EX-PARTE O R D E R
PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant had taken a Mediclaim Policy from Opposite Party bearing Policy No.111700/48/03/02984 which was due for renewal. On 13/07/2004 the Complainant made payment of premium of Rs.3,526/- by cheque no.198683 dtd.01/07/04 drawn on Canara Bank. The said cheque was personally collected by the Development Officer of the Opposite Party on the same day.
2) As per the Complainant, name of the company was not pointed on the renewal notice. So in the aforesaid cheque the name of “Payee” was kept blank. However, said cheque was delivered to the Opposite Party on 01/07/04 and was scrolled vide no.1053 dtd.08/07/04. The Opposite Party accounted it on 16/07/04 vide their receipt no.124327.
3) It is contended that the aforesaid cheque was delivered to the Opposite Party without writing name of the company and it was scrolled. It was expected that Opposite Party should have either refused to accept the cheque or should have put the payee name on the cheque. However, without writing payees name on the said cheque it was sent to the banker for collection. In response to the aforesaid premium cheque, Opposite Party renewed mediclaim policy of the Complainant w.e.f.13/07/2004 to 12/07/2005 vide their new mediclaim policy no.111700/48/04/76549.
4) It is submitted that due to the gross negligence of the staff of the Opposite Party the cheque which was given by the Complainant without writing the name of the payee was sent for collection to the banker and as such, it was dishonored by the bank since payees name was missing.
5) As aforesaid cheque was dishonored, at the request of Opposite Party the Complainant issued fresh cheque with clear cut understanding with all benefit of renewal of mediclaim policy will be given to the Complainant and the policy will be deemed to be renewed from 13/07/2004. However, since the computer was not in a position to generate back dated policy, new policy was issued from 28/07/2004 and the Opposite Party has given the benefit of Cumulative Bonus to the Complainant.
6) It is submitted by the Complainant that claim submitted by him for hospitalization expenses of his son during period from 22/07/04 to 01/09/04 was passed by TPA – Opposite Party No.2 vide their letter dtd.25/01/06. Opposite Party No.2 had settled claim for Rs.30,410/- vide their letter dtd.25/01/06. However, inspite of assurance given by the Officers of Opposite Party No.1, Opposite Party No.1 repudiated the claim even though fresh renewal policy was issued in favour of the Complainant.
7) Aggrieved by the decision of the Opposite Party of rejection of claim, the Complainant approached the Insurance Ombudsman. In the order dated 16/03/2009 passed by the Insurance Ombudsman, Insurance Ombudsman has held that Opposite Party was negligent however, did not allow claim of the Complainant on the technical ground. Therefore, the Complainant has filed this complaint before this Forum. The Complainant has prayed to direct Opposite Party to reimburse hospitalization expenses of Rs.30,410/- to the Complainant. He has requested to direct Opposite Party to pay Rs.10,000/- as compensation for mental torture and harassment. He has also prayed for cost of the complaint.
8) Alongwith complaint the Complainant has produced documents as per list of documents. The Complainant had filed his affidavit in support of the complaint.
9) The Opposite Parties Nos.1& 2 were duly served with the notice of this complaint. However, inspite of serve of this notice both the Opposite Parties have not appeared before this Forum, therefore, ex-parte order was passed against Opposite Party No.1 & 2 on 07/05/2010.
10) The Complainant has filed written argument and alongwith written argument the Complainant has produced documents regarding settlement of mediclaim, copy of the cheque of Rs.30,410/- issued by the authorized officer of the Opposite Party in favour of the Complainant, photo copy of the order of Insurance Ombudsman dtd.16/03/09, etc. Heard oral argument of Mr.Subhash V. Chaubal, Ld.Advocate for the Complainant.
15) Following points arises for our consideration and our findings thereon are as under –
SR.NO. | POINTS | FINDINGS |
1. | Whether the Complainant has proved deficiency in service on the part of Opposite Party ? | Yes. |
2. | Whether the Complainant is entitled to recover expenses of hospitalization of Rs.30,410/- and compensation for mental harassment and cost of this proceeding form Opposite Party ? | As per final order. |
Reasons :-
Point No.1 :- Following facts are undisputed facts – that the Complainant has been availing mediclaim policy from the Opposite Party since 1997, covering himself, his wife and son. Mediclaim Policy was renewed from time to tome on payment of premium. As per the Complainant he had issued a renewal premium cheque to renew his mediclaim policy for the period from 13/07/04 to 12/07/05 and delivered said cheque to the Development Officer of Opposite Party on 01/07/04. The said cheque was scrolled by Opposite Party vide their scrolled no.1053 dtd.08/07/04. The Complainant had produced receipt of premium cheque issued by the Opposite Party No.1 for renewal of his mediclaim policy from the period 13/07/04 to 12/07/05. It is at Exhibit-“3/2”.
Heard oral argument of Ld.Advocate Mr.Chaubal on behalf of the Complainant. It is submitted that after receipt of premium, Opposite Party issued renewed mediclaim policy no.111700/48/03/02984 which was for the period of 13/07/04 to 12/07/04. The Complainant has produced photo copy of the aforesaid policy which is at Exhibit-“3/3”. Is appears from the contents of the aforesaid policy that the said policy was issued by the Opposite Party to the Complainant Mr.Vinod Gidwani, his son Mr.Madan and wife S.V.Gidwani.
It is the case of the Complainant that his son Mr.Madan was hospitalized during the period of aforesaid renewed mediclaim policy. After discharge from the hospital the Complainant submitted claim form for the reimbursement of the hospital expenses. Opposite Party No.2 is a T.P.A. of Opposite Party No.1 who settled the claim at Rs.30,410/- and communicated its decision to the Complainant vide letter dtd.25/01/06. The Complainant has produced photo copy of the said letter alongwith written argument. It appears from the letter dtd.25/01/06 addressed to the Complainant by the Raksha T.P.A. that Raksha T.P.A. informed the Complainant about the settlement of mediclaim at Rs.30,410/- and accordingly cheque dtd.25/01/06 bearing no.063377 was issued in favour of the Complainant. The Complainant has produced photo copy of the said cheque alongwith written argument.
It is submitted by the Ld.Advocate for the Complainant that on 01/07/2004 Development Officer of the Opposite Party had approached the Complainant for collecting cheque for renewal of policy. In the renewal notice sent to the Complainant, name of the company was not written. Therefore, Complainant had not written the name of the payee on the said premium cheque and the space meant for payee name was kept blank. Said cheque was scrolled by the Opposite Party on 08/07/04. Officer of the Opposite Party without mentioning name of the payee submitted the cheque for realization and as payees name was not mentioned in the cheque, the bank dishonored the cheque. In support of the aforesaid contention the Complainant has produced letter dated.10/03/2006 of Canara Bank regarding dishonor of the aforesaid cheque for Rs.3,526/-. It is written in the said letter by the Canara Bank “on verification of our records, we find that the subject cheque was returned for the following reasons on 22/07/2004” ‘payees name missing’. It is submitted that cheque in question was not dishonored on the ground of insufficient fund but it was rejected on the ground that payees name was not written. According to the Ld.Advocate of the Complainant, the said cheque was given by the Complainant to the Opposite Party as premium for renewal of mediclaim therefore, it was necessary on the part of Opposite Party to mention their name as payee before submitting the cheque for collection to the bank. It is vehemently said that payment cheque was dishonored by the bank because of negligence of the Officer of the Opposite Party No.1. However, prior to that the Opposite Party had issued mediclaim policy w.e.f.13/04/06 to 12/04/07 and also given benefit of Cumulative Bonus to the Complainant. After dishonor of the cheque the Opposite Party cancelled the renewal policy. Before cancellation of the said policy Opposite Party No.2 had issued aforesaid cheque of Rs.30,410/- to the Complainant. After cancellation of the policy at the request of Opposite Party No.2 the Complainant refunded amount of Rs.30,410/- by cheque dtd.18/02/06. It is submitted that Opposite Party have wrongly repudiated aforesaid claim of the Complainant even though fresh renewal policy was issued in favour of the Complainant therefore, the Complainant had approached Insurance Ombudsman.
The Complainant has produced photo copy of the order dtd.16/06/09 of the Insurance Ombudsman and referred to the following observations made by the Insurance Ombudsman submitting that Insurance Ombudsman has observed that the premium cheque was dishonored due to the negligence of the Insurance Company. Ld. Insurance Ombudsman in his order has made following observations that “on receipt of any proposal ….. towards their customers.
It is submitted that inspite of making aforesaid observations Ld.Insurance Ombudsman has rejected application of the Complainant on technical ground observing that there was no insurance contract on the date of hospitalization. It is submitted by Ld.Advocate for the Complainant that Insurance Ombudsman had not taken into consideration the fact that after accepting cheque dtd.070/4/04 for premium for renewal of policy, Opposite Party had renewed mediclaim policy w.e.f.13/07/04 to 12/07/04. Copy of which is renewed produced by the Complainant at Exhibit-“3/3”.
It is clear from the evidence on record that premium cheque dtd.01/07/04 issued by the Complainant towards premium for renewal of policy in favour of the Opposite Party No.1which is dishonored by the bank because of the negligence of Opposite Party No.1. Before dishonor of the cheque Opposite Party No.1 had renewed policy for the period from 13/07/04 to 12/07/05. Claim for reimbursement of hospitalization of son of the Complainant was also settled by the Opposite Party No.2 – Raksha T.P.A. at Rs.30,410/- and cheque of the said amount was given to the Complainant. After dishonor of the cheque Opposite Party cancelled renewed policy and asked the Complainant to refund the amount. Accordingly amount was refunded by the Complainant. It is to be noted that again Complainants policy was renewed on payment of premium but that time computer was not in a position to generate back dated policy so renewed policy was issued from 28/07/04. Considering the aforesaid fact it appears that even though cheque was dishonored due to the negligence of Opposite Party No.1, Opposite Party No.1 has rejected the claim of the Complainant without taken into consideration aforesaid facts and rejection of claim on such ground amounts to deficiency in service on the part of Opposite Parties. Therefore, we hold that the Complainant has proved deficiency in service on the part of Opposite Parties Nos.1 & 2. In the result we answer point no.1 in the affirmative.
Point No.2 :- As discussed above the Complainants claim which was already settle by T.P.A. for Rs.30,410/- was wrongly rejected by the Opposite Party and the Complainant was forced to refund the said amount. Therefore, we think it just to direct Opposite Parties to pay Rs.30,410/- to the Complainant.
The Complainant has prayed for damages for mental torture and harassment. For the reason discussed above it appears that Opposite Party behaved negligently and inspite of their own wrong forced the Complainant to refund amount of Rs.30,410/- which was already sanctioned and paid to him. Considering the facts and circumstances of the case we think it just to direct Opposite Parties to pay Rs.5,000/- as compensation for mental torture and agony and Rs.1,000/- as cost of this proceeding to the Complainant. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, we pass following order -
O R D E R
i. Complaint No.184/2009 is partly allowed.
ii. Opposite Parties Nos.1 & 2 shall jointly and/or severally pay Rs.30,410/- (Rs.Thirty Thousand Four Hundred Ten Only) to the Complainant.
iii.Opposite Parties Nos.1 & 2 shall jointly and/or severally pay Rs.5,000/ (Rs.Five Thousand Only) as compensation for mental torture and harassment and
Rs.1,000/-(Rs.One Thousand Only) as cost of this complaint to the Complainant.
iv.Opposite Party Nos.1 & 2 shall comply with the order within period of 1 month from the date of receipt of this order. In case of failure to comply with the
order, the Opposite Party Nos.1 & 2 shall be liable to pay interest @ 9 % p.a. on Rs.30,410/- (Rs.Thirty Thousand Four Hundred Ten Only) from the date of
expiry of stipulated period.
v.Certified copies of this order be furnished to the parties.
