1.       Appeal is preferred by ICICI Lombard General Insurance Co.Ltd., Mumbai which was original opponent No.1 against the judgment and order dated 20.4.2009 passed by District Forum, Aurangabad in C.C.No.441/2008, by which appellant is held liable for the payment of compensation. Respondent No.1 was the original complainant (herein after termed as “complainant”) and respondent No.2 was the original opponent NO.2.

2.       The brief facts about the complaint of complainant i.e.present respondent No.1 are that he had obtained credit card facility from respondent No.2 which is counter part of the appellant.  It is the case of the complainant that without his consent he was issued health insurance policy bearing No.4034/FMP/00887670/00/000 by diverting amount of Rs.649.31 as premium from his account and when he came to know about the same he got it cancelled on 20.7.2006.  That, again inviting second insurance policy without his prior permission the appellant transferred the amount of premium from his account and after having knowledge about the same, he got the said policy cancelled. That, it is again for the 3^rd time, the said policy bearing No.4034FPA01767849/00/000 was issued without prior consent and amount of premium was deducted from his credit card account. 

3.       It was further contended by the complainant that on 12.6.2007 he met with an accident in which his right feet was fractured, for the treatment of which he had incurred expenditure of Rs.36,000/-.  That, on the basis of said insurance policy he had filed insurance claim of Rs.36,000/- towards medical expenditure and same was repudiated by appellant  Insurance Company on the ground that said insurance policy did not cover his risk but only of his wife and two daughters. Hence he issued legal notice dated 24.12.2007 to respondent No.2 but of no use.  He therefore filed the complaint before the Dist.Forum alleging appellant  and respondent No.2 to have indulged in unfair trade practice and seeking directions to the appellant  to pay him mediclaim of Rs.36,000/- with interest @ 9% from the date of accident i.e. 12.6.2007 till it`s realization and in addition compensation of Rs.1 lakh towards mental harassment.

4.       Respondent No.2 i.e. Legal Manager of appellant  appeared before the Forum and filed written version dated 4.10.2008 and contested the claim.  It was admitted to have issued first insurance policy and stated that the same was cancelled on 20.7.2006 by reversing amount of premium of Rs.21,335/- to the account of complainant.  The allegation about the issuance of second policy was denied. As regards 3^rd policy bearing No.4034 FP/0767849/00/000, it was submitted that the same was issued after obtaining valid consent of complainant.  It was contended that complainant had mentioned in his complaint that this appellant had invited him for the policy which itself indicates that policy was issued with his consent.

5.       Regarding repudiation of the insurance claim it was submitted that the said policy did not cover risk of the complainant but only of his wife and two daughters. In addition it was also submitted that complainant did not produce any documentary evidence about the accident and name of hospital where he took treatment and so on. Thus on all these grounds it was contended that there was no deficiency in service or unfair trade practice on the part of original opponent and hence complaint being false and baseless be dismissed.

6.       Dist.Forum after perusal of the available record and hearing the parties has partly allowed the complaint and directed appellant  along with respondent No.2 to pay to the complainant jointly and severally amount of claim of Rs.36,000/- with interest @ 9% p.a. from 7.4.2008 and also to pay Rs.1000/- as cost of the complaint.

7.       Aggrieved and discontented with the said judgment and order ICICI Lombard General Insurance Co.Ltd. filed present appeal in this Commission which was finally heard on 12.10.2012.  Adv.Dahat was present for appellant  whereas Adv.Shete was present for respondent No.2. None was present for complainant though Adv.Smt.M.B.Vaishnav had appeared for complainant on earlier dates.

8.       Adv.Dahat brought our attention to the insurance policy on the basis of which complainant has claimed insurance sum and contended that said policy provides insurance to the complainant`s wife and two daughters and not complainant himself. Hence, he was not entitled to receive any insurance claim.  He therefore contended that Dist.Forum without considering this fact has erroneously passed the judgment and order and directed appellant  Insurance Company to pay insurance claim of Rs.36,000/-. He therefore requested to quash and set aside the said judgment and order.

9.       Adv.Shete appeared for respondent No.2 has supported the argument as advanced by Adv.Dahat for appellant.

10.     We have perused the papers and considered the oral argument as put forth by both the counsels for the appellant and respondent No.2. There are two major grievances of the complainant against appellant and respondent No.2. One is, he was given one after another three insurance policies and amount of premium towards the said policies were diverted from his credit card account without his consent.  Second is, his insurance mediclaim was repudiated without any valid reason.  It is on the basis of these two grievances he had alleged appellant and respondent No.2 to have indulged into unfair trade practice and also committed deficiency in service.

11.     We have to ascertain whether both these grievances stand against the appellant and respondent No.2. As regards first grievance, it appears from the written version as well as letter dated 21.4.2008 issued by appellant company that first two policies though issued without prior consent of the complainant, they have been cancelled on 20.7.2006 at the instance of complainant and full amount of premium said to have been diverted from his account has been reversed to his account. 3^rd policy however appears to have been issued with his due consent for the two reasons. One is, 3^rd policy was issued for the period from1 1.4.2007 to 13.1.2008 and there is no proof to show that he had made any representation for the cancellation of the said policy till the date of filing of the insurance claim following his said accident on 12.6.2007.  Second is, on the basis of the same policy he is claiming insurance claim.  Even if it is presumed that the said policy was issued without his consent, he had opportunity to file complaint about the same with Dist.Forum as soon as he has knowledge regarding the issuance of said policy.  However he did not file such complaint and therefore now he can not raise any objection about the same.  It is only after his claim was repudiated he has come up with the grievance that the said policy was issued to him without his consent. This act of complainant can be termed as playing dwell policy i.e. challenging issuance of the policy and at the same time seeking benefit out of the same policy. Therefore the grievance that the said policy was issued to him without his consent cannot stand against the appellant and respondent No.2.

12.     Now as regards repudiation of the claim.  It appears from insurance policy that it does not provide any cover to the complainant but only to his wife and two daughters.  His said mediclaim has not also been supported by any details about the so called accident and relevant documents to that effect.  Complainant without having any policy cover cannot be entitled to receive any such claim and the appellant Insurance Company  cannot also be made liable to pay such insurance sum.  Dist.Forum however has apparently misconceived the said insurance policy.  It is wrongly held by Dist.Forum that the insurance policy when was meant only for “one adult and one kid”, it should not have added another kid.  It is further held by Dist.Forum that complainant`s name has not been included in the policy though it was required to be included and non-inclusion of the name of complainant was a technical mistake. Thus on these false notions the Dist.Forum has erroneously awarded insurance claim which is totally illegal.  In view of aforesaid facts and observations we have no option but to set aside the judgment and order under appeal. Hence the following order.

                                                 O   R    D    E     R

1.                 Appeal is allowed. 

2.                 The judgment and order passed by Dist.Forum is hereby quashed and set aside.

3.                 Complaint stands dismissed.

4.                 No order as to cost.

5.                 Copies of the order be sent to both the parties.

Pronounced on 01.11.2012.