KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.477/2016

JUDGEMENT DATED: 30.05.2023

(Against the Order in C.C.No.12/2014 of CDRC, Malappuram)

PRESENT:

PETITIONER/APPELLANT:

(by Adv. Anitha Aji)

Vs

RESPONDENTS:

JUDGEMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

This is an appeal filed by the Manager of Life Insurance Corporation of India, Kozhikode, the 1^st opposite party in C.C.No.12/2014 on the file of the District Consumer Disputes Redressal Commission, Malappuram (District Commission for short).  The District Commission as per the order dated 30.04.2016 directed the opposite parties to pay Rs.36,386/-(Rupees Thirty Six Thousand Three Hundred and Eighty Six) to the complainant being the expenses met by them for treatment along with compensation of Rs.40,000/-(Rupees Forty Thousand) towards the mental agony caused and Rs.10,000/-(Rupees Ten Thousand) as costs of this proceedings.  Being aggrieved by the aforesaid order the appeal has been filed.

2.       The averments contained in the complaint in brief are stated hereunder:  The 2^nd opposite party is the authorised agent of the Life Insurance Corporation.  On 01.07.2012, the 2^nd opposite party had persuaded the complainants to avail a medi-claim policy named Jeevan Arogya on an assurance that the complainants will get protection up to the age of eighty years and the benefit will be available to all the members of their family.  Believing the assurance made by the 2^nd opposite party, the complainants had subscribed the policy and joined and remitted the premium as per Jeevan Arogya Scheme.  The 2^nd complainant had to undergo a surgery by availing inpatient treatment in PVS Hospital, Kozhikode from 02.03.2013 to 04.03.2013.  An amount of Rs.36,386/-(Rupees Thirty Six Thousand Three Hundred and Eighty Six) was spent towards the medical as well as surgery expenses.  Thereafter the complainants had preferred the claim before the opposite party but their claim was rejected by the opposite party for the reason that the same was outside the purview of the policy.  The complainants would allege deficiency in service on the part of the opposite party.  Hence the complaint.

3.       The 1^st opposite party alone had contested the matter.  The 1^st opposite party would admit the fact that the complainant had availed the policy by name Jeevan Arogya.  The claim put forward by the complainant and the rejection of the same was also conceded by the 1^st opposite party.  According to the opposite party the claim was rejected since the treatment was availed during the waiting period after the revival of the policy.  As per the stipulations contained in the policy conditions, if the premium is not paid within the stipulated period and the grace period of one month, the benefit will not be available to the party.  But the policy can be revived within a period of two years subject to a condition that the revival will take place on expiry of waiting period of ninety days.  The premium ought to have been paid on every third January and July.  The half-yearly premium was due on 03.07.2012 and the next premium was due on 03.01.2013.  But the complainant had failed to pay the premium within the grace period and thereby the policy got lapsed.  Subsequently, the policy was revived on 15.02.2013 after forty-three days.  The date of hospitalisation of the 2^nd complainant was on 02.03.2013 which is within the waiting period and hence the claim was rejected.  There is no deficiency in service and hence the complaint is sought to be dismissed.

4.       The evidence consists of the testimony of the 1^st complainant as PW1 and Exhibits A1 to A4 on the side of the complainant.  The 1^st opposite party filed affidavit in lieu of examination and Exhibits B1 to B7 were marked.  The District Commission took a view that there was nothing noted in the policy regarding the waiting period.  So the complainants were not made aware of the clause regarding the waiting period of the policy and hence there was deficiency in service on the side of the opposite parties.

5.       In the appeal memorandum the following allegations are raised.  The District Commission had failed to appreciate the evidence in reaching a proper conclusion.  The policy issued to the party is the basis for the claim.  The complainants had availed the policy by knowing about the conditions and clauses contained in Exhibit B7.  The facts elicited through the examinations and cross examinations of the 1^st complainant would reveal that the complainant was made aware about the conditions of the policy at the time of availing the policy.  The conditions and privileges under the policy are clearly mentioned and attached to the policy bod which is declared as an inseparable part of the policy.  Exhibit A1 comprises only two sheets of paper and the complainant did not cause production of the terms and conditions attached to the policy.  The appellant would place reliance upon two Rulings of the Apex Court reported in United India Insurance Co. Ltd. Vs. M/s Harchand Rail Chandanlall (AM 2004 5C 2794) and Oriental Insurance Co. Vs. Sony Cherian (1999) 6 SCC 451 whereby it is held that the insurance policy represents a contract between the parties and the agreements have to be strictly construed to determine the liability of the insurer.                                

The appellant would seek for setting aside the order passed by the District Commission.  The 2^nd opposite party was set exparte before the District Commission.

6.   Heard both sides.  Perused the records received from the District Commission and the appeal memorandum.  Exhibit A1 is the policy certificate issued in favour of the complainant.  A2 series are the identity cards issued to the complainants.  As per Exhibit A3 the 1^st opposite party had rejected the claim of Rs.36,386/-(Rupees Thirty Six Thousand Three Hundred and Eighty Six) for the reason that the claim was with respect to the waiting period of ninety days from the date of revival of the policy.  A4 series are the documents submitted by the complainants before the insurance company.  Admittedly, the policy got elapsed on 03.02.2013 due to failure on the part of the complainants in remitting the requisite premium within the time limit. The premium ought to have been remitted on 03.01.2013.  The complainants had a grace period of one month.  So, there is failure on the part of the complainants in making the remittance of premium as agreed in the conditions.  The opposite parties had caused production of Exhibit B1 the proposal form for the policy submitted by the 1^st complainant.  B2 is the photocopy of the policy (Exhibit A1).  Exhibit B3 is the claim intimation form submitted by the complainants.  As per Exhibit B4 the claim was rejected as the same was in respect of a period within the waiting period of ninety days from the revival of the policy.  Exhibit B5 is the personal statement submitted by the complainant after the revival of the policy.  Exhibit B6 is the intimation letter sent by the opposite party to the complainant.  Exhibit B7 is the crucial document produced by the appellant.  It is the conditions and privileges with respect to the policy.  In Clause No.6 of Exhibit B7, waiting period is mentioned.  As per Clause No.6 the general waiting period shall be ninety days from the date of cover of each insurer.  The learned counsel for the complainants had cited the ruling of the Apex Court reported in 2022 Live Law (SC) 937 in M/s Texco Marketing Pvt. Ltd. Vs. TATA AIG General Insurance Company Ltd. & Ors.   In the above Ruling the Hon’ble Supreme Court took a view that the exclusion clause in a contract of insurance has to be properly interpreted.  The burden lies on the insurer when reliance is made on such a clause.  The facts and circumstances discussed in this Ruling are entirely different.  It was in respect of a building situated at the basement.  The above building was insured but later the insurance company would place reliance upon the exclusion clause for the reason that no claim could be granted in respect of the building situated in the basement.  So such a clause would work out against the very object of the policy.  (The unilateral inclusion of such a stipulation would eclipse the offending exclusion clause of the contract, receiving benefits and later repudiating the same after knowing that the claim was in respect of the building situated at the basement would be an act of unfair trade practice.)  The above Ruling has no application to the instant case.  Here the complainants had failed to remit the premium within the requisite period and later remitted the premium.  Revival will take place after elapsing the waiting period of ninety days.  The affidavit filed by the 1^st complainant in lieu of chief examination would show that the 2^nd opposite party had made the complainant aware of the stipulations in the policy.  Pleadings are seen in paragraph 1 of the complaint in this connection.  The complainant had deliberately suppressed the failure on their part in remitting the premium within the requisite period.  When there is failure on their part in remitting the premium within the stipulated period, one cannot say that the complainants were not aware of the wating period of ninety days from reviving the lapsed policy.  The treatment was availed within ninety days from the remittance of the premium towards the lapsed policy.  So, the complainants cannot pretend ignorance about such a clause and raise a claim.  The evidence on record shows that the complainant was made aware about the conditions of the policy by the 2^nd opposite party. Since the period of treatment falls within the waiting period the opposite party had valid grounds to reject the claim.  The District Commission has failed to appreciate the evidence on record in its proper perspective.  The order passed by the District Commission is unsustainable and hence liable to be set aside.

In the result, the appeal is allowed.  The order passed by the District Commission is set aside and the complaint shall stand dismissed.  The parties shall bear their respective costs.

The statutory deposit made by the appellant at the time of filing the appeal is ordered to be refunded on proper acknowledgement.

SL