BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 306 of 2017
Date of Institution : 27.11.2017
Date of Decision : 24.04.2019
Madan Lal Satnali (since deceased) son of Sh.Banwari Lal now represented by his real wife and natural legal heir – Kanta Devi widow of Madan Lal Satnali, M/s Sarwaswati Timbers, Kath Mandi, Sirsa-125055, District Sirsa.
……Complainant.
Versus
- National Insurance Company Limited, through its Divisional Manager, Divisional Office, Sangwan Chowk, Sirsa-1250055 (Haryana).
- Vipul MedCrop Insurance TPA Private Limited, through its Authorized signatory, 515, Udyog Vihar, Phase-V, Gurgon-122016 (Haryana.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA………………. ……PRESIDENT.
SH. ISSAM SINGH SAGWAL ………MEMBER.
MRS. SUKHDEEP KAUR……………..MEMBER.
Present: Sh. Anil Bansal, Advocate for the complainant.
Sh. J.D.Garg, Advocate for opposite party No.1.
OP No.2 exparte.
ORDER
The case of the complainant, in brief, is that the complainant Madan Lal Satnali (since deceased) purchased a Medi-Claim Insurance Policy for himself and his wife from Op No.1, on 06.05.2016 after paying a sum of Rs.16982/- as premium. The policy was enforceable from 10.05.2016 to 09.05.2017. On 16.10.2016, Madan Lal Satnali (since deceased) suddenly developed an acute & unbearable pain in chest and he was taken to Talwar Hospital & IFV Centre Sirsa where he remained admitted there from 16.10.2016 to 20.10.2016 and also spent Rs.27852/- on his treatment. The intimation was given to the Op No.1 and also claim alongwith requisite documents were lodged but when the claim was not settled, said Madan Lal Satnali got served a legal notice upon the Ops and in reply to the said notice, it came to his knowledge that the insurance claim has been repudiated by OP No.1 on the recommendation of Op No.2. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint.
2. On notice, Op No.1 appeared and filed his reply wherein it has been submitted that personal action dies with the death of the complainant and right of sue is not actionable clam. The legal heirs of the complainant shall be entitled to inherit the claim passed before the death of the complainant. It has been further submitted that the complainant was discharged from Talwar Nursing Home on 20.10.2016 and as per policy terms under clause 5.5.4 he was supposed to submit his reimbursement claim within a period 15 days but he had submitted the same on 21.12.2016 and also failed to explain the delay of the same despite issuance of letters dated 05.01.2017, 16.01.2017, 27.01.2017 and reminder dated 08.02.2017, therefore, the claim of the complainant was closed as No Claim. There is no deficiency in service on the part of replying Op. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3 Notice was also issued to No.2 through registered post but the same was not received back within a period of 30 days, therefore, it was presumed that the notice was delivered but none had turned up on behalf of Op No.2, therefore, it was proceeded against exparte vide order dated 03.01.2018.
4. During the pendency of the present complaint, Madan Lal Satnali had expired and his widow was impleaded as legal representative of the deceased Madan Lal Satnali vide order dated 04.12.2018 and thereafter, the amended complaint was filed by the complainant through his legal representative and the amended written statement was also filed on behalf of the OP/National Insurance Company.
5. Thereafter, both the parties have led their respective evidence.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. Learned counsel for the complainant has contended that it is a proved case of the complainant that the complainant Madan Lal Satnali (since deceased) had purchased a Medi Claim Insuance policy on 06.05.2016 on payment of premium of Rs.16,982/- which was enforceable from 10.05.2016 to 09.05.2017. On 16.10.2016, said Madan Lal Satnali suddenly developed an acute and unbearable pain in chest and he was taken to Dr.M.M.Talwar, MD of Talwar Hospital & IVF Centre, Sirsa, who advised some tests of liver, kidney, sputum, blood tests, ECG etc. and he remained there from 16.10.2016 to 20.10.2016 He lodged claim with the Op No.1, but however, the same was repudiated by the Op No.1 on the recommendation of Op No.2 on the ground of delay in submission of documents, which clearly amounts to deficiency in service and unfair trade practice on the part of Ops. The Ops were informed well in-time about the treatment being taken by the said Madan Lal Satnali. The learned counsel for the complainant has further contended that the claim of the complainant cannot be repudiated merely on the ground of delay intimation and the same can be settled even on non-standard basis. He has relied upon the judgment of case titled as New India Assurance Co. Vs. Shyam Sharan Pandey 2018 (1) C.P.R. page 76.
8. On the other hand, learned counsel for the Op No.1 has strongly contended that the Ops were not informed well in time by the complainant qua his suffering from chest pain and treatment taken by him from Dr.M.M.Talwar. It has also been contended that the complainant Madan Lal Satnali had submitted the late information to the Ops, as a result of which, the claim of the complainant was repudiated on the ground of delayed intimation. The repudiation is legal and justified as per the terms and conditions of the policy. Learned counsel for the Op No.1 has further contended that it was the personal right of the deceased Madan Lal Satnali and the same does not survive to the legal heirs of the deceased. It is a settled principle of law that personal action dies with the death of the claimant and the right to sue is not actionable claim. He has relied upon the judgment of Hon’ble Naional Commission reported in case titled as Janak Kumari Vs. Dr.Balwinder Kaur Nagpal and another 2003 (2) CPJ 28, in which it was observed by the Hon’ble National Commission that after availing medical services, the negligent treatment was alleged. The complainant died during the pendency of the complaint. Personal action dies with the death of claimant. Right to sue is not actionable claim. Claim for unliquidated damages for any tortuous liability is a mere right to sue which cannot be transferred.
9. We have heard rival contentions of learned counsel for the parties and have gone through the case file and case laws relied upon by learned counsels for the parties carefully.
10. The perusal of the case file reveals that Smt.Kanta Devi widow of complainant Madan Lal Satnali (since deceased) has tendered her affidavit Ex.CW1/A wherein she has reiterated the facts mentioned in the complaint and also produced documents such as insurance policy Ex.C1, indoor file Ex.C2, treatment summary Ex.C3, bed head tickets Ex.C4 to Ex.C6, treatment summary Ex.C7, discharge card Ex.C8 & Ex.C9, prescription slip Ex.C10, summary of treatment Ex.C11, details of medicines and procedure used during the treatment of Madan Lal Ex.C12 to Ex.C21, ECG report Ex.C22, path lab reports Ex.C23 & Ex.C24, receipt issued by Talwar Nursing Home Ex.C25 to Ex.C39, receipt of Dipesh Talwar HUF Ex.C40 & Ex.C42, legal notice Ex.C42, postal receipts Ex.C43, Ex.C44, repudiation letter Ex.C46 and reminder Ex.C47. On the other hand the Op No.1 has tendered affidavit of Vinod Kumar Gumber, Divisional Manager, by which he has reiterated the facts mentioned in the reply. The Op No.1 has also produced documents such as copy of policy Ex.R1
11. The perusal of the record reveals that it is undisputed between the parties that the complainant Madan Lal Satnali had purchased a medi claim insurance policy on 06.05.2016 on payment of premium of Rs.16982/- , which was effective from 10.05.2016 to 09.05.2017. The policy was issued by the Op No.1 after going through the declaration made by the deceased Madan Lal Satnali in his proposal form which was accepted by the Op No.1and in this way, there was insurance contract between the parties. It is further proved fact on record that the said deceased Madan Lal Satnali suddenly developed acute and unbearable pain in chest and consequently he was taken to Dr.M.M.Talwar Hospital & IVF Centre, Sirsa, where he was advised for some tests of Liver, Kidney, Sputum, Blood Tests, ECG etc. and his treatment was started by the doctor. He remained in the Talwar Nursing Home from 16.10.2016 to 20.10.2016 and paid the medical bills. Undisputedly, the claim was lodged with the Ops, which was repudiated by the Ops on 22.02.2017 and intimation of this was also given by the Ops to the counsel for the deceased Madan Lal Satnali in reply to the legal notice which was duly got issued by the Madan Lal Satnail from his counsel.
12. The complainant, who has been represented after his death, by his widow has furnished her affidavit Ex.CW2/A, in which she has deposed and reiterated all the averments made in the claim filed by her husband during his lifetime. On the other hand, learned counsel for the Op No.1 has tendered affidavit of Sh.Vinod Kumar Gumber, Divisional Manager Ex.RW1/A in which he has deposed and reiterated all the averments made in the written statement. He has deposed that the claim has not been lodged within a stipulated period of 15 days after the discharge from the hospital as per the terms and conditions of the policy. The complainant was discharged from the hospital on 20.10.2016 whereas he lodged the claim on 21.12.2016 by violating the provisions of the policy clause 5.5.4 and he had failed to explain any reason for submitting the delayed claim and documents, as a result of which, the claim of the complainant was closed as No Claim which is evident from the copy of letter Ex.C47. Copy of letter Ex.C46 also finds mentioned that the reason for delayed submission has not been replied and the claim is repudiated by the TPA due to non compliance of query from insured end as per policy clause 5.5.4.
13. Even if, it is presumed that the delayed intimation was given to the Ops regarding the problem which the complainant has faced and for which he had got treatment from Dr.M.M.Talwar, MD Talwar Hospital & IVF Centre, Sirsa, even then the claim of the complainant cannot be repudiated in toto and the same can be settled on non-standard basis. We have find force from law laid down in the case titled as New India Assurance Co.Ltd.Delhi Vs. Shyam Sharan Pandey 2018 (1) CPR 76 (surpa).
14. Second contention of the learned counsel for the Op No.1 is that the claim of the complainant was only a personal action against the Ops which died with the death of the claimant and the claim for unliquidated damages for any tortuous liability is a mere right to sue which cannot be transferred and learned counsel for the Op No.1 has relied upon the case law reported in Janak Kumari Vs. Dr.Balwinder Kaur Nagpal and another 2003 (2) CPJ 28 (supra). But the perusal of this judgment reveals that said Janak Kumari, petitioner had filed a complaint against the Ops Doctor and insurance company regarding medical negligence and treatment and she claimed damages and her claim was dismissed. During the pendency of the complaint said Janak Kumar died, not because of alleged medical negligence by the respondent-doctor but on account of some other cause. Her legal representatives, her children and husband were substituted in her place. After dismissal of the complaint legal representative of Janak Kumari had filed appeal in the Punjab State Consumer Disputes Redressal Commission which was again dismissed and legal representative of the said Janak Kumari filed petition before Hon’ble National Commission. It was observed by the Hon’ble National Commission that claim for unliquidated damages for any tortuous liability is a mere right to sue which cannot be transferred. The facts of the reported judgment are not applicable to the facts of present case and the same are distinguishable. In the present case, the deceased complainant Madan Lal Satnali had entered into an insurance contact by purchasing a medi claim policy from the OP No.1 on payment of Rs.16982/- and the policy was valid from 10.05.2016 to 09.05.2017 and the policy was issued by the Op No.1 on certain terms and conditions of the insurance contract. So, it is apparently clear that the deceased Madan Lal Satnali had hired the services of the Op No.1 on payment of valuable consideration in order to get reimbursement of expenses of medical treatment. As the said deceased Madan Lal Satnali suffered from chest pain and was admitted in the Talwar Hospitl & IVF Centre, Sirsa for the period from 16.10.2016 to 20.10.2016 and has spent Rs.27,852/- on his treatment and he lodged the claim with the Ops for the reimbursement of the expenses which he has spent on his treatment. So, the liability of the Ops is out of the insurance contract for which, the Ops are legally bound to pay the same. So, this plea of the Ops also appears to be devoid of any merit, as it is not a personal actionable claim which dies with the death of the claimant. Rather, it is a right which has accrued out of the terms and conditions of an insurance contract and same is survivable and enforceable. Kanta Devi, widow of the deceased being the legal heir of the deceased has got every right to enforce the rights of her husband against the insurance company.
15. So, we are of the opinion that the Ops have repudiated the claim of the complainant wrongly and arbitrarily, which clearly amounts to deficiency in service and unfair trade practice on their part. The present complaint is hereby allowed and the Ops are directed to settle and pay the claim of the complainant on non-standard basis within a period of 30 days from the date of receipt of the copy of this order alongwith interest @ 9 % per annum from the date of lodging of claim till its realization. The Ops are further directed to pay Rs.5,000/- as compensation on account of harassment and Rs.2,000/- as litigation expenses to the complainant. A copy of this order be sent to both the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:24.04.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
