The present complaint filed U/s 12 of the Consumer Protection Act' 1986 (for short, 'the Act') by the complainant Ayush Gupta minor through his mother acting as his next friend and natural guardian prays for the necessary directions to the opposite parties to make the payment of Rs.1,50,934/- i.e. amount being spent by his mother on his treatment alongwith interest @ 18% P.A. from the date of due till its actual realization. The opposite parties be further directed to pay compensation alongwith litigation expenses amounting to Rs.20,000/- to him on account of mental and physical harassment suffered by him from the hands of the opposite parties, in the interest of justice.

2.       The case of the complainant in brief is that he is minor and as such he is unable to file the present complaint personally. The present complaint is being filed by him through his mother acting as his next friend and natural guardian, who has got no adverse interest against the minor. His Grand mother is having Saving Fund Account in the Bank of the opposite party no.2 and she is old aged lady and as such his mother used to visit the Bank with his mother-in-law. The opposite party no.2 has allured his mother that they are having tie up with the opposite party no.1 and the opposite party no.1 was providing good qualities of health insurances. Even they also told that the employees of the opposite party no.1 are also sitting in their office. She came into the talks of the opposite parties and had taken Health Insurance from the opposite parties, showing being issued by the opposite party no.1 and the said Health Insurance bearing policy no.10057751 was taken at the name of minor and his mother. The said policy was issued on 10.12.2013 and it was commenced from 10.12.2013 to 9.12.2014 and they had make the payment of Rs.5586/- as premium of the said policy through the Saving Account of his Grand Father in the opposite party no.2 Bank. The sum assured of the said policy is Rs.3 Lacs. At the time of issuing of policy by the opposite parties, they medically examined him as well as his mother and found both of them to be fit and possessing good physique and health.  It was allured by the opposite parties at the time of issuing the said policy that in case of any health problem occurs either to the minor complainant or his mother, the opposite parties would make the payment up till the amount of Rs.3 lacs. i.e. sum assured. She has further pleaded that unfortunately the minor complainant suffered a fist while playing in the Ground. It was in the month of August 2014 and it was happened first time. Thereafter, he was got diagnosed by the concerned Doctor and then he was referred to Fortis Hospital Amritsar, where he was operated by the concerned Doctor of Fortis Hospital, Amritsar. His parents have spent Rs.1,50,934/- on his treatment. It was submitted that as and when the complainant was asked to diagnose from Amritsar, then the intimation regarding the same was sent to the opposite parties, who told to got diagnose him from Fortis Hospital, Amritsar being having Tie up with them. Thereafter, he started approaching the opposite parties and made several requests to make the payment of the amount which was being spent on his treatment. But instead of that the opposite parties always procrastinating the matter pending with one pretext or the other. He has repeatedly been visiting the office of the opposite parties with the request to make the payment of the amount being spent upon the treatment of the complainant but all his requests were put on deaf ears of the opposite parties which is deficiency in service on the part of the opposite parties. He has moved from pillar to pillar in search of justice, but so far he has not given justice. The opposite parties in order to harass and victimize him had repudiated his claim vide letter dated 5.1.2015 and alleged that two year waiting period have not been elapsed. Infact there was no malafide intention prevail upon them and his mother and even they have again got renewed the said Health Care Insurance Policy from the opposite parties. Due to the illegal act and conduct of the opposite parties, he has suffered great monetary and pecuniary loss and has also suffered mental and physical harassment. Thus there is great deficiency in service on the part of the opposite parties. Hence this complaint.       

3.       Upon notice, the opposite party no.1 filed their written reply through their counsel taking the preliminary objections that the complainant has no cause of action to file the present complaint; there is no deficiency in services on the part of the insurance company. The liability of Insurance Company under the policy is only as per terms and conditions of the policy. The cashless request was received for treatment of Brain Tumor at Fortis Hospital, Amritsar which was denied as per terms and conditions of the policy. The claim documents were received on 11.12.2014 for the treatment of left Parietal ICSOL, which is due to large tumor and the complainant’s son has been operated for the same. As the first policy start date was 10 Dec 2013 and the admission date was 3 September 2014, therefore, the tumor fell under two year waiting period clause and hence the case was rejected for the same; the complainant has not come to the Court with clean hands and as such not entitled for any such discretionary relief and the Ld.Forum has no territorial jurisdiction to try the present complaint as no cause of action arises within the jurisdiction of this Ld. Forum. On merits, it was submitted that the policy has been taken by the complainant as per her own wishes after making the payment of premium amount and after having gone through and accepting the terms and conditions of the policy. The policy has been issued from 10 Dec 2013 to 9 Dec 2014 subject to the Policy Terms and Conditions. The coverage in the policy is also as written in the policy alongwith terms and conditions. It was further submitted that no representation has been made at the time of issuing policy. The coverage and exclusions has been duly provided in the policy alongwith terms and conditions. No Pre-policy medical examination ever took place for the complainant or her son. The claim of the complainant has been repudiated as per terms and conditions of the policy. All other averments made in the complaint have been vehemently denied and prayed for dismissal of the complaint.  

4.       Upon notice, the opposite party no.2 filed their written reply through their counsel taking the preliminary objections that the complaint is not maintainable against the opposite party as the complainant is not consumer of the opposite party. The opposite party no.2 bank can not carry on insurance business as per the provisions of Banking Regulations Act 1949, therefore, does not offer insurance products. It is the settled principal of law u/s 230 of The Indian Contract Act that an agent can neither sue nor be sued except under the special circumstances mentioned therein. On merits, it was denied that the complainant has suffered fist while playing in the ground first time as alleged. It is also denied that the parents of the complainant has spent Rs.1,50,934/- on the treatment of the minor complainant as alleged. It was also denied that the complainant has ever given intimation regarding his treatment to the opposite party as alleged. The claim of the complainant has rightly been repudiated as per terms and conditions of the policy. All other averments made in the complaint have also been vehemently denied and prayed for dismissal of the complaint. 

5.            Smt. Veenu mother of the complainant tendered into evidence her own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C24 and closed the evidence. 

6.       Counsel for the opposite party no.1 tendered into evidence affidavit of Kamaldeep Singh Sr.Manager Ex.OP-1/1, alongwith other documents Ex.OP-1/2 to Ex.OP-1/9 and closed the evidence.

7.    Counsel for the opposite party no.2 tendered into evidence affidavit of Parkash Kumar Branch Manager Ex.OP-2/1 and closed the evidence.

 8.      We have carefully examined the available evidence on the record file so as to interpret the meaning and purpose of each document determined against the backdrop of the respective arguments of the learned counsels of the litigants. We observe that the prime dispute results from the repudiation (Ex.OP1/5) of the insurance med claim by the OP insurers at the altar of ‘exclusionary’ clause. By the time it has been a settled law that the courts shall not interfere in the IRDA approved terms and conditions of an insurance contract once it carries the acceptance and acknowledgement of the insured. Here, we find that ‘craniotomy’ surgery (Ex.OP1/7) to which the complainant was subjected to at the Fortis Hospital (at Amritsar) falls under the exclusionary clause 4.1.b.(i) X. of the Policy terms & conditions (Ex.OP1/9) reading as: “Any Claim for or arising out of any of the following illness or Surgical procedures shall not be admissible during the first 24 consecutive months of coverage of  the insured Person by the Company from the first Policy period start date: Internal tumors, skin tumors, cysts, nodules, polyps including breast lumps (each of any kind) unless malignant”. Further, we find that the related first Policy period start date has been: 10.12.2013 (Ex.OP1/2), whereas the complainant was admitted to the Fortis Escorts (Ex.OP1/7) for the surgery (craniotomy) on 03.09.2014 i.e., within the first 24 months of the first Policy start date; and thus the OP insurers have validly repudiated the claim in question.

9.       In the light of the all above, we find that the present complaint has been filed without a valid prompt of a valid ‘cause of action’ under the Act and thus we ORDER for its dismissal with however, no order as to costs

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

        (Naveen Puri)                                   

                                                       President

ANNOUNCED:                                        (Jagdeep Kaur)                   

September 21, 2015.                                                       Member                                      

*MK*