Kerala

StateCommission

A/13/335

BAJAJ ALLIANZ LIFE INSURANCE CO LTD - Complainant(s)

Versus

VARGHESE M.T - Opp.Party(s)

05 Mar 2014

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.335/2013

JUDGMENT DATED 05/03/2014

 (Appeal filed against the order in CC No.56/2012 on the file of CDRF, Ernakulam dated, 31/12/2012)

 

 

PRESENT:

 

SMT. A. RADHA                            :         MEMBER

SMT. SANTHAMMA THOMAS    :        MEMBER

 

APPELLANT:

 

M/s. Bajaj Allianz Life Insurance Co. Ltd.,

Branch Office, 2^nd Floor, Devas,

M.G. Road, Ernakulam-682 035.

 

(By Adv:   Sreevaraham G. Satheesh)

 

                   Vs

 

RESPONDENT:

 

Varghese.M.T.,

Kakkassery, Manjookkaran House,

Mattoor, Kalady P.O.,

Ernakulam-683 574.

 

(By Adv:  D.R. Rajesh)                    

                                      

 

 

JUDGMENT

 

SMT. A. RADHA  :  MEMBER

 

          This appeal is preferred by the opposite party challenging the Order of the CDRF, Ernakulam in C.C.No.56/2012.

          2.  The facts of the case are that the complainant availed a Bajaj Allianz Family Care First Policy for a period from 26/02/2009 to 26/02/2012.  During the period from 23/11/2011 to 25/11/2011 underwent Tympanoplasty Operation and incurred an amount of Rs.32,595/-.  The claim was repudiated on the ground that the company will not be liable to make payment for the operation and liability would be due only from the renewal date of policy. The renewal date of the policy was after 26/02/2012.  The treatment was within 3 years of the policy and is not liable to re-imburse the claim.  The act of the opposite party amounts to unfair trade practice and deficiency in service and the relief claimed is for re-imbursement of Rs.32,595/- and to pay compensation of Rs.15,000/- for mental agony and Rs.2,000/- as cost of proceedings.

          3.  The opposite party admitted the insurance of policy in favour of the complainant and his family.  It is contented that the wife of the complainant had undergone Mastoidectmy with Tympanoplasty.  She was admitted in the Hospital from 23/11/2011 and discharged on 25/11/2011.  The claim for re-imbursement was repudiated by the opposite party on the ground that the company is not liable to make payment for the illness of Tympanoplasty and only from the renewal date or date of renewal whichever is later.  The complainant’s 1^st renewal would be due as on 26/02/2009.  As per the terms and conditions under clause 6(b) the company is not liable to make any payment for hospitalization or medical expense arises within the waiting period.  The wife of the complainant underwent treatment for Tympanoplasty within 3 years from the commencement of the policy.  Hence the policy does not cover the disease for 3 years and the opposite party repudiated the claim.  The opposite party denied the allegation that the complainant was not issued with the insurance policy and the terms of insurance policy and this allegation is raised for the purpose of litigation only.  The non receipt of the policy or the terms and conditions of the policy were not raised by the complainant earlier to the company.  Before taking policy the complainant was already informed regarding the terms and conditions and also regarding the claim of the policy and the admissibility of the claim within 3 years and these were suppressed and came up with unclean hands in order to extort money raising false allegations.  The Insurance Policy is based on the contract of Insurance and the terms of the policies approved by the Insurance Regulatory and Development Authority.  It is clear that IRDA rules assure the policy holder’s interest and are adequately protected.  There is a free look period of 15 days to go through the policy terms to the complainant and if the complainant is not satisfied with the policy terms he is at liberty to return the policy and claim refund of the policy amount in accordance with the provisions of the policy.  The complainant has not chosen to go through the free look period and the belated allegations estopped the complainant to raise issues with regard to the policy terms and conditions and the complaint is barred by limitation on that ground itself and the complaint is only to be dismissed.

          4.  Both parties filed proof affidavit and the complainant was examined as PW1 and Exbts.A1 to A7 were marked.  DW1 to DW3 were examined on the part of opposite party and Exbt.B1 was marked.  The Forum Below on an appreciation of evidence and documents allowed the complaint in part.  This was challenged by the opposite party.

          5.  The submission made by the counsel for the appellant is that the Insurance Policy is based on terms and conditions and the parties are bound by the conditions of the policy.  As per the policy conditions the 1^st renewal of the policy was due after 3 years from the policy commencement date.  The claim will be entertained only after renewal of the policy.  The respondent underwent the Tympanoplasty surgery before the completion of 3 years.   As per the clause (8) of the policy company shall be liable to make payment for the illness of Tympanoplasty only from the renewal date or date of renewal, whichever is later.  The claim was repudiated on legal point and the appellant is not liable for any deficiency in service in repudiating the claim on the part of opposite party.  It is submitted by the counsel that the policy was issued to the respondent by registered post on 28/02/2009 which was already delivered to the complainant.  No allegation was raised by the complainant that he has not received terms and conditions of the policy until he filed the complaint. It is also argued that the complainant remitted policy premium regularly which was very well known to him in the subsequent years on 25/02/2009, 26/02/2010, 14/02/2011 and 27/02/2012.  The complainant remitted the premium without getting the policy document is false and was creating grounds to file the case.          The opposite party had already taken earnest steps to prove that the policy document was sent to the complainant.  Though the appellant produced the postal number of registered post, due to the non availability of the document with the postal authorities the appellant could not get through his earnest effort to prove his case.  It is also submitted that the non receipt of the policy document was not informed at the earliest point of time nor the allegation was raised during the free look policy period.  The respondent cannot raise that allegation of non receipt of the document.  The terms of policies are binding on the parties and the claim of the complainant cannot be entertained.  On one side the complainant is claiming for the policy amount which was payable under the policy and the exclusion clause of the same policy could not be applicable as not having been conveyed.  The counsel relied on the decision of the Apex Board in General Assurance Society Limited Chandmull Jain & Another (AIR 1966 Supreme Court 1644) wherein it is held that the insured cannot claim anything more than what is covered by the insurance policy.  The counsel also brought to our notice the decisions of the Hon’ble Supreme Court in Vikram Greentech Ltd. & Another Vs. New India Assurance Co. Ltd. In a contract of Insurance there is requirement of Ubrimma Fides on the part of insured.  He also pointed out that the Court while constring the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties.  The insured cannot claim more than what is covered by the Insurance Policy.  The Forum Below allowed the complaint beyond the terms and conditions of the policy.  The non-acceptance of the policy conditions itself is denied and the complainant himself paid the annual premium on the subsequent years voluntarily and he cannot come up with a case that he was not aware of the exclusion clause or the terms and conditions of the policy.  Hence the appeal is only to be allowed in favour of the appellant.

          6.  The respondent’s counsel submitted that the complainant availed the policy of the opposite party and he was issued only with the health card and was not issued the terms and conditions of the policy.  It is admitted that the complainant’s wife was hospitalized.  Though it was a cashless policy due to the emergent situation the complainant paid the amount and submitted the claim for reimbursement from the appellant which was repudiated on the ground of the clause 6(b)   and 8 of the policy conditions.  It is vehemently argued that he was not in receipt of the policy conditions and he was ignorant of the exclusion clause.  The complainant had to spend Rs.32,595/- towards treatment charges and he claimed compensation of Rs.15,000/- for mental agony and cost of proceedings.  The treatment underwent by the complainant was within 3 years ie. before renewal date of the policy from the date of commencement.  The receipt of policy was denied by the complainant and the appellant failed to prove the issuance of policy.  The appellant took a stand that Tympanoplasty is not covered during the waiting period.  The appellant failed to prove the issuance of policy to the respondent through DW2 and DW3.  On that ground itself it is very clear that the terms and conditions of the policy was not issued to the respondent.  He also pointed out that Exbt.A4 and A5 does not carry the information regarding the waiting period or the exclusion clause of the terms and conditions of the policy.  This amounts to deficiency in service on the part of the appellant.  He also argued that the proposal form does not show the exclusion clause and the terms and conditions of the policy.  Hence the complainant was not aware of the exclusion clause or not aware of the essentials of contract of insurance.  Hence the complaint is only to be allowed in favour of the complainant.

          7.  We have gone through the documents and heard both Counsels in detail.  It is an undisputed fact that the complainant is having insurance policy with the opposite party having the duration of 3 years and the annual premium was remitted quarterly by the complainant.  During that period the complainant’s wife had undergone an operation, Tympanoplasty, and the expenses incurred for the treatment was submitted for reimbursement from the opposite party under the policy which was repudiated under clause 6(b) and 8.  The contention raised by the complainant is that he was not aware of the terms and conditions as he was not issued with the policy.  He was in receipt of the ID Card which does not mention the terms and conditions of the policy.  In this case the appellant failed to prove that the policy was issued under registered post was accepted by the complainant.  The policy is covered by terms and conditions and governed by the IRDA rules.  The policy is having a free look period which was not availed by the complainant and he is estopped from raising allegations of ignorance regarding the terms and conditions.  This allegation of non-receipt of the policy condition is made by the complainant only after filing the complaint.  He never raised such allegation until the repudiation of the claim.  However the District Forum allowed the complaint in favour of the complainant.  At this juncture we would like to point out that the insurance contract is based on the terms and conditions which have to be strictly construed to determine the extent of liability of insurer.  The Hon’ble Supreme Court in the case of Vikram Greentech (I) Ltd. Observed                that the Court is not expected to venture into extra liberalism that may result in rewriting the contract/substituting terms not intended by parties.   The insured is not entitled to claim anything more than what is covered by the insurance policy.  The Forum Below allowed the complaint fastening liability upon the opposite parties.  We find that though the appellant claimed that they have sent the policy to the complainant was not proved successfully.  It is evident from the pleadings of the complainant that he had to remit the premium annually and he was strictly following the terms and conditions to that extent and the pleading to the extend that he was ignorant of the terms and conditions of the policy cannot be read in favour of the complainant.  It is also not proper on the side of complainant that after remitting the premium for 3 years without knowing the terms and conditions and thereafter claiming the operation charges for a disease which comes under the exclusion clause cannot make the opposite party liable for the expenses incurred for the operation which is coming under exclusion clause.  However, the issuance of the policy with terms and conditions to the complainant was beyond proof and has come to the conclusion that there is deficiency in service on the part of opposite parties and it is to be compensated.

In the result, appeal is allowed in part. The appellant is exonerated from the payment of the Insurance Claim as it is beyond the terms and conditions of the policy.  As the appellant failed to prove issuance of policy conclusively, a just compensation of Rs.5000/- is to be paid to the respondent.  The order is to comply within 30 days on receipt of the copy of the order.

The office is directed to send a copy of this order to the Forum below along with LCR.

 

 

A. RADHA           :        MEMBER

 

SANTHAMMA THOMAS     :        MEMBER

 

 

 

 

 

Sa.

 

 

 

 

 

 

 

 

 

 

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

 

 

 

 

 

 

APPEAL NO.335/2013

JUDGMENT DATED 05/03/2014

 

 

 

 

 

 

 

 

 

Sa.