SMT. RAVI SUSHA: PRESIDENT

Complainant filed  this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite parties to pay Rs.1,25,000/- the claim amount together with compensation Rs.1,00,000/- alleging deficiency in service on the part of 1^st opposite party.

            Brief facts of the case are that

Complainant is the policy holder of Apollo Munich Health Insurance, holding   ID No. EA 00539321 under the instruction of 2^nd OP who is the corporate agent of the 1^st OP on 13/01/2017.  On 21^st of May 2020 complainant admitted in Indira Gandhi   co-operative hospital Thalassery were in complainant faced Rs.20,000/-  as hospital expense.  Complainant made an oral claim but which is not honored. On 07/06/2020 complainant admitted in Meithra hospital Kozhikode in which the complainant faced around Rs.1,50,000/- as hospital expense.  As per the direction from the 2^nd OP, complainant submitted all hospital bills and other documents relating to his treatment.  After some days the complainant received a telephonic information that the claim made by the complainant is rejected by the 1^st OP.  Complainant is not a defaulter as per the norms of the insurance policy.  The act of 1^st and 2^nd OP is violating the provisions of service deficiency U/s 12 of Consumer law.  Further, submitted that the 1^st OP having the liability to meet the claim of the complainant and the 2^nd OP who is the registered advisor of the 1^st OP is also vicariously liable to meet the claim of the complainant.  The OP did not discharge the liability so far, in spite of repeated demands and notice.  Hence this complaint.

            After receiving notice 1^st OP remained absent and not contested the case.  Hence OP No.1 was declared as ex-parte and the case was proceeded against him.

            OP No.2 filed version stating that the role of this OP being the corporate agent of the 1^st OP is to canvas customers and to collect premium on behalf of the 1^st OP and to perform renewal of the policies. There is no role in processing the claim of the customers and rejecting or allowing the claim of the customers of the 1^st OP.  The 1^st OP alone is solely responsible of processing the claim of the customers and either rejecting or allowing the claim of the customer.  It is admitted that after receipt of the documents from the complainant, this OP had forwarded the documents to the 1^st OP for processing the claim of the complainant on 30/06/2020.  The 1^st OP had received the documents as early as on 17/07/2020 which was ascertained by the 2^nd OP by tracking the id RL8988410491N.  2^nd OP had sent an e-mail on 05/08/2020 to the 1^st OP but there was no response.  2^nd OP had sent another e-mail on 13/08/2020 requiring the 1^st OP to look into the claim matter of the complainant.  In the said e-mail the 1^st OP had acknowledged the receipt and informed the 2^nd OP that the matter requested in the e-mail would be processed within 5 working days from 13/08/2020, but not replied so far.  This OP has not right to process the claim of the complainant.   Being an agent, this OP has not committed any default.  The fact that this OP had collected the application from the complainant and thereafter sent several mails to the 1^st OP clearly goes to show that this OP had extended gratuitous service to the complainant.  2^nd OP has no authority over the 1^st OP to direct to act in any manner.  There is no deficiency of service on the part of this OP.  This OP has no privity of contract with the complainant.  1st OP alone is having privity of contract with the complainant.  The 1^st OP alone received consideration from the complainant in the above referred insurance contract.  This OP submits that there is no specific prayer in the complaint against this OP and therefore on that ground also this complaint is liable to be dismissed against this OP.  Hence, prayed for the dismissal of complaint against OP2.

            Complainant and OP No.2 led their evidence to establish their contentions.  Complainant has filed his chief-affidavit and documents.  He has been examined as Pw1 and marked the documents as Ext.A1 to A10.  The manager of 2^nd OP has filed his chief affidavit and documents.  He was examined as Dw1 and marked the documents as Ext.B1 to B3.  After that the learned counsels of complainant and OP No.2 made oral argument and also filed written argument notes.

            We have heard the learned counsel of the parties and have gone through the record.

            Complainant’s allegation is that there is deficiency in service from the 1^st OP.  Further, alleged that as 2^nd OP is the corporate agent of the 1^st OP, is vicariously liable for the action of the 1^st OP.

            On the other hand OP No.2 submitted that there is no deficiency in service on the part of 2^nd OP.  Further submitted that though OP No.2 has no duty to receive the claim application of the complainant and forward to OP No.1, they received the claim application of the complainant and forwarded it to the 1^st OP.  The complainant  then approached OP2 with a grievance that he did not receive any answer from the 1^st OP, who is bound to process the claim application of the complainant.  Upon hearing such a grievance, the 2^nd OP had rendered a gratuitous service by sending an e-mail  to the 1^st OP.  The said E-mail is Ext.B1.  Since 2^nd OP did not receive any reply, the 2^nd OP had sent another e-mail which is marked as Ext.B2.    The 1^st OP had issued a reply e-mail which is Ext.B3.  As per Ext B3, 1^st OP informed the 2^nd OP that the claim application would be processed in 5 days.  The above aspects clearly goes to show that the 2^nd OP had done various gratuitous services to the complainant.

            On perusal of Ext.B1 to B3 it is revealed that OP No.2 has sent e-mails to the 1^st OP, for getting the claim amount to the complainant. During cross-examination of Pw1 by OP No.2, Pw1 admitted that OP No.2 had sent all the documents in connection with claim presented by him to OP No.1.  Further admitted that in the reply letter sent by OP No.1 to OP No.2  dated 13/08/2020, the documents were admitted. 

            The question to be decided is whether there is deficiency in service on the part of OP No.1 and if so whether there is vicarious liability vested on OP No.2?

            With regard to OP No.1, it has not contested the case.  Ext.B1 to B3 reveal that complainant has Health Insurance policy with OP No.1 and the policy was in effective during the treatment in dispute; availed by the complainant from Meitra Hospital Ext.A8 series shows that he has incurred Rs.1,50,000/- towards treatment expense.  Here it can be seen that OP No.1 has not sent any repudiation letter to the complainant stating the reason for rejection of his claim.  That itself is a deficiency in service on the part of Insurance Company.  Further Ext.A3 and A4 shows that complainant has sent Advocate notice to OP No.1 regarding claim procedure.  Through Ext.A1 to A10 complainant has proved his allegation against OP No.1.   Here since OP No.1 has neither filed version nor contested the case of the complainant, we are constrained to believe the allegation of the complainant against OP No.1.  Hence we are of the view that there is deficiency in service on the part of OP No.1.

            With regard to OP No.2, there is no dispute that OPNo.2 bank is the corporate agent of OPNo.1 Insurance Company and also complainant joined the Health Insurance under the instruction of OP No.2 and OP No.2 collected premium form the complainant on behalf OP No.1.  It is also a fact that OP No.1 is the party for processing the claim of the customers.  From the evidence oral as well as documentary Ext.B1 to B3, it is revealed that OP No.2 has done their duty by sending repeated e-mails to OP No.1 for getting the Insurance claim of the complainant.  Here since OP No.2 bank is an agent of OP No.1 Insurance Company and as there is no deficiency in service or fraud committed by OP No.2, there is no vicarious liability on the part of OP No.2.

            In the result complaint is allowed in part.  Opposite party No.1 is directed to pay Rs.1,25,000/- to complainant.  Opposite party No.1 is further directed to pay Rs.25,000/- towards compensation for the mental agony and pain  happened to the complainant due to the deficiency in service on the part of Opposite party No.1.  The order shall be complied by opposite party No.1 within one month from the date of receipt of the order.  Failing which the awarded amount Rs. 1,25,000+25,000 carries interest @ 9% per annum from the date of order till realization.  Complainant can execute the order as per provisions in Consumer Protection Act 2019.

Exts.

A1- Policy certificate

A2- Endorsement from Canara Bank dated 20/06/2020

A3-Lawyer notice dated 09/09/2020

A4-Postal receipt

A5- E-mail copies dated 05/08/2020

A6- E-mail dated 13/08/2020

A7- Reply e-mail dated 13/08/2020

A8- Series of bill (Discharge summary)

A9- Lab report (Meithra hospital)

A10-Deposit receipt

B1- E-mail print out dated 05/08/2020

B2- E-mail print out dated 13/08/2020

B3-Reply of Ext.B2 e-mail

Pw1-Complainant

DW1- Witness of OP2

      Sd/                                                                                 Sd/                                                      Sd/

PRESIDENT                                                                 MEMBER                                            MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar