Chandigarh

StateCommission

A/182/2023

ANIL KUMAR MALHOTRA - Complainant(s)

Versus

M/S MAX BUPA HEALTH INSURANCE CO. LTD - Opp.Party(s)

DEVINDER KUMAR

08 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	182 of 2023
Date of Institution	:	25.07.2023
Date of Decision	:	08.08.2024

 

Sh. Anil Kumar Malhotra aged 59 yrs s/o Sh. R S Malhotra, #364, Sector 46-A, Chandigarh-160047.

……Appellant/Complainant

V e r s u s

M/s Max BupaHealth Insurance Co. Ltd., through its Manager, SCO No. 55-56-57, Second Floor, Sector 8C, Madhya Marg, Chandigarh.

Mr. Rakesh Sehgal, Insurance Agent, Flat No. 27A, Imperial Garden Society, Peer Muchalla, Zirakpur.

Mr. Satnam, Sr. Manager, Branch Head, Max Bupa Health Insurance Co. Ltd, SCO No. 55-56-57, Second Floor, Sector 8C, Madhya Marg, Chandigarh.

Mr. Vikas Pathania, Sr. Manager, Branch Head, Max Bupa Health Insurance Co. Ltd., SCO No. 55-56-57, Second Floor, Sector 8C, Madhya Marg, Chandigarh-160018

…..Respondents/opposite parties

BEFORE:	JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR.PREETINDER SINGH, MEMBER
Present:-	Sh.Devinder Kumar, Advocate for the appellant. Sh.Gaurav Bhardwaj, Advocate for respondents no.1, 3 and 4. Respondent no.2 exparte vide order dated 01.07.2024.

         

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainant (now appellant) has come up with this appeal for modification of the order dated 17.05.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission) in consumer complaint bearing no.816 of 2019, whereby, while partly allowing the same, Mr.Rakesh Sehgal/opposite party no.2, Insurance Agent of opposite party no.1-M/s Max Bupa Health Insurance Company Limited was directed as under:_

“…Therefore, complaint is partly allowed against O.P No. 2 and he  is directed to pay Rs 3,78000/-within 60 days from the date of receipt of copy of this order by him failing which he shall be liable to pay interest of 6% per annum from the date of order till t the date of its actual realisation....…”

2.           Before the District Commission, it was the case of the complainant that he purchased a Max Bupa heartbeat family, first policy from opposite party no.1 since long for himself and his wife, having coverage of Rs. 17.20 lacs and got it renewed from time to time. During subsistence of the renewed policy no. 30367037201804, which was valid for the period from 15.10.2018 to 14.10.2019, the complainant suffered heart problem and was taken to hospital on 04.09.2018. He underwent coronary angiography and Angioplasty and was discharged on 07.09.2018. Thereafter, he submitted the claim form alongwith necessary documents to Opposite Party No. 2 agent of Opposite Party No 1, who visited at his residence in Chandigarh. The claim amount for an amount of Rs.3,78,000/- was filed. The opposite parties did not give copy of the claim form to him but assured him that it would be processed within one month. It was stated that opposite party no.2, as is the practice, received the cheque of Rs.40,142/- dated 13.10.2018 , Annexure C-7, from the complainant for the renewal of the policy with effect from 15 October 2018. On the basis of receipt of cheque by opposite party no.2, the insurance company had issued the current policy. Out of the cheque amount of Rs.40,142/-, an amount of Rs.31,043/- was due towards complainant’s policy and the balance amount of Rs.9099/- was due towards renewal of another policy. Although opposite party no.2 had admittedly taken the said cheque from the complainant for encashment yet it appeared that he or the other officials of the insurance company forgot to present the cheque for clearance to bank. The policy issued by opposite parties in the name of children of the complainant was “Health champion variant 1” and it was valid from 14th of December 2017 to 13th of December 2018 with a premium of Rs.8970/-.(Annexure C-8). The opposite parties told the complainant that renewal premium amount was to the tune of Rs.9099/- and therefore this amount was included in the cheque issued along with premium due towards the complainants own policy. In the meanwhile, a claim against the policy arose, upon which the complainant again called the opposite party no.2, who visited the complainant to take claim form from him and assured the complainant about the clearance of the claim within one month. Upon being asked about the clearance of the cheque, he once again said that the complainant need not to worry as the cheque was lying with the company and it would be presented for Clearance within reasonable time. Opposite parties no.3 and 4 returned the cheque, Annexure C-7, in original to the complainant by making lame excuse, and asked him to issue fresh cheque for his policy, premium amount only. The complainant was having no option but to issue the cheque accordingly in November 2018, after the date of incident of Mediclaim. The complainant received a message on 08-02-2019  from the insurance company stating that,” We regret to inform you that your claim cannot be  proved on the basis of terms of your policy”. Hence consumer complaint was filed before the District Commission.
3.            The complaint was contested by opposite parties no.1, 3 and 4 by way of filing reply, wherein, they took preliminary objections that the complainant has not approached the District Commission with bona fide  intentions; complaint is frivolous and misconceived; complainant has not approached with clean hands, be being guilty of suppressio veri and suggestion falsi. On merits, opposite parties no.1, 3 and 4 stated that because the premium in respect of the policy in question was not paid on time i.e. before 15.10.2018, but the same had been paid only on 08.11.2018 i.e. after the insured had already taken treatment and discharged from the hospital, as such, his claim was  not payable.  Remaining averments contained in the complaint were denied. 
4.           None put in appearance on behalf of opposite party no.2, as a result of which, it was proceeded against exparte vide order dated 21.11.2019.
5.           The contesting parties led evidence by way of affidavits and numerous documents before the District Commission.
6.           The District Commission after hearing the contesting parties and on going through the material available on record, partly allowed the consumer complaint, as stated above.
7.           This appeal has been filed by the appellant/complainant  seeking modification of the order impugned on the ground that instead of directing the insurance company i.e. opposite party no.1 alongwith opposite parties no.2 to 4 also liable in the matter, only the agent i.e. opposite party no.2 has been held responsible for refund of the amount of Rs.3,78,000/-. Counsel for the appellant also submitted that the insurance company should also be held responsible for all the acts done on the part of its agent. He further submitted that even no interest, compensation and litigation have been awarded by the District Commission.
8.           Despite service none put in appearance on behalf of respondent no.2, as a result whereof, he was proceeded against exparte vide order dated 01.07.2024.
9.           We have heard the counsel for the contesting parties and carefully gone through the material available on the record.
10.           Following questions arise for consideration before this Commission in the present case:-

 

1. Whether, the insurance company i.e. respondent no.1 alongwith respondents no.3 and 4 can also be made liable alongwith the agent- respondent no.2 in the matter?
2. Whether the appellant/complainant is entitled to get any interest on the amount so ordered to be refunded to him alongwith compensation and litigation expenses?

 

11.           Coming to the first question, as to whether the insurance company i.e. respondent no.1 alongwith respondents no.3 and 4 are also liable alongwith the agent- respondent no.2 in the matter, it may be stated here that the insurance company has not disputed that respondent no.2 is its  authorized agent. Though, respondents no.1, 3 and 4 have taken a specific stand that premium in respect of the policy in question was not paid on time i.e. before 15.10.2018 and the same had been paid only on 08.11.2018 i.e. after the insured had already taken treatment and discharged from the hospital, as such, his claim was not payable, yet, they have failed to convince this Commission as to why they have issued the insurance certificate with policy commencement date as 15.10.2018 to 14.10.2019.  Be that as it may, in our  considered opinion, even if for the sake of arguments, it is presumed that the agent- respondent no.2 of respondents no.1, 3 and 4 failed to hand over cheque of premium amount in time, even then, respondents no.1, 3 and 4  cannot seek immunity in the matter, because as per the Amended India Insurance Act 2015, the  insurance companies are responsible for acts of omission and commission by their agents. Relevant part of the said Act, 2015 (Section 42 (5))  is reproduced hereunder:-

“……..(5) The insurer shall be responsible for all the acts and omissions of its agents including violation of code of conduct specified under clause (h) of sub-section (3) and liable to a penalty which may extend to one crore rupees….".

Under above circumstances, it is held that respondents no.1, 3 and 4 are also equally liable alongwith respondent no.2, to compensate the appellant for the financial loss caused to him, by not making payment of the claim amount.

12.           The next question that falls for consideration is, as to whether, the complainant  is entitled to get  interest on the amount of Rs.3,78,000/- alongwith compensation for  mental agony and harassment? It may be stated here that the amount of Rs.3,78,000/- stood paid by the appellant as far as back in the year 2018 to the treating hospital and the same has been withheld by the respondents for such a long time and they are still utilizing the same. Thus, once the District Commission came to the conclusion that the appellant was entitled to the said amount of Rs.3,78,000/- then it was required of it to award interest for the period the said amount stood retained with the respondents but it fell into an error in not awarding such interest. The complainant is therefore held entitled to interest on the amount of Rs.3,78,000/- for the period the said amount stood retained with the respondents.
13.           As far as compensation for mental agony and harassment is concerned, it may be stated here that one can well imagine the plight of the appellant, who had to run from pillar to post for getting his claim amount, after getting treatment under the policy in question. The jurisdiction of a Consumer Commissions, constituted under the Act is very wide and at the same time, the very object is to compensate a “Consumer”, who is a successful litigant, for the loss or injury suffered by him on account of its oppressive, capricious, arbitrary or negligent act of the party opposite.  It is also well settled that the word ‘Compensation’ is of very vide connotation and once the Commission is satisfied that the appellant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate the complainant for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. However, in the present case, the District Commission fell into an error in not awarding compensation for mental agony and harassment suffered by the appellant.
14.           Now coming to non awarding of litigation cost to the appellant by the District Commission, it may be stated here that we must remember that cost is not awarded as a punishment to the defeated party but as recompense to the successful party for the expenses to which he had been subjected to. In Salem Advocates Bar Association v. Union of India [2005 (6) SCC 344], the Hon’ble Supreme Court held that “costs have to be actual reasonable costs including the cost of time spent by the successful party, the transportation and lodging, if any, and any other incidental costs besides the payment of the court fee, lawyer’s fee, typing and other costs in relation to the litigation.”  On this count also, the District Commission fell into an error in not awarding litigation expenses to the appellant/complainant.
15.           In view of peculiar facts and circumstances of this case, we are of the considered opinion that, in the interest of justice, the order impugned passed by the District Commission needs modification.
16.           For the reasons recorded above, this appeal stands partly allowed. The order impugned is modified. Respondents no.1 to 4/opposite parties no.1 to 4, jointly and severally are directed as under:-
    1. To pay to the appellant/complainant an amount of Rs.3,78,000/- alongwith interest @9% p.a. from the date of making payment by the appellant/complainant to the treating hospital, onwards.
    2. To pay an amount of Rs.35,000/- to the appellant/ complainant  as compensation for causing him mental agony and harassment and also deficiency in service.
    3. To pay Rs.25,000/- to the appellant/complainant  as cost of litigation.
    4. This order be complied with by respondents no.1 to 4/ opposite parties no.1 to 4 within a period of 30 days from the date of receipt of a certified copy thereof, failing which, thereafter they shall make the payment of awarded amounts mentioned above alongwith interest @ 12% per annum from the date of default, till realization.
17.           Certified copies of this order be sent to the parties, free of charge, forthwith.
18.           The appeal file be consigned to Record Room, after completion and the record of the District Commission, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.

 

Pronounced

08.08.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

(PREETINDER SINGH)

MEMBER

Rg