Order by:
Sh.Amrinder Singh Sidhu, President
1. Sh.Swaran Singh, complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he is getting the medi-claim policy from the Opposite Party No.1 from the last 20 years till 2018-2019 and last policy bearing No. 36110034181600000003 was purchased by the Complainant from the Opposite Parties valid w.e.f. 08.07.2018 to 07.07.2019 with complaint ID No.2H3628800. The Complainant alleges that on 07.11.2018 he approached Dr.Rajeev Gupta care of Savera Hospital, Amritsar Road, Moga for check-up his right eye and the doctor conducted medical tests and thereafter advised for surgery. On 10.11.2018 the Complainant got surgery of his right eye from said doctor and discharged on 11.11.2018 and the treating doctor charged Rs. 26,443/-. Thereafter, the Complainant lodged the claim of his treatment with the Opposite Parties for the reimbursement of his claim, but the Complainant astonished to note that the Opposite Parties paid Rs.10,000/- only in his bank account directly out of the total claim amount of Rs.26,443/-. The Complainant immediately approached the Opposite Parties for the reimbursement of his remaining claim amount, but the Opposite Parties refused to admit the rightful 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.
- The Opposite Parties may be directed to reimburse the remaining medical claim of Rs.16,443/- and also to pay Rs.50,000/- on account of compensation due to mental tension and harassment caused by the complainant.
b) 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 is not maintainable; that the Complainant has not complied with the terms and conditions of the insurance policy. Further averred that the Complainant has go himself insured under Senior Citizen Medi Claim Policy and as per the terms of the policy, the Opposite Parties have already paid Rs.10,000/- to the Complainant and hence, the Complainant has got no cause of action to file the present complaint. The Complainant has got his cataract of right eye operated on 10.11.2018 from Dr.Rajiv Gupta C/O Savera Hospital, Amristar Road, Moga and as per the terms and condition of the policy No. 2.1.1, the claims in regard of the illness/ surgery of cataract with imported foldable lens, the maximum charges inclusive of room/ ICI/ OT charges/ Surgeons, Anaesthetist, Doctors Fees, medicines, internal appliances and other charges incurred during hospitalisation period are Rs.10,000/- and the said amount has already been paid to the Complainant. Hence, there is no deficiency in service on the part of the answering Opposite Parties. It is prayed that the complaint against Opposite Parties may be dismissed with costs.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CW-1, copy of policy Ex.C1, copies of medical bills, tests etc. Ex.C2 to Ex.C9, copy of aadhar card Ex.C10 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Sh.Jaswant Singh Dhaap Manager Ex.Ops1 alongwith copies of documents Ex.Ops2 and Ex.Ops3 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties, perused the written submissions filed by both the parties and also gone through the documents placed on record.
6. During the course of arguments, Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the Complainant is getting the medi-claim policy from the Opposite Party No.1 from the last 20 years till 2018-2019 and last policy bearing No. 36110034181600000003 was purchased by the Complainant from the Opposite Parties valid w.e.f. 08.07.2018 to 07.07.2019 with complaint ID No.2H3628800. The Complainant alleges that on 07.11.2018 he approached Dr.Rajeev Gupta care of Savera Hospital, Amritsar Road, Moga for check-up his right eye and the doctor conducted medical tests and also advised him for surgery. On 10.11.2018 the Complainant got surgery from said doctor and discharged on 11.11.2018 and the treating doctor charged Rs. 26,443/-. Thereafter, the Complainant lodged the claim of his treatment with the Opposite Parties for the reimbursement of his medical bills, but the Complainant astonished to note that the Opposite Parties paid Rs.10,000/- only in his bank account directly out of the total claim amount of Rs.26,443/-. The Complainant immediately approached the Opposite Parties for the reimbursement of his remaining claim amount, but the Opposite Parties refused to admit the rightful claim of the Complainant, as such, there is deficiency in service on the part of the Opposite Parties. It is further contended that at the time of purchasing the policy in question or thereafter, the Opposite Parties never issued any such terms and conditions nor the Opposite Parties has produced any such document when and through which mode they issued or delivered such terms and conditions to the Complainant, so said terms and conditions are not binding upon the legal rights of the Complainant. Further contended that the written version filed on behalf of the Opposite Party can not be treated as defence on behalf of the Opposite Parties because the said written version are not filed by an authorized person, because 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, ld.counsel for the Complainant has relied upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.”
7. On the other hand, ld.counsel for Opposite Parties has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the Complainant has go himself insured under Senior Citizen Medi Claim Policy and as per the terms of the policy, the Opposite Parties have already paid Rs.10,000/- to the Complainant and hence, the Complainant has got no cause of action to file the present complaint. The Complainant has got his cataract of right eye operated on 10.11.2018 from Dr.Rajiv Gupta C/o Savera Hospital, Amristar Road, Moga and as per the terms and condition of the policy No. 2.1.1, the claims in regard of the illness/ surgery of cataract with imported foldable lens, the maximum charges inclusive of room/ ICI/ OT charges/ Surgeons, Anaesthetist, Doctors Fees, medicines, internal appliances and other charges incurred during hospitalisation period are Rs.10,000/- and the said amount has already been paid to the Complainant. Hence, there is no deficiency in service on the part of the Opposite Parties.
8. It is not disputed that the Complainant got the medi claim policy in question from the Opposite Parties and during the policy period, the Complainant got his surgery of the right eye and it is also not disputed that the Complainant paid Rs. 26,443/-, copies of the medical bills and tests are placed on record as Ex.C2 to Ex.C8 which are nowhere denied by the Opposite Parties. But there is only one ground on which the Opposite Parties have repudiated the claim of the Complainant that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the reimbursement of the claim more than Rs.10,000/- and said amount has already been paid to the Complainant. But the Opposite Party 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 Parties, it is clear that Opposite Parties have 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. Ld.counsel for the complainant has further contended 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 Parties. He has relied upon the 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, it was 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.”
Recently our own 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.
10. In such a situation, the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters 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. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. In view of the above discussion, we are of the opinion that the Opposite Parties have wrongly and illegally repudiated the remaining claim of the complainant. Consequently, we allow the complaint and the Opposite Parties are directed to reimburse the remaining medical bill of the Complainant amounting to Rs.16,443/- (Rupees sixteen thousands four hundred and forty three only) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 05.12.2018 till its actual realization. Opposite Parties are also directed to pay the lump sum compensation to the complainant to the tune of Rs.5,000/- (Rupees five thousands only) on account of harassment, mental tension and litigation expenses. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
Dated: 12.03.2021.
