Delhi

New Delhi

CC/324/2013

Mandeep Singh Marwaha - Complainant(s)

Versus

M/S. Karvat Travel Services Pvt.Ltd. - Opp.Party(s)

30 Jul 2018

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

         C.C.No.324/2013

 

          Sh. Mandeep Singh Marwaha,

         R/o A-1/248, Janakpuri,

           New Delhi-110058.

Vs.

 

1. M/s Karvat Travel Services Pvt. Ltd.,

          Through its Branch Manager,

           UGF 9, A&B Arunachal Building,

           19, Barakhamba Road,

           New Delhi-110001.

 

2. National Insurance Company Ltd.,

          Having its Corporate Regional office at:

          Royal Insurance Building, 2^nd Floor,

           14, Jamshedji Tata Road, Churchgate,

           Mumbai-20

 

          Also at

          Regd. Office at:

         3, Middleton Street,

          Kolkatta-700071

 

 

 

NIPUR CHANDNA, MEMBER

 

O R D E R

 

 

The complainant has filed the present complaint against the O.Ps under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant’s son, late Sh. Abhijeet Singh was duly insured under Overseas Mediclaim policy bearing No.60207666 issued by OP-2 through OP-1. It is alleged that no separate terms and conditions of the policy and documents were provided by the OPs. It is alleged that on 28/6/2012, the complainant’s son travelled to Kuwait by Kuwait Airways flight and all medical exigencies and unforeseen events happening during the said trip were duly covered by the above mediclaim policy which provided an insurance coverage/sum assured of USD 10000 in the event of “Personal Accidental Death and USD 10000 in the event of Personal Liability.  It is submitted that on 14.07.2012, Sh. Abhijeet Singh had gone with the family on sea shore in Kuwait.  While having fun with other children at shore, Sh. Abhijeet Singh was accidentally carried away by the waves and unfortunately, he died on the spot.  As per forensics report, reason of death  is –“Failure in the respiration and heart due to asphyxia due to drowning”.  After clearance of requisite formalities, dead body was brought to  India.  It is further alleged that after the death of late Sh. Abhijeet Singh, the complainant lodged his claim and the same was repudiated by OP-2 arbitrarily and on frivolous ground, hence this complaint.

2.     Notices were issued to both the OPs but none appeared on behalf of OP-1, therefore, it was proceeded ex-parte vide order dated 23.07.2014

3.     Complaint has been contested by OP-2.  OP-2 has pleaded that complainant’s son, late Sh. Abhijeet Singh was insured under policy referred above for 35 days starting from 28/6/2012 and he was died on 14/7/12 due to drowning.  It has pleaded that as per forensics report, death reasons is –“Failure of respiration and heart due to asphyxia due to drowning”.  It has further pleaded that the complainant lodged an insurance claim for the death of his son with OP-2 which was repudiated by OP-2 vide letter dated 30/10/2012.  OP-2 repudiated the complainant’s claim because OP-2  Co.’s medical panel opined that the death of the complainant’s son is not covered within the policy as per clause-6  of the policy terms a and conditions, therefore claim of the complainant has rightly repudiated.  It has pleaded that the complainant vide the present complaint has utterly failed to establish deficiency as against the OP-2 due to which the complaint is to be dismissed.

4. Complainant has filed his affidavit affirming the facts alleged in the complaint. On the other hand Sh. Jaisurya Krishnan, Admn. Officer has filed affidavit in evidence on behalf of OP-2 testifying all the facts as stated in the written statement.

5. We have carefully gone through the record of the case and have heard submissions of the Ld. Counsels for the parties.

6.     Although no objection was taken on the point of territorial jurisdiction of this Forum but it is observed in affidavit of Sh. Jai Surya Krishan, Admn. Officer, OP-02 Insurance Co. has filed its affidavit through the address DRO-1, Jeevan Bharti, Connaught Place, New Delhi. Some facts are not denied by the parties such as the insurance policy. OP has referred to the policy and stated that the complainant is not covered by virtue of clause-6 of General Exclusion applicable to all sections, but no documents or policy have been annexed either with the reply or with the OP evidence filed on record. 

7.     The clause C-6 of the terms and conditions of policy that “ No claim will be paid arising from the participation of Insured Person in winter, mountaineering (where ropes or guides are customarily used), riding or driving in races or rallies, carving or potholing, hunting or equestrian, scuba diving or other under water activity, rafting or canoeing involving white water rapids, yachting or boating outside coastal water (2 miles) and if he participates in any hazardous sports unless specifically covered by getting such extension of cover under the policy on payment of requisite additional premium for the same”  referred to by OP-2 in its repudiation letter has no bearing due to absence of any documentary evidence. Till date, despite opportunities, OP after completing its pleading has not filed any policy or terms and conditions relied by it.  OP has kept the complainant as well as the Forum in the dark regarding the exact condition specified in the policy.  The complainant even after taking a medical policy was not given the copy of terms and conditions of the policy  which was mandatorily to be given by the OP-2.

8.     The controversy as to whether the repudiation is justified, the answer in the negative. No evidence has placed on record as to whether the terms

and condition ever supply to the complainant. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. Since the OP-2 has failed to place on record, the copy of policy and its terms and conditions on which it is relying for repudiation of the claim, we are of the opinion that repudiation of the claim of the complainant by OP-2 is wholly unwarranted and unjustified.  The complainant has succeeded in establishing the case of deficiency in services against OP-2.   We therefore hold, OP-2 guilty of deficiency in services and direct it as under:

1. Pay to the complainant sum of Rs.6,05,913/- along with 9% interest from the date of filing of complaint i.e. 25.03.2013 till payment.

 

2. Pay to the complainant sum of Rs.25,000/- toward compensation for pain and  mental agony suffered by him which will include cost  of litigation.

 

 

The order shall be complied within 30 days of the receipt of the copy of the order. If the said amount is not paid by the OP within a period of one month from the date of receipt of this order, the same shall be recovered by the complainant along with simple interest at the rate of 9% per annum from the date of this order till recovery of the said amount. This final order be sent to server (www.confonet.nic.in ). A copy of this order each be sent to both parties free of cost by post.

File be consigned to Record Room.

Announced in open Forum on 30/07/2018. 

 

 

 

(ARUN KUMAR ARYA)

          PRESIDENT

 

             (NIPUR CHANDNA)                                                  (H M VYAS)

                    MEMBER                                                                MEMBER