MANAGER, NEW INDIA ASSURANCE CO. LTD. vs SYAMALA RAJAN

THESE appeals are being disposed of by this common order. Appeal 692/2000 by the 3rd opposite party and Appeal 710/2000 is by the first opposite party in O.P. No. 106/1999 on the file of Consumer Disputes Redressal Forum, Pathanamthitta.

COMPLAINANT''s case before the District Forum was that herself is the widow of Rajasekharan Unnithan who died by drowning on 14.2.1999, himself was a subscriber to the Newspaper of the first opposite party. He joined the insurance scheme propounded by the first opposite party along with the 3rd opposite party and submitted the necessary application to D.W. 1, on the death of her husband though she made a claim that was not entertained stating that her husband was not a party in the insurance scheme. She alleged deficiency in service. In the version by the first opposite party they admitted to their having offered such a scheme by name Mathrubhumi Subscribers'' Insurance Scheme. The premia is being paid by the first opposite party, the subscriber who intends to become the member of the scheme should submit an application in the prescribed form to the first opposite party which after verification would be forwarded to the 3rd opposite party. The complainant''s husband never submitted such an application consequently he was not entitled to the benefit of the scheme. The 3rd opposite party did not file any version. Before the District Forum complainant gave evidence as P.W. 1 and she also examined P.W. 2. Complainant produced Exbts. P1 to P5. Second opposite party was examined as D.W. 1 and on behalf of the first opposite party D.W. 2 was examined. On a consideration of the said material, District Forum made the impugned direction to the 3rd opposite party to take steps for disbursing the insured amount as per the aforesaid scheme within one month of the receipt of the copy of the order. It is the said direction that is under challenge by opposite parties 1 and 3 in these two appeals.

We consider, that the case of the 3rd opposite party can be first dealt with for the main ground on which the appeal is sought to be maintained is that the 3rd opposite party was who impleaded subsequently was never served, thus the 3rd opposite party did not get any opportunity to contest the matter. We have called for the records from the District Forum to verify whether as a matter of fact the 3rd opposite party was served. It is seen that the first opposite party contended that the complaint itself is bad for non-joinder of necessary parties as the New India Assurance Company was not made a party to the complaint. Persuant to the same the complainant moved a petition for impleading the said party as additional 3rd opposite party. The said petition was allowed as that was not objected. Thereafter, the order sheet shows that the notice to the additional 3rd opposite party was put up and what could be seen from the record is that the acknowledgement signed by the Asstt. Manager of the 3rd opposite party is obtained among the records. Learned Counsel for the appellant in Appeal 692/2000 pointing out there is no seal of the Post Office therein sought to maintain there was no service. No seal of the Post Office as such is decernible on that card, but as has been noted what is important is, the full address of the 3rd opposite party is obtained in the acknowledgement beneath which the Asstt. General Manager has signed after affixing the seal of the office. Simply because the Post Office did not affix the seal it cannot be said that the service is not proper in the context of the aforesaid material. When such is the position the stand taken by the appellant in Appeal No. 692/2000 that the 3rd opposite party was not served and, therefore, in the facts and circumstances the 3rd opposite party has to be given chance to contest the matter cannot be accepted. Even otherwise by that alone the appeals cannot be disposed of for the appeal by the first opposite party, Appeal No. 710/2000 is necessary to go into the real question in dispute. 4.(a) As per the scheme every subscriber to the newspaper cannot become a beneficiary. He has to submit an application either through post or before the office of the first opposite party at Thiruvananthapuram, Kottayam, Cochin, Thrissur or Palakkad, Kozhikode and Kannur. One of the contentions raised by the learned Counsel for the appellants is that there is no acceptable evidence to show that the deceased husband of the complainant had ever submitted such an application. The main piece of evidence relied on in support of the case of the complainant is that of P.W. 1 and P.W. 2. P.W. 2 swears to the effect that an application was submitted in March, 1998 by the deceased husband of the complainant. P.W. 1 is thus corroborated by P.W. 2. D.W. 1, the local agent of the 1st opposite party gave evidence that the deceased gave him the application and he submitted the same before the local office of the 1st opposite party. The attack against evidence is that D.W. 1 though was the agent of the first opposite party was terminated by the opposite party and had to initiate proceedings against him under Section 138 of the Negotiable Instruments Act. He defaulted payment of the amount which the agent was bound to remit to the first opposite party. This termination was after the submission of the application in March, 1998. In support of the case of the 1st opposite party reliance was made on Exbt. R1. It was the case of the first opposite party that Exbt. R1 is the photo copy of the agency list of the subscribers and since the name of the deceased husband of the complainant does not figure in the list that is indicative of the fact that as a matter of fact no such application from the deceased reached the Mathrubhumi and hence cannot he held to have applied for availing the benefit under the scheme. The list significantly does not have any date, month or year. Then the list cannot be held to relate to the period during which the deceased applied. D.W. 2 in the evidence said that Exbt. R1 list was for the period upto the termination of the agency. The argument is that the termination of the agency mentioned by the D.W. 2 is with respect to D.W. 1 whose agency, according to the learned Counsel, was terminated in July, 1998. The evidence of D.W. 2 does not specifically state that the agency was terminated in July, 1998. We do not consider that the list can be put against the acceptability of the case of the complainant when the evidence of P.W. 2 is appreciated. The cross-examination of P.W. 2 does not bring out any basis of interestedness. If D.W. 1 was terminated subsequent to the presentation of the application in March, 1998 the fact of termination by itself need not affect the acceptability of his evidence as the same is corroborated by P.W. 2 also. So long as the evidence of P.W. 2 by itself is acceptable the case of the complainant that her deceased husband submitted the application through D.W. 1 becomes worthy of acceptance. Therefore, the argument that no application was tendered by the deceased cannot stand scrutiny.

THEN the other argument advanced by the learned Counsel is that the complainant or her husband cannot be treated as a consumer. The scheme is projected by the first opposite party along with the 3rd opposite party. Once such application is submitted he would be the beneficiary and the status of the person who claims the insured amount on the demise of the insured also will get the status of the beneficiary. Beneficiary also is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. Consequently the said argument too cannot be accepted. It is urged by the learned Counsel for the appellant in Appeal 710/2000 to the effect that the dereliction committed by the agent of the first opposite party need not bind the 3rd opposite party. The sponsors of the scheme was both the 3rd and first opposite parties, the scheme was accepted by the 3rd opposite party and allowed to be implemented; the method of implementation also is mentioned in the proforma, one of the methods to apply for the benefit of the scheme, is to make the application through the agent of the first opposite party. The same as much binds the 3rd opposite party as it would bind the first opposite party. When such is the situation the 3rd opposite party cannot escape from the obligation by stating that the dereliction by the agent of the first opposite party cannot bind the 3rd opposite party. The joint sponsors are equally responsible to adhere to and accept the conditions in the proforma. Having regard to the above the argument as to the same cannot be accepted. The other point raised by the learned Counsel for the first opposite party is that herself is the nominee; but P.W. 2 does not mention the name of the nominee. He said the application was brought back and it was filed, but as to who was the person so filed as nominee not mentioned by him. At once it has to be deserved that the first or third opposite party has a case that some other person is the nominee. Adding to that admittedly complainant is the widow and heir of the deceased. The said argument also cannot be held good. Having regard to the aforesaid factors we do not see infirmity in the order passed by the District Forum. We see nothing to interfere, appeals fail, and they are accordingly dismissed. Appeals dismissed.