Punjab

Faridkot

CC/15/86

Amar Nath - Complainant(s)

Versus

Oriental Bank of Commerce - Opp.Party(s)

Ashu Mittal

18 Nov 2015

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      86

Date of Institution:  6.07.2015

Date of Decision :   18.11.2015

 

1. Amar Nath s/o Inder Sain

2. Sheela Devi w/o Amar Nath r/o Near OBC Bank, Kotkapura, Tehsil Kotkapura, District Faridkot.

                                                                                     ...Complainant

Versus

1. Oriental Bank of Commerce, Kotkapura through its Branch Manager.

2. Oriental Insurance Co. Ltd. 4501, Bank Street, Bathinda, District Bathinda through Manager.

3. Medi Asstt India Pvt Ltd, SCO 521, 2^nd Floor, Sector 70, Mohali (Punjab) 160071/ Near J L P Ltd through MD.

                                                                                                .......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P Singla, Member.

 

Present: Sh Ashu Mittal, Ld Counsel for complainant,

              Sh R P Goyal, Ld Counsel for OP-1,

              Sh Vinod Monga, Ld Counsel for OP-2 and 3.

 

(Ajit Aggarwal, President)

                               Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim worth Rs. 22,578/- pertaining to insurance policy bearing no. 233200/48/2015/2896 in the name of complainant and for further directing OPs to pay Rs 50,000/- as compensation for harassment, inconvenience, mental agony and litigation expenses.

2                                     Briefly stated, the case of the complainant is that complainant is an account holder with OP-1, who is agent of OP-2 and 3 and on persuasion of OP-1, complainant purchased a Mediclaim Insurance Policy of OP-2 and 3. The said policy was valid from 20.01.2014 to 19.01.2015. It was issued in the name of complainant and also included wife/complainant no.2 and daughter of complainant. It is contended that OPs sent only Oriental  Bank Mediclaim Policy Schedule and handbook, but no terms and conditions and Policy were  sent by OPs and after expiry of said policy, complainant got renewed the same with validity from 20.01.2015 to 19.01.2016 from OP-1 and paid Rs 6830/-. This time again OPs sent only handbook and Policy Schedule alongwith Insurance Card, but did not send any Policy or terms and conditions. On 5.04.2015, complainant no. 2 had severe pain in Perianal and she was admitted in Usha Bansal Nursing Home (P) Ltd Muktsar. Operation was conducted upon her and she remained in hospital from 5.04.2015 to 7.04.2015. Intimation regarding this was given to OPs and after discharge from hospital, complainant sent reimbursement claim form alongwith bills and documents to OPs on 18.04.2015. OPs assured complainant after completion of formalities, reimbursement would be done within 30 days. Thereafter, complainant approached OPs many times, but OPs kept putting off the matter on one pretext or the other. Now, OPs have repudiated their genuine claim on pretext that this disease does not come under insurance policy for two years, whereas at the time of taking said policy, no such condition was disclosed by OPs. All this amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay the insurance claim and Rs 50,000/- as compensation besides cost of litigation. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 9.07.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OP-1 filed reply taking preliminary objections that complaint against answering OP is not maintainable as there is no privity of contract between complainant and OP-1 and policy in dispute is issued by OP-2. It is asserted that complaint is bad for misjoinder of parties and bank is a referral agent/facilitator and its role is limited to the extent of providing leads to Oriental Insurance Company ltd and if there is any relationship, then that is between insured/complainant and insurer/Insurance Company. Complaint is not maintainable in the present form and has concealed true and material facts from this Forum. Moreover, it is settled principle of law under Section 230 of Indian Contract Act that an agent can neither sue nor it can be sued except under special circumstances. Complainant is an educated person and he was explained all terms and conditions and benefits of different products of OP-2 and complainant after understanding all the pros and cons of the product of Insurance Company, agreed to purchase the Insurance Policy. Answering OP has simply forwarded the insurance premium on behalf of complainant to OP-2 and there is no deficiency in service on the part of OP-1. However, on merits, OP-1 has denied all the allegations  levelled  by  complainant             being wrong and incorrect and reiterated that OP-1 did not pursue complainant to purchase policy, rather complainant after understanding all the pros and cons, consciously purchased the said policy and has filled the columns of Oriental Bank Mediclaim (with family floater) for the account holders/ employees of OBC and copy of policy was to be sent by OP-2 and 3 and complainant has unnecessarily dragged answering OP in uncalled litigation. It is also denied that if any assurance was given by OP-1 to complainant regarding reimbursement of claim. It is averred that it was the duty of complainant to approach Insurance Company/OP-2 as insurance cover was provided by OP-2. It is further averred that OP-1 has not committed any breach of contract or any guarantee. It is further averred that there is no deficiency in service on the part of answering OP and all the other allegations levelled have been denied being wrong and incorrect.

5                              OP-2 and  3 also filed reply taking legal objections that complainants have no cause of action to file the present complaint and as per terms and conditions of the Policy treatment of Perianal Abscess is not payable in first two years of policy and as complainant purchased policy for first time on 20.01.2014 to 19.01.2015 and then got renewed the same from 20.01.2015 to 19.01.2016 and therefore, claim of complainant is not permissible and has been rightly denied and there is no deficiency in service on the part of answering OPs. However, on merits, OP-2 and 3 have denied all the allegations levelled by complainant being wrong and incorrect and asserted that OPs not only sent Oriental Bank Mediclaim  Policy Schedule and handbook to complainant, rather also sent Insurance Policy alongwith all terms and conditions for both the times i.e at the time of purchase of policy and on its renewal by complainant.  Moreover, it is clearly printed that for Policy details, please visit at the website of OIC or OBC at www.orientalinsurance.org.in. It is further averred that complainant was well conversant with the terms and conditions of the policy and he never raised any objection about such thing since the inception of policy. It is asserted that complainant lodged claim of Rs 22,578/- for treatment of complainant no.2 with OP-2 by showing that complainant no. 2 was done incision of Drainage alongwith debridement, which is treatment of Perianal Abscess from Usha Bansal Nursing Home, Muktsar and his claim was duly processed and considered, but as per terms and conditions of policy of insurance, the claim was not admissible as detailed in legal objections and therefore, it was denied being not permissible. All the other allegations levelled by complainant are denied being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice on the part of OPs. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

6                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, affidavit of complainant no. 2 as Ex C-2 and documents Ex C-3 to C-6 and then, closed his evidence.

7                                   In order to rebut the evidence of the complainant, the opposite party tendered in evidence, affidavit of Partap Singh, Branch Manager Ex OP-1/1 and then, closed the evidence. Ld Counsel for OP-2 and 3 tendered in evidence affidavit of S K Sharma as Ex OP-2/1 and document Ex OP-2/2 and closed the same on behalf of OP-2 and 3.

8                                       Ld Counsel for complainant argued that complainant no. 1 has a bank account with OP-1/Bank, who is also working as agent of OP-2 and 3 in their insurance business. Complainant purchased a Mediclaim Insurance Policy of OP-2 and 3 through OP-1 insuring himself, his wife and daughter for Rs 5 lacs valid from 20.01.2014 to 19.01.2015.  OPs sent only Mediclaim Policy Schedule and Handbook to complainant and no other terms and conditions and Insurance Policy were sent by OPs. After expiry of this Policy, complainant renewed the same through OP-1 valid from 20.01.2015 to 19.01.2016. Again OPs sent only Policy Schedule and Handbook and did not send any other policy document or terms and conditions of Policy. The copies of Policy Schedule are Ex C-3 and 4 and handbook is Ex C-6. As per Policy, if during the period of policy, the complainant or any of his family member gets any medical treatment, the bill of same was to be reimbursed by OPs. On 5.04.2015, complainant no. 2 got severe pain in Perianal and was admitted in Usha Bansal Nursing Home, Muktsar, where operation was conducted. She remained admitted in hospital from 5.04.2015 to 7.04.2015. The complainant duly informed regarding it to OPs and after discharge from the hospital, they sent claim form alongwith original bills and documents as required, which were duly received by OPs and OPs sent message regarding confirmation of it. OPs assured that they would pay the claim within 30 days after completion of formalities, but they did not pay the claim. Complainant visited OPs many times but they put off the matter on one pretext or the other. Complainant received a letter dt 29.06.2015 from OP-2 informing that the claim of complainant is repudiated on the pretext that disease of complainant does not come under Insurance Policy during first two years, whereas at the time of purchasing above referred policy, no such terms and conditions were disclosed to complainant by OPs and no terms and conditions and Insurance Policy were ever sent to complainant. They have wrongly and illegally repudiated the genuine claim of complainant, which amounts to deficiency in service and trade mal practice on their part and due to this act of OPs, complainants have faced harassment, inconvenience and mental agony. Counsel for complainant prayed that OPs may be directed to reimburse the Mediclaim of complainant and also prayed for compensation.

9                             To controvert the arguments of complainant counsel, ld counsel for OP-1 argued that the complainants are not the consumers of OP-1. There is no privity of contract regarding insurance between complainant and OP-1. OP-1 has nothing to do with the insurance claim of complainant. It is only between complainant and OP-2 and 3. OP-1 is a bank and cannot carry on insurance business and deals with only banking business. Banks are allowed only to market insurance products to its customers in a limited manner as agent of Insurance Company. As per Indian Contract Act, an agent cannot be personally bound or sued for the acts which are done by him on behalf of his principal, so, OP-1 is unnecessarily impleaded as party to this complaint and complaint is not maintainable against OP-1. There is no deficiency in service on the part of OP-1. It is wrong that on pursuance of OP-1, complainant purchased the Mediclaim policy of OP-2 and 3, rather complainant purchased the policy at his own will after understanding all the terms and conditions of the same and bank is the only facilitator. He himself filled the proposal form, which was sent by OP-1 to OP-2 and 3. The Policy documents were not sent by OP-1, rather these were sent by OP-2 and 3 and OP-1 has nothing to do with same. Complainant lodged his Mediclaim directly to OP-2 and OP-1 has nothing to do with it. Claim of complainant was processed by OP-2 and 3 and the same was repudiated by them. If there is any claim of complainant, it is to be reimbursed by OP-2 and 3 and not by OP-1. So, there is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint against OP-1.

10                                                Counsel for OP-2 and 3 argued that complainant has no cause of action to file the present complaint as claim of complainant has been duly processed and considered. As per terms and conditions of Policy Clause 4.2 (xv), the benefit of reimbursement of treatment of Perianal Abscess is not payable in first two years of Policy.  Policy in question was purchased for first time on 20.01.2014 and it was valid from 20.01.2014 to 19.01.2015 and was renewed from 20.01.2015 to 19.01.2016 i.e the policy did not complete its first two years so, the present complaint is filed without any cause of action and there is no deficiency in service on the part of OPs. It is correct that complainant purchased the Mediclaim Policy from OP-2 through OP-1 for the period of 20.01.2014 to 19.01.2015 and complainant renewed the same from 20.01.2015 to 19.01.2016. It is wrong that OPs sent only Mediclaim Policy Schedule and handbook and not sent the terms and conditions and Insurance Policy alongwith policy documents. OPs duly sent terms and conditions of the policy alongwith Policy Schedule. Moreover, in Policy Schedule, it is clearly printed that for Policy details, please visit the website of OIC or OBC at www.orientalinsurance.org.in. The complainants were well aware of the terms and conditions of the policy and they never raised any objection against the terms and conditions of the Policy. It is correct that complainant lodged a claim on account of treatment of complainant no. 2 with OP-2 showing that complainant no. 2 was  done incision of drainage alongwith debridement i.e treatment of Perianal Abscess from Usha Bansal Nursing Home, Muktsar and for reimbursement of Rs 22,578/-. The claim of complainant was duly processed and considered by OP-2 and 3 but as per terms and conditions of the Policy of Insurance, the claim of complainant is not admissible as it was not allowed during the first two years of the policy. Therefore, OP-2 and 3 have rightly and legally repudiated the claim of complainant as per terms and conditions of the policy. At the time of purchase of policy, all the terms and conditions of policy were disclosed to complainant. There is no deficiency in service and trade mal practice on the part of Op-2 and 3 and prayed for dismissal of present complaint.

11                                      We have heard the arguments addressed by all the parties and have also gone through the evidence and documents led by the parties.

12                                  The case of complainant is that they purchased Mediclaim Insurance Policy of OP-2 and 3 through OP-1, but OP-2 and 3 sent only Policy Schedule and Handbook to them and did not send any terms and conditions of Policy and policy documents. They renewed the policy for second year also. During the period of policy, complainant no. 2 got admitted in hospital for treatment of pain in Perianal and her operation was conducted and she remained admitted in the hospital from 5.04.2015 to 7.04.2015. They duly lodged claim before OP-2 and 3 for reimbursement of their medical bills, but OP-2 and 3 illegally and wrongly repudiated their claim.

13                                                In reply OP-2 and 3 argued that disease of complainant does not fall under the Policy. As per exclusion clause, this disease is covered under the policy after first two years. Copy of terms and conditions is Ex OP-2/2. As per terms and conditions of exclusion clause 4.2 (xv), this disease does not come under the policy.

14                                                The counsel for complainant argued that neither at the time of purchase of policy, OP-1 nor OP-2 and 3 have disclosed terms and conditions of the policy and exclusion clause to them. Even OPs did not send any terms and conditions and policy document to them. They only sent Policy Schedule and Handbook and on it, there was nothing mentioned about exclusion clause. As such, exclusion clause is not binding upon them. In support, he has placed reliance on the citation titled as United India Insurance Co. Ltd & Anr Vs S. M.S. Tele Communications & Anr 2009 (4) Consumer Law Today 145 wherein Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that Consumer Protection Act, 1986 Section 2 (1) (g) - Insurance Act, 1938, Section 114 (A)- Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interest) Regulations, 2002, Regulation 3 – Insurance claim – Exclusion clause – Held that being aware of the existence of the policy is one thing and being aware of the contents and meaning of clauses of the policy is another – Not the case of the petitioner-Insurance Company that the contents and the meaning of the policy were made known to the complainant as the policy was taken by the Bank – Insurance Company had explained the meaning of all the exclusion clauses to the Bank – Findings of the Fora below that exclusion clause not binding on the respondent-complainant upheld. He argued that complainant purchased the policy through Bank/Op-1 and they did not disclose any terms and conditions of exclusion clause at the time of purchase of policy. Moreover, the disease suffered by complainant no. 2 is not of such nature which have any pre existing history or symptoms which can be known to a person beforehand. So, the Insurance Company can not deny the claim of complainant on this ground.

    15                                              We have carefully gone through the file and from the  above discussion, we come to the conclusion that the OPs did not disclose the terms and conditions of exclusion clause to complainant at the time of purchase of insurance policy and did not send copy of terms and conditions of exclusion clause to complainant and plea of OP-2 and 3 that it is written in the Policy Schedule that for policy details, please visit the website of OIC or OBC at www.orientalinsurance.org.in has no force. Moreover, the disease of complainant no. 2 is of such type, which have no pre existing symptoms or history. Therefore, in these circumstances, we are fully convinced with the arguments and case law produced by the complainant and complainant succeeds in proving his case. The act of OP-2 and 3 in repudiating the genuine claim of complainant amounts to deficiency in service and trade mal practice. Present complaint is hereby allowed. OP-2 and 3 are ordered to pay the Mediclaim worth Rs 22,578/- to complainant alongwith interest at the rate of 9% per anum from 29.06.2015 i.e when they repudiated the claim of complainant till final realization. OP-2 and 3 are also directed to pay Rs 5000/-as compensation for harassment and mental agony and Rs 3000/-as litigation expenses to complainant. Complaint against Op-1 stands dismissed. Compliance of this order be made within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 18.11.2015                 

 

  Member            Member                   President

                      (P Singla)         (Parampal Kaur)      (Ajit Aggarwal)