Tamil Nadu

South Chennai

CC/449/2014

E.Antony Joe Collins - Complainant(s)

Versus

M/s. IDBI Bank Ltd., - Opp.Party(s)

M/s.Prabu

12 Nov 2018

ORDER

                                                                        Date of Filing  : 12.11.2014

                                                                          Date of Order : 12.11.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.449/2014

DATED THIS MONDAY THE 12^TH DAY OF NOVEMBER 2018

                                 

E. Antony Joe Collins,

S/o. A. Earnest Prabhagaran,

Old No.14, New No.27,

Taylors Estate, 2^nd Street,

Kodambakkam,

Chennai – 600 024.                                                      .. Complainant.                                                          ..Versus..

 

1. The Manager,

IDBI Bank Ltd.,

T. Nagar Branch,

Chennai – 600 017.  

 

2. The Manager,

Bajaj Allianz General Insurance Company Ltd.,

New Nos.497 & 498, Old Nos.276 & 277,

Isana Kattima Building, 5^th Floor,

Opposite Panchali Amman Temple & Medical Council,

Near D G Vaishnav College,

Poonamallee High Road,

Arumbakkam,

Chennai – 600 106.                                                 ..  Opposite parties.

          

Counsel for complainant              :  M/s. P. Babu & others

Counsel for 1^st opposite party     :  M/s. S. Sathiyanarayanan

Counsel for 2^nd opposite party    :  M/s. M.B. Gopalan Associates &

                                                        others

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.75,000/- for the cost of treatment for Bilateral Inguinal Hernia undergone by the complainant and to pay a sum of Rs.5,00,000/- towards compensation for mental agony, physical strain, anguish and pain with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he is having an account with the 1^st opposite party bank having tie up with the 2^nd opposite party Insurance Company.  During the complainant’s transaction the 1^st opposite party informed the complainant that the 2^nd opposite party Insurance Company is issuing Health Insurance Policy.  The 2^nd opposite party also assured that the policy of insurance coverage of Rs.1,00,000/- for the premium amount of Rs.1,780/-.  The complainant also agreed for availing of such Health Insurance Policy and submitted duly signed Health Insurance application form and necessary documents and paid a sum of Rs.1,780/- on 30.07.2013.   The 1^st & 2^nd opposite parties assured the complainant that the insurance policy will be despatched to the complainant’s address through registered post.  But the 2^nd opposite party has not issued the said Health Insurance Policy and has not delivered to the complainant.  When the complainant contacted the 1^st & 2^nd opposite parties regarding the non receipt of Health Insurance Policy, the 1^st & 2^nd opposite parties did not give proper reply.   On 30.05.2014, the complainant went to United States of America wherein he suffered with Bilateral Inguinal Hernia which required immediate operation.  Hence the complainant  returned back to India on 01.07.2014 and consulted with the Doctors in Chennai and the Doctors advised him that the surgery costs Rs.75,000/- apart from other expenses.   Since the opposite parties has not issued Health Insurance Policy, the complainant could not undergo operation in the hospital and undergone severe pain and sufferings.  After repeated information and phone calls for due compensation, it ended in vain.   The opposite parties acted negligently in issuing Health Insurance Policy, after receiving the premium.  Hence, the complainant issued legal notice dated:02.09.2014 which was received by the 1^st opposite party on 03.09.2014.  The 1^st opposite party has not sent any reply.  The act of the opposite party caused great mental agony.  Hence the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 1^st opposite party bank states that he has tie up facility with the 2^nd opposite party for solicitation of Health Insurance Policy.  The 1^st opposite party collected suitable application form for Health Insurance Policy and collected necessary KYC documents along with the amount in Demand Draft and forwarded it to the 2^nd opposite party after due scrutiny.    The 2^nd opposite party shall scrutinize the documents and decide the eligibility and issue insurance policy according to the rules and procedures.    The 1^st opposite party has nothing to do with the issuance of Health Insurance Policy.   After payment of premium by the 1^st opposite party, the obligation / duty of the 1^st opposite party is fully discharged.  For non-issuance of Health Insurance Policy the 1^st opposite party has no role and nothing to do with that.  Hence, there is no negligence or deficiency in service on the part of the 1^st opposite party and the compliant is liable to be dismissed.

3.      The brief averments in the written version filed by the 2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 2^nd opposite party states that it is a well settled proposition that the contract of insurance are generally in the nature of contracts of indemnity which are bound by terms and conditions.   The 2^nd opposite party states that the happening of the event against which the insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy.   It is only upon the proof of actual loss.  Further the 2^nd opposite party states that the Health Insurance Policy is always subject to the terms and conditions of the policy.   If the complainant provides the documents to show that premium has been paid to the opposite parties, then the opposite party will issue the policy for such period.   Since there is no privity of contract between this opposite party and the complainant, the complainant is not a ‘Consumer’.   The 2^nd opposite party states that in respect of the payment of Rs.1,780/- to the 2^nd opposite party towards the Health Insurance Premium, amount paid through the 1^st opposite party reflects dated:30.07.2013.   The contention of the 2^nd opposite party is that the claim of Rs.75,000/- towards medical expenses without any record of medical treatment cannot be accepted.  Therefore, there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 are marked.  Proof affidavit of the 2^nd opposite party is filed and no documents marked on the side of the 2^nd opposite party.   Inspite of sufficient time is given the 1^st opposite party has not chosen to file his proof affidavit and hence it is concluded as ‘No Proof Affidavit’.

5.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.75,000/- towards compensation for the cost of treatment incurred by the complainant  as prayed for?

2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard the complainant and the 2^nd opposite party Counsels.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  The complainant pleaded and contended that the complainant is having an account with the 1^st opposite party bank having tie up with the 2^nd opposite party insurance Company.  During the complainant’s transaction the 1^st opposite party informed the complainant that the 2^nd opposite party Insurance Company is issuing Health Insurance Policy.  The 2^nd opposite party also assured that the policy of insurance coverage of Rs.1,00,000/- for the premium amount of Rs.1,780/- as per Ex.A1.  The complainant also agreed for availing of such Health Insurance Policy and submitted duly signed Health Insurance application form and necessary documents and paid a sum of Rs.1,780/- on 30.07.2013.   Ex.A1 is the payment receipt.  The 1^st & 2^nd opposite parties assured the complainant that the insurance policy will be despatched to the complainant’s address through registered post.  But the 2^nd opposite party has not issued the said Health Insurance Policy and has not delivered to the complainant.  When the complainant contacted the 1^st & 2^nd opposite parties regarding the non receipt of Health Insurance Policy, the 1^st & 2^nd opposite parties did not give proper reply. On 30.05.2014, the complainant went to United States of America wherein he suffered with Bilateral Inguinal Hernia which required immediate operation.  Hence the complainant  returned back to India on 01.07.2014 and consulted with the Doctors in Chennai and the Doctors advised him that the surgery costs Rs.75,000/- apart from other expenses as per Ex.A2.  Since the opposite parties has not issued Health Insurance Policy, the complainant could not undergo operation in the hospital and undergone severe pain and sufferings.  After repeated information and phone calls for due compensation, it ended in vain which amounts to deficiency in service.   The opposite parties acted negligently in issuing Health Insurance Policy, after receiving the premium.  Hence, the complainant issued legal notice as per Ex.A3 on 02.09.2014 which was received by the 1^st opposite party on 03.09.2014 as per Ex.A4, copy of acknowledgement card.  The 1^st opposite party has not preferred to send any reply.  Hence, the complainant is constrained to file this case claiming compensation for the cost of treatment for a sum of Rs.75,000/- and a compensation of Rs.5,00,000/- with cost.  But the complainant has not produced any document to prove that he has expended a sum of Rs.75,000/- towards the cost of treatment.

7.     The contention of the 1^st opposite party bank is that the 1^st opposite party has tie up facility with the 2^nd opposite party for solicitation of Health Insurance Policy.  The 1^st opposite party collected suitable application form for Health Insurance Policy and collected necessary KYC documents along with the amount in Demand Draft and forwarded it to the 2^nd opposite party after due scrutiny.    The 2^nd opposite party shall scrutinize the documents and decide the eligibility and issue insurance policy according to the rules and procedures.    The 1^st opposite party has nothing to do with the issuance of Health Insurance Policy.   After payment of premium by the 1^st opposite party, the obligation / duty of the 1^st opposite party is fully discharged.  For non-issuance of Health Insurance Policy the 1^st opposite party has no role and nothing to do with that.  Hence, there is no negligence on the part of the 1^st opposite party.  The 1^st opposite party is an unnecessary party in this case and the complaint is barred for misjoinder of necessary parties.  There is no deficiency in service on the part of the 1^st opposite party.

8.     The contention of the 2^nd opposite party is that it is a well settled proposition that the contract of insurance are generally in the nature of contracts of indemnity which are bound by terms and conditions.   Further the contention of the 2^nd opposite party is that the happening of the event against which the insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy.   It is only upon the proof of actual loss.  Further the contention of the 2^nd opposite party is that the Health Insurance Policy is always subject to the terms and conditions of the policy.  If the complainant provides the documents to show that premium has been paid to the opposite parties, then the opposite party will issue the policy for such period.   In this case, the complainant failed to prove that there was any contract of insurance in force covering him under policy.   Since there is no privity of contract between this opposite party and the complainant the complainant is not a ‘Consumer’.  But it is seen from the records that as per Ex.A1 a sum of Rs.1,780/- has been paid to the 2^nd opposite party towards premium for issuance of Health Insurance Policy by way of a Demand Draft through the 1^st opposite party.  The allegation of non payment and failure to prove such payment raised by the 2^nd opposite party  is not acceptable.   Further the contention of the 2^nd opposite party is that Ex.A1 dated:30.07.2013 proves that the amount paid beyond one year.  Thereafter, no correspondence regarding the payment and insurance policy.   But the 2^nd opposite party has not explained why the Health Insurance Policy has not been issued in favour of the complainant after receiving the premium amount of Rs.1,780/- proves the deficiency in service.  Further the contention of the 2^nd opposite party is that the claim of Rs.75,000/- towards medical expenses without any record of medical treatment cannot be acceptable.  Equally, the compensation of Rs.5,00,000/- is imaginary and exorbitant.   Considering the facts and circumstances of the case this Forum is of the considered view that the 2^nd opposite party shall pay a sum of Rs.1,780/- with interest at the rate of 9% p.a. from date of complaint and a compensation of Rs.10,000/- with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.  The 2^nd opposite party is directed to pay a sum of Rs.1,780/- (Rupees One thousand seven hundred and eighty only) being the insurance amount along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 12.11.2014 to till the date of this order and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.  The complaint against the 1^st opposite party is hereby dismissed.

The above  amounts shall be payable  within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of November 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	30.07.2013	Copy of receipt for the payment of Rs.1,780/- to the 2nd opposite party towards the Health Insurance Premium amount paid through the 1st opposite party
Ex.A2	30.07.2014	Copy of report submitted by the Doctor for operation
Ex.A3	02.09.2014	Copy of legal notice with postal receipt
Ex.A4	03.09.2014	Copy of postal acknowledgment card of the 1st opposite party

 

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:- NO PROOF AFFIDAVIT

2^ND OPPOSITE  PARTY SIDE DOCUMENTS:- NIL

 

 

MEMBER –I                                                                      PRESIDENT