Delhi

North East

CC/36/2016

Suresh Goyal - Complainant(s)

Versus

Apollo Munich Health Insurance & Ors. - Opp.Party(s)

29 Aug 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 36/16

 

In the matter of:

 

	Sh. Suresh Goyal S/o Late SH. Roshan Lal Goyal R/o E-138, 139, Old Seemapuri, Delhi. Presently at: F-99B, Dilshad Colony, Delhi	Complainant
	Versus
1.         2.	Apollo Munich Health Insurance Co.Ltd At: 10th Floor, Building No.10, Tower-B, DLF Cyber City, DLF City, Phase-II Gurgaon, Haryana.   Kapoor Medical Centre F-20 & 21, Dilshad Colony Delhi-110095.	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION :

29.01.2016 29.08.2019 29.08.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The complaint pertains to grievance raised by the complainant against repudiation by OP1 of mediclaim of his wife Ms. Lalita Goyal raised in July 2011 with OP1 for hospitalization expenses to the tune of Rs. 64,407/- having been incurred for the period 15.06.2011 to 19.06.2011 when she was hospitalized in OP2 despite complainant and his family having been covered with OP1 vide Easy Health Floater Standard Policy bearing No. 110800/11051/1000101836 w.e.f. 17.08.2010 to 16.08.2011 on payment of premium of Rs. 8,824/- to OP1 against the same. However, OP1 repudiated the claim of complainant vide repudiation letter dated 18.07.2011 and 19.11.2011 on ground of the illness of complainant’s wife not covered as hit by Section 6 (c) of the policy terms and conditions of having two years waiting period and the disease being pre-existing in nature therefore not covered within 36 months of continuous coverage with OP1 since as per discharge summary issued by OP2 hospital, the said disease/symptoms were four years old and therefore also hit by clause 6 (d) of the policy. The revised discharge summary dated 28.11.2011 was also issued by OP2 for correction of the period / duration of the disease of the complainant as 4 months instead of 4 years but to no avail in so far as the claim consideration was concerned. Thereafter, there was no correspondence between the parties for the next one and half years and thereafter in mid July 2013 complainant contacted OP1 and OP1 vide e-mail dated 15.07.2013 issued case no. 628382 for ‘agent service issue’ with assurance of appropriate response within 2 weeks (i.e. end of July 2013) failing which complainant was advised to take up the matter with the OP1’s Grievance Redressal Cell as per procedure.  The complainant followed up with complaint dated 16.07.2013 to V.P. of OP1 but no response came forth and lastly issued legal notice dated 04.09.2013 to the OPs and the insurance agent claiming the mediclaim reimbursement alongwith damages. The OP1 vide reply thereto dated 05.02.2014 however denied the allegations in the legal notice and relied upon the histopathology report dated 20.06.2011 of complainant’s wife wherein the history of disease of menorrhagia / dysmenorrhoea was shown to be for the duration 3 to 4 years apart from the complainant’s wife having undergone surgery by way of Total Laparoscopic Hysterectomy (TLH) which fell under Section 6 (c) (two year waiting period) of the policy and therefore held claim not admissible / payable. The complainant therefore was compelled to file the present complaint as the last resort in January 2016 praying for issuance of direction against OP1 to release the mediclaim amount of Rs. 64,407/- alongwith interest thereon @18% from the date of submission of claim till realization apart from the compensation of Rs. 1,00,000/- for mental agony and harassment and Rs. 21,000/- as litigation cost.

The complainant has attached copy of insurance policy cover, copy of claim form with accompanying medical documents of lab test reports, prescriptions and medical treatment of complainant’s wife with OP2 hospital, copy of e-mails dated 14.07.2013 & 15.07.2013 by OP1, copy of letter dated 16.07.2013 by complainant to OP1 with postal receipt, copy of legal notice dated 04.09.2013 by complainant to OP1 with postal receipt and reply thereto by OP1 dated 05.02.2014.

2. Notice was issued to the OPs on 25.02.2016 which was served on 09.03.2016 however none appeared on (OP1’s) behalf and was therefore proceeded against ex-parte vide order dated 28.04.2016. OP2 being performa filed written statement taken preliminary objection of complaint being time barred under section 24 A of CPA  

and denied any unfair trade practice or deficiency of service on its part since discharge summary of complainant’s wife was already modified / corrected/ rectified and submitted that the claim of complainant was not rejected by OP1 due to any discharge summary issued by OP2 and therefore prayed for dismissal of the present complaint qua itself. Thereafter the matter proceeded procedurally with OP1 continued to be ex-parte till proceedings held on 09.01.2018 when complainant filed copy of order dated 20.12.2017 passed by Hon'ble State Commission in RP No. 53 /2017 preferred by OP1 for setting aside ex-parte order of this Forum vide which order the Hon'ble State Commission was pleased to allow the same subject to payment of cost of Rs. 2,000/- payable by OP1 to the complainant for reinstatement of its defence / filing written statement.

Written statement was filed by OP1 on 27.03.2018 on payment of cost of Rs. 2,000/-. The OP1 took the preliminary objection of complaint being barred by law of limitation under Section 24 A of CPA which specifically bars entertainment of any complaint filed after two years from the date on which cause of action arises which in the present matter had arisen from the date of repudiation of claim of the complainant in July 2011 and November 2011 whereas the complaint was filed in 2016 after more than 4 years from the date of repudiation / cause of action.

It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case as was observed by Hon'ble National Commission in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC). Therefore, without going into the merits of the case, we shall adjudicate the admissibility / non-admissibility of the present complaint on the point of limitation. The chronology of events has already been discussed above in the factual matrix of the case and not repeated here to avoid prolixity.

3. Section 24 A of CPA deals with the limitation period for complaints to be filed within two years from the date on which cause of action has arisen and contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen. The term ‘cause of action’ pithily stated is bundle of facts for which a suit is brought and cause of action which gives occasion for and forms the foundation of the suit. The law on the said issue has been clearly settled by Hon’ble Supreme Court in so far as the nature and scope of Section 24 A is concerned in the landmark judgments of Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd (2009) 7 SCC 768, State Bank of India Vs B S Agricultural Industries (2009) 5 SCC 121 and V. N. Shrikhande (Dr) Vs Anita Sena Fernandes (2011) 1 SCC 53.  The Hon’ble National Commission in the judgment of Jansatta Sahkari Awas Samati Ltd Vs Kone Elevators India Pvt Ltd I (2016) CPJ 190 NC held that mere sending a legal notice does not constitute a cause of action nor does it extend a period of limitation prescribed in the Act in view of settled proposition of law under Section 24 A of CPA as mandatory in nature as held by Hon’ble Supreme Court in B.S. Agriculture Case (Supra) in which the Hon’ble Apex Court took the view that Section 24 A is preemptory in nature and requires consumer Forums to see before it adjudicates the complaint that it has been filed within two years from the date of accrual of cause of action. The Hon’ble National Commission in the Judgment of Punjab Small Industries and Export Corporation Ltd and Anr. Vs Satinder Pal Singh II (2018) CPJ 245 (NC) has held that the complainant remaining inactive and suddenly sending legal notice to OP cannot entitle him for waiver of limitation period as any amount of correspondence cannot extend limitation period. The Hon'ble Supreme Court in B.S. Agricultural Industries (Supra) case held the view that it is the duty of the Consumer Forum to take notice of section 24 A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside. The Hon'ble Supreme Court in State of Tripura & Ors Vs Arabinda Chakraborty & Ors I (2014) SLT 370 decided on 21.04.2014 held that simply by making a representation, period of limitation would not get extended. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation decided. The said ratio was followed by Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Company Ltd. III (2006) CPJ 414 (NC) & recently in Samruddhi Co-operative Housing Society Ltd Vs. Mumbai Mahalaxmi Construction Pvt Ltd. I (2019) CPJ 347 (NC) in which Hon'ble National Commission held that period of limitation cannot get extended on the basis of exchange of communication between parties once cause of action has arisen as also laid down by Hon'ble National Commission in judgment of Ashok Kumar Sainia Vs Delhi Development Authority 2013 (2) AWC 457 (NC) . The Hon'ble Supreme Court in Muneesh Devi Vs U.P. Power Corporation Ltd (2013) 10 SCC 478 held that reply to legal notice cannot extend period of limitation and dismiss the complaint. The Hon'ble National Commission in M/s Tayal Enterprises Vs United India Insurance Co. Ltd (2006) 3 CPR 230 (NC) held in the said case that when the claim was treated as ‘No Claim’ in 1996 and the complaint was filed in 1999, despite the complainant being aware of no claim status of its claim, did not file the complaint within the limitation and the mere plea that “they were in correspondence with the respondents” was held not maintainable as it is a settled law that correspondence does not  extend period of limitation. The Hon'ble National Commission in R. Jayakumar Vs National Insurance Co. Ltd 1996 (1) CPR 27 (NC) held that limitation would be calculated from second letter confirming order of repudiation. The Hon'ble National Commission in M. Salhi Mangalore Vs United India Insurance Co. Ltd Mangalore 1991 (2) CPR 441 (NC) held a complaint filed three years after repudiation of claim as time barred and in judgment of Tehri Hydro Development Corporation Ltd Vs New India Assurance Co. Ltd 2003 (i) CPJ 31 (NC), the Hon'ble National Commission while dismissing a time barred complaint for want of sufficient cause to condone delay, granted liberty to the complainant to approach appropriate Forum for seeking relief. The Hon'ble National Commission in M/s State India Express (Registered) Vs M/s Ranutrol Ltd and New India Assurance Co. Ltd in First Appeal Nos. 780/2006 and 116/2007 decided on 18.11.2013 held that wrong assumption of the date on which cause of action arose is no excuse to condone delay.
4. After having exhaustively dealt with the legal discourse and the settled preposition of law in the catena of judgments passed by Hon'ble Supreme Court and Hon'ble National Commission on the aspect of limitation, we are of the considered opinion and unambiguously conclude that the present complaint is hopelessly barred by limitation under Section 24 A since the period for filing the same expired in November 2013 from date of last receipt (November 2011) but the complaint was preferred in January 2016 after 3 years of expiry of limitation. The Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy VII (1998) SLT 334 laid down that law of limitation is enshrined in the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation) and that it fixes a life span for such legal remedy for redressal of legal injury so that precious time which is wasted would never revisit. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time to see that party do not resort to dilatory tactics but seek their remedy promptly.
5. Therefore, the complaint is dismissed on grounds of being barred under limitation under Section 24 A which limitation cannot be extended on basis of mere sending of legal notice or reply thereto and correspondence between the parties as is the settled law. No order as to cost.

It is made clear that we have not gone into the merits of the dispute between the parties and therefore this order will not come in the way of complainant to avail of legal remedy by approaching appropriate Court having jurisdiction to adjudicate such complaints which he is free to exercise as per law (but Consumer Protection Fora is not for him).

6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on 29.08.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member