STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

HDFC Ergo General Insurance Co. Ltd., 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri East, Mumbai 400059. 

……Appellant/Opposite Party No.7

V e r s u s

1. Isha Kakaria D/o Sh.Narinder Kakaria, H.No.2373, Goodwil Enclave, 2nd Floor, Sector 49-C, Chandigarh (complainant).

2. DLF, Pramerica Life Insurance Co. Ltd., Head Office, 4^th Floor, Building No.9, Tower B, Cyber City, DLF City, Phase-3, Gurgaon(Opposite Party No.1).

3. DLF Pramerica Life Insurance Company Ltd., First and Second Floor, SCO No.335-336, Sector 35-B, Chandigarh (Opposite Party No.2).

4. Navjot Miglani, Human Resources, DLF, Pramerica Life Insurance Co. Ltd. Head Office, 4th Floor, Building No.9, Tower B, Cyber City, DLF City, Phase-3, Gurgaon, through its CEO or Managing Director (Opposite Party No.3).

5. Anurag Maini, Sr. Vice President, DLF, Pramerica Life Insurance Co. Head Office, 4th Floor, Building No.9, Tower B, Cyber City, DLF City, Phase-3, Gurgaon (Opposite Party No.4).

6. Vaibhav Sondhi, Assistance Vice President, DLF, Pramerica Life Insurance Co. Ltd., Head Office, 4th Floor, Building No.9, Tower B, Cyber City, DLF City, Phase-3, Gurgaon (Opposite Party No.5).

7. Maninder Sood, Sr.Vice President, DLF, Pramerica Life Insurance Co. Ltd. Head Office, 4th Floor, Building No.9, Tower B, Cyber City, DLF City, Phase-3, Gurgaon (Opposite Party No.6).

8. Vandna (infact Vandana) Kharbanda, Human Resource Manager, DLF Pramerica Life Insurance Company Ltd., First and Second Floor, Sector 35-B, Chandigarh (Performa Opposite Party No.8).

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Paras Money Goyal, Advocate for the applicant/appellant.

PER  JUSTICE SHAM SUNDER (RETD.), PRESIDENT

1.             This appeal is directed against the order dated 04.04.2012 rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint, and directed Opposite Parties No.1, 2 (now respondents no.2 and 3), and Opposite Party No.7 (now appellant), as under:-

“In view of the above observations, findings and facts & circumstances of the case, we are of the opinion that the OPs No.1, 2 & 7 have wrongly & illegally repudiated the mediclaim filed by the complainant.  Therefore, the complaint must succeed.  The same is accordingly allowed.  The OPs No.1, 2 & 7 are jointly & several directed to refund a sum of Rs.30,014/- to the complainant towards the expenses incurred by her on the treatment of her father at Fortis Hospital (Ann.C-4, Page No.23).  The OPs No.1, 2 & 7 are also directed to jointly & several pay a sum of Rs.25,000/- as compensation for causing her mental agony and physical harassment, apart from litigation cost of Rs.10,000/-. 

This order be complied with by the OPs No.1, 2 & 7, within a period of 30 days from the date of receipt of copy of this order, failing which they shall be jointly & severally liable to pay the above awarded amount along with penal interest @12% per annum from the date of filing this complaint 15.6.2010 till its actual payment to the complainant, besides paying litigation costs, as aforesaid”.

2.                  The facts, in brief, are that the complainant (now respondent no.1) was an employee of DLF, Pramerica Life Insurance Company/Opposite Parties no. 1 and 2. According to the policy of Opposite Party No.6 (now respondent no.7) i.e. Maninder Sood, Sr. Vice President of Opposite Parties No.1 and 2, parents of the employees were covered under the medical policy taken from Opposite Party No.7/appellant, for one year. When the complainant joined the office of Opposite Parties No.1 and 2 (now respondent nos. 2 and 3), in the month of April, the window for updating parent’s name, on their mediclaim website had closed. However, the amount of premium continued to be deducted, from the monthly salary of the complainant, from the date of her joining the employment of Opposite Parties No.1 and 2, in the month of  April, 2009. When she confirmed about the reimbursement of her father’s surgery, which took place, on 20.6.2009, Opposite Party No. 8 (now respondent no.8), confirmed through an email, that the reimbursement would be made.  It was stated that due to this assurance, she got her father operated upon, at Fortis Hospital, Mohali, and incurred an expenditure of over Rs.33,000/-, Subsequently, the complainant resigned from the organization of Opposite Parties No.1 and 2, on 17.8.2009.  However, she was not given the reimbursement of the expenditure, incurred by her, for the surgery of her father, despite many requests. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.                  Opposite Parties No.1 to 6 and 8 (now respondents no.2 to 7) in their joint written version, specifically denied that when the complainant joined the Organization of Opposite Parties No.1 and 2,  in April 2009, the window for updating parent’s name, on the medi-claim website was closed. It was stated that the complainant was informed, that the window was opened from 15.4.2009 to 30.4.2009,  but she did not bother to update the information of her parents, during the relevant time.  It was denied that Ms. Vandana Kharbanda, Opposite Party No.8 (now respondent no.8), ever confirmed the reimbursement of the medical expenses, incurred by the complainant, for the medical treatment of her father. It was also denied that the Officers of Opposite Parties No.1 and 2 were personally liable for the alleged reimbursement of the claim, of the complainant.  It was further stated that the Officers of Opposite Parties No.1 and 2, always cooperated with the complainant, and tried to help her. It was further stated that Opposite Parties No.1 and 2, also sent emails dated 13.11.2009 and 4.2.2010, to the complainant.  It was admitted that Opposite Parties No.1 and 2 were bound by the terms and conditions, laid down by the third party/Insurance Company i.e. HDFC Ergo General Insurance Company Limited(appellant). It was further stated that the Employer of the complainant was only a facilitator, in respect of the benefit of medi-claim insurance and could not be put to liability. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 6 and 8, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.                Opposite Party No.7- HDFC Ergo General Insurance Company Ltd., in its written version, stated that the extension of the mediclaim Insurance Policy was subject to certain terms and conditions. It was further stated that the amount, as claimed by the complainant, in the complaint, had been spent, on the treatment of the father of the complainant, Narender Kataria in June, 2009. It was further stated that the policy, in favour of her father, was extended only on 29.9.2009.  It was further stated that, as such, the claim of medical expenses, for the treatment, taken prior to 29.9.2009, by the father of the complainant, was not covered, as the same did not fall within the insurance period, due to the fact that there was no insurance cover on the date of treatment i.e. 20/21.6.2009. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.7, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.             The Parties led evidence, in support of their case.

6.             After hearing the Counsel for the complainant, Opposite Party No.7, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.7.

8.             Alongwith the appeal, an application, under Section 5 of Limitation Act, read with Section 15 of the Act for condonation of delay of 81 days, as per the applicant/appellant, and the office report, in filing the same (appeal), was moved, by the applicant/appellant/opposite party no.7. It was stated that the certified copy of the order dated 04.04.2012, was prepared on 10.04.2012, and was sent vide endorsement dated 11.04.2012, which was received by the Counsel for the Company on 11.04.2012. It was further stated that legal opinion, alongwith the scanned copy of the order, aforesaid, was sent vide email dated 16.04.2012 to the dealing Office. It was further stated that the dealing Office at Noida, sent the same to the Head Office at Mumbai, in the last week of April, 2012, for approval for filing the appeal,  which was accorded in the last week of May, 2012. It was further stated the delay, aforesaid, in filing the appeal, occurred on account on non-coordination, between the Offices of the appellant, located at far off places. It was further stated that, as such, the delay of 81 days, in filing the appeal, was neither intentional nor deliberate.  Accordingly, a prayer, referred to, at the outset of this paragraph, was made.

9.             We have heard the Counsel for the applicant/appellant, on the application for condonation of delay, as also, in the main appeal, and, have gone through the evidence, and record of the case, carefully. 

10.            The question, that arises, for consideration, is, as to whether, there is sufficient cause for condonation of delay of 81 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under ;

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

11.              Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has  been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. Admittedly, copy of the order, was received by the Counsel for the Company/applicant/appellant, on 11.04.2012. The case of the applicant/appellant, that the delay, aforesaid, in filing the appeal, occurred on account of non-coordination between its offices, located at far off places, is not prima-facie established, from any document, on record. The delay of 81 days, which is more than 2½ months, beyond  the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to  the applicant/appellant. The cause, set up, by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it, from filing the appeal, in time. The delay in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 81 days. Since, no sufficient cause is constituted, from the averments, contained, in the application, the delay of 81 days cannot be condoned. The application is, thus, liable to be dismissed. 

12.               The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under ;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

13.              It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party or its bonafides, may fall for consideration. In the instant case, right from the very beginning, the conduct of the applicant/appellant/Opposite Party No.7, was blameworthy. It was out and out, to harass the complainant, right from the very beginning, by resorting to dubious means. The order dated 04.04.2012, has not so far been executed and the complainant has been suffering a lot. The conduct of the applicant/appellant, right from the very beginning, is not aboveboard.  The principle of law, laid down in Ram Lal & Others’ case(supra), is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.

14.           Now, coming to the merits of the appeal, the Counsel for the appellant, submitted that, no doubt, the complainant was an employee of Opposite Parties No.1 and 2, after having joined their Organization, in the month of April, 2009. He further submitted that, no doubt, the appellant/Opposite Party No.7, extended insurance cover to the parents of the employees of Opposite Parties No.1 and 2, but the father of the complainant, was not covered, under that coverage, as she (complainant) did not update the information, with regard to her parents, from 15.04.2009 to 30.04.2009, when the window for the same was open. He further submitted that, as such, at the time, when the operation of the father of the complainant was conducted, he was not covered under the Insurance Policy. He further submitted that the complainant was extended the insurance cover only on 29.09.2009. He further submitted that, as the parties are bound by the terms and conditions of the Insurance Policy, the complainant could not be granted reimbursement of the expenditure, incurred by her, on the surgery of her father, in the month of June, 2009. He further submitted that the District Forum was wrong, in coming to the conclusion, that there was deficiency, in rendering service, on the part of Opposite Party No.7. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

15.           After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is also liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter. Admittedly,  the complainant, joined the service of Opposite Parties No.1 and 2, in the month of April, 2009. There is, no dispute, about the factum that Opposite Party No.7 (now appellant), extended insurance coverage to the parents of the employees of Opposite Parties No.1 and 2. The deduction of premium, from the pay of the employees, used to be made, every month. There is, no dispute, about the factum that the complainant, after having joined the Organization of Opposite Parties No.1 and 2,  in April, 2009, resigned therefrom, in August, 2009. Annexure C-1, is a copy of the email, containing the key features of the New Mediclaim Insurance Policy. It is dated 14.04.2009, sent by respondent no.6, to respondent no.8.  Under the heading “Key Features of the New Group Mediclaim Insurance Policy”, sub-heading Coverage of Parents, of Annexure C-1 the relevant part reads as under:-

“Extension of Mediclaim Benefit for covering Parents is at a very competitive rate negotiated for DLF Pramerica employees.  This policy covers pre-existing diseases, waives off 1^st year exclusions, covers pre and post hospitalization expenses and available on very competitive prices compared to retail policies from similar insurance providers.

Coverage of Parents will be practiced as “Auto Coverage” which will get triggered upon employee joining.

Cost of covering 2 parents will be Rs.3,700/- for the year which will be recovered through your monthly salaries in equal installments. (310/- per month for 12 months).  Parent cover is a floater, hence cost for one/two parents is the same.”

16.           The relevant part of the afore-extracted Clause of Annexure C-1, clearly goes to show that the coverage of Parents was to be practiced as “Auto Coverage”, to be triggered upon joining of the employee. It means that, as soon as the complainant joined the Organization of Opposite Parties No.1 and 2, the insurance cover of her parents, was to start, as   “Auto Coverage”. Since the coverage, as per the relevant part of the afore-extracted Clause of Annexure C-1, was to trigger upon the joining of the employee, it was the duty of Opposite Parties No.1 and 2, as also of Opposite Party No.7/appellant, to extend coverage of insurance, to the parents of the complainant, the moment she joined the Organization. The complainant had produced pay slips for the months of April, 2009, May, 2009 and June, 2009, as Annexure C-3 (colly.). From these pay slips, it is evident, that Opposite Parties No.1 and 2, had deducted the premium amount of Medical Insurance, from the salary account of the complainant, to the tune of Rs.336/- each, from April, 2009 to June, 2009. The Insurance Policy was to be issued by Opposite Party No.7, in favour of Opposite Parties No.1 and 2, insurer, for the benefits of its employees and their parents. Once, the premiums were deducted, in respect of the policy aforesaid, from the pay of the complainant, from April, 2009, the moment she joined the Organization of Opposite Parties No.1 and 2, there was no reason, on their part and Opposite Party No.7, not to extend the coverage of insurance to the parents of the complainant, as per the relevant part of the afore-extracted Clause of Annexure C-1.

17.           Not only this, an email Annexure C-2 dated 17.06.2009 was received by the complainant, from Vandana Kharbanda, Opposite Party No.8, an Officer of Opposite Parties No.1 and 2, vide which she intimated that Vaibhav (Respondent No.6), had confirmed that she will get mediclaim for her parents. This document, clearly goes to prove that the father of the complainant, was covered under the Mediclaim Insurance Policy, taken by Opposite Parties No.1 and 2, from Opposite Party No.7, for the benefit of the parents of the employees/complainant. It was, on receipt of the email Annexure C-2, aforesaid, that the complainant went ahead for the surgery of her father on 20.06.2009. No doubt, Opposite Parties No.1 to 6, have denied that such email, had been sent by Vandana Kharbanda, Opposite Party No.8, Human Resource Manager of Opposite Parties No.1 and 2. However, they did not muster courage to place on record, the affidavit of Vandana Kharbanda, aforesaid, denying the sending of the email aforesaid.  No doubt, according to the appellant/Opposite Party No.7, insurance cover was extended to the parents of the complainant, in the month of September, 2009. However, this stand of the appellant/Opposite Party No.7, is belied from the factum, that in the month of August 2009, itself, the complainant resigned from the Organization of Opposite Parties No.1 and 2. When she had already resigned, and left the Organization of Opposite Parties No.1 and 2, forever, in the month of August, 2009, by no stretch of imagination, it could be said that the insurance cover of her father was extended in September, 2009. Once, the complainant left the Organization of Opposite Parties No.1 and 2, in August, 2009, the question of deduction of any premium, thereafter, from her pay, also did not at all arise.  Under these circumstances, Opposite Parties No.1, 2 and 7, by repudiating the claim of the complainant, for the refund of amount of Rs.30,014/-, the expenditure incurred by her, on the treatment of her father, in the Fortis Hospital, vide Annexure C-4, at page 72/21 of the District Forum file, were deficient, in rendering service. The District Forum was right, in holding so.

18.           The Counsel for the appellant, no doubt, submitted that the parties were bound by the terms and conditions of the Insurance Policy. He further submitted that, as per her own admission, the complainant could not update the information with regard to her parents from 15.04.2009 to 30.04.2009, when the window for the same was open. It is settled principle of law, that when there are two conditions, in the policy, not inconsonance with each other, then the one, favourable to the insured or the beneficiary of insurance, shall be taken into consideration. Had the premium been not deducted from the pay of the complainant, right from the month of April, 2009, when  she joined  the Organization of Opposite Parties No.1 and 2, the matter would have been different. In those circumstances, it would have been said that the employer did not deduct the premium, from the salary of the complainant, as she did not update the information, with regard to her parents from 15.04.2009 to 30.04.2009, when the window for the same was open, and, thereafter, the same was closed. It was not the fault of the complainant, rather it was the duty of Opposite Parties No.1 and 2, its Officers and employees, to confirm that the information had been updated by the complainant, with regard to her parents, and, in case, she had not updated the information, they could ask her to do so. Only after updating such information, in the window, they were required to deduct the premium, from her pay. Only after confirming that every information regarding her parents had been supplied by the complainant, that Opposite Parties No.1 and 2, started deducting premium from her pay, towards the insurance policy, taken by them, from Opposite Party No.7, for her parents i.e. the beneficiaries. It was the internal matter between the Officers/officials of Opposite Parties No.1 and 2, and the complainant was not to suffer at their hands, for their own fault. If there was an administrative lapse, on the part of the Officers/officials of Opposite Parties No.1 and 2, then the complainant or her parents could not be made the scapegoat. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same stands rejected. 

19.           No other point, was urged by the Counsel for the appellant.

20.           The order, passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

21.           For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order, as to costs. The order of the District Forum is upheld.

22.           Certified Copies of this order, be sent to the parties, free of charge.

23.           The file be consigned to Record Room, after completion

Pronounced.

August 16,  2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg.