Complaint filed on: 25-04-2016
Disposed on: 14-07-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.64/2016
DATED THIS THE 14th DAY OF JULY 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
Mahesh.S.V,
S/o. S.S.Venkataswamy,
Aged about 53 years,
R/a No.33, Corporation Road,
Tiptur, Tumakuru District-01
(By Advocate Sri.N.Basavaraj)
V/s
Opposite parties:-
1.Bajaj Allianz Insurance C. Ltd,
Dwaraka Residency, Opp.
Basaweshwara grounds, 1st Floor,
BH Road, Tumakuru
Reptd. by its Manager
2.Customer Service Centre,
Bajaj Allianz Insurance Co. Ltd,
GE Plaza, Airport Road,
Yerawada, Pune -06
Reptd.by its Manager,
3.The Grievance Officer (In-charge)
Bajaj Allianz Insurance Co. Ltd,
GE Plaza, Airport Road,
Yerawada, Pune-06
Reptd.by its Manager
(OP No.1 to 3 by Advocate Sri.N.V.Naveen Kumar)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed by the complainant against the OP Nos.1 to 3, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OPs to refund the claim of Rs.10,964=00 spend towards the medical expenses of complainant for the injury suffered by the complainant in the motor vehicle accident on 25-11-2015 and Rs.40,164=00 towards treatment (Eye Cataract) of S.Nagrani i.e. wife of complainant and to renew the policy and to pay the costs and such other relief as deemed fit, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant has obtained a “Bajaj Allianz Family Care First” policy from 1st OP for a sum of Rs.1,00,000=00 commencing from 28-12-2009. As per the terms and conditions of the policy, the policy covers family members consisting of wife and daughter and he has to pay Rs.4,850=00 for the first three years with small variation and for the second three years Rs.6,500=00 i.e. from 2012. The complainant was regularly paying the premium amount to the 1st OP well in time.
The complainant further submitted that, on 13-11-2014, wife of the complainant Smt.Nagarani.S got her right eye contaract at Narayana Nethralaya, Bengaluru and the total medical expenses was Rs.35,000=00 and out of the said amount Rs.12,000=00 was reimbursed by the said hospital as per terms and conditions of the policy. The complainant has paid premium without default for the year 2015. As per the terms and conditions of the policy, the daughter of complainant was not entitled for benefit from 2015 as she had attained majority. Hence, the complainant has paid less premium of Rs.2,840=00 on 19-1-2015 which covers for the year 2015.
The complainant further submitted that, during the month of May 2015, the 1st OP orally informed the complainant that, the policy was terminated and requested to pay Rs.15,530=00. Hence, on 18-5-2015, the complainant gave a representation to 1st OP to continue the policy as he had paid the entire policy amount. Inspite of the said letter, there was not response from 1st OP, hence another request letter was made by the complainant to 1st OP through RPAD. On 24-8-2015, the complainant received letter from 3rd OP that, the policy has been terminated for a short fall of Rs.345=15 towards premium. Again on 8-9-2015, the complainant was shocked to receive another letter from 3rd OP, there is a balance of Rs.17,673=68 towards premium. Immediately on 14-12-2015 the complainant wrote a letter to 2nd OP asking for clarification with regard to the balance premium of Rs.17,623=00, but there was no reply from the 2nd OP. Once again the complainant wrote a letter to the 1st OP and also to office of the insurance Ombudsman, Bengaluru. The said ombudsman acknowledges the same on 7-10-2015 and the complaint was registered in the office of insurance, Ombudsman, Bengaluru and hearing was fixed on 18-1-2016. On 18-1-2016, the complainant has appeared but did not hold any enquiry and at behest of OPs on 21-1-2016 the complainant received a letter from Ombudsman dated 18-1-2016 stating that the complainant can approach the some other forum for claiming compensation and her petition is dismissed.
The complainant further submitted that, in the meantime, the complainant met with an accident on 25-11-2015 and he took treatment at Balaji Hospital, Tiptur and there was dislocation of his left shoulder and the complainant incurred medical expenses of Rs.10,964=00 for treatment. Hence, the 1st OP is liable to pay the said medical expenses. Further the complainant’s wife got her right eye cataract operated on 21-1-2016 and the complainant had paid Rs.40,300=00 towards medical expenses.
The complainant further submitted that, the complainant was interested in renewing the policy, but in view of illegal termination of the policy, the complainant could not renew. Even now the complainant is ready to pay policy amount for the year 2016 and get the policy renewed. Hence, the present complaint is filed.
3. In response to the notice, the OP No.1 to 3 have appeared through their counsel and filed common version contending interalia as under:
The main and material allegations made in the complaint are all not true, valid and binding on the OPs and the complainant is put to strict proof of those allegations by documentary evidence. At the outset, the present complaint in misconceived misconstrued contrary to the contract between the parties and therefore untenable in law and deserves to be dismissed. The OPs further submitted that, the averment made in the complaint at para no.2 and 4 are partly true and para no.3, 5 and 6 of the complaint are all hereby denied as false and baseless and the complainant is put to strict proof of the same.
The OPs further submitted that, the present complaint is not sustainable for the reasons that the word “Deficiency” as defined in Section 2 (g) of the CP Act, has not application in the facts and circumstances of the present case and the complainant cannot be considered as a consumer as per the provisions.
The OPs further submitted that, the complainant had availed the said policy after fully understanding the features, charges, benefits and terms and conditions thereof and submitted the proposal form duly singed by him without any coercion or force. The proposal of the complainant was accepted strictly in accordance with the mandate of the complainant and the policy bearing no.0144277775 was issued to him. That upon acceptance of the proposals of the complainant, the original policy bond containing express terms and conditions of the policy was sent to his address mentioned in the proposal form and the receipt of the policy document was never been disputed by the complainant. The terms and conditions of the policy document were never challenged by the complainant. The terms and conditions of the said policy are as per the approvals obtained from the Insurance Regulatory Development Authority (IRDA).
The OPs further submitted that, the contract of insurance is an agreement between the proposer and the insurance company where in both the parties to the contract accepts to abide by the express terms and conditions of the contract and it is incumbent upon both the parties to the contract to discharge their respective part of contractual obligations in performance of the contract. The privileges, terms and conditions are specifically and expressly stipulated and agreed by both the parties for a lawfully concluded contract. Hence, the complainant and the OPs are bound by the express terms and conditions of the policy document which is the evidence of contract of insurance. Thus any alleged promises or vague allegations which are not the part of the express terms and conditions of the policy document received by the complainant are neither binding on the OP nor enforceable at law as per the provisions of the Indian Contract Act, 1872. Thus the OPs are bound by the terms and conditions of the contract of insurance under the policy.
The OPs further submitted that, this FCF policy has been issued with a SA of 100000 family size 2A + 1C and CI Rider on life assured, premium has been fixed for the first 3 years. During 1st term renewal, i.e. on 28-12-2012, due to technical issues, premium collected only for LA (Family size 1A basis) with rider basis. This has been identified and corrected from suspense adjustment after the third year payment during the second term of policy. Later, they had accepted the term renewal by considering the system fault and asked for the total outstanding due as per the corrected premium basis against which the complainant has now approached this forum by interpreting the said technical error for his benefit.
The OPs further submitted that, the complainant is trying to take advantage of the technical error which had occurred while calculating the premium amount to make unlawful gain from this OP, which is not in consonance with the agreed terms and conditions of the policy. As on the date, the policy of the complainant is terminated and in view of the technical error while calculating the premium the OPs company has decided to consider the revival of the policy if the PH is paying the short fall for previous years and current year outstanding. Due to the revision in service tax rates during this period, ST rates increased to 15% (ST-14%, Swatch Bharat Cess-05% and Krishi Kalyan Cess-05%) Accordingly, total outstanding will be Rs.32,044=00 (Rs.18,134/- + Rs.13,910/-) to move the FUP date to 28-12-2016 on 2A family size basis for remaining term after last term extension.
The OPs further submitted that, the complainant had the option to go through the terms of the policy bond and if the same were not acceptable to him, then the complainant was provided with the option of 15 days free look period from the date of receipt of the policy as per the policy bond and in accordance to the provision of Section 6 (2) of the IRDA, 2002 regulation to approach the insurer for cancellation of the policy stating the reason, which the complainant has failed to do so. the said option is also provide by the insurance regulator in its guidelines. However, the complainant has at no point in time raised any grievance before the OP. In the absence of any such steps being taken, the complainant is barred from raising any grievance about non awareness or acceptance of the policy terms. The complainant has merely made allegations against the company which are not at all true and seems to be made by the complainant only with the malafide intention to base his illegal claim and gain unlawfully by claiming refund of premium amount. There is no deficiency in service on the part of the OPs. Hence, it is prayed to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry in to the complaint, the complainant and OP No.1 have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents which were marked as Ex-P1 to P72. The 1st OP has produced document which were marked as Ex.R1 and R2. We have heard the arguments of both parties and pursed the documents and then posted the cases for order.
5. Based on the above materials, the following points will arise for our consideration.
1. Whether there was deficiency in service on the part of the OPs as alleged by the complainant?
2. What Order?
6. Our findings on the above points are;
Point no.1: In the affirmative
Point no.2: As per the final order below.
REASONS
7. On perusal of the pleadings of the complaint, affidavit evidence of the complainant, objections of the OPs, it is an admitted fact that, the complainant has taken “Bajaj Allianz Family Care First” insurance policy from the 1st OP for a sum of Rs.1,00,000=00 and the said policy was commencing from 28-12-2009. It is also admitted facts that, the complainant has paid policy premium regularly up to 2015 to the 1st OP. To substantiate the above said facts, the complainant has produced Ex-P1 to Ex-P8. It is also an admitted fact that, on 13-11-2014 the complainant’s wife Smt.Nagarani.S, got her right eye operated for contaract at Narayana Nethralaya, Bengaluru and the total medical expenses was Rs.35,000=00 and out of the said amount Rs.12,000=00 was reimbursed by the said hospital as per the terms and conditions of the policy. So from this evidence of the complainant remains unchallenged, to disbelieve the evidence of complainant, there is no contra evidence, therefore it is proper to accept the contention of the complainant.
8. The main contention of the complainant is that, the complainant had paid policy premium amount without default for the year 2015. As per the terms and conditions of the policy, the Daughter of the complainant was not entitled for the benefits from 2015 as she had attained majority and less premium amount was paid on 19-1-2015 which covers for the year 2015. In the month of May 2015, the 1st OP orally informed the complainant that his policy was terminated and the 1st OP has requested the complainant to pay Rs.15,530=00. In this regard, the complainant wrote letters to the 1st OP enquiring about the payment of Rs.15,530=00. In this regard, the 3rd OP had sent a letter stating that, the policy has been terminated for a short fall of Rs.345.15. Thereafter, on 8-9-2015 the complainant had received one more letter from the 3rd OP stating that, there is a balance amount of Rs.17,673.68 towards premium. Hence the complainant wrote a letter to the 2nd OP asking regarding balance premium amount of Rs.17,623=00 and the OPs have not given any reply. The complainant had approached the Ombudsman on 7-10-2015 and the Ombudsman passed an order dated 18-1-2016 stating that, the complainant can approach some other forum for claiming the compensation and petition is dismissed.
9. On the other hand, the OPs submitted that, the complainant had obtained the policy of Family Size 2A + 1C and C1 Rider on life assured, premium has been fixed accordingly for the first three years. During the first term renewal i.e. on 18-12-2012 due to technical issues, premium collected only for LA with rider basis. This has been identified and corrected during second term of policy. The OPs further submitted that, in view of the technical error while calculating the premium, the OP has decided to consider the revival of the policy if the PH is paying the short fall for previous years and current year outstanding, which is as follows. ST rates increased to 15% (ST-14%, Swatch Bharat Cess – 0.5% and Krishi Kalyan Cess- 0.5%) Accordingly, total outstanding will be Rs.32,044=00 (Rs.18,134=00 + Rs,13,910=00) to move the FUP date to 28-12-2016 on 2A family size basis, for remaining term after last term extension. In this regard, the OPs have not produced any documentary evidence to show that, they have informed the complainant about the dues of premium amount for the previous year and current year for a sum of Rs.32,044=00.
10. As could be seen from the material evidence placed by the complainant i.e. Ex-C10, it shows that, the OPs have not informed about the termination of the policy, only after the complainant checked the policy status, he has came to know about the termination of the policy. After letter correspondences, the complainant came to know about the short fall of the premium amount. So it is clearly shows that, the OPs have identified the problem but not given notice to the complainant. The OPs without intimation terminated the policy. Further the OPs have noticed that, due to technical issues, the premium has collected only for LA (Family Size 1A basis) with rider basis. This has been identified and corrected by the Ops after lapse of two years. The OPs could have rectified the problem in the year 2014 at the time of payment made for cataract right eye operation for sum of Rs.12,000=00 for the complainant’s wife not done so. For the mistake committed by the OPs make the complainant to suffer.
11. Further, the OPs have committed the mistake by accepting the less premium amount from the complainant and kept the premium amount with them without issuing notice to the complainant about short fall of the premium. And the OPs have not given an opportunity to the complainant for the payment of shortage of premium amount. Hence, in the above discussion, we hold that, there is negligence and deficiency in service on the part of the OPs. Hence, the OPs are liable to pay compensation to the complainant. In the complaint, the complainant prays to direct the OPs to refund the claim amount of Rs.10,964=00 spent towards medical expenses for his injury, he has sustained in the motor vehicle accident on 25-11-2015 and Rs.40,164=00 for the eye cataract treatment of his wife Smt.Nagarani. Once the policy was terminated, the question of reimbursement of medical expenses of Rs.10,864=00 and Rs.40,164=00 does not arise. No doubt there is negligence and deficiency in service on the part of the OPs. Hence, it is just and proper to direct the OPs to pay compensation of Rs.10,000=00 and litigation cost of Rs.5,000=00 to the complainant. Accordingly, we answer this point in the affirmative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint is allowed in part.
The OPs are directed to repay the premium amount of Rs.2,800=00 to the complainant within 30 days from the date of this order, failing which, the OPs shall pay the above said amount to the complainant along with 12% interest p.a. from the date of complaint to till the date of realization.
The OPs are further directed to pay compensation of Rs.10,000=00 and litigation cost of Rs.5,000=00 to the complainant respectively.
This is order is to be complied by the OPs within 30 days from the date of this order.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 14th day of July 2017)
LADY MEMBER PRESIDENT
