Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that complainant No.1 is son, whereas complainant No.2 is widow of Ashok Kumar son of Prem Singh and said Ashok Kumar has since expired. Ashok Kumar had duly insured/ registered under Bhai Ghanya Sehat Sewa Scheme under the beneficiary card no.MDI5-BGSSS-00227361-S issued by Opposite Parties No.1,2,3, 5 and in this scheme, any kind of his treatment as well as treatment of his family during the period 2015-2016 was covered. On 10.05.2016 said Ashok Kumar suffered with heart pain and the family members of Ashok Kumar immediately conducted tests and diagnosis and found that Ashok Kumar suffered with heart attack due to CAD-Unstable Angina and the doctors advised them to implant stents in the heart valves. Then Ashok Kumar under the policy requested the Opposite Parties No.1,2,3, 5 to provide him cashless treatment by showing the critical condition, but the Opposite Parties advised to arrange money for the operation with the assurance that after the approval of the Opposite Parties to will definitely reimburse the amount. Accordingly, Opposite Party No.4 hospital implanted stents in the heart valves of Ashok Kumar whereas an amount of Rs.1,45,000/- was paid by the complainants. Thereafter, the complainants lodged the claim for the reimbursement of his claim, and also completed all the formalities but to no affect and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties be directed to pay Rs.1,45,000/- on account of medical bills and also to pay Rs.50,000/- on account of compensation due to mental tension and harassment caused by the complainant and Rs.14,500/- as costs of litigation 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 Parties No.1 to 3-Insurance Company appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Further contended that the complainants have concealed the fact that there was a tripartite agreement between the ICICI Lombard General Insurance, Bhai Ghanaya Trust and Opposite Party No.3 whereby Opposite Party No.3 was appointed as an independent TPA to administer and decide the claims under the scheme. Opposite Party No.3 has also entered into agreements with the hospitals and brought them on the penal of scheme and the service by the hospitals are to be provided at the agreed/ package rates and the insured is bound to take authorisation for cashless treatment from TPA through said hospital. Further the terms and conditions of the policy make it mandatory that at least seven days prior intimation to the insurer which has not been given in this case. In this case, the deceased got admitted on 10.05.2016 with Opposite Party No.4 for Coronary Baloon Angioplasty and discharged on 12.05.2016 where the claim documents were submitted for reimbursement after the deceased got discharged from said hospital which was also not complete. Hence, this Opposite Parties No.1 to 3 reserves their right to decide the claim of the complainants as and when required documents are submitted as per the terms and conditions of the policy. However, it is submitted that if this District Consumer Commission comes to the conclusion that the complainants are entitled for any amount, then the complainants are not entitled more than Rs.1,28,724/- as per the policy terms and conditions. On merits, Opposite Parties No.1 to 3 -Insurance Company took up the same and similar pleas as taken up by them in the preliminary objections and hence the complaint deserves dismissal.
3. Opposite Party No.4 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed. The complainants have failed to explain as to how he is involved and the answering hospital is negligent and hence the complaint against Opposite Party No.4 hospital is not maintainable and the same requires dismissal.
4. Opposite Party No.5 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Further contended that answering Opposite Party has wrongly been impleaded Med Save health Care Services whereas it should be of MD India Health are Services. Opposite Parties No.1 to 3 had been appointed as Insurer by the Trust which had appointed MD India Health Insurance TPA, Opposite Party No.3 as TPA to implement the Bhai Ghanhya Sehat Sewa Scheme during the year 2016 and as such, the complaint is liable to be dismissed qua the answering Opposite Party as the Opposite Party No.5 is neither a necessary nor a proper party in the present complaint as such, the complaint is liable to be dismissed on this ground also. On merits, Opposite Party No.5 took up the same and similar pleas as taken up by them in the preliminary objections and hence the complaint deserves dismissal.
5. In order to prove their case, the complainants have tendered into evidence affidavit Ex.CW/A alongwith copies of documents Ex.C2 to Ex.C20 and closed the evidence on behalf of the complainants.
6. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 to 3 -Insurance Company also tendered into evidence the affidavit of Sh.Nishant Gaira Ex.Ops1 to 3/1 alongwith copies of documents Ex.OP1 to 3/2 to Ex.Ops1 to 3/ 4. Opposite Party No.4 tendered into evidence the affidavit of Dr.Brajesh K.Badhan Ex.OP4/1 alongwith copies of documents Ex.Ops4/2 to Ex.OP4/36 and Opposite Party No.5 also tendered into evidence affidavit of Sh.Balbir Singh Bhatia Ex.OP5/A alongwith copies of documents Ex.OP5/1 to Ex.OP5/2 and thereafter, all the Opposite Parties closed their respective evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Parties No.1 to 3 -Insurance Company has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 to 3-Insurance Company are limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Parties No.1 to 3 -Insurance Company. Further contended that at the time of issuance of the said policy to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. Further contended that Ashok Kumar had duly insured/ registered under Bhai Ghanya Sehat Sewa Scheme under the beneficiary card no.MDI5-BGSSS-00227361-S issued by Opposite Parties No.1,2,3, 5 and in this scheme, any kind of his treatment as well as treatment of his family during the period 2015-2016 was covered. On 10.05.2016 said Ashok Kumar suffered with heart pain and the family members of Ashok Kumar immediately conducted tests and diagnosis and found that Ashok Kumar suffered with heart attack due to CAD-Unstable Angina and the doctors advised them to implant stents in the heart valves. Then Ashok Kumar under the policy requested the Opposite Parties No.1,2,3, 5 to provide him cashless treatment by showing the critical condition, but the Opposite Parties advised to arrange money for the operation with the assurance that after the approval of the Opposite Parties to will definitely reimburse the amount. Accordingly, Opposite Party No.4 hospital implanted stents in the heart valves of Ashok Kumar whereas an amount of Rs.1,45,000/- was paid by the complainants. Thereafter, the complainants lodged the claim for the reimbursement of his claim, and also completed all the formalities but to no affect and as such, there is deficiency in service on the part of the Opposite Parties.
9. On the other hand, ld.counsel for the Opposite Parties specially, Opposite Parties No.1 to 3-Insurance Company has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainants have concealed the fact that there was a tripartite agreement between the ICICI Lombard General Insurance, Bhai Ghanaya Trust and Opposite Party No.3 whereby Opposite Party No.3 was appointed as an independent TPA to administer and decide the claims under the scheme. Opposite Party No.3 has also entered into agreements with the hospitals and brought them on the penal of scheme and the service by the hospitals are to be provided at the agreed/ package rates and the insured is bound to take authorisation for cashless treatment from TPA through said hospital. Further the terms and conditions of the policy make it mandatory that at least seven days prior intimation to the insurer which has not been given in this case. In this case, the deceased got admitted on 10.05.2016 with Opposite Party No.4 for Coronary Baloon Angioplasty and discharged on 12.05.2016 where the claim documents were submitted for reimbursement after the deceased got discharged from said hospital which was also not complete. Hence, this Opposite Parties No.1 to 3 reserves their right to decide the claim of the complainants as and when required documents are submitted as per the terms and conditions of the policy. However, it is submitted that if this District Consumer Commission comes to the conclusion that the complainants are entitled for any amount, then the complainants are not entitled more than Rs.1,28,724/- as per the policy terms and conditions.
10. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Parties Opposite Parties No.1 to 3 -Insurance Company has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 to 3 -Insurance Company is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Parties No.1 to 3-Insurance Company. 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.”
Recently our own 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.
11. For the sake of arguments, for the time being, if the written reply filed by Opposite Parties No.1 to 3-Insurance Company is presumed to be correct, the next plea raised by Opposite Parties No.2 and 3-Insurance Company 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 Parties No.1 to 3-Insurance Company 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.” Our own 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.”
- We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the ld.counsel for Opposite Parties No.1 to 3 -Insurance Company is that first of all, the complainants are not entitled to any claim as per the terms and conditions of the policy, but however, if this District Consumer Commission comes to the conclusion that the complainants are entitled for any amount, then the complainants are not entitled more than Rs.1,28,724/- as per the policy terms and conditions. As mentioned above, the terms and conditions which are not supplied or conveyed these conditions can not be imposed upon the insured. In view of the above discussion, we hold that the Opposite Parties No.1 to 3-Insurance Company have wrongly and illegally rejected the claim of the complainant. Hence, keeping in view the admission of Opposite Parties No.1 to 3-Insurance for making the amount of Rs.1,28,724/-, we allow the complaint to that extent.
13. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant against Opposite Parties No.1 to 3-Insurance Company and direct Opposite Parties No.1 to 3-Insurance Company to make the payment of Rs.1,28,724/- (Rupees one lakh twenty eight thousands seven hundred and twenty four only) alongwith interest @ 8% per annum from the date of filing of the present complaint i.e.13.05.2019 till its actual realization. Opposite Parties No.1 to 3-Insurance Company are also directed to pay compensation to the complainants for causing them mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Parties No.1 to 3-Insurance Company within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. However, the complaint against ops No. 4 and 5 stands dismissed. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
14. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:17.05.2022.
