Date of filing: 21.01.2017
Date of Disposal:10.11.2022
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 10th DAY OF NOVEMBER, 2022
CONSUMER COMPLAINT NO.112/2017
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
S/o late Doddamuniyapa,
Aged about 62 years,
Residing at No.21, 1st ‘A’ Main Road,
C.B.Sandra, GKVK Post,
Bengaluru-560 065.……COMPLAINANT-1
W/o M.D.Rajanna,
Aged about 57 years,
Residing at No.21, 1st ‘A’ Main Road,
C.B.Sandra, GKVK Post,
Bengaluru-560 065. ……COMPLAINANT-2
Rep by Sri.I.Gopalakrishna, Adv.,
V/s
ICICI Lombard General Insurance Company Limited,
Regd. Office:ICICI Lombard
House No.414, Veer Savarkar Marg,
Near Siddi Vinayak Temple Prabhadevi,
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ICICI Lombard General Insurance Company Limited,
Rajkumar Road Branch,
Sudha Commercial Complex,
Shop No.3 & 4, 4th Block,
Dr.Rajkumar Road,
Bengaluru-560 010,
Rep by Sri.Prashant T.Pandit, Adv.,
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
The complainants have filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party No.1 & 2 to pay a sum of Rs.2,33,403/- paid by the complainants as premium amount for the policy and for a direction to pay a sum of Rs.10,00,000/- as compensation for deficiency of service, physical pain, mental agony and trauma suffered by the complainants along with interest at the rate of 18% p.a. and such other reliefs as this commission deems fit in the circumstances of the case.
2. It is not in dispute that the complainant no.2 is the wife of complainant no.1. The complainants have purchased the insurance policy from the opposite parties which covers both the complainants. Further, the complainants were also given with cashless cards, every year. The validity of the cashless card would be one year and new cashless card would be always issued after the renewal of the policy, immediately after paying the premium amount. The complainants had purchased the policy in the year-2009. Further, it is not in dispute that the opposite parties had repudiated the claim of the complainants on the ground that the complainants have suppressed about the pre-existing disease.
3. It is the further case of the complainants that the 2nd complainant got admitted to the Aster CMI Hospital on 03.10.2016, as she was suffering from fever. Thereafter, the Doctors had continued to diagnose the concern and the hospital continued to do the various laboratory tests and investigation and it was diagnosed with Dengue fever with Thrombocytopenia with urinary tract infection. Hence, the doctors continued to keep the 2nd complainant under medication. Further, a letter dt.05.10.2016 was sent by the opposite parties directly to the Aster CMI Hospital by saying the denial of cashless access. Hence, the opposite parties have acted in their whims and fancies in rejecting the claim. Further, the complainants have been paying the premium amount from 2011 to 2016. Further, the complainant no.2 did not have any ailments as stated in the letter dt.9th December 2016 sent by the opposite parties. Hence, the complaint came to be filed.
4. It is the further case of the opposite parties that as per the policy terms refer part II, Clause (1), the claim of the complainants was rejected. Further, the complainants had pre-existing disease. Further, there is no provision for refund of the premium paid. It is sought to dismiss the complaint.
5. To prove the case, the complainant No.1 (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P9 documents. The Legal Manager of opposite party has filed affidavit in the form of his evidence in chief.
6. Counsel for the complainants has filed written arguments with citation.
7. The counsel for the opposite parties has also filed synopsis of arguments with citation.
8. Heard the arguments.
9. The points that would arise for consideration are as under:
i) Whether there is deficiency of service on the part of the opposite parties ?
ii) Whether the complainants are entitled for the
compensation as sought ?
iii) What order ?
10. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
11.POINT NO.1:- The 1st complainant and Legal Manager of opposite party No.1 & 2 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. It is contended by the learned counsel for the opposite parties that since the policy issued to the complainants has been cancelled, the complainants are not entitled for the refund of the premium paid. In support of the contention, the counsel relies condition No.1 of part-III of the policy in EX.P1 at page No.13, it contemplates that the policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, mis-description or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent.
12. Further, counsel relies condition No.13 in part-III of the policy in page No.14, it contemplates that the policy shall be void and all premium paid thereon shall be forfeited to the company, in the event of misrepresentation, mis-description or non-disclosure of any material. EX.P9 is the termination notice of Health policy issued by the opposite parties to complainant no.1 dt.09.12.2016. In which it is stated that the complainants did not disclose the material facts and have acted in breach of terms and conditions about the suffering of the insured (complainant no.2) from diabetes since 6 months as per prescription from Wockhardt Hospital by Dr.Somashekara Reddy dt.04.08.2009 during the policy inception i.e., 01.02.2010. Further, the policy shall stands cancelled after 15 days from the date of the said letter and the premium shall be refunded to the complainants in full.
13. Further, counsel for the opposite parties have filed a memo dt.27.08.2021 before this commission stating that the opposite parties were ready to settle the case for the admissible medical bill amount of Rs.46,579/-. Since the said memo had been filed by the opposite parties, it appears that the opposite parties did not act upon EX.P9 notice. Further, it is the contention of the learned counsel for the complainants that after the expiry of 3 years from the date of policy, as per Section-45 of the Insurance Act, 1938, the opposite parties have no right to cancel the policy. Section-45 of Insurance Act, 1938 contemplates that no policy of life insurance shall be called in question on any ground whatsoever after the expiry of three years from the date of the policy. Since the present notice vide EX.P9 was issued on 09.12.2016 i.e., after the expiry of 6 years, in view of the said provision, the opposite parties have no right to cancel the policy issued after the expiry of 3 years. Apart from that other than the oral say of the opposite parties that they case to know about the pre-existing disease, the opposite parties did not produce any documents to substantiate the same. Apart from that, the medical report produced by the complainants indicate that the complainant no.2 was admitted to the hospital for the complaint of fever and after diagnose it was found that she was affected dengue fever and the said dengue fever was not with the result of hypertension. Hence, the opposite parties have failed to prove that the complainants have suppressed the material fact with regard to the pre-existing disease.
14. It is the contention of the learned counsel for the complainants that condition No.13 of EX.P1 policy empowers the complainants to cancel the policy. It is the defence of the opposite parties that there is no provision for cancellation of the policy at the instance of complainants and for refund of the premium paid. Part-III condition No.13(b) contemplates that the complainants may cancel the policy by giving 15 days written notice by registered post, and the opposite parties shall refund premium on short term rates for the unexpired policy period as per the rates detailed below, provided no claim has been payable on the complainants behalf under the policy. In the case on hand, the complainants got issued notice vide EX.P8 dt.15.11.2016 seeking for the return of the premium paid of Rs.2,33,403/- with interest and other amount for deficiency of service and notice charges. Thereafter, in the year 2017 the present complaint came to be filed. Further, the condition No.17 of part-III of Key information sheet produced by the opposite parties contemplates that liberty was given to the complainants/insured to review the policy terms and conditions within 15 days from the date of the receipt of the policy and in case the request for cancellation comes 15 days after the receipt of the policy by the insured the insurer would refund of premium would be paid to the insured on short term basis. Hence, the condition No.13 and 17 provides for refund of premium paid to the insured. Hence, even though the provision provided for refund of the premium paid, the opposite parties failed in their duty to refund the premium paid. Hence, we answer this point in affirmative.
15.POINT NO.2:- The complainants claimed a sum of Rs.2,33,403/- for the period 2011 to 2013. The complainants have paid Rs.30,000/- per year in total Rs.90,000/- and for the year 2014 the complainants had paid Rs.41,647/- and for the year 2015 the complainants had paid Rs.47,196/- and for the year 2016 a sum of Rs.54,560/-. Hence, in total the complainants have paid Rs.2,33,403/- as premium. The premium was once in a year. As per condition No.13, the refund of premium on short term rates for the unexpired policy period shall be as per the rates detailed in the said condition. The policy obtained by the complainants was a health insurance policy. The claim of the complainants was during the period of 7th year. Hence, any deduction need not be made as condition No.13 contemplates deduction shall only till 3 years. The opposite parties did not produce any rebuttal evidence that deduction required to be made. Hence, we feel without any deduction the complainants are entitled for the entire premium amount of Rs.2,33,403/- paid.
16. Further, the complainants claimed a sum of Rs.10,00,000/- for the deficiency of service with interest at the rate of 18% p.a. from the date of filing of this complaint till realization. It is the contention for the complainants that the insurer may assume a growth rate 10% per annum of the investment as a model, as suggested by the Life Council. Further, the said benefit has come into force from October 1, 2009. The complainants did not produce any material to substantiate that there was growth rate of 10% p.a. and the suggestion by the Life council was only an assumption. EX.P3 indicates about the growth rate of 10% p.a. as per the investment as a model. Therefore, it is only a model and cannot be reality. Hence, we feel the complainants are not entitled for 10% p.a growth rate on the premium paid in each year from the date of payment made. Since, even though the act provides for refund of premium at the instance of the insured, the insurer did not act upon the requisition filed by the complainants. Hence, the complainants were put to mental injury and hardship. Therefore, we feel the complainants are entitled for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. Since the complainants did not refund the premium paid, the complainants are entitled for interest at the rate of 9% p.a. from 15 days after the date of issue of notice vide EX.P9. Hence, the complainants are entitled for interest from 01.01.2017. Accordingly, we answer this point partly in affirmative.
17.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;
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The complaint is allowed in part.
The opposite party no.1 & 2 are directed to pay a sum of Rs.2,33,403/- with interest at the rate of 9% p.a. from 01.01.2017 till realization and a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost to the complainants.
The opposite party No.1 & 2 shall comply the order within 30 days. In case, the opposite party No.1 & 2 fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 10th day of November, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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Witness examined for the complainants side:
Sri.M.D.Rajanna, the complainant has filed his affidavit.
Documents marked for the complainant side:
1.Terms and conditions of the Insurance policy.
2. Certificate U/s 65(B) of Indian Evidence Act.
3. Copy of the IRDA Journal dt.22.07.2009.
4. Xerox copies of health insurance policies for the period from2010-2011 to 2016-17.
5. Xerox copy of the letter dt.06.10.2016 of opposite party for denial of cashless access.
6. Xerox copy of the 6 ID cards of complainant no.2 for the year 2011 to 2017.
7. Xerox copy of the letter dt.06.10.2016 given by Aster CMI Hospital along with bills and reports issued by hospital.
8. Xerox copy of the legal notice dt.15.11.2016 with postal receipts, AD and courier receipts.
9. Xerox copy of the repudiation letter dt.09.12.2016.
Witness examined for the opposite party side:
Sri.Jithin Kumar K.G, Legal Manager of opposite party has filed his affidavit.
Documents marked for the Opposite Party side:
-NIL-
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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