DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 111 of 04-04-2008<br /> Decided on : 31-03-2009 <br /> <br /> Arun Maheshwari S/o Sh. Hargopal Maheshwari, aged about 28 years, R/o 21179, Street No. 5, Ajit Road, Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.United India Insurance Company Limited, Divisional office, The Mall, Bathinda, through its Divisional Manager.<br /> <br /> 2.Hitesh Kansal (Agent) S/o Sh. O P Kansal, C/o Balaji Battery House, Opposite Centurion Bank of Punjab, G.T. Road, Bathinda. 110 001.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr.Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> Present : Sh. Sanjay Goyal, Advocate, counsel for the complainant<br /> Sh. S.M. Goyal, Advocate, counsel for opposite party No. 1<br /> Sh. S K Singla, Advocate, counsel for opposite party No. 2<br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT<br /> 1. Sh. Arun Maheshwari son of Sh. Hargopal Maheshwari, a resident of Ajit Road, Bathinda, has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against United India Insurance Company Limited through its Divisional Manager and its agent Sh. Hitesh Kansal, a resident of G. T Road, Bathinda, for giving direction to the opposite parties for release of amount of Rs. 2,00,000/- under the Insurance policy secured by him and payment of interest at the rate of 18 percent per annum from the due date till the date of payment, costs in the sum of Rs. 11,000/- and another sum of Rs. 25,000/- on account of mental and physical agony. Briefly stated the case of the complainant is as under :-<br /> That he purchased medi-claim Insurance policy from opposite party No. 1 through opposite party No. 2 vide cover note No. 726975 in the sum of Rs. 1,00,000/- for the period from 18-11-2002 to 17-11-2003. He renewed the policy for a period 5-12-2003 to 4-12-2004 vide policy No. 200401/48/03/00686, and for the period 7-12-2004 to 16-12-2005 vide Insurance Policy No. 200401/48/04/00610 and then for the period 17-12-2005 to 16-12-2006 vide Insurance policy No. 200401/48/05/20/00000518. As such, last policy secured by the complainant is continuity to earlier policies. He felt problem in passing urine in the month of November, 2005, and contacted Adesh Institute of Medical Sciences and Research, Bathinda, on 02-12-2005 as evident from prescription slip of even date bearing No. 05/12/57069. He was advised by the doctors posted in the said hospital for various medical tests including test about functioning of his kidnies from Post Graduate Institute of Medical Education and Research, Chandigarh ( Here-in-after referred to as 'PGI') and remained under treatment in the said Institute from December, 2005 onwards. He was admitted there for transplantation of his kidney on 24-02-2007 and was discharged there-from there after transplantation of kidney, donated by his father on 26-02-2007, and spent a sum of about Rs. 2,00,000/- for the said purposes about which intimation was conveyed to the opposite parties.<br /> 2. The father of the complainant paid a sum of Rs. 3,000/- to opposite party No. 2 for renewal of medi-claim Insurance policy issued by opposite party No. 1 for the period 17-12-2005 to 16-12-2006, in the month of November, 2006. He remained under impression that policy stands renewed and premium has been deposited by opposite party No. 2 with opposite party No. 1. Since the complainant remained under treatment in PGI, Chandigarh, for long, therefore, he could not secure the requisite documents required for settlement of claim by opposite party No. 1, within the stipulated period. However, he submitted the medical bills to opposite party No. 1 on 10-03-2007 and 20-06-2007. The opposite parties repudiated the claim lodged by the complainant vide letter dated 11-12-2007 on the context that claim does not pertain to policy issued for the period 17-12-2005 to 16-12-2006, as patient remained hospitalised for the period 24-02-2007 to 10-03-2007 as a case of chronic renewal failure, when the policy had already lapsed, although complainant had been regularly getting renewed his medi-claim Insurance policy since 2002-2003 and has paid the amount for renewal of the policy for the period 17-12-2006 to 16-12-2007. Hence, this complaint. <br /> 3. On being put to notice, opposite party No. 1 filed written version resisting the complaint by taking preliminary objections that complaint is not maintainable; that complainant has no locus standi and cause of action to file the same; that complainant has failed to convey intimation and to lodge claim with Third Party Administrator (Here-in-after referred to as 'TPA') as per terms and conditions of policy dated 17-12-2005 to 16-12-2006 and has not impleaded TPA as party to the complaint; that it is bad for mis-joinder and non-joinder of necessary parties; that there is no deficiency in service on the part of answering opposite party; that no policy was operative at the time of alleged hospitalisation of the complainant on account of which liability cannot be fastened upon the answering opposite party; that complaint is barred by limitation; that complainant has concealed the material facts from the knowledge of this Forum and has filed the complaint to achieve some ulterior motive in-connivance with opposite party No. 2, as such, complaint is liable to be dismissed with compensatory costs; that complainant is not consumer under the contested opposite party, as such, complaint is not maintainable; intricate questions of law and fact are involved, which cannot be adjudicated by this Forum in summary manner and complaint being false and frivolous, is liable to be dismissed. On merits, it is admitted that opposite party No. 2 has been appointed as agent by opposite party No. 1 for procuring business of Insurance and issuance of Insurance policies on their behalf. It is also admitted that complainant purchased medi-claim Insurance policies covering period 18-11-2002 to 17-11-2003, 05-12-2003 to 04-12-2004 and 17-12-2004 to 16-12-2005. It is also admitted that last policy was secured by the complainant for a sum of Rs. 2,00,000/- by making payment of lump-sum amount as premium but it is denied that it was in continuation of earlier policies. It is also denied that complainant purchased any other policy after 16-12-2005 or that he paid a sum of Rs. 3,000/- to opposite party No. 2 for the said purpose. It is contended that complainant did not declare or disclose any problem of urination and he never remained admitted in PGI Chandigarh. It is submitted that as per allegation made in the complainant, complainant remained admitted in PGI, Chandigarh, for transplantation of kidney after the date of last policy secured by him. It is also submitted that concocted version has been placed before this Forum by the complainant with intention to gain wrongful gain . It is urged that complainant be put to strict proof regarding transplantation of his kidney. It is denied that he is entitled to release of amount on account of claim under the Insurance policy or for payment of compensation for mental and physical agony and costs incurred by him for filing the complaint. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with costs.<br /> 4. Opposite party No. 2 filed separate written version resisting the complaint by taking preliminary objections that complainant has not approached this Forum with clean hands as he has projected a false, baseless and concocted version and that he is not consumer in the ambit of its definition given in the Act and as such, this Forum has no jurisdiction to entertain and try the complaint. On merits, it is admitted that complainant secured medi-claim Insurance policy covering the period 18-11-2002 to 17-11-2003 which was renewed for the period from 05-12-2003 to 04-12-2004 before. It was again renewed for the period from 17-12-2004 to 16-02-2005. It is submitted that new policy was purchased by the complainant for the period from 17-12-2005 to 16-12-2006, but it is denied that policy which expired on 16-12-2006 was renewed by him or that the father of the complaint paid a sum of Rs. 3,000/- to the answering opposite party for the said purpose. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same.<br /> 5. On being called upon, by this Forum, to do so, the learned counsel for the complainant tendered affidavit of the complainant Ex. C-1 and of his father Ex. C-2, and copies of documents Ex. C-3 to Ex. C-7.. On other hand, learned counsel for the opposite parties tendered in evidence affidavit of Sh. Balwinder Singh, Divisional Manager, opposite party No. 1, and he closed their evidence.<br /> 6. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully,<br /> with their kind assistance. <br /> 7. At the outset, Learned counsel for opposite party No. 1, Sh. S.M. Goyal, Advocate has drawn our attention to different terms and conditions of the policy for the period 17-12-2005-16-12-2006 in terms of which intimation about sickness and claim under the policy, has to be made to TPA, licenced by Insurance Regulatory and Development Authority, and lodge the claim alongwith requisite documents about admission and treatment, within a period of seven days after he was discharged and if said authority disclaim the liability to the insured under the claim preferred by him, then he remains silent for a period 12 months from the date of receipt of notice of disclaimer, then claim is deemed to have been abandoned and not recoverable thereafter. Learned counsel has urged urged that as TPA was a necessary party for adjudication of the instant complaint, but complainant has not impleaded although he is necessary party to the complaint, as such, it is bad for non-joinder of necessary party.<br /> 8. Learned counsel for the complainant Sh. Sanjay Goyal, Advocate, has submitted that claim has to be finally paid by the opposite parties, as such, complaint cannot be termed to be bad for non-joinder of TPA. Learned counsel has also attracted our attention to letter dated 27-06-2007 Ex. C-1, issued by the Assistant Divisional Manager, of opposite party No. 1 through M/s. Paramount Health Services, New Delhi, wherein it has been recommended to process the claim and to condone the delay if claim is otherwise payable under the policy because insured could not submit his claim due to his prolong illness and treatment/replacement of his kidney.<br /> 9. The argument advanced by the learned counsel for opposite party No. 1, is devoid of merit because processing of claim through TPA, licensed by Insurance Regulatory Authority is internal mechanism created for processing of claims preferred by the insured or his legal heirs so as to lessen the burden on officials of the Insurance Company and to ensure uniformity in dealing with the claims if possible without resorting to litigation. Since the claim under the policy has to be honoured or repudiated ultimately by the Insurance company, therefore, TPA, licensed by Insurance Regulatory Authority, cannot be said to be necessary party for disposal thereof from any stretch of imagination . Hence the argument advanced by the learned counsel for opposite party No. 1, stands repelled.<br /> 10. Learned counsel for the complainant has submitted that insured had deposited a sum of Rs. 3,000/- for renewal of Insurance policy for the period 17-12-2006 to 16-12-2007, through his father with opposite party No. 2, who is agent of opposite party No. 1, for issuance of Insurance policy as he was under treatment since December, 2005 and was discharged from PGI, Chandigarh, on 10-03-2007 for transplantation of kidney, donated by his father. Learned counsel for the complainant has argued that in view of faith reposed by him on opposite party No. 2, complainant remained under impression that his policy stands renewed for the period 17-12-2006 to 16-12-2007, and he never knew about the breach of faith committed by him. Learned counsel has submitted that opposite party No. 1, has withheld the register maintained in his office for renewal of Insurance Policies inspite of application filed by the complainant, as such, adverse inference has been drawn against him and no significance can be attached to denial of liability by him and opposite party No. 2, who is admittedly his agent. Learned counsel has argued that the opposite parties have got proposal form filled and conducted medical examination of the complainant at the time of issuance of first policy secured by him and subsequent policies have been issued in continuation thereof and complainant has become victim of disease during the period covered by the policy secured by him for the period 17-12-2005 to 16-12-2006, and he has conveyed intimation to the opposite parties and submitted the requisite documents alongwith claim form, but they have repudiated his claim in arbitrary and whimsical manner because of which he has been subjected to mental and physical harassment and has incurred avoidable expenses in filing of the complaint for which he is liable to be compensated.<br /> 11. Learned counsel for opposite party No. 1, has submitted that complainant has not secured Medi-Claim Insurance policies in continuity as evident from the dates of their issue. Learned counsel has further submitted that complainant has neither produced any receipt nor any cover note or policy which might have been issued by the opposite parties after expiry of policy for the period 17-12-2005 to 16-12-2006. Learned counsel has argued that this Forum cannot go beyond the terms of Insurance policy which is a contract between opposite party No. 1 and the complainant and award him any amount on the basis of no evidence against terms and conditions of policy irrespective of loss suffered by him. Learned counsel has argued that as per Clause 3.1 and 3.2 of Medi-Claim Insurance policy, even pre and post-hospitalisation, medical expenses can be paid within stipulated period, but as per the case of the complainant, he was admitted in PGI, Chandigarh, for transplantation of kidney on 24-02-2007 and was discharged from there on 10-03-2007, as such claim pertains to the period after the date of expiry of the policy for the period 17-12-2005 to 16-12-2006, claimed by him to have been secured from the opposite parties, as such, Insurance company has rightly repudiated the claim preferred by the complainant. Learned counsel has submitted that there is no deficiency in service on the part of the opposite parties, as such indulgence of this Forum is not warranted as sought in the instant complaint by the complainant and complaint being false and vexatious, is liable to be dismissed with compensatory costs.<br /> 12. At this stage, learned counsel for opposite party No. 2, Sh. S K Singla, Advocate, has admitted that opposite party No. 1, has been appointed as agent of opposite party No. 2, for the purpose of issuance of cover notes and collection of premium, but has submitted that opposite party No. 2 has denied in the written version and in his affidavit submitted in evidence that any payment was made by the complainant through his father to him for renewal of Insurance policy for the period 17-12-2006 to 16-12-2007. Learned counsel argued that neither any cover note has been produced nor date and time have been disclosed when the amount was received by the opposite party No. 2, from the father of the complainant. Learned counsel argued that in the absence of any positive evidence, liability cannot be fastened upon opposite party No. 2, relying upon the affidavits furnished by the complainant and his father, which are self serving documents.<br /> 13. It is not disputed that opposite party No. 2 has been appointed as agent of opposite party No. 1 for issuance Insurance policies and receipt of premium from the Insured. Before embarking upon the liability of opposite party No. 1, we proceed to deal with the liability of opposite party No. 2. As observed in the earlier part of this order, the plea of the complainant is that his father paid a sum of Rs. 3,000/- to opposite party No. 2, in the month of November, 2006, for renewal of earlier policy because he was confined to bed due to kidney ailment suffered by him. However, he has neither disclosed the date and time of deposit of amount to opposite party No. 2, nor he has brought on record any document on the basis of which we accept his plea regarding factum of payment for renewal of policy issued by opposite party No. 1, for the period 17-12-2006 to 16-12-2007. The opposite party No. 2, has denied the above said fact in his duly sworn affidavit. The complainant has also not examined any witness in whose presence, the payment of the amount of Rs. 3,000/- for the above said purpose was made by his father to opposite party No. 2. In the absence of any positive evidence, we are unable to accept the plea of complainant mainly because of holding of register containing entries regarding renewal of policies, by opposite party No. 1, by drawing adverse inference especially when complainant has failed to discharge initial onus placed upon him regarding deposit of requisite amount for renewal of Insurance policy by producing any cogent and convincing evidence except his affidavit and the affidavit of his father. Therefore, in our opinion, no liability can be fastened upon the opposite party No. 2, to hold that Insurance policy was renewed by the opposite parties for the period from 17-12-2006 to 15-12-2007.<br /> 14. However, the claim lodged by the complainant has been repudiated by opposite party No. 1, because it pertains to the period after lapse of policy for the period 17-12-2005 to 16-12-2006. The factum of kidney ailment suffered by the complainant and transplantation thereof in PGI, Chandigarh, after his father donated the kidney, is not a disputed fact. The claim has to be considered strictly as per terms and conditions of the policy i.e. the contract between the complainant and opposite party No. 1. Admittedly, complainant has secured individual Medi-claim Insurance Policy for the period 17-12-2005 to 16-12-2006, which apparently is in continuity of previous policies. He has tendered numerous documents on record which have come from the custody of opposite party No. 1, showing that he contracted kidney problem in the month of November, 2005 i.e. during the period covered by the policy secured by him for the period 17-12-2005 to 16-12-2006, but he remained under treatment for the problem of his kidney in PGI Chandigarh, from 24-02-2007 to 10-03-2007. The opening clause of Clause of policy Ex. C-1, provides that if during the of policy or during the continuance thereof by renewal, any insured person has 'contracted' any disease or suffered from any illness and has incurred expenses for treatment and hospitalisation in any Nursing Home or Hospital as inpatient, the Company shall pay the amount of such expenses as reasonably and necessarily incurred by or on behalf of such Insured person, but not exceeding sum assured in aggregate. As evident from copies of documents, complainant has 'contracted' disease during the validity period of policy pertaining to the period 17-12-2005 to 16-12-2006. He has even intimated the Manager of opposite party No. 1, vide his letter dated 11-12-2006 that he is under treatment w.e.f. 12-07-2005. As per seal of the office of opposite party No. 1, the said letter sent by the complainant has received against Sr. No. 451 of Receipt Register on 14-12-2006, whereas policy has expired on 16-12-2006. The complainant has also intimated about the ailment suffered by him to opposite party No. 1, vide his letter dated 20-07-2006 placed at page No. 3 of file produced on record by opposite party No. 1. In view of the facts stated above, we are of the opinion that the complainant has contracted disease during the period of policy covering the period from 17-12-2005 to 16-12-2006, and remained admitted in PGI, Chandigarh, from 24-02-2007 to 10-03-2007, for transplantation of kidney. As such, the instant case is covered under the policy. As per the admitted facts, the complainant has secured Insurance Policy for the period 17-12-2005 to 16-12-2006, for a sum of Rs. 2,00,000/- although he has spent much more amount on his treatment for transplantation of his kidney. However, this Forum cannot award compensation to the complainant beyond the sum assured, but as the Insurance policy has not been correctly construed by opposite party No. 1, as per its terms and conditions, therefore, we are also of the view that complainant deserves payment of interest at the rate of 9 percent per annum from the date of repudiation of his claim till the date of actual payment. Since interest and compensation cannot be awarded simultaneously, therefore, complainant is not entitled for payment of any compensation on account of mental and physical agony due to deficiency in service on the part of opposite party No. 1 in repudiation of claim. However, complainant deserves to be compensated for costs incurred by him for filing of the instant complaint.<br /> 15. In the light of our discussion, we dismiss the complaint against opposite party No. 2 and accept the same against opposite party No. 1 directing him to pay a sum of Rs. 2,00,000/- to the complainant under Medi-claim Insurance policy issued for the period from 17-12-2005 to 16-12-2006 alongwith interest at the rate of 9 percent per annum from the date of repudiation i.e. 11-12-2007 till the date of actual payment. The opposite party No. 1, is further directed to pay a sum of Rs. 1,000/- on account of costs for filing of the instant complaint. The above said payment be made by opposite party No. 1, within a period of two months from the date of receipt of copy of its order. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject. <br /> File be indexed and consigned. <br /> Pronounced :<br /> 31-03-2009 (Pritam Singh Dhanoa)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul)<br /> Member <br /> <br /> <br />