PER:
Nidhi Verma, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the opposite party No. `1 is General Insurance Company and opposite party No. 2 is Axis Bank Ltd. having its office Branch at Patti from where the health insurance was bought. The complainant has purchased health insurance with product name Tata AIG Medicare from TATA AIG GENERAL INSURANCE COMPANY LIMITED which has been sold by the AXIS BANK Ltd on behalf of the opposite party No. 1. Vide policy No 0287790929 for the period of one year from 23.2.2019 to 22.2.2020 after paying the gross premium of Rs 11,489/- . Total three members of the complainant family were insured under the policy namely Manjot Singh complainant, Rajbir Kaur his wife and Ranvijay Singh son. During the running tenure of the policy the wife of the complainant namely Rajbir Kaur was admitted to the hospital namely Guru Nanak Dev Super Specialty Hospital Goindwal Sahib Road Tarn Taran and was diagnosed with acute pancreatits for which she undergone for surgery and she remained admitted in the hospital from 08/06/2019 to 14/06/2019 and total Rs 44593/- were spent by the complainant upon the treatment of his wife. All documents have been submitted with the claim. The claim was lodged under claim number 19071500142 with the opposite party No. 1 but the same was rejected on 17/07/2019 with lame excuse that the illness has specific waiting period of two years and the claim was repudiated under section 3)1}ii) of the policy. The terms and conditions of the policy were not explained by the opposite party No. 2 at time of advancing the policy. Neither the copy of the terms and condition were provided at the time of the execution of the policy by the opposite party Nos. 1 and 2. In the month of January 2020, when the complainant contacted the insurance company they refused to entertain the claim of the complainant. The complainant visited the office of opposite party many a times regarding his claim but the opposite party lingered on the matter on one false pretext or the other. Again every time, the complainant visited the branch of opposite party regarding his claim but the opposite party did not pay any heed to the genuine request of the complainant and this time they flatly refused to accept the genuine request of the complainant. The complainant has prayed that the following reliefs may be granted in favour of complainant.
- The opposite party No. 1 may kindly be directed to reimburse the amount of Rs. 44,593/- to the complainant as money spent on medical care.
- The opposite party may kindly be directed to pay Rs. 5,00,000/- as compensation and for providing deficient services as well as Rs. 15,000/- as litigation expenses for causing harassment to the complainant in the interest of justice, fair play and equity.
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, health insurance policy Ex. C-2, medical bills Ex. C-3 to C-6, claim rejection Ex. C-7.
2 After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Party No. 1 appeared through counsel and filed written version contesting the complaint by alleging that the complaint being frivolous and vexatious is liable to be dismissed as the complainant has failed to make out a case of deficiency of service as alleged or otherwise, within the meaning of Consumer Protection Act, hence the present complaint is not maintainable. At the very outset, opposite party denies the contentions, averments made by the complainant as the same are baseless and without any merit and the complainant be put to strict proof of the same and submit that the complaint deserves to be dismissed. The present complaint is devoid of any material particulars and has been filed merely to harass and gain undue advantage and unjustified monies from the opposite party and hence, the complaint deserves to be dismissed in limine. The complainant has concealed and has suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and complainant has not only concealed the material facts from this Commission but has also twisted and distorted the same to suit his own convenience and to mislead this Commission. The complainant with malafide intention did not disclose the true and correct facts before this Commission and filed a false complaint only to get undue benefit at the cost of opposite party. The present complaint is clear cut misuse of the Consumer Protection Act. The complainant has acted in bad faith with respect to subject of this complaint and has approached the Commission with unclean and, hence in view of doctrine of clean hands-"one who comes unto equity must come with clean hands". The contract of insurance between the complainant and opposite party is governed by its terms and conditions. The words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitute. So, the complaint is liable to be dismissed. The contract of insurance between the opposite party and complainant is governed by its policy terms and conditions. Thus the words in an insurance contract must be given paramount importance and interpreted as express without any addition, deletion or substitute". It is submitted that the complainant Sh. Manjot Singh has obtained one policy bearing No.0287790929 from the opposite party by paying requisite premium and in this regard the policy was issued and supplied to the complainant. The copy of policy is Ex.OP2. The said policy was commenced on 23.02.2019 for the period 23.02.2019 to 22.02.2020. During the period of the policy, the opposite party No. 1 received one claim from the complainant vide claim form dated 15.07.2019. Copy of the said claim form is Ex. OP3. After perusing the said claim form along with the documents, it was revealed that the wife of the complainant namely Smt. Rajbir Kaur was diagnosed for acute pancreatitis and she was admitted in the hospital on 08.06.2019 and was discharged on 14.06.2019. As per the documents submitted, the said claim was lodged for above said illness within a period of four months from the commencement of the policy and as per the policy terms and conditions, the said claim was liable to be rejected on the ground that the illness which has been stated by the complainant has a specific two years of waiting period as per the policy and the policy start date is 23.2.2019. Due to the above said reason, the claim of the complainant was rejected vide letter dated 17.07.2019. The copy of the said letter is Ex. OP4. From the above stated facts, it is crystal clear that the claim of the complainant has been genuinely rejected as per the policy terms and conditions and there is no deficiency in service on part of the opposite party. Hence the present complaint of the complainant is devoid of merits and the same is liable to be dismissed. The policy issued to the complainant was subject to certain terms and conditions which are duly supplied to the complainant. Terms and conditions of the policy were duly supplied and explained to the complainant. The complainant did not raise any issue with the opposite party with respect to non receipt of policy terms and conditions ever before and denied the remaining contents of the complaint and prayed for dismissal of the same. Alongwith written version, the opposite party No. 1 placed on record affidavit of Chief Manager Ex. OP1 alongwith documents Ex. OP2 to OP4.
3 After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Party No.2 appeared through counsel and filed written version contesting the complaint by alleging that the present complaint is not maintainable in the present form and is liable to be dismissed. The opposite party No. 2 Bank is not in the business of insurance and it cannot carry on Insurance Business as its business is confined to what is listed out in Banking Regulation Act, 1949. Bank’s role is only as a facilitator / referral agent and the actual insurance is issued by the Insurance Company i.e. party No. 1. There exists no privity of contract between the complainant and the Bank to claim the insurance from the Bank i.e. this opposite Party No. 1 and as such the complaint cannot be filed against the opposite party No. 2 and liable to be dismissed on this count also. The present complaint is not maintainable as there is no deficiency of service on part of the opposite party no. 2 Bank as defined under section 2(1) (o) of the Consumer Protection Act 1986. The subject matter of the present complaint i.e. insurance policy was issued by the opposite party No. 1 and not by this opposite party No. 2 i.e. Bank. The role of the opposite party no. 2 i.e. Bank is only of the corporate agent/ facilitator. The opposite party bank had not rendered any sort of insurance related service to the present dispute does complainant. Thus not come within the definitions of "Complainant, Complaint, Consumer and Service" as defined in section 2 (1) of the Consumer Protection Act. The opposite party Bank hereby prays before the commission that the opposite Party Bank has been wrongly joined as party to complaint as the opposite party bank has not provided any service to the complainant and the contract of insurance between opposite party No. 1 and complainant. The opposite party bank is not in the business of Insurance as it cannot carry Insurance Business as per Banking Regulation Act, 1949. The role of the opposite Party Bank is only of a facilitator/referral agent and the actual Insurance contract is entered into and policy is issued by the complainant has opposite party no. 1. If the any dispute regarding the insurance policy then he should have filed the complaint only against opposite party No. 1 and not against opposite party No. 2 i.e. bank. Hence, the complaint is bad on account of mis-joinder of necessary parties and hence liable to be dismissed against the opposite party no. 2 i.e. bank. It is settled principle of law under section 230 of Indian Contract Act that an agent can neither sue nor be sued except under the special circumstances mentioned therein. The perusal of the above provision indicates that none of the circumstances envisaged therein have been pleaded as existing in the instant case in any of the paras of the complaint in question. In view of the legal position as contained in the above section, no liability whatsoever can be fastened on this opposite party no. 2. Therefore on this sole ground alone the complaint is liable to be dismissed against the opposite party No. 2. The complainant is not come to this Commission with clean hands he has suppressed so many material facts from this Commission as such he is not entitled for any discretionary relief from this Commission. The complaint of the complainant is not insured as per terms and condition of the policy. The alleged bills are produced by complainant are prepared in connivance Hospital authority and Medical Store. The complainant has given no information to the opposite party No. 2 at the time of treatment. The complainant has got no cause of action to file the present complaint against the opposite party No. 2. The complainant is barred by their own act and conduct from filing the present complaint. The complainant has got no locus standie to file the present complaint and opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version the opposite party No. 2 has placed on record affidavit Ex. OP2/1.
4 We have heard the Ld. counsels for the parties and have carefully gone through the record.
5 In the present complaint , the complainant has purchased health insurance with product name Tata AIG Medicare From Tata AIG general insurance company limited which has been sold by the AXIS Bank Ltd. on behalf of the opposite party No.1 vide policy number 0287790929 for the period of one year from 23rd Feb 2019 to 22nd Feb 2020 after paying the gross premium of rupees 11,489/- . Total three members of the complainant family were insured under the policy namely Manoj Singh complainant, Rajbir Kaur his wife and Runvijay Singh i.e. his son. During the running tenure of the policy the wife of the complainant namely Rajbir Kaur was admitted to the hospital namely Guru Nanak Dev Super Specialist Hospital ,Tarn Taran and was diagnosed with acute pancreatitis for which she has to undergo for a surgery and she remained admitted in the hospital from 8th June 2019 to 14th June 2019 and total rupees 44,593/- were spent by the complainant upon the treatment of his wife.
6 The claim was lodged under claim number 19071500142 with the opposite party No.1 but the same was rejected on 17th July 2019 with excuse that the illness has specific waiting period of two years and the claim was repudiated under section 3)1}ii of the policy . It is pertinent to mention over here that the terms and conditions of the policy were not explained by the Opposite Party NO.2 at the time of advancing the policy. The copy of the terms and conditions were not provided at the time of the execution of the policy by the opposite parties. Moreover , the complainant visited the office of opposite parties many time and regarding his claim but the opposite Parties linger on the matter on one false pretext or the other.
7 O.P No.1 stated in their written version that the contract of insurance between the opposite party No. 1 and complainant is governed by its policy terms and conditions. Thus, the words in an insurance contract must be given para amount importance and interpreted as express without any addition, deletion or substitute. As per the documents submitted the said claim was lodged for Acute Pancreatitis illness within a period of four months from the commencement of the policy and as per the policy terms and conditions the said claim was liable to be rejected on the ground that the illness which has been stated by the complainant has a specific two years of waiting period as per the policy and the policy start date is 23rd Feb 2019. Due to the above said reason the claim of the complainant was rejected by the letter dated 17 July 2019.
8 O.P No.2 stated in their written version that Bank is not in the business of insurance and it cannot carry on insurance business as its business is Confirned to what is listed out in banking regulation act 1949. Bank’s role is only as a referral agent and the actual insurance is issued by the insurance company i.e. opposite party No.1. There exists no privity of contract between the complainant and the bank to claim the insurance from the bank i.e. opposite party No. 2 .
9 As a result of the Above discussion we are of the considered view that, there is no dispute regarding the purchase of the policy and treatment done by the complainant. The only dispute between the parties is of regarding terms and conditions of the policy whether the same has been supplied by the O.P NO.1 to the complainant or not . As the claim was rejected by the O.P NO.1 on the ground that the illness which has been stated by the complainant has a specific 2 years of waiting period as per the policy terms and conditions. (Ex OP-4) . On other hands, Ld. counsel for the complainant has contended that the opposite parties have not explained the terms and conditions of the policy in question to the complainant and same are not supplied or explained to him at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures 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 DharmendraGoel 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.
10 But the O.P No.1 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? Onus to prove that terms and conditions of the policy were supplied to the insured lies upon O.Ps. It is clear that opposite party No.1 has failed to prove on record that they have supplied the terms and conditions of the policy to the complainant as such these terms and conditions particularly the exclusive clause of the policy is not binding upon the insured. The insurance law court makes it that utmost good faith must be observed by the Contracting parties. Good faith forbids either party from concealing what he privately knows ,to draw the other into a bargain from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, similarly it is the duty of the insurers and their agents to disclose all material facts( terms and conditions) within their knowledge ,since obligation of good faith applies to them equally with the assured . In such a situation the repudiation made by O.P No. 1, regarding genuine claim of the complainant proves the deficiency and unfair trade practice on behalf of the O.P No. 1. 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 line at the time of obtaining the policy. 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.UshaYadav& 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.
11 Now we have to see that, the complainant is entitled for how much amount. The complainant is claiming amount of Rs. 44,593/-. But the perusal of file shows that the complainant has placed on record the payment receipts of Guru Nanak Dev Super Specialist Hospital from dated 8.6.2019 to 12.6.2019 to the tune of Rs.25000/- (5000+10000+4000+6000) ( Ex C-3 to C-6) only. On the other hand, O.P No.1 has nowhere denied these expenses by producing in rebuttal on record any cogent and convincing evidence. Hence we are of the considered view that the complainant is entitled to Rs. 25,000/- instead of Rs. 44,593/-
12 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite party No. 1 is directed to make the payment of Rs. 25,000/- to the complainant. The complainant has been harassed by the opposite party No. 1 unnecessarily for a long time. The complainant is also entitled to Rs. 7,500/- as compensation on account of harassment and mental agony and Rs 5,000/- as litigation expenses. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. The present complaint against opposite party No. 2 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
14.09.2023
