State Consumer Disputes Redressal Commission
Star Health And Allied Insurance Co. ... vs Ravi Bansal on 21 December, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 458 of 2017
Date of Institution : 12.06.2017
Date of Reserve : 11.12.2017
Date of Decision : 21.12.2017
Star Health and Allied Insurance Co. Ltd., First Floor, Gagan
Complex, Backside Majestic Park Plaza Hotel, Gurdev Nagar,
Pakhowal Road, Ludhiana - 140001, through its Branch Manager.
....Appellant/Op No. 1
Versus
1. Ravi Bansal aged about 48 years S/o S. Hemraj
2. Satya Devi aged about 69 years W/o Sh. Hem Raj, both R.o
Street No. 4, Nagpal Nagar, Malot-152107.
....Respondent Nos.1&2/Complainant
3. Axis Bank, Branch Malot, Tehsil Malout, District Sri Muktsar
Sahib through its Branch Manager.
...Respondent No.3/Op No. 2
First Appeal against the order dated
3.5.2017 of the District Consumer
Disputes Redressal Forum, Sri Muktsar
Sahib.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh. Nitish Singhi, Advocate
For respondent Nos.1&2: Sh. Sandeep Bhardwaj, Advocate
For respondent No.3 : Ex.-parte.
First Appeal No. 458 of 2017 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/Op No.1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 3.5.2017 passed in consumer complaint No. 157 dated 3.11.2016 by the District Consumer Disputes Redressal Forum, Sri Muktsar Sahib (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed with a direction to Op No. 1 to pay a sum of Rs. 6,48,951/- (Rs. 5,69,268/- + Rs. 79,683/-) as medi-claim to the complainant alongwith interest @ 7% p.a. from the date of repudiation of the claim i.e. 7.4.2016. Op No. 1 was further directed to pay Rs. 5,000/- as cost/compensation whereas the complaint against Op No. 2 was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties (hereinafter referred as Ops) on the averments that through agent of Ops complainant purchased one medi-claim insurance policy No. P/161114/01/2016/005115 w.e.f. 22.9.2015 to 21.9.2016 in favour of complainant No. 2 with insurance cover of Rs. 10 Lacs at Malout. At that time, it was duly disclosed to the insured that insured is already suffering from high BP and Cholesterol-II. However, the Ops never issued any complete copy of the policy to the complainant till date. The policy is cashless insurance cover with Ops and that in case of emergency the claim can be lodged anywhere in India with nearest office. On 2.4.2016, First Appeal No. 458 of 2017 3 the complainant No. 2 had a problem at her house at Malout and she was detected of suffering from heart problem for the first time and she was shifted to Medanta Hospital, Gurgaon on 5.4.2016. The deponent/insured had no major problem of heart and no major diseases and had not undergone any hospitalization in the past history for heart problem. She had only minor Hypertension and type 2 Diabetic, which is not a major disease. The complainant lodged the claim under cashless scheme through Medanta Hospital. Stents were inserted in the body of the complainant and complainant spent a sum of Rs. 5,69,268/- on her treatment including hospital bills of Rs. 10,000/-. Claim was lodged by the complainant with the Ops on the same day and Medanta Hospital is under their network hospitals but the Ops did not pay any payment under cashless insurance claim. Thereafter, complainant No. 2 was against admitted with Medanta Hospital on 21.4.2016 to 25.4.2016 and spent a sum of Rs. 79,683/-. The bills of Rs. 5,69,268/-, Rs. 79,683/- and Rs. 10,000/- are still pending with the Ops. The claim of the complainant was rejected vide letter dated 7.4.2016 by Ops. Alleging deficiency in service on the part of Ops, complaint was filed by the complainants before the District Forum seeking directions against the Ops to pay a sum of Rs. 5,69,268/-, Rs. 79,683/- and Rs. 10,000/- alongwith interest @ 18%, compensation of Rs. 1 Lac and litigation expenses of Rs. 50,000/-.
3. Upon notice, complaint was contested by Op No. 1 whereas Op No. 2 was ex-parte before the District Forum. Op No. 1 in its written reply took the preliminary objections that First Appeal No. 458 of 2017 4 insurance policy No. P/161125/01/2015/003176 for the period 22.9.2015 to 21.9.2016 for sum insured of Rs. 10 Lacs was issued and the Company's liability in respect of all claims admitted during the period of insurance; there is no deficiency in service on the part of Ops; no cause of action has arisen to the complainant to file this complaint that terms and conditions as applicable were expressly made to the complainant at the time of taking the policy; the complainant approached the Hon'ble Forum with unclean hands by not disclosing and misrepresenting the material facts; the complainant has no locus-standi to file this complaint. On merits, issuance of the policy is admitted. The insured was fully satisfied with the terms and conditions of the policy and it was issued on the basis of proposal form so signed by the complainant/insured. However, the insured was suffering from various health ailments before inception of the policy. The insured was admitted in Medanta Hospital Medicity on 5.4.2016. As per authorized form, the insured was admitted with the complaint of effort angina and provional diagnosis was unstable angina with past history, Diabetes Mellitus since 8 years and Hypertension since 2 years and CAG report stated double vessel disease (DVD). Accordingly, it was found that the claim of the complainant was not payable. The pre-authorization of the claim of the complainant was rightly repudiated and it was communicated to the complainant. The policy was issued by Branch Office Ludhiana and any complaint with regard to the policy in question is under the jurisdiction of Competent Court, Ludhiana and no cause of First Appeal No. 458 of 2017 5 action has arisen to the complainant at Sri Muktsar Sahib. It was denied that there was any deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence documents Exs. C-1 to C-7. On the other hand, Ops had tendered into evidence affidavit of PC Tripathay Ex. Op-1 and documents Ex. Op-2 to Op-8.
6. After going through the allegations in the complaint, written version filed by the Ops, evidence and documents brought on the record, the complaint was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/Op No. 1 has filed the present appeal.
8. We have heard the learned counsel for the appellant and learned counsel for respondent Nos. 1 & 2 whereas respondent No. 3 was ex-parte and have carefully gone through the record of the case.
9. It was argued by the counsel for the appellant that that order passed by the District Forum cannot be legally sustained as the District Forum did not have the territorial jurisdiction to entertain the complaint. It has been specifically mentioned in the written reply that the policy was issued from Branch Office, Ludhiana and the complaint, if any, is to be filed by the complainant, it should have been filed under the jurisdiction of Competent Court at Ludhiana. He has further brought to the notice First Appeal No. 458 of 2017 6 of this Commission that the proposal form was submitted by the complainant at Ludhiana on 22.9.2015 i.e. Ex. Op-2, which corroborates that the proposal form was executed by the insured at Ludhiana and then the policy was sold at Ludhiana and after that the policy document was issued in favour of the complainant. In para No. 25 of the complaint, it has been stated that the policy was sold by the Ops to the complainant at Malout and premium was paid through Axis Bank at Malout, therefore, a part of cause of action had arisen at Malout, falling within the territorial jurisdiction of the District Forum Sri Muktsar Sahib. With regard to selling the policy at Malout, we have already referred the proposal form Op No. 2 executed at Ludhiana and counsel for the complainant has not referred to any document, which will prove that the policy was sold to the insured at Malout. In the policy document Ex. C-2, it is only the address of the insured at which the policy document was dispatched. In the proposal form, the name of the Bank has been mentioned as Axis Bank, Malout. The territorial jurisdiction has been defined under Section 11 of the CP Act, which reads as under:-
"11. Jurisdiction of the District Forum.--(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the First Appeal No. 458 of 2017 7 institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
Certainly, there is no branch office of the Ops at Sri Muktsar Sahib and Malout. In case the counsel for the complainant is coming under Section 11(c) of the Act that a part of cause of action has arisen within the territorial jurisdiction of District Consumer Forum, Sri Muktsar Sahib then they are to prove it. To support this preposition, he has referred to the judgment of the Hon'ble Supreme Court of India in case "Marine Container Services South Vs. Go Go Garments" AIR (1999) SC 80 (para 4) in which it was held that Contract Act applies to all the litigants including the litigants under the CP Act, 1986. In view of above, it can safely be said that for the purpose of consumer complaints, relating to normal contracts for services and/or goods, cause of action arises interalia at any of the places, where; (a) the contract is made; and/or (b) where acceptance of the contract is communicated and/or (c) where the contract is performed or is to be performed First Appeal No. 458 of 2017 8 and/or (d) where money under the contract is either payable or paid and/or (e) where repudiation of the contract is received, if any. Consequently, territorial jurisdiction over a consumer complaint also lies with the Consumer Fora situated at any place, where any of the aforementioned cause of action arises. The counsel for the complainant has referred to the document Ex. C-6 i.e. statement of account of Axis Bank and on the date 24.9.2015 vide cheque No. 122511 a sum of Rs. 25650/- was paid to the Ops. So from where the money has been paid that place a part of cause of action and in case the money was paid from Malout within the territorial jurisdiction of District Consumer Forum, Mukatsar then a part of cause of action has arisen in that area. In that way, District Forum Sri Muktsar Sahib will have the jurisdiction to entertain the complaint. Therefore, we do not agree with the plea raised by the counsel for the appellant/Op that District Forum, Sri Muktsar Sahib did not have the territorial jurisdiction to entertain the complaint.
10. Counsel for the appellant further argued that the District Forum has failed to appreciate that the insured in the proposal form did not disclose about his pre-existing disease Diabetes Mellitus and Hyper Tension and on that ground the cashless treatment was denied to the patient through referred hospital vide letter Ex. Op-8 wherein it has been observed as under:-
"Pt is K/C/O diabetes mellitus since 8 years and hypertension since 2 years which was not disclosed at the First Appeal No. 458 of 2017 9 time of policy inception. Patient presented with effort angina and subsequent CAG Denotes Severe Coronary Artery Disease. Hence cashless cannot authorized."
This fact has not been discussed in detail by the District Forum. However, counsel for the complainant has drawn the attention of this Commission towards the proposal form Ex. Op-2 wherein in the column of B.P., it has been mentioned 3 years and about the D.M. there is detail of D.M. in the policy itself Ex. Op-3 wherein in the column "details of Pre Existing Diseases relating to the above person : Diabetes Mellitus and its complications". Moreover, it is not a major disease and it is a life style disease and can be cured with medication and does not have any nexus with the disease for which the treatment was taken by the complainant. It is so corroborated from the pre-authorization request form duly filled in by the hospital Ex. Op-5 wherein in the column of past illness relevant to present illness history of 'none'. Therefore, in case DM/HT, if any, does not have any nexus with the treatment taken by the complainant. Then the claim cannot be repudiated. In this regard, a reference has been given to 2016(1) CPR 566 (NC) "LIC of India & Anr. versus Kolla Santhi & Anr." wherein Hon'ble National Commission observed that Blood pressure and diabetes are such diseases that are not sometimes known to patient, as they do not manifest any serious symptoms in patient. Actual cause of death has been cardio respiratory arrest, which can also not be said to be pre-existing disease and can occur suddenly. A reference can also be made to the judgment of the Hon'ble First Appeal No. 458 of 2017 10 National Commission reported in 2017 (4) CLT 44 "M/s Bajaj Allianz Life Insurance Co. Ltd. versus D. Ayyapu Reddy". In that case also, the claim was repudiated on the ground that the insured had not disclosed the pre-existing disease of Asthma in the proposal form. It was observed that there is no evidence that the death was due to Asthma, which was mentioned in the repudiation letter. Accordingly, the Revision Petition was dismissed and order passed by the District Forum to allow the complaint was maintained. Therefore, firstly there is no concealment of the fact because BP for the last 3 years has been mentioned in the proposal form and with regard to the DM, there is endorsement of the Ops in the policy itself. It may be on the basis of test conducted by the Ops through their panel Doctor because the insured is more than 64 years old lady. Therefore, there is no concealment with regard to DM/BP on the basis of which the claim has been rejected. Otherwise, the treatment has been taken during the policy period, which is covered. No other clause of the policy has been referred by the counsel for the appellant/Op under which the claim is not payable. Therefore, we are of the opinion that the claim has been rightly allowed by the District Forum.
11. Sequel to the above, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
12. Appellant had deposited an amount of Rs. 25,000/- and Rs. 6,50,000/- with this Commission in the appeal. These amounts along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the First Appeal No. 458 of 2017 11 expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
13. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
14. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER December 21, 2017.
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