Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainants  have filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that father of the Complainants No.1 and 2 and husband of Complainant No.3 had purchased mediclaim policy from the Opposite Parties having insured code 65971088, bearing policy No. 233902/48/2015/4888 valid for the period w.e.f. 27.02.2015 to 26.02.2016 against the paid up premium of Rs.3320/- on 18.02.2015 and this policy was continued  for the next year bearing policy No.233902/48/2016/5773 valid for the period w.e.f. 27.02.2016 to 26.09.2017 against the premium of  Rs.3384/- on 17.02.2016 which was further continued by the insured Pawan Kumar for the period 27.02.2017 to 26.02.2018 against the paid up premium which was encashed from the saving bank account No. 10282191033112 of the insured Pawan Kumar on 22.02.2017 bearing cheque No. 23717 being maintained with the Opposite Party. Further allege that unfortunately, during the policy period,   Pawan Kumar insured was hospitalized in different hospitals the detail of which as under:-

The Complainants Further allege that during said periods of hospitalization, the total expenses on medicines were incurred at Garg Hospital, Moga for a sum of Rs.46,759/- and at DMC Hospital, Ludhiana Rs.49,163/- and hence, the total expenses on medicines were incurred  Rs.95,922/- and total amount  spent on hospitalization and medicines comes to Rs.2,10,482/-.  Unfortunately, Pawan Kumar  insured did not survive despite of every best  efforts of the Complainants and died on 06.10.2017.  Thereafter, the Complainants visited the office of the Opposite Parties for lodging the claim qua the hospitalization and other medical expenses incurred pertain to the insured. It is pertinent to mention over here that Opposite Parties had encashed the cheque on account of premium of the said mediclaim policy for Rs.3399/- from the bank account of Pawan Kumar insured on 22.02.2017, but the Opposite Parties did not issue the mediclaim policy for the said period and the Opposite Parties erroneously issued the policy on the same amount of money in the name of some other person having identical name as of the deceased Pawan Kumar care of Sangam Electronics Railway Road, Moga and hence, the Opposite Parties have rendered the deficient services to the Complainants.  Both in the eyes of law and equity, the Complainants are entitled to the reimbursement of the said medical expenses incurred  as detailed above being covered within the provisions and ambit of the said mediclaim policy. The Opposite Parties are even guilty of mal practice as the Opposite Parties  have received the cheque from the insured Pawan Kumar and even encashed the same, but the Opposite Parties erroneously, deficiently and negligently issued the policy in the name of some other person having identical name.  Thereafter, the Complainants made so many visits to the office of Opposite Parties for the reimbursement of their claim, but the Opposite Parties have flatly refused to admit the rightful claim of the Complainants.  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)       To reimburse the amount of Rs.2,10,482/- paisa  regarding the medical claim.

b)      An amount of Rs.5 lakh as compensation for mental tension, harassment and agony suffered by the Complainants.

c)       An amount of Rs.30,000/- as litigation expenses.

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 Complainants are estopped by their own act and conduct; that the Complainants have got no locus standi to file the present complaint; that neither the Complainants nor Pawan Kumar was consumer of the Opposite Parties, so the Complainants did not fall under the definition of the consumer  under the Act; that the Complainants have not complied with the terms and conditions of the insurance policy; that this Commission has got no jurisdiction to try the complaint as voluminous evidence is required and civil court has got jurisdiction and that there is no deficiency in service on the part of the Opposite Parties. In fact, Pawan Kumar got the mediclaim policy bearing No.233902/48/2016/5773 for the period 27.02.2016 to 26.02.2017, but said Pawan Kumar got hospitalisation after that period which is outside the purview of said policy period which expires on 26.02.2017. Otherwise, on receipt of the above two requests, the Opposite Parties could have clarified about the premium received from the concerned bank and have processed the claim if it has been intimated, so the complaint is without any merit and is liable to be dismissed. On merits, it is alleged that the Opposite Parties had not encashed any cheque from the saving bank account of Pawan Kumar and the Complainants have neither submitted any such document which proves the encashment of cheque nor provided any cheque number and date etc. and hence, the Complainants are not entitled to any claim.  On merits, the Opposite Parties took almost same and similar pleas as taken up by them in the preliminary objections and prayed for the dismissal of the complaint with costs.             

3.       In order to  prove  their  case, the complainants have placed on record  affidavit of Karan Narula Ex.C1, copies of policies Ex.C2 and Ex.C3, copy of pass book Ex.C4, copies of bills, prescriptions Ex.C5 to Ex.C80, copy of legal notice Ex.C81, postal receipt Ex.C82, copies of bills Ex.C83 to Ex.C86, copy of death certificate of Pawan Kumar Ex.C87, copies of aadhar cards Ex.C88 to Ex.C90, copy of death certificate of  Raj Rani mother of Pawan Kumar Ex.C91.

4.       On the other hand,  to rebut the evidence of the complainants,  Opposite Parties also placed on record affidavit of Sh.Jasvinder Singh Sr.Divisional Manger Ex.OPs1, copy of policy Ex.Ops2, copy of another policy in favour of Pawan Kumar care of Sangam Electronics Ex.OPs3.

5.       We have heard the ld.counsel for the parties, perused the written arguments submitted by the Opposite Parties and also  gone through the documents placed  on record.

6.       Ld.counsel for the Complainants has  mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is 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 Party. Further contended that father of the Complainants No.1 and 2 and husband of Complainant No.3 had purchased mediclaim policy from the Opposite Parties having insured code 65971088, bearing policy No. 233902/48/2015/4888 valid for the period w.e.f. 27.02.2015 to 26.02.2016 against the paid up premium of Rs.3320/- on 18.02.2015 and this policy was continued  for the next year bearing policy No.233902/48/2016/5773 valid for the period w.e.f. 27.02.2016 to 26.09.2017 against the premium of Rs.3384/- on 17.02.2016 which was further continued by the insured Pawan Kumar for the period 27.02.2017 to 26.02.2018 against the paid up premium which was encashed from the saving bank account No. 10282191033112 of the insured Pawan Kumar on 22.02.2017 bearing cheque No. 23717 being maintained with the Opposite Party. Further allege that unfortunately, during the policy period,   Pawan Kumar insured was hospitalized in different hospitals the detail of which as under:-

The Complainants Further allege that during said periods of hospitalization, the total expenses on medicines were incurred at Garg Hospital, Moga for a sum of Rs.46,759/- and at DMC Hospital, Ludhiana Rs.49,163/- and hence, the total expenses on medicines were incurred  Rs.95,922/- and total amount  spent on hospitalization and medicines comes to Rs.2,10,482/-.  Unfortunately, Pawan Kumar  insured did not survive despite of every best  efforts of the Complainants and died on 06.10.2017.  Thereafter, the Complainants visited the office of the Opposite Parties for lodging the claim qua the hospitalization and other medical expenses incurred pertain to the insured. It is pertinent to mention over here that Opposite Parties had encashed the cheque on account of premium of the said mediclaim policy for Rs.3399/- from the bank account of Pawan Kumar insured on 22.02.2017, but the Opposite Parties did not issue the mediclaim policy for the said period and the Opposite Parties erroneously issued the policy on the same amount of money in the name of some other person having identical name as of the deceased Pawan Kumar care of Sangam Electronics Railway Road, Moga and hence, the Opposite Parties have rendered the deficient services to the Complainants. 

7.       On the other hand, ld.counsel for the Opposite Parties has   repelled the aforesaid contention of the ld.counsel for the complainants on the ground that first of all,  the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this Hon’ble District Consumer Commission has no jurisdiction to try and decide the present complaint. It is further contended that in fact, Pawan Kumar got the mediclaim policy bearing No.233902/48/2016/5773 for the period 27.02.2016 to 26.02.2017, but said Pawan Kumar got hospitalisation after that period which is outside the purview of said policy period which expires on 26.02.2017. Otherwise, on receipt of the above two requests, the Opposite Parties could have clarified about the premium received from the concerned bank and have processed the claim if it has been intimated, so the complaint is without any merit and is liable to be dismissed. On merits, it is alleged that the Opposite Parties had not encashed any cheque from the saving bank account of Pawan Kumar and the Complainants have neither submitted any such document which proves the encashment of cheque nor provided any cheque number and date etc. and hence, the Complainants are not entitled to any claim.

8.       Perusal of the contention of the ld.counsel for the complainants   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.”

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.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by Opposite Party  is that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this Hon’ble District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so.  Hence, this District Consumer Commission is  not convinced with the aforesaid contention of the ld.counsel for the Opposite Party.

10.     The further contention of the ld.counsel for the Opposite Party is that Pawan Kumar got hospitalisation after that period which is outside the purview of said policy period which expires on 26.02.2017. Otherwise, on receipt of the above two requests, the Opposite Parties could have clarified about the premium received from the concerned bank and have processed the claim if it has been intimated, so the complaint is without any merit. On the other hand, ld.counsel for the Complainants has rebutted this contention of the Opposite Parties on the ground that Pawan Kumar Narula was continuously purchased mediclaim policies and firstly, he purchased the mediclaim policy from the   Opposite Parties having insured code 65971088, bearing policy No. 233902/48/2015/4888 valid for the period w.e.f. 27.02.2015 to 26.02.2016 against the paid up premium of Rs.3320/- on 18.02.2015 and this policy was continued  for the next year bearing policy No.233902/48/2016/5773 valid for the period w.e.f. 27.02.2016 to 26.09.2017 against the premium of Rs.3384/- on 17.02.2016 which was further continued by the insured Pawan Kumar for the period 27.02.2017 to 26.02.2018 against the paid up premium which was encashed from the saving bank account No. 10282191033112 of the insured Pawan Kumar on 22.02.2017 bearing cheque No. 23717 being maintained with the Opposite Party meaning thereby, the Opposite Parties had encashed the cheque on account of premium of the said mediclaim policy for Rs.3399/- from the bank account of Pawan Kumar insured on 22.02.2017, but the Opposite Parties did not issue the mediclaim policy for the said period and the Opposite Parties erroneously issued the policy on the same amount of money in the name of some other person having identical name as of the deceased Pawan Kumar care of Sangam Electronics Railway Road, Moga and hence, the Opposite Parties have rendered the deficient services to the Complainants. During the course of arguments, this District Consumer Commission, Moga sought the clarification from the Complainants regarding the payment of premium to the Opposite Parties for the relevant period and in this regard, the Complainants have produced the certificate duly signed by Branch Manger as well as Pass Book entry dated 22.02.2017 vide which the amount of Rs.3399/- has been withdrawn from the account of Pawan Kumar son of Raghunath Sahai (fathers of Complainants No.1 and 2 and husband of Complainant No.3) paid vide cheque No. 23717. In this regard, the Branch Manager also issued certificate dated 04.10.2021  with regard to account No.10282191033112 of Pawan Kumar son of Raghunath Sahai to the following effect:-

“This is for your information that as per bank Records on date 22.02.2017 a DD (587378) was issued in favour of  ORIENTAL ISNURANCE CO.LTD. for amount of Rs.3399/- from account 10282191033112 having purchaser name Pawan Kumar son of Raghunath Sahai and his wife Veena Rani.”

From the aforementioned facts and circumstances and certificate issued by Branch Manager, it is clear that Pawan Kumar son of Raghnath Sahai (father of Complainants No.1 and 2 and husband of Complainant No.3) had duly issued the cheque in favour of Oriental Insurance Company on 22.02.2017 for further continuing the medical policy for further period w.e.f.  for the period 27.02.2017 to 26.02.2018 against the paid up premium which was encashed from the saving bank account No. 10282191033112 of the insured Pawan Kumar on 22.02.2017 bearing cheque No. 23717 being maintained with the Opposite Party,  but the Opposite Parties did not issue the mediclaim policy for the said period and the Opposite Parties erroneously issued the policy on the same amount of money in the name of some other person having identical name as of the deceased Pawan Kumar care of Sangam Electronics Railway Road, Moga and hence, the Opposite Parties have rendered the deficient services to the Complainants and said wrongly issued policy was duly produced by the Opposite Parties themselves on record as Ex.Ops3.

11.     In such a situation the repudiation made by the Opposite Parties regarding genuine claim of the complainants 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.

12.     Now come to the quantum of compensation.  The Complainants have claimed the reimbursement of amount of Rs.2,10,482/- paisa  regarding the medical bills and hospitalization charges. But perusal of the previous policies for the period w.e.f. 27.02.2016 to 26.02.2017 (Ex.C2) and further policy issued  in favour of Pawan Kumar care of Sangam Electroncis Ex.C3 valid for the period 27.02.2017 to 26.02.2018,  said Pawan Kumar  was insured with Total Sum Insured of Rs.2 lakhs,  so at the most, the Complainants are entitled  to reimburse the mediclaim  upto the extent of Rs.2 lakhs only under the policy.     

13.     In view of the aforesaid facts and circumstances, the complaint of the Complainants is allowed and the  Opposite Parties are directed to reimburse the mediclaim of the Complainants  to the tune of  Rs.2 lakhs (Rupees two lakhs only)  within 45 days from the date of  receipt of copy of this order, failing which the Opposite Parties would be liable to pay the awarded amount alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 26.07.2018 till its realization. Opposite Parties are  also directed to pay the lump sum compensation to the complainants to the tune of Rs.10,000/- (ten 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.

14.     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.