Delhi

North

RBT/CC/349/2022

SMT SUDARSHAN BAKSHI - Complainant(s)

Versus

ORIENTAL INSURANCE CO LTD - Opp.Party(s)

08 Aug 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

RBT/CC No/349/2022

                                   [DCDRC-V CC No.577/2013]

In the matter of

Smt.Sudarshan Bakshi

W/o Late Sh.C.M.Bakshi

R/o W-39, First Floor,

Rajouri Garden, Delhi                                                                                        ...Complainant

                                                                                                                                                                                                                                            Versus

Oriental Insurance Co.Ltd.

19A, Second floor

Sarti Complex, Jwala Heri Market

Delhi-110063

Through its Managing Director/s                                                                      ...Opposite party-1

 

Sputnik Medical & Research Foundation

B-21, Oriental Apartment

Secotr-9, Rohini

New Delhi-110065                                                                                           ...Opposite party-2

 

M/s Park Mediclaim Consultants Pvt. Ltd.

703, Vikrant Towers

Rajendra Place

Delhi-110008                                                                                                    ...Opposite party-3

                                                                                                                       

ORDER

08/08/2024

Ms.Harpreet Kaur Charya, Member

The present complaint was been received by way of transfer vide order No.F.1/SCDRC/Admn./Transfer/2022/330 dated 16/04/2022 of Hon’ble Delhi State Consumer Dispute Redressal Commission, where the matter was transferred from DCDRC-V (North West) to this Commission. 

1. Smt. Sudarshan Bakshi , the Complainant, has filed the present complaint against Oriental Insurance Company Ltd. (OP-1); Sputnik Medical & Research Foundation (OP-2) and M/s Spark Mediclaim Consultant Pvt.Ltd. (OP-3) with the allegation of deficiency in services.   
2. Briefly stated facts as per the complaint are, OP-2 in the year 2010 contacted the complainant, representing themselves as agent of OP-1 and proposed to insure the complainant and her husband Sh.C.M.Bakshi.   OP-2 assured the complainant that medical claim will be paid to the complainant directly and OP-2 used to receive the premium amount by way of cheque.   
3. On 08/01/2011, a cheque bearing no.876817 of Rs.30,898/- was handed over to OP-2 for a premium of medical insurance for the year 2011-2012.    The husband of the complainant was informed by OP-2 that the membership No.is 5881 and the current insurance policy no. as 272600/48/2012/773.
4. On 19/09/2011, the husband of the complainant got admitted in Kalra Hospital and was discharged on 25/09/2011.  Claim was filed with OP-1 and OP-3 alongwith original medical record and bills on 29/09/2011. 
5. Several reminders dated 10/02/2012, 13/02/2012, 17/02/2012, 26/06/2021 were submitted to OP-3.   But the same were not replied.  
6. On 10/10/2012, the complainant received a letter rejecting the claim due to violation of policy terms and conditions. The complainant and her husband contacted OP-2 where they were threatened with dire consequences by one Mr.Bansal. 
7. It  has been alleged by the complainant that they were informed by the official of OP-1 that OP-2 in connivance with certain officials of OP-1 is involved in cheating and befooling innocent people.
8. The complainant has further alleged that due to mental stress, trauma and threat by OP-2, the husband of the complainant expired 29/11/2012.  Hence the present complaint with the prayer for direction to OP to reimburse/refund Rs.73,826/-alongwith interest @24% p.a. till realization; compensation of Rs.3,00,000/- for deficiency in services, mental agony and pain and Rs.11,000/- as litigation expenses.
9. Complainant has annexed the death certificate of Sh.Chander Mohan Bakshi, certificate of membership for period 08/01/2009 to 07/01/2010 issued by OP-2, receipt of Rs.30,898/- dated 07/01/2010 issued by OP-2, certificate of membership for period 08/01/2010 to 07/01/2011 issued by OP-2, copy of the passbook, Happy Family Floater policy schedule issued  by OP-1 for the period 05/05/2011 to 04/05/2012 , letter dated 10/10/2012 issued by OP-1, reminders dated 10/02/2012, 13/02/2012, 17/02/2012, 20/06/2012, letter dated 02/02/2012 issued by OP-3 seeking clarification from the complainant, denial for cashless request for hospitalization vide letter dated 21/09/2011, claim form duly received by OP-3 on 20/09/2011, receipt issued by Kalra Hospital, and bills for hospitalization alongwith examination report have been annexed with the complaint.
10. Notice of the present complaint was served to OPs.  However, despite service no reply was filed on behalf of OP-3 and subsequently they did not appear, hence, they were proceeded ex-parte on 28/08/2019.
11. Written statement was filed on behalf of OP-1.They have taken preliminary objections such as the present complaint is misconceived; the complainant has no locus-standi to file the present complaint qua OP-1.  The Happy Family Floater policy bearing number 272600/48/2012/773 was obtained by OP-2 by misrepresentation/concealment of facts without disclosing the true facts of the insured persons.  Mr. Sanjay declared himself as proposer and the complainant and her late husband have been declared as dependent parents for a sum insured of Rs.4,00,000/-.
12. On the basis of preliminary findings of the investigating agency M/s Sai Associates, the claim was repudiated due to breach of utmost good faith.   There is no relationship between the proposer and the insured person and the policy was obtained by insured person through the proposer just to get their claim for pre-existing disease.  Since, the present case involved complicated questions of facts and law hence it could not be decided in summary proceedings; under the medi-claim policy, no claim can be entertained for the loss of profit and earning; the complainant never approached OP-1 at any stage neither at the time of taking policy nor any claim was lodged with OP-1.  It has been further submitted that the complainant and her husband being the parents of Mr. Sanjay (as per policy) of the complainant were insured for a sum of Rs.4,00,000/- under the Happy Family Floater policy no. 272600/48/2012/773 with effect from 05/05/2011 to midnight of 04/05/2012. 
13. It has been further submitted that the complainant and OP-2 are guilty of suppression of material facts which have not been deliberately/intentionally disclosed.   OP-1 cannot be held liable for fraudulent act of the complainant and OP-2.  It has been denied that OP-1 has indulged in deficiency in services.  Rest of the contents of the complaint have also been denied with the prayer for dismissing the complaint with cost. 
14.  Written statement was filed by OP-2.  It has been submitted that The Sputnik Medical and Research Foundation is a charitable Trust registered under the Societies of Registration Act, 1980 and was established in the year 1993 with the main aim and object to provide, assist, procure medical and research facilities to its members.  One of the facilities is procuring medical facility for its members by procuring group medi-claim insurance from Insurance Company to cover those members also, who could not otherwise avail this facility elsewhere after a particular age with their individual names.
15. OP-2 is only a facilitator and the contract is between the insured(s) and the Insurance Company for which the premium is paid to the insurance company. As per the details of the members list, Smt. Sudarshan Bakshi, born on 29/06/1948 R/o W-39, First floor, Rajouri Garden, Delhi subscribed to the membership of the charitable trust vide membership ID No.5881 in 2009 in writing subject to terms and conditions.  
16. As per the membership certificate the terms and conditions clearly mention that the charitable trust will not be responsible for non-payment of claim or acceptance of any liability by the TPA/Insurer. Group mediclaim insurance policy was issued by Oriental Insurance Co. Ltd. under the terms and condition duly accepted by the complainant alongwith the payment of premium to the insurance company collected in the name of OP-2 and any claim in the policy shall be settled by OIC.  Hence, the insurance company is necessary party. 
17. It has been further submitted that OP-1 on its own without any intimation and documentary proof converted the group Mediclaim Insurance Policy of the complainant and her husband in their subsequent renewal into a Happy Family Floater policy in the name of OP-2 as the first two beneficiary in the policy were the members of Charitable Trust and OP-1 arbitrarily added a third beneficiary named Sanjay aged 25 years in the policy who was later on found to be a non-existent individual.
18. Neither the complainant nor any person on their behalf informed the OP-2 about the procurement of policy. OP-1 did not supply the copy of the policy to OP-2, thus OP-2 did not have the opportunity to examine the policy documents.   
19. It has been further stated by OP-2 that complainant is not a consumer qua them as the contract of insurance is between OP-1 and members of charitable trust for consideration of premium. OP-2 is not a service provider; therefore, complaint is not maintainable. 
20. As OP-1 being service provider has accepted the insurance premium paid by OP-2 on behalf of complainant should have settled the claim.  No documents have been filed by OP-2.
21. Complainant has filed rejoinder to the written statement of OP-1 reiterating the contents of their complaint and denying those of the written statement.
22. Evidence by way of affidavit has been filed by the complainant repeating the contents of the complaint.  
23. Sh. Shiv Kumar, Senior Divisional manager, M/s Oriental Insurance Co.Ltd. has also reiterated the contents of the written statement of OP-1 on oath.
24. OP-2 has got examined Sh.Sanjay Bansal on their behalf.  He has got exhibited the Board Resolution as Ex.-RW1/1.
25. We have heard the arguments of Ld.Counsel for the complainant and Ld.Counsel for OP-1 and OP-2. The issuance of policy bearing No.272600/48/2012/773 for the period 05/05/2011 to 04/05/2012 is not disputed.  However, the claim of the complainant has been rejected by OP-1 vide letter dated 10/10/2012 on the ground:

“As per terms and conditions of Happy family floater policy no person above the age of 55 years can be proposer, neither the person above the age of 60 can be insured without proper compliance of medical requirement. Hence, in the light of above facts it is clear cut violation of terms and conditions of policy issued.

In the light of above facts of circumstances your claim is being repudiated and file closed as no claim as per terms and conditions of Happy family floater policy.”

26. It is seen that cashless was denied by TPA Park Medi-claim vide letter dated 21/09/2011.  On 29/05/2011, claim for reimbursement was received by TPA. We have also gone through the documents placed on record. Complainant has filed certificate of membership of OP-2 bearing membership ID: 5881 with policy name “Group Medi-claim” and insurer being the Oriental Insurance Company Ltd. The Happy family floater policy schedule bears as follows:

The insured:Sputnik Mediclaim and Research Foundation

B-21, Oriental Apartment, Sector-9, New Delhi-110085

The said address is even verified from the receipt issued by OP-2.The same document also bears the insurance continued since 05/05/2006.

27. In para A of the ground of their WS, OP-2 has admitted that it is a charitable trust assisting, providing and procuring medical facilities for its member by procuring Group Mediclaim Insurance from Insurance company to cover those members also, who could not otherwise avail this facility elsewhere after a particular age with their individual name.   OP-2 has further stated in their para G that OP-1 in subsequent renewal on its own without their knowledge and without any intimation/documentary proof converted the Group Medi-claim insurance policy of the complainant to Happy family floater policy in the name of OP-2. Also, OP-1 arbitrarily added a third beneficiary name Sh. Sanjay, aged 25 in the policy who was later on found to be a non-existent individual.
28. In para H, OP-2 has on the other hand stated that the same was not communicated and informed to them as the complainant himself had procured the policy and have also disputed the receipt of the policy from OP-1.  This defence of OP-2 that the policy was not sent to them is not sustainable as the same bears the address of OP-2.  However, these are bald assertion without any evidence and just in order to create defence. 
29. OP-1 has issued policy in the name of OP-2 bearing the complainant and her deceased husband as dependent parents aged 62 years and 67 years respectively.  In the present case the OP-1 has accepted the premium and has renewed the policy despite knowing that  they are above 60 years of age.  This implies that the age of complainant and her husband  was very much in their knowledge.  Once, knowing that they have issued a policy they cannot deny reimbursement of the claim on the ground that no person above the age of 55 years can be proposer neither the person above the age of 60 can be insured without proper compliance of medical requirement.  However, OP-1 has neither placed any proposal form nor policy terms and conditions  on record relying upon which the OP-1 has denied the reimbursement of the complainant’s claim.
30. It will not be out of context that once the insurance company (OP-1) has  accepted the  premium and renewed the policy, the rejection of the claim on the pretext of concealment of material facts without any basis amounts to deficiency in services .  This kind of practice should be deprecated.    
31. As per receipt OP-2 has collected Rs.30,898/- from the complainant on account of premium.  However, the premium for the said policy is Rs.13,700/-. Though OP-2  claims  itself to be a charitable trust, OP-2 has charged Rs.17,198/- in excess from the complainant. This definitely amounts to misrepresentation and unfair trade.
32. It is clear from the above discussion that the complainant should not be made to suffer for the acts/omission on the part of OP-1 and OP-2.  Therefore, in the facts and circumstances of the present complaint we direct OP-1 to:-

1. To reimburse Rs.73,823/- to the complainant.
2. Pay interest @9% p.a from the date of filing of claim i.e. 29/09/2011 till realization.
3. Pay compensation of Rs.30,000/- on account of mental agony and harassment
4. Pay Rs.11,000/- as litigation expenses
5. OP-2 is directed to refund Rs.17,198/- charged in excess from the complainant alongwith interest @9% p.a. from the date of receipt of the amount i.e. 08/01/2011 till realization.

 

6. The order be complied within 30 days from the date of receipt of this order.  In case of non-compliance OP-1 shall be liable to pay interest @12% p.a. from the date of order till realization.
7. We further grant liberty to OP-1 to recover the above awarded amount in proportionate basis from OP-2.  At the same time complainant is also directed to co-operate with OP-1 in case they initiate any recovery proceedings qua OP-2.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

 

(Harpreet Kaur Charya)               Member

(Ashwani Kumar Mehta)                        Member   (Divya Jyoti Jaipuriar)           President