The Divisional Manager, National Insurance Company Limited, Represented by Sr. Divisional Manager Vs. Mrs. Nusida Bibi Being Represented Her Minor Son Majisul Sk and Another - Court Judgment

J. Bag, Ld. Member:

The present appeal is directed against the Order dated 11.10.2012 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in CC Case No. 148/2011 whereby Ld. Forum below allowed the complaint on contest with a cost of Rs.10,000/-payable by OP-1, apart from payment of Rs.50,000/- as compensation to the Complainant for her harassment and mental agony.

The complaint case, in brief, was as follows:

The Complainant took a Group Janata Personnel Accident Insurance Policy bearing No. 100300/47/01/9600022/03/96/30041 from OP No.1 through OP No.2 with sum insured of Rs. 5,00,000/-(Five lakh Rupees ) only . The insured died in an accident on 07.04.2004 during the policy period and the Complainant lodged a claim on 10.04.2004 to the OP / insurance company with all necessary documents. The claim being neither settled nor repudiated , a complaint petition was filed before the Ld. Forum below with prayer for direction upon the OPs to release the sum insured of Rs.5,00,000/- along with interest from the date of claim @ 12 % and also for compensation of Rs.50,000/- for harassment , trouble and mental agony , apart from cost and other relief.

The complaint was contested by filing written version with denial of all material allegations by the OP. The main contention of OP No.1 was that the case was a murder simplicitor and not an accident . As per policy terms , the claim was not covered by the policy. It was also the contention of the OP No.1 that the claim form was not submitted within the time schedule and that Income Tax Return was not submitted by the Complainant.

Ld. Forum below after having perused the documents / evidence on record adduced by the parties and having heard the arguments advanced by the Ld. Counsels appearing for both parties observed that OP No.2 collected documents from the Complainant and submitted the same to OP No.1 with the claim form. OP No.2 forwarded the same claim form to OP No.1 on 10.06.2005 , though OP No.1 stated that the claim form was submitted to OP No.2 on 16.01.2005. The claim of the Complainant having not been repudiated till the date of filing of the complaint the cause of action continued. Ld. Forum having been convinced that the death of the insured was caused by external, violent and visible means , disposed of the complaint in favour of the Complainant and allowed the complaint with a cost of Rs. 10,000/- payable by OP No.1

Being aggrieved by and dissatisfied with the impugned order of the Ld. Forum below the present Appellant / OP has come up before this Commission with the allegations that the petition of complaint happened to be barred by limitation u/S 24A of the Consumer Protection Act in so far as the insured having died on 07.04.2004 , the petition has been filed on 07.07.2011 without accompaniment of any petition for condonation of delay after a period of 7 years from the date of incident, the Complainant having thereby violated the policy condition. There being no deficiency in service and the fact of murder of the insured being no accident , the petition of Complaint should have been dismissed by the Ld. Forum below and the impugned order in such context needs to be set aside.

We have gone through the Memo. of appeal together with the impugned order dated 11.10.2012 , the petition of complaint and other documents including the enquiry report submitted by the investigating officer before the Ld. SDJM, Katoa and the insurance policy, apart from affidavit on evidence filed on behalf of the OP No.1 . We have heard the Ld. Advocates appearing for the Appellant and the Respondent as well.

Ld. Advocate appearing for the Appellant submitted that the intimation about the death of the insured was furnished to the insurer much beyond the stipulated period as shown under policy condition . Though, as per policy condition the intimation of death was required to be sent within one calendar month , such intimation was received by the insurer after 296 days . Further, the complaint has been filed more than 7 years after the cause of action arose. The date of death was the date of cause of action but the complaint case was filed more than 7 years after the death i.e. the date of cause of action . Again , this case of murder is not covered by the insurance policy . This being not a case of accidental death , the insurer is not liable to pay any claim . In this connection , Ld. Advocate cited several judgments : (1) 2009 (2) CPR 35 NC , Chandigrah Housing Board –vs- Kishan Kumar Goyal , Important Point : Question of limitation should be considered seriously at the stage of complaint ; (2) 2012 (2) CPR 247 (NC), Bankim Mondal, Petitioner –vs- Hariyana Urban Development Authority and Anr Respondent. Important Point: 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. (3) 2013 (1) CPR 58 (NC) M.P Housing Board through its Estate Officer –vs- Sudhir Mishra. Important Point: Question of limitation can not be over looked. (4) 2012(2) CPR 244 (NC) Sehdev Singh –vs- New Indian Assurance Company Ltd. Important Point : It is the duty of the Consumer Fora to take notice of Section 24 A and go in to the fact if the complaint is barred by time and yet the Consumer Fora decides the complaint on merits, the Fora will be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside.

With the citation of the above cases Ld. Advocate tried to impress that belated intimation of the incident that led to filing of a claim is to be construed as a strong ground for dismissal of the case in question. Again, this was a case of murder which is different from accident and such murder was not covered by the insurance policy. In that view of the fact , Ld. Advocate pressed for setting aside the impugned order

Ld. Advocate appearing for the Complainant/Respondent submitted that the death of the insured was instantly reported to the Golden Trust Services Ltd. i.e. OP No.2 and claim form being supplied by the insurance company was furnished with all necessary documents. Section 44 of the Limitation Act provides that date of cause of action of date of denial is to be construed as the material date for consideration of the fact of delay . No denial or repudiation being communicated after filing of the claim over a long period of five years , the insurers claim that the delay in filing the intimation of death shall be adversely viewed is not tenable. It is also a fact that the death of the insured was accidental in nature as distinguished from normal death or suicidal death. There are several decisions of this Commission upholding that murder is an accident and such murder can not deprive the nominee from making the claim. It was argued referring to Honble Supreme Courts decision in Skandia Insurance Company Ltd. –vs- Kokilaben Chandravadan and Ors. reported in (1987) 2 (SCC) 654, Shashi Gupta –vs- LIC of India reported in (1995) 1 (SCC) 754 and B.V. Nagaraju –vs- M/s. Oriental Insurance Company Ltd. reported in (1999) (3) SCC 465 , that the meaning of the word ‘accident even if it is held that two interpretations are possible , the interpretation which favours the insured is to be accepted in case of an insurance claim. In fact from the stand point of the victim, even willful murder may be accidental as far as the victims is concerned. Contrary view, even if it is possible in the given facts , the onus is on the insurer to prove the same. It was also mentioned that the decisions as referred to by the Ld. Advocate appearing on behalf of the OP/Appellant relate to facts concerning something else than death . Accordingly, the decisions in those cases under citation are not relevant to the present complaint case.

Ld. Advocate appearing for the Respondent No.2 submitted that they being only facilitator for the insurance coverage to their members are not liable for settlement of the claim since the authority to settle claims by payment or rejection is solely vested with the Appellant. They, however, emphasized that the act of murder may be intentional on the part of the murderer but it is always accidental in so far as the victim is concerned. Supporting the submission of the Complainant /Respondent it was argued that the use of the word ‘should in the condition of the policy is something which does not have the force of the word ‘must. Delayed intimation would only result in delayed payment as the whole procedure of processing a claim is also delayed.

Decision with Reasons

It appears that the appeal has been preferred mainly on two points: Firstly, the intimation about the death of the insured has been submitted in such manner as appears to have been violative of the policy condition. It is true that the intimation was submitted after a considerable period. Keeping in view the fact that the nominee of the insured is a minor and the Complainant being the wife of the deceased insured is an illiterate lady, not being conversant with the printed terms and conditions of the policy and also not being aware of existence of an insurance policy while her husband was alive, the delay in submitting the intimation to the insurance company is not so important , particularly, the claim arising out of the death of her husband . Had it been otherwise that the insured was living and a case of claim arose out of any accidental injury and the intimation was filed beyond the stipulated date, as it happened in cases cited by the Ld. Advocate appearing for the Appellant , the ground of delay would have preceded other considerations.

Secondly, the murder as alleged by the insurance company in the present case is being termed as non-accidental. In a number of cases decided by the National Consumer Disputes Redressal Commission as well by this State Commission , it has been held that murder shall be treated as accidental death and going by the decision of the Honble Supreme Court as referred to in Skandia Insurance Company Ltd. –vs- Kokilaben Chandravadan and Ors. reported in (1987) 2 SCC 654 we can not but accept the fact of murder as an accidental death. Ld. Forum below appears to have taken into consideration all relevant facts and evidence and we find no reason to interfere with the impugned order.

Hence,

Ordered

that the appeal be and the same is dismissed. The impugned order stands affirmed. There shall be no order as to costs.