The complainant on 12.12.2018 has filed the complaint u/s.12 of the Consumer Protection Act.  

The case of the complainant in brief is that the complainant is a bonafide consumer under the O.P.Nos.1,2 & 3 having Family Medicare Policy since 1998 though the computer showed the inception date of the first policyon 03.09.2001 in the name of him and his wife. Since then he used to renew the said policy from time to time. The last policy number is 0314032816P108561395 and the policy period was/is from 15.29 hours on 28.09.2016 to mid night of 27.09.2017. The policy was renewed through the agent namely Sumeru Mitra (agent code AGD0007854). He is also a bonafide consumer in the O.P.No.4 having account No.725301011000640 and O.P.No.4 is also a corporate agent of the O.P/Insurance Co. and its Code number is BKA92600090001331.

Further case of the complainant is that during Family Medicare policy period a proposal was made by O.P.No.4 to the complainant that if the account holder of O.P.No.4 renewed through it then every account holder would get an opportunity of lesser premium and sum insured also would increase. Accordingly, O.P.No.4 gave a form of O.P/Ins. Co. which was submitted by the complainant along with the copy of previous polisy and paid necessary premium of Rs.7,671/-through the savings bank account No.725301011000640 for a sum insured amounting to Rs.5,00,000/-on the same day i.e. before expiry of the previous policy. But curious enough that the policy certificate of the claimant was not renewed. Then the complainant communicated the same in writing personally and over phone and also by mail from his son regularly with request to issue the current policy certificate.  The O.P.Nos. 1 to 3 assured the complainant to issue current policy certificate as early as possible. In the mean time Smt. Mamata Sarker, wife of the complainant has fallen seriously ill and admitted in Anandalok Nursing Home on 23.03.2018 and informed the matter to the O.P.No.1. But none has taken any step or action in any manner rather the claimant received mail from O.P./Ins. Co on 04.06.2018 to the effect that the policy might be renewed with a declaration that there was no claim during the lapse period and other information. The complainant came to know that his policy was not renewed. The claimant also stated that if that be so, the O.P/Ins. Co. could be informed immediately within the time and the complainant certainly would take steps and deposited the required amount for renew.

It is further stated by the complainant that his wife Mamata Sarker was treated at Siliguri Anandaloke Nursing Home and Neurosciences Centre, Salt Lake ILS Hospital and Asian Institute of Gastroenterology, Hyderabad. For that purpose he expended Rs.4,36,8022/- and other expenses Rs.50,000/-. After getting information from the complainant, the O.P/Ins. Co. intentionally with an ill motive and to deprive him issued such type of letter which was illegal for wrongful gain. Their such type of act also cheated and deprived the complainant from legal claim and it was an act of highly deficiency in service on their part. Due to nonperforming of their sincere act in time the complainant suffered huge loss. The complainant also sent an advocate’s letter dt. 16.11.18. The cause of action arose on and from 04.06.18. 

Under the above circumstances the complainant prays before the Forum to direct the O.P/Insurance Co. to renew the said policy further and to pay a total cost of treatment of Rs.4,86,822/- and compensation of Rs.50,000/- for mental pain and agony and also a litigation cost of Rs.10,000/-.

The O.P.Nos.2,3 and 5 did not appear to contest the case though the notices were served upon them. Accordingly, the case is heard ex parte against them.

The O.P.No.1 has contested the case by filing written version denying all the material allegation contending inter alia that the case is barred by law of limitation and that there was no cause of action for the case and that the case is bad for non joinder of necessary parties.

The specific case of the O.P.No.1 is that the complainant is not the bonafide customer under the O.P.No.1 because the Family Medicare policy was lapsed or was not renewed duly. The O.P.No.1 sent mail on 04.06.18 and it was informed that the policy may be renewed with a declaration that there is no claim during the lapse period and other information and also the claimant came to know that his policy was/is not renewed and during the period of illness of Smt. Mamata Sarker, wife of the complainant on 23.03.18 the policy was lapsed and was not renewed.

Upon this background the O.P.No.1 claims the dismissal of the case.

The O.P.No.4 has contested the case by filing written version denying all the material allegation contending inter alia that the instant case is not maintainable in law and the complainant has no right to file the instant case against it as the complainant agreed as per terms and condition with this O.P in respect of any claims related therewith with the Insurance company. The complaint also does not disclose any cause of action against this O.P as this O.P acted only as agent of the Insurance Co. This O.P. also made several e-mail as well as telephonic communication with the O.P.No.1 requesting them for issuance of certificate of medical insurance policy in favour of the customer as the complainant deposited Rs.7,906/- as premium after duly filled up the forms taking it from this O.P which was deposited in the account of O.P.No.1 on 22.09.17 and still the said amount were not returned by the O.P.No.1 nor issue any acknowledgement of certificate under said V. Health Care policy.

Upon this back ground the O.P. No.4 prays for dismissal of the case against it.

                            Decision with reasons

In order to prove the case the complainant has examined himself as P.W.1. He also files documents which have been marked as exbts.1,2,3,4,5,6,7,8 and 9.

In order to disprove the case against him the O.P.No.4 has examined one Nagmani Jaiswal, Branch Manager of the O.P.No.4 as O.P.W.1. The documents filed by the O.P.No.4 have been marked as Exbts. A,B,C and D series.

Perused the oral evidence of p.w.1, o.p.w.1 and all exhibited documents of both sides including the filled up form received by the complainant from O.P.No.4. From the oral evidence as well as documentary evidence it is found that the complainant and his wife Mamata Sarker were the holder of Family Medicare Policy under the O.P.No.1for the period from 28.09.16 to 27.09.17 and admittedly the policy holder Mamata Sarker became ill on 23.03.18 and admitted at Anadaloke Muiti Speciality Hospital, Siliguri and there is no denial of the treatment  of the wife of the complainant Mamata Sarker  by the O.P.No.1 in its W/V. Furthermore, the O.P.No.1 did not adduce any evidence in support of his facts mentioned in the W.V. More so, in the cross examination of P.W.1 the O.P.No.1 did not take any version regarding the treatment of Smt. Mamata Sarker in various hospitals as deposed in the chief. Therefore, the O.P.No1 could not shake the version of P.W.1 with regard to her illness and medical treatment of her in various medical institutes. The O.P.W.1 is related to this case only to the point of depositing of premium for the Family Medicare policy as a corporate agent of O.P.No.1 and naturally O.P.W.1 cannot say anything either in cross examination of the P.W.1 or in the deposition of O.P.W.1. The O.P. No.1 did not take any question regarding the cost of medical treatment of the policy holder Mamata Sarker, w/O the complainant and obviously it can be drawn and presumption regarding the bearing of cost of treatment by the complainant. From the oral evidence as well as the documentary evidence it is found that the complainant has bore away the cost of Rs.4,36,822/- for the medical treatment of his wife Mamata Sarker who is a policy holder of the Family Medicare policy issued by the O.P.No.1. The moot question arose in this case according to the version of both sides whether the Family Medicare policy of Mamata Sarker was covered by giving premium by renewing it ?

The O.P.No.1 though stated in its W.V that the Insurance policy was not renewed by giving renewal premium to the company at the relevant time of illness, the policy was lapsed and for the lapse policy the complainant and his wife are not entitled to get any mediclaim. But the P.W.1 stated in his evidence that he deposited the premium of Rs.7,671/- through the O.P.No.4 on 22.09.17. The forms given by the O.P.No.4, a corporate agent of O.P.No.1 in respect of depositing of premium for renewal of the policy which is also the form of O.P.No.1 shows that the P.W.1 deposited Rs.7,671/- for a sum insured of Rs.5,00,000/- on 22.09.17. The exbt.1 i.e. pass book issued by O.P.No.4 to the complainant and his wife Mamata Sarker which is a joint account shows that on 22.09.17 the said premium was deposited to the O.P.No.4 on 22.09.17 for renewal of medical insurance for the period of one year as per rule. The O.P.W.1 for the O.P.No.4 supported this version in his deposition and the O.P.No.1 did not disclose anything regarding the same. Furthermore, the O.P.No.1 also did not adduce any evidence to its version. According to settled principle of law he who takes the plea must be proved by him. The plea taken by the O.P.No.1 in his W.V finds no proof. The O.P.No.1 also did not file any documentary evidence in support of his claim. It is also clear from the oral as well as the documentary evidence submitted by the complainant that after depositing the premium for renewal of the policy the period of Insurance was covered from 28.09.17 to 27.09.18. The medical papers along with bills already exhibited show that Mamata Sarker ( policy holder) became ill on 23.03.18 and was medically treated in various hospitals during the period before 27.09.18 and he bore away the cost of medical treatment of Rs.4,36,822/-. The O.P.No.4 by its evidence through O.P.W.1 supported the version of depositing of the premium through it and till date the O.P.No.1 did not return the said amount. Therefore, it can be said that he accepted the said amount for renewal, but he did not issue the renewal of the policy certificate to the complainant and his wife and in long delay he informed that the policy has been lapsed without giving any opportunity to the complainant for taking any step though the complainant in several times took many steps through email and written communication. It was the duty of the O.P.No.1 to issue renewal policy certificate when he accepted the renewal money and did not return the same but he did not do so. It is tantamount to deficiency in service.

At the time of hearing of argument neither O.P.No.1 nor the O.P.No.4 did press on the point that the case is barred by law of limitation or that the claim has no cause of action to file the case or that the case is defect for non joinder of parties. Furthermore, the case was filed on 12.12.18 and the cause of action arose on and from 04.06.18 when the petitioner received mail issued by O.P.No.1 and it can be said that the case was filed within the period of limitation. As the policy was a Family Medicare and both the complainant and his wife are the policy holder, the case is not bad for non joinder of necessary parties.

Under the above foregoing facts and circumstances and evidence on record we have no hesitation to hold that the complainant as well as his wife Mamata Sarker is entitled to get the mediclaim of Rs.4,36,822/-. From the evidence on record it is also clear that the O.P.No.1 harassed the complainant and his wife by not issuing the renewal certificate of the Family Medicare in time and not praying the claim amount in time for which they suffered from mental pain and agony, specially when Mamata Sarker is now aged about 78 years old being a Senior Citizen. Therefore, Mamata Sarkar is also entitled to get compensation of Rs.20,000/- for mental pain and agony and Rs.5,000/- as litigation cost.

Fee paid is correct.

Hence, it is

                                         ORDERED

That this complaint case being no. CC-77/18 be and the same is allowed on contest against the O.P.Nos.1 and 4 and ex parte against the O.P.Nos.2,3 and 5 but without any cost.

The complainant as well as his wife is entitled to get mediclaim of Rs.4,36,822/- and Rs.20,000/- as compensation for mental pain and agony and Rs.5000/- as litigation cost.

The O.P.No.1 is directed to pay the mediclaim of Rs.4,36,822/- and compensation of Rs.20,000/- and Rs.5000/- as litigation cost by issuing an account payee cheque in the name of Mamata Sarkar within one month from the date of this order i.d. the said amount will carry interest at the rate of 5% per annum till realization of the said amount.

The O.P.No.1 is directed to renew the policy further.

Let a copy of this order be given to the parties free of cost.