West Bengal

Dakshin Dinajpur

CC/107/2019

Smt. Anita Majumdar, W/O- Sri Sukumar Majumdar - Complainant(s)

Versus

The Branch Manager, Golden Trust Financial Services - Opp.Party(s)

Humayun Kabir

08 Aug 2022

ORDER

          The instant case has been initiated by the complainant U/S – 12 of C.P. Act,1986 against the Opposite Parties claiming Principal amount of Rs. 1,00,000 /-  + Compensation Rs.50,000/- + Litigation cost of Rs.5,000/- Total – Rs. 1,55,000/- + interest @ 12% P.A..  

The fact of the case, in brief, is that on 08.05.2017 the husband and the son of the Complainant met with an road traffic accident and due to that accident, the husband of the Complainant received injury and son namely Sujay Majumdar died. The husband of the Complainant Sri Sukumar Majumdar purchased one Janata Personal Accident Insurance Policy being no.1003000/47/01/9500022/02/96/30442  in the name of himself and his son Sujay Majumdar from Opposite Party No.3 through Opposite Party No.1and it was valid from 31.03.2003 to 30.03.2018. The life risk of the son of the Complainant was covered for sum assured money of Rs.1,00,000/- . The Complainant being nominee of the said policy applied before the Opposite Parties for getting Rs.1,00,000/- for personal accident benefit and submitted all the required documents but the Opposite Parties did not attempt to finalize the claim of the Complainant. In spite of several request made by the Complainant before the Opposite Parties, they did not pay any heed on the contrary the Opposite Party No.1 repudiated the said claim on08.08.2019.  Having no alternative, the Complainant filed the instant case for relief as prayed in the plaint.

             Notices were duly served upon the opposite Parties and after receiving the notices, the Opposite Parties No.1,2 &3 appeared before this commission and filed their written version.

             By filing joint written version, the Opposite Parties No.1&2 have stated that as per terms of Memorandum of Understanding between Opposite Party No.1 and Opposite Party No.3 only, the Opposite Party No.3 has an exclusive right and authority to entertain/ process and settlement of the said claim. As such the Opposite Party No.1&2 are never jointly or severally liable for the misdeeds of the Opposite Party no.3 i.e. Insurance Company. The authority to settle the Insurance claim is solely with the Insurer i.e. Opposite Party No. 3 . Hence, the present case is liable to be dismissed against the Opposite Party No.1&2.

             

     By filing written version, the Opposite Party No.3 has admitted that the Complainant is a nominee of Janata Personal policy no.100300/47/01/96/00022/02/96/30442 and her husband is a policy holder of the National Insurance Company and the said insurance policy was valid at the time of alleged death of her son Sujay Majumdar. The life risk of victim covered for Rs.1,00,000/-. There was no deficiency or willful deficiency in service on the part of the Opposite Party No.3 to the Complainant. This Opposite Party N0.3 repudiated the claim of the Complainant on08.08.2019 because as per terms and condition/ exclusion  clause of the insurance policy, the death of Sujay Majumdar was not covered, as because at the time of death/ accident he was under influence of alcohol. The Post Mortem report speaks itself that Sujay Majumdar was under influence of alcohol. Thus, the instant case is not maintainable and liable to be dismissed against the Opposite Party No.3.

         To prove his case , the complainant has filed photo copies of

(i)  Certified  Copy of F.I.R.

(ii)  Certified Copy of Charge Sheet

(iii) Certified Copy of seizure list

(iv) Insurance Policy Certificate

(v) P.M. Report

(vi) Certificate in respect of P.M. 

(vii) Letter of Repudiation by Opposite Party No.3 

(viii) Letter of Opposite Party No.3 dated 23.02.2018

(ix)   Received copy of death & policy certificate dated 16.01.2018.

         On the other hand, the Opposite Parties No.1&2 have filed the following  documents in support of their defense -

 (i) N.I.C. letter to GTFS dated 17.07.2001 .

       The Opposite Party No.3 has also filed a document as follows in support of his defense-

(i) Terms and condition of J.P.A. Policy of N.I.C.

 

In view of the above mentioned facts, the following points are cropped up for consideration -  

     

      POINTS FOR CONSIDERATION

             

       1.  Whether the Complainant is a consumer to the Opposite Parties?

       2.  Whether there is any deficiency in service on the part of the Opposite

              Parties ?            

   3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                         

                                        DECISION  WITH  REASONS

 

           We have heard argument by Ld. Advocate for the all sides at length. We have also gone through the evidence on affidavit and written argument filed by both the parties. We also perused the documents produced by all the parties before this Commission.           

              At the time of argument Ld advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that the claim of the Complainant is legal, genuine, legitimate and the Opposite Parties are liable to pay the claim as per their own undertaking laid down in the policy. It is also established that there is a gross negligence and deficiency in rendering service towards the policy holder on the part of the Opposite Party No.3. The claim petition has been filed within the limitation period. The Complainant is a consumer to the Opposite Party No.3 and there is deficiency in service on the part of the Opposite PartyNo.3. So, the Complainant is entitled to get relief as prayed for.

                      On the other hand, Ld. Advocate for the Opposite Parties No.1&2 also narrated their defense case as mentioned in the written version. He further argued that the Complainant is not consumer to the Opposite Party No.1&2. The Complaint is consumer to the Opposite Party No.3. As per the terms of the Memorandum of understanding made in between the Opposite Party No.1 and 3, the Opposite Party no.3 has an exclusive authority to entertain/ process and settlement of the said claim.  The instant case is not maintainable against these Opposite Party No.1&2. Hence, claim petition must be dismissed against the Opposite Party No.1&2

           In support of his contention Ld. Advocate for the Opposite Parties No.1&2  drew our attraction towards the observations held by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4451 of 2010, Revision Petition No.4107 of 2008 and Revision Petition No.4566 of 2013.

 

            Now, let us discuss all the points one by one. 

 

Point No. 1

 

           On perusal of materials on record, it appears that the Opposite Party No.3 has admitted in his written version that the Complainant is nominee of Janata Personal Accident policy of the Opposite Party No.3 and her husband is a policy holder and the said policy was valid at the time of death of Sujay Majumdar and his life risk was covered for Rs.1,00,000/-. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Party No.3 according to section (2)(i)(d) of Consumer Protection Act, 1986. 

           Accordingly, this point is decided in favour of the Complainant.  

Point Nos. 2 & 3 

 

            Both these points are taken up together for discussion for the sake of convenience and brevity.  

            Admittedly, Sujay Majumdar died due to a road traffic accident on 08.05.2017. It is also an admitted fact that the husband of the Complainant Sri Sukumar Majumdar purchased one Janata Personal Accident Insurance Policy being no.1003000/47/01/9500022/02/96/30442  in the name of himself and his son Sujay Majumdar from Opposite Party No.3 through Opposite Party No.1and it was valid from 31.03.2003 to 30.03.2018. The life risk of the son of the Complainant was covered for sum assured money of Rs.1,00,000/- . The Complainant being nominee of the said policy applied before the Opposite Parties for getting Rs.1,00,000/- for personal accident benefit.

            It is the contention of the Complainant that she approached several times before the Opposite Party No.3 for settlement of her claim but the Opposite Party No.3 did not pay a single farthing. On the contrary the Opposite Party No.3 repudiated the claim of the Complainant on 08.08.2019. On the other hand, it is submitted by the Opposite Party No.3 that at the time of accident, the deceased Sujay Majumdar was under the influence of alcohol so, the claim of the Complainant has been repudiated.

            Now, on perusal of the written complaint lodged by the Complainant before I.C. Balurghat P.S. it has been stated that on18.10.2020 at about 4.00 pm to 4.30 pm when the deceased Sujay Majumdar was going on foot from his village to Dabra village and when he reached at a place named Karulafu, at that time the offending vehicle coming from the side of Trimohini in rush and negligent manner, dashed the deceased. Due to the accident, the deceased received grievous injury and he was taken to the Balurghat hospital where he died. Here, in the written complaint, Complainant has mentioned the date of accident on18.10.2020 whereas in her plaint she has mentioned the date of accident or the date of death of the deceased on 08.05.2017. Apart from it, the Complainant has not mentioned the date of accident in her evidence on affidavit nor written argument. However, the dated of death of the deceased has been mentioned in F.I.R. U/S – 154 Cr.P.C as 18.10.2017. The same date has been mentioned in the Post Mortem Report. In such circumstances, we opine that the deceased Sujay majumdar died on 18.10.2017.

            Again, at the time of argument Ld. Advocate for the Opposite Party No.3 submitted that the Opposite Party No.3 repudiated the claim of the Complainant on 08.08.2019 as because as per terms and conditions/exclusion clauseno.4.4 of the Insurance policy the death of Sujay majumdar was not covered because at the time of death/accident, deceased Sujay Majumdar was under influence of alcohol. 

           Now, on perusal of the Post Mortem Report, it appears that in the stomach of the deceased, there was alcohol and alcoholic smell at the time of death. On perusal of the terms & condition of the Janata Personal Accident Policy, it has been mentioned in sub- column 4.4 of exclusion column 4 that any injury due to misuse or abuse of drugs/alcohol or use of intoxicating substance, the Company shall not be liable under the policy in respect of payment of compensation in connection with.  

           In such circumstances, we opine that though the  Complainant is a consumer to the Opposite Party No.3 but she is not entitled to get the benefit  of Janata Personal Accident because the deceased was under the influence of alcohol at the time of accident.     

           It appears from the terms of the Memorandum of understanding made in between the Opposite Party No.1 and 3, the Opposite Party no.3 has an exclusive authority to entertain/ process and settlement of the said claim. So, the Opposite Party No.1&2 cannot be held liable for compensation.

           Further, in the plaint the Complainant has mentioned that her husband also got injured in that accident but in the written complaint lodged before the I.C., Balurghat P.S., the Complainant has suppressed the said fact.

            From the four corners of the case record, we do not find the liability or deficiency in service on the part of the Opposite Party No.1, 2 & 3. So, we opine that the instant case is liable to be dismissed.

    

 Hence, it is

                                                           O R D E R E D

 

              That the Consumer Case No. 107 of 2019 is dismissed on contest but without cost against the Opposite Party Nos.1, 2 & 3.

              Let a plain copy of this order be supplied to the parties free of cost.