Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that in the month of September, 2004, one agent of Opposite Parties  came to the house of the complainant and allured to purchase the policy of the Opposite Parties and on his allurement, the complainant purchased policy from the Opposite Parties  bearing No.2012042815P 102200544 and at that time, the Opposite Parties  told that there is a critical illness rider in the said policy. Further alleges that the complainant deposited the insurance installments regularly as per the settlement and other terms and conditions as mentioned in the insurance policy. The complainant suffered heart attack problem and remained under the medical treatment of Dayanand Medical College and Hospital (DMC) United Hero D.M.C.Heart Institute, Ludhiana and remained admitted from 18.12.2015 to 19.12.2015 and  again admitted from 15.02.2016 to 20.02.2016 and during this period, the complainant spent Rs.2,75,000/- on account of hospitalization charges, medical bills, diagnosis expenses and other expenses. Thereafter, the complainant submitted all the original bills and other relevant documents with the Opposite Parties  and requested to release the claimed amount which he spent during hospitalization.  Thereafter,  the complainant visited the office of Opposite Parties  time and again and also served legal notice upon the Opposite Parties  through his advocate on 18.05.2016, but the Opposite Parties  did not pay any heed to the request of the complainant.  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.1,25,000/- spent by the complainant  on his treatment and also to pay Rs.50,000/- on account of compensation for mental tension, harassment and agony suffered by him and also pay an amount of Rs.11,000/- 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 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. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. That the claim of the complainant is non payable under clause 4.3 CAD FOR PTCA of the insurance policy; that the claim of the complainant has been rightly repudiated as non payable as per the letter dated 19.04.2016 sent by Raksha TPA Private Limited opining that “ (1)Patient admitted with C/O Cad-Angina for which CAG Done. (2) As per  treating doctor certificate H/s HTN with CAD not mentioned in file But the hospital did not clearly disclose the history, (3) Cardiac disease if acute on chronic in nature and is covered under first two year exclusion clause, (4) hence claim non payable as per clause 4.3 Car for PTCA.”. On merits, the Opposite Parties  took up almost the same and similar pleas as taken up by them in the preliminary objections.  Hence, the Opposite Parties has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.    

3.       In order to  prove  his  case, the complainant has placed on record  his affidavit Ex.CW1/A alongwith copies of documents  Ex.C1 to Ex.C26 and  closed the evidence on behalf of the complainant.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties also tendered into evidence the copies of documents Ex.Ops1 to Ex.Ops36 and affidavit of Sh.R.N.Bansal Ex.OPs37 and closed the evidence.

5.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

6.       Ld.counsel for the Complainant 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 Party 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 at the time of issuance of the said policy  to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. It was the case of the complainant that in the month of September, 2004, one agent of Opposite Parties came to the house of the complainant and allured to purchase the policy of the Opposite Parties and on his allurement, the complainant purchased policy from the Opposite Parties bearing No.2012042815P 102200544 and at that time, the Opposite Parties  told that there is a critical illness rider in the said policy. Further contended that the complainant deposited the insurance installments regularly as per the settlement and other terms and conditions as mentioned in the insurance policy. The complainant suffered heart attack problem and remained under the medical treatment of Dayanand Medical College and Hospital (DMC) United Hero D.M.C.Heart Institute, Ludhiana and remained admitted from 18.12.2015 to 19.12.2015 and  again admitted from 15.02.2016 to 20.02.2016 and during this period, the complainant spent Rs.2,75,000/- on account of hospitalization charges, medical bills, diagnosis expenses and other expenses. Thereafter, the complainant submitted all the original bills and other relevant documents with the Opposite Parties  and requested to release the claimed amount which he spent during hospitalization.  Thereafter,  the complainant visited the office of Opposite Parties  time and again and also served legal notice upon the Opposite Parties  through his advocate on 18.05.2016, but the Opposite Parties  did not pay any heed to the request of the complainant and hence the ground for the repudiation of the claim of the complainant is quite illegal and false one.

7.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant 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  the complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. That the claim of the complainant is non payable under clause 4.3 CAD FOR PTCA of the insurance policy; that the claim of the complainant has been rightly repudiated as non payable as per the letter dated 19.04.2016 sent by Raksha TPA Private Limited opining that “(1)Patient admitted with C/O Cad-Angina for which CAG Done. (2) As per treating doctor certificate H/s HTN with CAD not mentioned in file But the hospital did not clearly disclose the history, (3) Cardiac disease if acute on chronic in nature and is covered under first two year exclusion clause, (4) hence claim non payable as per clause 4.3 Car for PTCA.” and the Opposite Parties has rightly repudiated the claim of the complainant after application of mind.

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

10.     It is not denial of the case that complainant suffered heart attack problem and remained under the medical treatment of Dayanand Medical College and Hospital (DMC) United Hero D.M.C.Heart Institute, Ludhiana and remained admitted from 18.12.2015 to 19.12.2015 and  again admitted from 15.02.2016 to 20.02.2016 and during this period, the complainant spent Rs.2,75,000/- on account of hospitalization charges, medical bills, diagnosis expenses and other expenses. On the other hand, ld.counsel for the Opposite Parties  has specifically mentioned that  the claim of the complainant is has duly been scrutinised and found non payable under clause 4.3 CAD FOR PTCA of the insurance policy and the same has rightly been  repudiated as non payable as per the letter dated 19.04.2016 sent by Raksha TPA Private Limited opining that “(1)Patient admitted with C/O Cad-Angina for which CAG Done. (2) As per  treating doctor certificate H/s HTN with CAD not mentioned in file But the hospital did not clearly disclose the history, (3) Cardiac disease if acute on chronic in nature and is covered under first two year exclusion clause, (4) hence claim non payable as per clause 4.3 Car for PTCA.” The relevant clause of the terms and conditions of the policy in question is reproduced as under:-

4.3 “During the first two years of the policy, the expenses on treatment of diseases such as Cataract, Benigh Prostatic Hyperthrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Congenital internal disease, fistula in anus, piles, sinusitis and related disorder, gal bladder stone removal, gout and rheumatism, calculus diseases are not payable.”    

11.     Perusal of the aforesaid clause 4.3 clearly establishes that not even a single word regarding the heart attack problem is mentioned in this clause for which the complainant has claimed his reimbursement. It appears that  the Opposite Parties without application of mind and without going through the aforesaid clause has repudiated the claim of the complainant.

12.     Further the repudiation of the claim of the Complainant was made specifically on the report of Raksha Health Insurance TPA Pvt.Limited Ex.OP15  with which the Complainant has no concern at all. 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.  

13.     In such a situation the repudiation made by the Opposite Parties-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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.

14.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the claim of the complainant.

15.     Now come to the quantum of compensation. As per the claim of the complainant, he  spent the amount of Rs.2,75,000/- on his medical treatment in the hospital, but perusal of the policy document Ex.C22 establish that the complainant was insured upto the extent of Rs.1,25,000/- only. Hence, as per the policy terms and conditions, the complainant can be awarded maximum upto the extent of Rs.1,25,000/- and we allow the complaint upto that extent.

16.     In view of the aforesaid facts and circumstances of the case,  we allow the complaint of the Complainant and direct Opposite Parties to reimburse the medical bills of the complainant upto the extent of Rs.1,25,000/- (Rupees one lakh twenty five thousands only)  alongwith interest @ 8% per annum from the date of filing the complaint i.e. 29.08.2018 till its realization. Opposite Parties–Insurance Company is also directed to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000/- (five thousands only) and Rs.5,000/- (Rupees five thousands only) as litigation expenses. The compliance of this order be made by Opposite Parties within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

17.     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 due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 14.12.2021.