KUNDAN KUMAR KUMAI

This is an appeal u/s 15 of the Consumer Protection Act, 1986, preferred against the judgement dated 19/10/2022, passed by the Ld. DCDRF, Balurghat, Dakshin Dinajpur, in CC/04/2020.

Brief facts of the Appellant’s case is that, the Respondent/Complainant, was a joint A/c holder with her husband in the Respondent/OP no.3/Bank. The Respondent/Complainant had purchased one Swastha Bima Policy, bearing no.920291828450000328 valid from 17/05/2019 to 16/05/2020, which was a Portability Policy from the Respondent/Bank, who was the authorized Agent of the Appellant/Insurance Co. When the Respondent/Bank was the Agent, of the National Insurance Co. Ltd., the Respondent/Complainant had purchased a BOI National Swastha Bima Policy from 17/05/2010 up to 16/05/2019 and it was ported to the Appellant/Insurance Co. when the tie-up between the Respondent/Bank and the National Insurance Co. Ltd., ended. The Respondent/Complainant had opted for the Appellant/Insurance Co. after the tie-up between the Respondent/Bank and the Appellant/Insurance Co., after filling the requisite Portability Form. As per the Policy, the Respondent/Complainant and her husband had been covered for a sum of Rs.1,00,000/- (Rupees one lakh) only.

On 19/10/2019, the Respondent/Complainant’s husband, was hospitalized at Sushrut Eye Foundation and Research Center, Salt Lake City, Kolkata – 106, where he had to undergo a surgery of LE (Phaco) with foldable aspheric lens (IQ), under local anesthesia and was discharged on 19/10/2019. Due to such hospitalization, he had to spend Rs.14,550/- (Rupees fourteen thousand five hundred fifty) only, as hospital bill and Rs.8,950/- (Rupees eight thousand nine hundred fifty) only, for his lens and medicines. Accordingly, the claim totaling Rs.27,385/- (Rupees twenty-seven thousand three hundred eighty-five) only, had been made before the Appellant/Insurance Co. along with all necessary documents. But, the Appellant/Insurance Co., refused and repudiated the claim and also cancelled the Mediclaim Policy of the Respondent/Complainant on the ground of untrue and incorrect statements, misrepresentation, misdescription about non-disclosure of claimant’s previous history of health/disease. Hence, when the Appellant/Insurance Co. sent the cancellation of Insurance Policy on 26/12/2019, the cause of action had started.

Finding no alternative, when the Appellant/Insurance Co., cancelled the Policy, the Respondent/Complainant lodged the claim before the Ld. DCDRF, Balurghat, Dakshin Dinajpur, with necessary prayers.

The Appellant/Insurance Co. did not appear to contest the claim, following which case was heard ex-parte against them.

The Respondent/Bank appeared to contest the claim by filing written version, wherein they had stated that the Respondent/Complainant, had availed the Policy at the time when the Respondent/Bank had tie-up with the National Insurance Co. Ltd. and later on it was ported to the Appellant/Insurance Co., after the tie-up with the National Insurance Co., ended. It was also stated that there was no negligence and liability from the side of the Respondent/Bank, as he was only an Agent of the Appellant/Insurance Co. and the Respondent/Complainant was not entitled to any relief from the Respondent/Bank, as there was no negligence on its part.

After going through the materials and evidence on record, the Ld. DCDRF, Balurghat, Dakshin Dinajpur, passed the impugned order directing the Appellant/Insurance Co., to pay a sum of Rs.1,15,000/- (Rupees one lakh fifteen thousand) only, as compensation and litigation cost within 45 days from the date of order, failing which interest @ 8% p.a., would be attracted.

Being aggrieved by the impugned order, the Appellant/Insurance Co. preferred this instant appeal on the ground that the Ld. DCDRF, Balurghat, Dakshin Dinajpur, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant, at the time of final hearing, had submitted that the Policy, had been cancelled after the claim was repudiated on the ground of non-disclosure of past medical history. Moreover, it was further argued that the impugned order had been passed ex-parte, as the Appellant/Insurance Company, had not received any intimation, filed before the Ld. Lower Forum. Moreover, the impugned order directing the Appellant/Insurance Co. to pay a sum of Rs.1,15,000/- (Rupees one lakh fifteen thousand) only, also could not be justified as the expenditure claimed by the Respondent/Complaint came to Rs.27,385/- (Rupees twenty-seven thousand three hundred eighty-five) only.

Ld. Advocate for the Respondent/Complainant, on the other hand countered, that the Appellant/Insurance Co. had illegally cancelled the Policy on the ground of non-disclosure of medical history, following which the Ld. DCDRF, Balurghat, Dakshin Dinajpur had rightly passed the impugned order, providing compensation to the Respondent/Complainant.

The Respondent/Bank did not appear to contest the appeal and as such the appeal was heard ex-parte.

After going through the submissions and the materials on record, including the impugned order, it transpires that the impugned order had been passed ex-parte, against the Appellant/Insurance Co. In such a scenario, when the Appellant/Insurance Co. intends to prove the Respondent/Complainant’s deficiencies at the time of application for the Policy, the said evidence cannot be entertained at this appeal stage, hence, an opportunity needs to be provided to the Appellant/Insurance Co. Moreover, the Ld. Lower Forum also had passed the order ex-parte, the matter needs to dealt by that forum, after taking evidence from both the sides in respect of their contentions. Under the circumstance, this appears to be the right case, to remand the appeal to the Ld. Lower Forum, for a fresh decision after allowing the parties to lead evidence, in support of their contentions and also allowing the Appellant/Insurance Co., to file necessary written version. As a result, the instant appeal succeeds,

It is therefore,

ORDERED

That the instant appeal be and the same is allowed on contest, with cost of Rs.5000/- (Rupees five thousand) only, to be payable by the Appellant/Insurance Co., to the Respondent/Complainant, within 45 days from the date of receipt of this order.

The impugned order is hereby set aside. The Ld. DCDRF, Balurghat, Dakshin Dinajpur, to comply with the directions, as mentioned in the body of the judgement.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRF, Balurghat, Dakshin Dinajpur, for necessary compliance.

Statutory deposits, if any, be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC Kolkata, to do the needful.