STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Mrs. Santosh Bansal, W/o Sh. Krishan Lal Bansal, R/o H.No.1008, Sector 9, Panchkula.

……Appellant/complainant

V e r s u s

1. Aviva Life Insurance Company India Ltd., Head Office: Aviva Tower, Sector Road, Opposite DLF Gold (infact Golf) Course, Phase –V, Sector 43, Gurgaon-122003, through its MD.

2. Punjab and Sind Bank, SCO No.62, Sector 26, Chandigarh, through its Branch Manager. (Corrected vide order dated 31.08.2012)

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Hitender Kansal, Advocate for the appellant.

              Sh.Sandeep Suri, Advocate for respondent no.1

              Respondent no.2 exparte.

PER  JUSTICE SHAM SUNDER, (RETD.), PRESIDENT

              This appeal is directed against the order dated 23.07.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the Consumer Complaint bearing No.28 of 2012, in default of appearance of the complainant (now appellant).

2.             Miscellaneous Application no.73 of 2012, for setting aside the order dated 23.07.2012, was also filed by the complainant, which too was dismissed by the District Forum, vide order dated 03.08.2012, on the ground that it had no Jurisdiction, to review its own order.

3.             The facts, in brief, are that the complainant purchased Aviva Life Insurance Health Policy No.NHP 3069387, from Opposite Party No.2, by paying a premium of Rs.15,628/-, vide cheque no.561891 dated 30.03.2011, for the sum assured  of Rs.1,50,000/-. Proposal form No. NUP 14285722, Annexure C-1, was got filled in and signed by the complainant, on 31.03.2011. The complainant was examined by the medical expert of the Opposite Parties, and medical examination report, in respect thereof, was prepared on 02.04.2011. The first premium receipt was issued by the Opposite Parties on 19.04.2011. It was stated that on 14.07.2011, the complainant suffered from acute onset of chest pain, radiating to left arm with sweating, whereupon, she was taken to Alchemist Hospital, Panchkula, for evaluation and management. The complainant was admitted in CCU, with acute AWMI, for which she was managed. Anticoagulants, Antiplatelets, statins and LMWH were given. CAG was conducted, through her right femoral route, which revealed Single Vessel disease. She was advised for PTCA/Stenting to LAD. PTCA/Stenting to LAD was successfully done, through her right femoral route, on 14.07.2011, and, ultimately, she was discharged on 16.07.2011. For the aforesaid treatment, the complainant incurred a sum of Rs.2,33,741/-, vide bill No.147595/FN-11-1874 dated 16.07.2011. The complainant, accordingly, lodged claim, with the Opposite Parties, seeking reimbursement of the amount aforesaid, incurred by her, on her treatment, under the said Policy. The Opposite Parties, however, vide letter dated 05.10.2011, repudiated the claim of the complainant, on the ground, that the claim fell within the waiting period of 90 days, as per Article 3-D-ii of the Policy, as the date of commencement of Policy was 19.04.2011, and the complainant was hospitalized on 14.07.2011, for the treatment aforesaid, hence no benefit was payable to her. It was further stated that since the premium of the Policy was paid on 30.03.2011, the proposal form was got filled in and signed by the complainant, on 31.03.2011, the complainant was got medially examined by the Doctor of the Opposite Parties, and the medical report was submitted on 02.04.2011, it was obligatory on the part of the Opposite Parties, to issue the Insurance Policy, immediately, but they (Opposite Parties), slept over the matter, and issued the receipt of premium on 19.04.2011, and, thereafter, by assuming the date of commencement of Policy, as 19.04.2011, the Opposite Parties, illegally and arbitrarily, repudiated the claim aforesaid, on the ground that the claim fell within the waiting period of 90 days, from 19.04.2011, as per Article 3-D-ii of the Policy. It was further stated that the date of commencement of risk started from the date, the amount of premium was paid on 30.03.2011, or the date, the proposal form was filled in, and signed by the complainant, i.e. on 31.03.2011. It was further stated that, in this manner, the waiting period of 90 days, completed on 30.06.2011, whereas, the claim of the complainant arose on 16.07.2011, the date when she was discharged from the hospital. It was further stated that, thus, the complainant was entitled to the reimbursement of claim amount, referred to above. It was further stated that the condition of waiting period of 90 days of date of  commencement, imposed in the Policy, was neither mentioned in the proposal form, nor it was explained to the complainant, at the time, when the proposal form was got filled in, and signed from the complainant, by the Opposite Parties. It was further stated that the Opposite Parties, were many a time asked for reimbursement of the claim amount, incurred by the complainant, on her treatment, but to no avail. It was further stated that the aforesaid acts of Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the amount of Rs.1,50,000/-,  i.e. the sum assured (as the expenditure actually incurred, exceeded the sum assured), alongwith interest @18% P.A.; compensation for mental agony and physical harassment, to the tune of Rs.50,000/-, alongwith interest @18% P.A.; and cost of litigation, to the tune of Rs.11,000/-.

4.             The complaint was admitted, vide order dated 24.01.2012 and notice was ordered to be issued to the Opposite Parties, for 19.03.2012,  by the District Forum.  On 19.03.2012, memo of appearance, on behalf of Opposite Party No.1, was filed. Summons sent for the service of Opposite Party No.2, was received back undelivered, with the remarks “wrong address”. Since  Opposite Party No.2, was not served, for want of correct address, and, as such, the complainant was directed to  furnish its  correct address.  However, Opposite Party No.1, was directed by the District Forum, to file written statement and evidence on 07.05.2012. On 07.05.2012, despite calling the case several times, none put in appearance, on behalf of Opposite Party No.1. Accordingly, Opposite Party No.1, was proceeded against ex-parte. At the same time, the Counsel for the complainant asserted that the address of Opposite Party No.2, already supplied, at the time of filing the complaint, was correct. The complaint was adjourned to 29.05.2012, for issuance of fresh notice to Opposite Party No.2. On 29.05.2012, again the notice sent for the service of Opposite Party No.2, was received back, undelivered, with the remarks “wrong address”. Fresh address of Opposite Party No.2, was filed, by the Counsel for the complainant, on that date, and the case was adjourned to 23.07.2012, for issuance of fresh notice for the service of Opposite Party No.2.  On 23.07.2012, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed in default of her appearance, by the District Forum.       

5.             Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.

6.             Initially, S. Jagjit Singh Khubber, CTO, Punjab and Sind Bank, Sector 26, Chandigarh, duly authorized representative on behalf of respondent no.2, put in appearance, but, thereafter, none put in appearance, on behalf of respondent no.2, despite a number of calls having been given to the appeal, as a result whereof, respondent no.2, was proceeded against exparte. 

7.             We have heard the Counsel for the appellant, respondent no.1, and have gone through the record of the case, carefully.

8.             The Counsel for the appellant, submitted that, on 29.05.2012, though the complaint case was adjourned to 23.07.2012, for issuance of fresh notice to Opposite Party No.2, yet the Counsel for the complainant i.e. Sh. Chetan Gupta, Advocate, inadvertently, noted down the wrong date as 27.07.2012, instead of the actual date i.e. 23.07.2012, in the diary and  on the brief of the case. He further submitted that before filing the appeal, miscellaneous application no.73 of 2012, under order 9 Rule 13, was also filed, before the District Forum, for setting aside the order dated 23.07.2012, but the same was dismissed by  it (District Forum), on the ground that it had no Jurisdiction, to review its own order. He further submitted that when he received the order dated 23.07.2012, passed by the District Forum (II), U.T. Chandigarh, he came to know that the complaint had been dismissed in default of appearance of the complainant. He further submitted that it was on account of noting down the wrong date, by the Counsel aforesaid, in the complaint, that neither the complainant, nor her Counsel could appear on 23.07.2012, before the District Forum. It was further submitted that the absence of the complainant or her Counsel on 23.07.2012, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that the order of the District Forum, being illegal, is liable to be set aside.

9.             On the other hand, the Counsel for respondent no.1, submitted that the absence of the complainant(now appellant) on 23.07.2012, in the District Forum, when the complaint was fixed for the service of Opposite Party No.2, was  intentional and deliberate. He further submitted that the complainant has the remedy of filing a fresh complaint, on the same cause of action. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.  

10.           After giving our thoughtful consideration, to the rival contentions, advanced  by the Counsel for the appellant, respondent no.1 and, on going through the  record,  we are of the  considered opinion, that the appeal deserves  to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter.  As stated above, the complaint was admitted vide order dated 24.01.2012 and notice was ordered to be issued to the Opposite Parties, for 19.03.2012,  by the District Forum.  On 19.03.2012, memo of appearance, on behalf of Opposite Party No.1, was filed. Notice sent for the service of Opposite Party No.2, was received back undelivered, with the remarks “wrong address”. Since Opposite Party No.2, was not served, for want of correct address, and, as such, the complainant was directed to furnish its  correct address. However, on behalf of Opposite Party No.1, its Counsel appeared and he was directed by the District Forum, to file written statement, and evidence on 07.05.2012. On 07.05.2012, despite calling the complaint several times, none put in appearance, on behalf of Opposite Party No.1. Accordingly, Opposite Party No.1, was proceeded against exparte. At the same time, the Counsel for the complainant asserted that the address of Opposite Party No.2, already supplied at the time of filing the complaint, was correct. The complaint was adjourned to 29.05.2012, for sending fresh notice to Opposite Party No.2. On 29.05.2012, again the notice sent for the service of Opposite Party No.2, was received back, undelivered, with the remarks “wrong address”. Fresh address of Opposite Party No.2, was filed, by the Counsel for the complainant, on that date, and the case was adjourned to 23.07.2012, for issuance of fresh notice for the service of Opposite Party No.2.  The complaint was, thus, at the initial stage, as no reply and evidence, till 23.07.2012, had been filed by the Opposite Parties. On 23.07.2012, no effective proceedings were required to be conducted, as the complaint had only been adjourned to that date, for the service of the Opposite Party No.2. Alongwith the Memorandum of Appeal, an affidavit of Sh. Chetan Gupta, Counsel for the complainant, who appeared on 29.05.2012, before the District Forum, in the aforesaid Consumer Complaint, was also filed, wherein he stated that he wrongly noted down the date as 27.07.2012, instead of 23.07.2012. He also submitted alongwith the Memorandum of Appeal, copies of the brief and diary entries of Sh. B.L. Sharma, Counsel for the complainant, annexures R2 and  R-3 dated 27.07.2012. Thus, the absence of the complainant or her Counsel on 23.07.2012, was neither willful, nor intentional nor deliberate.        

11.           It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. Since, on 23.07.2012, the complaint was at the preliminary stage, for the service of Opposite Party No.2, and Opposite Party No.1, was already proceeded against ex-parte, the District Forum could adjourn it, to some other date, for the purpose, for which it was fixed on 23.07.2012.  No doubt, there was negligence, on the part of the Counsel for the complainant, as he did not confirm the date, which was given, in the complaint, on 29.05.2012. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the parties are determined, by one Forum, on merits, one way or the other. In this view of the matter, the order impugned is liable to be set aside. 

12.           On account of the inadvertence or negligence of the complainant or her Counsel, the delay in the disposal of the complaint, on merits, was caused.  According to Section 13 (3A) of the Act, every complaint is required to be decided, within three months, from the date of appearance of the Opposite Parties, except the one, in which the goods are required to be  sent to the Laboratory, for examination. In that event, the complaint is required to be decided, within a period of 5 months, from the date of appearance of the Opposite Parties.  The complaint had been admitted on 24.01.2012. A period of three months, has already lapsed, much earlier. For causing delay, in the disposal of the complaint, on merits, the appellant is required to be burdened with costs.

13.           The Counsel for respondent no.1, however, submitted that, the appellant/complainant, has the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Counsel for respondent no.1, in this regard, does not merit acceptance. Since, the complaint was dismissed, in default of appearance of the complainant, on 23.07.2012, she has availed of the legal remedy of filing the instant appeal, against the said order. Once, she chose the remedy, which was available to her, by way of filing an appeal, against the order dated 23.07.2012, it would not be, in the fitness of things, to direct her to withdraw the appeal, and file a second complaint, on the same cause of action. The submission of the Counsel for respondent no.1, in this regard, being devoid of merit, stands rejected.

14.           For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore  the same, to its original number, proceed further,  from the stage, at which, it was dismissed in default  of appearance of the complainant, and decide the same, on merits, in accordance with the provisions of law.  However, the appellant/complainant is burdened with costs of Rs.3000/- for causing delay, in the disposal of complaint on merits. The payment of costs to Opposite Party No.1, shall be a condition precedent. 

15.           The parties are directed to appear, before the District Forum (II) on 12.11.12, at 10.30 A.M., for further proceedings. 

16.           The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date fixed.

17.           Certified copies of this order, be sent to the parties, free of charge.

18.           The file be consigned to the Record Room, after due completion.

Pronounced.

November 1, 2012                                                        

                                         Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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