Tamil Nadu

StateCommission

A/341/2017

The Royal Sundaram Alliance Insurance Co Ltd., - Complainant(s)

Versus

Udaya Prasanna - Opp.Party(s)

M.B.Gopalan Associates-Applt

29 Dec 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                    ::     PRESIDENT                       

                  Tmt. Dr. S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No. 341/2017

  (Against the order in C.C. No.57/2014 on the file of the D.C.D.R.C., Coimbatore)

                         DATED THE 29^th  DAY OF DECEMBER 2021

 

The Royal Sundaram Alliance Insurance Co. Ltd.,

Sundaram Towers,

Nos.45 & 46, Whites Road,

Chennai – 600 014.                                                          .. Appellant /Opposite party.

 

- Versus -

Mr. Udaya Prasanna,

S/o. Mr. Sundharsan Babu,

No.678-F, Sulivan Street,

Coimbatore – 641 001.                                                         ..Respondent /Complainant.

 

Counsel for Appellant /Opposite party                : M/s. M.B. Gopalan

Counsel for Respondent /Complainant             : M/s. M. Mathew

 

This appeal coming before us for final hearing today, on 29.12.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following order:-

ORDER

Hon’ble THIRU. JUSTICE. R. SUBBIAH                    

1.         This appeal has been filed as against the order dated:22.08.2017 made in C.C. No.57/2014 by the District Commission, Coimbatore allowing the complaint filed by the respondent herein.

2.         For the sake of convenience the parties will be referred as per their ranking in the District Consumer Disputes Redressal Forum, Coimbatore.  It is the case of the complainant that his father late J. Sudharsan Babu took a Group Personal Accident Insurance Policy with the opposite party under Master Policy Certificate No. PAWITAL – 00134267 for the period from 28.01.2013 to 27.01.2014.  In such circumstances, the complainant’s father met with an accident and died on 21.02.2013.  The complainant had submitted a claim application with the opposite party along with all particulars pertaining to claim on 26.06.2013.   But the complainant had not received any communication from the opposite party.  The complainant is a nominee in the Group Personal Accident Insurance Policy.  The complainant and other Legal Heirs of the deceased J. Sudharsan Babu are suffering from financial strain and they could not sustain their day to day needs.  Therefore he had sent a legal notice to the opposite party to settle the claim amount on 27.12.2013.  But the same was not acknowledged by the opposite party.  Hence, there was a deficiency in service on the part of the insurance company in not settling the claim amount, and hence, the complainant has filed this complaint before the District Forum for the following reliefs:

1. To direct the opposite party to settle the policy amount of Rs.5,00,000/- to the complainant with 12% interest till the date of realisation.
2. To direct the opposite party to pay a sum of Rs.50,000/- as compensation for mental agony and loss to the complainant.

3.         The said complaint was resisted by the opposite party by filing a written version stating that the father of the complainant Late Mr. J. Sudharsan Babu was given personal accident death/ permanent disability insurance coverage  for a sum insured of Rs.5,00,000/- for the period from 28.01.2013 to 27.01.2014 under  a Group Personal Accident Insurance Policy subject to the terms and conditions incorporated in the certificate of insurance and the Policy.

4.         On receipt of intimation of the claim on 26.03.2013, the opposite party appointed an investigator viz. M/s. Health India Medical Services Pvt. Ltd. to ascertain the facts behind the claim, the alleged accident and death of the insured person.   A detailed report dated:10.04.2013 was submitted by the investigator to the opposite party company.  Based on the investigation report and documents it was confirmed that the insured person Mr. J. Sudharsan Babu met with the road traffic accident on 16.02.2013 and died on 21.02.2013.  Therefore, it is evidenced from the documents that Mr. J. Sudharsan Babu died on the 24^th day i.e. on 21.02.2013 from the date of commencement of the policy on 28.01.2013.  Since, the unfortunate death had happened within 30 days from the date of commencement of the policy i.e. within the waiting period of 30 days, the claim could not be entertained.   This was duly intimated  to the complainant by the opposite party company by a registered letter dated:16.04.2013, regretting the demise of the insured person invoking the relevant policy condition and regretting the inability to entertain the claim.  The relevant condition appearing on the fact of the certificate of the insurance viz. the complaint document No.1 is as follows:-

Waiting Period:-  A waiting period of 30 days shall apply from the commencement date of this certificate of insurance, during which no liability shall attach to the Company”.

Therefore the claim of the complainant was thus processed on time and was repudiated in time  on the explicit condition in the certificate of insurance without any delay.  Therefore,  there is no deficiency in service on the part of the opposite party and thus sought for dismissal of the complaint.

5.         Before the District Forum in order to prove the case on the side of the complainant, Ex.A1 to Ex.A13 marked.  Ex.B1 to Ex.B4 marked on the side of the opposite party. 

6.         After analysing the entire evidence, the District Forum by placing reliance on the Judgement of the Supreme Court reported in 1987 (2) SCC 254 in the case of Skandia Insurance Company Ltd. –Versus- Kokilaben Chandravadan & Ors. as well as the Judgement of the Delhi, High Court delivered in W.P. (C) No.656/2007 had come to the conclusion that the main purpose of the accident policy was to compensate the injuries or the death of the insured.   Therefore, the exclusion of 30 days waiting period in the policy is unfair, unreasonable and arbitrary.  The said condition is not sustainable in the eye of law and thus, allowed the complaint.   Aggrieved over same, the present appeal has been filed.

7.         The Counsel for the appellant insurance company submitted that the finding of the District Consumer Disputes Redressal Forum, Coimbatore for rejecting the defence of the Insurance Company that “30 days waiting period”, mentioned in one of the clauses of the policy is arbitrary.  Assailing the said reasoning, the Counsel for the Appellant Insurance Company submitted that The District Forum cannot rewrite the contract of insurance which has been accepted by the complainant’s father.  The Counsel for the appellant has relied upon the following judgement of the Hon’ble National Commission in support of his contention:-

1. United India vs Subhsh Chandra (2010 SCC Online NCDRC 149)
2. Col. T.S. Bakshi v Star Health (2014 SCC Online NCDRC 149)
3. Oriental Insurance v Rajinder Singh (2017 SCC Online NCDRC 668)
4. Nirmal Jain v United India (2019 SCC Online NCDRC 873)

Thus he sought for setting aside the order passed by the District Commission.

8.         Countering the submissions, the Counsel appearing for the respondent submitted that the policy commences from the date of issuance of the cover note which was issued on payment of the 1^st premium for the policy.  It is a personal accident policy when the beneficiary dies the amount assured under the policy becomes payable.  Therefore the contention of appellant insurance company that the policy will commence after a lapse of 30 days from the date of issuance cannot be accepted.  Hence, the repudiation of the policy by the appellant is not justified.  Therefore the District Commission is correct in allowing the complaint.  Hence, there is no need for interference in the said order. 

9.         Keeping the submissions we have carefully gone through the entire materials available on record.  It is the case of the complainant that his father late J. Sudharsan Babu took a Group Personal Accident Insurance Policy for the period from 28.01.2013 to 27.01.2014.  While so his father met with a road accident and died on 21.02.2013.  Hence, he made a claim with the opposite party insurance company along with the required particulars on 26.06.2013.  But the complainant’s claim was rejected stating that the policy would take effect only after the waiting period of 30 days as per the conditions of the policy.   Since, the father of the complainant died on the 24^th day  i.e. on 21.02.2013 from the date of commencement of the policy on 28.01.2013, the complainant is not entitled for compensation.  But the District Commission has come to the conclusion that the clause in the policy is not valid and arbitrary and thus allowed the complaint.  But in our considered opinion  this issue has to be decided only based on the recent judgement delivered by the National Commission

In 2014 SCC Online NCDRC 149

It is held that

10. Relevant Exclusion Clause (2) relied upon by the foras below reads thus:

“Any disease contracted by the insured person during the first 30 days from the commencement date of the policy.  This exclusion shall not apply in case of the insured person having been covered under any health insurance policy (individual or Group Insurance policy) with any of the  Indian Insurance Companies for a continuous period of preceding 12 months without a break”.

11. On reading of the above, it is clear that the insured contracts a disease within first 30 days of the commencement of insurance policy, the insurance company shall not be liable to indemnify the insured for expenses unless it is shown that the insured had a continuous health insurance policy with some Indian Insurance Company just prior to taking of insurance cover. In the instant case, there is nothing on the record to suggest that the insured Sahej Singh had a previous health insurance cover for a Court, the foras below were right in dismissing the claim of the petitioner under the insurance contract in view of the Exclusion Clause. 

12. The petitioner has tried to wriggle out of the Exclusion Clause by taking a plea that he was not explained the terms and conditions of the contract and terms and conditions were supplied to him after the encashment of the cheque issued for payment of premium.  The above submission of the petition is misconceived.  On perusal of para 3 & 4 of the consumer complaint filed in the District Forum, we find that according to the petitioner, Jaspreet Singh Bakshi submitted proposal form for obtaining the medical insurance cover on 21.07.2010 along with cheque for payment of premium dated:21.07.2010”.

13. On reading of the above, it is clear that if the insured was not agreeable to the terms and conditions, he had an option to seek cancellation of the policy with refund of his premium.  The insured had not opted for cancellation of the policy.  Therefore, now he cannot be allowed to claim that he is not bound by the Exclusion Clause because it was not explained to his when he remitted the cheque for payment of insurance premium”.

The reading of the dictum laid down in the above Judgement would clearly show that the terms and conditions of the policy has to be interpreted by the Consumer Commission as they are mentioned in the policy.  The Forum cannot give a different interpretation.   For the same purpose, the other judgements also relied upon.

9.         Therefore, when one of the clauses in the insurance policy clearly says that a waiting period of 30 days shall apply from the date of commencement of certificate of insurance during which no liability shall attach to the company, the court cannot not give a different interpretation to the said clause.  Therefore, the order passed by the District Commission is not correct.  Hence, the same is liable to be set aside.

In the result, the appeal is allowed by setting aside the order of the District Commission, Coimbatore made in C.C. No.57/2014 dated:22.08.2017 and the complaint is also dismissed.   There is no order so as to costs.

 

S.M. LATHA MAHESWARI                                                                            R. SUBBIAH             

              MEMBER                                                                                          PRESIDENT