the insurance company has always treated submission of claim form along with supporting documents with the Club as equivalent to submission of the same with the insurance company. The insurance company has not denied this assertion of the Club. The version of the Club as stated in the counter affidavit, not controverted by the insurance company, stands admitted and therefore perfectly fits in with the Court's interpretation of the said clause. Although the terms of the MOU by and between the Club and the insurance company obliged the Club to submit the claim forms with the insurance company within 90 days, such terms and conditions cannot be said to be binding on the policy holder and/or claimant in the absence of he/she being a party to such MOU and the last sentence of the clause, at best, would bind the Club only.
16. Reading the terms and conditions mentioned in the certificate in the manner as aforesaid, this Court finds that the insurance company acted illegally and in an arbitrary manner by not settling the claim, and by treating the claim as 'no claim'. The Ombudsman was also in error in not appreciating the terms of the policy in the proper perspective and returned a finding which is unsustainable in law.
17. The decision in Bimal Chandra was rendered on facts and circumstances, which are not at all similar. There, the claim intimation was submitted beyond 30 days. Keeping in mind the clause which permitted submission of claim intimation beyond the stipulated period of 30 days provided reasonable cause was shown, the Court proceeded to hold in favour of the nominee of the deceased policy holder. The facts being distinguishable, the said decision would have no application in the facts and circumstances of the case.
18. In the result, the writ petition stands allowed to the extent mentioned hereafter. The decision of the insurance company as communicated vide Memo dated 29.6.06 and the order of the Ombudsman dated 17.7.07 stand set aside. The insurance company is directed to proceed in accordance with law for the purpose of settlement of the petitioner's claim. It shall make earnest efforts to take a fresh decision as early as possible but positively within eight weeks from date of communication of this order. If the petitioner is found entitled to receive any amount under the concerned policy, payment shall be released in her favour upon compliance of all formalities without any delay. However, if a decision adverse to the petitioner's interest is arrived at, the insurance company must justify such decision with reasons and shall convey the same to her. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.