IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 26th day of April, 2022.
Filed on 11.10.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C K Lekhamma, B.A.L, LLB (Member) In
CC/No.242/2021
between
Complainant:- Opposite party:-
Sri.R.Ananthakumar, Manipal Cigna Health Insurance Co.Ltd.
S/o V.Ramachandra Raddiar, 401/402,Raheja Titanium,
Veeriah Cini House Veedu, Western Express Highway,
Mullackal village, Goregaon (E),
Ambalappzha Taluk Mumbai – 400063.
Alappuzha. (Rep.by Adv.Sri.Saji Isaac K.J.)
Ph: 9447455280
(Rep.by Adv.Sri. D.Sahadevan Nair)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly discussed are as follows:-
Complainant applied for a health insurance policy of the opposite party under the plan lifetime health through online. The sum insured for the proposed policy was Rs.1,00,00,000/-, the term of the policy was 2 years and premium calculated was Rs.69,609/-. Complainant submitted the proposal details and paid the premium on 06.09.2021 through net banking and the proposal number was 1310003449 dated 06.09.2021.
2. As per the IRDA regulations opposite party should issue the policy within 15 days of the proposal. Unfortunately the policy was not issued even after the specified period and hence the complainant issued an email. A reply was received stating that they will process the proposal within 5 working days and issue the policy. However even after the said period the policy was not issued and hence complainant sent an email to cancel the policy and refund the amount received as premium forthwith. Thereafter on 09.10.21 opposite party issued an email stating that they are unable to issue the policy on the basis of an underwriting risk assessment done by the company in view of the existing diseases. Even after rejecting the proposal of the complainant the opposite party did not refund the premium and holding the same without any reason is against principles of natural justice. It is also against regulations of IRDA.
3. Opposite party cannot reject the proposal stating that the proposer is having pre existing diseases. Opposite party ought to have issued the policy excluding the coverage of policy for pre-existing diseases. Complainant has spent an amount of Rs.25,000/- for his travelling expenses and other expenses for obtaining medical reports as requested by the opposite party. The said amount is to be compensated. Complainant sustained severe mental agony sufferings hardships and monitory loss. There is deficiency of service from the part of the opposite party and hence complainant is entitled to get an amount of Rs.5,00,000/- as compensation. Hence the complaint is filed for giving a direction to the opposite party to issue life time health policy to the complainant as proposed in the proposal dated 06.09.21 and for realizing an amount of Rs.5,00,000/- as compensation along with interest.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable and the complainant is not a consumer of the opposite party. There is no privity of contract between the complainant and the opposite party. The allegation regarding sending of emails are false. The allegation that even after rejecting the proposal the premium amount was not returned is false.
5. The proposal was submitted by complainant through policy bazaar (Online). Complainant had paid the premium through policy bazaar and therefore the premium was refunded through policy bazaar by UTR No.836355. Opposite party had also obtained a confirmation from the policy bazaar that the refund was successful. The grievance of the complainant through email dated 24.10.21 was addressed. The grievance regarding the cancellation and refund was duly addressed by 24.10.2021. The averment that opposite party cannot reject the proposal stating that the proposer is having pre existing diseases is false. The allegation that the opposite party ought to have issued the policy excluding the coverage of policy for pre-existing disease is false. The allegation that the opposite party violated the existing laws, norms and guidelines issued by the IRDAI is false. The allegation regarding spending of Rs.25,000/- is not known to this opposite party and they are not liable to compensate the complainant. Complainant is not entitled to get Rs.5 lakhs as compensation.
6. Policy of insurance is a contract based on an offer (proposal) and an acceptance. Though the complainant made a proposal, it was not acceptable to the opposite party. It was intimated to the complainant and the premium was refunded. Opposite party has the right to reject the proposal. Mere submission of the proposal and payment of the premium cannot create a valid contract.
7. In the proposal form it is stated that in case a medical examination is to be done or an underwriting approval is required, the policy shall commence or on or after the date of approval by underwriter. The proposal was rejected as the risk was not acceptable to the company in view of the health conditions of the complainant namely diabetes, hypertension, osteoarthritis, asthma, elevated uric acid, hypothyroidism and intake of dulane ( a tablet used for the treatment of depression and anxiety disorders, psychosomatic pain, neuropathy etc.). All the facts were duly informed to the complainant. Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.
8. On the above pleadings following points were raised for consideration:-
- Whether the complaint is maintainable?
- Whether the complainant is a consumer?
- Whether there is any deficiency of service from the part of opposite party as alleged?
- Whether the complainant is entitled to get an order directing the opposite party to issue life time health policy as per the proposal dated 06.09.21?
- Whether the complainant is entitled to realise an amount of Rs.5 lakhs as compensation from the opposite party as prayed for?
- Reliefs and cost?
9. Both parties have not adduced any oral evidence. Exts.A1 to A10 were marked from the side of the complainant and Ext.B1 was marked from the side of opposite party.
10. The case advanced by complainant is that on 6/9/2021 he applied for a Lifetime Health Insurance Policy through online to the opposite party. The proposed policy was for Rs.1/- crore, the term of the policy was 2 years and premium calculated was Rs. 69,609/-. He paid the premium through policy bazar. As per IRDA regulation the opposite party should issue the policy within 15 days of the proposal. However the policy was not issued inspite of repeated request and on 9/10/2021 opposite party issued an e-mail to the complainant stating that they are unable to issue the policy. According to the complainant opposite party cannot reject the proposal stating that the proposer is having pre-existing disease. Though policy was declined the premium amount was returned after about one month. Hence the complaint is filed for giving a direction to the opposite party to issue the Lifetime Health policy to the complainant as per the proposal dtd. 6/9/2021. According to the complainant he had spend an amount of Rs. 25,000/- and spend a lot of his valuable time for collecting records and medical records. Hence he is claiming an amount of Rs.5/- lakhs as compensation. Opposite party filed a version admitting that they had received a proposal through policy bazaar. It is not mandatory for the opposite party to issue the policy on the basis of proposal. The proposal was rejected as the risk was not acceptable to the company in view of the health conditions of the complainant namely Diabetes, Hypertension, Osteoarthritis, Asthma, Elevated Uric Acid, Hypothyroidism and intake of Dulane. Since the policy was declined, the premium sent was returned through policy bazaar. It was also contended that the complaint is not maintainable since the complaint is not a consumer. Both parties have not adduced any oral evidence. Ext.A1 to A10 were marked from the side of the complainant and Ext.B1 was marked from the side of the opposite party.
11. Relying upon Ext.A1 to A10 documents the learned counsel appearing for the complainant pointed out that complainant has proved his case and so he is entitled to get the reliefs sought in the complaint. Per contra the learned counsel appearing for the opposite party contented that the complaint is not maintainable since complainant is not a consumer and that this commission has no territorial jurisdiction to entertain the complaint. Sec.7 (ii) defines consumer as follows:-
“ Consumer means any person who- hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first –mentioned person, but does not include a person who avails of such service for any commercial purpose.”
12. Here the contention taken by the learned counsel appearing for the opposite party is that though complainant made a proposal and paid an amount of Rs.69,609/- on 6/9/2021 through policy bazaar, on going through the records filed along with the proposal opposite party was not ready to accept the risk and so the proposal was rejected and the policy was not issued. Hence according to the learned counsel appearing for the opposite party there is no consumer- service provider relationship between the parties. It was pointed out that there was no privity of contract between the complainant and opposite party. On a perusal of the definition which was extracted above it is pellucid that passing of consideration is an essential ingredient. Service is defined in Sec. 2 (42) of the Consumer Protection Act, 2019. On a reading of the definition of service it is also seen that passing of consideration is an essential ingredient. Here in this case admittedly though a proposal was filed through policy bazaar and Rs. 69,609/- was paid on 6/9/2021, Ext.B1 shows that the amount was refunded on 13/10/2021 since opposite party was not ready to accept the risk. Hence as rightly pointed out by the learned counsel appearing for the opposite party since the policy was not issued to the complainant there is no consumer–service provider relationship between the parties.
13. It was also contented by the learned counsel appearing for the opposite party that this Commission has no territorial jurisdiction to entertain the complaint. In the complaint the address of complainant is shown as Mullackal Village, Alappuzha Taluk, Alappuzha. However in Ext.A1 proposal form. Ext.A2 and Ext.A9 banking statements the address is shown as Whitefield Benglauru, Karnataka. Ext.A10 is the Laboratory report of complainant. In Ext.A10 also the address is shown as Whitefield Bengaluru. It is also noticed that the specimen was collected at Whitefield Bengluru. It is also noticed that the complainant did not enter the witness box. The learned counsel appearing for the complainant stated that the complainant is not having any oral evidence and only documents such as Ext.A1 to A10 are to be marked. It is true that it is for the complainant or the counsel to decide whether oral evidence is to be given or not. Here in this case the documents produced by the complainant shows his Bengluru address. The non examination of the complainant as a witness before this Commission at Alappuzha is to be read along with the address given in the documents. Hence as rightly pointed out by the learned counsel appearing for the opposite party there is a genuine doubt whether complainant is a native of Alappuzha. As stated earlier the records produced by the complainant shows that he is residing at Whitefield, Bengluru. The address of opposite party is Mumbai, Maharashtra. If that is so as rightly pointed out by the learned counsel appearing for the opposite party this Commission has no territorial jurisdiction to entertain the complaint.
14. Coming to the merits of the case the relief sought by the complainant is to give a direction to the opposite party to issue Lifetime Health Policy to the complainant as proposed in the proposal dtd. 6/9/2021. He is also seeking a compensation of Rs.5/- lakh along with interest for mental agony, sufferings and hardships. In para 2 of the complaint it is stated that complainant was constrained to issue a mail to the opposite party to cancel the policy and refund the amount received. If that is so it is not known why complainant is entitled to get a direction since as admitted by him in the complaint, he had already issued a mail to cancel the policy. There is yet another hurdle in this case. The Insurance Regulatory and Development Authority of India, by a notification dtd.16/10/2002 issued the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interest) Regulations 2002. The expression “proposal form” is defined in Regulation 2(d) thus:
“2(d) “ Proposal form” means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.”
15. Thus Regulation 2(d) specifically defines the expression “proposal form” as a form which is filled by a proposer for insurance to furnish all material information required by the insurer in respect of a risk. The purpose of the disclosure is to enable the insurer to decide whether to accept or decline to undertake a risk.”
16. So on a reading of the definition of proposal form it is crystal clear that the insurance company had an option to decide whether to accept or decline to undertake the risk. Here in this case from the version filed by the opposite party it is gathered that the proposal was rejected as the risk was not acceptable to the company in view of the health condition of the complainant namely, Diabetes, Hypertension, Osteoarthritis, Asthma, Elevated Uric Acid, Hypothyroidism and intake of Dulane. So after going through the medical records supplied by the complainant opposite party decided not take the risk and declined the policy. The insurance company had an option either to accept or decline the policy after going through the medical records. If that is so no direction can be given to the insurance company to issue a policy to the complainant. In other words it is not mandatory for the insurance company to accept all the proposal forms and issue a policy covering the risk. Hence no direction can be given to the opposite party to issue a policy to the complainant.
17. It was contented in the complaint and it was pointed out by the learned counsel appearing for the complainant that as per IRDA Regulations opposite party should issue the policy within 15 days of the proposal. As stated earlier it is not mandatory to issue the policy since they had an option to decline also. However here in this case though the amount was collected on 6/9/ 2021 it was returned only on 13/10/2021 which is seen from Ext.A9 statement of account and Ext.B1. So there is delay for returning the amount. However it is to be noted that the office of the opposite party is in Goregaon east, Mumbai, Maharashtra. The proposal was submitted on 6/9/2021. During 2020-21 there was wide spread of Covid-19 Pandemic and Maharashtra state was one of the worse affected area. So it is quite natural that some delay may occur since there will be a restriction in opening the office. Here in this case the premium was paid through policy bazaar on 6/9/2021 and it was returned 13/10/2021 through policy bazaar. It cannot be considered as inordinate delay entitling for the complainant claiming a compensation of Rs.5/- lakhs along with interest. Hence assessing the evidence as a hole it can be seen that complainant is not entitled to get any relief as prayed in the complaint and so these points are found against him.
18. Point No.6.
In the result complaint is dismissed with cost of Rs.3000/- to the opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 26th day of April, 2022.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-
Evidence of the complainant:-
Ext.A1 - Proposer Details issued by Policy Bazaar.
Ext.A2 - Credit Card statement.
Ext.A3 - Gmail dt.15.9.2021 from the Manipal Cigma Health Insurance Company Ltd.
Ext.A4 - Gmail message from the Customer Care @ manipalcigma.com.
Ext.A5 - Email message of the complainant to care@policybazaar.com.
Ext.A6 - Email to Communications@manipalcigma.com.
Ext.A7 - Gmail regarding rejection of proposal
Ext.A8 - Gmail message regarding service request.
Ext.A9 - Statement for HDFC Bank Credit Card.
Ext.A10 - Receipt dt.18.9.2021 issued from Thyrocare.
Evidence of the opposite parties:-
Ext.B1 - Insurer Report of Policy Bazaar.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:-Br/-
Compared by:-
