Sri Subhra Sankar Bhatta, Judicial Member

The present appeal under Section 15 of the Consumer Protection Act, 1986 has been directed at the instance of the Appellants viz. 1) The Chairman, 2) The Regional Manager and 3) Divisional Manager, National Insurance Company Ltd. who were the opposite respective parties before the District Consumer Disputes Redressal Commission, Hooghly, at Chinsurah (herein after referred to as the “District Commission”  for short) assailing the impugned judgment and order dated 05.05.2021 passed by the District Commission in connection with Consumer Complaint case No. CC/74/2019 wherein Ld. District Commission was pleased to pass the following order:-

Hence,

It is ordered

That the complaint case being no. CC/74/2019 be and the same is allowed on contest against OP nos. 1, 2 & 3 with costs.

OP no. 3 is hereby categorically directed to allow the prayer dated 06/11/2019 of the Complainant made before OP no. 3 and switch over the policy of Complainant being no. 153600/48/17/ 8500007012 to “Sampoorna Surakha Bima Policy” with retrospective effect within 45 days from this date of order. 

OP nos. 1, 2, 3 are further directed to pay Complainant Rs.20,000/- towards litigation cost.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocate/Agent on record by hand under proper acknowledgement/send by ordinary post for information and taking necessary action.

Mr. Pijush Kanti Ghosh, the Respondent as Complainant instituted the petition of complaint under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties/Appellants herein and prayed for redressal as sought for in the prayer portion of the said complaint.

Case of the Complainant, in brief, is that he purchased a Mediclaim Policy from Opposite Party no. 3 for himself and his family members being Mediclaim Policy no. 153600/48/17/8500007012 with a sum insured of Rs. 3,50,000/- for himself, Rs. 3,50,000/- for his wife and Rs. 3,50,000/- for his daughter totalling a sum of Rs. 10,500/- and the Complainant duly paid Rs. 12,410/- as premium for the said policy for the year 2017-2018. The said policy was commenced on and from 28.11.2016. It is the further case of the Complainant that on 06.11.2018 he applied before Opposite Party No. 3 for switching over the said policy and to increase the sum insured to Rs. 5,00,000/- for each of his family. Accordingly, the Complainant deposited all the relevant papers and also prepared a Bank draft of Rs. 14,904/- for acceptance of the same by OP No. 3. It is the further case of the Complainant that on 08.11.2018 the Administrative Officer of OP No. 3 Mr. Somnath Banik sent a letter to the Complainant stating inter alia that due to technical reason and to render prompt and hassle free service to their valued customer, issuance of Sampoorna Suraksha Bima Policy has been temporarily withdrawn from their office but on   14.02.2019 the OP No. 3 again issued New Sampoorna Suraksha Bima Policy to Mr. Avijit Mondol and his family members and also received premium of Rs. 17,058/-.  According to the Complainant the Insurance Company has violated the doctrine of equality as embodied in Article 14 of the Constitution of India.

Complainant has specifically alleged that his prayer for switching over the policy to Samporna Suraksha Bima Policy from his existing Policy was totally ignored.  Ultimately, the Complainant sent a legal notice through his Ld. Counsel on 15.04.2019 which was duly received by the OP No. 3 but OP No. 3 did not respond or settle the grievances of the Complainant.  Under such compelling circumstances and finding no other alternative the Complainant was compelled to file the petition of complaint before the District Consumer Disputes Redressal Commission, Hooghly at Chinsurah for relief and redressal.

On the other hand OP Nos. 1, 2 & 3 contested the case by filing written version wherein they denied all the material allegations as brought in the body of the petition of complaint.  It has been contended that the complaint petition is not at all maintainable in its present form; that the claim of the Complainant hit by the principles of estopple, waiver and acquiescence; that there was no deficiency in service on the part of the Insurance Company as alleged by the Complainant.  The OPs categorically contended that on receiving the intimation from the Complainant towards switching over his NMP to Sampoorna Suraksha Bima Policy after renewal with the enhanced  sum insured from 3.5 lakhs to 6 lakhs was returned to the Complainant with entire documents on the self-same day stating their inability due to technical reasons with the assurance to render prompt hassle free service to their valued customer like the Complainant.  It has been clearly disclosed that issuance of New Sampoorna Suraksha Bima Policy is temporarily withdrawn from their office and as such OP No. 3 requested the Complainant to renew his earlier policy (NMP).  It has been alleged that issuance of the New Sampoorna Suraksha Bima Policy does not arise at all and on such aspect OP No. 3 did not cause any deficiency in service as alleged.  The OPs/Insurance Company has prayed for outright dismissal of the complaint petition with adequate costs.

After evaluating the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record adduced from the end of the respective parties Ld. District Commission was pleased to allow the complaint case on contest against Opposite Party Nos. 1, 2 and 3 with costs.  Ld. District Commission was also pleased to give certain directions upon Opposite Party Nos. 1, 2 and 3/Insurance Company in the operative part of the said order.

Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the Opposite Party Nos. 1, 2 & 3/National Insurance Company Ltd. as Appellants have preferred the present appeal on various grounds as highlighted in the body of the Memorandum of appeal.  It has been contended that the Ld. District Commission erred both in facts and law in deciding the complaint case; that the Ld. District Commission acted illegally in passing the impugned judgment and order; that the Ld. Commission below failed to exercise the jurisdiction vested upon in Law; that the Ld. Commission below failed to appreciate that the First Policy opted by the Respondent/Complainant was a National Mediclaim Policy issued on the basis of the proposal form submitted by the Respondent/Complainant with the coverage of 3.5Lakhs to each of the Complainant/Respondent and his family members consisting of himself, his wife and minor daughter.  Later on the Respondent/Complainant prior to second renewal of the said policy of Insurance requested for switching over the said policy to  SSBP which is a totally different nature of policy and at that relevant time the same could not be merged with any other Mediclaim Policy by way of such switching from any other policy of Insurance; that the Ld. Commission below did not consider the fact that the earlier Mediclaim Policy the sum insured for each of the person covered under the said policy was Rs.3.5Lakhs but switching over from such Mediclaim Policy to SSBP will not be the same amount and  the Complainant requested for enhancement of the sum insured to 5Lakhs from 3.5Lakhs(for each of the member); that the Ld. District Commission failed to consider that such type of switching over from a Mediclaim Policy to  SSBP is never permissible; that the Ld. District Commission failed to appreciate the terms and conditions as well as Clauses of the Insurance Policy.  On all such grounds the Appellants/Insurance Company has prayed for allowing the present appeal after setting aside the impugned judgment and order of the District Commission.

POINTS FOR DETERMINATION

I) Whether the District Commission was justified in passing the impugned judgment and order in favour of the Complainant.

II) Whether the District Commission has committed error, irregularity or illegality in passing the impugned judgment and order in Complaint Case No. 74/2019.

III) Whether the impugned judgment and order deserve interference of this Appellate Commission.

IV) Whether the impugned judgment and order of the District Commission can be sustained in the eye of Law.

DECISIONS WITH REASONS

All the above four points are taken up together for the convenience of discussion and in order to avoid unnecessary repetitions.  Moreover, all the points are interlinked and interrelated one.

Ld. Counsel appearing for the Appellants/National Insurance Company Ltd. has submitted that the Respondent/Complainant and his family were covered by a National Mediclaim Policy by dint of which all the family members viz. the Respondent/Complainant himself, his wife and his daughter were covered upto the extent of Rs. 3.5Lakh each.  It is also argued that prior to expiry of the first policy the Respondent/Complainant requested for renewal of the said policy along with the facility of switching over the same to Sampoorna Suraksha Bima Policy which covered several types of risk.  The Respondent/Complainant also prayed for increasing the sum insured to Rs.5 Lakhs each in respect of the coverage of health insurance for his family members. It has been further argued that the request of the Respondent/Complainant was turned down by the Appellant/Insurance Company on the ground that Sampoorna Suraksha Bima Policy cannot be issued due to technical reason.  Being aggrieved the Respondent/Complainant instituted the petition of complaint before the District Commission for redressal and relief.  Ld. Counsel for the Appellant/Insurance Company has boldly argued that Mediclaim Policy was issued in favour of the Respondent/Complainant and his family members in order to provide health coverage to the extent of sum insured of Rs.3.5Lakh each.  According to the Ld. Counsel such type of policy only covers the hospitalization expenses of the insured within the ambit and scope of the policy in question and not for any other kind of risks.  On the other hand Sampoorna Suraksha Bima Policy is totally a different kind of policy covering different types of coverage clubbed into a single policy.  Undoubtedly, both the above policies are totally different and health insurance coverage is only a part of the Sampoorna Suraksha Bima Policy.  It has been categorically urged that for each type of policy separate proposal Form is required and different underwriting risks are required to be considered.  Drawing my attention to the petition of complaint Ld. Counsel has vehemently argued that the Respondent/Complainant himself forwarded a fresh proposal Form along with the Bank Draft amounting to Rs. 14,904/- without giving any explanation as to how such premium was calculated for SSBP Policy. It has been candidly submitted that the Respondent/Complainant himself has admitted that he forwarded fresh proposal form for issuance of new policy with the request for switching over from the previous policy but the Appellant/Insurance Company could not accept the same and as such no concluded contract could be executed between the parties. It has been also submitted that question of violation of Article 14 of the Constitution of India does not arise at all in the facts and circumstances of the present case. Ld. Counsel has prayed for allowing the present appeal.

On the contrary Ld. Advocate appearing for the Respondent/Complainant has submitted that the Respondent/Complainant obtained a Mediclaim Policy vide policy no. 153600/48/17/8500007012 on 28.11.2016 and continued the same. The said policy was purchased against a sum insured of Rs. 3,50,000/- for the Complainant himself, Rs. 3,50,000/- for wife and Rs. 3,50,000/- for daughter totalling a sum of Rs. 10,50,000/- and the date of commencement of the said policy was 28.11.2018. It has been also argued that the Complainant paid Rs. 12,410/- towards premium for the year 2017-2018 and on 06.11.2018 the Respondent/complainant applied to Appellant no. 3 for switching over the existing policy to “Sampoorna Suraksha Bima Policy” with the request to increase the sum insured to Rs. 5,00,000/- for each of the member of the family. The Respondent/Complainant also sent all relevant papers and a bank draft of Rs. 14,904/- to Appellant no. 3 for acceptance and necessary approval but Appellant no. 3 declined to that proposal and also sent a letter to the Respondent/Complainant on 08.11.2018 disclosing “……due to technical reason and to render prompt and hassle free service to our valued customer like you, issuance of new Sampoorna Suraksha Bima Policy is temporarily withdrawn from our office”. Ld. Counsel has drawn my attention to the case record and vehemently argued that Appellant no. 3/Insurance Company issued new Sampoorna Suraksha Bima Policy on 14.02.2019 in favour of one Mr. Avijit Mondol and his family members being customer ID 9514917606, Policy no. 1536005918110002125 with a total premium amount of Rs. 17,058/-. According to the Ld. Counsel such aspect clearly proves the discrimination adopted by the Insurance Company in the matter of issuance of Sampoorna Suraksha Bima Policy violating Article 14 of the Constitution of India. It has been also argued that the performance of the Appellant/Insurance Company clearly proves that at the relevant point of time Sampoorna Suraksha Bima Policy was in force but the insurance company arbitrarily and whimsically did not accept the proposal sent by the Respondent/Complainant. It has been also argued that the Ld. District Commission after hearing both the parties and considering the evidence on record arrived at a just decision and allowed the complaint petition with certain directions. Ld. Counsel has prayed for outright dismissal of the present appeal with compensatory cost.

On close scrutiny of the pleadings of the respective parties, evidence both oral and documentary adduced from the end of the parties to the complaint case and on perusal of the BNA submitted on behalf of the respective parties to the appeal we are of the concrete view that the following facts are admitted by both the parties:

i) that the Respondent/Complainant obtained a hospitalization and domiciliary hospitalisation benefit policy, family Mediclaim Policy from Appellant no. 3 in order to cover the risks for himself and his family.

ii) that the said Mediclaim Policy obtained by the Respondent/Complainant was issued in his favour in order to provide health coverage to all his family members to the extent of sum insured of Rs. 3.5 lakhs each i.e. for himself, his wife and daughter.

The Respondent/Complainant has categorically alleged that on 06.11.2018 he applied to Appellant no. 3 for switching over his existing policy being policy no. 153600/48/17/8500007012 to the Scheme of Sampoorna Suraksha Bima Policy  with an increased sum insured of Rs. 5,00,000/- for each of his family members. It is the case of the Respondent/Complainant that he sent all relevant papers and a bank draft amounting to Rs. 14,904/- to Respondent No. 3 for  acceptance and necessary approval. It has been also alleged that Appellant no. 3 instead of accepting the offer towards switching over the policy sent a reply to the Respondent/Complainant on 08.11.2018 stating “due to technical reason and to render prompt and hassle free service to our valued customer like you, issuance of new Sampoorna Suraksha Bima Policy is temporarily withdrawn from our office.”

It has been further alleged by the Respondent/Complainant that he came to know that Appellant no. 3 have issued new Sampoorna Suraksha Bima Policy on 14.02.2019 in favour of Mr. Avijit Mondol and his family members being Customer ID 9514917606, Policy no. 1536005918110002125 having a total premium amount of Rs. 17,058/-. The Respondent/Complainant has also alleged that his request was illegally ignored by Appellant no. 3. Consequently, Respondent/Complainant sent a legal notice through his Ld. Counsel on 15.04.2019 which was duly received by Appellant no. 3 but they did not bother to give reply or to redress the grievances of the Respondent/Complainant. It is the clear case of the Respondent/Complainant that once launched policy cannot be abandoned or withdrawn by the Insurance Company without the approval/sanction of the Insurance Regulatory Development Authority of India (IRDA).  It has been further alleged that the Appellants intentionally withdrew the application form from their website so that none can get the opportunity to avail the said policy (SSBM).  It has been further alleged that the doctrine of equality as embodied in Article 14 of the Constitution of India has been violated by the Appellant/Insurance Company.

Admittedly, National Mediclaim Policy more particularly detailed in the petition of complaint was issued in favour of the Respondent/Complainant in order to provide health coverage to all his family members to the extent of sum insured of Rs.3.5lakhs each.  Undisputedly, such type of policy covers only the hospitalization expenses of the insured person within the ambit and scope of the policy and not any other kind of risks.  It is also an admitted fact that the Respondent/Complainant obtained the National Mediclaim Policy from National Insurance Company Limited with certain terms and conditions (Policy effective from 00:00hrs. on 28/11/2017 to midnight of 27/11/2018) with a premium of Rs.12,410/- + GST(9%)Rs. 1,117/-+SGST(9%)Rs.1,117/- aggregating a total sum of Rs. 14,644/- for himself, his wife and his daughter having a sum insured of Rs.3,50,000/- each. 

It is evident from the materials on record that on 06.11.2018 the Respondent/Complainant applied before the Divisional Manager, National Insurance Company Limited, Chandannagore, Hooghly for switching over his existing insurance policy to Sampoorna Suraksha Bima Policy.  In the said letter, it has been categorically requested by the Respondent/Complainant to the effect that “ I also wish to increase sum assured of Mediclaim Policy from Rs. 3,50,000/- to Rs. 5,00,000/- for each member. Hope you should accept my proposal and oblige.  A demand draft of Rs.14,904/- was also sent with that letter.”  Thus, it can be safely held that the letter of the Respondent/Complainant is nothing but a mere proposal sent to Appellant No. 3.

The reply dated 08.11.2018 issued by the Administrative Officer of National Insurance Company Limited goes to prove that issuance of New Sampoorna Suraksha Bima Policy was temporarily withdrawn from their office due to technical reason.  By that reply the Administrative Officer also recommended the Respondent/ Complainant to renew the existing policy of National Mediclaim.  The entire documents sent to the Insurance Company were also returned with that reply.  Thus, it can be safely held that the proposal/offer given by the Respondent/Complainant for switching over the existing Mediclaim Policy to New Sampoorna Suraksha Bima Policy was not accepted by the concerned Insurance Company. Non-acceptance of such proposal from the end of the Insurance Company clearly proves that no contract has been completed between the parties in accordance with Section 3 of the Indian Contract Act. Until an offer is accepted there is no completed contract between the parties.  Unless an offer is accepted and acted upon within a reasonable period of time no complete contract can be executed. It must be treated and considered as abandoned. Here in the present case it is evident from the evidence on record that the Appellant/Insurance Company could not accept the proposal of the Respondent/Complainant by giving reply and as such no completed contract could be reached between the parties.

The next aspect which is required to be ascertained in the present appeal is that whether the Respondent/Complainant is entitled to switch over his existing policy (Mediclaim Policy to Sampoorna Suraksha Bima Policy). Each policy covers certain expenses of the insured person within the ambit and scope of the policy. There is no doubt that both National Mediclaim Policy and Sampoorna Suraksha Bima Policy are totally different policies having different types of risk coverage. The terms and conditions as envisaged in the National Mediclaim Policy and the terms of the conditions of Sampoorna Suraksha Bima Policy are certainly different in nature. Health insurance coverage is a part and parcel of the Sampoorna Suraksha Bima Policy. The Respondent/Complainant voluntarily forwarded a proposal with Bank draft for an amount of Rs. 14,904/- to the Insurance Company for switching over the existing policy to SSB Policy. How and in which manner the Respondent/Complainant calculated the premium amount. There is no scope of switching over from an existing policy to SSB Policy in order to avail more health facilities. There is no mention within the four corners of the National Mediclaim Policy that during the existence of the said policy the insured has the option to switch over from his existing policy to SSB Policy. On close perusal of the entire evidence on record we are of the concrete view that there is no deficiency in service on the part of the Insurance Company.

It is the case of the Respondent/Complainant that the Appellant no. 3 issued new Sampoorna Suraksha Bima Policy to Mr. Avijit Mondol and his family members on 14.02.2019 being customer ID 9514917606 having a total premium amount of Rs. 17,058/-. Respondent/Complainant has alleged that the doctrine of equality embodied in Article 14 of the Constitution of India has not been followed. The Appellants/Insurance Company intentionally ignored the proposal of the Respondent/complainant by not providing the facility of switching over the existing policy to SSB Policy but the Appellant/Insurance Company issued SSB Policy to Mr. Avijit Mondol and his family members. This is an utter violation of Article 14 of the Constitution of India. There is no doubt that Sampoorna Suraksha Bima Policy was issued to Avijit Mondol and his family members on 14.02.2019. That policy was totally a fresh policy and not a case of switching over the existing policy to Sampoorna Suraksha Bima Policy. Thus question of discrimination under Article 14 of the Constitution of India does not arise at all. The Appellant/Insurance Company never denied to issue fresh SSB Policy to the desirous customers with fresh proposal.

We have meticulously gone through the impugned judgment and order dated 05.05.2021 passed by the Ld. District Commission. In the body of the judgment Ld. District Commission wrongly held that the Opposite Parties/Insurance Company cannot discriminate their choice and preference upon the customer which is totally illegal and contrary to law. Such conclusion of the Ld. District Commission cannot be and should not be accepted on any score. It is to be borne in mind that this is not a case of discrimination as embodied under Article 14 of the Constitution of India. The Ld. District Commission failed to appreciate that Sampoorna Suraksha Bima Policy and National Mediclaim Policy are certainly different and the offer sent by the Respondent/Complainant to the Appellant for switching over from the existing National Mediclaim Policy to Sampoorna Suraksha Bima Policy was not accepted on technical issue. Practically, the terms and conditions and the risk coverage of both the policies are totally different in nature. Ld. District Commission also failed to appreciate that the Sampoorna Suraksha Bima Policy issued in favour of Mr. Avijit Mondol on 14.02.2019 was a fresh one and not a case of switching over from the existing one to Sampoorna Suraksha Bima Policy. Ld. District Commission did not also appreciate the fact that the Appellant/Insurance Company did not accept the proposal/offer of the Respondent/Complainant and resultantly the contract was not completed.

Considering all aspects from all angles and keeping in mind the submissions of both sides and regard being had to the proposition of law we come to an irresistible conclusion that the Respondent/Complainant is not entitled to get any sort of relief as sought for in the petition of complaint. We also hold that the petition of complaint filed by the Respondent/Complainant before the District Commission is liable to be dismissed.  We do not find much substance in the argument advanced by the Ld. Counsel for the Respondent/Complainant.

All the above points are thus answered in favour of the Appellants/Insurance Company.

Resultantly, the present appeal succeeds.

Hence,

O R D E R E D

That the present appeal being no. A/84/2021 be and the same is allowed on contest but considering the circumstances without any order as to costs.

The impugned judgment and order passed by the Ld. District Commission, Hooghly at Chinsurah on 05.05.2021 in connection with complaint case no. CC/74/2019 are hereby set aside.

Interim order, if any, be vacated forthwith.

Let a copy of this judgment and order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.

Thus, the Appeal stands disposed of.

Note accordingly.