Punjab

StateCommission

A/789/2017

Oriental Insurance Company Ltd. - Complainant(s)

Versus

Subash Gupta - Opp.Party(s)

Vinod Chaudhary

16 Jul 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.789 of 2017

 

                                                          Date of Institution    : 22.11.2017            

                                                         Order Reserved on  : 13.07.2018

                                                          Date of Decision     :  16.07.2018

 

Oriental Insurance Company through its Principal Officer, Amritsar now through its Regional Manager, SCO 109-111, Sector 17-D, Chandigarh.

 

                                                               Appellant/Opposite party no.1

                              Versus

 

1.      Subhash Gupta son of Sardri Lal r/o 58, Gopal Nagar, Gali No.        3, Majitha Road, Amritsar

                                                          Respondent no.1/Complainant

 

2.      Punjab National Bank , through its Branch Manager, Majitha   Road, Amritsar.

                                                   Respondent no.2/Opposite party no.2

 

First Appeal against order dated 26.09.2017 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt. Surinder Pal Kaur, Member

Present:-

          For the appellant          :  Sh. Vinod Chaudhri,  Advocate.

          For the respondent no.1:  Sh. Sukhandeep Singh, Advocate.

          For the respondent no.2 : Sh. Aseem Kataria, Advocate

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 26.09.2017 of District Consumer Disputes Redressal Forum Amritsar, directing the appellant and respondent no.2 of this appeal to pay Rs.3 lac jointly and severally within a period of one month to respondent Subhash Chander of this appeal, failing which to pay interest @ 9% p.a from filing the complaint till its actual payment, besides Rs.5000/- as costs of litigation. The appellant of this appeal is opposite party no.1 in the complaint, respondent no.1 of this appeal is complainant and respondent no.2 of this appeal is opposite party no.2 in the  complaint before District Forum and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that he has been taking Health Insurance Policies from OP no.1 covering himself and his wife Neelam Gupta. The last policy taken by him through OP no.2 from OP no.1 was for the  period from 01.05.2015 till 30.04.2016, vide policy no. 233300/48/2016/17. His wife was struck with illness and was hospitalized at Fortis Memorial Research Institute Gurgaon from 05.10.2015 till 13.10.2015. The treating hospital raised the treatment expenses to the tune of Rs.388672/-. The complainant and his wife were insured for Rs.5 lac for cashless treatment under the policy. Insurer OP no.1 paid only Rs.22423/- on the ground that  policy was for insured amount of Rs.2 lac only and not  for Rs.5 lac. The previous policy of the complainant expired on 24.03.2014 and renewal notice was received by the complainant from OPs and complainant paid the premium amount of Rs.3320/-  to OP no.1 through OP no.2 its agent. The amount of premium of Rs.3320/- was debited from the account of the  complainant on 22.03.2014 i.e. before the due date, whereas policy issued was effective from 01.05.2014 after 37 days. The act of delay in issuing the policy to complainant is deficient act of OPs. The complainant has prayed that  OPs be directed to pay claim of Rs. 3 lac with interest @ 12% per annum from the date of deposit till its actual payment, besides Rs.4 lac as compensation and cost of litigation.

3.                Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complainant has filed a baseless, frivolous complaint with ulterior motive. The complainant is estopped by his act and conduct from filing the complaint. No cause of action has arisen to complainant to file the  complaint. The complainant has not come to this Commission with clean hands. On merits, it was averred that the complainant purchased PNB Oriental Royal Mediclaim Policy no. 233300/48/2013/4357 w.e.f. 25.03.2013 to 24.03.2014 for a sum insured of Rs.2 lac and thereafter renewed the same after some span of time, vide policy no. 233300/48/2015/656 w.e.f. 01.05.2014 to 30.04.2015 for a sum insured of Rs. 2 lac and thereafter purchased the policy in question as mentioned in complaint w.e.f. 01.05.2015 to 30.04.2016 for a sum insured of Rs. 5 lac. It was pertinent to mention here that no claim was reported during the validity of policy no. 233300/48/2015/656 w.e.f. 01.05.2014 to 30.04.2015 for a sum insured of Rs.2 lac. Immediately after renewal and during existing of policy no.233300/48/2016/17, the complainant reported first claim of his wife for the treatment of malignant neoplasm of ovary at Fortis Memorial Institute Gurgaon, which was settled as per policy terms and conditions for an amount of Rs.10,294/- for undergoing Chemotherapy. The complainant's wife was admitted in the hospital on 05.10.2015 and diagnosed as suffering from CARCINOMA of OVARY for the  treatment of which, she received four cycles of Chemotherapy and after required treatment, she was discharged from the hospital on 13.10.2015. After securitizing and processing of the medical record of complainant's wife, it was observed that disease was first inspected on 29.04.2015, which fell under the previous policy having sum insured Rs.2 lac and therefore all claims up to sum insured were settled and paid by OP no.1. As per exclusion clause 4.2 of the policy, if sum insured is enhanced subsequent to inception of the policy, expenses incurred on any illness, disease and injury are restricted to the sum insured available under the  expiring policy, if any such disease existed/incepted during the expiring policy, the terms and conditions of Clause 3.13 clearly manifests about discretions of TPA in providing cashless facility to the insured. In this case, all the bills/medical expenses were settled and paid as per the terms and conditions of the policy. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the  complaint.

4.                OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. No cause of action has arisen to complainant to file the  complaint. The complainant has got no locus standi to file the  complaint. Any deficiency in service and unfair trade practice was denied by OP no.2. On merits, it was averred that the complainant has obtained the policy for the period 01.05.2015 till 30.04.2016 through OP no.2 nor the complainant has got any account with OP no.2 bank branch nor any payment was made by the complainant to OP no.1/insurance company through OP no.2/Bank. OP no.2 has got no concern of any kind whatsoever with insurance policy of complainant for the period w.e.f. 01.05.2015 till 30.04.2016. It was denied that wife of the  complainant fell ill and was to be under medical treatment and was got admitted in Fortis Memorial Research Institute Gurgaon from 05.10.2015 till 13.10.2015. It was denied that complainant spent an amount of Rs.3,88,672/- on the medical treatment of his wife, as alleged by the complainant. Any deficiency in service on the part of OP no.2 was denied and it prayed for dismissal of the complaint.

5.                The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-8 and closed the evidence.  As against it; OP no.1 tendered in evidence affidavit of Sh. Gurdip Singh Divisional Manager Ex.OP-1/6 along with copies of documents Ex.OP-1/1 to Ex.OP-1/5 and copies of documents Ex.OP-1/7 to Ex.OP-1/9 and closed the evidence. OP no.2 tendered in evidence affidavit of Vivek Verma Senior Branch Manager Ex.OP-2/1 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Amritsar accepted the complaint of the complainant by virtue of order dated 26.09.2017. Aggrieved by above order of the District Forum Amritsar, opposite party no.1 now appellant, has carried this appeal against the same.

6.                We have heard learned counsel for the parties and have also examined the record of the case.

7.                The only point for consideration in this case, as to whether the complainant is entitled to compensation as insurance claim from OPs from the date of deposit of premium through OP no.2/PNB being authorized agent of OP no.1 or whether the risk commences from the date of commencement of the policy. The entire evidence on the  record has been gone through by us with the able assistance of counsel for the parties. The policy document on the record is Ex.C-6. The date of commencement is 01.05.2015 to midnight 30.04.2016 as per this policy in the name of Subhash Gupta for sum insured of Rs.5 lac. The complainant and his wife Neelam Gupta have been covered by this policy Ex.C-6 operative for the period from 01.05.2015 to 30.04.2016. The complainant had been taking previous policy for health insurance policy Ex.C-2 for the  period from 25.03.2013 to midnight of 24.03.2014  for insured amount of Rs. 2 lac covering complainant and his wife. Another policy is Ex.C-4 for the period 01.05.2014 to midnight of 30.04.2015 for insured amount of Rs.2 lac. The complainant got policies renewed from OP no.1 and renewed policy Ex.C-6 was issued  thereafter.

8.                The point for adjudication, is as to what is the effect of payment of premium and what is effect of issuance of the policy with commencement date thereafter. The complainant paid premium in renewal of the policy Ex.C-6 for the period 01.05.2015 to midnight of 30.04.2016 for insured amount of Rs.5 lac with OP no.2/Bank being authorized agent of OP no.1. The premium amount was deducted from the account of the complainant by OP no.2/Bank on behalf of OP no.1 on 22.03.2014 to the tune of Rs.3320/-. The account statement is Ex.C-3 which has shown deduction of amount of Rs.3320/- from the account of the complainant on 22.03.2014 as mediclaim insurance premium. Ex.C-3 has proved this fact that OP no.2 being authorized agent of OP no.1 deducted the premium of Rs.3320/-on 24.03.2014 from the account of the complainant. The receipt of premium by the authorized agent of insurance company is deemed to be paid to it. The previous policy of complainant was going to expire on 30.04.2015. The deducted premium of Rs.3320/- of the complainant on 22.03.2014 by OP no.2 could be for the policy Ex.C-4 for the period 01.05.2014 to midnight of 30.04.2015 for the insured amount of Rs.2lac. Thereafter the renewal of policy Ex.C-6 operated from 01.05.2015 to midnight of 30.04.2016 with insurance amount of Rs.5 lac covering the complainant and his wife. The deduction of premium on 22.03.2014 shown in Ex.C-3 could be for the  policy Ex.C-4 for the period 01.05.2014 to midnight of 30.04.2015 for insured amount of Rs.2 lac only. Wife of the complainant fell ill on 05.10.2015 and was hospitalized on that day till 13.10.2015 at Fortis Memorial Research Institute Gurgaon. There is no evidence on the record by the complainant that any excess amount was deducted during the currency period of previous policy Ex.C-4 for the current policy.

9.                In the circumstances of the  case, we have come to this conclusion that we are bound by the terms and conditions of insurance policy Ex.C-6. Whatever the case may be, OP no.1 received the premium and this policy Ex.C-6 was issued thereafter, which would be effective from 01.05.2015 to midnight of 30.04.2016. It is presumed that OP no.1 received the premium and issued policy Ex.C-6 thereafter. As per policy Ex.C-6 the amount of insurance was enhanced to Rs.5 lac and this policy was operative from 01.05.2015 to 30.04.2016. The complainant's wife fell ill during the currency of the policy. The bill raised by OPs is Rs.3,81,422/- for treatment of  his is wife, vide Ex.C-7. The complainant being policy holder is entitled to recover the amount of expenses of Rs.3,81,422/- from OP no. 1 /insurance company. District Forum awarded the amount of Rs.3 lac only. Since no counter appeal has been filed by the complainant in this case, hence we are unable to enhance the amount of compensation in this appeal filed by OP no.1

.

10.              As a result of our above discussion, the appeal of the appellant is dismissed.

11.              The appellant had deposited the amount of Rs.25,000/-with this Commission at the time of filing  the appeal and further deposited Rs.2,25,000/- as per compliance of the order of this Commission. Both these amounts with interest, which accrued thereon, if any, be remitted by the registry to the respondent no.1 of this appeal  by way of a crossed cheque / demand draft after the expiry of 45 days, subject to stay order if any. Remaining amount, if any, due shall also be paid to complainant by the appellant within 45 days from receipt of the copy of this order

12.              Arguments in this appeal were heard on 13.07.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

13.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                   (SURINDER PAL KAUR)               

                                                                          MEMBER

July 16, 2018                                                              

(ravi)