Harjit Kaur wife of Sh.Paramjit Singh, resident of B-II/1231, Arya School Road, Ludhiana.
Complainant
Versus
The Manager, Apollo Munich Health Insurance Company Limited, 2nd Floor, SCO-146, Feroze Gandhi Market, Ludhiana now HDFC Ergo General Insurance Company Limited, having its office at Stellar IT Park, Sector 62, Noida-201301, Uttar Pradesh.
Opposite Party
Complaint Under Section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) for the redressal of the grievances as set out in the complaint.
Present:
For the complainant: Sh.Bhag Singh, Advocate.
For the Opposite Party: Sh.Ajay Chawla, Advocate.
Quorum:
Sh.Amrinder Singh Sidhu, President.
Sh.Mohinder Singh Brar, Member.
Smt.Aparana Kundi, Member.
Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he is travel policy holder of Opposite Party and he had gone to Australia where she was suffering from serious illness and got treatment from there. As per the rules in Australia, the concerned Chemist in Australia gave medicines to the complainant to the extent of Rs.30,000/-, but kept the prescription slip and did not hand over the prescription slip to the complainant. Thereafter, the complainant handed over all the documents regarding her treatment to the Opposite Party, but till date, the Opposite Party is dilly dallying the matter on one pretext to another. The complainant approached the Opposite Party time and again for the reimbursement of medical bill, the Opposite Party refused, as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to release the claim amount to Rs.30,000/- alongwith interest @ 18 % per annum and also to pay of Rs.50,000/- on account of compensation due to mental tension and harassment caused by the complainant as well as costs of litigation.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the complainant had submitted to the Opposite Party on 30.06.2015 a proposal application for the purchase of Easy Travel Individual Plan from Opposite Party and consequently, a policy was issued bearing no.110/600/31001/7000203044 commenced from 02.07.2015 to 29.09.2015, the benefit under the said policy was subject to certain conditions and exclusions, which have been clearly specifically and categorically mentioned under the policy working. Further the Opposite Party received a request for claim bearing No.MO80714.81 on 25.02.2016 for estimated costs of $ 474.15 and on post scrutiny of provided documents, it was observed that documents are not upto the mark for processing, thereafter, the Opposite Party wrote so many letters to the complainant to complete the documentation for the processing of her claim, but to no affect and hence, the claim of the complainant could not be settled. On merits, Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Party has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. In order to prove her case, the complainant has tendered into evidence her affidavit Ex.PA alongwith copies of documents Ex.C1 to Ex.C9 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered into evidence the affidavit of Ms.Deepti Rustagar Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP5 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party Further contended that at the time of issuance of the said policy to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. Further contended that he is travel policy holder of Opposite Party and he had gone to Australia where she was suffering from serious illness and got treatment from there. As per the rules in Australia, the concerned Chemist in Australia gave medicines to the complainant to the extent of Rs.30,000/-, but kept the prescription slip and did not hand over the prescription slip to the complainant. Thereafter, the complainant handed over all the documents regarding her treatment to the Opposite Party, but till date, the Opposite Party is dilly dallying the matter on one pretext to another. The complainant approached the Opposite Party time and again for the reimbursement of medical bill, the Opposite Party refused, as such, there is deficiency in service on the part of the Opposite Party.
8. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the complainant had submitted to the Opposite Party on 30.06.2015 a proposal application for the purchase of Easy Travel Individual Plan from Opposite Party and consequently, a policy was issued bearing no.110/600/31001/7000203044 commenced from 02.07.2015 to 29.09.2015, the benefit under the said policy was subject to certain conditions and exclusions, which have been clearly specifically and categorically mentioned under the policy working. Further the Opposite Party received a request for claim bearing No.MO80714.81 on 25.02.2016 for estimated costs of $ 474.15 and on post scrutiny of provided documents, it was observed that documents are not upto the mark for processing, thereafter, the Opposite Party wrote so many letters to the complainant to complete the documentation for the processing of her claim, but to no affect and hence, the claim of the complainant could not be settled.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next plea raised by Opposite Party is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
- We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the Opposite Party is that due to non submission of the requisite documents, the claim of the complainant could not be settled, but on the other hand, the complainant has specifically mentioned in the reply against the letters written by the Opposite Party in this regard that whole documents i.e. Easy Travel Insurance, Bill of 474.15 dollars which comes to approximately about Rs.25,000/-, two tax invoices ABN No.31, 783 697 434 of Rs.60/- each, blood reports of Harjit Kaur, receipts of St.Vincent’s pathology, X-ray report and bill of x-ray i.e. 212 Dollars and tax invoice of 46.40 dollar and the said documents are already submitted in original with the Opposite Party . It is further contended that as per the rules in Australia, at the time of purchasing medicines, the medical prescription of doctors were kept by the Clinic Holder and to this submission, the Opposite Party has failed to convince this District Consumer Commission.
12 In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
13. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
14. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant and direct Opposite Party-Insurance Company to pay the amount of 474 Australian Dollar (four hundred seventy four Australian Dollar) or to pay the equivalent amount in Indian Currency at the rate on the date on which the payment is to be made, to the complainant directly alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 06.11.2017 till its actual realization. Opposite Party–Insurance Company is also directed to pay compensation to the complainant for causing her mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Party-Insurance Company within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:25.03.2022.
