Back
2010 Supreme(Cal) 140
High Court of Calcutta
Tapen Sen, J.
Chand Mohan Saha – Appellant
Versus
National Insurance Company Limited – Respondent
W.P. No. 18057 (W) of 2006
Decided On: Feb 16, 2010
Advocate Appeared:
Md.Yamin Ali, Pranab Kr.Dutta, Kaushik Dey, Dvaipayan Sen Gupta, Arnab Chakraborty.
The court held that an insurance company cannot repudiate a claim on the ground of delay in intimation of the accident if the delay is not so gross as to justify repudiation and the insurance company's action is arbitrary.
Headnote:
INSURANCE - GROUP JANATA PERSONAL ACCIDENT INSURANCE POLICY - DELAY IN INTIMATION OF ACCIDENT - REPUDIATION OF CLAIM - ARBITRARINESS - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner's son died in a crusher accident during the course of his employment. The petitioner, as the nominee under the Group Janata Personal Accident Insurance Policy, intimated the accident to the authorized agents of the insurance company, Golden Trust Financial Services, on 2.9.2004 and sent a letter of intimation on 7.9.2004, which was allegedly posted under Certificate of Posting on 8.9.2004. However, the insurance company repudiated the claim on the ground of delay in intimation, relying on Condition No. 1 of the Policy, which required the insured to give notice of the accident forthwith and file the claim within one calendar month from the date of the accident.
Finding of the Court:
The court held that the delay of 4 months and 15 days in giving the intimation was not so gross as to justify repudiation of the claim. It further held that the insurance company's action was arbitrary as it did not consider the facts and circumstances of the case, such as the stress and strain suffered by the petitioner due to the death of his son. The court also held that the insurance company, being a State within the meaning of Article 12 of the Constitution, could not be allowed to act arbitrarily and that a writ petition was maintainable in such a case.
Issues: 1. Whether the delay in intimation of the accident was so gross as to justify repudiation of the claim? 2. Whether the insurance company's action was arbitrary? 3. Whether a writ petition was maintainable in the present case?
Ratio Decidendi: 1. The court held that the delay of 4 months and 15 days in giving the intimation was not so gross as to justify repudiation of the claim. It relied on the fact that Condition No. 1 of the Policy contained a clause that the Policy should be filed forthwith and unless reasonable cause is shown, the Claim should be filed within one month. In the case of death of his son, it is natural for a father to come under severe stress and strain which may include acute depression and sadness in the family. In such cases, a short delay of 4 months and 15 days is pardonable. 2. The court held that the insurance company's action was arbitrary as it did not consider the facts and circumstances of the case, such as the stress and strain suffered by the petitioner due to the death of his son. The court also held that the insurance company, being a State within the meaning of Article 12 of the Constitution, could not be allowed to act arbitrarily. 3. The court held that a writ petition was maintainable in the present case as the insurance company's action was arbitrary and the petitioner had no other adequate remedy.
Final Decision: The court quashed and set aside the impugned order of the insurance company repudiating the claim and issued a writ in the nature of a writ of mandamus directing the insurance company to forthwith settle the claim with the petitioner. The court also imposed a cost of Rs. 10,000/- on the Senior Divisional Manager of the insurance company for his arbitrary action.
Tapen Sen, J.
1. IN this Writ Petition, the Petitioner, Chand Mohan Saha, prays for an Order commanding upon the Respondents to withdraw the impugned letter dated 26.9.2005 as contained in Annexure- P6 whereby and whereunder he was informed by the Senior Divisional Manager, National INsurance Company that since he had given the intimation about the accident and had submitted his claim after 4 months/15 days from the date of the accident, the same violated Condition No. 1 of the Policy and therefore, his claim was closed as No Claim.
2. THE Petitioner has further prayed for the issuance of an appropriate Writ or a Writ of or in the nature of a Writ of Mandamus Commanding upon the Respondents to settle the claim of the Petitioner with regard to the Janata Personal Accident Claim No. 100300/47059600/77 (Golden Trust Financial Services Claim Ref. No. THE National Insurance Company Ltd./Janata Personal Accident/ 2005/0093) in relation to the death of his son, Sailendra Kumar Saha.
The Petitioner has also prayed for quashing of the aforementioned impugned communication dated 26.9.2005.
3. THE facts as pleaded in the Writ Petition are that the Petitioners son Late Sailendra Kumar Saha died on 18th August, 2004 in a Crusher accident at Salbadra in Mahsra, Rampurhat in the District of Birbhum during the course of his employment. THE Death Certificate has been brought on record vide Annexure- P1.
4. PRIOR to his death, he had purchased an Insurance Policy for personal accidental death/injury/total permanent disablement from the National Insurance Company Ltd. through the Golden Trust Financial Services/ Golden Multi Services Club (Respondent Nos. 3 to 5) known as the Group Janata Personal Accident Insurance Policy for the period 31.3.2003 to the midnight of 30.3.2018.
According to the Petitioner, the Respondent Nos. 3 to 5 are the authorised Agents of the Respondent No. 1 (Insurance Company). The Insurance Policy has been brought on record vide Annexure- P2 and it shows that the sum insured was Rs. 1,00,000/- (Rupees one lakh) and the name of the Petitioner had been mentioned as the Nominee. Condition No. 1 of the said Policy states that upon the happening of any event which may give rise to a claim under this policy the insured forthwith give notice thereof to the Company. Unless reasonable cause is shown, the Insured should within one calendar month after the event which may give rise to a Claim under the Policy, given written Notice to the Company with full particulars of the claim (Quoted from Para 3(c ) of the Affidavit-in-Opposition of the Respondent Nos. 1 and 2).
5. IT appears that during the subsistence of the Policy, the son of the Petitioner, as stated above, died on 18.8.2004 in a crusher accident during the course of his employment. According to the further case of the Petitioner, he suffered great mental pain and agony on account of such a premature death of his son but on 2.9.2004, he went to the Office of the Respondent No. 4 (Manager, Golden Multi Services Club of Golden Trust Financial Services, Suri in the District of Birbhum and orally intimated about the death and the said Respondent requested the Petitioner to send a death intimation letter to the Manager, Golden Multi Services Club of the Nabadwip Branch in the District of Nadia.
6. THEREAFTER by a letter dated 7.9.2004, the Petitioner sent the intimation of the death of his son to the Respondent No. 4 in which he quoted the Policy number and requested him to send him the Claim Form so that he could submit the same for getting the Claim. According to the Petitioner, this letter was sent under Certificate of Posting on 8.9.2004 vide Annexure- P3.
The Petitioner has made a grievance that in spite of sending the aforementioned letter dated 7.9.2004 (said to have been despatched on 8.9.2004 under Certificate of Posting), the Respondent No. 4 did not respond. Thereafter the Petitioner contacted the Suri Office and filed an Application on 29.1.2005 for the Claim
