State Consumer Disputes Redressal Commission
Icici Lombard, vs 1. Mrs Eraj Siddique W/O. Mohd. ... on 13 December, 2013
1 F.A. No. 445-08
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSALCOMMISSION,MUMBAI, CIRCUIT BENCH AT
AURANGABAD.
Date of filing: 17.04.2008
Date of Order: 13.12.2013
FIRST APPEAL NO.:445 OF 2008
IN COMPLAINT CASE NO.:233 OF 2008
DISTRICT CONSUMER FORUM: NANDED.
ICICI Lombard,
General Insurance Co. Ltd.
Through its Legal manager,
Zenith House, keshavrao Khadye
Marg, Mahalaxmi, Mumbai-400 034. ... Appellant
VERSUS
1. Mrs Eraj Siddique w/o. Mohd. Raizzuddin
R/o. Jubli Park, Aurangabad,
Tq. & Dist. Nanded.
2. The Branch Manager,
ICICI Credit Card,
Nirala Bazar, Aurangabad. ... Respondents
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. R. H. Dahat , for appellant.
None for respondents.
- :: ORAL JUDGMENT:: -
(Delivered on 13th December, 2013) Per Shri. K. B. Gawali, Hon'ble Member
1. This appeal is filed by the original opponent No.2 against the judgment and order dated 31.01.2008 passed by the District Consumer Forum, Aurangabad in consumer complaint No.233/2006 whereby the complaint is allowed holding the appellant as liable for the deficiency in service. The respondent No.1 is the 2 original complainant, whereas respondent No.2 is the original opponent No.1.
For better understanding the appellant which is a insurance company is hereinafter referred as "opponent insurance company", the respondent No.1 as the "complainant" and respondent No.2 which is a bank dealing with the credit cards is referred as "opponent bank".
2. The factual matters of the case in brief are that, the complainant is a credit card holder of the opponent bank for the last three years having credit card No.4477463859506004. It is contended by the complainant that she had issued a cheque dated 09.05.2005 amounting to Rs.40,000/- to the opponent bank for crediting the same in her credit card account which was credited at belated date i.e. on 15.10.2005. It was further alleged that the bank had recovered the interest, service charge and other charges towards the delayed period although the bank itself was responsible for delay in crediting her cheque amount. She had therefore approached the bank and requested for refreshing all the bills in proper manner by deducting and rectifying the said charges collected from her in forthcoming bills. However no action was taken by the opponent bank. She had therefore issued legal notice dated 29.04.2006, but in vein.
3. It is her further allegation that she had obtained family, health policy from the opponent insurance company which is a sister concern of the opponent bank for the period of two years from 21.03.2005 to 21.03.2007 and amount of premium was paid through her credit card. It is contended that she was suffering from hypertension, mental stress and other medical disorders for which she had undergone operation in Ruby Hospital, Pune. However the complainant contended that she was not given the policy benefit towards the medical expenditure incurred by her. It was further specifically contended that her son namely Sayyad Siddiqui had met with an accident and as an emergency case he was hospitalized in Ruby Hospital on 21.05.2006. That she had submitted pre- authorization request form of her son who was to be operated on 22.05.2006 being the emergency case. However the opponent insurance company made endorsement on the said form that the policy was cancelled although it was in 3 F.A. No. 445-08 force till the year 2007. She had therefore to pay Rs.55,000/- towards medical charges to the Ruby Hospital as her claim was not fulfilled by the opponent insurance company. Thus, she contended that both the opponent insurance company and the bank in collusion with each other have harassed her by committing deficiency in service. She had therefore approached to the District Forum seeking direction to the respondent No.1 to settle down bills by considering all the excess amount paid by her till the date of filing of the complaint. It was also sought directions to the opponent insurance company and opponent bank to pay her jointly & severally a compensation of Rs.2,00,000/- towards mental, physical harassment and financial loss as sustained by her due to their negligent act.
4. The opponent bank appeared before the Forum and contested the claim. It was admitted that the complainant had deposited cheque dated 09.05.2005 amounting to Rs.40,000/- which was credited in her account on 15.10.2005 i.e. after a period of five months. It was however submitted that the said cheque was drawn by the complainant on its distant branch i.e. SBI Gudgaon, (Haryana) branch, and therefore for the clearance of the said cheque the time of five months was consumed. It was also contended that they had immediately forwarded the said cheuqe in the month of May,2005 itself but its clearance was delayed as the branch located at a distant place, for which they are not liable. It was further contended that even for such delay although there was no mistake on their part, as a goodwill to the customer i.e. complainant, it had reversed the entry for late payment charges of Rs.3600/-, interest charges of Rs.910/-, over limit charges of Rs.2967/- and service charges of Rs.3822.65 as on 18.05.2006. Therefore the complainants claim was already fulfilled and there was no any cause of action for filing the said complaint. However with a malafied intention of waiving the outstanding amount of Rs.1,66,187/- against her credit account, the complainant had filed the said false and baseless complaint and therefore it was requested to dismiss the same.
46. The opponent insurance company had also appeared before the Forum and filed its written version, whereby the claim of the complainant is resisted. The fact of the issuance of the policy to the complainant has not been disputed by the opponent insurance company; however it was contended that insurance policy was not a blanket obligation but it was subject to certain terms and conditions of the policy. It was contended that the alleged pre-authorization request dated 22.05.2006 submitted by the complainant was rejected on the ground that it was incomplete and did not even carry the policy number. Therefore it was the carelessness of the complainant for which the opponent insurance company should not be held responsible. It was immediately informed to the complainant and was instructed to submit complete form along with other details etc. However, the complainant did not bother to complete and provide the necessary details. It was also contended that as no point of time, the complainant had approached with any other grievance to the opponent insurance company and hence, there was no cause of action against it for filing of the complaint. It was also contended that the so called legal notice issued by the complainant was totally against the opponent no.2 bank and there was no any grievance against it. Therefore the complaint be dismissed to the extent of the opponent insurance company.
7. The District Forum after perusal of the record and hearing the parties has passed the impugned judgment and order whereby opponent insurance company is directed to pay to the complainant amount of policy claim with interest at 9% p.a. from 20.06.2006 onwards within a period of six weeks. In addition, the opponent insurance company is also directed to pay Rs.3000/- towards deficiency in service and Rs.1000/- as cost of the complaint. No order was passed however against opponent bank. It is observed by the District Forum that the opponent insurance company only on the ground of incomplete pre- authorization form and absence of signature on the same has informed the complainant that the said policy was already cancelled. It was held that although the opponent insurance company had admitted that the policy was in effect upto 5 F.A. No. 445-08 the year 2007, but only on technical ground the medi-claim of the complainant towards the medication of her son was not accepted which amounts to deficiency in service. It is further held that though the policy was already renewed on 16.03.2006 for further period of one year i.e. upto 16.03.2007, but the same was not intimated to the complainant that there was no signature of her on the said pre-authorization form. It is also held that no notice or intimation letter about the said complaints in respect of the policy papers was sent to the complainant and hence the opponent insurance company is held liable for deficiency in service by the District Forum and accordingly passed the impugned judgment and order against it.
8. Feeling aggrieved by the said judgment and order the present appeal is filed in this Commission. This appeal is finally heard on 05.12.2013. Adv. Shri. R. H. Dahat was present for appellant. However, none was present for the complainant in respect of receiving of notice and hence the appeal was already proceeded exparte against her. The proxy Adv. Shri. Madake for Adv.Shri.U.N. Shete appearing for the opponent bank was present. That, the learned counsel Shri. R. H. Dahat for the appellant as well as Adv. Shete appearing for the respondent no.2 have submitted their written notes of argument. We heard Adv. Dahat for the appellant finally and the appeal was reserved for the judgment.
9. It is submitted by learned counsel Shri. Dahat that the District Forum has totally misconceived the facts of the complaint and has wrongly passed the impugned judgment and order. It is contended by him that except compensation, no claim is sought by the complainant in her complaint against the opponent insurance company. However the Forum has erred in passing order against the respondent no.2 by exceeding its jurisdiction. It is further contended that the District Forum has not properly understood the claim of the complainant. It has wrongly held that the pre-authorization form was required to be submitted at the time of taking policy document. In fact, the pre-authorization form was required to be submitted through the hospital where treatment is taken. It is further 6 pointed out by the learned counsel Shri. Dahat that, the complainant had never approached to the opponent insurance company for the redressal of any of her grievance. That, the legal notice issued by her also pertains to her claim against the opponent bank. Therefore it is contended that the complaint filed against the opponent insurance company was pre-matured and there was no any cause of action. It is further contended by the learned counsel for the appellant that the medical claim of the complainant was not submitted to the opponent insurance company along with necessary medical bills after proving the fact of accident and resulted injuries to the member of the complainant and therefore the question of sanctioning any insurance claim would not arise. However the District Forum has blankly passed the impugned judgment and order directing the opponent insurance company to pay the insurance claim to the complainant which is totally unjustified and illegal. In support of his above said contentions the learned counsel shri. Dahat has relied on the judgment and order dated 09.10.2001 passed by this Commission at Mumbai in case of Anandraj Manikchand Jain Vs. United India Insurance Company Ltd. II (2002) CPJ 233, wherein it is held that claim has to be proved by cogent and creditworthy acceptable evidence and the burden to do so lies upon the party claiming such compensation. Secondly, he also relied on the judgment and order passed on 15.10.2010 by the Hon'ble National Commission in case of Vijaya Rashmi Developers and Ors. Vs. Shri. Parshuram Narayan Redij, 2013 (2) CPR 447 (NC), in which it is held that no such relief can be granted which has not been prayed for. The learned counsel thus contended that in view of the ratio given in the aforesaid impugned judgment and order passed by the District Forum requires to be quashed and set aside.
10. The learned counsel Shri. Umesh Shete appearing for respondent no.2 by way of his written argument submitted that there is no order against respondent no.2. However requested to allow the appeal filed by the opponent insurance company by setting aside the impugned judgment and order.
7 F.A. No. 445-0811. We have carefully gone through the papers before us and the written notes of arguments filed by both the learned counsel we find a great deal of substance in the arguments as made out by the learned counsel Shri. Dahat appearing for the appellant/opponent insurance company. It is observed from the prayer clause made by the complainant in her complaint that the claim regarding the insurance amount of the policy has not been made against the opponent insurance company, but only the claim about compensation towards mental, physical harassment and financial loss is made that too jointly with the opponent bank. The District Forum however by way of its impugned judgment and order directed the opponent insurance company to pay to the complainant the amount of insurance claim with interest etc. As pointed out by the learned counsel Shri. Dahat for the appellant that the complainant had not submitted the medical claim about the reimbursement of the expenditure made in respect of the expenditure of her son, which was required as per the terms and conditions of the policy. The perusal of the record shows that the complainant has never submitted her insurance claim along with such required medical bills and other documents and in absence of said claim it cannot be expected that the insurance company to grant insurance claim on advoc basis. In fact, the opponent insurance company had instructed the complainant to file the pre-authorization form giving therein all details and supported by the required documents. However there is no proof to show that the complainant had complied those instructions and submitted the complete proposal about medi-claim with the opponent insurance company and hence it can be concluded that the grievance against the opponent insurance company is premature one and there was no cause of action to file complaint against it.
12. It is also observed that the District Forum has made wrong observation that the pre-authorization form is to be submitted along with insurance policy.
13. In view of our above said observation it can be said that the District Forum has totally mis-construed the claim of the complainant and failed to 8 appreciate properly the nature of claim of the complainant and evidence on record as submitted by the contesting parties and has erroneously passed the impugned judgment and order by exceeding its jurisdiction while granting the claim against the appellant/opponent insurance company. We are therefore left with no option but to quash and set aside the impugned judgment and order. Hence the following order.
O R D E R
1. The appeal is allowed.
2. The judgment and order passed by the District Forum is hereby quashed and set aside.
3. The complaint stands dismissed.
4. No order as to cost.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole) Member Member Presiding Judicial Member Kalyankar