Complainant’s case in short is that he is insured duly by the O.P No. 1 M/s Oriental Insurance Company Ltd. and O.P No. 2 is the Regional Manager of O.P No. 1 and O.P No. 3 is the Branch Manager, Bank of India, Nager Bazar Branch.
Complainant alleges that he took health insurance policy in his name from the O.P No. 1 in 2001 for a sum assured amounting to Rs. 3,00,000/- and since then insurance policy of Complainant is being renewed from time to time till 2019 and the said policy of Complainant was on 29.12.2017 and was valid from 03.01.2018 to 02.01.2019.
Complainant further states that till date no claim had ever been arisen at all as regards reimbursement of medical expenses of Complainant.
The specific allegation of Complainant is that at the material point of time on 28.12.2018 Complainant visited the office of O.P No. 1 for renewal of the said policy for a further period of one year commencing from 03.01.2019 to 02.01.2020 and Complainant duly handed over an Account Payee Cheque to O.P No. 1 of Rs. 6,689/- bearing Cheque no. 102608 dated. 28.12.2018 drawn on Bank of India, Nager Bazar Branch.
After receiving said Cheque, O.P No. 1 issued a receipt confirming of receiving the said amount in connection with said health insurance policy and also issued a policy certificate in the name of Complainant which was duly sent by O.P No. 1 at the registered address of the Complainant showing the validity of said insurance commencing from 03.01.2019 to 02.01.2020.
Complainant further states that within the period from 03.01.2019 to 02.01.2020 no claim had been raised by Complainant and accordingly on 20.12.2019 Complainant visited at the office of O.P No. 1 for renewal of said policy for a further period of one year commencing from 03.01.2020 to 02.01.2021 but O.P No. 1 straightway refused to renew the said policy and instructed Complainant to register a fresh health insurance policy and regarding such matter Complainant was pushed from one table to another table of the office of O.P No. 1 and lastly Complainant had been informed by O.P No. 1 that premium for the year of 2019 and 2020 is showing unpaid in the record of O.Ps, but Complainant stated that premium of said period already paid by the Complainant in due time well in advance and had duly received the acknowledgment from O.Ps and O.Ps further informed Complainant that the deposited Cheque bearing no. 102608 dt. 28.12.2018 had been reportedly returned by the drawee bank for reason ‘payment stopped by drawer’ and on demand of Complainant O.Ps refused to issue any document in support of their contention to the Complainant. Complainant also alleges that the bank records of the Complainant do not disclose that the said Cheque was disposed and the bank dishonored the Cheque for the reason “payment stopped by drawer”. Complainant alleges that it is the compulsion of O.P No. 1 to supply the sufficient documentary proof to the complainant in support of their claim and Complainant specifically states that he did not make any such instruction to his bank.
It is also stated by the Complainant that the subject Cheque issued by the Complainant to the O.Ps, if returned due to the alleged remarks “payment stopped by drawer”, then it is also the liability of O.Ps to return the bounced Cheque along with intimation for further payment.
Complainant alleges also that 20.12.2019 when Complainant went to office of O.P No. 1 for the purpose of renewal of policy for further period of one year commencing 03.01.2020 to 02.01.2021 O.Ps vehemently refused to renew the said policy.
It is also stated by the Complainant that said policy is continuing for 19 years and more and on 20.12.2019 Complainant issued a letter to the O.Ps stating all facts with a request for doing the needful and in response O.P No. 1 had issued a office letter to its Regional office on 30.12.2019 with a request for giving effect of continuation benefit to the Complainant, but by a letter dated 20.01.2020 though admitted that there is no fault/latches on the part of Complainant, but O.Ps ultimately denied to continue the benefit of said policy.
Complainant further states that the act of O.Ps exhibit gross deficiency in service and for adopting unfair trade practice for which Complainant had suffered tremendous physical and mental harassment as well as suffered due to absence of continuing of said insurance policy since 03.01.2001 till date Complainant also had been debarred from the facilities of no claim bonus for which O.Ps are liable to pay the legitimate compensation.
Hence, this case and Complainant has prayed for following reliefs:-
For passing a direction upon O.P No. 1 and 2 to give effect of the continuation of the policy in question for the period on and from 20.12.2019 to 19.12.2020 and to provide a continuation benefit of the said insurance policy in the name of Complainant for the following next year onwards till date and to give effect of continuation of said policy along with facility of no claim bonus in favour of the Complainant.
Alternatively, to pass an order with a direction upon the O.P No. 1 and 2 to refund the premium amount duly paid by the Complainant for the period from 03.01.2001 to 28.12.2011 amounting a total amount of Rs. 1,00,667/- along with interest @10% p.a. on and from the year 03.01.2001 till upto the date of actual payment.
Direction upon O.P No.1 and 2 to pay compensation of Rs. 3,00,000/- to the Complainant for causing physical and mental harassment and Rs. 50,000/- to be paid by O.Ps to the Complainant towards litigation cost including other prayers for other reliefs.
O.P No. 1 and 2 have contested the case by filing WV denying all material allegations and contended inter alia that Complainant is guilty of making unjust claim with a view to defeat the ends of Justice and also Complainant made attempt for undue gain. O.Ps have also specifically stated that complaint is misconceived,, vexatious, untenable and devoid of any merit. It is specifically stated by O.P No. 1 and 2 that the Cheque in question was deposited with Axis Bank, the banker of insurance company for clearance on 01.01.2019 and the Cheque was returned by the bank on the same day with remark ‘outdated’ . After receiving the said Cheque from banker Complainant was informed by O.Ps regarding non-encashment of the Cheque and was requested to issue a fresh Cheque after receipt of the outdebated Cheque, but Complainant failed and neglected to comply with the same. Hence, the policy in question became invalid, O.P No. 1 and 2 also stated that according to the Provision of Law, no cause of action arose against O.P No. 1 and 2 for filing the instant complaint by Complainant.
O.P No. 1 and 2 further state that without prejudice to the contention made herein by O.Ps, O.P No. 1 and 2 reserve the right to file additional W.V.,, if required. Hence O.P No. 1 and 2 have prayed for dismissal of the case awarding cost of proceeding in favour of O.P No. 1 and 2.
O.P No. 3 has also filed WV separately and specifically states that the claim of the Complainant is barred by law.
It is specifically stated by O.P No. 3 that the Complainant already acknowledged that said Cheque deposited on 28.12.2018 and said Cheque had been returned for reason ‘payment stopped by drawer’ and thereafter neither Complainant nor the O.P No. 1 and 2 asked for credit the amount in favour of O.P No. 1 and 2 and O.P No. 3 came to learn this grievances of Complainant only after receiving the notice of this Commission relating to this case. O.P No. 3further states that as per bank records of O.P No. 3 that the said Complainant has not deposited the said alleged Cheque and as a result of which O.P No. 3 had not made and /or has done any deficiency in service and O.P No. 3 did not adopt any unfair trade practice.
O.P No. 3 further states that in this case O.P No. 3 would not be charged and further that this case is not maintainable against O.P No. 3.
O.P No. 3 further states that at the time of hearing O.P No. 3 may provide documents before this Commission which may be called for or ordered by this Commission.
Upon pleadings of the parties following issues have been framed:-
Points for decision
- Whether Complainant is the Consumer to the O.Ps?
- Whether this Commission has territorial and pecuniary jurisdiction to try and entertain this case?
- Whether there is any deficiency in service or there is any unfair trade practice on the part of O.Ps?
- Is the Complainant entitled to get reliefs as prayed for?
Decision with reasons
For the sake of convenience and brevity of discussion all the points are taken up conjointly for discussion.
On close scrutiny of materials on record it is clear that the Complainant is a Consumer to the O.Ps.
Complainant appears to be the resident of Kolkata under P.S Dumdum. Whereas address of O.P No. 1 is at Howrah under P.S Howrah. The address of O.P No.2 appears to be within Kolkata under P.S Hare Street. O.P No. 3’s address is at 468/1 Jessore Road, Dhopa potti, Amarpalli, Kolkata under P.S Dumdum. Considering the nature of the case and prayers of the Complainant it clearly indicates that the subject matter of dispute is nothing but a Consumer dispute and it straightway gives clear signal that the pecuniary value of the case is within Rs. 50,00,000/- i.e. within the limit of this Commission. So, this Commission has territorial/ pecuniary jurisdiction to entertain and try this case.
In support of his case Complainant has filed evidence on affidavit which appears to be a replica of the contents of petition of complaint.
O.P No. 1 and 2 also files evidence on affidavit. On a close perusal of the same it also appears that O.P No. 1 and 2 have tried to stand strictly upon their contents as depicted in the WV of O.P No. 1 and 2.
It is the argument advanced by the Ld. Counsel appearing for the Complainant is that Complainant is an insured person duly insured by the O.Ps and he took health insurance policy from O.P No.1 in the year 2001 and the sum assured amounting to Rs. 3,00,000/-. Since inception of the said policy Complainant had never claimed any reimbursement of medical expenses of him. It is specifically argued that after receiving the Cheque in question amounting to Rs. 6,689/- by the O.P No. 1. O.P No.1 issued receipt confirming the receipt of amount and health insurance policy certificate was sent to the Complainant by O.P No. 1. It is also contended by Ld. Counsel of Complainant that office of O.P No. 1 refused to renew the policy for the period commencing from 03.01.2020 to 02.01.2021 and instructed Complainant to register a health insurance policy afresh and on asking O.P No.1 did not give any document on that score. It is also argued that the bank statements of the Complainant shows that said Cheque had ever been presented for encashment and bank had dishonored the Cheque for the reason ‘payment stopped by drawer’. Accordingly, it is the obligation of O.P No. 1 to put forward sufficient documentary evidence in support of his case showing the alleged reason ‘payment stopped by drawer’ and as a matter of fact it is candidly argued by him that no such instruction Complainant had ever been made for alleged stopped payment. Ld. Advocate of Complainant specifically highlighted that there is gross negligence and unfair trade practice on the part of O.P No.1 and 2 resulting which Complainant has suffered physically mentally. In support of his contention Ld. Counsel of Complainant has placed his reliance upon two decisions namely 1. (2012) 5 Supreme Court Cases 234 and 2. III (2001) CPJ 10 (SC).
Ld. Counsel of Complainant also has relied upon one order dt. 06.09.2017 of the Hon’ble Supreme Court in Civil Appeal no. 1380 of 2010. It is specifically argued by him that when Cheque in question issued for payment of premium was dishonored and subsequent to the accident, insurer cancelled the policy of insurance, in such circumstances statutory liability of insurer to indemnify third parties which policy covered subsists and insurer has to satisfy award of compensation unless policy of insurance was cancelled by insurer and intimation of such cancellation had reached to the insured before the accident. He also specially vouched that insurance company failed to intimate properly the factum of the so called dishonored Cheque and cancellation of contract of insurance to the insured. It is necessary on the part of insurance company to convey to the insured about the alleged dishonor of Cheque and subsequent consequences so as to opportunity to the insured for depositing the premium amount by proper means. It cannot be said to be valid service by just sending intimation of cancellation of cover note by post which has come back unserved or without reaching the addressee. Finally, he argued that in all fairness the Complainants case bears absolute merit and accordingly necessary order is required to be passed in favour of the Complainant.
Per contra, Ld. Counsel appearing for the O.P No. 1 and 2 in course of his argument has candidly argued that the present complaint is totally misconceived, vexatious, untenable and devoid of any merit and Complainant has initiated this case in order to raise a premediated, false and frivolous case to harass O.P No. 1 and 2. He also candidly pointed out that it is a gross abuse of law on the part of Complainant and as such in all fairness present complaint is liable to be dismissed. He added that Complainant has filed this case with an ill motive and malafide intension to have some illegal monetary gain from O.P No. 1 and 2 which is absolutely arbitrary and an attempt of a maneuvering art on the part of Complainant. He also vouched that after a long delay Complainant with an ulterior motive has come forward before this Commission to fulfil his goal which is absolutely illegal. According to him it is the Complainant who should have been conscious regarding the fate of that Cheque is question which is submitted before O.P No. 1 at the relevant point of time, but he enjoyed otherwise for a long time and did not care aboubt the fate of his Cheque in question. On the other hand O.P No. 1 and 2 up to their best ability over phone informed the Complainant about the fate of the Cheque in question with a request to submit the relevant premium in connection with the said health insurance policy of Complainant at an early date, but Complainant totally by-passed the same.
He also specifically argued that the documents dated 30.12.2019 and 27.01.2020 which are annexed along with the Complainant ‘as annexure F’ are false and fabricated and no evidentiary value can be derived from those documents. He also placed his reliance one Citation CDJ 2010 SC 923. He also highlighted one reported decision 2023 LiveLaw (SC) 87.
He candidly and pointedly argued that in connection with matter 2023 LiveLaw (SC) 87 the Hon’ble Supreme Court has mentioned that the Hon’ble NCDRC discussed regarding the importance of hair in a woman’s life and also that it could be an asset for building career in modeling and advertising industry, but then qualification of compensation has to be based upon material evidence and not on the mere asking.
He also added that in the case in our hand it is sufficiently focused that it is absolutely latches and negligence on the part of Complainant and as such in all fairness instant case is liable to be dismissed.
Regard being had upon the submissions advanced by the Ld. Counsel appearing for the respective parties and going through the materials on record including keeping in mind the decisions placed by the rival parties in support of their respective cases first of all it may be pointed out that Complainant on 28.12.2018 handed over a cheque in question to the O.P No. 1 drawn on Bank of India, Nager Bazar Branch of Rs. 6,689/- in connection with the payment of premium of the health insurance policy in question of the Complainant for the year commencing from 03.01.2019 to 02.01.2020 and then it appears that said Cheque was deposited by the insurance company with its banker, Axis Bank for clearance of the same on 01.01.2019 and the Cheque was returned by the bank on the same date with remarks “outdebated”.
Now, it is pertinent to mention that as per O.P No. 1 and 2 after receiving the said Cheque by the banker, Complainant was informed by the insurance company over telephone regarding non-encashment of Cheque in question and a request was made to the Complainant to issue fresh Cheque after receipt of the outdebated Cheque, but Complainant failed and neglected to comply with the same. According to the Complainant aforesaid version of O.P No. 1 and 2 are incorrect and he was in the know that he submitted the Cheque in question and as the acknowledgement had been issued to that effect from the end of O.P No. 1 and as a policy certificate had been sent from the end of O.Ps to the Complainant and as such Complainant had no iota of doubt about the alleged outdebated/dishonored Cheque in question. But it may be noted that normally when we issued any Cheque in anybody’s favour, obviously after some reasonable time (may be two three days later) we make enquiry about the fate/result of the said issuing Cheque. It is curious enough that for a quite long period Complainant enjoyed merrily ignoring the outcome/fate of the result of the Cheque in question. In general such action/ conduct of the Complainant cannot be appreciated at all resulting which it creates confusion/suspicion about the facts as alleged by the Complainant in his petition of complaint.
From the bank statements filed by the Complainant it is clear that the alleged Cheque in question drawn on Bank of India, Nager Bazar Branch amounting to Rs. 6,689/- was not clear and the said amount was not debited from the bank Account of Complainant. So, it can easily be discerned that it is very much within the knowledge of Complainant that the Cheque in question issued by him to O.P No. 1 of Rs. 6,689/- being the premium of his mediclaim policy was not encashed.
By applying normal prudence in such a situation any normal person must have thought that mediclaim policy will not be operative if the amount of the said Cheque in question is not clear, but we are seeing that inspite of knowing that Complainant did not bother to contact with the insurance company for taking valid mediclaim policy for the period commencing from 03.01.2019 to 02.01.2020.
It may further be pointed out that Complainant long after lapse of time nearly about one year approached insurance company to issue valid mediclaim policy for the period from 03.01.2020 to 02.01.2021 and with request to give continuous effect to his previous mediclaim policy.
Ld. Counsel appearing for O.P No. 1 and 2 submitted that after a huge delay of 351 days Complainant approached the insurance company and on the part of O.P No. 1 and 2 it is quite impossible to give continuous effect of the mediclaim policy of the Complainant and according to him such delay cannot be condoned by this Commission inasmuch as it is totally intentional on the part of Complainant. This Commission finds force in such submissions of Ld. Counsel appearing for the O.P No. 1 and 2.
Ld. Counsel appearing for O.P No. 1 and 2 also mentioned that insurance company has no liability to intimate the Complainant regarding the dishonor of Cheque according to the terms and policy. This Commission also is accepting such view of the Ld. Counsel of the O.P No. 1 and 2.
In the above backdrop this Commission finds that the decisions highlighted by the Ld. Counsel appearing for the Complainant are not relevant in commensurate with the factual aspects of the case of the Complainant. Whereas this Commission finds that the decisions placed by the Ld. Counsel of the O.P No. 1 and 2 have manner of application relating to the case with are dealing with.
Before part with this final order it is pertinent to note that in fact in this case O.P No. 3 being bank has no important role relating to the allegations of Complainant as incorporated in the petition of complaint and as such this Commission is of the view that evidence on record does not speak anything adverse against O.P No. 3.
In view of the foregoing discussion and going through the materials on record this Commission is of the view that Complainant has failed to establish his case as such the instant case is liable to be dismissed.
Hence, it is,
ORDERED
That the instant case being no. CC/326/2020 be and the same is dismissed on contest against O.P No. 1 , O.P No. 2 and O.P No. 3 without cost.
Let plain copy of this order to be supplied to the parties free of cost.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
