Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that Satpal son of Diwan Chand (father of the complainant) was holding one Health Policy bearing No. 2952200892154902002 valid for the period 12.11.2018 to 1111.2020 of Opposite Party with sum assured of  Rs.3,60,000/- and during the tenure of said policy,  the policy holder also purchased one Topup policy bearing No. 256520221225200000 valid upto 09.06.2020 from the Opposite Party for sum assured of Rs.12 lakhs. Further alleges that before the  issuance of the said policy, the Opposite Party got conducted the medical examination upon Satpal policy holder from their own authorized doctor at Amritsar. In the policy, the complainant was nominee of Satpal policy holder. Suddenly, on 20.12.2018 policy holder Satpal fell ill due to Dengue fever  and was admitted in Shakuntla Hospital, Kot Ise Khan where he remained admitted till 27.12.2018 and spent Rs.45,200/- on his treatment.  Again on 3.6.2019 policy holder admitted in Satyam Hospital & Trauma Centre, Jalandhar where he remained admitted till 5.6.2019 from where he transferred to Aggarwal Gut and Liver Super Speciality Centre, Jalandahr and remained there upto 14.06.2019 where he spent Rs.43,066/- and Rs.1,67,787/-. Lateron, due to health problem, the policy was got admitted in Dayanand Medical College & Hospital, Ludhiana on 17.06.2019 where he spent Rs.4,50,782/-. After that, the complainant lodged the claim for the reimbursement of the medical expenses, but the Opposite Parties only paid Rs.3,60,000/- i.e. part payment and retained the balance medical expenses bill amounting to Rs.3,46,835/- as well as Rs.30,000/- spent on account of bed charges for 30 days.  The complainant  approached the Opposite Party time and again for the reimbursement of his  remaining genuine remaining medical claim, but  the Opposite Party  flatly refused to reimburse the total claim of the complainant, as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Party may be directed to reimburse the remaining medical claim of the complainant amounting to Rs. 3,46,835/- and Rs.30,000/- on account of bed charges alongwith interest @ 18% per annum from the date of payment till is actual realization and also pay Rs.2,23,165/- on account of compensation due to mental tension and harassment caused by the complainant and any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Party appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint of the complainant is liable to be dismissed on the ground of claim being pre mature. Moreover, the complainant has violated the terms and conditions of the policy. It is submitted that the complainant is bound to provide the requisite documents required to settle the claim. In this case, the Opposite Party sought some document/ information from the complainant, but the complainant did not supply the same, so due to deficiency in providing documents/ information  on the part of the complainant/ insured, the Opposite Party was constrained to close the claim of the complainant as no claim. It is however, submitted that the complainant submitted multiple claims with the Opposite Party for the hospitalisation insured underwent in various hospitals. It is also admitted that Rs.3,60.000/- was paid by the Opposite Party at Dayanand Medical College & Hospital, Ludhiana  as per the terms and conditions of the policy and the remaining claims were retained for want of completion of documents/ information and hence, there is no deficiency in service on the part of the Opposite Party  and the complaint may be dismissed with costs.    

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1/A alongwith copies of documents  Ex.C1 to Ex.C85 and  closed the evidence on behalf of the complainant.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Party also tendered into evidence the affidavit of Sh.Shevta Pokhriyal Ex.Ops1 alongwith copies of documents Ex.Ops2 to Ex.Ops8 and closed the evidence.

5.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Party   have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file.

7.       The main contention of the complainant is that the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

In this regard, Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

8.       For the sake of arguments, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by the complainant is that out of the four claims,  the Opposite Party has paid the part payment of Rs.3,60,000/- out of the bills of Dayanand Medical College & Hospital, Ludhiana  and retained the balance medical expenses bills whereas all the documents/ information has already been submitted to the Opposite Party. On the other hand, the only defence taken by the Opposite Party is that due to deficiency in providing documents/ information  on the part of the complainant/ insured, the Opposite Party was constrained to close the claim of the complainant as no claim. It is however, submitted that the complainant submitted multiple claims with the Opposite Party for the hospitalisation insured underwent in various hospitals. It is also admitted that Rs.3,60.000/- was paid by the Opposite Party at Dayanand Medical College & Hospital, Ludhiana  as per the terms and conditions of the policy and the remaining claims were retained for want of completion of documents/ information and hence, there is no deficiency in service on the part of the Opposite Party. First of all, the Opposite Party has failed to produce any iota of evidence to prove that they ever wrote any letter/ correspondence to the complainant for the completion of the documentations for making the claim. Moreover,  we failed to understand that when the Opposite Party has paid the part payment of Rs.3,60,000/- then what was the hitch for them to make the remaining claim and why the complainant will linger on his own remaining claim for not submitting the claim with the Opposite Party.  

9.       The other defence of the Opposite Party is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed.  But the Opposite Party could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

10.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding remaining genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy.

11.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the remaining claim of the complainant.

12.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Party to reimburse the remaining medical bills of the complainant upto the extent of Rs.3,46,835/- (Rupees three lakh forty six thousands eight hundred thirty five only) to the complainant within 60 days from the date of receipt of copy of this order, failing which the  Opposite Party shall be liable to make the awarded amount alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 06.09.2021 till its actual realization. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.