State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO.: FA/2008/228 DATE: 22.07.2009



DATE OF FILING: -19.05.2008



APPELLANT : The New India Assurance Company Limited,

Kolkata Divisional Office, 4, Mangoe Lane,

Kolkata-700 001.



RESPONDENTS : 1. Puspa Maity, W/o late Debashish Maity,

P.O. & Vill-Sabang, Dist-Paschim Midnapore.



2. Branch Manager, M/s Golden Trust Financial Servives, Midnapore, Bat tala Branch, P.O. & P.S.- Midnapore.



3. Rabindra Nath Maity, S/o Late Kalipada Maity,

Agent, GTFS, P.S.-Sabang, P.O.-Monaharpur,

Dist-Paschim Midnapore.





BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Ms. Koyeli Mukhopadhyay, Advocate.

FOR THE RESPONDENT : 2. Sri. Bibhas Mondal, Advocate.



-ORDER-



S. Majumder, Member.



This appeal arises against the judgment passed by the Ld. District Forum, Paschim Medinipur, on 21.11.2007, in its case no-39/2007, wherein the Ld. Forum below allowing the complaint on contest has directed the New India Insurance Company to pay a sum of Rs.1,00,000/- to the Complainant being the insured amount along with Rs.21,750/- towards interest @9% p.a. on the sum assured from 18.06.2005 to the date of the judgment within 30 days from the date of passing the judgment, failing which the abovementioned entire amount would carry interest @12% p.a. with quarterly rests for the delayed period. The GTFS was directed to pay a sum of Rs.2,000/- to the Complainant towards litigation cost within 30 days from the date of passing the judgment, failing which the amount would carry interest @12% p.a. with quarterly rests for the delayed period.

The brief facts of the case of the Complainant before the Forum below were that the husband of the Complainant since deceased obtained a JPA policy from the Insurance Company through GTFS during his life time by paying due premium and sum assured of the policy was of Rs.1,00,000/- and the period of coverage was for 15 years with effect from 15.01.2001 to 14.01.2016. Unfortunately the husband of the Complainant died on 23.08.2004 due to an accident i.e. thunder stroke. Being the nominee in respect of the said policy the Complainant submitted the claim to the OPs along with all relevant papers and documents, but the OPs did not settle the claim till the date of filing the complaint before the Forum below. Hence she filed the complaint before the District Forum praying for direction upon the OPs to pay her the assured sum of Rs.1,00,000/-together with interest and compensation of Rs.25,000/-.

Being dissatisfied by the above-mentioned judgment the OP-Insurance Company-Appellant has preferred the present appeal before this Commission contending that the Ld. Forum below has failed to appreciate the order passed by the Hon’ble High Court in the self same matter and its implication. The Ld. Counsel for the Appellant has submitted that the GTFS being the insured did not furnish appropriate documents to establish the fact that the claimant was afiled worker or their family members so as to enable the Insurance Company to consider the claim. The Appellant has argued that the forum below has erred in passing the judgment awarding Rs.1,00,000/- along with interest and cost instead of directing the Insuarnce Company to settle the claim forthwith subject to disclosure of the status of the certificate holder. It is the settled principle of law to draw an adverse inferect againt them who has failed to produce the documents. Hon’ble High Court has directed in its judgment in 1999 not to collect premium from the ‘Friends’ category, in the instant case policy was obtained in the year 2001 and the Appellant is in dark regarding the status of the policy holder and it was the duty of the GTFS to produce the status report before the Insurance Company at the time of lodging the claim. Without perusal of the status report of the claimant it was not possible to settle the claim in favour of the Complainant and in such repudiation there was no deficiency in service on the part of the Insurance Company-Appellant. According to the Appellant the Forum’s judgment is liable to be set aside as it is illegal and improper and the Appellant has prayed for allowing the present appeal.

During hearing before this Commission at the very outset the Ld. Counsel for the Appellant has submitted that the GTFS did not file the status report of the insured before the Forum below and now the GTFS is filing the same at a very belated stage. It has been argued by the Appellant that even at the time of lodging the claim before the Insurance Company the GTFS has failed to mention that in which category the insured belongedIn course of hearing the Ld. Counsel for the Appellant has submitted that the GTFS has not declared that in which category the insured belonged as in a case the Hon’ble High Court has directed the GTFS not to collect any premium from the ‘Friends’ category. Therefore this Commission cannot allow the GTFS to file the status report at the stage of final hearing of this appeal. Be it mentioned that during final hearing the Respondent-2 has filed the said status report of the deceased insured before this Commission. On careful consideration of the record and document it is seen by us that there is no doubt that the deceased husband of the present Respondent-1 took a Janata Personal Accident Policy from the Appellant-Insurance Company through their agent GTFS as per Memorandum of understanding and it was settled that the nominee of the deceased insured will be entitled to get the assured money in case of accidental death of the insured. In the instant case it is an admitted fact that the insured died due to thunder stroke and the Insurance Company did not contradict the same. As per MOU the agent-GTFS after collecting the premiums from the insured deposited the same with the Insurance Company and thereafter the Insurance Company after scrutinizing the proposal for insurance and being satisfied issued the policy certificate in the name of the deceased husband of the Respondent-1 on 15.01.2001 where the Respondent-1-Complainant has been declared as legal a nominee. So, the Respondent no-1 is the real beneficiary of the Insurance Policy and there has not any reason or justification to deprive her from the legitimate claimas due to quarrel in between the Insurance Company and its Agent the claim of the Respondent-1 cannot be affected. y. The Ld. Counsel for the GTFS has filed a document from which it is evident that the said insured was the ‘Field Worker’ of the GTFS. The deceased husband of the Respondent no-1 paid the premium in time to the G.T.F.S taking it as an agent of the Insurance Company in good faith and his nominee is not supposed to suffer in the matter of getting maturity value of the Insurance Policy due to any such conflict between G.T.F.S and the Insurance Company. In this connection the GTFS has contended that it had already paid the entire premium to the Appellant paid by the Respondent no-1 and the deceased took the policy being a filed worker not under the 'Friends' category. The Appellant has not filed any document against such contention as evidence that the insured was not within the permitted category. The GTFS is an agent of the Insurance Company and whether the agent violated any instruction of the principal or what might be the effect of such disobedience is exclusively a matter in between the two. As per the principle of vicarious liability, the principal will be responsible for all acts and omissions of the agents to a third party. At any rate, the Complainant-Respondent no-1, the real insured, cannot be compelled to suffer due to such quarrel between the two. As the Insurance Company did not settle the claim for a long period inspite of receipt of the policy and other documents in original, the Complainant moved before the District Forum. Regarding non-submission of the status report of the insured we are of the view that while the Insurnce Company issued the policy certificate in favour of the insured, it was within the knowledge of the Insurance Company that as per Hon’ble High Court’s order premium cannot be taken from the persons belonged under the ‘Friends’ category and policy cannot be issued in that context, but knowing fully well the Insurance Company issued the policy certificate in favour of the insured against due premium from him. Now at the time of settling of death claim the Insurance Company is not entitled to take such plea that the status report was not furnished before it. The Hon’ble High Court has passed the order in the year 1999 and this policy was taken in the year 2001. If the Insurance Company issued the policy under ‘Friends’ category after knowing the said order, the insured or his nomiee is not entitled to get sufferings due to mistake of the Insurance Company, but the Insurance Company did not make any case in this respect.

We have noticed that it is an admitted fact that the Respondent-1’s husband since deceased took the Janata Personal Accident Policy from the Insurance Company through the GTFS for a sum of Rs.1,00,000/- during his life time. The said policyholder died due to thunder stroke. After the death of the insured the Complainant-Respondent-1 being the nominee informed the said incident to the OPs and submitted the claim form along with all necessary documents to the Insurance Company through the GTFS. But the Insurance Company has neither repudiated nor settled the claim of the Respondent-1 till filing of the complaint before the District Forum.

We do not find any fault with the findings of the Forum below as regards the merit of the case also. The documents show that the claim of the Complainant was genuine and correct and as per the terms of the said policy there cannot be any reason as to why the Insurance Company should not make payment of such amount to the Complainant. The Insurance Company has not been able to make any effective challenge against the original documents supplied by the Respondent no-1, which go to support her allegations. Therefore, the Insurance Company is liable to settle the claim of the Complainant.

Going by the foregoing discussion, we deem it appropriate to pass the following order -

In view of our findings aforementioned and keeping in view the fact that the District Forum cannot be said to have acted without jurisdiction, we are of the opinion that no case has been made out for interference with the impugned judgment. The Appeal be accordingly dismissed on contest against the Respondent-2 and exparte against the Respondent-1, however, considering the facts and circumstances of the case, there shall be no order as to cost. The Judgment passed by the District Forum is hereby affirmed. The office is directed to send down the copy of this judgment to the Ld. Forum below and issue the same upon the recorded Advocates of all the the parties free of cost forthwith.



(S.Majumder) (Justice. A. Chakrabarti)

MEMBER PRESIDENT