Dt 20.05.16
JAGANNATH BAG, MEMBER
The present appeal is directed against the Order, dated 27.09.2013 , passed by the Ld. District Consumer Disputes Redresssal Forum, Unit –I , Kolkata , in CDF/Unit-1/ Case No. 343/2011, whereby the complaint was allowed with compensation and cost.
The complaint case, in brief, was as follows:
The Complainant is a Savings Account holder of Kotak Mahindra Bank, OP No.1, who was approached by one Urvashi Ghosh for getting insured with their sister concern, i.e, OP No.2 under a Plan, ‘namely, Kotak Smart Advantage’ . The Complainant accepted the same and paid the first premium of Rs. 60,000/- only by a cheque . A policy certificate was issued commencing from 27.06.2008 for a sum assured of Rs. 3,00,000/- for a term of 10 years . The Complainant missed to pay the second premium which was due on 27.06.2009 . After 6 months he visited the office of OP No. 1. An application for revival of the policy was filed. After further visit to the office of OP No.2 he was asked to submit a fresh application for revival of the policy. By a letter dated 15.04.2010 the Complainant was asked by OP No.2 for furnishing a medical report on ECG to be done by the Complainant . Surprisingly, OP No.2 vide their letter dated 20.05.2010 informed that the polcy could not be revived because of elevated BP and ECG findings . A cheque amounting to Rs. 6,000/- dated 05.07.2011 was sent to the Complainant after lapse of 14 months of termination . Being dissatisfied with the act of the OPs , the Complainant return the cheque to OP No.2 . Allegedly at the time of issuing the policy , the Complainant was not asked to go through any medical examination or to sent any medical report, though , he was an aged man of 60 years at that time . The complaint was filed with prayer for direction upon the OPs to revive the policy of the Complainant or to refund the entire premium amount of Rs. 60,000/- along with interest @ 12% p.a. apart from payment of compensation and cost.
The complaint was contested by OP No1 and OP No.2 .
OP No.1 in their W.V submitted that there was no cause of action against them as the Complainant obtained insurance service from OP No.2, while the OP No.1 was providing banking service. The Complainant took the Insurance Policy as per his own choice and the bank had no deficiency in service on their part.
OP No.2 also submitted a W.V. wherein it was contended , inter alia, that the policy having lapsed for nonpayment of premium by the Complainant, they offered 10% of the first premium to the Complainant as per the terms and conditions of the policy. As such, the complaint was not sustainable. The Complainant being a defaulter himself can not take advantage of his own wrong . Accordingly, the complaint was not maintainable.
Ld. Forum below having gone through the pleadings of the parties, evidence and documents, in particular, observed that as per terms of the policy agreement, the Complainant failed to deposit the second premium of the policy and found to be not interested to continue. The OP sent the cheque to the Complainant after a long period and as such, there was deficiency in service. The OPs were jointly and / or severally directed to return Rs.6,000/- to the Complainant with further direction to pay a sum of Rs. 7000/- as compensation for harassment and mental agony and also litigation cost of Rs. 3,000/- within 45 days from the date of communication of the order, in default whereof, interest @ 10% p.a. shall accrue over the entire sum to be credited to the Complainant’s account till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Complainant-turned-Appellant has come up before this Commission with a prayer for direction to modify the impugned order and remand the matter to the Ld. Forum below for fresh hearing.
Ld. Advocate appearing for the Appellant submitted that the OP No.1 advised the Complainant to apply for revival of the policy as second premium was not paid within due date and the policy was under lapsed category. OP No.2 being the Insurance Company asked the Complainant to file a medical report. But by a letter dated 20.05.2010 , OP No.2 i.e., the Insurance Company informed that the policy had been terminated on the ground of elevated BP and ECG findings . This was highly irregular on the part of the OP. Copy of the findings of the adverse remark of the panel doctors of the Insurance Company was not made available to the Complainant . Termination of the policy was done by the Insurance Company in arbitrary manner . Non-revival of the policy on that ground was not justified. Ld. Forum below did not consider that point and passed the impugned order accepting the submission of the Insurance Company that only 10 % of the premium paid would be refundable. The payment of compensation of Rs. 7,000/- and cost of Rs. 3,000/- as ordered by the Ld. Forum below also needed to be modified in terms of the prayer as put forth in the petition of complaint. The impugned order, therefore, may be set aside.
Ld. Advocate appearing for the Respondent No. 1 submitted that they were providing Bank services only and can not be held liable for any deficiency in service on the part of the Respondent No.2 who are providing insurance services. Ld. Forum’s order asking the Respondent No.1/OP No.1 to pay any sum of money on alleged ground of deficiency in service on the part of the Insurance Company which is a separate legal entity is wholly arbitrary .
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
Decision with Reasons:
We have gone through the memorandum of appeal along with the impugned order , the petition of complaint , the terms and conditions of the policy and correspondences between the Complainant and the Respondents and the W.Vs filed by the Respondent No.1 / OP No.1 and Respondent No.2 / OP No.2 before the Ld. Forum below among other documents.
There is no dispute that the Appellant / Complainant took a policy commencing from 27.06.2008 for a term of 10 years from the Respondent No. 2 being the Insurance Company . Admittedly, he failed to pay the second renewal premium within 6 months from the due date of the first unpaid premium. Accordingly, he was asked to produce evidence of good health and good habits to the satisfaction of the Insurance Company. The Respondent / Insurance Company appears to have issued a letter dated 15.04.2010 to the Appellant asking the Complainant to submit the medical report on ECG , but the Insurance Company vide their letter dated 20.05.2010, informed the Complainant that the policy could not be revived because of elevated BP and ECG findings. But which report they relied upon was not mentioned. In terms of policy condition 10% of the first premium, i.e., Rs. 60,000/- was offered to the Complainant after lapse of 14 months from termination .
The evidence as to the medical report on ECG done by the Complainant and reviewed by the panel doctors of the insurance company was very important which needed to be taken into consideration by the Ld. Forum below before arriving at a decision as to whether the insurance Company made any material mistake . Such observation by the Ld. Forum below does not appear to be reflected in the impugned order.
As per policy condition 5 a lapsed policy can be revived on production of evidence of good health and good habits to the satisfaction of the Insurance Company if the application for revival of the policy is made after 6 months but within 2 years from the due date of the first unpaid premium and before the date of maturity of the policy.
It appears that the Appellant was very much willing to pay all premiums in arrear and other revival charge but the Insurance company terminated the policy on the basis of recommendation of their panel doctors about adverse report of elevated BP and ECG findings in respect of the Appellant . There was no mention in the letter dated 15.04.10 of the Insurance Company that adverse BP report may render the policy for termination .
We are inclined to hold that the termination of the policy by the Respondent insurance company was not done in a very fair manner. The findings of the panel doctors of the Insurance Company were not placed as evidence before the Ld. Forum below who ignored the fact and adjudicated the complaint. The impugned order suffers from material irregularity. It would be just and fair if a fresh adjudication is made by the Ld. Forum below on the basis of evidence as regards the medical report of the panel doctors of the Insurance Company in connection with termination of the policy and consequent non-revival of the policy. The appeal succeeds , Hence,
Ordered
That the appeal be and the same is allowed on contest . The impugned order is set aside . The matter is sent back on remand for fresh adjudication by the Ld. Forum below after giving opportunity of hearing to both parties who may file fresh evidence, if any, in their respective support. Parties are directed to appear before the Ld. Forum below on 15th June , 2016, for necessary order by the Ld. Forum below. There shall be no order as to cost.
