BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

                                   Dated this the 7^th day of July  2018

                                                                             Filed on : 05.07.2017

PRESENT:

 Shri. Cherian K. Kuriakose,                                    President.

 Shri. Sheen Jose,                                                  Member

 Smt. Beena Kumari V.K.                               Member.

                            C.C.No.268/2017

                                  Between

O R D E R

Beena Kumari V.K.   Member 

1)     A brief statement of facts of this complaint is as stated below:

         The complainant Sri.V.P.Xavier is a retired Government Employee and he is holding a savings Bank account with the 1^st opposite party – Punjab National Bank.  His SB account Number is 4628000100015212.  In the year 2013 the 1^st opposite party –bank explained the benefits of the Mediclaim Policy by name PNB – Oriental Royal Mediclaim offered by the 2^nd opposite party – Oriental Insurance Co. Ltd. for the benefit of the account holders employees of the 1^st opposite party –Bank and the complainant thereafter entered into an agreement with the 2^nd opposite party – Oriental Insurance Company and took the above mediclaim policy of the 2^nd opposite party – Insurance Company in the year 2013 vide policy No.440202/48/2013/3157 and the premium amount was fixed at Rs.1749/per year for the period from 25.01.2013 to 24.01.2014.  The policy was renewed for the period from 2014 to 2015 on payment of premium amount of Rs.1749/- and the policy No. was 44022/48/2014/354.  Again the policy was renewed for the period from 2015 to 2016 on payment of premium of Rs.1749/- and the policy number was 440202/48/2015/4549.  The premium amounts were paid through the account of the complainant in the 1^st opposite party- Punjab National Bank.  While so, on 18.01.2016 the complainant remitted Rs.1783/- to the 1^st opposite party towards premium amount for the renewal of the mediclaim policy vide cheque No.134425 drawn in favour of the 2^nd opposite party – Insurance Company and the complainant was under bonafide belief that the renewed policy will be issued within one month from the date of payment of the premium amount.  The complainant was out of station from 11.02.2016 to 14.06.2016 and on return, the complainant enquired about the renewal of the policy with the 1^st opposite party – Bank and he found that the f1st opposite party – Bank had not received the renewed policy.  He contended that there was inordinate delay on the part of the 1^st opposite party – Bank in encashing the cheque and in not renewing the policy.  The complainant on 19.07.2016 had submitted a written representation seeking favourable action from the Bank and in reply the bank stated that the documents of the complainant were forwarded for renewal of the policy but the documents were lost from the delivery person and that the bank is helpless in the matter.  It is submitted that the complainant can claim the benefits of the mediclaim policy for certain diseases, only if the policy is renewed consecutively for 4 years that those benefits were lost to the complainant due to the irresponsible act of the 1^st opposite party – Bank which amounted to deficiency in service on the part of the 1^st opposite party – Bank,.  Thereafter the 1^st opposite party –Bank forced the complainant to pay the premium for the period 2015-16 assuring that the mediclaim policy will be renewed and the complainant effected the payment of Rs.1791/- vide DD dated 29.06.2016.  But the policy was not renewed.  The facts show that the 1^st opposite party Bank noticed the non-payment of the cheque dated 18.01.2016 only in June 2016.  Hence the complainant preferred a complaint before the Banking Ombudsman and the 1^st opposite party – Bank submitted before the Ombudsman that an amount of Rs.5000/- was paid by way of DD No.930312 to the complainant towards compensation for deficiency in service occurred.  Hence the complaint before the Ombudsman was closed.  Since the unilateral decision of the Ombudsman was not acceptable to the complainant, he returned the DD by registered poste on 27.10.2016.  The complainant contended that the 1^st opposite party acted as an agent of the 2^nd opposite party.  This complaint is filed before this Forum seeking directions of this Forum to the opposite parties to pay Rs.100,000/- towards monetary loss suffered by the complainant due to the non-renewal of the policy on 18.01.2016, to pay Rs.10,000/- towards compensation for the mental agony and inconvenience suffered by the complainant along with costs of this proceedings.

2)     Notices were issued to the opposite parties from this Forum and the opposite parties filed their versions in response to the notices received by them.

3)     Version of the 1^st opposite party.

        The 1^st opposite party submitted that this complaint is not maintainable either in law or on the facts of this case.  The complaint is bad for resjudicata and for misjoinder of party.  It is submitted that the policy named PNB- Oriental Royal Mediclaim policy is designed by the 2^nd opposite party – Oriental Insurance Company Ltd for the account holders/employees of the Punjab National Bank including his/her eligible family members that the 1^st opposite party –Punjab National Bank is neither the Third Party Administrator nor in any way connected with the policy issued and the insured is strictly governed by the terms and conditions of the policy.  It is admitted that the complainant is an account holder with the1st opposite party- Bank and M/s.Health Insurance is the TPA of the 2^nd opposite party – Insurance Company and the TPA is not made a party to this complaint and this complaint is bad for non-joinder of necessary party.  The premium amount was deducted from the account of the complainant as per the instructions of the complainant and the complainant has not given any standing instruction to deduct the premium and hence there is no negligence on the part of the 1^st opposite party, that the renewal of the policy at specified period is not within the knowledge of the 1^st opposite party.  It is admitted that the premiums for the renewal of policy were paid by the 1^st opposite party.  It is also admitted that the complainant had submitted a cheque bearing No.134425 dated 18.01.2016 for the renewal of the policy and on the next day itself the cheque was forwarded to the2nd opposite party by courier and it was only after 6 months the complainant enquired about the cheque and the 1^st opposite party enquired with the courier and it was found that the same was lost in transit and a complaint was preferred by the 1^st opposite party to the Manager of professional courier office, Kalamassery and it was confirmed that the courier packet was lost from the courier delivery boy and the said fact was intimated to the complainant promptly. The 1^st opposite party is not under any obligation to contact the 2^nd opposite party regarding the encashment of the cheque issued by the complainant.  There was contributory negligence on the part of the complainant for which 1^st opposite party may not be penalized and the complainant cannot allege deficiency in service on the part of the 1^st opposite party.  The averment of the complainant that the 1^st opposite party had admitted deficiency in service before the banking Ombudsman is not correct and the amount of compensation of Rs.5000/- given by way of DD to the complainant was to compensate the damages allegedly sustained by the complainant due to the negligence on the part of the courier company and the Ombudsman considered the matter after giving no opportunity of hearing to the complainant.  The 1^st opposite party sought for the dismissal of the complainant as there was no negligence or deficiency in service on the part of the 1^st opposite party as alleged, with costs of the proceedings to the 1^st opposite party.

4)     Version of the 2^nd opposite party

        The 2^nd opposite party – the Oriental Insurance Company Ltd. through its Regional Manager, submitted that the 2^nd opposite party is an unnecessary party to the complainant, that the 1^st party is only a selling agent and not a TPA as alleged by the complainant, that the complainant had filled up the proposal Form which was forwarded by the 1^st opposite party bank to the 2^nd opposite party and the PNB – Oriental Royal Mediclaim Insurance Policy was intended for the account holders/employees of the 1^st opposite party bank, that the above policy was issued to the complainant – Insured upon the representation in the proposal Form, that the 2^nd opposite party had not entered into any agreement with the 1^st opposite party that the premium is to be paid through the 1^st opposite party that the policy was renewed as and when the premium was received and the policy lapsed on non payment premium as per the terms and conditions of the policy, that it is the responsibility of the insured to pay the premium in time, or in advance, that pre-existing diseases will be covered only if the continuity of renewal is maintained as provided under clause 4.1, 4.2 of the policy, that the complaint before the banking ombudsman revealed that the deficiency in service is alleged only against the 1^st opposite party – Bank that the complainant has ventured to rope in the 2^nd opposite party in the party array as an experimental basis, that the complainant is re-agitating the dispute before this Forum.  It is contended that there is no deficiency in service on the part of the 2^nd opposite party and the 2^nd opposite party sought for the dismissal of the complaint with costs.

5)     The issues to be decided in this case are as follows

(i)      Whether the complainant has proved deficiency in service on the part of the opposite parties?

(ii)      Whether the opposite parties ae liable to pay compensation and costs to the complainant?

6)       The evidences in this case consisted of the documentary evidences furnished by the complainant which were marked as Exbt.A1 to A9.  No oral evidence adduced either by the complainant or by the opposite parties.  The opposite parties have no documentary evidences.  The Counsel for both parties were heard.

7)       Issue No. (i)

          There is no dispute regarding the facts that the complainant had taken a Mediclaim policy by name PNV- Oriental Royal Mediclaim Policy with family floater.  The policy was meant for the account holders or employees of the 1^st opposite party – Bank.  The complainant was issued with policy vide number 440202/48/2013/3157 for the year 2013 and also issued an Insured Code as No.53323990 on payment of premium amount of rs.1749 for the period 25.01.2013 to 21.01.2014.  The complainant without fail remitted the premium for the period 2014-15, 2015-16 and 2016-17 also and policies were issued vide Nos. 440202/48/2014/3543 and 440202/48/2015/4549.  The premium for the period 2016-17 was paid through cheque vide No.134425 for Rs.1783/- drawn in favour of the 2^nd opposite party.  The payment was effected on 18.01.2016.  The 1^st opposite party failed to send the cheque to the 2^nd opposite party and hence the policy was not renewed for the period 2016-17.  The complainant was not in station from 11.02.2016 to 24.06.2016 and on return the complainant made enquiry with the Bank in June 2016 for the renewed policy and it was found that his policy was not renewed.

8)       Thereupon the complainant submitted a written representation on 19.07.2016 seeking renewal of the policy for the period 2016-17.  On enquiry the 1^st opposite party informed that the cheque issued by the complainant for renewal of policy went missing from delivery person and it was also informed that the 1^st opposite party is helpless in the matter. Nevertheless the 1^st opposite party insisted the complainant to make payment again for the renewal of the policy.  The complainant made the payment as demanded vide D.D dated 29.06.2016 for Rs.1791/-.  But his policy was not renewed.  The complainant preferred a complaint before the banking ombudsman which was unilaterally closed without hearing the complainant and informed that the 1^st opposite party had issued a DD for Rs.5000/- vide DD No. 930312 on 27.10.2016 towards the compensation for the deficiency in service.  The complainant returned the same with a letter to the 1^st opposite party. The above facts show that there was deficiency in service on the part of the 1^st opposite party in not encashing the cheque dated 18.01.2016.  Consequently the policy could not be renewed by the 2^nd opposite party.  The policy lapse occurred as per the terms and conditions of the policy ie., the policy lapsed on non-payment of premium in time.  If the policy was renewed, the complainant would have received coverage for pre-existing diseases.  We find that there is deficiency on the part of the 1^st opposite party in not encashing the cheque dated 18.01.2016.  Though the 1^st opposite party has not admitted deficiency in service on their part, the 1^st opposite party had paid an amount of rs.5000/- towards compensation when the complainant preferred a complaint before the banking Ombudsman alleging deficiency on the part of the 1^st opposite party – Bank.  The amount of rs.5000/- issued vide DD No. 930312 on 27.10.2016 was not accepted by the complainant since the banking ombudsman had closed his complaint unilaterally without hearing the complainant.  Thus there is violation of natural justice principles on the part of the banking Ombudsman and as per Section 3 of the Consumer Protection Act, 1986 additional remedy is available to the complainant.  Hence the complainant has rightly preferred this complaint and this complaint is found maintainable before this Forum.  Here the premium for the renewal of the policy for the period 2016-17 was paid through cheque No.134425 drawn in favour of the 2^nd opposite party on18.01.2016 and the 1^st opposite party failed to send the cheque to the 2^nd opposite party.  Hence the policy was not renewed by the 2^nd opposite party and the policy lapsed as per the terms and conditions of the policy.  Therefore we find no deficiency in service on the part of the 2^nd opposite party- Insurance Company. 

9)       The complainant was out of station from 11.02.2016 to 24.06.2016 and on return the complainant made enquires with the 1^st opposite party – Bank and it was found that the cheque was not encashed.  By the time 6 months had elapsed.  Thus we find that there was deficiency in service on the part of the 1^st opposite party- Bank and that the complainant has sufficiently proved deficiency in service on the part of the 1^st opposite party.  The 1^st issue is thus decided in favour of the complainant.

10)     Issue No. (ii)

          The complainant has lost the policy benefits as a direct consequence of lapse on the part of the 1^st opposite party – Bank.  We find that the 1^st opposite party bank is liable to compensate the complainant for the deficient service offered to the complainant.  We fix the compensation amount at Rs.10,000/-.

11)     The complainant has spent his valuable time and money to contest this case.  Therefore, we find that he is entitled to get costs of Rs.2000/- from the 1^st opposite party.

12)     In the result the complaint is allowed and we direct as follows:

1. The 1^st opposite party shall pay Rs.10,000/- towards compensation to the complainant for the deficient service offered to him.
2. The 2^nd opposite party is absolved from any liability.
3. The 1^st opposite party shall also pay Rs.2000/- to the complainant towards costs of this proceedings.

The above orders shall be complied with, within 30 days from the date of receipt of this order. 

     Pronounced in the open Forum on this the 7^th day of July 2018.

                                                          Sd/-Beena Kumari V.K., Member

                                                          Sd/-Cherian K. Kuriakose, President

                                                          Sd/-Sheen Jose, Member.

                                                                Forwarded by Order

                                                               Senior Superintendent

                                              APPENDIX

Opposite party’s Exhibits     ::    Nil

Date of Despatch   :

          By Hand      ::

          By Post       ::

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