Tripura

West Tripura

CC/14/60

Smti Sonali Chakraborty - Complainant(s)

Versus

The Divisional Manager, Oriental Insurance Company Ltd. And Other - Opp.Party(s)

Mr. P. Chakraborty

19 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC- 60 of 2014

Smt. Sonali Chakraborty,
W/O- Sri Pinak Chowdhury,
Dhaleswar Road No. 6,
Agartala, West Tripura.             ............Complainant.

         ______VERSUS______

1. Divisional Manager,
     The Oriental Insurance Company Ltd.,
     Agartala, West Tripura.    
     
     2. Raksha TAP Pvt. Ltd.,
     Taranagar behind Rajib Bhavan, 
     1st Lane, H. No.8,
     Guwahati-781005.                 ….......... Opposite Parties.        

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant         : Mr. Pradip Chakraborty and
                  Mr. Sujit Chakraborty,
                  Advocate.
                           
For the O.P. No.1        : Mr. Basudev Chakraborty,
                  Advocate.

For the O.P. No.2        : None appeared.
                    

JUDGMENT  DELIVERED  ON : - 19.06.15

J U D G M E N T     

              This is a complaint U/S 12 of the Consumer Protection Act, 1986 (herein after referred to as 'the Act') filed by the complainant, Smt. Sonali Chakraborty of Dhaleswar Road No.6, Agartala, West Tripura against the O.Ps, namely Divisional Manager, The Oriental Insurance Company Ltd., Agartala Division and Raksha TAP Pvt. Ltd. over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps. 

2.        The fact of the case a gathered from the record is that the complainant's husband subscribed to Mediclaim Insurance Policy under the scheme 'Happy Family Floater Policy' in the sum of Rs.2 lakhs continued for the period from 09.12.2010 to 08.12.2011, 21.12.11 to 20.12.12 and lastly from 21.12.12 to 20.12.13 with premium of Rs.6,500/- for each policy. The mediclaim policy was to cover the complainant and her husband and son. The number of mediclaim policy was 322700/48/2013/1195 which was purchased from The Oriental Insurance Company Ltd. through the 3rd party agent, Raksha TAP Pvt. Ltd. (O.P.No.2). It is averred that during the continuance of policy when the complainant along with the members of her family had been to Tamil Nadu on a tour, she had suddenly fallen seriously ill. Immediately she was admitted to Venayaka Mission Hospital, Salem, Tamil Nadu and underwent treatment there from 20.08.13 to 13.09.13 and again on 29.09.13  to 30.09.13 with the complaint of Chronic Calculus Cholecystisis with Hepatisis Obesity etc. and left knee ligament injury. During the course of treatment, her Cholecystectomy was done. The complainant spent a sum of Rs.1,30,962/-(Rs.1,12,840/- + Rs.18,118/-) in 2 spells towards her treatment. As per terms of the Mediclaim Policy, the complainant is entitled to have the said amount as she received the treatment in the hospital during continuance of the policy of insurance. The complainant preferred claim petition along with all the relevant documents as required by the O.P. No.2 from time to time. Yet they did not settle the claim. The complainant was not even informed by the O.Ps explaining the reason for non settlement of the claim. Finding no other alternative, the complainant served an Advocate's notice upon the O.Ps.  but they did not respond to the notice. According to the complainant, the conduct of the O.Ps amounted to negligence and deficiency in rendering service. Hence, this complaint.

3.        The complaint was contested by the O.P. No.1, The Oriental Insurance Company Ltd., stating interalia, that the mediclaim policy must be continued without break. In the present case,  there was 13 days break between the policy covering the period from 09.12.2010 to 08.12.2010 and 21.12.2011 to 20.12.12 and, therefore, the claim of the complainant was not payable as per Exclusion Clause No- 4.3 (xix) of the terms and conditions of the Policy as such type of ailment is excluded for the period of 2 years.  It is denied that there was any deficiency in service on the part of the O.Ps. 

4.        The O.P. No.2, Raksha TAP Pvt. Ltd., the 3rd party agent of O.P. No.2, did not contest the case though notice was sent to them by speed post and hence the case has been proceeded exparte against them. 

5.        In support of the case, the complainant has examined himself as P.W. 1 and has proved and exhibited 21 sheets of document filed on 22.07.14 with firisti as Exhibit- 1 Series. 

6.        On the other hand, one Sri Goutam Bhowmik, Senior Assistant Officer of The Oriental Insurance Company Ltd., Agartala Division has examined himself as O.P.W.1 as a witness of the O.P. Insurance company and has proved and exhibited the following documents;
    Exhibit A- Letter dated 16.01.14,
    Exhibit B Series- Copies of 3 Policies dated 09.12.10 to 08.12.11, 21.12.11 to 20.12.12 and 21.12.12 to 20.12.13.

            FINDINGS:    
7.        The points that would arise for consideration in this proceeding are:
        (i) Whether the O.P. No.1 caused undue delay in settlement of the claim preferred by the complainant without any justifiable cause;
        (ii) Whether the action of the O.Ps constituted negligence and deficiency in service.

8.        We have already heard arguments advanced by the learned counsel appearing for the complainant and the O.P. No.1. Also perused the pleadings, documents on record and the evidence adduced by the parties meticulously.

9.        The plea of the O.P. Insurance company revolves around continuity of mediclaim policy and application of Exclusion Clause and terms and conditions thereof. It is the plea of the O.P. Insurance company that there was 13 days break between the 1st and 2nd policies and the complainant underwent treatment in the hospital on 20.08.13  during the continuance of the 3rd policy from 21.12.12 to 20.12.13 which would be treated as fresh policy due to 13 days break in the previous policy and, therefore, as per Exclusion Clause 4.3(xix) of the terms and conditions of the policy the claim was not payable for 2 years. On perusal of the documents on record it appears that the O.P. No.2 made several correspondence with the policy holder from time to time requiring him to produce various documents but they did not inform the policy holder or the complainant at any point of time that the claim was not entertainable for 2 years under Exclusion Clause 4.3(xix) of the terms and conditions of the policy. As it appears, the O.P. Insurance Company took this plea for the first time before this Forum. Most interestingly, till the date of institution of the case the complainant was never informed by the O.Ps that her claim was repudiated under Exclusion Clause 4.3(xix). From the letter dated 16.01.14(Exhibit-A) issued by the O.P. No.2 Raksha TAP Pvt. Ltd. addressing to the O.P. No.1 stating that the claim submitted by the complainant has been recommended as ''non tenable for the following reasons.....'' Surprisingly, the said fact has also not been communicated to the complainant by the O.P. No.1. The reason is best known to them. In our opinion, such conduct of the O.P. No.1 itself is sufficient to attribute the charge of negligence and deficiency in service to the O.P. No.1.

10.         At the time of argument another point was brought to our notice by the learned counsel for the complainant that in the policy document issued by the O.P. Insurance Company stipulates that ''the insurance under this policy is subject to conditions, clauses, warranties, endorsements as per forms attached''. But in practice the policy containing terms and conditions regarding Exclusion Clause is not furnished to the policy holder. When such Exclusion Clause is neither communicated nor copy thereof is furnished to the insured, the insurance company can not take advantage of Exclusion Clause.

11.         On examination of the policies of insurance produced by the O.P. Insurance company we do not find that the terms and conditions of the policy were furnished to the insured. In Revision Petition No. 186/2007(National Insurance Co. Ltd. Vrs. D.P. Jain), the Hon'ble National Consumer Disputes Reddressal Commission held that ''the O.P. Insurance company is under obligation to follow the provisions of regulations 3(4) of IRDA( Protection of Policy Holders Interest) Regulations, 2002. As per such regulations, it is mandatory for the Insurance Company to explain the 'terms and conditions' of the policy and such a certificate is required to be recorded for the advantage of clarity.''

12.        It is not the case of the O.P. No.1 that the complainant had fraudulently suppressed the material fact about her preexisted ailment. The O.P. Insurance company can not deprive the complainant on getting her legitimate claim on the pretext of 13 days break in continuance of the policy and taking advantage of Exclusion Clause 4.3 (xix) of the terms and condition of the policy for the reasons discussed earlier. 

13.        The State Commission of Delhi in the Amrish Chopra Vrs. New India Assurance Company case held that unreasonable delay in processing of insurance claim at various stages in delaying final settlement amounted to deficiency in service under C.P. Act and the complainant is entitled to compensation for mental tension and physical exertion. 

14.        The State Commission, Chandigarh in the S. Vangupta and Sons Vrs. National Insurance Company case ruled that the period of 3 months was just and reasonable for the insurance company to settle the claim. In our opinion, undue delay caused by the O.P. Insurance Company in settlement of the claim without justifiable cause constitutes deficiency in service. That being so, the complainant is liable for reimbursement of mediclaim expenses incurred by her for the treatment received at Venayaka Hospital, Chennai. It appear that the amount claimed by the complainant towards her treatment is within the limit of liability of the mediclaim policy. Since the O.P. No.2 was the 3rd party agent of the O.P. No.1, the entire liability  to pay the cost of treatment under mediclaim policy with compensation thereof falls on O.P., No.1. 

15.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is allowed on contest. The O.P. No.1, The Oriental Insurance Company Ltd. being the insurer of the mediclaim policy under the scheme 'Happy Family Floater Policy' is directed to pay the complainant Rs.1,30,962/-(Rs.1,12,840/- + Rs.18,118/-) with interest @ 9% P.A. from the date of presentation of the complaint before this Forum on 22.07.14 till the payment is made in full. The O.P. No.1 is also directed to pay Rs. 5,000/- to the complainant as compensation for mental agony and harassment with Rs. 2000/- as costs of litigation.        

16.                A N N O U N C E D

 

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SHRI. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.