In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/187/2019.

Date of filing: 03/12/2019.                     Date of Final Order: 03/07/2024.

Smt. Sushma Shaw,

w/o Late Dr. Raja Prasad Shaw,

r/o 40/3, N.S. Road, PO & PS Rishra,

Dist. Hooghly, PIN. 712248.                                                       ……complainant

  -vs  -

1. Apollo Munich Health Insurance Company Ltd.

Hindustan Building Annexe,

2. Canara Bank,

6370, 7627, PO & PS Rishra,

Dist. Hooghly, PIN. 712248.………opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the husband (now deceased) of the petitioner made a policy being no.120100/12001/2017/A007627 amount of Rs.500000/- and policy being no. 120100/12001/2017/A007626/059 amount of Rs.100000/- in the company of Apollo Munich Health Insurance Co. Ltd.  Hindustan Building Annexe, 4^th floor, C.R.Avenue, Kolkata-700072.  The husband of the petitioner died on 04.01.2018 and petitioner requested somany time to the respondent no.1 for reimbursement of said claim amount but respondent did not pay any heed for taking any action for reimbursement.  The petitioner is a very much law abiding person and very much innocent.  The petitioner is the nominee of the policy holder of deceased Dr. Raja Prasad Shaw.

The petitioner is suffering an irreparable loss if respondents refused to pay the said amount of Rs.600000/- and the lawful 10% per annum interest there on.  The petitioner is very much suffering harassment and mental agony by this illegal act of these respondents.  The petitioner sent all necessary documents relating to her claim to the respondent no.1 but OP-1 sent a reminder letter dt.20.6.2018 about any follow up consultation and treatment details pertaining to liver abscess since 10 years, if any in last year and this is as their use of dellaytory system, though petitioner sent the certificate issued by Dr. Kumud Mondi of Ma Sarada Hospital Pvt. Ltd. stating the details of about the dicease of Dr.Raja Prasad Shaw (Now deceased), that on 7.12.2017 with bleeding P/R, pain around anus with fever.  Patient has no past H/O liver disease as per statement of (Aditya Anand, son of Late Raja Prasad Shaw).  Respondent No.1 accepted the premium amount for that policies after the death of the policy holder Dr. Raja Prasad Shaw, though petitioner applied for reimbursement of policy amount by submitting the related documents including the death certificate of Dr. Raja Prasad Shaw related with that claim before taking the premium amount after the death of the policy holder.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 600000/- as medical claim with @10 % interest per annum and to a sum of Rs.120000/- for litigation cost.

Defense Case:-  The opposite party No. 1  contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that Housing Development Finance Corp0oration Ltd. has acquired a majority stake (i.e 51.16%) of the replying respondent i.e Apollo Munich Health Insurance Company  Ltd. post receipt of the necessary regulatory approvals.  Based on the said acquisition, Apollo Munich Health Insurance Company Limited has been renamed as HDFC ERGO Health Insurance Limited with effect from January 9^th 2020.  The replying respondent therefore craves the leave of this Hon’ble Commission to substitute the references to the name of Apollo Munich Health Insurance Co. Ltd. with HDFC ERGO Health Insurance Limited, (Hereinafter referred as “Respondent”) a company incorporated under the companies Act, 1956, having its corporate Identity Number U66030MH2006PLC331263 and having its registered office at 101 1^st floor Inizio Cardinal gracious Road, Chakala, Opposite P&G Plaza, Andheri (East), Mumbai City, Maharashtra, (India)-400069 and its Central Processing Centre at iLABS Centre, 1^st, 2^nd & 3^rd Floor, Plot No.404-405, Udyog Vihar, Phase-III, Gurugram-122016, Haryana. 

The National Company Law Tribunal (NCLT), Mumbai bench vide its order dated September 29,2020 has approved the scheme of amalgamation of HDFC  ERGO Health Insurance Limited with HDFC ERGO General Insurance Company Limited.  Further pursuant to the Joint and composite application made by HDFC ERGO General Insurance Company Limited and HDFC ERGO Health Insurance Limited dated June 25 2019, the IRDAI vide its letters dated January 1, 2020 and November 11, 2020 had granted an in principle and final approval respectively  for the said merger with  effect from November 13. 2020.

After sending several reminders there were documents which were still pending on the part of complainant and were crucial for deciding the claim therefore the claim was finally rejected on 6.4.18 due to Non-Submission of Necessary Documents.  It is specifically stated that the document required for finalization of claim holds a determining value as the ICP of Medica Super Specialty Hospital dated.12.12.17 clearly states that the patient had H/O Liver Abscess 10 years back and another document dated 12.12.17 of the Hospital prepared at 11.10 a.m also marks the history of Liver Abscess.  Therefore, without quantifying the geniuses of claim the same could not be processed.

The doctor certificate mentioned that same was issued based on the statement of the son of the insured Aditya Anand and hence the said doctor did not have any personal knowledge of the history of ailment of the deceased/insured.

The complainant has designed a strategy to make the use of Forum by not supplying necessary documents which are required to process the claim and is alleging the Insurer for his own deeds.  It is further submitted that there is no cause of action available to complainant against the Insurer as the complainant has himself not provided necessary documents/revert on queries due to which the claim is rejected and the cause of action cannot be continued.

The opposite party No. 2  contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that according to the terms and conditions of the business transaction the OP-2 allowed the OP-1 to use their office premises and contacts with the customers of the bank for approaching them with their business policies.  But it is also mentioned that the OP-2 is nowhere connected with any financial dealings the petitioner and the OP-1.  The statements admitted herein that if any business relation grown up between the petitioner and the OP-1 the OP-2 would never benefited by that growing relation with the petitioner and the OP-1.  The OP-2 will never be alleged for any discrepancies arise between the parties and OP-2 will be prosecuted for any loss or damage.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Mankundu, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that in this instant case the complainant side has not submitted any claim against O.P. No-2 bank authority in the complaint petition.  At the same time the complainant side has also failed to make out any case of claim against OP-2 Canara Bank authority and so it is crystal clear that his case is not maintainable against OP-2 bank authority and for that reason this case is liable to be dismissed against the OP-2.  After going through the material of this case record this District Commission finds that the OP-1 Insurance Company has repudiated the claim of the complainant due to non-production of documents.  In this regard it is very important to note that the OP-1 time and again informed the complainant for production of the document which has been claimed by the Insurance Company but instead of filing the said document the complainant has filed one certificate issued by Dr. Kumud Mondi of Ma Sarada Hospital.  In this regard this District Commission should not be out of mind that the certificate of Dr. Kumud Mondi cannot be treated as substitute of the document which has been claimed by the OP Insurance Company.  Moreover, in course of trial the complainant side has not taken any steps for filing the evidence on affidavit of Dr. Kumud Mondi of Ma Sarada Hospital to prove the said certificate.  Thus it is crystal clear that the case of the complainant is also not supported by any corroborative evidence.  When the complainant has failed to produce document before the Op-1 Insurance Company in support of the claim, the complainant side has no cause of action for institution of this complaint case against OP-1 Insurance Company and so this case is also not maintainable against OP-1 Insurance Company.

A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove his case against both the OPs in respect of points of consideration no.4 &5 which are vital issues for determination of the fate of this complaint case.

In the result it is accordingly

ordered

that this complaint case being no. 187 of 2019 be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.