Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he previously was medically insured with ICICI Lombard Company for its protection and safety of life for the period 2008 to 2014 and thereafter, on the allurement of agent of Opposite Parties, he ported the said policy from ICICI Lombard to Opposite Parties company and was continuously making the premium every year under the policy of Opposite Parties and lastly the complainant was insured upto 16th November, 2017 vide policy No. 10162183 w.e.f. 17.11.2016 to 16.11.2017. Unfortunately, the complainant fell on the road when he was to park his scooter outside his house and due to this ankle alongwith its surrounding area was injured/ broken. The complainant got admitted in Fortis Hospital a Ludhiana where he remained admitted in the said hospital upto 22.04.2017 and after discharge, he lodged the claim with the Opposite Parties for the reimbursement of his medical expenses, but the Opposite Parties repudiated the claim of the complainant on the ground of non disclosure of hypertension, but it is totally wrong. Moreover, there is no nexus between breakage of ankle injury and hypertension and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to make the payment of medical expenses amounting to Rs.1,50,000/- alongwith interest from the date of payment till its realization and also to pay of Rs.1,00,000 on account of compensation due to mental tension and harassment caused by the complainant besides Rs.25,000/- as costs of litigation and also to pay any other relief to which this District Consumer Commission may deem fit.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Admittedly, the complainant was insured with the Opposite Parties vide policy in question for sum insured of Rs.5 lakhs strictly subject to policy terms and conditions governing the policy herein. On receipt of claim, the matter was investigated and found that as per the statement of the patient dated 21.04.2017, he was taking medicines for BP when he got admitted in the hospital and due to non disclosure of material facts/ pre existing ailments at time of proposal hypertension since 4 years, the claim of the complainant as repudiated after application of mind. On merits, the Opposite Parties took up almost same and similar pleas as taken up by them in the preliminary objections and the complaint may be dismissed with costs.
4. In order to prove his case, the complainants tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.CW/1 to Ex.CW/21 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R13 and closed the evidence.
6. We have heard the ld.counsel for the parties, written submissions of the Parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Parties-Insurance Company has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Further contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of insurance and the alleged terms and conditions are not applicable on the case of complainant. Further contended that he previously was medically insured with ICICI Lombard Company for its protection and safety of life for the period 2008 to 2014 and thereafter, on the allurement of agent of Opposite Parties, he ported the said policy from ICICI Lombard to Opposite Parties company and was continuously making the premium every year under the policy of Opposite Parties and lastly the complainant was insured upto 16th November, 2017 vide policy No. 10162183 w.e.f. 17.11.2016 to 16.11.2017. Unfortunately, the complainant fell on the road when he was to park his scooter outside his house and due to this ankle alongwith its surrounding area was injured/ broken. The complainant got admitted in Fortis Hospital a Ludhiana where he remained admitted in the said hospital upto 22.04.2017 and after discharge, he lodged the claim with the Opposite Parties for the reimbursement of his medical expenses, but the Opposite Parties repudiated the claim of the complainant on the ground of non disclosure of hypertension, but it is totally wrong. Moreover, there is no nexus between breakage of ankle injury and hypertension and as such, there is deficiency in service on the part of the Opposite Parties.
8. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant was insured with the Opposite Parties vide policy in question for sum insured of Rs.5 lakhs strictly subject to policy terms and conditions governing the policy herein. On receipt of claim, the matter was investigated and found that as per the statement of the patient dated 21.04.2017, he was taking medicines for BP when he got admitted in the hospital and due to non disclosure of material facts/ pre existing ailments at time of proposal hypertension since 4 years, the claim of the complainant as repudiated after application of mind.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in case titled as Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has and observed to the following effect:
“..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants.”
Further, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. The main plea raised by Opposite Party is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited has also held so.
- We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the Opposite Party is that on receipt of claim, the matter was investigated and found that as per the statement of the patient dated 21.04.2017, he was taking medicines for BP when he got admitted in the hospital and due to non disclosure of material facts/ pre existing ailments at time of proposal hypertension since 4 years, the claim of the complainant as repudiated after application of mind. But we do not agree with the aforesaid contention of the ld.counsel for the Opposite Parties. First of all, the complainant is continuously purchasing the medi claim policy since the year 2008 for the safety of his life and protection with a understanding that in some bad days, he could claim the medical expenses, if required. It is also not disputed since the date of purchase of polices i.e. from 2008, the complainant has not claimed even a single penny on account of medical expenses. Moreover, the Opposite Parties have not produce any iota of evidence to prove the nexus between breakage of ankle injury and alleged hypertension. Moreover, hypertension is not a material disease, therefore, non disclosure thereof is not a concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-
“So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.
We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease. On the other hand, the rulings cited by ld.counsel for Opposite Party–Insurance Company are not applicable to the facts of the present case and the same are distinguished.
12. In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
13. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
14. To support their contention, the Opposite Party has cited the rulings, but these rulings are not applicable to the facts of the present case and are not supportive to the instant case.
15. The complainant in his complaint has claimed the reimbursement of his medical bill upto the extent of Rs.1,50,000/-, but bare perusal of the record shows that he has produced on record the medical expensed bill upto the extent of Rs.1,01,564/- and this amount spent by the complainants on treatment has nowhere denied by the Opposite Party by filing any cogent and convincing evidence and hence, the claim of the complainant to that amount is genuine and we allow the claim of the complainant accordingly.
16. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant and direct Opposite Party-Insurance Company to pay the amount of Rs.1,01,564/- (Rupees one lakh one thousand five hundred sixty four only) to the complainant alongwith interest @ 6% per annum from the date of filing the present complaint i.e. 05.09.2017 till its actual realization. Opposite Party–Insurance Company is also directed to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs.10,000/- (Rupees ten thousands only). The compliance of this order be made by Opposite Party-Insurance Company within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
17. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
