Complaint No: 275 of 2019.
Date of Institution: 27.08.2019.
Date of order: 08.02.2024.
Rakesh Kumar Son of Sh. Kapil Dev, resident of House No.B-25/19, Qila Mandi, Batala Tehsil Batala and District Gurdaspur. ….........Complainant.
VERSUS
1. The Manager, Bank of Baroda, Branch G.T. Road, Batala District Gurdaspur. Pin Code – 143505.
2. Sh. Jaswinder Singh, Agent, Bank of Baroda, Branch Batala Tehsil Batala and District Gurdaspur. Pin Code – 143505.
3. The Manager, Max Bupa Health Insurance Limited, Plot No. 88, 2nd Floor, Kunal Tower, Mall Road, Opposite Axis Bank, Ludhiana (Punjab). Pin Code – 141015.
….Opposite parties.
Complaint Under section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.P.C. Sharmal, Advocate.
For the Opposite Party No.1: Sh.Inderjit Vaid, Advocate.
For the Opposite Party No.3: Sh.Sachin Mahajan, Advocate.
Opposite Party No.2 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rakesh Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Bank of Baroda Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant and his wife Lalita Devi having joint Account No.12580100009169 in the bank of the OP No. 1. It is pleaded that on dated 22.01.2019, the complainant alongwith his wife Lalita Devi and his son Sagar were got insured by the OP No. 3 through the OP’s No. 1 and 2. The OP No. 1 transfered Rs.721/- each in the account of the OP No. 3 from the account of the complainant. The entries are made in bank statement of A/c No. 12580100009169. The complainant availed the services of the opposite parties. Hence, the complainant is consumer of the opposite parties. It is further pleaded that on dated 23.04.2019, Lalita Devi i.e. wife of the complainant was attacked on brain and she was brought to K.D. Hospital Majitha Road, Amritsar for treatment. On seeing the critical condition of the patient, the Doctors from K.D. Hospital Amritsar referred Lalita Devi to Capital Hospital, Jalandhar. She got admitted in Capital Hospital, Jalandhar on dated 23.04.2019 where so many tests were conducted and during treatment Lalita Devi died on dated 25.04.2019. The complainant incurred more than Rs.2,00,000/- on the treatment of his wife Lalita Devi, but the complainant claimed for Rs.1,00,000/- only from the opposite parties. It is further pleaded that when any person is got insured, it is the responsibility of the OP No. 3 to get treatment and the OP’s No. 1 and 2 can not escape from their responsibility. The complainant requested the opposite parties to pay expenditure of treatment which the complainant paid from his own pocket, but till today the opposite parties did not listen to the complainant nor they take any action for giving the expenditure incurred by the complainant on the treatment of his wife Lalita Devi, who was insured by the opposite parties. It is further pleaded that the complainant also sent a Legal Notice dated 21.06.2019 to the opposite parties through his counsel, but the opposite parties have not given any heed to the legal and genuine request of the complainant. It is further pleaded that it is a case of clear cut deficiency of service on the part of the opposite parties who have not paid the expenditure incurred by the complainant on the treatment of his wife which also amounts to unfair trade practice on the part of the opposite parties. It is further pleaded that the complainant, his wife deceased Lalita Devi and his son Sagar were fully insured by the opposite parties, hence the opposite parties are liable for full claim for the expenses incurred by the complainant on the treatment of his wife decreased Lalita Devi. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.1,00,000/- to the complainant alongwith interest @ 12 % P.A. from the date of its due till its realization and opposite parties may be burdened with a cost of Rs.30,000/- for mental harassment and torture and Rs.10,000/- as litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in the present form. The complainant is estopped by his own act and conduct and the complainant has suppressed the material and vital facts from this Hon'ble Commission and as such, the complainant has not come to the Hon'ble Commission with clean hands. It is pleaded that the matter of the fact is that the complainant i.e. Rakesh Kumar and his wife Lalita Devi have got a joint Account No. 12580100009169 with the answering OP No. 1 since 01.02.2011. The OP No. 2 i.e. Jaswinder Singh is the agent of the OP No. 3 and not an agent of the answering OP No. 1 in anyway. It is further pleaded that on dated 22.01.2019, the complainant alongwith the OP No. 2 came in the bank premises of the answering OP No. 1 for health insurance of the complainant and his wife etc. and for this purpose, the OP No. 2 filled the requisite documents on behalf of the complainant and the complainant instructed the answering OP No. 1 to transfer the requisite amounts of premium from his joint account with his wife Lalita Devi. It is further pleaded that on the instructions of the complainant as well as on his signing the debit voucher, the answering OP No. 1 transferred the said amount from the joint account of the complainant and his wife Lalita Devi to the account of the OP No. 3 on dated 22.01.2019. It is further pleaded that so, for the documents are concerned those were to be filled and submitted by the OP No. 2 to the OP No. 3. Hence, there is no privity of contract among the complainant and the OP’s No. 2 and 3 qua the policies of health insurance. Hence, there is no deficiency in service on the part of the answering OP No.1.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order dated 26.11.2019.
5. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the very outset the answering opposite party No. 3 denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent they are expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. It is pleaded that the complaint under the reply is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such the complaint is liable to be dismissed on this ground alone and the complainant does not qualify the ingredients of a valid complaint as envisaged in section 2 (c) of the Consumer Protection Act, 1986, as such the complaint is liable to be dismissed on this ground alone. The complainant has created a false story in their complaint to mislead this Hon'ble Commission by concocting and distorting the facts and circumstances of the present case, hence, the present complaint is liable to be dismissed. It is further pleaded that the present complaint has been filed by the husband of Deceased i.e. Smt. Lalita Devi whereby it is alleged that "Complainant, his wife Smt. Lalita Devi (since deceased) and his son Sagar were fully insured through a health insurance policy with the answering opposite Party No. 3, however, it is important to mention here that, though the complainant seems to have approached the opposite party No. 1 i.e. bank and by showing his willingness to get himself and his family insured, however, the required documents for the purpose of applying for insurance policy were neither submitted by the complainant to the bank nor to the answering opposite party. It is further pleaded that though the answering opposite party received an amount of Rs.721/- from the Bank, but did not receive any proposal form or member enrollment form or any other relevant documents. It is important to mention here that, it was communicated by the answering opposite party to the opposite party No. 1 i.e. Bank of Baroda regarding required documents, but all in vain. It is further pleaded that applying for health insurance policy contains a procedure which is to be followed which is as under:-
- It is checked, whether the person to be insured is eligible for applying for health insurance policy.
- It is checked, whether the person to be insured has all the requisite documents (such as age proof, income proof & residential proof known as "KYC Documents") for the purpose of applying for the policy.
- Person to be insured has to fill up a proposal/enrolment form for applying for an insurance policy.
- Once proposal/enrolment form is filled, premium is paid to the insurance company. After payment of the premium, the proposal/enrolment form is scrutinized and medical tests are conducted (if applicable).
- After evaluating the documents and medical tests reports, Health Insurance/Group Insurance Policy is issued.
It is further pleaded that none of the aforesaid formalities were ever completed by the complainant or by the opposite party No. 1 and his wife and the documents which are appended by the complainant with instant complaint are only the statement of account which provides entries pertaining to the deduction towards premium from his bank account, however, no policy was ever issued by the answering opposite party due to lack of documentation which is a necessary requirement for issuance of a health insurance policy. It is further pleaded that insurance is contract between the both the parties and it needs to be completed within the lifetime of the insurer and no proposal form/member enrollment form was ever filled by the deceased & even the complainant failed to produce on record any authentic document which could prove that there was any existing insurance policy which was ever issued by answering opposite party within life time of deceased. It is further pleaded that in the present case the deceased had expired when there was no health insurance policy in force and as such there is no concluded contact between the answering opposite party and the complainant or her wife (deceased), hence, the complainant is not entitled for any benefit as alleged by him in the complaint. It is further pleaded that the present complaint is thus presented, ridden with allegations of deficiency in service and unfair trade practices, but the present complaint miserably fails to co-relate the facts and incidents in order to prove any deficiency in service and unfair trade practice. The complainant fail to prove any act as alleged in the whole of the complaint that points out any deficiency in service and unfair trade practice on the part of the answering opposite party No. 3. It is further pleaded that the answering opposite party No. 3 was always willing and ready to refund the amount received which is reflecting in the account statement of the complainant alongwith bank interest. In the absence of the bank account details, the answering opposite party No. 3 was not able to refund the amount, and the answering opposite party No. 3 did not have the bank details from where the amount was credited i.e. details regarding customer name, customer account number & IFSC code for refund processing into respective customer account.
On merits, the opposite party No.3 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
6. Learned counsel for the complainant has tendered into evidence affidavit of Rakesh Kumar, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-26.
7. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Rakesh Kumar, (Branch Manager of opposite party No. 1) as Ex.OPW-1/A alongwith other document as Ex.OP-1/1 alongwith reply.
8. Learned counsel for the opposite party No.3 has tendered into evidence affidavit of Ms. Chandrika Bhattacharya, (Chief Manager – Legal, Max Bupa Health Ins. Co. Ltd., New Delhi) as Ex.OP-3/1 alongwith other document as Ex.OP-3/2 alongwith reply.
9. Rejoinder not filed by the complainant.
10. Written arguments filed by the complainant and opposite party No.3 but not filed by the opposite party No.1.
11. Counsel for the complainant has argued that complainant and his wife were having joint account with the opposite party No.1 and on 22.01.2019 the opposite parties No.1 and 2 purchased policy of insurance from opposite party No.3. It is further argued that premium was transfer from the account of the complainant. On 23.04.2019 wife of the complainant suffered brain injury and was evacuated to K.D. Hospital Amritsar and thereafter to Capital Hospital Jalandhar under treatment and various tests were conducted. It is further argued that complainant had spent more than Rs.2,00,000/- on the treatment of his wife and had claimed Rs.1,00,000/- from the opposite parties as insurance amount. The complainant had lodged claim with the opposite parties but the opposite parties refused to pay the claim without any justification which amounts to deficiency in service on the part of the opposite parties.
12. On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 has nothing to do with the opposite parties 2 and 3 and opposite party No.1 had only transferred Rs.721/- each in the account of opposite party No.3 and except that have nothing to do with the matter involved. It is further argued that there is no contract between the complainant and opposite party No.1 and deficiency in service if any is of the opposite parties No.2 and 3 and as such complaint is liable to be dismissed.
13. Opposite party No.2 remained exparte.
14. Counsel for the opposite party No.3 has argued that although opposite party No.3 received premium from the account of the complainant but the opposite party No.3 had not received any proposal form or member enrolment form or other relevant documents as before issuance of the policy of insurance the opposite party No.3 has to take whether the person to be insured is liable for apply for health insurance policy, documents relating age proof, income proof, KYC documents, insured has to fill up proposal form and once proposal form is filled premium is paid to the insurance company and after payment of premium form is scrutinized and medical tests are conducted and after evaluating the documents only then the policy is issued but in the present case except for receiving premium no other formality was completed by the complainant and the bank and as such there is no deficiency in service on the part of the opposite parties no.3.
15. We have heard the Ld. counsels for the complainant and opposite parties No.1 and 3 and gone through the record.
16. To prove his case complainant has placed on record his affidavit Ex.CW-1/A, copy of statement of account Ex.C1, copy of death certificate of Lalita Devi Ex.C2, copy of legal notice Ex.C3, copies of postal receipts Ex.C4 to Ex.C6, copies of medical expenditure bills Ex.C7 to Ex.C26 whereas opposite party No.1 has placed on record affidavit of Rakesh Kumar Branch Manager Ex.OPW-1/A, copy of statement of account Ex.OP-1/1, opposite party No.3 has placed on record affidavit of Chandrika Bhattacharayya Chief Manager (Lgal) Ex.OP-3/1, copy of letter of authorization Ex.OP-3/2.
17. It is admitted fact that complainant and his wife Smt.Lalita Devi were having joint account number 12580100009169 with the opposite party No.1. It is further admitted fact that opposite party No.1 had transferred Rs.721/- each from the account of the complainant three times to the account of opposite party No.3 for purchase of health policy. It is further not disputed that wife of the complainant Smt.Lalita Devi suffered brain injury and remained admitted in hospital from 24.04.2019 to died on 25.04.2019 and expenditure was paid by the complainant form his own pocket. The only issue for adjudication is whether the failure to pay the medical expenditure charges by the opposite parties amounts to business malpractice or deficiency in service.
18. Perusal of statement of account Ex.OP-1 shows that amount of Rs.721/- has been transferred to the account of opposite party No.3 on 22.01.2019 as insurance premium. Perusal of final bill Ex.C17 shows that complainant had spent amount on the treatment of his wife and she remained admitted in the hospital from 23.04.2019 to 25.04.2019. The total expenditure incurred by the complainant as per bills Ex.C7 to Ex.C26 is Rs.88,908/- and since it is proved on record that except transfer of premium no further action was taken by opposite party No.3 for issuance of the policy of insurance. The only excuse taken by opposite party no.3 is that opposite party No.3 has not received proposal form and other documents mentioned therein but opposite party No.3 has not filed affidavit of opposite party No.2 against whom there are specific allegations of being agent and if opposite party No.2 was acting as agent of opposite party No.3 in that case it was the responsibility of opposite party No.2 to get the proposal form filled and get the other documents completed but in the present case the bank and the insurance company both had slept over the matter after transfer of premium from the account of the complainant. The opposite party No.3 has not been able to prove that the opposite party No.3 aver issued any notice to the complainant or to the bank for completion of formalities or that complainant has not completed the formalities. The deficiency in service and business malpractice on the part of opposite party No.3 is fully proved on record and since it is proved on record that no policy of insurance was issued by the opposite party No.3 but the opposite party No.3 has not refunded the premium received so far with excuse that they were not having account details of the complainant but said plea is not tenable as the premium can be refunded through a payees account cheque. Accordingly, deficiency of service and business malpractice is fully proved on record by the opposite parties No.2 and 3.
19. Accordingly, present complaint is partly allowed and opposite parties No.2 and 3 are directed to pay damages of Rs.88,908/- as per bills Ex.C7 to Ex.C26 alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order by the opposite parties jointly and severally.
20. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
21. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 08, 2024 Member.
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