State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Sukhdev Singh And Others on 29 September, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.165 of 2020
Date of institution : 12.03.2020
Reserved on : 24.09.2020
Date of decision : 29.09.2020
M/s The New India Assurance Co. Ltd., through its Branch Manager
having its Branch Office at Jandiala Road, Tarn Taran, District Tarn
Taran, Punjab, through authorized signatory, Regional Office, The
New India Insurance Co. Ltd., SCO No.36-37, Sector 17-A,
Chandigarh.
.......Appellant-Opposite Party No.1
Versus
1.Sukhdev Singh (UIC No.891674587200) son of Hardial Singh (since deceased) through his Legal Representatives:-
1(i) Gurjit Kaur widow of Sukhdev Singh, resident of House No.350/2, Kulla Road, Patti, Tehsil Patti, District Tarn Taran. 1(ii). Ratinder Kaur wife of Gurmail Singh daughter of Sukhdev Singh, resident of Village Maujewala, Tehsil Dharamkot, District Moga.
1(iii). Dhanwant Kaur wife of Balpreet Singh, daughter of Sukhdev Singh, resident of Village Gandiwind Saran, Tehsil and District Tarn Taran.
1(iv). Simrat Pal Kaur wife of Gurjit Singh, daughter of Sukhdev Singh r/o Village Kallah, Tehsil Khadoor Sahib, District Tarn Taran.
......Respondent No.1(i) to 1(iv)-Complainants
2. Medi Assist Insurance TPA Pvt. Ltd. through its Manager having its Corporate Office at SCO No.19, Second Floor, Cabin No.207, Sector 7-C, Madhya Marg, Chandigarh.
........Respondent No.2-Opposite Party No.2 First Appeal No.165 of 2020 2 First Appeal against the order dated 6.11.2019 of the District Consumer Disputes Redressal Forum, Tarn Taran.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the appellant :Shri S.S. Sidhu, Advocate through videoconferencing.
For respondent No.1: Shri Abhinav Jain, Advocate. For respondent No.2 : Service dispensed, vide order dated 27.7.2020.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
Proceedings were conducted through video conferencing as well as physically due to pandemic of Covid-19.
2. The instant appeal has been filed by the appellant/opposite party No.1 against the order dated 6.11.2019 passed by District Consumer Disputes Redressal Forum, Tarn Taran (in short, "District Forum") (now District Commission), whereby the complaint filed by Sukhdev Singh, respondent No.1-complainant (since deceased), now represented through his LRs, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") was allowed and the following operative order was passed:-
"8. In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainants No.1(i) to 1(iv) and against the opposite parties. The opposite parties are directed to make the payment of First Appeal No.165 of 2020 3 ₹2,02,052/- (Rupees Two Lakhs Two Thousand and Fifty Two only) to the complainant. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to ₹10,000/- (Rupees Ten Thousand only), as compensation, on account of harassment and mental agony and ₹5,000/- (Rupees Five Thousand only) as litigation expenses. The complainants are entitled to the awarded amount as follows:-
Gurjit Kaur : 25%
Ratinder Kaur : 25%
Dhanwant Kaur : 25%
Simratpal Kaur : 25%
Opposite parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainants are entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room."
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the complaint:
4. Brief facts, as averred in the complaint, are that opposite party No.1 is a Company incorporated under the Companies Act, 1956 and having its branch office at Tarn Taran and carries on the business of insurance. Opposite party No.2 is also a Company First Appeal No.165 of 2020 4 incorporated under the Companies Act, 1956 and having its Corporate Office at Chandigarh and carries on the business of assistance to opposite party No.1. Opposite party No.2 provides Third Party Administrator (TPA) services for health insurance related claims. It is further averred that Sukhdev Singh, complainant, was working as Insurance Agent with LIC of India, vide Agent Code 2098-137 of BO-137 at Tarn Taran under Amritsar Division. He was also a Member of ZM Club of LIC of India. The complainant was a member of Group Medical Claim Insurance Policy of LIC of India since 1.9.2013 onwards which is administered by opposite party No.1, vide policy No.120300. The Medi Assist Id of the complainant provided by opposite party No.2 is 4018799137. It is further averred that during the policy period, the complainant fell ill and was admitted to EMC Super Specialty Hospital Private Limited, Green Avenue, Amritsar from 1.10.2016 to 4.10.2016. Again on 4.10.2016 the complainant was got admitted to Smt. Paarvati Devi Hospital, Ranjit Avenue, Amritsar and he remained admitted there from 4.10.2016 to 8.10.2016 for his treatment. The complainant spent ₹2,02,052/- on his treatment. It is further averred that on 10.10.2016, the wife of the complainant duly informed the Branch Manager of LIC of India regarding the treatment of the complainant in the said hospitals. After getting discharge from the hospital, the complainant approached opposite party No.1 for his medical insurance claim. Opposite party No.1 advised the complainant to fill the claim form and also directed to enclose the original discharge card from the First Appeal No.165 of 2020 5 hospital along with bills, receipts and cash memos from the hospital/chemist and also directed to disclose the receipt and pathological test reports from pathologist. As per advice given by opposite party No.1, the complainant submitted the duly filled in Claim Form dated 8.11.2016 in the office of opposite party No.1 along with other relevant documents in original. At the time of submission of claim form, opposite party No.1 told the complainant to visit their office only after one month. After passing of one month period, the complainant approached opposite party No.1 and enquired about his medi-claim. On inquiry, the complainant came to know that opposite party No.1 sent the claim file of the complainant to opposite party No.2 for investigation. The dealing official of opposite party No.1 told the complainant that he had no need to visit their office again and again as the medi-claim amount would be directly transferred in the bank account of the complainant within two months. After passing of two months' period, the complainant did not receive any payment from opposite parties Nos.1 and 2. It is further averred that thereafter, the complainant again went to the office of opposite party No.1 and enquired about the payment. The concerned officer of opposite party No.1 told the complainant that they did not receive the final report from TPA i.e. from opposite party No.2 and after receiving the final report, they would transfer the claim amount in the account of complainant. Later on after passing of another three months' period, the complainant again visited the office of opposite party No.1 and received the same answer. First Appeal No.165 of 2020 6 Thereafter, the complainant made several visits to the office of opposite party No.1 and always received the same answer. In the month of July 2017, the son-in-law of the complainant checked the claim status of the complainant from the website of opposite party No.2 and came to know that the claim of the complainant had already been repudiated by opposite party No.2, as per the provisions of clause 4.4.6 of policy terms and conditions. No terms and conditions were ever served to the complainant by opposite party No.2. No such terms and conditions were ever contracted between the complainant and opposite party No.1. After coming to know about the status of his claim, the complainant immediately approached the office of opposite party No.1 and met the Branch Manager and told him that the claim of the complainant is genuine one and also told him that the allegations of consumption of alcohol are totally false and baseless one as the complainant is teetotaler, but the Branch Manager of opposite party No.1 did not bother the said request of the complainant. Till date of filing the complaint, opposite party No.1 did not bother to issue any letter to the complainant regarding the repudiation of claim. Since 1.9.2013 i.e. from the date of inception of policy, the complainant never filed any claim with opposite party No.1 except the claim in question. Thereafter the complainant again visited the office of opposite party No.1 but it did not listen anything. Alleging deficiency in service on the part of opposite parties, the complainant filed consumer First Appeal No.165 of 2020 7 complaint before the District Forum for issuance of following directions to them:-
i) to pay the sum of ₹2,02,052/- to the complainant jointly and severally on account of insurance claim which is illegally repudiated by the opposite party Nos.1 and 2;
ii) to pay the said amount along with interest thereon at the rate of 12% per annum w.e.f. 8.11.2016 till the date of realisation of said amount;
iii) to pay ₹50,000/-, as compensation, on account of mental agony harassment etc.; and
iv) to pay ₹11,000/-, as litigation expenses.
5. Notice of this complaint was sent to the opposite parties but no one appeared on behalf of opposite parties and consequently, opposite party No.2 was proceeded against ex parte, vide order dated 10.7.2018 and opposite party No.1 was proceeded against ex parte, vide order dated 18.1.2019 passed by the District Commission.
Evidence of the Complainant:
6. Alongwith the complaint the complainant annexed his own affidavit as Ex.CW1/A and self attested copies of documents i.e. copy of Reputation Letter as Ex.C-1, copy of Hospital Summary as Ex.C-2, copies of Collection receipts as Ex.C-3, Ex.C-4, copy of Patient Discharge Bill as Ex.C-5, Copies of Bills of receipts Ex.C-6, Ex.C-7, copies of Bills of Drugs Ex.C-8 to Ex.C-24, copies of the receipts Ex.C-25 to Ex.C-28, copy of Bill Ex.C-29, copies of Bills of First Appeal No.165 of 2020 8 tests Ex.C-30, Ex.C-31, copy of Bill of Blood Test Ex.C-32, copy of Bill of Drugs Ex.C-33, copy of IPD receipt Ex.C-34, copy of pathology receipt Ex.C-35, copy of IPD receipts Ex.C-36, Ex.C-37, copies of the Drugs Bills Ex.C-38 to Ex.C-40, copies of Collection receipts Ex.C-41, Ex.C-42, Copy of Drug Bill Ex.C-43, copy of document Index sheet Ex.C-44, copy of Claim Form Ex.C-45, copy of settlement of claim Ex.C-46, copy of application Ex.C-47, copy of pass book Ex.C-48, copy of Payment by NEFT Ex.C-49, copy of Aadhar Card Ex.C-50, copy of Voucher Card Ex.C-51, copy of application Ex.C-52, copy of Discharge Summary Ex.C-53, copy of Prescription Ex.C-54, copy of Test report Ex.C-55, copy of ABG Report Ex.C-56, copies of Patient Laboratory Tests Ex.C57 to Ex.C59, copy of Prescription Ex.C-60, copy of Patient Laboratory Test Ex.C-61 and copy of Insurance Card as Ex.C-62. Finding of the District Forum:
7. After going through the ex parte evidence led by the complainant and after hearing the learned counsel for the legal heirs of the complainant as he died during the pendency of the complaint, the District Commission allowed the complaint in the above mentioned terms, vide order dated 6.11.2019. Hence this appeal.
8. I have heard learned counsel for the appellant-opposite party No.1 and respondents Nos.1(i) to (iv) as the service of respondent No.2 was dispensed with, vide order dated 27.7.2020 and have carefully gone through the records of the case. I have also carefully gone through the written arguments submitted by both the sides. First Appeal No.165 of 2020 9 Contentions of the Parties:
9. The sum and substance of oral as well as written arguments of the learned counsel for the appellant-opposite party No.1 is that the complainants impleaded the Branch Office of appellant-opposite party No.1 at Tarn Taran in the complaint whereas the notice, Annexure A-1, was sent by the District Commission to the address of opposite party No.1 at 87, MG Road, Fort, Mumbai through its M.D. instead of sending the same to the local address of Tarn Taran as mentioned in the complaint. The District Commission proceeded ex parte against opposite party No.1, vide order dated 18.1.2019 specifically mentioning that the acknowledgement due of the delivery of the registered letter was not received and it must have been lost in the transit. Opposite party No.1 came to know of the impugned order when the certified copy of the same was sent by the District Commission, vide letter dated 8.11.2019, which was sent at local address of Tarn Taran. Hence, the order dated 18.1.2019 passed by the District Forum is against law and facts on record. Consequently the final order dated 6.11.2019 has been passed by the District Forum ex parte. Hence opposite party No.1 has not been given any opportunity to defend its case as a result of which a great prejudice has been caused to opposite party No.1. It has been prayed that this appeal be allowed; impugned order passed by the District Commission be set aside; and opposite party No.1 be given opportunity to file its reply and lead evidence by remanding the case back.
First Appeal No.165 of 2020 10
10. The sum and substance of written arguments of learned counsel for respondents-complainants is that the order dated 18.1.2019 proceeding ex parte against appellant-opposite party No.1 is fully justified as the notice was sent to opposite party No.1 at Tarn Taran two times and as per the report of the bailiff, it refused to receive the summons but still District Commission did not proceed ex parte against opposite party No.1 and gave one more opportunity to it to appear by serving opposite party No.1 through Head Office/Branch situated at Mumbai through registered Cover dated 5.12.2018 for 18.1.2019. A notice can be sent at any place in India where the business or profession is carried out. So, opposite party No.1 was served properly by complying with the provisions of Section 28-A of the C.P. Act. The impugned order passed by the District Forum is justified and is liable to be upheld. Consideration of Contentions:
11. I have given my thoughtful consideration to the contentions raised before me by the learned counsel for the parties.
12. Admittedly the address of opposite party No.1 given in the complaint is of Tarn Taran Branch and the Head Office/Branch of opposite party No.1, which is at Mumbai was not impleaded as a party but the summon/notice, Annexure A-1, was sent to Head Office/Branch of Insurance Company in Mumbai for 18.1.2019 at the following address:-
"New India Assurance Company Ltd., having its office at # 87, M.G. Road, Fort, Mumbai, through its M.D."First Appeal No.165 of 2020 11
Opposite party No.1 was proceeded against ex parte by the District Forum, vide order dated 18.1.2019, which reads as under:-
"18.1.2019 Present:
For the complainant : Sh. Harpreet Singh Sandhu, Advocate For O.P. No.2 : Ex parte.
Case called several times since morning. None has appeared for opposite party No.1. Notice along with copy was sent to opposite party No.1 through registered cover AD on 5.12.2018 and as per office report Registered Cover has not been received back undelivered. Acknowledgement must have lost in the transit. Otherwise 30 days have elapsed since the date of Registered Cover to opposite party No.1, therefore, it is declared that opposite party No.1 is duly served through Registered Cover containing notice and copies. None has appeared on behalf of opposite party No.1 though the case is called several times since morning. It is 3.53 P.M. Therefore, opposite party No.1 is proceeded against ex parte. Now, to come up on 7.3.2019 for arguments.
Sd/- (Charanjit Singh) President Sd/- Sd/-
(J.S. Pannu) (Jaswinder Kaur)
Member Member"
A perusal of Annexure A-1 reveals that the notice was sent to opposite party No.1 at Mumbai address, though the address given in the complaint is of Tarn Taran. Apparently it does not appear to be a proper service upon opposite party No.1. The case of the respondents-complainants is that notices to opposite party No.1 were sent twice at local address of Tarn Taran and the First Appeal No.165 of 2020 12 officers/officials of opposite party No.1 refused to receive the same. The first summon sent on 1.6.2018, through Peon, was refused by Surinder Singh, Agent, on the ground that there was no Manager and he could not receive the said summon. Thereafter the complainant was asked to furnish correct address of opposite party No.1, which was furnished on 4.12.2018 and summon/notice, Annexure A-1, was issued at correct address of Mumbai. Be that as it may, in view of the facts and circumstances stated above, I am of the view that it would be in the interest of justice to grant one opportunity to opposite party No.1 to defend its case by filing written statement and leading evidence. Even otherwise, it is settled principle of law, as laid down by the Hon'ble Supreme Court in "Bhagmal & Ors. v. Kunwar Lal", AIR 2010-SC-2991, that a party, which claims to have substantial right, which require adjudication by a Court of law, should not be denied the opportunity of hearing, by not setting aside the order on hyper-technical grounds.
13. In another case "Bhagwan Swaroop vs. Mool Chand" (1983) 2 SCC 132, Hon'ble Supreme Court held that court's approach should be oriented with a view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties.
14. Recently, in case "Zee Learn Ltd. v. Keshava Murthy D.M." 2017 (1) CPR 658 (NC), the opposite party was ex parte before the First Appeal No.165 of 2020 13 District Forum and the Hon'ble National Commission directed the District Forum to decide the complaint after taking written statement of the opposite party on record and considering all the pleas raised by the parties.
15. The sum and substance is that a party who claims to have substantial right, which requires adjudication by the Court of law/Tribunal, should not be denied of the said opportunity by sticking on to hypertechnical objections. It is settled principle of law that cases should be decided on merit and not merely on technical grounds. Rules of procedure are handmade of justice and to do substantial justice.
16. In view of the above discussion, it is clear that opposite party No.1 has been deprived of its valuable right to defend. No prejudice will be caused to the complainant, if one opportunity is granted to opposite party No.1 to file written statement and to lead evidence and the complainant can also be compensated by way of costs.
17. Accordingly, present appeal is allowed; the impugned order dated 6.11.2019 is set-aside; and the case is remanded to District Commission for deciding the same afresh after affording one opportunity to opposite party No.1 to file its written statement and to lead evidence in support of the same; however, subject to payment of costs of ₹15,000/-, out of which ₹5,000/- shall be paid to the respondents-complainants and ₹10,000/- shall be deposited in the Consumer Legal Aid Fund of this Commission. The respondents- complainants will be at liberty to file rejoinder to the reply/written First Appeal No.165 of 2020 14 statement and to lead evidence in rebuttal, if any. The parties are directed to appear before the District Commission on 30.10.2020.
18. The appellant-opposite party No.1 had deposited a sum of ₹25,000/- at the time of filing of the appeal. Out of the said amount the Registry is directed to deduct ₹10,000/- and deposit the same in the Consumer Legal Aid Fund of this Commission. The remaining amount of ₹15,000/- along with interest accrued, if any, shall be sent by the Registry to District Commission. The District Commission shall pay a sum of ₹5,000/- to the complainants and thereafter refund the balance amount along with interest to the appellant- opposite party No.1.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT September 29, 2020 Bansal