K. Baskaran, Judicial Member
1. This appeal has been preferred by the appellant/complainant under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order of the learned District Consumer Disputes Redresssal Forum, Erode passed in C.C.No.37/2006, dated 09.08.2011, dismissing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum.
3. The factual matrix giving rise to the present appeal is that the complainant had filed a complaint before the learned District Forum, Erode (hereinafter referred to as District Forum) seeking a direction to the opposite parties to pay Rs.3,00,000/- together with 12% interest from the date of complaint and Rs.10,000/- as compensation for the mental agony, loss and injury suffered by her besides costs, alleging inter alia, that her husband one Thiru. K.S. Chinnasamy, since deceased had become a member in the JASPER CLUB, DOLLAR SAVE CARD scheme on 05.05.1999 with membership No.174303 and by virtue of such membership, he was issued an insurance policy by the 1st opposite party vide policy No.090823 and the sum insured was Rs.3,00,000/- and the coverage period was 10 years i.e, from 07.05.1999 to 06.05.1999 by paying premium amount of Rs.510/-; that on 28.11.2004, the complainant’s husband met with a road accident and he died of injuries sustai
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ned in the said accident on 30.11.2004 at Sri Ramakrishna Hospital, Coimbatore during the currency of the said insurance policy; that when the complainant as widow and nominee of the deceased/insured approached the 1st opposite party for issuing of claim form, she was informed that the said insurance scheme was cancelled with effect from 01.05.2003 and hence the complainant was not entitled to claim any amount from the insurer and hence the complaint.
4. Initially, the opposite parties did not appear before the learned District Forum and contest the claim of the complainant and hence they were set exparte and based on the materials available on record the learned District Forum had allowed the complaint by its order dated 05.03.2007 against which the opposite parties had preferred appeal in F.A.No.407/2009 before this State Commission and by an order dated 06.06.2011, the order of the learned District Forum was set aside and the matter was remanded back to the learned District Forum for fresh disposal according to law; that thereafter the opposite parties took part in the enquiry before the learned District Forum by filing written version and marking documents and after enquiry, the learned District Forum had by its order dated 09.08.2011, dismissed the complaint holding that the insurance policy was lawfully cancelled by the opposite parties even before the death of the insured and as such the complainant was not entitled to any claim under the cancelled policy. Hence, the complainant has come forward with this appeal before this Commission.
5. The gist of the memorandum of grounds of appeal is that the learned District Forum had failed to note that the insurance policy was unilaterilly and unlawfully cancelled in as much the intimation or notice of such cancellation was not given to the insured; that the learned District Forum has failed to consider that the opposite parties had not proved that the alleged notice of cancellation was served on the insured; that the learned District Forum has failed to note that the contract of insurance is based on utmost mutual good faith between the parties which is the paramount requirement.
6. The point for consideration is whether the order of the learned District Forum has to be set aside and the complaint has to be allowed?
7. Point:- As already noticed, the complainant who is the widow and nominee of the insured by name Chinnasamy since deceased having failed in her attempt to get a claim form for lodging a claim of insurance covered amount in respect of her husband who died in accident has preferred this appeal.
8. The following facts are not in dispute;-
a) that the husband of the complainant one Mr. Chinnasamy was a holder of an accident insurance policy under ExA2 and the period of insurance coverage was 10 years (from 07.05.1999 to 06.05.2009).
b) that this insurance coverage was arranged between one institution by name DOLLAR INDIA CARDS LTD., and the 1st opposite party in which the complainant’s husband became a member by paying the prescribed subscription.
c) that as per the accident insurance policy if the insured dies of injury sustained in an accident, a sum of Rs.3,00,000/- would have to be paid to the nominee of the insured.
d) While the said insurance policy was in force the husband of the complainant met with a motor accident on 28.11.2004 and sustained injuries and despite treatment provided to him he died of injuries on 30.11.2004.
e) After the death of the insured Mr. Chinnasamy, his widow, the complainant herein approached the 1st opposite party to issue her a claim form to lodge her claim as per the terms and conditions of the insurance policy under Ex A2 but she was informed that the insurance policy issued under Ex A2 in favour of her husband Mr. Chinnasamy was cancelled with effect from 01.05.2003 and as such the death of the insured (complainant’s husband) on 30.11.2004 i.e., after the cancellation of the policy would not entitle the complainant to seek any relief under the said policy.
9. Hence, the complainant had filed the complaint seeking relief of payment of Rs.3,00,000/- as per the terms and conditions of the insurance policy in addition to a sum of Rs.10,000/- towards compensation besides costs and the same was dismissed by the learned District Forum accepting the defence of the opposite parties to the effect that the death of the insured took place after the insurance policy was validly cancelled by the opposite parties in as much, as per the terms and conditions of the insurance policy, the insurer very well cancelled the policy by giving notice in writing as per condition No.5 incorporated in the policy of insurance.
10. We are of the considered view that the appeal can be disposed of based on the above admitted facts. It emerges that but for the alleged cancellation pleaded by the opposite parties the accident insurance policy issued in favour of the complainant’s husband would have continued to be in force till 06.05.2009 and as the complainant’s husband had admittedly died on 30.11.2004 due to injury sustained in an accident his nominee would have become entitled to claim the amount admitted under the policy of insurance i.e.,Rs.3,00,000/- in this case. Hence the pivotal point to be decided in this appeal is as to whether there was a valid and lawful cancellation of the policy issued under Ex A2 by the opposite parties. For this purpose, the learned counsel appearing for the respondents/opposite parties would draw our attention to the condition No.5 attached to the policy of insurance under which the complainant based her claim. But, a perusal of the said policy which has been marked as Ex B2 would show that it was a Janata Personal Accident Insurance Policy issued in favour of one institution by name M/s. Dollars India Cards Limited., this is called as Master Policy entered into between the opposite parties and one M/s. Dollars India Cards Limited.. Admittedly, the complainant’s husband and the insured Thiru. Chinnasamy was neither a signatory to this document nor was he a party to this document. At this point of time, it is relevant to peruse the insurance policy issued by the opposite parties to the husband of the complainant which has been marked as Exhibit A2, i.e., the policy of insurance issued by the opposite parties in favour of the complainant’s husband one Chinnasamy. In this document, no such condition was found incorporated but it is mentioned in this document that the insured person is held covered as per the terms and conditions of the Master Policy Agreement No.4771060000846 meaning thereby the Master Policy of Insurance issued in favour of the Dollars Save Card.
11. Hence, there is nothing on record to even suggest that the complainant’s husband Chinnasamy had agreed for the terms and conditions attached to the Master Policy Agreement as he might not be aware of the terms and conditions of the Master Policy Agreement marked as Ex B2. We are at a loss to understand as to why the opposite parties had not incorporated those terms and conditions in the policy of insurance issued to an individual insured like the complainant’s husband. Hence, it cannot be said that the complainant ‘s husband having agreed to the condition of the policy of insurance that it could be cancelled by the insurer at any time by giving notice was bound by the said condition and his nominee could not turn around and lodge any claim under the said policy which was lawfully allegedly cancelled. Hence, we are of the view that the condition No.5 attached or incorporated in the Master Policy Agreement entered into between the opposite parties and one M/s. Dollars India Save Cards Ltd., could not bind the complainant ‘s husband Chinnasamy as far as Ex A2 policy of Insurance is concerned.
12. Even assuming that after all Ex A2 policy of insurance is a byproduct of the Master Policy Agreement under Ex B2 still we are of the view that the opposite parties could not escape from their liability to answer the claim of the complainant unless they could show that invoking such a condition they had validly and lawfully cancelled the policy of insurance issued to the complainant’s husband.
13. A perusal of the records in this case would show that the opposite party had miserably failed to show that they had sent notice of cancellation of the policy to the complainant’s husband. For the purpose of showing this, the opposite party would rely upon the document marked as Ex B2 purported to be the order regarding the cancellation of the insurance policy issued under Ex A2. Unfortunately, a perusal of Ex B2 reveals no particulars have been, with reference to the name of the insured policy number, date of cancellation made, amount of refund, mentioned in the document under Ex B2. Hence, we are of the view that Ex B2 cancellation order is not a complete and filled up cancellation order and it is only a format.
14. Even assuming that there was an order of cancellation passed by the opposite parties invoking condition No.5 of the Master Policy Agreement still the insurer should give notice to the insured regarding the cancellation. Without giving notice, there cannot be any valid cancellation even as per the condition No.5 incorporated in the Master Insurance Policy Agreement and hence we have to proceed to decide as to whether the notice of cancellation was given to the complainant’s husband. For this purpose, the opposite parties have filed Ex B4 purported to be a copy of the certificate of posting for having sent the cancellation order to the complainant’s husband. There cannot be any quarrel on the proposition that mere production of certificate of posting is not proof for delivery of the posting and it can be taken only as a proof for posting.
15. Further, from Ex B4, we cannot find out the date of sending of notice to the insured. Further, the factum of refund of unexpired part of the premium amount could have also been proved by filing the bank statement of the opposite parties. But, that was also not done in this case. Hence, we are of the view that the opposite parties have failed to prove that they had cancelled the insurance policy issued in the name of the complainant’s husband lawfully after following the procedure as per the terms and conditions of the Master Insurance Policy Agreement which empowered them to cancel the policy.
16. In the light of the discussion held above, we hold that the opposite parties had failed to prove that they had lawfully cancelled the insurance policy issued in favour of the complainant’s husband and as such the complainant as a nominee of the deceased insured could very well lodge a claim on the death of the insured.
17. The learned District Forum had held that the policy of insurance was cancelled by the opposite parties with effect from 01.05.2003 and as the complainant’s husband had died subsequent thereto the complainant is not entitled to make any claim thereon. We are of the view that the finding recorded by the learned District Forum cannot be sustained.
18. The complainant, as a nominee of the deceased insured wanted to lodge a claim for the death of her husband due to injuries sustained in an accident which fact has not been denied by the opposite parties. The insured amount under Ex A2 policy is Rs.3,00,000/-. Hence, we are of the view that the complainant is entitled to get the sum assured i.e., Rs.3,00,000/- from the opposite parties. Further, the complainant who is the widow and nominee of the deceased complainant was made to run from pillar to post in getting the claim form for lodging her claim which might have resulted in undue hardship and mental agony to her for which also she is entitled to get compensation and we quantify the same as Rs.10,000/-. Further, we hold that the complainant is entitled to get litigation expenses of Rs.10,000/- from the opposite parties.
19. In the light of the discussion held above, we hold that the order of the learned District Forum cannot be sustained and the same has to be set aside and the point is answered accordingly.
20. In the result, the appeal is allowed by setting aside the order of the learned District Forum, Erode passed in C.C.No.37/2006 dated 09.08.2011 and the complaint is allowed directing the opposite parties 1 and 2 jointly and severally to pay a sum of Rs.3,00,000/- being the insurance amount and Rs.10,000/- as compensation for mental agony suffered by the complainant and another sum of Rs.10,000/- being the cost of this appeal to the complainant within 4 weeks from the date of this order, failing which the insurance amount of Rs.3,00,000/- and compensation of Rs.10,000/- shall carry interest at the rate of 12% per annum from the date of this order till the date of realization.