State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO.: FA/2008/218 DATE: 30.06.2009



DATE OF FILING: - 10.06.2008



APPELLANT : The Divisional Manager,

The New India Assurance Company Limited,

Howrah Branch, P-18, Dobson Lane,

Howrah-711 101.

Through

The New India Assurance Company Limited,

4, Mangoe Lane, Kolkata.



RESPONDENTS : 1. Smt. Mira Saha,

W/o Late Bishnu Kumar Saha,

P.O. & P.S.- Raiganj,

Dist-Uttar Dinajpur.



2. Branch Manager,

M/s. Golden Trust Financial Services,

Raiganj, Uttar Dinajpur.



3. Tumpa Sarkar, C/o Sankar Sarkar,

Thakurbari Road, Bandar, P.O. & P.S.- Raiganj,

Dist-Uttar Dinajpur.







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

MEMBER : Sri. A.K. Ray.

MEMBER : Smt. Silpi Majumder.



FOR THE APPELLANT : Mrs. Koyeli Mukherjee, Advocate.

FOR THE RESPONDENTS :1. Sri. Barun Prosad, Advocate.

2. Sri. Bibhas Mondal, Advocate.



-ORDER-



S. Majumder, Member.



This appeal has arisen out of the judgment passed by the Ld. District Forum, Uttar Dinajpur at Raiganj, on 06.12.2007, in its case no-53/2006, wherein the Ld. Forum below has allowed the complaint against the OP-1 exparte and dismissed on contest against the OP-2 and dismissed exparte against the OP-3. The OP-1 was directed to pay a sum of Rs.50,000/- along with interest @10% p.a. from the date of the death of the policy holder till payment to the Complainant. The Forum below has awarded a sum of Rs.1,000/- towards compensation and Rs.500/- as litigation cost in favour of the Complainant. The Forum has directed the OP-1 to comply with the above order within 30 days from the date of passing the judgment, failing which the total amount would carry interest @10% p.a. for the default 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 Janata Personal Accident Insurance Policy from the Insurance Company through the GTFS, which was executed on 08.11.1998 covering the risk of accidental death, loss of limbs and permanent total disablement and the sum assured was of Rs.50,000/-. On 10.04 2005 the policy holder-deceased husband of the Complainant expired due to an accident i.e. short circuit. On 22.04.2005 the Complainant being the nomiee submitted the claim for and relevant documents, policy copy in original to the Insurance Company through the GTFS. Thereafter several requests were made on behalf of the Complainant to the Insurance Company to settle her claim, but to no effect. Advocate’s notice was also sent, but without any result or response. Finding no other alternative the Complainant filed the complaint before the Ld. Forum below praying for direction upon the OPs to pay her the insured amount of Rs.50,000/- along with interest @12% p.a. and she had also prayed for compensation of Rs.50,000/- due to unnecessary harassment and deficiency in service on the part of the OPs.



Being dissatisfied by the above-mentioned judgment the OP-Appellant has preferred the present appeal before thios Commission contending that theTrial Forum has failed to appreciate the meaning of the order passed by the Hon’ble High Court and its implication. The Ld. Counsel for the Appellant has argued that that it is not clear to them in which category the insured belonged and for this reason they were unable to consider the claim. The Appellant has submitted that instead of directing the Insurance Company to settle the claim forthwith the Forum below has directed the Appellant to pay a sum of Rs.50,000/- to the nominee of the policy holder. The Appellant has prayed for allowing the present appeal and setting aside the judgment passed by the Forum below.



Before the Forum below The OP-1-Appellant did not contest the complaint inspite of receipt of notice, only the OP-2-GTFS contested the case. The OP-2 has admitted in its written version filed before the Forum below that the insured died due to an accidental death and the nominee of the deceased insured intimed them on 28.04.2005 about the incident which was duly forwarded to the OP-1-Insurance Company on 06.05.2005. As the Insurance Company is the claim settler and the GTFS is merely an agent of the Insuranc Company, liability lies upon the Insurance Company to settle the claim.







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 accident 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 issued the policy certificate in the name of the deceased husband of the Respondent-1 where the Respondent-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 claim. Due to quarrel in between the Insurance Company and its Agent the claim of the Respondent-1 cannot be affected. In the memorandum of appeal 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. During hearing Ld. Counsel for the Respondent no-1 has mentioned that the said policy was taken under the ‘Friends’ category and it is true that though there was a clear bar in the Hon’ble High Court’s order not to accept any premium from the persons belonged in the Friends category, the insured took the policy in 1998 under ‘Friends’ category and the Hon’ble High Court has passed the order in the year 1999. Hence the nomiee is entitled to get the benefit. During hearing, the Ld. Counsel for the Appellant has submitted that as the case between the Appellant and the GTFS is pending before the Hon’ble High Court, the Consumer Forum/Commission cannot adjudicate this case. In this respect, we are to say that the case which is pending before the Hon'ble High Court the present Respondent no-1 is not a party and there is no stay order in that proceedings and as the deceased insured obtained the policy in 1998 i.e. prior to the Hon’ble High Court’s order, the nomiee of the deceased insured-Complainant is entitled to get the benefit and in no way the Appellant can debar her from the legitimate claim. 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 Friend under the GTFS. 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.



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, 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) (A.K. Ray) (Justice. A. Chakrabarti)

MEMBER MEMBER PRESIDENT