State Consumer Disputes Redressal Commission
Varinder Kumar vs Life Insurance Corporation Of India And ... on 28 September, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.325 of 2021
Date of institution : 20.09.2021
Date of Reserve : 12.09.2023
Date of Decision : 28.09.2023
Varinder Kumar son of Mulakh Raj aged 54 years, Aadhaar Card
No.6882 7370 2537, resident of VPO Gidranwali, Tehsil Abhohar,
District Fazilka.
.......Appellant/Complainant
Versus
1. Life Insurance Corporation of India through its Authorized
Representative Jeewan Jyoti Building, near Gaushala, Abohar-
152116.
2. The Chairman, Life Insurance Corporation of India near DM Hotel,
opposite MK Hotel, Amritsar.
.......Respondents/Opposite Parties.
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 07.06.2021
passed by the District Consumer
Disputes Redressal Commission,
Ferozepur in CC No.28 of 2020.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
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 Present :-
For the appellant : Sh.Alok Jain, Advocate For the respondents :Sh.Sandeep Bhardwaj, Advocate F.A.No.325 of 2021 2 SIMARJOT KAUR, MEMBER Appellant/Complainant i.e. Varinder Kumar has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 07.06.2021 passed by the District Consumer Disputes Redressal Commission, Ferozepur (in short 'the District Commission') whereby the complaint filed by the complainant was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts of the complaint are that the complainant had purchased one insurance policy bearing No.131196988 in his name from the OPs, which commenced from 28.03.1998 for a period of 20 years. The maturity date of the said policy was 28.03.2018. It was averred that all the installments of the said policy had been paid by the complainant and another policy bearing No.471188826 of 28.03.2004. It was submitted that in the year of 2008, the complainant met with an accident at Village Gidranwali, District Fazilka and got injured. He got admitted in Civil Hospital, Abohar and was referred to PGI at Chandigarh and stayed there for a long time. Thereafter, the complainant was operated upon in many other hospitals for his right leg which was amputated. Also food pipe for eating was inserted. A F.I.R. No.12 dated 05.02.2009 was also lodged. After that accident he became 100% disabled. He was the only bread winner of his family. The complainant approached the OP No.1 for obtaining an insurance claim of Rs.4,50,000/-, but OP No.1 F.A.No.325 of 2021 3 lingered the matter on one pretext or the other. Thereafter the complainant served a legal notice upon the OPs, but all in vain.
4. Stating to be a case of 'deficiency in service' and 'unfair trade practice' on the part of OPs, the complaint was filed by the complainant for issuance of directions to OPs to release the full claim amount of policy of Rs.4,50,000/-.
5. Upon issuance of notice by the District Commission, OPs appeared through their counsel and filed joint reply by raising certain preliminary objections stating therein that the complaint filed by the complainant was for release of full claim of Rs.4,50,000/- under policy No.131196988 dated 28.03.1998 whereas, the said policy was for a sum assured of Rs.25,000/- only. It was also mentioned in the reply that the complainant had filed another complaint before Permanent Lok Adalat Public Utility Services, Fazilka bearing No.13877 dated 22.11.2013 for claiming disability benefits under the policy No.131196988 dated 28.03.1998. He himself had mentioned that the sum assured of the policy was Rs.25,000/-. The date of maturity was 28.3.2018 and the maturity claim for an amount of Rs.32,650/- which includes basic sum assured of Rs.6250/- (25% of the sum assured of Rs.25000/- plus vested bonus of Rs.25,900/- plus Rs.500/- as final additional bonus under the policy) had been paid to the complainant on 28.03.2018. The said fact had been concealed by the complainant. Survival benefit of Rs.6250/- had also been paid to him on 28.3.2015, 28.03.2016 and 28.03.2017 as per terms and conditions of the policy. Nothing else remained to be paid to him with regard to the full sum assured. All the benefits under the policy in F.A.No.325 of 2021 4 question had been duly given to the complainant except the disability benefit which has been repudiated vide letter dated 11.8.2010 as per clause 9 (a) of the policy in question. It was also mentioned in the reply that as per FIR No.12 dated 5.2.2009, PS Khuian Sarwar as well as of the previous complaint filed before Permanent Lok Adalat (Public Utility Services), Fazilka, the accident of the complainant took place on 04.02.2008 and the said date had been concealed by the complainant. However, as per the discharge card of the complainant, the treatment given was "Guillotine amputation of right lower limb above knee" done under SA on 9.4.2010. The amputation of right limb was done almost after more than 2 years of the accident and not within 90 days from date of the accident. Therefore the complainant was not entitled to disability benefit on this account. In respect of other policy No.471188826 and 131002540 of the complainant in addition to policy No.131196988 i.e. policy in dispute, the disability benefit under all the three policies had been rightly repudiated vide letter dated 11.08.2010. All other allegations of the complaint had been denied and they prayed for dismissal of the complaint.
6. Mr. Alok Jain, Advocate learned counsel for the appellant has submitted that the application before the Permanent Lok Adalat was instituted on 03.10.2013 but the matter remained pending for unusually long time before it was finally decided on 01.03.2021. Meanwhile, the appellant lodged consumer complaint on 16.01.2020 which was decided on 07.06.2021 by District Commission Ferozepur during Covid-19. The facts including abolition of Permanent Lok Adalat could not be brought to the notice of District Commission. Permanent Lok Adalat cannot adjudicate the matter in F.A.No.325 of 2021 5 the present controversy on merits. The mere nomenclature of Chapter VI-A unequivocally conveys that it had been created for the purposes of Pre-litigation Conciliation and settlement for speedy justice without procedural bottlenecks and time-consuming costly legislative procedure. It is not suggestive of adjudication on merits. Learned counsel has relied upon the judgments of Hon'ble Supreme Court of India in cases titled as 1) "Deepak Agro Foods Vs. State of Rajasthan and Ors.", Civil Appeal No.4327-28 of 2008 decided on 11.07.2008, 2) "Estate Officer Vs. Colonel H.V.Mankotia", Civil Appeal No.6223 of 2021 decided on 07.10.2021, 3) "New Okhla Industrial Development Authority (NOIDA) Vs. Yunus & Ors.", Civil Appeal No.901 of 2022 decided on 03.02.2022, in support of his arguments.
7. Mr. Sandeep Bhardwaj, Advocate, learned counsel for the respondents/opposite parties has submitted that the appellant/complainant had filed an application before the Permanent Lok Adalat (PUS) No.13877 at Ferozepur and had also filed a CC No.28 of 2020 on 16.10.2020, without withdrawing the application before the Permanent Lok Adalat against the same OPs on the same cause of action. The policy in dispute was also the same in both the cases i.e. Permanent Lok Adalat and the said Consumer Complaint. Learned counsel had also submitted that policy No.13119688 dated 28.03.1998 was for sum assured of Rs.25,000/- only which was apparent from the policy bond of said policy. This policy had not been on record intentionally by the complainant. The date of maturity was 28.03.2018. The maturity claim was for an amount of Rs.32,650/- which includes basic sum assured of Rs.625/- (25% of the sum F.A.No.325 of 2021 6 assured of Rs.25,000/- plus vested bonus of Rs.25,900/- plus Rs.500/- as final additional bonus under the policy). This claim had already been paid to the complainant on 28.03.2018. The survival benefit of Rs.6250/- had also been paid to the complainant. The disability benefit sought by the complainant had rightly been repudiated vide letter dated 11.08.2010. The accident reportedly took place on 04.02.2008. The amputation of right leg was done in April, 2010 and there was amputation of single limb only. As per condition No.9 (a) of the policy No.131196988 it has been mentioned that the disability referred to must be disability which is the resultant of an accident. Such disability must be total and thereafter the life assured is not capable to pursue any work, occupation or profession to earn or obtain any wages, compensation or profit. Any disability which occurs as a result of accident i.e. injury resulting in the irrecoverable loss such as loss of entire sight of both eyes, the amputation of both hands at or above the wrists, the amputation of both feet at or above ankles etc. These injuries are to be reported within ninety days from the occurrence of the accident. The definition of disability has been defined in the condition No.10 (a) in policy No.471188826 and in condition No.10.4 in policy No.131002540. There is a limiting period of 120 days in respect of policy No.131002540 and of 180 days in respect of policy No.471188826. In the present case the amputation of right limb of the complainant was done after more than two year from the date of accident and not within 120 or 180 days as said above.
F.A.No.325 of 20217
8. Learned counsel has further submitted that as per the terms and conditions mentioned above, the appellant/complainant was not entitled for the disability benefit and also in accordance with the settled preposition of law. Learned counsel has relied upon judgment of Hon'ble Supreme Court of India in case titled as "InterGlobe Aviation Ltd. Vs N.Satchidanand", Civil Appeal No.4925 of 2011, decided on 04.07.20211 and judgment of Hon'ble National Commission in case titled as "Muzamil Mattoo and Anr. Vs. Emaar MGF Land Limited", Consumer Case No.2567 of 2018, decided on 14.02.2022, reported in II (2022) CPJ 33 (NC).
9. By considering the averments made in the complaint as well as in the reply thereof, the complaint filed by the complainant was dismissed vide order dated 07.06.2021 passed by the District Commission. The relevant part of said order is reproduced as under:-
"7. We examined the evidence led by both the parties. Ex.Ops/4 is the complaint filed under Section 22 C(1) of the Legal Service Authority Act, 1987 before Permanent Lok Adalat (PUS) Ferozepur and the same is pending. The matter is subjudice. Complainant mentioned same policy numbers in his complaint, which was filed before the Permanent Lok Adalat, so complaint under the same cause of action between the same parties before this Commission is not maintainable.
8. In view of what has been discussed above, the present complaint fails and the same is hereby dismissed without any order as to costs."
10. The appellant/complainant has filed the present appeal being aggrieved by the impugned order dated 07.06.2021 passed by the District Commission by raising a number of arguments. F.A.No.325 of 2021 8
11. We have heard the oral arguments raised by learned counsel for the parties. We have also carefully perused the impugned order passed by the District Commission as well as all the relevant documents available on the file.
12. Facts relating to filing of complaint by the complainant before the District Commission, reply thereof and on hearing the oral arguments raised by counsel for the parties and passing of impugned order dated 07.06.2021 by the District Commission and thereafter filing of present appeal before this Court by the appellant/complainant are not in dispute.
13. Admittedly, the appellant/complainant had purchased the policy bearing No.131196988 in his name from the respondents/OPs. The date of commencement of said policy was 28.03.1998 and it was for a period of 20 years i.e. the said policy was to be matured on 28.03.2018. The appellant/complainant had averred in the complaint as well as in the appeal that in the year 2008, he met with an accident on 04.02.2008 at Village Gidranwali, Tehsil Abohar and District Fazilka. He got injured due to which he was operated upon and his right leg amputated in April, 2010. F.I.R. No.12 dated 5.2.2009 was also lodged (Ex.C-7). The appellant/complainant approached OPs for release of full claim of Rs.4,50,000/- under the policy No.131196988 but the respondents/OPs had rejected his claim as per Clause 9 (a) of the policy. As per the version of the respondents/OPs, they had paid an amount of Rs.32,650/- (Ex.OPs/5) as per the terms and conditions of the policy.
F.A.No.325 of 20219
14. We have gone through the documents tendered by the parties before the District Commission as well as terms and conditions of the said policy. The sequence of events leading to the amputation of the appellant is mentioned below :
Date of Accident : 04.02.2008
Date of FIR : 05.02.2009 (Ex.C-7)
Date of Amputation : 09.04.2010
(as per discharge certificate)
Issuance of Disability Certificate : 09.06.2010 (Ex.OPs/10) 16.10.2017 (Ex.C-4) Date of filing of application before the Permanent Lok Adalat, Fazilka : 03.10.2013 Decision by Lok Adalat : 01.03.2021 Date of filing CC before Distt. Commission : 16.01.2020 Date of Decision : 07.06.2021
15. Admittedly, the appellant/complainant had availed two remedies one before the Permanent Lok Adalat and second during the pendency of application for the Lok Adalat, he had also filed Consumer Complaint No.28 of 2020 before the District Commission. The action of appellant/complainant while availing two remedies so availed is clearly against the Doctrine of Election as decided by the Hon'ble Supreme Court in case titled as "M/s Imperial Infrastructure Pvt. Ltd. V. Anil Patni and Anr.", reported in I (2021) SLT 85+1 (2021) CPJ 3 (SC)+ 2020 10 SCC 783, wherein it has been held that Doctrine of Election is applicable and it is always open to a person either to approach the fora under Consumer Protection Act, 1986/2019, or to approach any other Authority. The person who has approached to any of the authorities at first instance F.A.No.325 of 2021 10 is estopped from approaching other authorities as per Doctrine of Election applies. Meaning thereby admittedly the complainant had approached Permanent Lok Adalat on 03.10.2013 much prior to filing of consumer complaint before the District Commission on 16.01.2020. It has been brought to our notice that an application No.13877 of 2013 was filed before Permanent Lok Adalat (Public Utility Services), Fazilka, and it was dismissed vide order dated 01.03.2021, the relevant part of the order is reproduced as under:-
"In the above said laws, the settle legal position is also against the fact and circumstances of the case of the applicant as he stated to have suffered injury during the treatment of which his right lower limb above knee was amputated. That along injury cannot be said to be failing within the total and permanent disability as per terms and conditions of insurance policies of the applicant in this case as discussed above.
In view of whole above discussion, this Adalat unanimously has reached at the conclusion that on one hand the application of the applicant is barred by limitation and even on the other hand on merits, there is no merit in the application of the applicant. Accordingly, same is dismissed and disposed off and this Award of dismissing of the application of the applicant is passed under Section 22-C (8) of the Legal Services Authorities Act, 1987".
16. As per submission made by learned counsel for the appellant/complainant said decision of the Permanent Lok Adalat has the jurisdiction of Lok Adalat under Section 20 is to facilitate a settlement of disputes between the parties and it has no adjudicator role. The Permanent Lok Adalat could not have possibly adjudicated the matter in controversy on merits. In support of his contention F.A.No.325 of 2021 11 learned counsel has relied upon judgment of Hon'ble Supreme Court of India in case titled as "New Okhla Industrial Development Authority (Noida) Vs. Yunus", Civil Appeal No.901 of 2022 decided on 03.02.2022. Learned counsel has also relied upon other judgment of case titled as "State Officer Vs. Colonel H.V. Mankotia" reported as AIR 2021 SC 4894, wherein it has been held that once no Compromise or Settlement had been arrived between the parties before the Lok Adalat, the matter has to be returned to be decided by the concerned court. Furthermore, the learned counsel has contended that Permanent Lok Adalat had already lost its existence on account of coming into operation of Central Act No.17 of 2015, namely Repealing and Amending Act, 2015, because of Repeal of Act No.37 of 2022, the Permanent Lok Adalat denuded of its powers once enjoined upon it under Chapter VI-A of 1987 Act. Therefore, the order dated 01.03.2021 passed by Lok Adalat was wholly without jurisdiction and null and void.
17. Besides, the terms and conditions of the said policy, the relevant Clause 9 (a) has also been perused which was the basis of repudiation of the claim of the appellant/complainant and the same is reproduced as under:-
Clause 9 (a) Disability Benefit:
The disability above referred to must be disability which is result of an accident and must be total and permanent and such that there is neither then nor at any time thereafter any work, occupation or profession that the life assured can ever sufficiently do or follow to earn or obtain any wages, compensation or profit. Accidental injuries which is independent of all other causes and within ninety days F.A.No.325 of 2021 12 from the happening of such accident, result in irrecoverable loss of both hands at or above the wrists or in the amputation of both feet at or above ankles or in the amputation of one hand at or above the risk and one foot at or above the ankle shall be deemed to constitute such disability.
18. In the present case immediately on occurring of the disability, the intimation/particulars of the life assured were not given within the period of 90 days. The accident of the life assured took place on 04.02.2008 and the amputation was done on 09.04.2010. Meaning thereby a period of almost two years had elapsed between the occurrence of accident and the resultant amputation. As per the averments made in the complaint, the appellant/complainant was undergoing treatment of serious injuries caused due to the accident and was not in a position to intimate the respondents/OPs in the prescribed period. Admittedly in case any person is seriously injured, the first and foremost response is required to save the injured part/organ of the body. In the present case also the appellant/complainant was undergoing treatments in various hospitals and doctors were not able to save his limb and ultimately his limb was amputated. He could not have even thought of approaching the respondents/OPs in the first instance for settlement of claim in such circumstances. Admittedly, the respondents/OPs have settled the claim of the complainant as per the terms and conditions of the policy by paying an amount of Rs.32,650/- vide receipt dated 23.03.2021 (Ex.OPs/6), but his claim for disability was repudiated by the respondents/OPs. This compensation is not sufficed for a person with permanent disability of 95%/100%. This disability had already been F.A.No.325 of 2021 13 certified by the medical authorities (Ex.C-4) & (Ex.OPs/10). Accordingly, we deem it appropriate to direct the respondents/OPs to settle the claim of the appellant/complainant under the Policy (No.131196988) by considering 95-100% disability of complainant by ignoring the condition regarding intimation of disability within a period of 90 days.
19. In view of the aforesaid discussion, we find force in the contentions raised by learned counsel for the appellant/complainant and the present appeal is allowed by setting aside the order dated 07.06.2021 passed by the District Commission with further directions to respondents/OPs to settle the claim of the appellant/complainant by ignoring the aforesaid condition.
20. The compliance of this order be made by respondents/OPs within a period of 45 days from the date of receipt of copy to this order.
21. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly, disposed of.
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER September 28, 2023 (Rupinder 2)