State Consumer Disputes Redressal Commission
D.B. Saxena Flat No.4, Raymont Court New ... vs Oriental Insurance Company Ltd., ... on 30 December, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) F.A.NO.678/2011 (Against order in CC.NO.196/2010 on the file of the DCDRF, Chennai (North) DATED THIS THE 30th DAY OF DECEMBER 2011 D.B. Saxena Flat No.4, Raymont Court New Door No.33, Old Door No.15 Pycrofts Garden Road, Chennai- 600 006 Rep. by authorized Agent T.Rajaram No.10. Second Street, Tansi Nagar Velachery, Chennai- 600 042 Appellant/ Complainant Vs. 1.
Oriental Insurance Company Ltd., Oriental House P.B. No.7037, A-25/27, Asaf Ali Road New Delhi- 110 002 Rep. by its Chairman & Managing Director
2. The Oriental Insurance Company Ltd., Divisional Office X Dwaraka- 2nd Floor No.79, Uthamar Gandhi Road Chennai- 600 034 Rep. by its Divisional officer Respondent/Opposite party The appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to renew the policy to pay Rs.50,000/- as compensation of Rs.50000/- and cost of RS.20000/-. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.04.05.2011 in CC.No.196/2010.
This petition coming before us for hearing finally on 09.12.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ Complainant : M/s. K. Moorthy Counsel for the Respondent/Opposite party : M/s. Maheswaraiah M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. Facts:
The complainant had taken individual mediclaim policy, for one year from 28.5.2009 to 27.5.2010, and previously also he was regularly taking individual mediclaim and renewing the same in advance, as per the intimation given by the opposite parties. He was under the bonofide impression that the present policy, bearing No.412000/48/2010/377 should be renewed during August 2010, waiting renewal notice in the month of July. But the opposite parties have not issued any reminders, and therefore the complainant on his own, requested the opposite party to renew the policy by sending a cheque for Rs.28,788/-, with covering letter, which was returned informing as if the complainant had crossed 80 years of age, not eligible for mediclaim policy, and if at all fresh policy has to be taken, that is barred, and there is no question of renewal. Thus in not sending renewal notice, as well as not renewing the policy, w.e.f. the date of expiry of the previous policy, the opposite party had committed negligence, as well as deficiency in service, thereby caused mental agony to a senior citizen, aged about 80 years. Hence the complainant is constrained to file this consumer complaint, seeking direction to renew the policy, as well as claiming a sum of Rs.50000/- as compensation.
3. The opposite party/ respondent, admitting that the complainant was a mediclaim policy holder, and the policy issued was from 28.5.2009 to 27.5.2010, which expired on the midnight, that it is not mandatory, that they should issue reminder for renewal of the policy, that when the complainant requested for the renewal sending the amount, since he had crossed the age of 80, the amount was returned in view of the fact, this kind of policy is contemplated for a person, aged between 18 and 80, and that the complainant is not a consumer, mental agony alleged is imaginary, for which the insurance company cannot be held responsible, praying to dismiss he complaint with cost, denying other averments also.
4. Based upon the admitted facts, then as well as proof affidavit by either parties, the District Forum has come to the conclusion, that the complainant is not a consumer, since no consideration was paid for service, that as per the conditions of the policy, this kind of policy could be taken by a person between the age of 18 and 80 under which category, the complainant has not come, and therefore no direction could be issued for renewal. On the above conclusion, the complaint was dismissed on 4.5.2011, without cost, which is impugned by the complainant, seeking the same relief in this appeal.
5. The learned counsel for the appellant would contend, that the insurance company cannot restrict the age of the individual to take mediclaim policy, that when a person opted a mediclaim policy, paying consideration, it is the duty of the insurance company to renew the policy or issue the fresh policy, as the case may be, which they failed, not properly considered by the District Forum, warranting interference of this commission, which is opposed.
6. The consumer forum, cannot be a policy making body, and it is for the regulatory authority of the insurance company, to formulate policy, based upon the Government decision, as well as to issue guidelines. Therefore in a given case, the duty of the consumer forum is to find out whether the insurance company, being a service provider, had committed default in service, amounting to deficiency in service, proceeded by negligence if any, that too for consideration. If the above aspects are not available, then the consumer forum has no jurisdiction. As far as this case is concerned, it comes squarely within the above formula, which was properly considered by the District Forum, which does not require any disturbance, by this commission, as rightly urged on behalf of the respondent, for which we endorse our reasons also.
7. Admittedly, the complainant had taken mediclaim policy on 28.5.2009 for a period of one year, which had come to an end on 27.5.2010. It is not in dispute that policy was not renewed on or before 27.5.2010. When the complainant attempted to renew the policy, in the month of August, he had crossed the age of 80 years, his date of birth being 14.6.1929. Therefore, the amount sent by the complainant was returned admittedly, refusing to renew or to issue even fresh policy also, which compelled the complainant to come to the consumer forum, on wrong advise. In paragraph 2 of the complaint, it is said, that the complainant was under the bonofide belief, that the policy is to be renewed during August 2010, and for that belief, the opposite party cannot be held responsible, since admittedly, as pleaded in paragraph 1 of the complaint, policy came to an end on 27.5.2010, which was within the knowledge of the complainant. Therefore, based upon he bonofide belief, the policy expired on 27.5.2010, cannot be renewed w.e.f. from the said date onwards, on payment of Rs.28,788/-, on 11.8.2010, which was rightly rejected. In this context, we have to see whether the complainant is entitled to hold this kind of mediclaim policy.
8. The policy was produced by the complainant, and the first paragraph itself reads Individual mediclaim policy will be available to any individual between the age of 18 to 80 years for treatment taken in India.
An individual can also get his family cover by way of family package cover, thereby indicating that the age prescribed for mediclaim insurance policy is between the age of 18 and 80. As said above, when the existing policy expired, the complainant had crossed the age of 80 years. Therefore, as of right, or under the policy of the insurance company, the complainant cannot claim to hold mediclaim insurance policy, and admittedly in this case, the opposite parties have not collected anyother amount, by way of consideration, to consider the claim for the renewal of the policy also, the fact being the belated payment was returned. Therefore, as rightly recorded by the District Forum, the complainant is neither a consumer, nor the opposite parties are service provider, which should follow the consumer forum has no jurisdiction.
9. The main grievance of the complainant, appears to be that he is entitled to renewal notice, and in this case, no renewal notice was given and the opposite party though claimed, as if issued, no document has been produced, that should be construed as deficiency in service. In the policy itself, under the heading Renewal of policy, it is said the company normally send renewal notice, but non sending is not tantamount to deficiency in service, reiterating The company shall not be responsible or liable for non-renewal of policy due to non-receipt of delayed receipt (i.e. After the due date ) of the proposal form or of the medical practitioners report wherever required or due to anyother reason whatsoever, thereby making it absolutely clear, that they have not taken the mandatory responsibility of issuing renewal notice.
Therefore, even assuming that no renewal notice was sent, that cannot be termed as deficiency in service. Further as per the date of birth of the complainant , he had reached the age of 80 on 14.6.2009. The existing policy came to an end on 27.5.2010, having renewed prior to the completion of 80 years, that benefit cannot be extended, for a further period after the complainant has completed the age of 80, as per the salient features of the policy, which is binding upon the complainant also.
Therefore, the submission of the learned counsel for the appellant, that no notice was issued, or the notice issued would indicate that the complainant is entitled to renew the policy, is unacceptable to us, either on fact or on law. As reported by the opposite party, when a communication was sent by the complainant on 24.7.2010, reply was given on 27.7.2010, informing that renewal notice was sent to the complainant, further informing the mediclaim policy will be available to an individual between the age of 18 to 80 years only, thereby rejecting the claim of the complainant also. Probably, as a routine work, without taking into account the age, a renewal notice might have been issued, that will not give a right to claim medical insurance policy, which is intended or proposed or formulated, by the opposite parties, or any insurance company, as the case may be, for any individual between the age of 18 and
80. In this view, the non-issuance of notice, or renewal notice already sent and claiming fresh policy cannot be issued, because of the age limit, which cannot be taken as deficiency in service. It is the settled proposition of law, that the consumer forum cannot create a contract between the parties, and consumer forum can decide, whether the parties have conducted themselves, as per the terms and conditions of the contract, and the terms and conditions of the policy, will come within the meaning of a concluded contract. When there is no policy, and when the conditions of the policy says, this kind of mediclaim policy can be issued for the person below 80 years, consumer forum cannot issue direction to the opposite party, to renew the policy, thereby creating a contract, which is prohibited. The District Forum, properly considering the rival contentions of the parties, has reached a just and correct legal conclusion, which we are constrained to confirm the same, that too, with cost, since the complainant had come before us unnecessarily, knowing the conditions of the policy, since informed by District Forum also, he is not entitled to the renewal.
10. In the result, the appeal is dismissed, with cost of Rs.1000/-, confirming the order of the District Forum in CC.No.196/2010 dt.4.5.2011.
A.K. ANNAMALAI M. THANIKACHALAM JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Government