ORDER

04.06.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that the complainants are the legal heirs of late Smt. Pushpa  Mehta W/o late Sh. Pawan Mehta. It is stated that late smt. Pushpa Mehta was approached by representative of the OP in the year 1999 pursuading her to subscribe for herself as well as her family members to health insurance policies offered be her. It is further stated that on pursuation late Pushpa Mehta subscribe “Individual Health Insurance Policy” to the health insurance policy in the year 1999 with a insured sum of Rs.5,00,000/-. It is further stated that the insurance policy renewed every year without any break till 2010-2011 and further  subscribe to “Super Top Up Medicare Policy” with a sum insured of Rs.15,00,000/- in the year 2009. It is stated that no terms and conditions were ever given by the OP either at the time of initial insurance of the policy or at the time of  annual renewal.
2. It is stated that in the year 2006 late. Smt. Pushpa Mehta unfortunately suffered heart ailment and undergone Combo Drive Implantation as suggested by the doctors as necessary treatment and at that time OP paid the claim. It is further stated that in the year 2011 late Smt Pushpa Mehta unfortunately needed to be hospitalized in Delhi Heart and Lung Institute for the replacement of Combo Drive device which was  implanted in the year 2006. It is further stated that she remained in the hospital from 09.05.2011 to 12.11.2011 as a result Rs  9,11,047/- were incurred as expenses on account of hospitalization, pathological investigations and replacement of Combo Drive device. It  is stated that husband of late Pushpa Mehta informed the OP with regard to hospitalization. The complainants filed on record  discharge summary, bills and  receipts and other communication to OP with regard to hospitalization.
3. It is stated that late Smt. Pushpa Mehta duly lodged a claim  with OP on 18.5.2011 and copy filed on record. It is stated that TPA of OP reported by letter dated 04.06.2011 that the claim was not admissible as it fell under Exclusion Clause 4.1 i.e illness is pre existing. It is further stated that it was reported by TPA falsely on the premise that in the year 2009 there was a gap of 27 days in renewal of the policy because the cheque issued towards the premium was dishonored, therefore, period of insurance was changed from 03.06.2009-02.06.2010 to 01.07.2009-30.06.2010. It is further stated that OP vide letter dated 01.07.2011 informed that claim filed was closed as per exclusion clause 4.1. It is stated that the letter dated 01.07.2011 is totally illegal, whimsical, arbitrary and contrary to record. Copy of letter filed on record by the complainant.
4. It is stated that a cheque of Rs.23,092/- was issued late Smt. Pushpa Mehta to renew policy no. 221900480897000000536 accordingly renewed policy no is 221900480897000000708 was issued for period 03.06.2009 to 02.09.2010. It is stated that unfortunately the said cheque was dishonored but it was not informed by OP and late smt. Pushpa came to know this fact when she checked her account balance. It is stated that she took prompt action without delay and immediately deposit another cheque with OP towards the renewal of premium. It is stated that OP issued cover note bearing policy no. 221900/48/09/97/00001001 for period from 01.07.2009 to 30.06.2010 wherein in the column previous policy no. 221900480897000000536 was mentioned. It is further stated that OP never communicated that the period between the issuance of these two policies will be treated as a break and the benefit of continuous policy will not be given in respect of pre existing disease under the policy in case she suffers through any such disease.
5. It is stated that late smt. Pushpa Mehta made all possible efforts to convince the OP through several letters and reminders and pleaded to clear her rightful claim without any delay. It is further stated that OP in the most  illegal, whimsical and arbitrary manner refused and denied the rightful claim. It is further stated that late smt. Pushpa Mehta preferred a complaint before the office of insurance ombudsman for her grievance redressal by submitting complaint on 16.07.2012. She also filed a complaint in a prescribed proforma P II. It is stated that ld. Insurance ombudsman dismissed the complaint on misconceived premises of the alleged break in the renewal of the policy and passed order dated 05.01.2015 which was communicated on 30.01.2015. the copy of letter filed  on record.
6. It is stated that clause  4.1 is not applicable in the present case as the fact of dishonor  of premium cheque was not noticed by late smt. Pushpa Mehta herself and also  rectified at her own. It is further stated that no intimation received from OP with regard to dishonor of cheque and now cannot take advantage of its wrong. It is stated that the policy remained continued without a break. It is stated that the mother of complainant late Smt. Pushpa Mehta suffered for long from various ailments and left heavenly abode on 06.11.2015. The copy of death certificate filed on record. It is further stated that father of complainant late Sh. Pawan Mehta also left for heavenly abode on 22.12.2012. Copy of death certificate filed on record. It  is stated that complainants could not take appropriate legal advise and peruse appropriate legal remedies in respect of illegal, whimsical and arbitrary action of OP. It is stated that OP is deficient in its services and also committed unfair  trade practice. It is stated that the cause of action arose on 30.01.2015 when the order dated 05.01.2015 of insurance ombudsman was communicated and a separate application for condonation of delay under section 24A (2) of CP Act, 1986 filed for condonation of delay.
7. The complainant is seeking directions against OP to pay Rs.9,11,047/- alongwith 9% interest from 18.05.2011 till realization, compensation of Rs.1,00,000/- for most illegal, whimsical and arbitrary manner, for causing tremendous harassment and mental agony and litigation cost of Rs.25,000/-.
8. OP filed WS and taken preliminary  objections that the claim of complainant has been repudiated on 01.07.2011. The complainant has approached this forum in the year 2017 i.e after expiry of six years. It is stated that complaint of the complainant therefore merits dismissal with cost on this short ground.
9. It is stated that the complaint of the complainant merits summary dismissal with cost on the ground of resjudicata. After the claim of the complainant was repudiated on 01.07.2011 the complainant has approached insurance ombudsman New Delhi (which is a quasi Judicial authority) for redressal of his grievance which was rejected by the said authority vide order dated 05.01.2015 after hearing both the parties. Insurance Ombudsman is a  statutory authority constituted by Insurance Regulatory and Development Authority under the powers conferred by Insurance Act, 1938 and is a quasi-judicial authority established to resolve the grievance of the policyholders. The consumer as well as LIC give their consent for resolving the dispute by way of mediation through Insurance Ombudsman and both the parties give an undertaking to the Insurance Ombudsman that they will abide by the decision of Insurance Ombudsman. If the decision is given by Ombudsman against the insurer, the Insurer can’t back out from this agreement. If the decision is given by the Ombudsman against the consumer the consumer often approach District Consumer Dispute Redressal Forum for redressal of their grievance under the provisions of Consumer Protection Act 1986. It is stated that complainants are not the consumer as per provisions of CP Act 1986 and OP denied the knowledge of the fact that complainants are legal heir  of late Smt. Pushpa Mehta.
10. OP stated preliminary submission that a mediclaim policy bearing no.221900/48/10/36/00000773 granted to late Smt. Pushpa Mehta for the period 03.06.2010 to 02.06.2011 subject to terms and conditions of the policy. It is further stated that late Smt. Pushpa Mehta lodged a claim with the OP for reimbursement of expenses incurred by her during the period 10.05.2011 to 13.05.2011 at Delhi Heart and Lung Institute Delhi. It is further stated that on receipt of claim form and associated documents of Pushpa Mehta it was observed that the patient was diagnosed with diabetes milleateus, hypertension, TIA, several L.V. Disfunction recurrent CHF dialated cardiomypathy for cowbodenx implant done on 08.11.2006 which is prior to inception of policy (Super Top Up) i.e 03.06.2010. It is stated that the deceased was found to be pre existing in nature, therefore, claim was found not to be payable and repudiated vide letter dated 07.06.2011. It is further stated that after repudiation of claim late Smt. Pushpa Mehta lodged a claim with insurance ombudsman Delhi under rule 16 of Redressal of Public Grievance Rules, who after hearing both the parties dismissed the complaint. It is stated that there is no deficiency of service on the part of OP, therefore, present complaint is liable to be dismissed.
11. On merit all the allegations made in the complaint are denied and contents of preliminary  objections and submission reiterated.
12. Complainants filed rejoinder  and denied all the allegations made in the WS and reiterated contents of the complaint.
13. Complainants filed evidence by way of affidavit of Sh. Parag Mehta. In the affidavit contents of complaint reiterated. Complainant relied on copy of identity and address proof Ex.CW1/1 (colly.), copies of sum of cover notes of the insurance policies Ex.CW1/2 (colly.), copy of discharge summary, bills and receipts Ex.CW1/3 (colly.), copy of communications with OP with regard to hospitalization Ex.CW1/4 (colly.), copy  of claim form Ex.CW1/5, copy of repudiation letter dated 01.07.2011 Ex.CW1/6, copies of relevant letters and reminders Ex.CW1/7 (colly.), copy of complaint filed at office of insurance ombudsman on 16.07.2012 Ex.CW1/8, copy of complaint in performa P II filed before insurance ombudsman Ex.CW1/9, copy of order of ombudsman dated 05.01.2015 and letter dated 30.01.2015 Ex.CW1/10 (colly.), copy of death certificate of late Smt. Pushpa Mehta Ex.CW1/11 and copy of copy of death certificate of late Sh. Pawan Mehta Ex.CW1/12.
14. OP filed evidence by way of affidavit of Deepak Divisional Manager. In the affidavit contents of WS reiterated.
15. Written arguments filed by complainant as well as OP.
16. We have heard Sh. S.K Singh counsel for complainant and Sh. Chaitanya Jain proxy for Sh. Kapil Chawla counsel for OP and perused the record.
17. The complainants alongwith the present complaint filed an application for condonation of delay under section 24A (2) CP Act 1986. The complainants claimed that the cause of action arose on 30.10.2015 when the order of Ombudsman received whereby complaint filed by late Smt. Pushpa Mehta dismissed. The complainant pleaded that this period may be excluded. It is further claimed that since 30.01.2015 present complaint is within limitation filed on 31.01.2017. On the other hand OP taken the preliminary objection that cause of action started on 01.07.2011 when claim of late Smt. Pushpa Mehta was repudiated. Ld. Counsel stated that the repudiation letter received by her during her lifetime and she filed complaint before insurance ombudsman. The ld counsel for OP further stated that the proceedings before insurance ombudsman are adequate and efficacious remedy therefore, present complaint ought to have been filed within two years from 01.07.2011, ld counsel further contended that section 14 of Limitation Act does not apply in the present facts and circumstances of the case, therefore, present complaint may be dismissed as time barred.
18. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the present complaint after the stipulated period. The term ‘sufficient cause’ has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-

“9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.”

19. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon’ble NCDRC held as under:-

“12. ………we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes, FA/516/2023 INDIAN RAILWAY VS. MR. S. VIJAYARAGHVAN DOD: 01.11.2023 DISMISSED Page 9 of 13 will get defeated if the appeals and revisions, which are highly belated are entertained.”

20. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054- 2055/2022 decided on 25.02.2022, wherein the Hon’ble Supreme Court held as under: -

“5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.

21. From the aforesaid dicta of the Hon’ble Apex Court and the Hon’ble National Commission, it is clear that ‘sufficient cause’ means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
22. Now applying the above discussed principle of law in the present facts and circumstances  of the case. The complainants are on wrongly interpreted the cause of action arose  on 30.01.2015 because substantially they are challenging the repudiation letter dated 01.07.2011. This commission is not an appellate body to orders of insurance ombudsman. We are of considered view that the cause of action not arose on 30.01.2015 but arose on 01.07.2011. The complainants filed all the documents which established that they have full knowledge with regard to repudiation letter and proceeding before insurance ombudsman. The complainants have not pleaded facts which constitute sufficient reason to condone the delay of  about 3.5 years. The pendency of complaint before  insurance ombudsman does not barred filing of complaint before this commission. On the basis of above observation and discussion complainant failed to establish sufficient cause for condoning the delay of 3.5 years, therefore, application as well as complaint dismissed being time barred.
23. On merit as well the repudiation letter dated 01.07.2011 is based upon clause 4.1of the terms and conditions of the health policy taken by late Smt. Pushpa Mehta. It is admitted on record that a cheque of Rs.28,717/- as a premium when deposited for renewal of policy from 03.06.2009 was dishonored, thereafter complainant again deposited the premium and policy renewed from 01.07.2009 to 30.06.2010. The dishonor of the cheque resulted in break in insurance of 27 days. It give rise to a new renew of the policy afresh, therefore, in the present facts and circumstances of the case clause 4.1 rightly and legally invoked by OP. We are of considered view that the repudiation letter dated 01.07.2011 is legal and justified.
24. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
25. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  04.06.2024.

     SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER