Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that on the allurement of the agent of the Opposite Parties, the Complainant purchased mediclaim policy bearing No.233902/48/2018/6298 valid for the period w.e.f. 13.02.2018 to 12.02.2019 for the sum insured Rs.2 lakhs against the payment of premium of Rs.5281/-. The Complainant further alleges that in the month of July, 2018 he suffered from some immediate health problem and was admitted in emergency on 10.07.2018 with severe paid in lower back, radiant to lower limbs and he was operated for PIVD Laminectomy L4, L5, S1 and discharged on 28.07.2018. During this period, the Complainant spent huge amount on the medical treatment against bill issued by KGM Hospital, Tagore Hospital and Punjab Artificial Limps Centre, amounting to more than Rs.1,03,915.92 paisa on account of hospital charges, medical bills, diagnosis expenses and other expenses. Thereafter, the Complainant submitted all the original bills and other relevant documents to Opposite Parties and requested to release the claimed amount, which was spent by the Complainant during hospitalization. Initially, the Opposite Parties always lingered on the matter by making lame excuses, but lateron refused to admit the rightful claim of the Complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may please be directed to make the payment of Rs.1,03,915.92 paisa spent on the medical treatment and other expenses.
b) To pay Rs.50,000/- to the complainant on account of mental tension, torture and harassment and deficiency in service and also to pay Rs.11,000/- as litigation expenses and any other relief to which the Complainant is entitled may please be granted.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version on the ground that the complaint of the complainant is not maintainable; that the complainant is estopped by his own act and conduct; that the Complainant has got no locus standi to file the present complaint and this District Consumer Commission, Moga has no jurisdiction to try and decide the present complaint and that the complainant has concealed the material facts from this District Consumer Commission. In fact, undisputedly the Complainant got the medi claim policy bearing No.233902/48/2018/6298 for the period 13.02.2018 to 12.02.2019 from the Opposite Parties. The terms and conditions of the insurance policy are given to the Complainant. The Complainant submitted two claims to the Opposite Parties and first claim is regarding Complainant’s hospitalisation on 14.07.2018 for Rs.5600/-. The Opposite Parties immediately forwarded the documents to Raksha Health Insurance TPA Private Limited to process the claim and as per their claim dated 04.12.2018 and 07.12.2018 it is recommended that “On investigation it was found that no record was maintained by the hospital and in the absence of record, the authenticity of the claim is questionable, so the claim is recommended to be non payable. Hence, the first claim of the Complainant was repudiated vide letter dated 29.1.2019 as per clause 4.10 of the terms and conditions of the policy. Similarly, the Complainant filed another claim of his hospitalisation on 21.07.2018 for Rs.98,323/- and again said claim was forwarded to Raksha Health Insurance TPA Private Limited to process the claim and as per their claim dated 31.12.2018 it is recommended that “The Complainant has undergone PIVD.LAMINECTOMY and the expenses related to Prolapsed Inter Vertebral Disc Disorder (PIVD) are payable after years as per the terms and conditions of the policy and hence the second claim is recommended to be non payable under clause 4.2. Hence, both the claims of the Complainant are repudiated by the Opposite Parties after due application of mind. On merits, Opposite Parties took almost same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
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.C51 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Sh.Sukhwinder Singh Ex.Ops1 alongwith copies of documents Ex.Ops2 to Ex.OPs 10 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties and also perused the written arguments filed by both the parties and also gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the parties have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.
7. Ld.counsel for the complainant has mainly contended that first of all the written reply filed by the Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Further contended that the TPA has no authority to process and make any opinion since the TPA is the agency of the Opposite Parties. It is further contended that no such terms and conditions were ever supplied or conveyed to the Complainant while issuing the policy in question on which ground the Opposite Parties have repudiated the claim of the Complainant. It is further contended that on the allurement of the agent of the Opposite Parties, the Complainant purchased medi claim policy bearing No.233902/48/2018/6298 valid for the period w.e.f. 13.02.2018 to 12.02.2019 for the sum insured Rs.2 lakhs against the payment of premium of Rs.5281/-. Further contended that in the month of July, 2018 he suffered from some immediate health problem and was admitted in emergency on 10.07.2018 with severe paid in lower back, radiant to lower limbs and he was operated for PIVD Laminectomy L4, L5, S1 and discharged on 28.07.2018. During this period, the Complainant spent huge amount on the medical treatment against bill issued by KGM Hospital, Tagore Hospital and Punjab Artificial Limps Centre, amounting to more than Rs.1,03,915.92 paisa on account of hospital charges, medical bills, diagnosis expenses and other expenses and thereafter, the Complainant submitted all the original bills and other relevant documents to Opposite Parties and requested to release the claimed amount, which was spent by the Complainant during hospitalization. Initially, the Opposite Parties always lingered on the matter by making lame excuses, but lateron refused to admit the rightful claim of the Complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service.
8. On the other hand, ld.counsel for the Opposite Parties repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that undisputedly the Complainant got the medi claim policy bearing No.233902/48/2018/6298 for the period 13.02.2018 to 12.02.2019 from the Opposite Parties. The terms and conditions of the insurance policy are given to the Complainant. It is not the denial of the parties that the Complainant submitted two claims to the Opposite Parties and first claim is regarding Complainant’s hospitalisation on 14.07.2018 for Rs.5600/-. The Opposite Parties immediately forwarded the documents to Raksha Health Insurance TPA Private Limited to process the claim and as per their claim dated 04.12.2018 and 07.12.2018 it is recommended that “On investigation it was found that no record was maintained by the hospital and in the absence of record, the authenticity of the claim is questionable, so the claim is recommended to be non payable. Hence, the first claim of the Complainant was repudiated vide letter dated 29.1.2019 as per clause 4.10 of the terms and conditions of the policy. Similarly, the Complainant filed another claim of his hospitalisation on 21.07.2018 for Rs.98,323/- and again said claim was forwarded to Raksha Health Insurance TPA Private Limited to process the claim and as per their claim dated 31.12.2018 it is recommended that “The Complainant has undergone PIVD.LAMINECTOMY and the expenses related to Prolapsed Inter Vertebral Disc Disorder (PIVD) are payable after years as per the terms and conditions of the policy and hence the second claim is recommended to be non payable under clause 4.2. Hence, both the claims of the Complainant are repudiated by the Opposite Parties after due application of mind.
9. First of all, as argued by the ld.counsel for the Complainant, perusal of the file shows that the written version filed on behalf of all the Opposite Parties have not been filed by an authorized person. Therefore, the written versions so filed are not maintainable. 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 recognised under law and ultimately, it was held that the plaint was not instituted by an authorised 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. For the sake of arguments, if it is admitted that the written version filed by the Opposite Parties is legal. Now come to the merit of the case. It is not the denial of the case of the parties that on the recommendation of Raksha TPA Private Limited Ex.Ops3 and Ex.Ops4, the Opposite Parties have repudiated the claim of the Complainant. But recently, our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.1105 of 2014 decided on 25-04-2017 in case titled as Sukhdev Singh Nagpal Vs. New Karian Pehalwal Cooperative Agriculture service Society & Others has held that TPAs have no authority to reject the claim- such power lies, exclusively with the Insurance Companies (Para No.25 to 27). The TPA can only process the claim and forward the same to the Insurance Company and the competent authority of the Insurance Company is to decide about the same. The claim of the complainant was illegally and arbitrarily rejected by the TPA, against the instructions of the IRDA. In view of this, the repudiation merely on the basis of report of the TPA is not legal.
11. The next point raised by the Opposite Parties is 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 claim as claimed. 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 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.”
- In such a situation the repudiation made by Opposite Parties 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.
13. Now come to the quantum of compensation. The Complainant has placed on record the detailed calculation (Ex,C51) of his claim including hospital charges, medicine charges, Ambulance charges etc. amounting to Rs.1,03,915.65 paisa. On the other hand, the Opposite Parties has nowhere denied these expenses by producing in rebuttal on record any cogent and convincing evidence. Rather vehemently submitted that the Opposite Parties have forwarded both the claim of the Complainant amounting to Rs.5600/- and Rs.98,323/- total amounting to Rs.1,03,923/- for processing which were repudiated as per the recommendation of the Raksha TPA Private Limited. Hence we allow this unrebutted claim worth Rs.1,03,915.65 paisa of the Complainant.
14. Resultantly, we allow the complaint with costs and the Opposite Parties are directed to make the claim amount of Rs.1,03,915.65 paisa (Rupees one lakh three thousand nine hundred fifteen and paisa sixty five only) to the complainant, within 45 days from the date of receipt of copy of this order, failing which the Opposite Parties shall be liable to pay interest @ 8% per annum on the awarded amount, from the date of filing the complaint till its actual realization. Opposite Parties are also directed to pay the lump sum compensation amounting to Rs.5,000/- (Rupees five thousands only) to the Complainant. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
15. 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 Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as the situation arising due to outbreak of the Novel Coronavirus (COVID-19).
Announced in Open Commission.
