Sri Subhra Sankar Bhatta, Presiding Member

This Appeal has been preferred at the behest of Mr. Sugata Shankar Roy under Section 41 of the Consumer Protection Act, 2019 challenging the judgment and order dated 16^th September, 2021 passed by the Ld. Additional District Consumer Disputes Redressal Commission, Rajarhat (New Town), 24 Parganas, North, (herein after referred to as “District Commission” for short) in connection with complaint case no. 239/2021 whereby Ld. District Commission was pleased to dismiss the complaint case being not admitted at the stage of admission hearing.  The present Appellant and the Respondent were respectively the Complainant and Opposite Party before the District Commission.

The brief facts of the complaint case, is that, the Complainant was a Policy Holder under the Opposite Party/Insurance Company (Respondent herein) at the relevant point of time and a sum of Rs.4,00,000/- was insured as Happy Family Floater-2015 Policy  Plan Type- Silver Plan being policy no. 311202/48/2021/60 for self, wife viz. Tias Roy and son Swastik Roy for the coverage period from 7^th April, 2020 to 6^th April, 2021.  The Complainant paid the premium amount of Rs.14012/-. It is worthy to note here that the Complainant had individual medical insurance policy for self since 1997 and later for self and spouse since 2002 and thereafter for self, wife and son since 2003 with the OP/United Insurance Company Ltd., Brabourn Road Branch.  Subsequently, the individual medical insurance policies were migrated to the Opposite Party/Insurance Company w.e.f. April, 2012.  The Complainant had also individual mediclaim policy being policy no. 311202/48/2013/8 having a sum insured of Rs.1,00,000/- for the period from 7^th April, 2012 to 6^th April, 2013 with the Opposite Party.  Later on the sum insured was increased to Rs. 3,00,000/- for the period from 7^th April, 2015 to 6^th April, 2016 and thereafter, the sum insured was renewed to Rs.4,00,000/- and the premium had been paid regularly and the policy was duly renewed from time to time.  In the meantime the individual medical insurance policy was migrated to Happy Family Floater- 2015 and accordingly policy was issued by the Opposite Party.

Further case of the Complainant, is that, the Complainant/Insured had been suffering from high fever and mild cough on 23^rd September, 2020 and he was under the treatment of Dr. Syamasis Bandyopadhyay and was diagnosed Covid-19 positive on 26^th September, 2020.  On 2^nd October,2020 the Complainant was admitted at Appollo Glengeagles Hospital, Kolkata on 2^nd October, 2020 as advised by the Doctor and discharged therefrom on 11.10.2020.  The Complainant informed the factum of admission at the Hospital on 3^rd October, 2020 through electronic mail at 10.27 a.m. to the O.P.  The Opposite Party sent an electronic mail on 8^th October, 2020 regarding registration of the claim.  The Complainant also submitted the claim form along with the letter dated 11^th November, 2020, copy of Voters I/D Card, PAN card, Cancelled cheque leaf and other documentary evidence in original as per norms.  In reply the Opposite Party issued a letter on 2^nd December,2020 with the request to the Complainant to submit the advices for all the investigation during hospitalization advices for hospitalization, advices for medicines purchased during hospitalization and advices towards the money receipt submitted for pre and post hospitalization expenses, clinical history sheets, daily treatments records from Appollo Glengeagles Hospital. 

Further case of the Complainant is that the Opposite Party through electronic mail dated 22^nd January, 2021 intimated the Complainant that his claim against the policy no. in question stands approved for Rs.1,09,318/-.  It has been alleged that the Opposite Party/Insurance Company intentionally and deliberately avoided to pay the balance amount for reasons best known to them.  It has been further alleged that the Opposite Party/Insurance Company has adopted unfair trade practices towards a Consumer.  Under such compelling circumstances the Complainant was compelled to file the complaint petition before the Ld. District Commission praying for relief/reliefs as sought for in the prayer portion of the petition of complaint.

On 16^th September, 2021 the complaint case was fixed for admission hearing.  After hearing the Ld. Advocate of the Complainant and on perusal of the materials on record, the Ld. District Commission was pleased to dismiss the complaint case as being not admitted.  Ld. District Commission was pleased to observe that the cause of action as stated in the complaint petition arose on and from 22.01.2021 as and when the Complainant was informed though e-mail about the approval of the claim to the extent of Rs.1,09,318/-.  It was further observed that in the letter dated 22.01.2021 it has been stated that this is preliminary intimation of claim, the detail communication in this regard will be sent shortly by the serving office.  It was also held that the imports of the said letter cannot be said to be purely negative one and not that the claim of the Complainant for the rest amount of Rs.45,015.23/- was turned down by the Insurer.

Being aggrieved and dissatisfied with the above observations and ultimate conclusion of the Ld. District Commission the Complainant as Appellant has preferred the present appeal on various grounds as highlighted in the body of the memorandum of appeal.  It has been contended that the Ld. District Commission failed to exercise the jurisdiction vested upon by not admitting the Consumer Complaint of the Complainant; that the Ld. District Commission erred in law by observing that the Complainant`s petition of complaint is at premature stage and as such not entertainable one; that the impugned order of the Ld. District Commission is arbitrary, illegal and liable to be set aside.  On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned order.

POINTS FOR DETERMINATION:

1) Whether the Ld. District Commission has committed any error or irregularity or illegality in passing the impugned order?

2) Whether the impugned order passed in the complaint case no. 239 of 2021 can be sustained in the eye of law?

 3) Whether the Ld. District Commission was justified in the observations and ultimate conclusion? 

4) Whether the impugned order deserves interference of this Appellate Commission?

DECISIONS WITH REASONS:

All the above points are taken up together for the convenience of discussion and in order to avoid unnecessary repetitions.  Moreover, all the points are interrelated and interlinked with each other.

During the course of hearing Complainant Sri Sugata Shankar Roy in person has drawn our attention to page no. 188 of the Memo of Appeal and vehemently argued that the Oriental Insurance Company by their letter dated 08.01.2021 has repudiated the claim of the Appellant/Complainant with the endorsement non-admissible one.   He has fairly admitted the fact that such repudiation of the claim has been intimated to the Appellant/Complainant. He has further submitted that the observation and ultimate conclusion of the Ld. District Commission cannot sustain in the eye of law.  According to the Ld. Counsel the complaint petition is certainly entertainable and maintainable in the eye of law as the claim of the Appellant/Complainant has been repudiated by the Insurance Company. He has prayed for allowing the present appeal after setting aside the impugned order. 

On the contrary, Ld. Counsel appearing for the Respondent/Insurance Company has submitted that the Respondent/Insurance Company has considered the remaining claim of the Appellant/Complainant and repudiated the same on the very ground of non-admissible amount. He has also submitted that the Appellant/Complainant is not entitled to get any relief as sought for in the petition of complaint.  He has prayed for outright dismissal of the present appeal with costs.

The letter dated 08.01.2021 issued by the Branch Manager, Oriental Insurance Company, Salt Lake Branch Office, goes to establish that the remaining claim of the Appellant/Complainant was considered and repudiated on the very ground of non-admissible expenses.  The details of such non-admissible expenses have been given in the body of the said letter dated 08.01.2021.  In the petition of complaint at paragraph no. 20 the Appellant/Complainant has categorically mentioned that the cause of action for filing the present complaint firstly arose on 22^nd January, 2021 when the Opposite Party through its electronic mail agreed to make payment of Rs.1,09,318/- in place of Rs.1,54,333/-.  It has been specifically contended by the Complainant that the cause of action is a recurring and continuous one till the balance medical expenses amounting to Rs.45015.23/- is paid by the Opposite Party.  In the impugned order Ld. District Commission was pleased to observe that the imports of the letter dated 22.01.2021 cannot be said to be purely negative one.  Not that the claim of the Complainant for the rest amount i.e. Rs.45,015.23/- was turned down by the Insurer.  Ld. District Commission was further pleased to hold that the Complainant had no occasion to file this case at this premature stage.  On such very ground Ld. Commission below was pleased to dismiss the complaint case as being not admitted. It is crystal clear from the letter dated 08.01.2021 issued by the Branch Manager, Oriental Insurance Co. Ltd. that the claim of the Appellant/Complainant was repudiated by the Opposite Party/Respondent. Such repudiation of the balance claim of the Complainant goes to prove that the Complainant/Appellant has sufficient cause of action to bring the present complaint petition against the OP/Respondent. Thus being the position we are constrained to hold that the cause of action for filing the petition of complaint already arose on 08.01.2021 i.e. the date of repudiation of the remaining claim of the Appellant/Complainant.  Moreover, both sides have admitted such issuance of repudiation letter by the Respondent/Insurance Company. The Ld. District Commission did not consider such aspects at the time of passing the impugned order.   Such vital aspect ought to be considered for effective adjudication.

Considering the attending circumstances and having considered the submissions of both sides we hold and firmly hold that the impugned order of the Ld. Commission below is absolutely wrong and does not sustain in the eye of law.  There are gross irregularity and illegality in the impugned order.  In our considered view the impugned order certainly deserves interference of this Appellate Authority.

Resultantly, the present appeal succeeds.

It is, therefore,

O R D E R E D

That the present First Appeal being no. 148/2022 be and the same is allowed on contest but considering the circumstances without any order as to costs.

The impugned order dated 16^th September, 2021 passed in connection with complaint case no. CC/239/2021 is hereby set aside.

Let the complaint case be admitted.

Ld. District Commission is directed to proceed with the complaint case in accordance with law.

Thus, the present appeal stands disposed of.

Let a copy of this order be supplied to the parties free of cost.

Registry is directed to do the needful.

Note accordingly.