O R D E R

 PRESIDENT

 1)        By this complaint the Complainant has prayed that it be held and declared that the Opposite Party is guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (referred to as the Act).  It is also prayed that the Opposite Party be directed to carry forward the renewal sum of Rs.1,50,000/- as unclaimed bonus with the periodic increment which the Complainant was enjoying and is entitled to.  The Complainant has further prayed that the Opposite Party be directed to pay compensation of Rs.25,000/- for the mental torture and agony undergone by the Complainant.  It is also prayed that the cost of Rs.15,000/- of this proceeding be directed to be paid to the Complainant by the Opposite Party.   

2)        According to the Complainant, he has availed Individual Health Insurance Policy from April, 2007 to April, 2008 and was renewed two subsequent years till April, 2010 for Rs.5/- Lacs.  The Policy No. is 021400/48/09/97/00000073 for the period 13/04/09 to 12/04/2010.  The Complainant is the consumer as per the definition u/s.2(d) of the Act.  The copies of past 3 years policy are marked as Exh.‘A’ colly.  

3)        It is submitted that in 2007 he had two separate policies from the Opposite Party.  However, thereafter the Complainant preferred to take the Individual Health Insurance Policy of Rs.5 Lacs having premium agreed for Rs.5,598/- with the accumulated bonus of Rs.1,50,000/- per year, thus, providing a cover upto Rs.6.5 Lacs.  It is alleged that the Complainant thereafter received renewal notice from the Opposite Party under which the Opposite Party has unilaterally decided to change the terms and conditions of the policy, although the same was renewal of the earlier policy.  It is alleged that the said change was not informed by the Opposite Party  Insurance Company but, by one alert consumer Mr. Bomi Maneck Dastoor sent out a general alert letter which brought the said mischievous alternation to the notice of the Complainant.  The copies of the letter sent by Mr. Dastoor alongwith the renewal notice are marked as Exh.‘B’ colly.  It is alleged that even on the website of the company of Opposite Party it did not mention such changes as have been informed by Mr. Dastoor.  The copy of the said webpage is marked as Exh.‘C’.  It is submitted that all the changes brought in are totally detrimental to the interest of the Complainant.  It is submitted that the said policy should have been renewed with continuity of the old policies of the Complainant and there should not be completely a new policy.  The Opposite Party did not give ‘No Claim Bonus’. Some clauses defeating the very purpose for which the policy was taken in the first place and the cover that was expected as provided in the medical policy in the earlier years.  It is submitted that the Opposite Party has also increased the premium from Rs.5,598/- to Rs.6,158/-. The said increase is more than 10%, whereas reducing the cover for various ailments.  The accumulated bonus of Rs.1,50,000/- available to the Complainant was taken away  and merged into exiting limits of Rs.5 Lacs. It is submitted that thus, the Complainant had lost the entire bonus which was accumulated on account of No claims since inception of the policy.  It is the case of the Complainant that the said alert circular had also mentioned of the limits assigned to certain ailments, effective for persons above the age of 36 yrs. The limit fixed in respect of those ailments are absurdly low and do not bear relation to actual cost that would be incurred.  It is submitted that in view of the limits fixed by the Opposite Party it would force a patient to go to third grade hospital where proper medical care could not be assured. 

4)        According to the Complainant, he by letter dtd.15/04/08 addressed to the Opposite Party had raised the aforesaid grievances and asked the Opposite Party  to restore the previous conditions of the policy as was only renewing the policy and did not intend to subscribe to any new policy on new terms and conditions. It is submitted, however, the Opposite Party has failed and neglected to reply to the aforesaid letter of the Complainant. The Complainant thereafter sent two reminders letters to the Opposite Party dtd.06/07/08 and 02/01/09.  The Opposite Party failed to respond to the said letters or renew the earlier policy providing the required cover to the Complainant.  It is submitted that the Opposite Party had issued another notice for renewal of the policy for the year 2009 and 2010 without making necessary changes.  It is alleged that the said act of the Opposite Party is the clear expression of dishonesty, deficiency of service and unfair trade practice on the part of the Opposite Party.  It is submitted that due to the aforesaid act of dishonesty on the part of Opposite Party the complaint is deprived of an insurance cover which was earlier available under the old policy as well as the accumulated bonus.  It is submitted that the Opposite Party adopted unfair trade practice by making alterations in the terms and conditions of the policy which caused great loss to the Complainant and the same is the case of deficiency in service of the Opposite Party. The Complainant has therefore, prayed that he be granted compensation to the tune of Rs.25,000/- as he is practicing Chartered Accountant and he has to take time of his professional commitments to attend such kind of litigations. The Complainant has therefore, prayed to grant reliefs as referred in para 1 of this order.    

5)        The Complainant after filing of the complaint on 17/09/2010 has submitted an application for seeking amendment to the complaint and also in the relief clause.  The Complainant by the said application has alleged that the renewal premium as well the no claim bonus and the additional premium under some new policy which was never subscribed to since the premium being paid is for the renewal of old policy, has nevertheless been charged by the Opposite Party and it has become necessary to include the current year and the following years to come and the Complainant had sought the amendment that the Opposite Party has despite the protest and having being served with a copy of the complaint continued to charge higher premium and continued for the period with the mischievously inserted exclusion clause which cannot be said to be renewal of the original policy.  The Complainant has also sought the amendment that besides this the Opposite Party has continued with their unfair trade practices not carried over the no claim bonus from the earlier policy while issuing policy for the period 13/04/2010 to 12/04/2011.  The Complainant alleged that he is relying upon the current policy and receipt of the premium paid which is marked as Exh.‘A’ colly. to the amendment application. The Complainant has prayed the additional reliefs that the Opposite Party be directed to restore all limits on medical expenses as was the case of original policy and direct the Opposite Party that the no limits cant be fixed by it.  The Complainant has further prayed that the additional relief may be granted that the Opposite Party be directed to remove limit assigned to various ailment effective for the person above the age of 36 years and the pre-existing diseases need go as no such clauses were present in the original policy.  

6)        The Opposite Party filed its written version and contested the claim.  It is contended that the Opposite Party is governed and controlled by the Insurance Regulatory and Development Authority Act, 1999.  The terms, conditions exclusion of Insurance policy in respect of tariff and non tariff business of general insurance such as, Fire Insurance, Marine Insurance and Misc. Accidents are determined, approved and regulated by the aforesaid authority.  It is submitted that regulations, guidelines and circulars issued by the IRDA are binding on all the Insurance Companies.  It is submitted that in the present complaint the policy issued to the Complainant is of Mediclaim/Health Insurance are tariff policies completely under the control of IRDA.  The tariff has to be fixed by IRDA.  It is contended that what would be covered under the policy and what would not are matters governed Acts, Regulations and Guidelines issued by IRDA.   

7)        It is the case of the Opposite Party that the Opposite Party is issuing policies of various products including Mediclaim/Health Insurance as per guidelines and circulars issued from time to time by its Head Office/Regional Office.  It is contended that the Complainant approached to the Opposite Party for the first time in the year 2007-08 and had taken Mediclaim Policy for the period 13/04/07 to 12/04/08 under which the coverage was of Rs.5 Lacs with cumulative bonus of Rs.1,50,000/- by charging premium of Rs.5,598/- without service tax.  The said Mediclaim Policy was issued as per guidelines, terms and conditions prevalent at that time issued by the IRDA to the Opposite Party.  It is further contended that at the time of renewal of policy with effect from 13/04/08 the Complainant’s Mediclaim policy was replaced by Individual Health Insurance Policy for the period 13/04/08 to 12/04/09 as per circular issued by the Head Office to the Opposite Party. It is submitted that at the time of renewal Complainant’s age was 43 yrs. Therefore, as per circular the Opposite Party could give maximum coverage of Rs.5 Lacs without cumulative bonus of Rs.1,50,000/- earned by the Complainant in the earlier policy. It is submitted that in place of cumulative bonus the Complainant was given discount of 20% in the premium and the premium was charged of Rs.4,926/- without service tax which was lower than earlier period of insurance for the year 2007-08.  It is further contended that the Complainant renewed the policy for the year 2009-2010 for the period 13/04/09 to 12/04/2010 and the Opposite Party could give maximum coverage of Rs.5 Lacs without cumulative bonus and in place of cumulative bonus the Complainant was given discount of 25% in the premium and the premium was charged of Rs.4,619/-without service tax.  The said premium was lower than earlier premium 2007- 2008 and 2008-2009.  It is submitted that the said coverage was given as per circular issued by the Head Office of Opposite Party which was determined, approved by the IRDA.  The copy of the said circular dtd.26/06/2007 issued by the Opposite Party’s Head Office and approved by the IRDA is marked as Exh.‘A’ to the written statement.  It is contended that there is no deficiency on the part of the Opposite Party. The Complainant was issued Mediclaim/Insurance are tariff policies and the same are completely under the control of IRDA.  It is denied that the Opposite Party had issued two policies in 2007.  It is contended that it had issued only one policy for the period 13/04/07 to 12/04/08.  It is contended that Mr. Bomin Dastoor is authorized agent of Opposite Party who is bound by the regulations, guidelines and circulars issued by the IRDA. He had issued general letter as per guidelines of IRDS.  It is contended that the Complainant has not read full contents of the website of the Opposite Party.  It is contended that the Complainant is misguiding by stating that the Opposite Party has increased the premium from Rs.5,598/- to Rs.6,158/-  for the period 2008-09.  It is contended that the Complainant had not addressed the letters dtd.15/04/08, 07/06/08 ad 02/01/09 to the Opposite Party.  It is contended that the Complainant is not entitled to carry forward with the renewal a sum of Rs.1,50,000/- as the unclaimed bonus with period of increment.  It is denied that the Complainant is entitle for the reliefs claimed and for amount of Rs.25,000/- towards compensation for mental torture and agony and cost of Rs.50,000/-. It is thus, submitted that the complaint be dismissed with cost.  

8)        The Opposite Party has also filed reply to the amendment application filed by the Complainant dtd.17/09/2010 and contended that the additional relief claimed by the Complainant cannot be granted.  It is contended that the policy for the period 13/04/2010 to 12/04/2011 was issued as per guidelines of IRDA.  

9)        The record shows that on the amendment application filed by the Complainant, it appears that upon hearing both sides, the said application was not disposed of  by judicial order but the same was kept for hearing at the time of final hearing of the main complaint. 

10)      The Complainant has filed his affidavit alongwith the complaint.  The Opposite Party has filed affidavit of P.R. Hingher, Senior Divisional Manager, alongwith the written statement.  Both the parties have filed their written arguments. We heard the Complainant in person and Shri. J.D. Karanjkar, Ld.Advocate for the Opposite Party.   

11)      The Complainant relied upon the documents filed with the complaint and has also relied the following cases in support of his submission for the grant of reliefs claimed in the complaint.  The said cases are as under. 1) Biman Krishna Bose V/s. United India Insurance Co. Ltd., (2001) 6 SCC 477   2) Ashok Kumar Paul  V/s. New India Assurance Co. Ltd., AIR 2007 Delhi 136, 3) Mukutlal Duggal V/s. United India Insurance Co. Ltd., 2006 ACJ 1576, 4) Mohanlal Agarwal V/s. United India Insurance Co. 2004 ACJ 1227, 5) Ashok Kumar Dhingra V/s. Oriental Insurance Co. Ltd. AIR 2004, Delhi 161. The Advocate for the Opposite Party relied the information provided by the Opposite Party by letter dtd.23/07/2012 regarding the queries made by this Forum and also relied the observations in the case of United India Insurance Co. Ltd. V/s. Mannubhai Dharnasinhaabi Gajera and Ors., reported in (2008) 10 Supreme Court Cases 404 and submitted that the complaint and the reliefs claimed by the Complainant are liable to be rejected.  

12)      While considering the claim made by the Complainant to direct the Opposite Party to renew the old policy without any break in the policy and accordingly accept the premium at the rate paid for the original policy which the Complainant was ready and willing to pay and without loading of premium against the Complainant, for that it is necessary to refer the policy placed on record at Exh.‘A’ which is styled as Individual Medical Policy.  The said policy appears to be have been issued by the Opposite Party on 13/04/2007 by accepting net premium of Rs.5,598/- + service tax Rs.685/- and stamp duty of Rs.1/- i.e. total amount of Rs.6,283/-.  Under the said policy the various facilities were provided by the Opposite Party to the Complainant.  It is undisputed that thereafter the Opposite Party  issued Individual Health Insurance Policy for the period 13/04/2008 to 12/04/2009 by accepting the premium of Rs.4,926/- + service tax Rs.609 + Stamp duty Rs.1/- i.e. total amount Rs.5,535/-.  The copy of the said premium receipt and the policy are filed on record with Exh.‘A’ at page 17 to 26.  In the premium receipt at page 18 the premium in total is though shown accepted the amount of premium is however, mentioned as Rs.6,158/-.  On the same premium receipt there is also specific note “Terms, conditions and clauses attached as per the respective individual scheme, date of proposal and declaration 13/04/07.”  The said premium receipt is signed by the authorized signatory of the Opposite Party.  In the next policy for the period 13/04/09 to 12/04/2010 in the column of premium the amount is mentioned as Rs.6,158/- and the amount of total premium appears to have been charged to Rs.5,095/- from the Complainant.  The copy of the said policy is at page 27 to 36 of Exh.‘A’.  In the said policy also the above referred term of proposal and declaration dtd.13/04/07 has been specifically mentioned and signed by the authorized signatory of the Opposite Party.  In our view the case made out by the Opposite Party that the Mediclaim Policy was replaced by Individual Health Insurance Policy from 2008 cannot be accepted. The Opposite Party has tried to clarify its contention raised in the written statement under the letter dtd.23/07/2012 addressed to the Advocate of the Opposite Party Shri. J.D. Karanjkar, under the signature of P.R. Hingher, Sr. Divisional Manager.  In the clarification given by Hingher in his letter that the terms and conditions of Health Insurance Policy that came into effect from July, 2007 are in compliance with that filed with IRDA in our view cannot be said applicable to the case of the Complainant because in the letter placed on record by the Opposite Party alongwith the letter of Shri. Hingher, it is specifically mentioned that the revised terms and condition will apply for all fresh proposals with effect from 01/03/09.  It is also mentioned that in respect of renewal of existing policies the officials of the Opposite Party are advised to intimate all policy holders of the revision in terms and conditions as per the enclosed letter.  In the said letter it is also mentioned that a confirmation will have to be obtained from the policy holder for incorporating the revised terms and conditions in the immediate renewal, if he opts for the revisions.  In our view therefore, the contention raised by the Opposite Party that Health Insurance Policy that came into effect from July, 2007 in view of the approval of IRDA as well as per the direction of the Head Office of the Opposite Party cannot be said proved by the Opposite Party.  The Opposite Party could not place on record that the terms and conditions of the Health Policy prepared by it were sent to IRDA for approval as the Opposite Party did not produce on record any correspondence to that effect before this Forum. In the letter of Shri. Hingher dtd.23/07/2012, he has specifically stated that these evidences have to be obtained from Head Office through regional office which requires times.  In our view therefore, the case made out by the Complainant that the Opposite Party has without any consent of the Complainant has replaced the policies for the period 2008-09, 2009-2010 and thereafter also can be accepted.  The Complainant has placed on record the copy of his letter dtd.01/04/2010 under which he had informed to the Opposite Party that that the Opposite Party once again unilaterally changed the terms of insurance policy which are detrimental to him.  He had also requested to revert the original terms of the policy and remove the restrictions imposed under the Health Insurance Policy.  As referred above the Opposite Party has under the premium receipts for renewal of policy for the period 2008-09, 2009-2010 had agreed the terms, conditions and clauses attached as per the respective individual schemes, date of proposal and declaration dtd.13/04/07 in our view ought to have provided the benefits under the individual Mediclaim Policy issued in favour of the Complainant on 13/04/07 wherein the unclaimed bonus amount is shown to the tune of Rs.1,50,000/-.  Furthermore, in the case of Biman Krishna Bose V/s. United India Insurance Co. Ltd., (Cited Supra)  the Hon’ble Supreme Court has observed as under –

            “A renewal of insurance policy means repetition of the original policy. When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force.  In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligation under the old policy unless such policies provided otherwise.  It may be that on renewal, a new contract come into being, but the said contract is on the same terms and conditions as that of original.”                     

            Considering the aforesaid observation and as the Opposite Party has not placed on record the relevant record of obtaining approval of IRDA, the consent of the Complainant for replacement of the Individual Health Insurance Policy against the Complainant’s old Mediclaim policy, thus, we hold that the Opposite Party is guilty of deficiency in service.  The Opposite Party has though accepted less premium for the period 2008 and 2009 from the Complainant than the earlier premium of Rs.5,598/- and service tax relating to the less premium from the Complainant but as the Complainant has specifically prayed that the Opposite Party  be directed to renew the old policy without any break in the policy and accordingly accept the premium at the rate paid for the original policy which the Complainant was every ready and willing to pay in our view is required to be granted in favour of the Complainant for the policies required to be issued by the Opposite Party as individual Mediclaim policy as per the period 13/04/07 to 12/04/08 from the year 2008 till the decision of this case by accepting the required difference of premium to the tune of Rs.5,598/- and service tax from the Complainant.  In our view the view of the observations in the case of Biman Krishna Bose (Supra) that once it is found that the act of Insurance Company was arbitrary in refusing to renew the policy the policy is required to be renewed with effect from the date when it fell due from its renewal.  Considering the facts of this case and as the Opposite Party did not bring any supporting documents in respect of its contention, we are of the view that the Opposite Party is guilty in deficiency in service as it failed to renew restore the Individual Mediclaim Policy later on from the period 2008 till the decision of this case in spite of the request made by the Complainant to the Opposite Party and thereby adopted unfair trade practice against the Complainant. However, for future it is open to the Opposite Party to load the premium to a limited extend in case of payment for insurance cover, if any paid to the Complainant. Except the authority relied by the Complainant in the case of Biman Krishna Bose (Cited Supra) the other authorities relied by him as well as the authority relied by the Advocate for the Opposite Party in the case of United India Insurance Co. Ltd. V/s. Mannubhai Dharnasinhaabi Gajera and Ors. (Cited Supra) is also not applicable to the facts of the present case.  In the result and in view of the prayers made by the Complainant as per the order below the following directions need to be issued against the Opposite Party.  Hence, the order –

O R D E R

i.            Complaint No.320/2009 is partly allowed against the Opposite Party.

ii.         The Opposite Party is held guilty of deficiency in service and is directed to renew the policies in favour of the Complainant from the period 2008 till the decision of this complaint as per the original policy issued in favour of the Complainant as Individual Mediclaim Policy dtd.13/04/2007 with the unclaimed bonus with the periodic increment including the earlier bonus accumulated to the tune of Rs.1,50,000/- (Rs.One Lac Fifty Thousand Only) by accepting the difference of less premium paid/accepted by the Opposite Party from the Complainant against the premium of Rs.5,598/-(Rs. Five Thousand Five Hundred Ninety Eight Only) and service tax on it which was prevailing during each year. The Complainant is directed to pay the premium for the aforesaid period which was paid less to the Opposite Party and tax thereon within the period of one month from the receipt of this order. The Opposite Party is directed to issue the policies as directed above on compliance by the Complainant regarding payment of premium within two months thereafter. The Opposite Party is however, in future at liberty to load the premium to a limited extend in case of high payments for insurance cover would be made to the Complainant  

iii.       The Opposite Party is directed to pay compensation of Rs.10,000/- (Rs.Ten Thousand Only) to the Complainant for the mental agony and torture suffered by him and cost of Rs.5,000/- (Rs. Five Thousand Only).   

iv.       The Opposite Party is directed to comply the aforesaid order of clause No.3 within one month from the date of receipt of this order.

    v.    Failure to comply the directions given to the Complainant the orders passed in favour of the Complainant would be inoperative.

vi.   Certified copies of this order be furnished to the parties.