25....27.12.2021...
The Ld. Advocate for the complainants is present.
Today is fixed for delivery of final order. Final order containing 6 pages is ready. It is sealed, signed and delivered in open Commission.
It is ordered that,
ORDERED
That the complaint case be and the same is hereby allowed in part on contest against the O.P. Nos. 1 and 2 without cost and dismissed on contest against the O.P. No. 3 without cost.
The O.P. Nos. 1 and 2 are directed to add bonus amounting Rs. 10,000/- each in favour of the complainant Nos. 1 and 2 and Rs. 7,500/- in favour of O.P. No. 3 with the present mediclaim policy of the complainants by 90 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO. 99 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
24.07.2019 02.08.2019 27.12.2021
Present : President : Asish Kumar Senapati
Member : Jagadish Chandra Barman
Member : Sangita Paul
COMPLAINANT : 1. Rafiqul Islam,
2. Areena Islam, W/o – Rafiqul Islam,
3. Raeesha Islam (Minor), D/o-Rafiqul Islam, represented by the Petitioner No. 2.
All residing at Kasturi Park, Kumrakhali South, P.S. – Narendrapur, Kamalgazi, Dist. – South 24 Parganas., Kolkata – 700103.
Versus
O.P/O.Ps : 1. National Insurance Company Ltd., Baruipur Divisional Office, at Swagatam, 2nd floor, Ukilpara, P.S. – Baruipur, Kolkata-700144.
2. Divisional Manager, National Insurance Company Ltd., Baruipur Divisional Office, at Swagatam, 2nd floor, Ukilpara, P.S. – Baruipur, Kolkata-700144.
3. Genius India TPA Ltd., Kolkata, 15, Ganesh Chandra Avenue, Kolkata-700013.
Advocate for the complainants: Sanjib Sankar Majumder
Advocate for the O.P. Nos. 1 & 2 : Gopal Basu and Apurba Kumar Sautya
Advocate for the O.P. No. 3 : Illegible
Sri Asish Kumar Senapati, President
This is a complaint filed by One Md. Rafiqul Islam and 2 others (hereinafter referred to as the complainants) against the National Insurance Company and 2 others (hereinafter referred to as the O.Ps.) praying for a direction upon the O.Ps. to pay Rs. 55,000/- and to carry forward the same in their policy for 2019-20 alleging deficiency in service and compensation of Rs. 50,000/- and litigation cost.
The sum and substance of the complaint is as follows:
The complainant Nos. 1 and 2 were mediclaim policy holders under the O.P. Nos. 1 and 2 since 2015 by paying yearly premiums and the O.P. No. 3 was also included in new mediclaim policy since 14.01.2016. That the complainant Nos. 1 and 2 got cumulative bonus as reflected in their documents. That the complainants paid premium with taxes totaling Rs. 5,020/- for renewal of their policy for the year 2017-18 and obtained cumulative bonus and amount of Rs. 10,000/- each for the complainant Nos. 1 and 2 and Rs. 5,000/- for the complainant No. 3. When the complainants went to the O.Ps. for renewal of their policy on payment of Rs. 5,551/- for the year 2019-20, they saw that no cumulative bonus is being shown. That on 22.01.2019 the complainants lodged written complaint with the O.Ps. and got a reply on 22.02.2019 that they are grievances could not be solved due to delay of 257 days. Hence, the complaint has been filed praying for relief.
The O.P. Nos. 1 and 2 contested the case by filing W.V. on 25.10.2019 contending that the case is not maintainable it is the specific case of the O.Ps. that the mediclaim policy was lapsed due to non-payment of premium. That the complainants deposited a cheque being No. 353203 amounting Rs. 5,251/- in favour of the National Insurance Company and the same was dishonored due to the reason “instrument out dated”. That the complainants reported the matter to the grievance cell and the grievance cell disposed of the matter on 22.02.2019 stating that the grievance could not be considered as the delay was almost 357days. That there is no deficiency in service. That the complaint merits dismissal.
The O.P. No. 3 also contested the case by filing W.V. on 25.10.2019 contending that the case is not maintainable and there is no deficiency in service on the part of the O.P. No. 3. That the O.P. No. 3 is not a necessary party and the O.P. No. 3 is entrusted by the National Insurance Company Ltd. to settle the claim and the O.P. No. 3 has reported accordingly.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Are the complainants consumers under the provisions of C.P Act?
- Is the case maintainable?
- Is there any deficiency in service on the part of the O.Ps.?
- Are the complainants entitled to get any relief against the O.Ps., as prayed for?
DECISION WITH REASONS
Point Nos. 1 & 2 :-
The Ld. Advocate for the complainants submits that the complainants are holders of mediclaim policy but their policies were lapsed and no bonus has been added to their policy. It is urged that the complainants are consumers under the O.Ps. It is urged that the case is maintainable.
In reply, the Ld. Advocates for the O.Ps. submits that the complainants are not consumers and the case is not maintainable.
We have gone through the materials on record and considered the submission of both sides.
Admittedly the complainants were holders of the mediclaim policy under the National Insurance Company Ltd. and they paid premiums at least up to the policy period 2017-18. We find that the complainants raised consumer disputes against the O.Ps. Therefore, we hold that the complainants are consumers and the case is maintainable.
Point Nos. 3 & 4 :-
The Ld. Advocates for the complainants submits that the complainants paid premium for the year 2018-19 by an A/c payee cheque amounting Rs. 5,251/- on 08.01.2018 and got receipt but subsequently the complainants came to know that their policy had been lapsed due to non-payment of premium. It is argued that the complainants lodged complaint with the grievance cell of the O.Ps. for condonation of delay as the O.Ps. informed that the A/c payee cheque was bounced due to instrument outdated. It is urged that the O.P. Nos. 1 and 2 did not informed the fact of dishonor of the cheque for long time and the complainants lodged the complaint with the grievance cell of the National Insurance Company on 07.02.2019 after knowledge of dishonor of cheque. He contends that the complainants lost their rights to pay the premium within due dates or lodged prayer for condonation of delay if they knew the fact of dishonor of cheque. It is contended that the O.P. Nos. 1 and 2 are liable for deficiency in service and the complainants are entitled to get reliefs.
The Ld. Advocate for the O.P. Nos. 1 and 2 submits that the O.Ps. are not liable for dishonor of A/c payee cheque and renewal of policy is always subject to realization of cheque.
It is contended that the complainants are liable for non-payment of premium within time and their prayer for condonation of delay cannot be considered after lapse of 357 days. He also draws my attention to the circular of the National Insurance Company ltd. and a decision reported in 2020(1) C.P.R., 342 SC wherein it is held by the Hon’ble Supreme Court that no risk can be assumed by the insurer unless premium payable is received in advance. He submits that the complainants have suppressed the material facts with a view to get an order against the O.Ps. It is contended that there is no deficiency in service on the part of the O.Ps.
The Ld. Advocate for the O.P. No. 3 has not taken part in hearing of argument.
We have gone through the materials on record and considered the submissions of both sides. We have also gone through the decision referred by the Ld. Advocate for the O.P. Nos. 1 and 2.
Admittedly, the complainants were mediclaim policy holders under the O.P. Nos. 1 and 2. The complainants have suppressed the fact that their policy has been lapsed due to non-payment of premium and the A/c payee cheque being No. 353203 amounting Rs. 5,251/- was dishonored due to the reason instrument out dated. We also find that the O.P. No. 2 intimated the fact of turning down the grievance of the complainants vide letter dated 22.02.2019. It is clear from the submission of the both sides that the complainants deposited A/c payee cheque No. 353203 for premium for the year 2018-19 but the date of the cheque was 08.01.2017 which ought to be 08.01.2018. We find that the concerned Bank intimated the fact of dishonor of the cheque to the O.P. No. 1 on 17.01.2018 and the O.P. No. 1 received the said communication on 18.01.2018. It is a fact that the O.P. Nos. 1 and 2 did not give the complainants a scope to pay the premium within time or to pray for condonation within a short period. It is the logic of the Ld. Advocate for the O.P. Nos. 1 and 2 that the complainants are negligent to pay the amount and it could be easily ascertained from the bank statement whether cheque was encashed or not. With due regard to the logic of the Ld. Advocate for the O.P. Nos. 1 and 2 we find no substance in the logic of the Ld. Advocate for the O.P. Nos. 1 and 2 that only the complainants are liable for non-payment of premium within time. In our considered opinion, the O.P. Nos. 1 and 2 had also their responsibility to remind the complainants about the fact of dishonor of their A/c payee cheque but the O.Ps. have given the liability for non-payment to the complainants only. We are sure that if the complainants knew the fact of dishonor of cheque, they would pay the premium. It is very difficult to believe that the complainants waited for lapse of their policy to get a scope to file a case against the O.Ps. We also find that the policy would not be lapsed if the complainants were sincere and diligent. The complainants have also suppressed the facts about dishonor of cheque. We have come to know from the submission of the Ld. Advocate for the complainants that the complainants have purchased new mediclaim policy after lapse of previous one. It is clear from the submission of the Ld. Advocate for the complainants that they have lost bonus amounting Rs. 55,000/- . We hold that both the complainants and the O.P. Nos. 1 and 2 are responsible for non-payment of premium for the year 2018-19. If either of the sides was diligent / cooperative the policy would not be lapse. Therefore, both the complainants and the O.P. Nos. 1 and 2 are liable for loss of bonus amounting Rs. 55,000/- in the policy of the complainants. In our considered opinion, the complainants and the O.P. Nos. 1 and 2 will bear the loss of bonus of Rs. 55,000/- in equal shares. As the complainants suppressed some material facts about dishonor of cheque, we are not inclined to allow any compensation and litigation cost against the O.Ps. Hence, we hold that the O.P. Nos. 1 and 2 have deficiency in service as they did not inform the complainants about dishonor of cheque after their knowledge within a short period for payment of premium. We also hold that the complainants are entitled to get bonus of Rs. 27,500/- in their mediclaim policy.
Point Nos. 3 & 4 are thus disposed of.
In the result, the complaint case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed in part on contest against the O.P. Nos. 1 and 2 without cost and dismissed on contest against the O.P. No. 3 without cost .
The O.P. Nos. 1 and 2 are directed to add bonus amounting Rs. 10,000/- each in favour of the complainant Nos. 1 and 2 and Rs. 7,500/- in favour of O.P. No. 3 with the present mediclaim policy of the complainants by 90 days from the date of this order.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
President
