DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 353/2022
Date of Filing Date of Admission Date of Disposal
16.09.2022 30.11.2022 26.07.2024
Complainant/s:- | Ratul Aich, 203, Yasree Sundaram, 15/9 Midland Place, Rahara, Khardaha, Kolkata – 700118. =Vs= |
Opposite Party/s:- | HDFC ERGO General Insurance Company Limited. IRDAI Reg No.146 1st Floor, HDFC House, 165/166 Backbay Reclamation, H.T.Parekh Marg, Churchgate, Mumbai - 400 020 |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named submitted one complaint through Speed Post before this Commission on 15/09/2022 and same has registered on 16/09/2022 as case no. C.C./353/2022.
Complainant alleged in the petition that he had one HDFC ERGO OPTIMA RESTORE policy vide policy no. 2805203553540501 for the year 2020-2021 amounting to Rs. 5,00,000/-.
In the year 2020-2021 said policy number was 2805203553540502. O.P provides 8% stay active discount on renewable for meeting certain walking steps criteria.
Complainant installed the HDFC ERGO application on his mobile and connected the same with Google Fit Application. Said apps collects the step count and passes in to the O.P through internet.
O.P calculates the data every quarter and gives a maximum discount of 2% on meeting the necessary criteria and 2% every quarter maximum discount adds up to 8% maximum discount.
Complainant contacted with the O.P for said discount but found no response. Complainant has one year’s (2020-2021) full data in Google Fit. O.P’s server not yet collected the same.
Complainant further stated that he has intimated the aforesaid fact to the O.P but Complainant did not received any response from his end rather has been harassed during the whole procedure.
Due to the aforesaid malafide act and conduct of the O.P Complainant duped the hard earned money of the Complainant and Complainant suffered tremendous agony.
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C.C. No. 353/2022
Complainant again and again intimated the said fact to the O.P by telephonic conversation, by electronic mail conversation but executive of the O.P acted like flogging of a dead horse in lieu of providing proper service.
Aforesaid act of O.P clearly indicates unfair trade practice. Hence, the Complainant filed this case.
Complainant prayed for direction upon the O.P to take necessary steps to render proper service to the Complainant, compensation amounting to Rs. 10,00,000/- and other reliefs.
O.P appeared in this record and filed W/V denied the entire allegations made in the petition contending interalia that the case is barred by principles of estoppels waiver of acquisition. He further contended that case is barred by non-joinder and mis-joinder of necessary parties. They alleged that complaint is concocted, frivolous, vexatious etc. and liable to be rejected.
He further alleged that O.P issued one OPTIMA RESTORE individual policy bearing no. 110103/11119/AA01265980 for the period from 30/11/2019 to 29/11/2020 subject to terms and conditions mentioned in the policy. Initially the said policy was for Rs. 5,00,000/-. Thereafter, the said policy was renewed and as per request of the Complainant sum assured was reduced.
Complainant received the policy kit containing relevant documents. Opportunity was given to the Complainant to verify and examine the same. But Complainant never approached the O.P about any information within the free look-up period of 15 days.
On 29/11/2021 a claim for reimbursement was received by the O.P from the Complainant vide reimbursement id no. RR-FC21-12734614 for his health check up procedure dated 27/11/2021.
Complainant had undergone blood test and all such investigative procedure which are required for a general routine health check up.
After received of the claim intimation O.P had scrutinized complete records in respect of the claim and it was gathered that the present policy had not completed a period of two years on the date of investigation.
Considering that policy terms and conditions claim was found inadmissible as per policy terms and conditions. O.P repudiated the claim on 09/12/2021.
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C.C. No. 353/2022
The allegation of discount in the policy was referred before the Insurance Ombudsmen by the Complainant and Hon’ble Ombudsmen upheld the decision of O.P.
Inspite of that Complainant filed this case to malign the O.Ps reputation on social media platform. He prayed for dismissal of the case.
Complainant in support of his case filed affidavit-in-chief. On perusal of the said document we find that he corroborated his allegations.
O.Ps filed questionnaire and Complainant gave answer. Complainant filed BNA and O.P No. 1 and 2 also filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the Complainant, W/V filed by the O.P, affidavit-in-chief filed by the Complainant, questionnaire filed by the O.P, reply submitted by the Complainant. O.P did not file any evidence in this case. Complainant filed BNA, O.P filed BNA.
Complainant at the time of filing of this case did not file any documents even at the time of giving evidence Complainant did not file any documents in support of his contention. O.P also filed certain document with the W/V in support of his contention.
Complainant alleged that he had purchased one policy namely HDFC ERGO Optima Restore amounting to Rs. 5,00,000/- from the O.P in the year 2020-2021 vide Policy No. 2805203553540501.
He further alleged that O.P provides to 8% of stay active discount on renewable for meeting certain walking steps criteria and Complainant installed the HDFC ERGO application on his mobile and connected it with Google Fit application. Said application collects the step count and passes it to the respondent concerned application.
He further alleged that O.P’s concern calculates the data in every quarter and gives a maximum discount of 2% on meeting the necessary criteria and 2% every quarter maximum discount up to 8%.
He further alleged the he contacted with the O.P for said discount but found no resolution from the respondent’s end.
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C.C. No. 353/2022
On perusal of customer information sheet Optima Restore Policy we find that in the column of renewal benefits it has mentioned:-
“Multiplier Benefit – 50% increase in your basic sum insured for every claim free year, subject to a maximum of 100%. In case a claim is made during a policy year, the limit under this benefit would be reduced by 50% of the basic sum insured in the following year. However this reduction will not reduced the Sum Insured below the basic Sum Insured of the policy.
Preventive Health Check-up – we will reimburse upto the stated amount towards cost incurred in the preventive health check-up.
Stay Active – Upto 8% discount on renewal premium subject to insured member achieving the average number steps in each time interval prescribed in the grid by either walking or running regularly to keep fit. The discount will be accrued by the customer at defined time intervals and cumulated at the end of the policy period and offered as a discount on renewal premium.”
To get the desired relief Complainant should produce the money receipt regarding purchase of aforesaid policy. But Complainant did not produce the same. As a result, we do not know what amount he has given in favour of the O.P at the time of purchase of the aforesaid policy.
Complainant alleged that he did not get the discount at the time of renewal of the aforesaid policy. To prove the said fact it was the duty of the Complainant to produce the money receipt in respect of the flat that what quantum of money was given at the time of renewal of the said policy. Even Complainant did not produce the alleged renewal policy before this Commission in support of the fact that his aforesaid policy was subsequently renewed. Accordingly we are in a dark whether aforesaid policy was actually renewed or not, sum assured was changed or not and what quantum of amount was given as premium of renewal of the aforesaid policy.
Complainant further alleged that no discount was given to him at the time of renewal of the policy as per result of the app which was installed in his mobile phone as per instruction of the O.P. So it was the duty of the Complainant to prove before this Commission that he actually installed the app in his mobile as per instruction of O.P. To prove the said fact no document has been produced before this Commission. Accordingly it is clear before us that Complainant could not prove that he actually installed the necessary app as per instruction of O.P and as per guideline given in the document i.e. Customer Information Sheet. Even he did not produce any document in support of the fact that result was noted relating to his walking steps.
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Accordingly we find that Complainant failed to prove that his walking steps were counted by the mobile app and it has been forwarded to the office of the O.P.
Accordingly we find that Complainant failed to prove that he complied his part and he installed the necessary app in his mobile and data relating to his walking steps were forwarded to the office of O.P and inspite of that O.P did not allow any discount at the time of renewal of his aforesaid policy.
We have stated earlier that Complainant failed to produce any document in support of the fact that his policy was renewed and he did not get any renewable discount as per result of the app which counted his walking steps and forwarded the same to the office of the O.P.
On perusal of document dated 12/04/2022 and 20/05/2022 we find that one dispute was cropped up in between Complainant and O.P. We also find that Complainant lodged a complaint before the Insurance Ombudsmen Sri P. K. Rath and said complaint was registered as KOL-H-018-2122-0878. An award was issued by the said Ombudsmen on 17/05/2022.
On perusal of the said document we find that Complainant alleged before the Hon’ble Ombudsmen that O.P in connection with repudiation of his health check-up claim and denial of discount on policy renewal step covered and Hon’ble Ombudsmen disposed of the said claim and pleased to pass the following award:-
AWARD
Taking into account the facts & circumstances of the case and the submissions made by both the parties during the course of hearing & after going through the documents on record it is observed the health check-up is available only once at the end of block of continuous 2 policy years. Hence, the repudiation of health check-up claim by the company is in order. Since, the complainant has failed to prove the completion of required parameter for getting the discount, the denial of discount on policy renewal is in order.
Hence, the complaint is dismissed without any relief to the complaint.
If the decision is not acceptable to the Complainant, She/He is at liberty to approach any other Forum/Court as per Law of the Land against the Respondent Insurer.
Dated at Kolkata on the 17th Day of May, 2022.”
Accordingly we find that before lodging the present complaint before this Commission Complainant lodged one complaint before the Hon’ble Ombudsmen on 22/02/2022 and same has disposed of on 17/05/2022 by an Award dated 17/05/2022. Complainant fully well aware about the said fact but he totally suppressed the said fact in his petition of complaint.
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In his petition of complaint he did not mention a single line about the said fact. Accordingly we find that Complainant suppressed the material fact in his petition of complaint. But O.P by his W/V brought the said fact before this Commission and on verification of the documents we came to learn the said fact. If the Complainant was not satisfied about the aforesaid award appropriate Forum was available before him to file an appeal but Complainant without choosing the Upper Forum came to this Commission and lodged the aforesaid complaint afresh.
We have stated earlier that Complainant could not established his aforesaid grievance by sufficient evidence beyond reasonable doubt.
In this context we have carefully gone through the decision of Hon’ble N.C.D.R.C reported in 2017 4 CPR (NC) 593 (M/s Manas Construction Vs. L & T Finance and Anr.). We find that Hon’ble N.C.D.R.C held:-
“11. I fully agree with the observation of the State Commission that the complainant cannot proceed under two Acts for the same grievance. It is true that Section 3 of the Consumer Protection Act envisages proceedings under the Consumer Protection Act as an additional remedy but it is clear that a person cannot proceed under two legal authorities under two different Acts for the same relief. Both the judgments relied upon by the learned counsel for the appellant seem to be inapplicable in the circumstances of the present case, as in those judgments, the arbitration proceedings, was not initiated whereas in the present case, the complaint has been filed during the pendency of the arbitration proceedings. Both the referred judgments only provide that in spite of the arbitration clause in the agreement, the proceedings under the Consumer Protection Act, 1986 are maintainable. As the proceedings under Arbitration Act are already going on, the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously. This Commission has already decided this issue in number of judgments as mentioned below:
(i) M/s Magma Fincorp Ltd Vs Gulzar Ali, RP 3835 of 2013 decided on 17.04.2015, this Commission held as follows:-
It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred.
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(ii) Similar view has been taken by this Commission in the following other cases:
1. Beverly Park Maintenance Services Ltd Vs Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC);
2. T. Srinivas & Anr Vs Srija Constructions, I (2016) CPJ 552 (NC) and
3. Vishnu Chandra Sharma Vs Sriram finance company ltd. & Anr, III (2017) CPJ 211 (NC).
12. From the above judgments of this Commission, the view of this Commission is very clear that proceedings under the Arbitration and Reconciliation Act and that under the Consumer Protection Act, 1986 cannot go together. Thus, the complaint is not maintainable under the Consumer Protection Act, 1986 in the present case.
13. As the complaint is not maintainable under the Consumer Protection Act, 1986, I desist from considering other issues raised in the appeal.”
It is known to everybody that complaint before the ombudsmen is an alternative justice delivery system. Complainant at first choose the same and he was defeated before the said Forum. If he was not satisfied with the Award of Hon’ble Ombudsmen then he has to choose the appropriate forum against the Award of Hon’ble Ombudsmen. But without choosing the same he simply came before this Commission alleging the same allegation against the O.P and suppressed the aforesaid Award of Hon’ble Ombudsmen but as per decision of Hon’ble N.C.D.R.C nobody cannot proceed under two legal authorities under two different acts for same relief.
As per the aforesaid decision of Hon’ble N.C.D.R.C present case is also appears to be not maintainable.
Moreover, we find that Complainant intentionally suppressed material fact. This case has been going on since last two years and each and every date of hearing Complainant by filing different types of petition participated himself in lengthy hearing and thereby consumed the valuable times of this Commission which demands imposition of exemplary cost against him.
Having considered the facts and circumstances of this case, materials on record, submission of Complainant in person and Ld. Advocate for the O.P and regard being had to the aforesaid decision of Hon’ble N.C.D.R.C we find that Complainant is not entitled to any relief as per his prayer before this Commission.
In the result, present case fails.
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Moreover, we find that Complainant intentionally suppressed material fact. This case has been going on since last two years and each and every date of hearing Complainant invited lengthy hearing and thereby consumed the valuable times of this Commission which demands imposition of exemplary cost against him.
Hence ,
It is
ordered,
That the present case vide no. C.C./353/2022 be and the same is dismissed on contest against the O.P with cost of Rs. 10,000/- (ten thousand) out of which 50% be given to the O.P and remaining 50% be deposited by the Complainant in Consumer Legal Aid Fund of this Commission within 45 days from this day failing which it will come under the Law of the Land.
Let a plain copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
C.C. No. /353/2022
Order No. 25
Dated:- 26.07.2024
Today is fixed for final order / judgment.
Complainant in person is present. Ld. Advocate for the O.P is present.
Record is put up for passing order in respect of put up petition dated 18.06.2024 / 20.06.2024 filed by the Complainant.
Perused the order dated 12/07/2024 we find that it has been noted therein that petition dated 18.06.2024 / 20.06.2024 be considered at the time of final hearing. In view of the said order aforesaid petition was heard on 24/07/2024 at the time of final hearing of this case.
Complainant in the said petition raised some allegation against the O.P and his Ld. Advocate and prayed for appropriate penalties for utter negligence, careless and disregarding the bench time presence and effort by the Opposite Party.
The aforesaid subject matter is not related to the matter in dispute involved in the present case. The aforesaid allegation is out of subject of the present case because in the present case Complainant alleged that O.P did not give him discount at the time of renewal of his policy which can be granted upto 8% as per recorded data relating to the walking of the Complainant in a particular app.
Accordingly we find that aforesaid petition is out of the litigation involved in the present case and same is devoid of merits.
Hence, the aforesaid petition is rejected.
Record is also put up for passing order in respect of the petition dated 18.06.2024 / 20.06.2024.
Perused the order dated 12/07/2024 we find that it has been noted therein that petition dated 18.06.2024 / 20.06.2024 be considered at the time of final hearing. In view of the said order aforesaid petition was heard on 24/07/2024 at the time of final hearing of this case.
Complainant in the said petition raised some allegation relating to poor communication and coordination between O.P and his Advocate. He also raised complaint for poor legal document, digital inventory management in the company.
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Order No. 25
(Page No. 2)
He further alleged that O.P is a multinational company and stakeholder during lengthy litigation. Mandatory Digital Inventory by order of the Court is required. He prayed for appropriate penalty for utter negligence, careless and disregarding the bench time presence an effort by O.P company.
The aforesaid subject matter is not related to the matter in dispute involved in the present case. The aforesaid allegation is out of subject of the present case because in the present case Complainant alleged that O.P did not give him discount at the time of renewal of his policy which can be granted upto 8% as per recorded data relating to the walking of the Complainant in a particular app.
Accordingly we find that aforesaid petition is out of the litigation involved in the present case and same is devoid of merits.
Hence, the aforesaid petition is rejected.
Record is also put up for passing order in respect of the petition dated 10/07/2024 filed by the Complainant.
Perused the order dated 12/07/2024 we find that it has been noted therein that petition dated 10/07/2024 be considered at the time of final hearing. In view of the said order aforesaid petition was heard on 24/07/2024 at the time of final hearing of this case.
Complainant in the said petition do the attention of everyone that use off hard copy instead of soft copies results in judiciary’s incompetence and each obsolete in many facades in a digitally tech savvy society with the rising no. of digital related cases.
In the said letter he has mentioned that he is not satisfied with the present system which maintained by the Consumer Fora as well as Consumer Department.
He prayed for necessary order on the aforesaid subject.
The aforesaid subject matter is not related to the matter in dispute involved in the present case. The aforesaid allegation is out of subject of the present case because in the present case Complainant alleged that O.P did not give him discount at the time of renewal of his policy which can be granted upto 8% as per recorded data relating to the walking of the Complainant in a particular app.
Accordingly we find that aforesaid petition is out of the sunject matter in dispute involved in the present case and same is devoid of merits.
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C.C. No. /353/2022
Order No. 25
(Page No. 3)
Hence, the aforesaid petition is rejected.
Record is also put up for passing order in respect of another petition dated 09.07.2024 / 10.07.2024 filed by the Complainant.
At the time of passing order relating to the said petition it appears before us that said petition has addressed to the Hon’ble President, State Consumer Disputes Redressal Commission, Ground Floor, 11A, Mirza Ghalib Street, Kolkata, West Bengal – 700087. So we cannot pass any order relating to the said petition because of it is our out of jurisdiction.
Hence, the said petition is not entertained.
Liberty is given to the Complainant to withdraw the said petition from this Commission.
Another petition dated 19/07/2024 filed by the Complainant is taken up for passing order.
In the said petition Complainant alleged that he is B.SC graduate in visual communication with approximately 15 years of experience in user experience served as a Principal Consultant (Sr. Manager level) of Capital UX in Herman Connected Service 2016-2017 and pursuing M.A. Mass Communication and Journalism. But he has been humiliated by the staff of the Commission.
On perusal of the said petition we find that on 12/07/2024 he came to this Commission at 5:30 p.m and found that door of the Commission was closed he took a photograph.
As per Consumer Protection (Consumer Commission Procedure) by a Regulation hearing hours is up to 4:30 p.m. How the Complainant expect that at 5:30 p.m Commission room will available for him for filing any document?
Moreover, he alleged that what has done on that date, same has done in presence of the bench. With a Members of the bench do not remember any incident by which the Complainant was humiliated.
So it is clear before us that aforesaid allegation of the Complainant is devoid of merits and same is thus rejected.
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C.C. No. /353/2022
Order No. 25
(Page No. 4)
Today is also fixed for passing final order / judgment.
Final order / Judgment is ready and same is pronounced.
As per Final Order / Judgment
It is
Ordered:-
That the present case vide no. C.C./353/2022 be and the same is dismissed on contest against the O.P with cost of Rs. 10,000/- (ten thousand) out of which 50% be given to the O.P and remaining 50% be deposited by the Complainant in Consumer Legal Aid Fund of this Commission within 45 days from this day failing which it will come under the Law of the Land.
Let a plain copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
