Punjab

Ludhiana

CC/15/596

Shivani Jindal - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

B.K.Rampal Adv.

01 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 596 of 05.10.2015

   Date of Decision            :   01.06.2017

 

Shivani Jindal wife of Shri Rupesh Jindal, resident of 40-A, Madhuban Enclave, Barewal Road, Ludhiana.

….. Complainant

Versus

1.United India Insurance Company Limited, registered office:24, Whites Road, Chennai-600014, through its Managing Director/Director.

2.United India Insurance Company Limited, Regional Office:136, Feroze Gandhi Market, Ludhiana, through its Manager.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Hari Om Jindal, Advocate

For OPs                         :         Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant after planning got booked air tickets for directly travelling to Hongkong from India, but for return back to India from Hongkong via Ho Chi Minh City. As per that planning, complainant had to leave India on 4.6.2015 and to return back on 12.6.2015 at Delhi airport. Insurance policy bearing No.02160046143990456589 dated 18.5.2015 was purchased from OP2, which is branch office of OP1 at Ludhiana. Said policy provided coverage for the losses including trip cancellation/curtailment and other coverages mentioned in the insurance policy. That policy was having validity period from 3.6.2016 to 13.6.2015. Complainant as per planning had to reach at Ho Chi Minh City at 4:55 PM on 12.6.2015 on return journey through Vietnam Airlines Corporation. On the same day i.e.12.6.2015 itself, complainant had to depart at 6:15 PM from Ho Chi Minh City for arrival at Delhi at 12:05 AM by the flight of Jet Airways India(9W) 63. However, on 12.6.2015, flight of Vietnam Airlines Corporation arrived at Ho Chi Minh City at 6:30 PM instead of 4:55 PM. So, said flight reached late at Ho Chi Minh City, due to which, complainant could not get the next flight of Jet Airways India (9W) 63, which was to depart at 6:15 PM from Ho Chi Minh City to Delhi. Complainant was constrained to stay at Ho Chi Minh City for more than 24 hours. On next day of 13.6.2015 at 7:45 PM, the complainant was sent to Singapore by the airways authority vide flight of Singapore Airline bearing FLT:SQ185, where again complainant was constrained to stay for whole night because she was sent to Delhi on 14.6.2015 through flight of Singapore Airline bearing FLT:SQ402. Complainant reached back India on 14.6.2015 i.e. after delay of 2 days. So, complainant claims that she is entitled to have the insurance claim, on the ground of delay of flight, of 500 US Dollar as per the terms and conditions of the policy. After reaching back at Ludhiana, the complainant immediately approached Ops for lodging of claim under the policy, but employees of OP2 disclosed the complainant as if the concerned person is on leave, due to which, she should come after 10 to 12 days. Thereafter, again the complainant approached Ops for lodging of insurance claim, but employees of OP2 put forth another excuse for calling upon the complainant to come after 10 to 12 days. Complainant again approached Ops for lodging the insurance claim, but employees of OP2 again made some other excuse on false pretext. Information was not provided to the complainant and nor the form for lodging of insurance claim supplied to the complainant, though she ran from pillar to post. Complainant served legal notice dated 18.8.2015(dispatched on 21.8.2015) through counsel under registered A.D., but Ops have not sent reply to that notice and nor complied with the terms and conditions of the same. It is claimed that Ops have adopted unfair trade practice and even their conduct amount to commission of fraud. By pleading that complainant has suffered a lot of harassment, mental tension and agony, this complaint filed for directing Ops to honour the insurance claim for 500 U.S.Dollars along with interest @18% per annum from the date of lodging of insurance claim till realization. Compensation for mental harassment and agony of Rs.50,000/- and cost of complaint of Rs.5500/- more claimed.

2.                In joint written statement filed by OPs, it is pleaded interalia as if complaint is barred under Section 26 of the Consumer Protection Act(hereinafter in short referred to as ‘Act’); complainant has no cause of action because claim has not at all been lodged by the complainant with Heritage TPA or with the Ops or  their corporate agent M/s Karvat Cover More Assist Pvt. Ltd; complainant has concocted a false and frivolous story; complaint is pre-mature because of non-lodging of claim till date and that claim of the complainant on the basis of allegations does not fall within the purview of the insurance policy. Moreover, it is claimed that complainant estopped by her act and conduct from filing the present complaint because she has not approached the Forum with clean hands and that in view of the involvement of complicated question of law and facts requiring elaborate evidence, the civil court of competent jurisdiction alone has jurisdiction to decide the controversy in question. As allegations of fraud are also levelled and as such, those cannot be decided in the summary proceedings before this Forum. Purchase of the policy on payment of premium is admitted, but each and every other allegation regarding planning to go abroad or the route to be adopted denied specifically one by one each. The insurance policy is a contract in itself and parties are bound by the terms and conditions of the same as per the averment of the written statement. Section L pertains to the term qua trip cancellation/curtailment, whereas Section N pertains to trip delay. After quoting the terms of those sections L and N in the written statement, it is claimed that complainant is not covered for the losses for trip cancellation/curtailment. However, it is claimed as if the complainant is entitled to risk cover for trip cancellation/curtailment or trip delay as per provisions of Sections L and N of the insurance policy. It is claimed that the complainant should be called to prove the causes of delay in reaching at the destination station. Delay in arrival of flight alleged to be not covered under the insurance policy. Complainant has not lodged any claim along with her other three companions namely Rupesh Jindal, Aatish Aggarwal and Shiana Aggarwal with Heritage TPA or corporate agent or with Ops. As the complainant never approached Ops and as such, question of refusal as alleged in the complaint does not arise. Had complainant gone to lodge the claim and officials of Ops refused to do the needful, then the complainant could have lodged the claim by sending the necessary documents in support of her claim through registered post/courier or through email or by adopting any other mode of lodging the claim. No legal notice was ever received by Ops and as such, question of sending reply does not arise. There was no negligence or deficiency in service on the part of Ops and nor they adopted any unfair trade practice and nor they committed any fraud as alleged and as such, by denying each and every other allegation of the complaint, prayer made for dismissal of complaint.

3.                Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C8 and then her counsel closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.J.S.Khera, Manager of United India Insurance Company Limited along with documents Ex.R1 & Ex.R2 and thereafter, closed the evidence.

5.                          Written arguments in this case submitted by Ops, but not by the complainant. Oral arguments of counsel for the parties heard and records gone through minutely. 

6.                Though, counsel for Ops contended that this Forum has no territorial jurisdiction, but after going through para no.7 of written statement under head “On merits” and also after going through para no.14 of affidavit Ex.RA of Manager of Ops, it is made out that Ops have admitted as if this Forum has territorial jurisdiction. Admission binds a party and as such, arguments that this Forum has no territorial jurisdiction has no force at all, particularly when the policy purchased at Ludhiana, the documents thereof received at Ludhiana and Ops has branch at Ludhiana. Cause of action accrued to the complainant for stacking insurance claim for faced harassment in journey from Delhi to Hongkong or to Ho Chi Minh City at Ludhiana because of purchase of the insurance policy at Ludhiana and payment of premium there.

7.                It is not disputed that the policy in question was purchased by the complainant on payment of premium and the same even borne from the contents of Ex.C1 and Ex.C2, the policy documents. Even if the purchase of the policy proved, despite that complainant had to establish that she is entitled for the claimed insurance amount of 500 US dollars as per the terms and conditions of the insurance policy because contract of insurance is binding on the parties and nothing can be added or subtracted thereto as per law laid down in cases titled as Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.). So, policy has to be construed strictly as per the terms and conditions of the policy documents itself. In case titled as Sonic Surgical vs. National Insurance Company Limited-IV(2009)CPJ-40(S.C.), it was held that in case a fire broke out in godown at Ambala and insurance policy taken at Ambala, where the compensation claim stacked, then Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh will be having no jurisdiction because no part of cause of action arose there. However, facts of that reported case are quite distinct than those of the facts of the case in hand because here the policy purchased at Ludhiana by paying the premium there and insurance claim yet to be stacked by submitting claim form. Through purchase or sale of the insurance policy in question obligation undertaken by Ops and rights accrued to the complainant and as such, cause of action for stacking insurance claim arose at Ludhiana. Being so, benefit from above cited case is not available to the counsel for Ops. Rights and obligations has to be strictly construed in accordance with the terms and conditions of the insurance policy are the submissions of the counsel for Ops and that submission certainly has  force in view of the law laid down in the above cited cases.

8.                Counsel for complainant unable to point out the manner of lodging of claim or to any document for establishing that claim in question actually stacked by the complainant with Ops except the served legal notice Ex.C5 through postal receipts Ex.C7 and Ex.C6. As and when, the manner of lodging the claim envisaged by the terms and conditions of the contract, then claim must be lodged in accordance with that manner and not by any other manner. Complainant has not disclosed the date of visit to office of OP2 for lodging the claim and even she has not disclosed the name of employees, to whom, she met during the alleged visit mentioned in para no.4 of the complaint or in the supporting affidavit Ex.CA and as such, allegations in this respect remains vague and general. As and when vague and general allegations levelled, then case of the party cannot be believed. So, certainly submissions advanced by counsel for Ops has force that story regarding meeting the officials of OP2 for lodging the claim has been concocted. If really the claim would have been lodged by the complainant, then copy of lodged claim would have been retained by the complainant and produced on file of this case. Rather, after going through para no.4 and 5 of complaint, it is made out as if claim has not been lodged by the complainant till date, but she only served legal notice Ex.C5 and as such, certainly submissions advanced by counsel for Ops has force that virtually insurance claim has not been lodged by the complainant till date.

9.       After going through Ex.C1, Ex.C2, Ex.C8 as well as Ex.R2, it is made out that in case, terms and conditions of the insurance policy not received by the complainant, then she should have downloaded the same from the site www.trawelltag-covermore.com. Rather, Ex.C1 and Ex.C2=Ex.R2 are the documents, which is a Welcome letter usually sent along with the policy documents. A note is appended on Ex.C1=Ex.R2 that this welcome letter (Part I) is to be read in conjunction with confirmation of insurance (Part II). So, it is obvious that the complainant got knowledge of terms and conditions of the insurance policy after receipt of Ex.C1=Ex.R2. In Ex.C1=Ex.R2, it is specifically mentioned as to where from the assistance to be got or as to whom to be contacted for submitting the documents. Specific headings “For Assistance” and “For Claims” are incorporated in Ex.C1=Ex.R2 and as such, it is obvious that in case, Ops or any of them would have refused to get the claim lodged, then complainant could have contacted on the given mobile numbers or through emails, to the concerned for lodging the claim. As email address for lodging the claim is specifically given on Ex.C1=Ex.R2 and as such, certainly submissions advanced by counsel for Ops has force that if really the complainant was interested in lodging the insurance claim at earliest, then she could have sent the claim through correspondence(registered post/courier or through email). It is not the case of complainant that she lodged claim by sending correspondence or through email with the concerned and as such, certainly submissions advanced by counsel for Ops has force that actually insurance claim has not at all been lodged till date by the complainant with Ops.

10.              Annexure-III containing the terms and conditions of the policy, which is part of Ex.R2, specifically provides that it is condition precedent to liability hereunder that in the event of any occurrence likely to give rise to a claim under this insurance that the insured person or his representative, must notify ‘American Assist’ immediately. The insured person or his representative should quote ‘American Assist’ as much information concerning the illness, accident or occurrence as is available, including the name of the treating doctor, name and telephone number of the hospital, the OMP policy number and its date of issue. Further, as per this condition no.3 of the general conditions applicable to all sections of the policy, the claim document, together with invoices, travel documents and any other relevant details must be sent to ‘American Assist/Heritage’ clearly stating under which section of the policy, a claim is being made. When such provision in clause 3 of general conditions, applicable to all sections is made a part of the terms and conditions of the policy, then certainly the complainant should have sent the claim form along with all documents to ‘American Assist/Heritage’ by clearly specifying the section, under which, the policy claim is lodged. That has not been done and as such, virtually the complainant has not complied with the condition precedent for putting liability on Ops to honour the insurance claim.

11.              In Ex.C1=Ex.R2, it has been specifically mentioned that M/s Karvat Cover-More Assist Pvt. Ltd., is the company which provides Global Assistance services and ancillary products such as TrawellTag and offers Travel Insurance as an add-on benefit. In the disclaimer endorsed on Ex.C1=ExR2, it is specifically mentioned that said Karvat Cover-More Assist Pvt. Ltd is a corporate insurance agent, providing policy underwritten by the United India Insurance Company Limited. So, certainly name of corporate agent of Ops is mentioned in the disclaimer clause endorsed on Ex.C1=Ex.R2. After going through that complainant could have contacted the said Karvat Cover-More Assist Pvt. Ltd. for complaining that her insurance claim form is not accepted by Ops or any of them. That is not shown to be done and as such, it is obvious that virtually complainant has not tried to lodge claim with the authorized representative of Ops.

12.              After going through para no.1 of annexure-III containing policy terms and conditions for overseas travel insurance, it is made out that American Assist is the third party administrator, who is to provide the emergency assistance and claims administration service. Address of American Assist is specifically mentioned under the definition endorsed on first page of terms and conditions of the policy itself. Besides, it is specifically mentioned that Heritage is the Indian Partner of American Assist and named as Heritage Health Service Pvt. Ltd with its head office at Kolkata. This Heritage to provide assistance to the insured person in India on behalf of American Assist as per the terms and conditions of the policy. So, name and address of TPA as well as of Indian Partner, with whom, claim to be lodged has been specifically mentioned on the first page of the terms and conditions of the policy. As lodging of insurance claim through notification with American Assist is a condition precedent as per clause 3 of the general conditions applicable to all sections of the policy and as such, certainly the insurance claim could not have been processed till lodging of the same with notified agency namely American Assist. It is not the case of complainant that such claim lodged with American Assist and as such, complainant herself has not complied with the condition precedent for lodging the claim. In view of non-lodging of any claim with TPA or the corporate agent of Ops, certainly the complaint is pre-mature. Submissions advanced by counsel for Ops in this respect has force.

13.              Counsel for Ops has placed reliance on law laid down in case of Mahil Singh vs. Oriental Insurance Company Limited and another-I(2011)CPJ-446(Punjab State Consumer Disputes Redressal Commission, Chandigarh) for arguing that if intimation to insurance company qua accidental loss not submitted, then question of appointment of surveyor by the insurance company does not arise, due to which, complainant not entitled to recover the loss amount from the insurance company. Submission of intimation for lodging insurance claim in respect of accidental loss to the vehicle is also a condition precedent for processing of insurance claim and as such, it is vehemently contended that in view of non-lodging of any claim by the complainant of this case, complainant is not entitled to recover any amount from Ops, even if the policy provides for award of 500 US dollars at the most as compensation with certain deductions. However, after going through the terms and conditions of policy, it is made out that no time limit is fixed for notifying the claim with American Assist, but word immediately alone is used there. Complainant has taken steps by issue of legal notice Ex.C5 in direction towards lodging the claim, but remained short of lodging the same with the appointed TPA or the corporate agent and as such, it is obvious that virtually the complainant not aware of the   procedure of lodging the claim. Being so, even if the complaint                          may be pre-mature due to non-lodging of claim, but despite that ends of justice warrants that on lodging of such claim within 15 days from the date of receipt of copy of this order, as per clause 3 of the general conditions applicable to all sections, the same should be considered and decided as per the terms and conditions of the policy because it is well settled that an otherwise legally sustainable claim should not be allowed to be frustrated in the garb of technicality alone.

14.              As per law laid down in case titled as Sunil Sharma vs. National Insurance Company Limited-II(2015)CPJ-46(Delhi State Consumer Disputes Redressal Commission, New Delhi), an otherwise genuine claim should not be rejected on flimsy and technical grounds, otherwise, the confidence of people in the insurance company would be deeply eroded. It is so because Consumer Forums are not established to go in the technicalities of the civil or criminal jurisprudence. Disputes are to be decided on yardsticks of reasonableness, probability and principles of natural justice do apply with full force in matters coming before the Consumer Forums. When such is the legal position laid down by the above cited case, then certainly the genuine claim of the complainant must not be allowed to frustrate merely because she was not aware of the technicalities of the procedure of lodging the claim. Being so, benefit from ratio of case titled as New India Assurance Co.Ltd. and another vs. Basant Kumar Mukherjee-I(2008)CPJ-32(West Bengal State Consumer Disputes Redressal Commission, Kolkata) cannot be gained by the counsel for Ops, particularly when while holding this complaint to be pre-mature, nothing is decided except grant of permission to the complainant to lodge the claim at earliest. Certainly the Forum has no power to pass mandatory injunction to direct the complainant to file claim as per laid down in case of New India Assurance Co.Ltd and another vs. Basanta Kumar Mukherjee(Supra), but at the same time, technicalities cannot be allowed to stand in the way of passing of a genuine claim and as such, ends of justice warrants that in case, the complainant lodges the claim within 15 days from the date of receipt of copy of this order, then her claim should be considered by Ops as per terms and conditions of the insurance policy. Record of this observation essential for achieving the ends of justice, particularly when complainant of the case may have been misguided in issue of notice Ex.C5 instead of advice of lodging of claim with TPA or the corporate agent as per clause 3 of general conditions applicable to all sections of the policy.

15.              Ops got checked the record of corporate agent, M/s Karvat Cover More Assist Pvt. Ltd., as well as of Heritage TPA and of itself for finding that claim papers have not been submitted by the complainant and as such, Ops after due verification found as if the claim papers have not been submitted by the complainant. The document Ex.R1 fortifies these finding as if claim papers      have not been submitted by the complainant and nor the claim lodged by the complainant.

16.                 It is contended by counsel for Ops that claim of the complainant not admissible in view of provisions incorporated in Section L and Section N of the policy, but that submission has no force because the present is not a case of trip delay or trip cancellation, but it is a case of missed connection. Section M of the terms and conditions of the policy provides that in case the insured person missing a connecting flight or train or ship/cruise etc., due to cancellation of service or departure or delayed departure or change of route or non landing/docking or offloading of passengers, then claim shall be reimbursable to the extent of 90% only of reasonable expenses relating to alternate transportation etc. It is the case of complainant that as flight of Vietnam Airlines Corporation reached Ho Chi Minh City on 12.6.2015 at 6:30 PM against the scheduled time of 4:55 PM and that is why she could not board on the connected flight of Jet Airways India for reaching from Ho Chi Minh City to Delhi. So, these allegations along with produced documentary evidence establishes as if it is a case of missed connection, due to which, the complainant could not avail the services of Jet Airways India(9W)63 flight from Ho Chi Minh City. Confirmation Ex.C3 got by the complainant from Vietnam Airlines Corporation also establishes as if flight No.VN595 from Hongkong to Singapore stood delayed. It is this delayed flight that resulted inconnivance to the complainant, due to which, she had to stay at Ho Chi Minh City     for 24 hours on 12.6.2015 and then she had to go to Singapore for reaching Delhi on 14.6.2015 only through Singapore Airline. Ex.C4 is the ticket which shows that the complainant had to travel from Ho Chi Minh City to Singapore on 13.6.2015 in flight with departed time of 19:45 hours, but arrival at destination station as 22:40 hours. Further, this Ex.C4 establishes that the complainant departed in Singapore Airline flight on 14.6.2015 at 02:35 hours, but arrived at Delhi at 05:35 hours and as such, these documents supports the claim of the complainant qua missing of the connected flight from Ho Chi Minh City, due to late arrival of Vietnam Airlines Corporation flight. Being so, case in hand is covered by section M of the terms and conditions of the policy. Reimbursement is permissible only to the extent of 90% of the insured amount of Rs.500 US dollars because deductions of 10% envisaged through the terms and conditions of the policy and also as per endorsement on Ex.R2 itself. Even if such entitlement of the claim may be there, but she herself   has not lodged any claim and as such, complaint is pre-mature and arguments advanced by counsel for OPs oral as  well  as through written arguments have force. If the complaint is pre-mature, then certainly right should be given to the complainant to notify his claim to American Assist as per clause 3 of the general condition applicable to all sections of the policy within specified period, so, that her claim may be considered and adjudicated as per the terms and conditions of the insurance policy. If reply to the legal notice (sent by the complainant to Ops) has not been sent, then the same itself will not imply that claim of the complainant is acceptable. Rather, non lodging of the claim by the complainant disentitled her from claiming any relief in this complaint.

17.              Therefore, as a sequel of the above discussion, complaint dismissed with the observations that in case complainant notifies to American Assist as per clause 3 of general conditions, applicable to all sections of the policy within 15 days from the date of receipt of copy of this order, then her claim will be considered and decided as per terms and conditions of the insurance policy. No order as to costs. Copies of order be supplied to parties free of costs as per rules.

18.                        File be indexed and consigned to record room.

 

 

 (Param Jit Singh Bewli)                            (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:01.06.2017

Gurpreet Sharma.