State Consumer Disputes Redressal Commission
K.K. Som vs The New India Assurance Co. Limited on 21 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 72 of 2014 Date of Institution : 21.2.2014 Date of Decision 21.04.2014 1. K.K. Som S/o Sh. S.R. Som, R/o H.No. 594, Phase-4, SAS Nagar, Mohali. (2) Rita Som W/o Sh. K.K. Som R/o H.No. 594, Phase-4, SAS Nagar, Mohali. Appellants--- V e r s u s (1) The New India Assurance Co. Limited, SCO No.36-37, (Ground Floor), Sector 17-A, Chandigarh, through Divisional Manager. (2) M/s Bellcor Management Service Pvt. Ltd., SCO No.188-190, (4th Floor), Sector 34-A, Chandigarh. ....Respondents--- Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Parminder Singh, Advocate for the appellants.
Sh. Sukaam Gupta, Advocate for respondent No.1 Respondent No.2 exparte.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
1. This appeal is directed against the order dated 30.12.2013, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint of the complainants (now appellants) only against Opposite Party No.2 (now respondent No.2) and did not grant any relief against Opposite Party No.1 (now respondent No.1).
2. Briefly stated, the facts of the case, are that Opposite Party No.2, being the employer of complainant No.1, proposed and got Mediclaim Policy 2007 (Hospitalization Benefit Policy) for its employees and their families, from Opposite Party No.1, for the period from 13.12.2010 to 12.12.2011 (Policy Annexure C-1). Complainant No.1 being the employee of Opposite Party No.2 alongwith his wife complainant No.2 and Mr. Ritik Som, was covered under the Policy. During the currency of the Policy, Complainant No.2 had abdominal pain, and was taken to Panchavati Diagnostic Centre at Dabur Dhanwantri Ayurvedic College and Hospital on 19.8.2011, but there she was not relieved of the pain. Thereafter, she was taken to Omni Hospital, Sector 34, Chandigarh, on 9.9.2011, where her tests were conducted and it was found that she was suffering from Gall Bladder Polyp., for which, on the advice of the doctor, she was operated upon. It was stated that for the treatment, complainant No.1 incurred a total expenditure of Rs.40,000/- (Medical Record Annexure C-4 (colly). Accordingly, the complainants preferred a claim with Opposite Party No.1, alongwith the bills, in original, and other requisite documents. However, the complainants were surprised and shocked to receive a letter dated 02.12.2011 (Annexure C-6), which was addressed to Opposite Party No2, by the Raksha TPA, wherein their claim was held to be untenable, on the ground, that the treatment of Gall Bladder Polyp fell under 1st Two years, exclusion Clause. It was informed that as the Policy was in the 1st year of inception, therefore, the claim was non- payable as per the exclusion clause 4.3 of the Policy.
3. It was further stated that the terms and conditions of the Policy, in question, were never supplied to the complainants. It was further stated that, refusal of Opposite Party No.1 to honour the claim was wholly invalid and illegal. It was further stated that the aforesaid acts of Opposite Party No.1, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
4. In its reply Opposite Party No.1, admitted that Opposite Party No.2 took Mediclaim Policy/Hospitalization Benefit Policy for the period from 13.12.2010 to 12.12.2011 for Mr. K.K. Som, Ms. Rita Som and Mr. Ritik Som with an insurance cover of Rs.1.00 lac each subject to the terms and conditions, limitations and coverage contained therein (Annexure R-1). It was stated that Complainant No.1, prior to taking the aforesaid policy, after having understood each and every condition pertaining thereto, which was duly explained to him, filled a proposal form (Annexure R-2) wherein it was specifically disclosed by him that none of the insured/ beneficiary was suffering from any illness/disease at the said point of time and it was only thereafter that Annexure R-1 was issued by the answering Opposite Party, in favour of the complainants. It was further stated that earlier the employer of complainant No.1 had taken the Policies from other Insurance Companies and the Policy, in question, was the first one, which was taken by the employer, from Opposite Party No.1. It was further stated that the earlier Policies, which were taken by the employer of complainant No.1 from other Insurance Companies, did not have any relevance with the policy, in question. It was further stated that the terms and conditions of the policy, in question, were duly supplied to the insured i.e. Opposite Party No.2, the employer of complainant No.1. It was further stated that the claim of the complainants was legally and validly repudiated as per exclusion Clause 4.3 of the terms and conditions of the Policy, after due application of mind and after seeking opinion from the medical expert/ doctor. It was further stated that neither there was any deficiency, in rendering service, on the part of the answering Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2 was deemed to be duly served, but no authorized representative, on its behalf, appeared. Hence it was proceeded against exparte vide order dated 3.9.2013.
6. The complainants and Opposite Party No.1 led evidence, in support of their case.
7. After hearing the Counsel for the complainants, Opposite Party No.1 and, on going through the evidence, and record of the case, the District Forum, accepted the complaint against Opposite Party No.2, and granted no relief against Opposite Party No.1.
8. Feeling aggrieved, against the non-grant of any relief against Opposite Party No.1(now respondent No1), the instant appeal, has been filed, by the appellants/complainants
9. Notice of the appeal was given to Opposite Party No.2 but none appeared, on its behalf, though it was deemed to be served and, accordingly, it was proceeded against exparte vide order dated 28.3.2014.
10. We have heard the Counsel for the appellants, respondent No.1, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants/complainants submitted that, no doubt, Opposite Party No.2, the employer of complainant No.1 took Mediclaim Policy 2007 (Hospitalization Benefit Policy) for the benefit of their employees, and their families, including the complainants, for the period from 13.12.2010 to 12.12.2011. He further submitted that the complainants were never supplied the terms and condition of the Policy and, as such, they were not bound by the exclusion Clauses, contained therein. He further submitted that, under these circumstances, respondent No.1 (Opposite Party No.1) illegally and arbitrarily repudiated the claim of the complainants. He further submitted that the District Forum was wrong in not granting relief, against respondent No.1/Opposite Party No.1. He further submitted that the order of the District Forum on account of non grant of relief against respondent No.1/Opposite Party No.1, being illegal, is liable to be set aside.
12. On the other hand, the Counsel for respondent No.1/Opposite Party No.1 submitted that the terms and conditions of the policy were supplied to the insured i.e. respondent No.2/Opposite Party No.2, the employer of complainant No.1. He further submitted that at the time of filling up the proposal form by complainant No.1, he was made to understand the terms and conditions of the Policy. He further submitted that while submitting the proposal form, complainant No.1 in clear cut terms stated that he and other beneficiaries were not suffering from pre-existing diseases. He further submitted that the Policy was valid for the period from 13.12.2010 to 12.12.2011 and it was during the currency of the same that complainant No.2 suffered from Gall Bladder Polyp for which she was operated upon in Omni Hospital, Sector 34, Chandigarh. He further submitted that as per exclusion Clause 4.3 of the terms and conditions of the policy Annexure R-1, all internal & external benign tumors, cysts, polyps of any kind including benign breast lumps were excluded for the first two years from the inception of the Policy. He further submitted that since the policy incepted on 13.12.2010 and complainant No.2/appellant No.2 was operated upon for Gall Bladder Polyp on 9.9.2011, which was not covered under it (Policy) for the first two years, as per exclusion Clause 4.3 and, as such, the claim of the complainants/appellants was rightly repudiated by respondent No1/Opposite Party No.1. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld.
13. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the complainants/appellants, respondent No.1/Opposite Party No.1 and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The first question that falls for consideration, is as to whether, the terms and conditions of the policy were supplied to the insured respondent No.2/Opposite Party No.2, the employer of complainant No.1. It was a Hospitalization Benefit Policy, which was taken by respondent No.2/Opposite Party No.2, for the benefit of its employees and their families from respondent No.1/Opposite Party No.1, for the period from 13.12.2010 to 12.12.2011. In the written statement, it was in clear-cut terms, stated by Opposite Party No.1, that terms and conditions of the Policy, were supplied and the same were made known in clear-cut terms. This fact was also duly corroborated by Dr. Mohan Singh Sr. Divisional Manager, of Opposite Party No.1, who submitted his affidavit by way of evidence. Annexure C-1, is the Policy Schedule of Mediclaim Policy 2007 (Hospitalization Benefit Policy) which runs into two pages, produced by the complainants. It is evident from page 16, forming part of Annexure C-1, of the District Forum record, that this Policy is subject to Mediclaim Policy (2007) clause as attached. Thus, it is evident that the terms and conditions of the Policy were attached with the Policy Schedule Annexure C-1. Not only this, as per the own admission of the complainants, in para No.4 of the complaint, the complainants were earlier insured by Reliance General Insurance for the preceding 2 years i.e. from 12.12.2008 to 11.12.2009 and 12.12.2009 to 11.12.2010, under the Mediclaim Policy with Hospitalization Benefits. The complainants were, thus, well aware of the terms and conditions of the earlier Policies, taken from other Insurance Companies. Since it is proved from Annexure C-1, copy of the Policy Schedule of Mediclaim Policy 2007 (Hospitalization Benefit Policy) that Clause was attached therewith, meaning thereby that terms and conditions of the Policy were attached, the plea of the complainants that they were not made aware of the same is false. The Policy was valid from 13.12.2010 to 12.12.2011. Complainant No.2 was operated for Gall Bladder Polyp on 9.9.2011 i.e. only three months before the expiry of the policy, in question. It could not be imagined, that the complainants slept over the matter for 9 months, from the date of inception of the policy. In case, they had not allegedly received the terms and conditions of the Policy or were not made to understand the same, then they could ask for the same from respondent No.2/Opposite Party No.2 or respondent No.1/Opposite Party No.1, immediately after the inception thereof. They, however, did not raise a little finger before 15.05.2013, the date of filing the complaint, that they had not been supplied the terms and conditions of the Policy. Under these circumstances, the case of the complainants that they were neither supplied the terms and conditions of the Policy, nor were made aware of the same, stands falsified, from the record, and the afore- discussed circumstances..
14. The next question, that arises for consideration, is as to whether, respondent No.1/Opposite Party No.1 legally and validly repudiated the claim of the appellants/complainants, as per the terms and conditions of the Policy or not. It is evident, from the averments, made in the complaint, by the complainants, duly supported by their joint affidavit, as also the medical record produced, on the file of the District Forum, that appellant No.2/complainant No2, was suffering from Gall Bladder Polyp and she was admitted in Omni Hospital, Sector 34, Chandigarh, on 9.9.2011 and was operated upon for the same. She was discharged on 11.9.2011, as is evident from Annexure C-4 (colly). It was for the treatment of this disease, that the complainants spent the amount. It is settled principle of law, that the parties are bound by the terms and conditions of the Policy including the exclusions, warranties and guaranties. Clause 4.3 of the Policy Anenxure R-1 read as under:-
4.3 waiting period for specified diseases/ailments/conditions:
From the time of inception of the cover, the Policy will not cover the following diseases/ailments/conditions for the duration shown below. This exclusion will be deleted after the duration shown, provided the policy has been continuously renewed with our Company without any break.
Sr. No. Name of Disease/ailments/surgery not covered for Duration.
1.
X X X X X X X X X X X X X X X
2. All Internal & external benign tumors, cysts, polyps of any kind including benign breast lumps Two years
3. X X X X X X X X X X X X X X X
4. X X X X X X X X X X X X X X X
5. X X X X X X X X X X X X X X X
6. X X X X X X X X X X X X X X X
7. X X X X X X X X X X X X X X X
8. X X X X X X X X X X X X X X X
9. X X X X X X X X X X X X X X X
10. X X X X X X X X X X X X X X X
11. X X X X X X X X X X X X X X X
12. X X X X X X X X X X X X X X X
13. X X X X X X X X X X X X X X X
14. X X X X X X X X X X X X X X X
15. X X X X X X X X X X X X X X X
16. X X X X X X X X X X X X X X X
17. X X X X X X X X X X X X X X X
18. X X X X X X X X X X X X X X X
19. X X X X X X X X X X X X X X X
20. X X X X X X X X X X X X X X X
21. X X X X X X X X X X X X X X X
22. X X X X X X X X X X X X X X X
15. It is evident, from the afore extracted Clause 4.3 of the Policy, that all Internal & external benign tumors, cysts, polyps of any kind including benign breast lumps were excluded for the first two years, from the date of inception of the Policy. In the instant case, the Policy incepted on 13.12.2010 and during the first year of the Policy complainant No.2 suffered from the disease, referred to above, and admitted in Omni Hospital, Sector 34, Chandigarh. As such the disease with which appellant No.2/complainant No.2, suffered and underwent treatment/ surgery in Omni Hospital aforesaid, was excluded as per clause 4.3 of the Policy. As such respondent No.1/Opposite Party No.1 was right in repudiating the claim of the appellants/complainants. The District Forum was also right in holding so.
16. No other point, was urged, by the Counsel for the appellants, and Counsel for respondent No.1/Opposite Party No.1.
17. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
April 21, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
PADMA PANDEY MEMBER MP STATE COMMISSION (First Appeal No. 72 of 2014) Argued by: Sh. Parminder Singh, Advocate for the appellants.
Sh. Sukaam Gupta, Advocate for respondent No.1 Respondent No.2 exparte.
Dated the 21st day of April 2014 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, with no order as to costs.
DEV RAJ MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT PADMA PANDEY MEMBER Mp.
v It is settled principle of law, that every lis, should normally be decided, on merit, than by default.
v The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
v When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
v The Opposite Parties - - -Party----- (now
respondent---s-----) was-----were---- duly served, but despite service, neither -----they----- nor -----any duly authorized representative, on -----their----- behalf appeared. Accordingly, the Opposite Parties - - -Party----- was---- were ----proceeded against ex-parte, by the District Forum, vide order dated_________.
He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
Despite service, neither OP-3 nor his duly authorized representative appeared, on his behalf. Accordingly OP-3 was proceeded against ex-parte.
The complainants fall within definition of consumer.
The submission of the Counsel for the appellant----, being devoid of merit, must fail, and the same stands rejected.
The submission of the Counsel for the appellant, in this regard, being devoid of merit, is rejected.
The remaining directions given and reliefs granted by the District Forum, subject to the aforesaid modification, shall remain unaltered.
In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainant. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money deposited by the complainant. It was further held that the builder cannot forfeit the entire money, paid by the complainant, on account of his own fault, in not carrying out the development work. Ultimately, the Honble National Commission, ordered the refund of amount with interest. The observation made in Prasad Homes Private Limited`s case (supra), are fully applicable to the facts of the instant case.
Alongwith the appeal, an application for condonation of delay of 28 days, in filing the same (appeal) has been filed, by the applicants/appellants.
2. Reply to the application has been filed by respondent no.1.
3. Arguments, on the application for condonation of delay, of 28 days, in filing the appeal, heard.
4. We are of the considered opinion, that no doubt, there is delay of 28 days, in filing the appeal, yet, the same cannot be said to be so huge, to deny the substantial justice. It is settled principle of law, that technicalities should not stay, in the way of the Commission, in granting substantial justice. Every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
5. Hence, in view of the reasons, mentioned in the application, which is supported by a duly sworn affidavit of Sh. Rajinder Singh Kalsi, Zonal Legal Manger of Opposite Parties No.1 and 2, and finding sufficient cause, the delay of 28 days, in filing the appeal, is condoned. The application is disposed of, accordingly.
6. Admitted.
7. It be registered.
8. Arguments, in the main appeal already heard.
9. Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs. The order of the District Forum has been set aside.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg.
Alongwith the appeal, an application for condonation of delay of 48 days, as per the applicants/appellants (40 days, as per the office report), in filing the same (appeal) was filed, by the applicants/appellants.
2. Reply to the application was not filed by respondents no.1 and 2.
3. After hearing the Counsel for the parties, and on going through the record, we are of the considered opinion, that no doubt, there is delay 40 days, as per the office report, in filing the appeal, yet, the same cannot be said to be so huge, to deny the substantial justice. It is settled principle of law, that hypertechnicalities should not stay, in the way of the Commission, in granting substantial justice. Every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
4. Hence, in view of the reasons, mentioned in the application, which is supported by a duly sworn affidavit of Sh. Babbar Bhan, Advocate, on behalf of the applicants/appellants, and finding sufficient cause, the delay of 40 days, as per the office report, in filing the appeal, is condoned. The application is disposed of, accordingly.
5. Admitted.
6. It be registered.
7. Arguments, in the main appeal already heard.
8. Vide our detailed order of the even date, recorded separately, the appeal has been accepted. The order impugned has been set aside. The complaint has been remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed for non-prosecution, taking into consideration the fact that the Counsel for Opposite Party No.3, put in appearance, on 07.10.2011, and if later on, he did not want to appear on her behalf, she should have been proceeded against exparte, instead of issuing a fresh notice for her service, and decide the same, on merits, in accordance with the provisions of law. However, the appellants/complainants have been burdened with costs of Rs.5000/-, for causing delay, in the disposal of complaint, on merits. The payment of costs, aforesaid, to respondents no.1 and 2/Opposite Parties no.1 and 2, shall be a condition precedent.
9. The Parties have been directed to appear, before the District Forum (II) on 23.05.2013, at 10.30 A.M., for further proceedings.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT R