NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITON No. 3163 OF 2007

[Against the order dated 22.03.2007 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in First Appeal No. 127 of 2006]

 

1. State of Himachal Pradesh

Through its Commissioner – cum – Secretary

Himachal Pradesh (HP) Public Works Department (PWD)

Shimla                                                                                                                Petitioners

2. Assistant Engineer

HP PWD, Sub Division, Nankhari

District Shimla

 

versus

 

1. The New India Assurance Company Ltd.

Through its Divisional Manager

III Floor, Block No. 7, SDA Complex

Kasumpti, Shimla

2. Shri Tara Chand

3. Shri Prabhu Dayal

4. Shri Prakash Chand

5. Smt. Jai Devi                                                                                             Respondents

6. Ms Shankari Devi

(Sr. nos. 1 to 3 - sons, sr. no. 4 – widow and

sr. no. 5 – daughter of Late Rama Nand)

Through Shri Tara Chand, Authorised Representative

R/o Village Bharmana, Sub Tehsil Nankhari

District Shimla

BEFORE:

HON’BLE MR. JUSTICE R. C. JAIN, PRESIDING MEMBER

HON’BLE MR. ANUPAM DASGUPTA, MEMBER

 

For the Petitioners                                             Mr. Suryanarayana Singh, Advocate

 

For Respondent no. 1                                                        Mr. Jos Chiramel, Advocate

 

14th October 2008

 

 

ORDER

 

 

ANUPAM DASGUPTA

 

 

            This revision petition seeks to impugn the order dated 22.03.2007 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (the “State Commission”) in First Appeal No. 127 of 2006. By this order, the State Commission disposed of the appeal of the appellant New India Assurance Company Ltd. (which was one of the Opposite Parties (OPs) before the District Consumer Disputes Redressal Forum, Shimla (the “District Forum”) and is respondent no. 1 before us) against the order dated 14.03.2006 of the District Forum in complaint case no. 9 of 2005, in the following terms:

 

                        “In view of the aforesaid discussion while allowing this appeal order of the District Forum below, in Consumer Complaint No. 9/2005 dated 14.3.2006 is modified thereby exonerating the appellant of the compensation awarded by the District Forum below, and at the same time holding that the amount ordered by the District Forum below shall now be payable by respondents no. 6 and 7 to be shared equally by respondents no. 1 to 5. It is clarified that, so far (sic) amount payable to minor respondents is concerned, it will be invested with a Nationalized Bank in a fixed deposit which will be released after their attaining maturity. Liberty is reserved to their guardian for premature release on a case being made out in that behalf.

 

            “Appeal is disposed of subject to this modification in the impugned order, leaving the parties to bear their own costs.”

 

2.1.      In this case, the complainants (who are respondents no. 2 to 6 in this petition) are the legal representatives (LR’s) - sons, widow and daughter respectively - of one Rama Nand, since deceased, who was a work-charged employee in the office of the Assistant Engineer, Public Works Department (PWD), Nankhari Sub Division of the Government of Himachal Pradesh (GoHP) during 1991 - 1999. The PWD of the GoHP took out an insurance policy (Janata Personal Accident Insurance Policy – ‘JPAIP’) with the New India Assurance Company Ltd. (hereafter, ‘the Insurance Company’) some time in January 1996 for coverage of its work-charged / daily-wage labourers / workers against various bodily perils resulting from accident while on duty. The sum assured was Rs. 1 lakh per employee of the categories mentioned above and the premium was to be deducted quarterly from the wages of these workers and credited to the Insurance Company. The JPAIP cover was extended by the GoHP to employees of the Government, including the work-charged employees covered under the first scheme as well as those of its Boards, Corporations, Universities, etc., and the sum assured for each employee was raised to Rs. 2 lakh by a Circular dated 15.10.1997 of the Finance Department of the GoHP. The JPAIP was valid for the period 25.01.1999 to 24.01.2000, during which the cause of action relating to this case arose.

 

2.2.      The said Rama Nand reportedly fell into a nalla on 24.03.1999 on his way home from work and was traced by his family the next day. He was treated at a hospital at Rampur and later at the Indira Gandhi Medical College, Shimla where he died on 30.03.1999. While the details of what transpired in the intervening period are unclear, it is seen that the LR’s of the said Rama Nand approached the District Forum on 29.10.2001 with a consumer complaint (registered as CC no. 1426 of 2002!) alleging mainly that the PWD, GoHP (the petitioners before us) and the Divisional Manager, National Insurance Company Ltd. had not released the insurance claim of Rs. 2 lakh to them. In these proceedings, it was found by the District Forum that the petitioners had not filed any claim in respect of the demise of the said Rama Nand with the Insurance Company, which in any case was not the National Insurance Company Ltd., arrayed as opposite party no. 2 in the said complaint, but the New India Assurance Company Ltd. By its order dated 26.05.2003, the District Forum directed as under:

 

                        “....... we direct the State to take up the matter with the insurance company with which the deceased was insured to finalise the claim of the complainants for compensation and the insurance company shall settle the claim of the complainants within a period of three months from the date of reference by the State, who shall make the reference to the insurance company within one month from the receipt of copy of this order. The insurance company shall settle the claim of the complainants after taking into consideration the judgment passed by the Hon’ble National Consumer Disputes Redressal Commission in case New India Assurance Company Ltd. versus Smt. Jamuna Devi and Others, Revision Petition No. 1382 of 2001 decided on 29th May 2002 which case also arose from Himachal Pradesh regarding Janta Personal Accident Insurance Scheme and if the complainants are not satisfied, they can approach this Forum again for redressal of grievance.”

 

2.3.      Despite the clear time limits laid down by the District Forum in its above-mentioned order, the PWD, GoHP (through its Executive Engineer, Rampur Division) wrote to the Insurance Company about settlement of the complainant’s insurance claim only on 20.04.2004, i.e., after nearly one year from the date of the District Forum’s order. By its letter dated 24.05.2004, the Insurance Company finally repudiated the claim on the grounds that copies of the Police FIR and post-mortem report had not been furnished (in fact, the petitioners stated them to be unavailable), as required under the relevant terms of the insurance policy.

 

2.4.      The complainants filed a second complaint with the District Forum on 10.01.2005 on the ground that their insurance claim was yet to be settled. By its order dated 14.03.2006, the District Forum held the Insurance Company responsible for deficiency in service in not settling the complainants’ claim and directed the Insurance Company to pay to the complainants the sum assured of Rs. 2 lakh along with interest @ 9% per annum from the date of the (second) complaint till realisation, in addition to cost of Rs. 1500/-, within 45 days of the order. The Insurance Company went up in appeal before the State Commission which allowed the appeal and passed the order summarised in paragraph 1 above.

 

3.         We have heard the learned counsel for the parties and gone through the records placed before us. The complainants have not remained present in these proceedings, either through counsel or through their authorised representative, despite notice. This is probably because the petitioners deposited the entire amount awarded by the State Commission with the latter, in compliance with our direction in this behalf, by which the complainants were also allowed to withdraw the amount on personal bond.

 

4.         The main grounds of challenge of the order of the State Commission in this petition are almost the same as those advanced by the petitioners in the First Appeal proceedings before the State Commission, namely, (i) the petitioners being the State and the deceased Rama Nand being an employee of the State, the latter (or his LR’s) could not be treated as consumer under the Consumer Protection Act, 1986 (hereafter, ‘the Act’), (ii) the said Rama Nand did not die because any accident met with by him in the course of duty nor was the death reported to the to the local GoHP PWD officials, (iii) the petitioners could not be treated as the insurer and held liable to pay the sum assured for the death of the said Rama Nand when the claim of insurance, which the petitioners did lodge with the Insurance Company, was held to have been repudiated on valid grounds and the latter was exonerated of the charge of deficiency in service and (iv) the documents necessary to claim the insurance amount were not made available by the complainants, the LR’s of the said Rama Nand, after his death.

 

5.1.      While it is true that the deceased Rama Nand was an employee of a State Department, it is to be distinguished that the complaint of deficiency in service on the part of the petitioners in this case is not qua their status as ‘State’ per se – it is in relation to a service that the State undertook to provide suo motu as a welfare measure for its employees of various types. For the employees covered by the scheme, it was also a service paid for by them because they were required to pay the premia, which were to be deducted automatically from their salaries by the respective Heads of Offices/Departments or the Drawing & Disbursing Officers (DDO’s) concerned. The deceased Rama Nand was thus clearly a consumer, under the Act, of this welfare-oriented service provided by the petitioners. The instructions in the GoHP Circular of 15.10.1997 also make the extent of responsibilities of these office authorities clear, in the following words:

 

“ii) Insurance cover of Rs. 2.00 lakh will be available to all the employees who will opt for the same ...........

iii) The premium of Rs. 40/- per annum per employee would be paid to the National Insurance Co. Ltd Divisional Office ............

iv) The premium would be paid by the Heads of the Departments/DDO’s in lumpsum .......... and recovered from the first salary of the employees after the date of commencement. The policy would be issued the Head of the Department by designation and issued on named basis for which list of employees will be provided by the Department mentioning the name of the employee, father/husband’s name and salary for identification in case of transfers.

v) ........................................................................

vi) The claim shall be paid through cheques to the respective Head of Department and settled within one week’s time after the completion of the requisite formalities. The cliam formalities include:-

                        a) Death certificate in case of death;

                        b) Post - mortem Report / FIR as available;

                        c) Medical Report confirming the percentage of disability from a                                Government doctor in case of disability;

                        d) Inquest report, if available.”

 

5.2.      It is not entirely clear from this Circular if the earlier scheme of JPAIP continued to be in force – this was apparently not so because under the earlier scheme the sum assured was Rs. 1 lakh, according to the documents produced by the learned counsel for the petitioners with the revision petition. However, it appears that on the on hand, the confusion about the National Insurance Co. Ltd vis a vis the New India Assurance Company Ltd. derived from the wording of this Circular and, on the other, the documentation requirements for a successful claim were so loosely worded as to give the impression that even in the case of accidental death of an employee covered by the scheme, production of documents like FIR, post-mortem report, etc., was subject to ‘availability’. What is abundantly clear is that the responsibility of filing the claims lay with the Department concerned, which would also imply informing all employees covered by the scheme of the correct features of the scheme in terms easily understood (particularly by those sections of employees to which the deceased Rama Nand belonged); compilation of all documents, with the help of the employee or his/her legal representatives concerned in the case of occurrence of a peril covered by the insurance policy; filing the claim with the Insurance Company promptly; and complying with further requirements if called upon by the latter to do so. No evidence has been placed before the lower Fora, or before us, to show that any of these steps was taken by the petitioners in this case. In fact, the petitioners have all along, including in this petition, contended that the local PWD office where the deceased Rama Nand worked was not aware of his death or, rather, was not informed of his death! Moreover, as already noticed, the insurance claim was filed only after about a year from the date of the first order of the District Forum. Thus, deficiency in service by the petitioners and non-compliance of the GoHP’s own instructions in this behalf are writ large on the face of the case.

 

5.3.      Considering the evidence on record of the District Forum, including the order of the Commissioner under the Workmen’s Compensation Act in the case of the deceased Rama Nand, the State Commission has rejected the contentions of the petitioners that they were not informed (or were unaware) of the death of Rama Nand or that the said Rama Nand was not on duty with the petitioners’ local PWD office when he met with the accident which resulted in head injuries and ultimately his death a few days after the accident. Suffice it to observe that the other grounds urged by the petitioners are minor and have also been comprehensively dealt with and dismissed by the State Commission. We see no reason to disagree with the State Commission’s analysis and resultant view on any of these issues.

 

6.         In conclusion, we find no reason whatsoever to interfere with the well reasoned order of the State Commission. As a result, this revision petition is dismissed. There shall be no order as to costs.

 

 

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[R. C. JAIN, J]

 

 

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[ANUPAM DASGUPTA]