PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

 1)        By the Complainant the Complainant has prayed the Opposite Party be directed to release the claim of Rs.70,850/- to the Complainant and compensation of Rs.29,150/- out of which Rs.10,000/- towards taxi fair for visiting the office of Opposite Party from Kandivali to Mahalaxmi, Rs.10,000/- towards loss suffered due to not attending works by the Complainant, Rs.5,000/- towards mental agony suffered by the Complainant, Rs.4,150/- towards legal expenses.  The Complainant has thus, claimed total amount of Rs.1 Lac from the Opposite Party.

 2)        According to the Complainant, he took Policy No.4063/AHAP/03620042/ 00/000 from the Opposite Party.   The  Opposite  Party  issued  Cashless  Health Card No.IHPN-03778551/01 in favour of the Complainant. The copy of which is marked as Exh.‘A’ to the complaint.  It is alleged that the Complainant had issued five post dated cheques i.e. 1) of Rs.5,000/- 2) four cheques of Rs.2,500/- dtd.28/05/2008, 28/06/2008. 28/07/2008, 28/08/2008 and 28/09/2008 respectively drawn on Kapol Bank, Akurli Road Branch, Kandivali (E), Mumbai – 400 101.  It is submitted that out of which first four cheques were cleared on their due dates from the account of the Complainant of the said bank, however, the last cheque dtd.28/09/2008 was not produced by the Opposite Party for encashment on 28/09/2008 which was the due date of the said cheque.  It is submitted that the Complainant had sufficient funds in his account maintained with the said Kapol Bank. It is alleged that the Opposite Party had presented the said cheque for encashment on or about 03/10/2008.  The said cheque was not encashed in favour of the Opposite Party as on the relevant date the Kapol Bank branch at Akurli Road was closed. 

 3)        According to the Complainant, he was under treatment of Dr. Naresh M. Khanna for bilateral Osteoarthritis of both knees with Med Synovitis. He was hospitalized for the treatment at Ashirwad Nursing Home, Lokhandwala Complex, Andheri (W), Mumbai, from 19/09/2008 to 20/09/2008.  The copies of Medical case papers and bill of Dr. Naresh Khanna and Ashirwad Nursing Home and Discharge Card are marked as Exh.‘B’ (colly.).

 4)        On 26/09/2008 the Complainant submitted a claim form No.9 for Rs.70,850/- against his aforesaid policy.  The Opposite Party accepted the claim papers and informed to the Complainant that his cheque is ready and called him in his office to collect the cheque.  The Complainant visited the office of the Opposite Party to collect the cheque in the month of October, 2008.  The Opposite Party told the Complainant that it will issue a cheque of Rs.2,000/- only.  The Complainant was shocked and surprised to hear that he should collect only Rs.2,000/-. According to the Complainant he felt that his last cheque was not encashed by the Opposite Party and therefore, he offered to the officer concerned of the Opposite Party to accept the cash amount of Rs.2,500/- against the cheque dtd.28/09/08, however, the officer concerned did not accept the same by saying that he has no instruction to accept the cash and the Complainant shall accept the cheque only.  The Complainant has placed on record claim form 9 at Exh.‘C’.  According to the Complainant, thereafter, he issued notice to the Opposite Party through Advocate dtd.22/09/08 by courier.  The copy of the notice and courier receipt are filed at Exh.‘D’ colly.  It is submitted that the Complainant is a consumer of the Opposite Party.  The policy issued in favour of Complainant was enforced on 27/05/2009.  The said policy was not lapsed.  The Complainant had made payment against the said policy to the Opposite Party.  The Opposite Party has no right to withhold the claim of the Complainant.  It is submitted that due to illegally withholding of claim by the Opposite Party the Complainant has suffered loss and mental agony therefore, the Opposite Party is liable to pay compensation as mentioned in para 1 of the complaint to the tune of Rs.29,150/- and the expenditure of Rs.70,850/- towards medical treatment. 

 5)        The Opposite Party contested the claim by its written statement. It is contended that the complaint is misconceived and devoid of any substance and merits.  It is submitted that the Complainant had made claim for an amount of Rs.70,850/- under the subject insurance policy issued to the Complainant.  The Opposite Party, however, could not grant the said claim as the premiums for the said policy were not fully paid by the Complainant.  It is contended that the Complainant had issued 5 cheques drawn on Kapol Bank in favour of Opposite Party out of which 4 cheques were cleared and last cheque was dishonored.  The Opposite Party after due verification of the claim made by the Complainant found that the Complainant failed to pay the insurance premium as the last cheque issued by him was not cleared.  The Opposite Party by letter dtd.31/10/2009 informed to the Complainant regarding the said dishonored cheque of Rs.2,500/- towards the payment of insurance premium has been returned by the Banker’s of the Complainant. It was also informed that due to the said reason the insurance policy issued by the Opposite Party to the Complainant stands cancelled from inception and the Opposite Party is no longer at risk from that date.  The copy of the said letter is marked as Exh.‘A’ colly.  It is contended that as the policy was cancelled, the Opposite Party was/is not under any liability to grant the claim of the Complainant. It is contended that the amounts stated in the claim are highly exorbitant and cannot be granted to the Complainant.  It is contended that the subject cheque was issued on 28/09/2008 and the same was deposited in the bank on 03/10/2008. The said cheque was deposited within time.  The Opposite Party denied that the Complainant had offered cash payment against the said cheque.  It is contended that the contention in the complaint which are not specifically denied in the written statement shall not be deemed to be admitted by the Opposite Party. It is submitted that there is no deficiency of service or unfair trade practice on the part of the Opposite Party.  The complaint therefore, be dismissed with exemplary cost.       

 6)        The Complainant has filed affidavit of evidence.  The Opposite Party filed affidavit of evidence of Nilesh Ramchandani, Legal Manager of the Opposite Party.  Both the parties filed their written arguments.  We heard the oral arguments of Shri. Ashutosh Kaushik, Ld.Advocate for the Complainant and Shri. S.S. Singh, the Ld.Advocate for the Opposite Party.  The advocate for the Complainant submitted that it is undisputed that the Complainant issued 5 cheques to the Opposite Party drawn on Kapol Bank as mentioned in the complaint para 2.  He also submitted that out of 5 cheques 4 cheques were cleared towards the policy issued in favour of the Complainant by the Opposite Party.  He also drew our attention that the last cheque was also dtd.28/09/2008, but the Opposite Party submitted the same to the Kapol Bank on 03/10/2008 for clearing and the extension counter of Kapol Bank at Akurli Road Branch, Kandivali (E).  He submitted that as per the letter filed at Annexure ‘A’ to the written arguments the said branch was closed on 04/10/2008.  He thus, submitted that as the Opposite Party did not submit the cheque dtd.28/09/2008 on the same date for clearance and it had submitted on one day before the closing of the aforesaid branch hence, the Complainant cannot be said at fault.  On the other hand the Opposite Party itself was at fault for not depositing promptly for its clearance.  He also submitted that the Complainant after knowing the said fact of not clearing the cheque of Rs.2,500/- dtd.28/09/2008 in favour of the Opposite Party due to the above circumstance had offered cash amount of Rs.2,500/- to the officer of the Opposite Party towards last premium but the same was not accepted and later on illegally and improperly informed to the Complainant about cancellation of policy and non acceptance of any liability.  The Ld.Advocate, Shri. Kaushik made submission that this conduct and act on the part of the Opposite Party is nothing but deficiency of service and unfair trade practice. He thus, submitted that as the claim form was accepted by the Opposite Party on 26/09/2008 and thereafter tried to give cheque of Rs.2,000/- only to the Complainant is nothing but unfair trade practice adopted  by   the Opposite Party.  Advocate Shri. Kaushik submitted that the complaint is therefore, liable to be allowed.

            Shri. S.S. Singh, Advocate for the Opposite Party made submission that as the last premium was not paid by the Complainant and the Opposite Party had informed to the Complainant that due to non payment of last premium the policy issued in favour of the Complainant stands cancelled from inception and the Opposite Party is not liable for any risk in favour of the Complainant, the claim made in the complaint deserves to be dismissed.  He submitted that there is no deficiency of service or unfair trade practice on the part of the Opposite Party. 

            Upon going through the documents on record and considering the pleadings of the parties, it appears that there is no dispute that the Complainant had obtained Cashless Health Insurance Policy as mentioned in the complaint from the Opposite Party.  It is also undisputed that the Complainant had paid four premiums of Rs.2,500/- each till 28/08/2008 + Rs.5,000/- at the time of obtaining the policy from the Opposite Party.  It is also undisputed that the Complainant had issued cheque towards last premium of Rs.2,500/-, dtd.28/09/2008 of Kapol Bank as mentioned above to the Opposite Party and the Opposite Party presented it for clearance on 03/10/2008 and later on the said branch of Kapol Bank where it was deposited was closed on 04/10/2008. We therefore, hold that the Complainant cannot be said at fault, on the other hand the Opposite Party can be held at fault, as the Opposite Party failed to deposit immediately on 28/09/2008 for its clearance.  It is also pertinent to note that after receiving the intimation by the Opposite Party that the cheque issued by the Complainant dtd.28/09/2008 was not cleared, the Opposite Party ought to have informed to the complainant about it alongwith the reason for which the cheque issued by him was not cleared.  The Opposite Party after knowing the fact that the last premium was not cleared due to any fault of the Complainant, it ought to have been asked the Complainant to deposit the amount of Rs.2,500/- towards last premium within a specific time, however, the Opposite Party failed to do so and directly vide letter dtd.31/10/2008 informed the Complainant that the policy issued in his favour has been cancelled.  The said communication made by the Opposite Party in our view is totally arbitrary and afterthought. The Opposite Party was having knowledge that the Complainant had submitted his mediclaim on 26/09/2008 regarding the treatment obtained by him as per Exh.‘C’ to the Complainant.  The Opposite Party in our view thereafter purposefully not deposited cheque of last premium dtd.28/09/2008 for its clearance immediately and then as the cheque was not cleared due to closure of Kapol Bank Branch, Akurli Road, Kandivali (E), the Opposite Party without calling any explanation of the Complainant wrongly cancelled the policy one sided which was issued in favour of the Complainant illegally and improperly.  We therefore, hold that the Opposite Party is liable to pay mediclaim of Rs.70,850/- to the Complainant out of which an amount of Rs.2,500/- which remained to be recovered from the Complainant as a last premium of the policy issued in favour of the Complainant is allowed to be deducted and the remaining amount of Rs.68,350/- is liable to be paid by the Opposite Party to the Complainant.           

            The Complainant prayed for Rs.10,000/- towards taxi fare and Rs.10,000/- towards loss suffered by the Complainant for not attending the work of the Opposite Party.  The said claim in our view is not supported by any documentary evidence by the Complainant and therefore, the same is liable to be rejected.  In our view the Complainant is entitle for an amount of Rs.1,000/- towards mental agony suffered by him because of unfair trade practice adopted by the Opposite Party and Rs.1,000/- towards the legal expenditure of this proceeding.  In the result we pass the following order –

O R D E R

i.                    Complaint No.102/2009 is partly allowed against Opposite Party.

ii.                 Opposite Party is directed to pay Rs.68,350/- (Rs. Sixty Eight Thousand Three Hundred Fifty Only) to the Complainant towards the medical treatment charges.

iii.              Opposite Party is directed to pay Rs.1,000/- (Rs. One Thousand Only) as compensation to the Complainant towards unfair trade practice adopted against him.

iv.               Opposite Party is directed to pay cost of Rs.1,000/- (Rs. One Thousand Only) to the Complainant towards this proceeding.  

v.                  The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

vi.               Certified copies of this order be furnished to the parties.