Punjab

Ludhiana

CC/14/452

Krishan Lal - Complainant(s)

Versus

LIC Of India - Opp.Party(s)

06 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          Complaint No:  452 of 23.06.2014.

                                                          Date of Decision: 06.03.2017.

 

1. Krishan Lal Dhiri S/o. Sh. Amar Nath Dhiri, R/o. H. No.B-VI-793/3, Gow Shala Road, Ludhiana.
2. Radhika Dhiri W/o. Sh. Krishan Lal Dhiri, R/o. H. No.B-VI-793/3, Gow Shala Road, Ludhiana now deceased and represented by her legal heirs which are impleaded by this Hon’ble Forum vide order dated 18.03.2015 are as follows:-

1.    Krishan Lal Dhiri (Husband)
2.     Kamal Dhiri (Son)
3.     Raman Dhiri (Son)

both sons of Krishan Lal Dhiri, R/o. H. No.B-VI-793/3, Gow Shala Road, Ludhiana.

4.     Kamini Vig D/o. Krishan Lal Dhiri W/o. Sh. Kamal Vig, R/o. 161-162, New Model Town, Ludhiana.                                                                                                                   ..… Complainant

                                                Versus

1. Life Insurance Corporation of India, 4^th Floor, West Wing, Yogakshema, Jeevan Bhima Marg, Nariman Point, Mumbai-400021 through its Chairman/Executive Officer/Authorized Signatory.
2. Life Insurance Corporation of India, Branch Office D.A.B. Miller Ganj, Ludhiana through its Manager/Executive Officer/Authorized Signatory.

…..Opposite parties 

                                      Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Nitin Jain, Advocate.

For OPs                         :         Ms. Anju Khullar, Advocate.

ORDER

PER G.K. Dhir, PRESIDENT

1.                Complaint under Section 12 of the Consumer Protection Act (hereinafter referred as Act) filed by complainant by pleading that complainant Krishan Lal Dhiri along with his wife Radhika Dhiri (now deceased) got LIC’s Health Plus Plan from Ops on 09.05.2008 for assured sum of Rs.2,00,000/- per insured. That policy No.300636495 was valid from 09.05.2008 to 09.05.2020. Since from commencement of the policy neither of the insured ever lodged claim with Ops, but unfortunately Smt. Radhika Dhiri met with an accident resulting in fracture of right leg on 20.04.2013. Thereafter, she was admitted in Dayanand Medical College and Hospital, Ludhiana and remained there for treatment as indoor patient from 20.04.2013 to 24.04.2013. Complainant informed the Ops by filing claim intimation form on 20.04.2013 itself. Sh. Pankaj Mahindra, DR. of Dayanand Medical College and Hospital, Ludhiana advised complainant No.1 and Smt. Radhika Dhiri for immediate operation/surgery and same was done on 20.04.2013 by way of internal fixation nail distal locking plate. An expenditure of Rs.1,42,184/- incurred on this treatment. Complainant No.1 and Smt. Radhika Dhiri submitted the claim with Ops on 17.05.2013 along with required documents in original. Ops issued cheque No.96486914 dated 07.06.2013 of amount of Rs.2400/- only in favour of complainant No.1 by post. That was received under protest by complainant because rejection for remaining amount of claim was on false grounds through letter dated 11.06.2013. Thereafter, complainant No.1 along with Smt. Radhika Dhiri kept on visiting office of Ops for getting balance amount, but to no effect. Even after service of legal notice dated 26.05.2014 through counsel through registered post, balance amount of claim not paid. Rather frivolous reply through letter dated 03.06.2014 of above legal notice was ent by OPs. By claiming that Ops were deficient in providing services and they adopted unfair trade practice, prayer made for directing Ops to reimburse the balance amount of Rs.1,42,184/- along with interest @12% p.a. Compensation for mental agony and physical harassment of Rs.1 Lac, but litigation expenses of Rs.20,000/- more claimed.

2.                In joint amended written statement filed by Ops, it is claimed that L.I.C’s Health Plus Plan (T.No.901) was introduced in January 2008. Same is unit linked plan, which provides for insurance cover against hospital cash benefit and major surgical benefits only. The welcome kit containing policy bonds, conditions and privileges under Health Plus Plan had been supplied to complainant No.1, the principal insured as well as to Smt. Radhika Dhiri. In the policy documents, clear mention about the benefit limits was made. That was to the effect that for every hospitalization no benefit would be paid for the first 48 hours of hospitalization, regardless of the fact whether the insured was admitted in general or special ward or in intensive care unit. The claimed amount was paid as per terms and conditions of the policy by sending claim settlement letter dated 11.06.2013. In that writing, it was specifically mentioned that surgery in question is not listed in the allowed surgical benefit annexure. Complainant No.1 has also received cheque No.96486914 dated 07.06.2013 and this complaint filed with afterthought version after a gap of more than one year. Insured were duly aware of the terms and conditions of the policy and as such, they even were aware that they are not eligible for any other compensation except the one they had already received. Complainants have suppressed material facts from the Forum and as such, they are not entitled for  any relief. TPA has not been intentionally arrayed as party. Information was got by Ops on the basis of information provided through proposal form. In the list of surgical benefit annexure under title MUSCULOSKELETAL SYSTEM, it is mentioned that surgery with regard to amputation of arm or hand or foot or leg due to trauma or accident is covered. However, complainant was operated for internal fixation nail distal locking plate and same is not covered under the policy. The policy is a legal contract between the policy holder and insurance company and parties are bound by the terms and conditions. Present complaint alleged to be filed for abusing process of law. Rejection of the remaining claim amount was done as per terms and conditions of the policy. By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

3.                Smt. Radhika Dhiri expired during pendency of the complaint and as such, her legal heirs were brought on record by getting the amended complaint filed.

4.                Complainants to prove their case tendered in evidence affidavit of complainant No.1 Sh. Krishan Lal Dhiri as Ex. CA and even their counsel tendered in evidence documents Ex. C1 to Ex. C30 and thereafter, closed evidence.

5.                On the other hand, counsel of OPs tendered in evidence affidavit Ex. RW1/A of Sh. Sunil Kumar Ratan, Marketing Manager of OPs along with documents Ex. R1 to Ex. R3 and then closed evidence.

6.                Written arguments not submitted by any of the parties. Oral arguments of counsel for parties heard and record carefully gone through.

7.                It is vehemently contended by Ms. Anju Khullar, Advocate for Ops that the policy in question is a unit linked health insurance plan and as such, complainant is not a consumer in view of law laid down in case Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co. and others decided on 23.04.2013 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi through Revision Petition No.658 of 2012. These contentions advanced by counsel for Ops has no force because after going through the ratio of said case, it is made out that complainant in that case was an experienced advocate and Notary, due to which he being conscious educated person was knowing the terms and conditions of the policy. In that case, it was specifically held that since beginning complainant proceeded in a preplanned manner for earning in business from the invested amount in unit linked policies. Wife of the complainant of that case also was a recognized agent of insurance company. The policies were purchased for investment of the premium amount in the share market, which was for speculative gain and that is why it was held that complainants were not consumer because they invested premium of Rs.2 Lac with annual premium for 24 years. That is not the position in the case before us because here the policy Ex. C1 = Ex. R1 was availed for health insurance plan with assured sum of Rs.2 Lac by paying installment premium of Rs.14,000/- only with term of 12 years. The investment of this amount was not for earning profits, but for health safety measures and as such, present is not a case in which the aim of complainants was to earn profit by way of investing the premium in the share market. So the facts of the relied case are quite distinct than those of the facts of the case before us and as such, benefit of ratio of above cited case not available to Ops.

8.                Smt. Radhika Dhiri on account of sustenance of injury of fracture of right leg in accident, submitted claim form Ex. C3 by disclosing that treatment by way of open reduction and internal fixation nail distal of plate was provided. Mention of same is made in Ex. C3. Bills and other hospital record of DMCH in this respect produced on record as Ex. C4 to Ex. C25 and as such, it is vehemently contended by counsel for complainant that  complainants entitled to the entire balance amount. That amount has not been paid despite lodging of the claim and service of legal notice Ex. C27 dated 26.05.2014 through postal receipt Ex. C28 and Ex. C29 and as such, it is vehemently contended that allowing of amount of Rs.2400/- alone  amounts to deficiency in service on the part of Ops.

9.                The terms and conditions of the contract of insurance are binding on the parties and nothing can be added or subtracted to these terms by the Forum and as such, certainly submissions advanced by counsel for Ops has force that nothing can be added or subtracted by this Forum by giving different meaning to the words mentioned in the insurance contract. For holding this view, we are fortified by law laid down in cases of Ind Swift Vs New India Assurance Co. Ltd. & others IV(2006) CPJ 148 (NC); Usha Sharma and others Vs New India Assurance Co. Ltd. and others I(2012) CPJ 488 (NC); United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal IV(2004) CPJ 15(SC) and Deokar Exports Pvt. Ltd. Vs New India Assurance Company Ltd. I(2009) CPJ 6(SC). So we have to see as to whether the allowing of the claim to the extent of Rs.2400/- alone is as per terms and conditions of insurance plan in question or not.

10.              After going through Ex. C1 = Ex. R1, it is vehemently contended by counsel for complainant that in Clause-1, containing definition, it is mentioned that the accident means a sudden, unintended, fortuitous, violent, visible and external event and as such, in view of the bodily injuries received by Smt. Radhika Dhiri in accident, the case in hand falls under category of accident bodily injuries. Even if treatment got by Radhika Dhiri was for accidental bodily injury as defined in condition No.1 of Ex. C1 = Ex. R1, despite that other terms and conditions of the policy also to be taken into consideration because definition clause provided always  for helping in actual reading of the terms and conditions of the policy. It is not the definition clauses alone that to govern the case of the parties. The other terms and conditions, providing the circumstances in which claim payable or not, has to be applied for finding the entitlement of the complainant. Certainly clause No.2 provides that claim amount payable in respect of the treatment for specified surgery in hospital due to accidental bodily injury or sickness. Use of the word specified surgery in clause 2 (c) (i) of Ex. C1 = Ex. R1 itself connotes that the other terms and conditions of the policy has to be gone into for finding as to what are those specified sicknesses or injuries. Through clause No.3 (II) (v), it is mentioned that major  surgical benefit  for any surgery  cannot be claimed and shall not be payable more than once for the same surgery during the term of the policy. Present is not a case in which this claim staked with respect to the second surgery for accidental injury. So benefit from this clause not available to Ops. However, after going through page 16 of Ex. C1 = Ex. R1, it is made out that benefit available for major surgical treatments under policy is only in respect of the surgeries listed in the surgical benefit annexure. That surgical annexure is having head MUSCULOSKELETAL SYSTEM mentioned at page no.27 of Ex. C1 = Ex. R1. Perusal of the same reveals that this major surgical benefit available for treatment in respect of total replacement of Hip or knee joint  following accident or due to amputation of arm or hand or foot or leg due to trauma or accident. Case of complainant not covered by any of these major surgical situations and as such, certainly submission advanced by counsel for Ops has force that owing to exclusionary clause, complainant not entitled to amount in excess of one, which has already been disbursed to complainant because the case in hand is not falling in the category of major surgical benefit for the surgery. Rather treatment through surgery got by complainant in this case for the surgery not listed in surgical benefit annexure and as such, complainant not entitled for greater amount than the amount already allowed through Ex. R2. Repudiation of claim through letter Ex. R3 as such is quite appropriate because the surgery in question is not listed in the surgeries qua which benefits available under the terms and conditions of the policy Ex. C1 = Ex. R1.

11.              It is admitted by the complainants in para no.7 of the complaint itself that a cheque of amount of Rs.2400/- was received by complainant No.1 through letter dated 11.06.2013. Though it is claimed that the said amount was received under protest by complainant No.1, but no endorsement of such protest produced on record except the legal notice Ex. C27 sent on 26.05.2014. The cheque in question received by complainants through letter dated 11.06.2013 as per contents of the complaint and except the legal notice Ex. C27, no other writing of receipt of this amount under protest is produced and as such, it is obvious that the complainants after contacting the counsel did raise protest through letter Ex. C27 of date 27.05.2014 only. As and when a person comes in contact with a legally trained mind, then certainly he is able to concoct a story. It is on account of this that the allegation of receiving the cheque of Rs.2400/- under protest brought into existence after more than 11 months of receipt of cheque. So the story regarding receipt of the cheque under protest is not believable at all. In case the complainant got encashed the cheque sent by the insurance company in full and final settlement of the claim qua insurance without protest and allegation of coercion or fraud or undue influence not pleaded or alleged, then complainant ceases to be a consumer as per law laid down in cases Kanta Mathur Vs National Insurance Company Ltd. I(2015) CPJ 151(NC); Vijay Stationers Vs United India Insurance Co. Ltd. I(2013) CPJ 637 (NC); Haryana State Co-operative Supply & Marketing Federation Ltd. Vs Iffco Tokio General Insurance Company Limited and another II(2013)CPJ 364(NC); M.L. Kathuria Vs Oriental Insurance Co. Ltd.  and another II(2013) CPJ 586 (NC); A.P. Jos Vs ICICI Lombard General Insurance Company Limited II(2013) CPJ 386(NC); Yogesh Kumar Sharma (Dr.) Vs National Insurance Company Limited-II(2013) CPJ 178 (NC); Ravindra Spinners Ltd., Vs National Insurance Company Limited and another-III(2013) CPJ 539 (NC); Nirmal Singh Vs Oriental Insurance Company Limited-IV(2012) CPJ 641 (NC) and Rajendra Panigraphy Vs Oriental Insurance Company Limited and another-II (2010) CPJ 589 (Orissa State Consumer Disputes Redressal Commission, Cuttack). Ratio of all these cases fully applicable to the facts of the present case, particularly when the complainant initially did not raise protest at the time of receipt of the cheque and allegation of coercion or fraud or undue influence not leveled in the complaint or in the notice Ex. C27 or through affidavit, but story regarding raising of protest concocted after 11 months of receipt of cheque. So in view of this legal position, complainant ceased to be the consumer after encashment of cheque amount of Rs.2400/- received through letter dated 11.06.2013. Being so this consumer complaint is not maintainable.

12.              Benefit of ratio of case United India Insurance Company Limited Vs M/s. Pushpalaya Printers 2004(I) CPC 470 (SC and Life Insurance Corporation of India Vs Ram Singh Tanwar 2007(I) CPC 278 (NC) cannot be availed by counsel for Ops because there is no ambiguity qua the terms and conditions of Ex. C1 = Ex. R1 discussed in detail above and also because of the fact that complainants after receipt of sent amount ceased to be consumer.

13.              As a sequel of above discussion, complaint dismissed without any orders as to costs. Copies of order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                                       (Param Jit Singh Bewli)                    (G.K. Dhir)

                                       Member                                            President

Announced in Open Forum.

Dated:06.03.2017.

Gobind Ram.