Haryana

Ambala

CC/60/2021

Ms Kavita Rani - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

Virendra Verma

21 Nov 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     60 of 2021

                                                          Date of Institution           :     05.02.2021

                                                          Date of decision    :     21.11.2022.

1. Ms.Kavita Rani W/do Satnam S/o Sh.Sawan Mal.
2. Sangam Dussa S/o Late Sh.Satnam S/o Sawan Mal both Residents of Village Karsan, Tehsil- Naraingarh, District- Ambala, Haryana.

……. Complainants

VERSUS

                                                

1. The New India Assurance Company Ltd. through Chairman, Registered Head Office: 87,  Mahatma Gandhi, Mumbai, Pin Code-400002,
2. The New India Assurance Company Ltd. through its Branch Manager, Branch Code No.BO (Cantt.) 353501, 5406, Shree Complex, 2^nd Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt. 133001

                                                                                   ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Aadesh Verma, Advocate, counsel for the applicants/                           complainants.

                   Shri Mohinder Bindal, Advocate, counsel for the respondents/OPs.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) on 05.02.2021 stating therein that the deceased Satnam S/o Sh. Sawan Mal (the husband of Complainant No.1 and the father of Complainant No.2 bought "New MediClaim-2012" policy from the OPs through their authorized agent and got the same renewed from time to time. The lastly renewed Policy No.35350134162500000451 valid from 03.12.2016 to 02.12.2017, for the sum insured of Rs.2,00,000/- and cumulative bonus buffer- Rs.52500/-, Pre-Existing Disease- NA and at the time of death policy was intact. The husband of the complainant No.1 suddenly suffered from some problem for which he was admitted on 19.01.2017 in Dayanand Medical College & Hospital, Ludhiana for treatment and on 12.02.2017 he died due to multiple problems developed during admission & treatment. Complainant No.1 submitted claim against the above mentioned policy of her husband which was intact, operative at the time of his death on 12.02.2017, which was not paid. The OPs given a false, wrong, and misconceived information orally to the complainants which is not sustainable in the eyes of law because the above mentioned policy of Satnam (now deceased) is valid, effective as on 12.02.2017 and alleged liquor consumption does not make any legal ground to repudiate the claim of the complainants. After the death of insured (Satnam), the life of family members became horrible and the complainants are suffering at the hands of OPs. Due to the act and conduct of the OPs, complainant No.1 was constrained to serve legal notice dated 26.11.2019 upon the OPs through registered AD followed by reminders but the claim was not paid to the complainants. By not paying the genuine claim, the OPs have committed deficiency in service. It is prayed that OPs may be directed to release amount of Rs.2,00,000, as per lastly renewed Policy No.35350134162500000451 valid from 03.12.2016 to 02.12.2017. To pay compensation to the tune of Rs.20,000/- for pain, agony physical harassment and also cost of litigation of Rs.25,000/- OR Grant any other relief, which this Hon'ble Commission deems fit and proper as per the facts and circumstances of this case.

2.           On 10.03.2021, when the case was fixed for consideration on the admissibility of complaint then the complainants have filed an application for condonation of delay, wherein it is stated that all the requisite necessary documents have already been submitted with the OPs for the claim vide claim No.1111589-9051718088535 dated 22.05.2017, even then the amount of Rs.2 Lacs has not been released by them. Applicant/Complainant No.1 being a rustic villager could not engage the counsel in time and thereafter on 26.11.2019 approached the learned counsel to serve a legal notice upon the OPs. The said legal notice was duly received by the OPs but they failed to give reply. Thereafter, due to pandemic of COVID-19, complete lockdown was declared by the Central Government of India, Applicants/complainants again submitted the documents on 20.03.2020. After waiting sufficiently, applicants/ complainants sent first reminder to legal notice dated 26.11.2019 on 19.10.2020 through registered AD letter No.RH455089224IN and RH455088983IN to the OPs which was received on 20.10.2020 and 26.10.2020 respectively. Learned counsel for the complainants received a reply dated 21.01.2021 through registered post letter no.RH483628769IN on 02.02.2021 to the legal notice. Complainants came to know about repudiation of claim by the OPs after receiving the reply on 02.02.2021. The cause of action first arose on 12.02.2017 and thereafter on various dates such as 22.05.2017, 20.11.2019, 26.11.2019, 19.10.2020 and lastly on receipt of reply to the legal notice received on 02.02.2021.  From the date of submission of documents i.e 22.05.2017 and the delay in filing the present complaint comes to 624 days but from considering the legal notice dated 26.11.2019 and Ist reminder dated 19.10.2020 and reply to legal notice dated 20.01.2021, received on 02.02.2021 by the counsel, there is no delay in filing the present complaint. The delay in filing the present complaint is neither intentional nor malafide, rather the same occurred due to non-availability of repudiation letter/any written documents about repudiation of claim.  Delay in filling of the complaint is due to the act and conduct of the OPs. If the delay is not condoned then the applicants/complainants will suffer an irreparable loss and injury which cannot be compensated in any manner. It is prayed that application may kindly be allowed and delay in filing the present complaint may kindly be condoned.   
3.           After hearing the arguments at the preliminary stage, notice of the application for condonation of delay was issued to the respondents/OPs.
4.           Upon notice, the respondents/OPs appeared through their counsel and filed reply to the said application, stating therein that the application for condonation of delay in filing the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; not maintainable; that the present complaint is barred by limitation, as the complainants have failed to give any cogent or legal reason for their failure to file the present complaint within the statutory period of two years. It has been stated that the claim of the complainants was legally repudiated and they were duly informed about the fate of their claim vide letter dated 26.05.2017. The claim of the complainants was held not payable legally after application of mind by the competent authority in the light of the terms and condition and scope of the insurance policy. Complainants were very much aware of the fate of their claim but in order to put undue pressure, they filed the present false and frivolous complaint without any cause of action. The request/claim under the instant policy was received by the TPA on behalf of the OPs against the alleged treatment undergone by the insured Late Sh. Satnam at Dayanand Medical College and Hospital. Ludhiana where he remained under treatment from 19.01.2017 to 12.02.2017. Since as per the treatment record/papers submitted and availed from the said hospital, said patient Sh. Satnam suffered from right front temporal ICH with LVH, post decompensative craniotomy, alcohol related CLD, cirrhosis. PHT, UGI bleed post EBL, septic shock, AF respiratory failure, cardiopulmonary arrest and as per the entire case summary, it was found that the cause of CLD is alcohol. As per the policy conditions, any illness which is caused due to alcohol is not payable, therefore, the claim in question was held non payable as per exclusion clause 4.4.6.1) which says that "Convalescence, general debility, run down condition or rest cure... illness or injury caused by the use of intoxicating drugs/alcohol" are not payable so after pursuing the treatment record, the said claim was denied and rejected by the said TPA with necessary information vide there letter dated 26.05.2017. The delay of 624 days in filing the present complaint cannot be waived off on the ground that complainant is a rustic villager could not approach the counsel in time. No cause of action has arisen after the repudiation of the claim on 26.05.2017. No subsequent correspondence can extend the period of limitation and the period of limitation starts from the date when the claim was repudiated. Rest of the averments of the complainants were denied by the OPs and prayed that the application filed by the applicants/complainants may be dismissed and consequently the complaint may also be dismissed being barred by limitation with special costs.
5.           We have heard the learned counsel for applicants/complainants and the respondents/OPs on the application for condonation of delay and have carefully gone through the case file.
6.           Learned counsel for the applicants/complainants submitted that delay in filing this consumer complaint took place because of the reason that the applicant/complainant No.1 is a rustic villager, as such, she could not engage counsel in time and thereafter on 26.11.2019 approached the counsel and served legal notice upon the respondents/OPs. He further submitted that the complainants did not receive the repudiation letter dated 26.05.2017 and the complainants came to know about the repudiation of the claim on receiving the reply to the legal notice on 02.02.2021.
7.           On the other hand, learned counsel for the respondents/OPs submitted that the claim of the complainants was repudiated on 26.05.2017, whereas complainants have filed the present complaint after the huge delay of 624 days. In the application for condonation of delay no cogent reason has been given for delay in filing the complaint except that applicant/complainant No.1 is a rustic villager and could not approach the lawyer. As such, this application may be dismissed and the complaint filed by complainants may also be dismissed on the ground of limitation with heavy costs. 
8.           It is not disputed that the applicant/complainant No.1, after the death of life insured (Satnam) on 12.05.2017, lodged the claim with the respondents/OPs on 22.05.2017. As per the respondents/OPs, the claim of the complainants was repudiated vide letter dated 26.05.2017 and they were informed accordingly. The plea of the complainants is that they did not receive the repudiation letter. If for the sake of arguments, we believe this contention of the applicants/complainants even then in our view applicants/complainants should have enquired from the insurance company about the fate of their claim within the reasonable time but nothing of that sort was done by them. In the  application for condonation of delay, it is mentioned that the delay in filing the present complaint is due to the reason that the applicant/complainant No.1 is a rustic villager, as such, she could not engage a counsel in time and thereafter on 26.11.2019 she approached the counsel and served legal notice upon the respondents/OPs, does not merit acceptance, as this could not be said to be a sufficient cause. In catena of judgments of Hon’ble Supreme Court and the Hon’ble National Commission, the delay without explanation of sufficient cause has not been condoned viz. Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108; Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 and Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC).  The Hon’ble Apex Court in the case of Sanjay Sidgonda Patil vs. Branch Manager, National Insu. Co. Ltd. & Anr., Special Leave to Appeal (Civil) No.  37183 of 2013 decided on 17.12.2013, confirmed the order of the Hon’ble National Commission and refused to condone the delay of 13 days. In the present case, we are of the view that the huge delay of 624 days in filing the present complaint, was due to own peril of complainants,  therefore, we are not inclined to condone such huge delay. As a consequence the complaint filed by the complainants is also hopelessly time barred.
9.           In the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL No.2067 of 2002, decided 20 March, 2009,, the Hon’ble Supreme Court of India, has held that “………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……”
10.           The principle of law laid down by the Hon’ble Supreme Court of India, in the cases referred to above, are fully applicable in this case, therefore, we hereby dismiss the application filed by applicants/ complainants for condonation of delay. As a consequent, we do not deem it fit to go into the merits of the case by giving notice to the respondents/OPs, as such, the complaint filed by the complainants is also dismissed being hopelessly time barred, at this stage. Parties are left to bear their own costs.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 21.11.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President