Shri Swapan Kumar Mahanty, President.

This is an application u/s.12 of the C.P. Act, 1986.

Succinctly put, the facts giving rise to the present complaint case are, -

Complainant Ram Avtar Agarwal took a health insurance policy from National Insurance Co. Ltd. and subsequently he ported the said policy (Family Floater) from O.P.-2 Max Bupa Health Insurance Co. Ltd. Complainant is not well acquainted  with English language and was completely dependent on the Insurance Advisor. Complainant allowed the Advisor to fill up the proposal form. That on 01/12/2012 complainant’s wife was admitted to Apollo Gleneagles Hospital, Kolkata under Dr. Amit Agarwal and on 03/12/2012 she was shifted under Dr. S. K. Das as she faced Urinary Track Infection. It is alleged that the O.P.-2 approved the preauthorization of cashless service of Rs.1,44,608/- vide letter dated 08/12/2012 and 11/12/2012 respectively. The bill amount  was enhanced due to prolonged hospitalization but theO.P.-2 disapproved the enhanced amount, also cancelled the earlier cashless approvals and asked the complainant to opt for reimbursement of bill amount. Having no other alternative, complainant paid the bill amount of Rs.2,48,057/- to Apollo Gleneagles Hospital. Complainant submitted claim for reimbursement, O.P.-2 appointed Surveyor and ultimately the claim was disallowed on the ground of suppression of material information.

Further case of the complainant is that he renewed the policy on making payment towards the premium upon disclosure of the pre-existing conditions and the policy was valid between the period 25/09/2013 to 24/09/2014. The wife of the complainant was again admitted to AMRI Hospital, Salt Lake on 25/10/2013 and 15/06/2014 respectively with prior intimation for cashless benefit but the Insurer denied to Cashless benefit with a direction to go for reimbursement. Complainant lodged claim of Rs.40,592/- and Rs.4,04,315.66 for reimbursement  but the O.P.-2 denied the claim  and terminated the policy. The O.P.-2 renewed the Insurance Policy having knowledge of surgery of the complainant. Complainant approached Insurance Ombudsman but the Insurance Ombudsman declined the claim vide order dated 23/11/2015 on the ground of non-disclosure of pre-existing condition though the complainant had disclosed the fact of pre-existing conditions vide letter dated 20/09/2013.

In the aforesaid background, alleging deficiency in service on the part of the Insurance Company in rejecting the claim, the complainant came before this Forum with the reliefs as mentioned in the prayer of the complaint.

Upon notices, both the O.Ps. have contested the complaint by filing Written Version. It is pleaded on behalf of the O.Ps. that there was no deficiency in service on its part; the complainant has no cause of action to bring the complaint; the complaint is barred by limitation as the claim was denied in 2013 and the policy was terminated vide letter dated 13/11/2013. It is true that previously the complainant holding a policy under National Insurance Co. Ltd.  and the complainant ported his previous policy with O.P.-2. The policy was valid for the period 25/09/2012 to 24/09/2013. Subsequently the policy was renewed for the period from 25/09/2013 to 24/09/2014. By entering into the insurance policy, the complainant agreed, acknowledged and accepted the terms and conditions of the policy. The claim of the complainant was denied by O.P.-2 on the ground of non-disclosure of hypothyroidism, hypertension at the time of taking policy. The complainant concealed the past medical history before inception of the policy to the O.P.-2 and the O.P.-2 on good faith issued the said policy. Therefore, the O.Ps. have prayed for dismissal of the complaint with cost.

In the light of the pleadings of the parties the following points have been raised for the sake of proper and effective adjudication of the case.

1. Is the complaint barred by limitation ?
2. Are the O.Ps. deficient in rendering services to the complainant ?
3. Are the O.Ps. indulged in unfair trade practice ?
4. Is the complainant entitled to get relief as prayed for ?

Decision with Reasons

Point-1.

The Ld. Advocate appearing for the O.Ps. contended that the consumer complaint is barred by limitation and no delay condonation application has been filed with the complaint petition. She further argued that the instant complaint case is not maintainable in law as it is barred by limitation. According to her, it is well settled law that cause of action begins to run when the right to sue first accrues. If filing of a complaint is based on multiple cause of action, the period of limitation begins to run from the date when the right to sue first accrues. In support of such contention she has cited a decision reported in I (2005) CPJ 131 (NC) Hon’ble National Commission (Champaben AtmaramThakron -Vs.- Regional Provident Fund Commissioner & Another).

            On the contrary, the Ld. Advocate appearing for the complainant has submitted that on 01/09/2014 complainant lodged claim to the O.P.-2 and O.P.-2 appointed Mr. Abhishek Ghosh as their investigating agency to verify and collect relevant documents and necessary information on their behalf regarding the insured Ms. Anita Agarwal (Annexure-Q). Ld. Advocate for the complainant  further argued that till the filing of consumer complaint the O.P.-2 neither terminate and / or repudiate the claim nor release the claim amount. It is further contended that finding no other alternative the complainant approached the Insurance Ombudsman  and upon hearing of both parties the Insurance Ombudsman  vide order dated 23/11/2015 declined  the claim of the complainant on the ground of non-disclosure of the preexisting condition though the complainant had disclosed the fact of pre-existing conditions vide his letter dated 20/09/2013. Ld. Advocate has further pointed out that in spite of several representations the O.P.-2 did not settle the claim and the cause of action of the consumer complaint arose on 23/11/2015 when the Insurance Ombudsman rejected the prayer of the complainant on the ground of  non-disclosure the fact of pre-existing condition. According to her, there is no such delay in presenting the instant complaint.

We have considered the rival contention. Section 24A of the C. P. Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus-

“ 24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from  the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub-Section (1), a complaint may be entertained after the period specified in Sub-Section (1),  if the complainant satisfies the District Forum,  the State Commission or the National Commission, as the case may be, that he had  sufficient cause for not  filing the complaint within such period.

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records, its reasons for condoning such delay.”

It would be seen from the aforesaid provisions that it is preemptory in nature and requires the consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown. The expression, “shall not admit a complaint” occurring the Section 24A is sort of a legislative  command to the Consumer Forum to examine on its own whether the complaint has been filed within the limitation period prescribed there-under.

As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has to be shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet,  the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

It is true that a notice of cancellation of policy was issued on 13/11/2013 and subsequently, the policy of the complainant was cancelled with effect on 27/09/2013. After cancellation of the policy claim No.99184 for Rs.4,04,315.66 for hospitalization for the period from 15/06/2014 to 01/07/2014  was lodged on 01/09/2014 and previous claim was denied vide letter dated 11/04/2013 on the ground of hypothyroidism and HTN for non-disclosure and policy cancellation.

It is well settled law that the cause of action begins to run when the right to sue first accrues, if filing of a complaint is based on multiple cause of action, the period of limitation begins to run from the date when the right to sue first accrues. Insurance Policy of the complainant cancelled with effect from 27/09/2013. As such, the complainant is not entitled to reimbursement of policy claim No.99184 for Rs.4,04,315.66 for hospitalization for the period from 15/06/2014 to 01/07/2014 though the O.P.-2 appointed one Abhishek Ghosh as investigating agency to collect the relevant documents to settle the claim but O.P.-2 did not terminate and / or repudiate the claim. Cancellation of Policy No.30135840201301tantamounts to terminate and / or repudiate the claim as on the date of claim there was no existence of health insurance policy.

It is settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the complainant. In this context, reference can be made to Kandimalla Raghavaiah& Co. –Vs.- National Insurance Co. Ltd. & Another reported in III (2009) CPJ 75 (SC)  in which it has been held :-

“By no stretch of imagination, it can be said that Insurance Company’s reply dated 21^st march, 1996 to the legal notice dated 04^th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24^th October,1997 and that too without an application for condonation  of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”

In the present case, Insurance Policy was cancelled on 27/09/2013, policy claim No.99184 for hospitalization for the period from 15/06/2014 to 01/07/2014 was lodged on 01/09/2014 and the O.P.-2 appointed investigating agency  to collect relevant documents to settle the claim but O.P.-2 did not terminate and / or repudiate the claim. By no stretch of imagination, it can be said that by appointing investigating agency to settle the claim after lapse of more than three years nine months twenty three days of the date of cancellation of the policy, resulted  in extending the period of limitation for the purpose of Section 24A of the Act. Moreover, the period of limitation cannot be extended since 23/11/2015 when Insurance Ombudsman declined the claim of the complainant.

Thus complaint is barred by limitation and no application for condonation of delay has been filed. Under these circumstances, as the consumer complaint is barred by limitation. Accordingly, Point-1 answered in the negative.

Points-2 to 4.

            In view of determination of Point-1, we are of the considered opinion that remaining points under determination are not require to be discussed and decide because in all occasions the complainant will not get any relief as claimed in Points-2 to 4.

In result, the complaint fails.

Hence,

Ordered

That the complaint case be and the same is dismissed on contest against the O.Ps.

No cost is imposed upon any of the parties.