State Consumer Disputes Redressal Commission
Debaprakash Maitra vs National Insurance Company Limited And ... on 31 March, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/515/2010 DATE OF FILING : 08.09.2010 DATE OF FINAL ORDER: 31.03.2011 APPELLANT : 1. Debaprakash Maitra, S/o Late Ramapada Maitra, Raikot Para, P.S: Kotwali, P.O & Dist: Jalpaiguri. RESPONDENTS : 1. National Insurance Company Limited, Divisional Office - Thana Road, P.S: Kotwali, P.O. & Dist: Jalpaiguri, Rrepresented by the Divisional Manager, Jalpaiguri Division, National Insurance Company Limited, Thana Road, P.S. - Kotwali, P.O & Dist: Jalpaiguri. 2. Senior Divisional Manager, National Insurance Company Limited, Division III, 1, Shakespeare Sarani, 6th Floor, Kolkata- 700 071. 3. Divisional Manager, Jalpaiguri Division, National Insurance Company Limited, Thana Road, P.S.: Kotwali, P.O & Dist: Jalpaiguri. BEFORE HONBLE MEMBER
: Smt. Silpi Majumder.
HONBLE MEMBER : Sri Shankar Coari.
FOR THE APPELLANT :
Sri. Saroj Kumar Das, Advocate.
FOR THE RESPONDENTS : Ms. Tanushree Dasgupta, Advocate.
Silpi Majumder, Member The present appeal has been preferred by the Complainant- Appellant, being dissatisfied with the judgment passed by the Ld. District Forum, Jalpaiguri, on 25.06.2010 in the case no-13/2010 wherein the Ld. Forum below allowing the complaint in part on contest with cost of Rs.500/- against the OPs has directed the OPs to issue a fresh renewal policy for the period from 31.08.2009 to 30.08.2010 without any exclusion clause such as exclusion of any kind of heart disease of the Complainant only to the Complainant within 7 days from the date of passing of the judgment, in default the policy would stand renewed to this extent. The OPs were further directed to make payment of Rs.28,927/- + Rs.66,537/- totaling to Rs.95,564/- towards cost of treatment as sanctioned by the OPs along with compensation to the tune of Rs.20,000/- due to deficiency of service and unfair trade practice and a sum of Rs.10,000/- towards mental agony and harassment. The OPs were directed to pay the abovementioned amount to the Complainant within 30 days from the date of passing of the judgment, failing which the abovementioned total amount would carry interest @ 8 % p.a. for the period of default till realization.
The fact of the case of the Complainant is that being a continuous policy holder of mediclaim policy along with his family members since 31.08.1999 the Complainant fell ill and had to be admitted in Marina Nursing Home on 22.04.2008 wherefrom he was discharged on 23.04.2008 after due treatment. It is pertinent to mention that the Insurance Policy was valid from 31.08.2007 to 30.08.2008. The claim of Rs.1,40,000/- out of Rs.3,00,000/- for the purpose of treatment of the Complainant was placed before the OP who issued claim voucher amounting to Rs.95,464/-(Rs.28,927/-+Rs.66,537/-) the Complainant signed the vouchers of the amount with objection, but the OP did not issue any cheque for those amount as objection was endorsed. Moreover, in the subsequent renewal of the Insurance Policy any kind of heart disease has been excluded from the policy. Several requests for making payment of sum assured money to the tune of Rs.1,40,000/-
was made but to no effect. Requests were also made for inclusion of heart disease in the renewal policy, which did not yield any fruitful result. Hence, finding no other alternative the Complainant has preferred the petition of complaint before the Ld. District Forum praying for direction upon the OPs to pay him a sum of Rs.1,40,000/- along with interest from the date of claim to him within one month from the date of order, failing which to pay further interest till the date of realization, to issue a fresh renewal policy for the said period of 31.08.2009 to 30.08.2010 without any such exclusion clause such as exclusion of any kind of heart disease of the Complainant only immediately to the Complainant and to issue renewal policy to him without any such exclusion clause in the said policy, to pay a sum of Rs.50,000/- towards compensation for deficiency in service, Rs.10,000/-towards mental agony and harassment within one month from the date of order, failing which to pay interest till the date of realization and litigation cost of Rs.5,000/-.
Aggrieved by the abovementioned judgment the Appellant-Complainant has preferred the present appeal contending that the Ld. Forum has wrongly rejected the contention of him without assigning any reasons but affirmed the contention of the OPs blindly and improperly. The Ld. Forum has wrongly observed that as per terms and conditions of the prospectus the Complainants claim for reimbursement has been settled by the OPs but the OPs have done it arbitrarily. It is a glaring mistake on the part of the Ld. Forum that the claim should have been settled as per terms and conditions of the policy and not the prospectus. The Ld. Forum ought to have held that the prospectus is not a part and parcel of the policy issued by the OPs as well as the prospectus is not a contract between the parties. It is necessary to mention that the so called prospectus was not signed by the Complainant at any point of time. It has been mentioned in the grounds of memorandum of appeal that the OPs did not adduce any evidence to substantiate that the contents of the prospectus was read over and explained to the Complainant at the time of inception of the policy or its subsequent renewals, but the Ld. Forum below has fully relied upon the said prospectus. According to the Appellant the judgment passed by the Ld. Forum below is partially erroneous and prayer has been made on behalf of the Appellant to allow this appeal after modification of the said judgment.
The OP took the plea before the Ld. Forum below against the petition of complaint by filing written version wherein it denied all material allegations contending interlia that the OP settled the claim for Rs.28,927/- and Rs.66,537/- respectively and the Complainant signed the vouchers with objection and hence, there was no deficiency in service on the part of the OP. It has been also stated by the OP that the said amount was sanctioned as per terms and conditions mentioned in the prospectus and the heart disease was excluded in the renewed policy as there was pre-existing heart disease. Before the Forum below the OPs prayed for dismissal of the Complaint.
Before the Ld. Forum below the discharged certificate of the nursing home, money receipt, medicine bill, nursing home bills, several bills of reports and several letters were filed and after perusal of the said records the Ld. Forum has passed the abovementioned judgment.
At the time of hearing the Ld. Counsel for the Respondent has submitted that as there is an arbitration clause the case is not maintainable before the Consumer Forum and it should go to an arbitrator for adjudication. In this respect we are of the view that authority of the State Commission to decide the dispute in terms of the provisions of the Consumer Protection Act, 1986 has not at all been ousted altogether. Section 3 of the Consumer Protection Act reads as under:
3. Act not in derogation of any other law- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
The Supreme Court in the decision reported in AIR 1997 Supreme Court 533 (M/s. Fair Air Engineers Pvt. Ltd. And another-Vs-N.K. Modi) has held in no uncertain manner as under:
The Legislature intended to provide a remedy in addition to the consentient arbitration, which could be enforced under the Arbitration Act on the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, Section 34 of the Arbitration Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e. to avail of right of civil action in a competent Court of civil jurisdiction, Nonetheless, the Act provides the additional remedy.
Furthermore, the Supreme Court in the decision reported in AIR 2000 Supreme Court 2008 (Skypak Couriers Limitedvs-Tata Chemicals Limited) dealing with the question as to the propriety of the Consumer Disputes Redressal Commission to decide a dispute covered by an Arbitration Clause contained in the agreement between the parties has clearly held that even there exists an Arbitration Clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an Arbitration Clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is an addition to the provisions of any other law for the time being in force.
In view of the aforesaid decisions of the Supreme Court we are of the view that this State Commission is not obliged to refer the dispute to an Arbitral Tribunal only because such dispute is covered under Arbitration Clause contained in the agreement between the parties. Rather in view of Section 3 of the Consumer Protection Act, 1986 this State Commission is entitled to proceed with the matter in accordance with the provisions of Consumer Protection Act, 1986.. Thus we do not find any cogent reason to refer the dispute for its disposal by Arbitration proceeding only because the same is covered under Arbitration Clause contained in the agreement between the parties.
On careful consideration of the papers and documents as available in the record it is seen by us that the case of the OP is that Complainant was suffering from serious kind of heart disease during the policy period of 31.08.2007 to 30.08.2009 and accordingly, in the renewal of the said policy for the subsequent years any kind of heart disease of the Complainant was excluded. The Ld. Forum has mentioned one reported decision in its judgment i.e. ( 2008) 10 SCC 404 wherein it has been held that in case of renewal without break in the period of mediclaim insurance policy will be renewed without excluding any disease already covered in the existing policy which may have been contracted during the period of the expiring policy . Renewal of mediclaim insurance policy can not be refused on the ground that the insured had contracted disease during the period of the expiring policy so far as the basic sum insured under the existing policy concerned. In this respect we are of the view that in pursuant to the abovementioned decision the exclusion of the heart disease at the time of renewal of the policy by the OP is an example of unfair trade practice as well as it is a case of deficiency of service. In this respect we are also agreed with the view as taken by the Ld. Forum below.
In respect of the amount of reimbursement of the cost of the treatment the Ld. Counsel for the Appellant has submitted that at that time of taking out the policy in question the terms and conditions of the prospectus has not been disclosed before him and he without perusing the same accepted the policy. In this respect we are of the opinion that where the Complainant accepted the Insurance Policy putting his signature then whether the terms and conditions of the prospectus is beyond his knowledge cannot be a cogent point for adjudication of the claim. It can be said that where the Complainant put his signature and took Insurance Policy in good faith, while his claim has been partially repudiated by the Insurance Company based on the terms and conditions of the prospectus, now the Complainant cannot raise any point regarding that the terms and conditions were beyond his knowledge.
Going by the foregoing discussion we are of the opinion that the Ld. Forum below has passed a very well reasoned judgment, so we are not inclined to interfere in it. Hence, it is ordered that the appeal be dismissed on contest without any cost and the judgment passed by the Ld. Forum below is hereby affirmed.
Silpi Majumder Shankar Coari (MEMBER) (MEMBER)