Chandigarh

StateCommission

A/220/2023

THE ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

DAVINDER KUMAR - Opp.Party(s)

J P NAHAR ADV.

22 Mar 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[ADDL. BENCH]

 

 

Appeal No.	:	220 of 2023
Date of Institution	:	08.09.2023
Date of Decision	:	22.03.2024

 

 

[1]      The Oriental Insurance Co. Ltd., SCO 46-49, Sector 17, Chandigarh, through its General Manager.

[2]      M/s Raksha Health Insurance, 15/5 Mathura Road, Faridabad – 121003.

Now, both through their Authorized Signatory – Satpal Singh, Deputy Manager and Power of Attorney Holder of The Oriental Insurance Company Limited, Regional Office, SCO 109-111, Sector 17-D, Chandigarh.

…. Appellants

Versus

Davinder Kumar son of Sh. Ram Kishan, Resident of House No. 3536, Sector 37-D, Chandigarh.

….Respondent

 

BEFORE:

MRS. PADMA PANDEY, PRESIDING MEMBER PREETINDER SINGH, MEMBER

 

ARGUED BY:    Sh. J.P. Nahar, Advocate for Appellants.

Sh. Shubham Tandan, Advocate Proxy for Sh. Navjot Singh, Advocate for Respondent.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

1]                This appeal is directed against the order dated 27.07.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/10/2020, in the following terms: -

“11]      In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under: -

i)          to pay claim amount of Rs.4,15,105/- with interest @ 9% p.a. from the date of filing of claim till realization.

ii)         to pay Rs.20,000/- to the Complainant as compensation for causing mental agony and harassment to him.

iii)        to pay Rs.15,000/- to the Complainant as costs of litigation.

12]       This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr. No. (iii) above.”

2]             For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

 

3]                Before the Ld. District Commission, it was the case of the Complainant/Respondent that he availed a Group Health Insurance Policy from Appellant/Opposite Party – Insurance Company on 30.07.2018. At the time of buying the Policy, the Complainant was hale and hearty. However, on 05.11.2018 for the first time during the currency of the Policy, the Complainant had a cardiac complication qua which he was treated and subsequently discharged. The Complainant filed a claim with the Opposite Party to the tune of ₹4,15,105/- but the same was repudiated vide letter dated 15.02.2019 on the ground that as per clause 4.1 of the Policy in case of all the pre-existing disease whether declared or not will only be covered under the policy from 3 years after the inception of the same. Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of Opposite Parties.

 

4]                In the reply filed before the Ld. District Commission, while admitting the factual matrix of the case, Opposite Party No.1 pleaded that the terms & conditions of the Policy were duly explained to the Complainant at the time of proposing the policy and the terms & conditions were also supplied to him.  It was averred that the insured was having history of ailments. As per discharge summary as well as other medical treatment documents of the Complainant he was having history of hypertension as well as other disease like MI etc. and he was on medication etc. Even the Complainant was having kidney related disease as he was suffering from hypertension as well as gross hydroreteronephrosis with markedly thinned out parechma etc. which was not disclosed by him. Hence, the claim of the complainant was rightly repudiated as per terms & conditions. The cause of action set up by the complainant was denied and a prayer for dismissal of the complaint was made.

 

5]                Opposite Party No.2 after initially appearing did not turn up to file reply & evidence thereafter, hence vide order dated 02.02.2021 it was proceeded against exparte

 

6]                After hearing the counsel for the parties and going through the record, the Ld. District Commission allowed the complaint, in the manner, as stated above.

 

7]                Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellants/ Opposite Parties No. 1 & 2.

 

8]                We have heard Learned Counsel for the parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

9]                The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

10]              After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

11]              It is the case of the Appellants that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.  Also, the Ld. District Commission while passing the impugned order lost sight of the fact that the insurance policy was issued to the Complainant based on the proposal form wherein the Complainant stated that all the persons proposed for insurance are in good health and concealed the true condition of his heath. It has been submitted that the policy was in the hands of the Complainant, but he feigned ignorance of the terms & conditions thereof just to wriggle out of the terms of the policy.

 

12]              Per contra, the vital issue which has been emphasized on behalf of the Respondent/Complainant is that the terms & conditions of the policy were not handed over to the Respondent/ Complainant by the Appellants – Insurance Company and in the absence of the Respondent/Complainant being made aware of the same, it is not open to the Appellants to rely upon the exclusionary clauses 4.1 and 4.2 as conveyed vide repudiation letter dated 15.02.2019.  

 

13]              We find from the judgment of the Ld. District Commission that it was the specific contention of the Respondent/Complainant that the terms & conditions in the policy document had not been communicated by the Appellants – Insurance Company as a result of which the terms & conditions of the exclusion were never communicated.

 

14]              The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the terms & conditions containing exclusionary conditions were communicated to the appellant. The Ld. District Commission recorded a categorical finding that the Appellants/OP – Insurance Company has failed to prove on record any documentary evidence that the details terms & conditions were either handed over or explained to the complainant. When the Appellants/Opposite Parties have failed to furnish terms & conditions of the exclusion clause, the same would not be binding upon the policy holder i.e. the complainant. The Ld. District Commission while placing reliance on “Bharat Watch Company  Vs. National Insurance Company”, 2019 (2) Law Herald (SC) Page No. 1225 has rightly came to the conclusion that when the insurer did not furnish the terms & conditions of the exclusion and special conditions to the Complainant, they were not binding.

15]              It is well settled that the company, who is taking specific plea about repudiation of any claim, has to prove that the exclusion clause was explained to the consumers. Once the insurer failed to prove this fact, it cannot take any benefit from such an exclusion clause. The Ld. District Commission has thus rightly held the Appellants guilty of deficiency in service, which which certainly caused loss and harassment to the complainant. No case is made for any interference in the well reasoned findings recorded by the Ld. Lower Commission.

 

16]              No other point was urged, by the Learned Counsel for the parties.

 

17]              It is demonstrable from a reading of the impugned Order of the Ld. District Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

18]              In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. District Commission is upheld.

 

19]              The pending application(s), if any, stand disposed off in terms of the aforesaid order.

 

20]              Certified copies of this order be sent to the parties free of charge.

 

21]              The file be consigned to Record Room, after completion.

 

Pronounced

22.03.2024.

                                                                                                  Sd/-

[PADMA PANDEY]

PRESIDING MEMBER

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

“Dutt”