Punjab

Faridkot

CC/19/39

Dr. Saurabh Kapoor - Complainant(s)

Versus

United India Insurance co. Ltd - Opp.Party(s)

Sunil Chalwa

16 Dec 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 C. C. No. :                  39 of 2019

 Date of Institution:      18.02.2019

 Date of Decision :       16.12.2019

 

1. Dr. Saurabh Kapoor, Kapoor Nursing Home, Jaipur Ear, Nose, Throat Hospital & Endoscopy Centre, Near Bus Stand, Kotkapura, Tehsil Kotkapura, District Faridkot.
2. Kapoor Nursing Home, Jaipur Ear, Nose, Throat Hospital & Endoscopy Centre, Near Bus Stand, Kotkapura, Tehsil Kotkapura, District Faridkot through its Proprietor Dr Usha Kapoor.

 

...Complainant

Versus

 

1. United India Insurance Company Ltd through its Competent Authority/Managing Director, 42-C, 3^rd Floor, Mool Chand Commercial Complex, New Delhi-110024.
2. The Manager, United India Insurance Company Ltd, Branch Kotkapura.

.....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Param Pal Kaur, Member.

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Present: Sh Sunil Chawla, Ld Counsel for Complainant,

              Sh Ashok Monga, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal, President)

                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund him payment of  Rs.75,000/-deposited by him in execution of complaint number 132 of 2015 titled as Harpreet Singh Vs Dr Saurabh Kapoor and for further directing OPs to pay Rs.50,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses of Rs.10,000/.

2                      Briefly stated, the case of the complainants is that they runs a hospital and in year 2015, a complaint bearing number 132 of 2015 titled as Harpreet Singh Vs Dr Saurabh Kapoor was filed against them in District Consumer Forum, Faridkot. Said complaint was allowed on 25.05.2016 against complainants and OPs were ordered to pay the complainant Harpreet Singh Rs.2 lacs with interest at the rate of 9% per anum alongwith compensation for litigation expenses. Complainants and other Ops preferred the appeal against the order dated 25.05.2016, which was dismissed by Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh on 15.11.2017. At the time of filing the appeal, the complainants deposited Rs.25,000/-and Rs.50,000/-with Hon’ble State Commission and at the time of disposing off the appeal,

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Hon’ble State Commission passed order that “In case the amount deposited by appellant no.1  is covered under the insurance policy, then, he will claim the same from Insurance Company”. After that order, OPs approached District Consumer Forum, Faridkot and withdrew the amount alongwith interest deposited by complainants, which was required to be paid back by Ops to complainants as it was deposited by complainants as mandatory condition for filing the appeal. Ld counsel for complainants submitted that complainants are entitled to receive the amount of Rs.25,000/-and Rs.50,000/-deposited by them in the shape of FDR because they were insured with OPs, but OPs withdrew this amount from the District Consumer Forum, Faridkot and did not return the same to complainants. It is further submitted that complainants were assured about the risk involved under the policy, otherwise also, whichever amount is paid or to be paid to Harpreet Singh petitioner, the same was assured to be paid by Insurance Company as it is the liability of OPs/Insurance Company to settle the claim of Harpreet Singh and amount deposited by complainants with Hon’ble Commission for filing the appeal was to be paid to complainants because that was a part of covered policy. Complainant approached OPs many times and made several requests to OPs to make payment of his genuine insurance claim, but all in vain. Even legal notice issued by complainants bore no fruit. All this amounts to deficiency in service and has caused great harassment and mental agony to him. He has prayed for seeking direction to Ops to make payment of his genuine insurance claim alongwith compensation for

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harassment and for litigation expenses besides the main relief. Hence, the present complaint.

3                                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 5.03.2019, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               On receipt of the notice, the opposite party filed written statement taking preliminary objections complaint in hand is not maintainable in the present form as no cause of action arises against answering OPs. There is no negligence or deficiency in service on the part of OPs and complainant has filed the present complaint with ulterior motive to extract money from them. Moreover, present complaint involves complicated questions of law and facts requiring lengthy evidence, which is not possible in the summary proceedings of Consumer Protection Act. It is further averred that complaint is bad for non joinder of necessary party as Harpreet Singh/complainant in main case, has not been impleaded as party in array of OPs. However, on merits, ld counsel for OPs has denied all the allegations of complainant being wrong and incorrect and asserted that Harpreet Singh filed complaint against present complainants which was decided by District Consumer Forum, Faridkot on 25.05.2016 with direction to them to pay the Harpreet Singh/ complainant Rs.2 lacs with interest at the rate of 9% per anum alongwith compensation for litigation expenses. Complainants  and answering OPs

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went in appeal and Appeal filed by complainants and OPs was dismissed by Hon’ble Commission vide order dated15.11.2017 and it was ordered that amount deposited by Ops before filing the appeal be returned to answering OPs and this amount is not illegally withdrawn by them. It is also denied that any notice was ever issued by complainants to them. It is also brought before the Forum that policy in question, which was subject matter of complaint decided on 25.05.2016 has already been expired on 22.07.2015 and it has no concern with the present complaint. It is reiterated that there is no deficiency in service on the part of answering OPs and prayer for dismissal of complaint is made.                   

5                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-5 and then, closed his evidence.

6                                              In order to rebut the evidence of the complainant, the Ld Counsel for OPs tendered in evidence affidavit of R N Bansal Ex OP-1 and document Ex OP-2 and then, closed the same on behalf of OPs.

7                                              We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents available on the file.

 

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8                                              The case of complainants is that being dissatisfied with the order dated 25.05.2016 passed by this Forum in complaint bearing cc number 132 of 2015 titled as Harpreet Singh Vs Dr Saurabh Kapoor, vide which complainants were directed to pay Rs.2 lacs alongwith interest and litigation expenses to Harpreet Singh/complainant in cc no.132 of 2015, they filed appeal against said order and deposited Rs.25,000/- and Rs.50,000/-with Hon’ble State Commission Punjab Chandigarh, but Hon’ble Commission upheld the award passed by this Forum and dismissed the appeal of complainants. Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh on 15.11.2017, at the time of disposing off the appeal, passed order that “In case the amount deposited by appellant no.1  is covered under the insurance policy, then, he will claim the same from Insurance Company”.  OPs approached District Consumer Forum, Faridkot and withdrew the amount deposited by complainants though it was required to be paid back by Ops to complainants as it was deposited by complainants as mandatory condition for filing the appeal. As per complainants, they are entitled to receive the amount of Rs.25,000/-and Rs.50,000/-deposited by them in the shape of FDR because they were insured with OPs, but OPs withdrew this amount from the District Consumer Forum, Faridkot and did not return the same to complainants. Despite repeated requests and issuance of legal notice, OPs did not pay any heed to hear genuine requests of complainants and did not return the said amount to them, which amounts to deficiency

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in service. In reply, ld counsel for Ops have denied all the allegations of complainant being wrong and incorrect and asserted that there is no deficiency in service on their part. Ld counsel for OPs brought before the Forum that Hon’ble State Consumer Disputes Redressal Commission  Punjab, Chandigarh dismissed the appeal filed by complainants and OPs and  vide order dated 15.11.2017, ordered that amount deposited by Ops before filing the appeal be returned to Insurance Company and this amount is not illegally withdrawn by them. In the light of document Ex OP-2 which is copy of zimni order dated 20.09.2018, passed by this Forum, it is clear that Insurance Company fully cleared and satisfied the award amount passed by this Forum to complainant and now as per order of Hon’ble Commission, Insurance Company was entitled to receive the amount deposited by it before the filing the appeal before Hon’ble State Commission.Only Insurance company has made payment of Rs.2,23,360/-to complainant in full satisfaction of order passed by this Forum and in compliance of order issued by Hon’ble Commission by upholding the order dated 25.05.2016 passed by this Forum. Therefore, only Insurance Company is entitled to receive the amount deposited for filing the appeal and same has been given to them. Claim sought by complainant is not appropriate and there seems to be no deficiency in service on the part of Ops. The Ld Counsel for Ops argued that complainant was insured with them under Professional Indemnity Insurance Policy covering from 27.07.2014 to 22.07.2015. Under this Policy, the Insurance Company was

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liable to indemnify the insured for claim arising out of bodily injury or death of any patient caused or the alleged to have been caused by any act of error, omission or negligence in professional services rendered or which should have been rendered by the insured or the qualified assistants named in the Schedule  or any nurse or technician or assistant employed by the insured. As per Policy, the insured shall give information regarding the same to Insurance Company in writing as soon as possible, when the claim is made against the insured and in which form the subject of indemnity under the Policy and shall give all such additional information which the Company may require but in the present case, the complainant never gave any information in written to Insurance Company regarding subject matter in question, he never lodged any claim before the Insurance Company for reimbursement of amount paid by him to the Harpreet Singh patient. Even as per as per orders of the Hon’ble State Commission Punjab, Chandigarh dated 15.11.2017, the Hon’ble State Commission directed the complainants that in case they are covered under the Insurance Company, they would claim the same from Insurance Company but they have not lodged any claim before the Insurance Company. As such, the present complaint is premature and there seems to be no deficiency in service on the part of OPs and it is liable to be dismissed.

9                                                  We have thoroughly gone through file and evidence and pleadings put forward by respective parties and from the perusal of all documents placed on record and in view of above

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discussion, we come to the conclusion that as per terms and conditions of the Policy, the complainant had to give information regarding claim to Insurance Company and also they are liable to furnish all the information and requisite documents as required by Insurance Company to settle their claim, but complainants have not lodged any claim with Insurance Company and straightforwardly came before this Forum to file the present complaint. Moreover, as per orders of the Hon’ble State Commission, complainants were directed to file their claim before Insurance Company regarding amount deposited by them with Hon’ble State Commission before filing the appeal i.e the amount claimed by the complainants through this complaint, but even then, complainants have not filed any claim before the Insurance Company and gave them no oppertunity to investigate their claim and to decide the same on merits. Therefore, we are of considered opinion that present complaint is premature and there is no deficiency in service on the part of OPs. Hence, complaint in hand is hereby dismissed being premature. The complainants are directed to lodge their claim with Insurance Company and also directed to submit all the required documents which Insurance Company may require for settlement of claim within 15 days of the receipt of the copy of the order. The Insurance Company is further directed to decide the claim of complainants within 45 days from the date of submission of documents filed by the complainants to them. If the complainants do not get satisfied with the decision of Insurance Company then, in that case, they are at

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liberty to file afresh complaint on same cause of action. However, in peculiar circumstances of the case, there are no orders as to costs. Copy of order be supplied to the parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 16.12.2019                 

 

(Parampal Kaur)                      (Ajit Aggarwal)

           Member                                   President