Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that he purchased Personal Accident Insurance (Individual) policy bearing No.36110042200100000012 from the Opposite Parties which was valid for the period w.e.f. 20.04.2020 (12.00.01 AM) to 19.04.2021 (11.59.59 PM) for himself as well as  for her wife Smt.Gursharan Kaur having sum insured of Rs. 3 lakhs against the payment of premium of Rs.1569/-. This is the continuous policy of previous policy bearing No.36110042190100000012 and the Complainant has been purchasing this policy from the last 11 years continuously and paid a hefty amount more than 1.50 lakhs to the Opposite Parties on account of premiums till date. Further alleges that  prior to proposal and issuance of the policy in question, the doctors of the Opposite Parties duly medically checked up to the Complainant as well as his wife and after full satisfaction of the doctors of the Opposite Parties, the Opposite Parties issued the policy to the Complainant. This is the Personal Accident Insurance Policy.  Further alleges that  unfortunately, during the policy period, the Complainant got Comminuted fracture Proximal Humerus Fracture Neck of Femur on 23.03.2021 and he immediately brought to the nearest hospital  Orthopedic Department of  Gomti Thapar Hospital, G.T.Road, Moga where he was diagnosed and CT Scan was done  and fractures of head of humerus, greater & leaser Tubercles was found and the treating doctor made treatment and operated upon the Complainant with Orif with Philos Plate and Hemiortheroplasty right hip (Modular Bipolar Nebula) was done and the Complainant was discharged on 03.04.2021. The treating doctor charged Rs.1,55,000/- from the Complainant. Besides this, the Complainant also spent other expenses on medicines, tests amounting to Rs.32,131/-.  After discharge from the hospital, the Complainant lodged the claim No.36110042210190000001 of Rs.1,87,131/- in the second week of April, 2021 with the Opposite Parties under the policy in question for the reimbursement of his claim and also completed all the formalities and submitted the requisite documents to the Opposite Parties as per their requirement and also took the bank account of the Complainant for making the claim amount. The Opposite Parties thoroughly gone through the claim of the Complainant and admitted the claim of the Complainant, but lateron made the part payment of the claim amounting to Rs.75,600/- only on 13.09.2021 in the saving bank account of the Complainant without the consent of the Complainant. In this  regard,  the Complainant immediately approached the office of the Opposite Parties to know the reason for retaining the remaining amount of the claim amount, but the officials of the Opposite Parties kept mum and did not disclose any reason for retaining the remaining genuine claim of the Complainant. Thereafter, the Complainant visited the office of the Opposite Parties on so many occasions   and made  requests to make the remaining amount of his claim. Initially, the Opposite Parties lingered on the matter, but at last, the Opposite Parties refused to admit  the rightful claim of the Complainant without explaining any reason.  In view of this, there is deficiency in service on the part of the Opposite Parties and they have illegally repudiated the genuine and legal claim of the complainant  without explaining any reason. Not only this, the Complainant has nowhere signed any discharge voucher for the receipt of part payment which the Opposite Parties have arbitrarily made directly in his account.   Moreover, as stated above, the Complainant has been purchasing the medi-claim policies continuously from the Opposite Parties from the last more than 11 years, and till date paid more than 1.50 lakhs to the Opposite Parties on account of premiums which is obvious for the complainant to claim for sum assured in case of reimbursement of medical expenses incurred by him because since about 2010, a period  of 11 years  has already elapsed and the complainant was competent to claim the sum assured vide insurance policy, wherein the insured sum was to the tune of Rs.3 lacs each to the policy holders under the policy in question. There is no dispute inter se parties regarding the expenses incurred by the complainant on the treatment for which the complainant has also produced on record. In view of this, there is deficiency in service on the part of the Opposite Parties and they have illegally retained the balance  genuine and legal claim of the complainant without explaining any reason. Not only this, , at the time of issuing the policy in question as mentioned above, alongwith this cover note, the Opposite Parties never issued any terms and conditions of the policy documents. As such, the alleged  terms and conditions, particularly the exclusion clause of the policy in question is not binding upon the insured. That regarding the aforesaid medical reimbursement of his genuine claim regarding and the Complainant is suffering in the hands of the Opposite Parties from the date of  submission of his claim in the second week of April, 2021 and till date, the Opposite Parties did not dare to bother  and in this way, the Complainant  also remained under mental tension and harassment. Thereafter, the complainant approached the Opposite Parties time and again for the reimbursement of his  genuine remaining medical claim, but  the Opposite Parties  flatly refused to reimburse the total claim of the complainant, as such, there is deficiency in service on the part of the Opposite Parties.      Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Parties may be directed to reimburse the remaining medical claim of the complainant amounting to Rs. 1,11,531/-  bill alongwith future interest  @ 18 % per annum from the date of discharge from the hospitals till its actual realization.

 b)     The amount of Rs.20 lakhs be allowed to be paid by the opposite parties on account of compensation due to permanent disability, loss of earning, loss of earning capacity, loss of future prospects, expenditure on medicine, conveyance and special diet, loss of social status, mental agony, for pain and suffering past, present and future life, expenditure on attendant, loss of enjoyment of future life entertainment of guests etc. as well as due to mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.50,000/- may please be allowed.

d)      And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Parties appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint of the complainant is liable to be dismissed. It is submitted that immediately on receipt of the claim, it was duly registered and entertained. Mr.Piara Singh was deputed for investigating and he submitted his report dated 08.09.2021 and recommended the claim of the complainant for approval of Rs.75,600/- as per the terms and conditions of the policy and accordingly, said amount of Rs.75,600/-  has been paid to the complainant via NEFT as full and final settlement. The complainant has duly received the said amount as full and final settlement and now  nothing is due against the Opposite Parties. On merits, the Opposite Parties took almost same and similar pleas as taken up by them in the preliminary objections.  Hence, it is prayed that the   complaint may be dismissed with costs.    

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents  Ex.C2 to Ex.C45 and  closed the evidence on behalf of the complainant.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties also tendered into evidence the affidavit of Smt.Sunita Mahajan, Sr.Divisional Manager Ex.OP1, affidavit of Piara Singh Ex.OP2  alongwith copies of documents Ex.R-1 to Ex.R20 and closed the evidence.

5.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties   have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file.

7.       The main contention of the complainant is that the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

In this regard, Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

8.       For the sake of arguments, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by the Opposite Parties  is that  as per the terms and conditions of the policy, the amount as assessed by the surveyor has been directly paid in the account of the complainant through NEFT and hence,  the  complainant is not entitled to the remaining claim as claimed.  But the Opposite Parties No-Insurance Company 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? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law 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 within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

9.       We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the ld.counsel for the Opposite Parties is that immediately on receipt of the claim, it was duly registered and entertained. Mr.Piara Singh was deputed for investigating and he submitted his report dated 08.09.2021 and recommended the claim of the complainant for approval of Rs.75,600/- as per the terms and conditions of the policy and accordingly, said amount of Rs.75,600/-  has been paid to the complainant via NEFT as full and final settlement. The complainant has duly received the said amount as full and final settlement and now  nothing is due against the Opposite Parties. On the other hand, ld.counsel for the complainant has denied this fact with regard to receipt of claim amount as full and final settlement,  because no discharge voucher has ever been signed by the complainant. Rather the Opposite Parties took the account of the complainant on the excuse that they have to make the entire claim amount  in his account and on such assurance, the complainant has given the account number to the Opposite Party in which the Opposite Parties made the part payment through NEFT, but there is no such discharge voucher placed on record by the Opposite Parties. The Complainant has nowhere signed any discharge voucher for the receipt of part payment which the Opposite Parties have arbitrarily made directly in his account.  Moreover, recently Hon’ble National Consumer Disputes Redrssal Commission, New Delhi in case  Prabha Tyagi vs National Insurance Co. Ltd. REVISION PETITION NO. 568 OF 2017 (Against the Order dated 07/12/2016 in Appeal No. 215/2013 of the State Commission Uttaranchal) Decided on  on 18 September, 2018 has clearly held that even if the discharge voucher is signed by the policy holder even, still the  execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law. The relevant portion of the judgement is reproduced as under:-

“The learned counsel further argued that execution of discharge voucher for settlement of earlier claim of Rs.1,00,000/- does not debar the complainant to pursue his remaining claim of Rs.1,00,000/- in a court of law like the consumer forum.  In this regard, the learned counsel relied upon the following pronouncements:-

(1)     Ramdas Sales Corporation Vs. New India Assurance Company Ltd., III (2016) CPJ 40 (NC).  It has been held that:-

"3.  The learned counsel for the complainant has placed before us a Circular No.IRDA/ NL/CIR/Misc/ 173/09/2015 dated 24.09.2015 issued by Insurance Regulatory Development Authority of India (IRDA) to all the General Insurance Companies, with regard to the use of discharge vouchers in settlement of claim.  The said circular reads as under:-

"The Insurance Companies are using 'discharge voucher' or "settlement intimation voucher" or in some other name, so that the claim is closed and does not remain outstanding in their books.  However, of late, the Authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policyholders extinguish their rights to contest the claim before the Courts.

While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurer shall not use the instrument of discharge voucher as a means of estoppel against the aggrieved policy holders when such policy holder approaches judicial fora. Accordingly insurers are hereby advised as under:

Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts.  However, it would be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.

All insurers are directed to comply with the above instructions."

10.     Not only this, Hon’ble Supreme Court of India in this regard in case United India Insurance Vs. Ajmer Singh Cotton & General Mills & Ors., II (1999) CPJ 10 (SC) has held as under:-

"The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered.  Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like.  If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.  However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the Commission would be justified in granting the appropriate relief under the circumstances of each case.  The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier.      ............................." 

11.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding remaining genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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 Dharmendra Goel 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.  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.Usha Yadav & 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.

12.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the remaining claim of the complainant.

13.     Now come to the quantum of compensation. Due to deficiency in service on the part of the Opposite Parties, the complainant has prayed Rs.20 lakhs as compensation on this account as well as on account of mental tension and harassment caused to him on the ground that  policy in question was Personal Accident Insurance (Individual) policy and as such, the Opposite Parties are liable to make good the loss suffered by the Complainant due to permanent disability, loss of earning, loss of earning capacity, loss of future prospects, expenditure on medicine, conveyance and special diet, loss of social status, mental agony, for pain and suffering past, present and future life, expenditure on attendant, loss of enjoyment of future life entertainment of guests etc.  But we are of the view that the claim for compensation to the tune of Rs.20 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.50,000/- and we award the same accordingly.

14.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Parties-Insurance Company to reimburse the remaining medical bills of the complainant  of Rs.1,11,531/- (Rupees one lakh eleven thousands five hundred thirty one only) to the complainant.  Opposite Parties are also directed to pay the lump sum compensation to the complainant to the tune of Rs.50,000/- (fifty thousands only) on account of harassment, mental tension  and litigation expenses.  The compliance of this order be made by the Opposite Parties-Insurance Company   within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.

Dated:21.07.2022.