JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is a Registered Company who availed of a Group Mediclaim Insurance Policy from the op on 31.03.2010 which was valid till 30.03.2011 and a sum of Rs. 9,03,357/- as premium for the said policy and it was renewed on 31.03.2011 which valid till 30.03.2012 and as per requirement complainant paid entire yearly premium of Rs.6,12,052/- in advance for all its employees and further paid a sum of Rs.10,000/- separately as CD account deposit to cover any new members.

          As per terms and conditions of the Group Medical Policy complainant was required to pay additional premium when the number of new employees would be increased as compared to the number of resignees at the end of every month and in case the number of new appointed employees were lesser than the resignees, the insurance company was required to refund the amount for those and in the light of the above complainant submitted his monthly declarations showing the number of new appointees as well as the resignees and same of the monthly declarations are also filed and complainant also paid additional premium whenever this was necessary.

          But in majority of the months, during the period from 31.03.2011 to 30.03.2012 the number of resignees were more than the number of appointees.  As such, the op was required to refund the amount for reduction of number of employees. 

          But op did not refund the said amount and amount continued to accumulate day by day and by the end of the period, the said amount was approximately Rs.1,00,000/-  and the said amount was to be refunded by the end of the policy period i.e. 31.03.2012 but op did not refund the same to the complainant.  Thereafter complainant requested and gave several reminders for refund of the said amount from the op on various occasions but the concerned officer of the op always showed a reluctant attitude and did not take any step for refund of the same. 

          Subsequently, Mr. Nirmalya Chanda further assured the complainant that the amount would be refunded at first in the form of adhoc amount from time to time.  Subsequently it was told by him that the entire amount would be refunded to the complainant immediately after the policy period is over. But fact remains that policy period had already over but op did not refund it as the op did not pay any resignees to the complainant and complainant being constrained, caused a legal notice dated 03.09.2012 and called upon the op to refund the entire sum due and payable under the said policy and complainant further demanded for damages on receipt of Rs.2 lakhs caused to him due to the unfair trade practice on the part of the op and the said notice was sent through Speed Post with A/D.

          But op in spite of receipt of the said notice did not refund the amount.  Complainant further submitted that complainant obtained the Group Medical Policy for its employee’s bona fidely and believing the promises and representation made by the op, complainant availed service from the op upon payment of consideration and as such, complainant is a consumer and the op is a service provider.  But fact remains that for negligent and deficient manner of service and also for adopting unfair trade practice, this complaint is filed praying for relief.

          On the other hand op by filing written statement submitted that the complainant being a private limited company has got no locus standi filed a complaint before the Ld. Forum and the complainant is not coming within the meaning of consumer under the C.P. Act 1986 and so the present complaint is not maintainable and further this Forum has no jurisdiction to decide the same.

          It is further submitted that complainant most arbitrarily and illegally had made the New India having its office at 4 Mangoe Lane, Kolkata a party to this proceeding but in his complain petition it is not proved that the New India Assurance Co. Ltd. having its office at 4 Mangoe Lane, Kolkata-01 is at all responsible regarding the alleged non settlement of the present claim.  But fact remains that policy has been issued from CDU, Octavius Chamber, 15C Hemanta Basu Sarani, 5^th Floor, Kolkata and the op no.3’s office at 4, Mangoe Lane, Kolkata-700001 was quite in a dark regarding the lodging of the present claim, so mere existence of branch office does not necessarily unaffected to adjudicate the matter.

          But op has denied to refund of Rs. 1 lac and further denied the entire material allegations regarding discussion with the op’s officer along with the complainant and complainant filed an appeal before Insurance Ombudsman that had been closed on the ground that it has been a private limited company not an individual and so onus is on the complainant to establish the mala fide intention of the op the insurance company as there is no specific grievance against the op one who makes a specific allegation has to prove the same and so complainant is not entitled to any relief as claimed and there was no deficiency in service on the part of the op.

                                                  Decision with reasons

          On proper consideration of the entire materials and also the fact that no doubt it is undisputed that complainant has a Group Medical Insurance Policy and that was after renewal validity for the period 31.03.2011 to 31.03.2012.  Practically from the internet E-mail received by the complainant from Nirmalya Chanda @ New India Assurance Co. in dated 31.01.2011 it is found that Nirmalya Chanda reported to op to the effect that “Dear Mr. Roy we have updated provisionally all endorsements with basic policy, approx refundable amount including service tax Rs.1,12, 156/- which shall be adjusted with future endorsements and on renewal premium” and prior to that several communications have made by the complainant to the op and complainant’s officer replied and ultimately sent that letter and that letter has not been denied by the op and considering that letter it is clear that complainant is entitled to get refund a sum of Rs.1,12,156/-.  But op requested the complainant that said amount shall be adjusted with future endorsement and on renewal premium.  When that is the fact, then invariably the present claim of the complainant is in respect of the refund of the amount which is entitled as per provision and op has admitted that complainant is entitled to Rs.1,12,156/- as refundable but that has not been paid and it is the intention of the op’s agent to achieve the same with future endorsement and on renewal of premium.  But fact remains that as per Insurance Agreement, there is no clause. But for the purpose of creating a pressure upon the complainant, op proposed to that effect that the said amount shall be adjusted with the future endorsement and on renewal premium.  But this is not provision of law.

          Fact remains that the complainant is a private company and as because it is a Group Medical Insurance Policy.  So, even if it is found that it is a company or commercial establishment, as per settled principal of law in respect of Group Medical Insurance Policy or Insurance Policy individual or company is entitled to get back such amount what he is entitled to get as per policy condition, because this amount was not invested for the purpose of commercial but for premium was paid by the company for protection of the employees for covering the risk of treatment cost of the employees.  So, purpose was not for business purpose or commercial transaction.

          Further from the written version of the op, it is clear that op has failed to give any clarification for what reason they have retained the said amount, though company has not been reported to the complainant that it shall be refunded and complainant is entitled to get it but they are not willing to pay back, but they are willing to adjust along with future renewal premium and other matter.  But in the written version that matter has not been disclosed but repeated in the written version, op has submitted that complainant is a private limited company, so it is not maintainable but we have already decided that the complaint is maintainable in view of the principal of law that premium had not been made for commercial transaction but for protecting the interest of the employees so that the employees may get Group Medical Insurance Policy in case of any cause turned to death by the employees for their problems or family problems and after proper scrutiny of the same the entire materials and policy being No.51080034100400000001 and also the condition of the policy (Mediclaim Policy – 2007) we have gathered that complainant has rightly pointed out the entire friction of the policy and no doubt complainant month by month sent the details of the employees for insurance including the number of resignees and number of joinees and that is the clause of the present policy.

          Regarding submission of the said details month by month there is no such allegation against the complainant by the op.  but from that said letter as already referred, it is clear that op has admitted that complainant is entitled to get back Rs.1,12,156/- when the said policy for the said year had already expired.  So, considering the above fact, we are convinced that complainant is entitled to get refund of a sum of Rs.1,12,156/- as per letter of the op’s officer Nirmalya Chanda dated 31.01.2011 but it has not yet been refunded.

          But op has tried to create pressure upon the complainant to adjust the same with future endorsement on renewal premium but complainant does not accept the same on the ground of renewal, op has been maintaining the premium problems in advance account and credited the same to income as actual computation based on declaration and so it is clear that complainant has proved that complainant is entitled to get refund as per condition of the said Group Medical Insurance Policy and it is admitted fact that refundable amount of Rs.1,12,156/- and that has not been paid and no doubt op is bound to refund when it is a medical policy and that amount is refundable in view of the fact that the policy is renewed year to year so for particular year refundable amount cannot be adjusted with renewal amount.  But it must be returned to the insured as per provision of law.  But considering the entire fact and circumstances of the case we have gathered that if complainant used to swallow offer of the op in that case there was no objection but as because the offer of the op was not accepted by the complainant for which op did not refund the same.  But op is legally bound to refund the same to the complainant and considering the fact that it is a company’s Group Medical Insurance Policy.

          So, we find that op/company ought to have followed the terms and conditions of the policy when they have admitted that complainant is entitled to get back such amount, then there was no other alternative on the part of the op but to refund the same and no doubt complainant is entitled to get back the same.

          Thus the complaint succeeds.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is allowed on contest without any cost against the op.

          Op is directed to refund the entire amount of Rs.1,12,156/- to the complainant within one month from the date of this order along with compensation of Rs.15,000/- for harassing the complainant in such manner and said amount shall be paid by the op to the complainant positively within one month from the date of this order failing which for non-compliance of the Forum’s order and for disobeyance of the Forum’s order op shall have to pay punitive damages @ Rs.400/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

          Ops are directed to comply the order very strictly failing which penal proceeding shall be started u/s 27 of C.P. Act 1986 and further penalty shall be imposed for starting such penal proceeding as per law.