DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
- CC. No. 150 of 20-05-2008
Decided on : 24-03-2009
Daljit Singh S/o Raghunath Singh, aged about 50 years R/o 86, Model Town, Phase-III, Bathinda. ... Complainant
- United India Insurance Co. Ltd.,, Regd.& Head Office, 24 Whites Road, Chennai 60014 through its Chairman/Managing Director.
- United India Insurance Co.Ltd., Regional Office, Feroze @@@@hi Market, Ludhiana, through its Regional Manager
- United India Insurance Co. Ltd., Branch Office, Kotkapura Road, Bagha Purana, Distt. Moga, through its Branch Manager
- United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager.
- Paramount Health Services Pvt. Ltd., 81 Barodawala Mansion, B-Wng, Ground Floor, Dr. Annie Besant Road, Worli, Mumbai 400018, through its Chairman/Managing Director
... Opposite partires
Complaint under Section 12 of the Consumer Protection
- Act, 1986.
Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member
Present : Sh. Vinod Garg, Advocate, counsel for the complainant.
Sh. Sunder Gupta, Advocate, counsel for opposite parties No. 1 to 4.
Opposite party No. 5 exparte.
O R D E R
SH. PRITAM SINGH DHANOA, PRESIDENT
- This complaint has been filed by Sh. Daljit Singh son of Raghunath Singh a resident Model Town, Bathinda, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against United India Insurance Company Limited through its Chairman, and Branch, Regional and Divisional Managers and M/s. Paramout Health Services Pvt. Ltd., Mumbai. Briefly stated, the complainant secured Medi-claim Insurance policy No. 201204/48/06/20/00000187 for the period from 30-08-2006 to 29-08-2007 from opposite party No. 3. He had been securing such policies from opposite parties No. 1 to 4 since 15-08-2000. The above said Insurance policy was secured by the complainant by renewal of earlier Insurance policy valid upto 15-08-2006. However, the opposite parties have not conveyed any intimation to him about renewal of policy. He did not file fresh proposal form and was not subjected to medical examination at the time of issuance of present policy. The opposite parties also paid a sum of Rs. 1,75,000/- to the complainant on account of cumulative bonus after he secured the policy under reference, as such, the policy in question is continuous policy for all intents and purposes.
- The complainant suffered heart ailment all of a sudden on 19-01-2007 and got himself checked from Fortis Hospital, Mohali, where he remained admitted as indoor patient upto 23-01-2007. During the period of admission of the complainant, clinical tests were performed on him in the said hospital and it was revealed after coronary angiography that he is suffering from disease of heart ailment. The doctors gave post PTCA and put a stunt in heart of complainant. He remained admitted upto 23-01-2007 for the said purpose and spent a sum of Rs. 5,27,576/-. On his discharge from hospital, he conveyed intimation to opposite parties No. 1 to 4, who referred the matter to opposite party No. 5 i.e. Third Party Administrator, despite the fact that Insurance policy provides for cashless hospitalisation. The opposite parties No. 1 to 4, in connivance with opposite party No. 5 denied the said benefit to the complainant because of discrepancy in his age vide letter dated 23-01-2007, inspite of submission of medical bills and documents in support of his claim. The complainant paid the entire amount of treatment in the sum of Rs. 5,27,576/- from his own pocket although he has secured the policy for a sum of Rs. 5,00,000/-. The opposite party No. 1, sought copies of policies pertaining to previous years vide his letter dated 14-02-2007, which complainant supplied to him but his claim has not been settled even inspite of legal notice served by him upon the opposite parties through his counsel. Since the opposite parties did not settle his claim, therefore, complainant filed complaint before 'Insurance Ombudsman', Chandigarh, before whom opposite parties No. 1 to 4, took the plea that his claim has been repudiated by opposite party No. 5 on 30-08-2007, on the ground of pre-existing disease in terms of clause 4.1 of policy under reference. It is submitted that no such notice was sent to the complainant by opposite party No. 5 and his decision has no legal affect on his rights under the Insurance policy. The 'Insurance Ombudsman', vide order dated 16-01-2008 treated the policy issued in the name of the complainant as continuous but allowed his claim to the extent of 75% alongwith interest at the rate of 8 percent per annum but he did not accept his claim of remaining amount of Rs. 1,25,000/- and for payment of interest at the rate of 25% to which he is entitled as per the terms and conditions of the policy. The opposite parties No. 1 to 4, have already made the payment of Rs. 4,05,517/- including interest in the sum of Rs. 30,517/- vide cheque No. 053238 dated 30-01-2008. Since the decision given by the 'Insurance Ombudsman', is not binding upon the complainant, hence this complaint.
- On being put to notice, opposite parties No. 1 to 4 filed written version resisting the complaint by taking preliminary objections that complainant is estopped by his own act and conduct from filing the complaint because he has already received the amount awarded by 'Insurance Ombudsman', alongwith interest from 01-10-2007 till the date of payment; that complainant is barred by principle of res-judicata because controversy in the present case was directly and substantially in issue before 'Insurance Ombudsman'; that complaint lodged by the complainant is not covered by the Insurance policy secured by him by concealing pre-existing disease; that complainant has not filed any appeal or revision against the order passed by 'Insurance Ombudsman', as such, the same became final and binding upon the parties; that he has suppressed material facts from the knowledge of this Forum, as such he is not entitled to the reliefs prayed for; that this Forum has no jurisdiction to entertain and try the complaint as the same is not maintainable and that being false and vexatious, it is liable to be dismissed with compensatory costs. On merits, it is admitted that complainant secured Medi-claim Insurance Policy in question for the period 30-08-2006 to 29-08-2007, but it is denied that he got renewed Insurance policy which expired on 14-08-2006. It is asserted that complainant has obtained fresh Medi-claim policy for the period 30-08-2006 to 29-08-2007, without mentioning that he is suffering from heart ailment although he had been a chronic heart patient. The complainant filed complaint before 'Insurance Ombudsman' under the Redressal of Public Grievances Rules 1998 and Arbitration & Conciliation Act, 1996, and the same was decided by him vide order dated 16-01-2008 allowing his claim to the extent of 75 percent alongwith interest and a sum of Rs. 4,05,517/- including interest at the rate of 8 percent, has been paid to the complainant against proper receipt in terms of his order. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with costs.
- It will not be out of place to mention here that the Opposite party No. 5 has been proceeded against exparte.
- On being called upon, by this Forum, to do so, learned counsel for the complainant furnished affidavit of complainant Ex. C-19 and copies of documents Ex. C-1 to Ex. C-18, before he closed his evidence. On the other hand, learned counsel for the contesting opposite parties furnished affidavit of Sh. Balwinder Singh, Divisional Manager, Ex. R-1, and copies of documents Ex. R-2 to Ex. R-6, before he closed their evidence.
- We have heard, the learned counsel for the parties and perused the oral and documentary evidence and evidence adduced on record by the parties, carefully, with their kind assistance.
- At the out set, Sh. Vinod Garg, Advocate, learned counsel for the complainant, has submitted that at the time of issuance of Insurance policy under reference, the opposite parties neither subjected the complainant to medical examination nor got filled from him fresh proposal form and even 'Insurance Ombudsman', has decided that policy under reference is continuous one and renewal of earlier policy secured by the complainant. Learned counsel has argued that if policy is treated continuous policy, then the opposite parties were not justified in withholding the remaining amount paid by the complainant for his treatment in Fortis Hospital, Mohali. Learned counsel has further argued that order passed by 'Insurance Ombudsman' on the complaint filed by the complainant is not sustainable because no cogent reason has been given for withholding the remaining amount of Rs. 1,25,000/- and award of interest at quite lower rate. Learned counsel has argued that initial onus is upon the opposite parties to prove that complainant has been suffering from pre-existing disease and has concealed the material facts with malafide intention for some ulterior motive, as such, onus never shifted upon the complainant to prove otherwise. Learned counsel has argued with full vehemence that the remedy in the Act is additional remedy, as such, there is no bar for filing the complaint for payment of remaining amount after the decision given by 'Insurance Ombudsman', whose orders are recommendatory nature, not being a statutory body. Learned counsel has further argued that payment in terms of award passed by the 'Insurance Ombudsman', has been released to the complainant after approval by competent authority and signatures of the complainant had been secured on the receipt given by him which is undated in routine, as such, there is deficiency in service for which the opposite parties are liable to compensate him and to pay him compensation for mental and physical harassment and costs incurred for filing the complaint. In support of his contentions, learned counsel has placed reliance upon AIR 1999 Supreme Court 3027 United India Insurance Vs. Ajmer Singh Cotton and General mills and others- wherein complainant executed discharge voucher in full satisfaction of his claim. It was held by the Hon'ble Apex court that the plea of the complainant regarding deficiency in service is tenable if he proves that discharge voucher was got obtained from him by fraud or under coercion etc. Learned counsel has further relied upon 2008 (1) CLT 375 Ramesh Aggarwal Vs. Oriental Insurance Co. Ltd., wherein it has been held by the Hon'ble Chhattisgarh State Commission, Raipur, that there appears to be no reason as to why the complainant would have voluntarily and without any demur accepted the amount of Insurance claim as full and final settlement. It was further held that the receipt issued by the complainant also shows many columns thereof are not filled up, as such it appears to have been prepared before him by the insurer before giving the cheque and complainant had hardly no option, but to put signatures on the said document, as such, it cannot be treated as full and final settlement of his claim. Learned counsel has further placed reliance on 1991 Civil Court Cases 166 (S.C.) Life Insurance Corporation of India Vs. Smt. G.M. Channabasamma, wherein it has been held that burden of proof is upon the Insurance Corporation in case the plea is taken of misrepresentation or suppression of material facts. Learned counsel has also cited 1992 (2) CLT 458 Life Insurance Corporation of India Vs. Smt. Bimla Devi, wherein it has been held that diabetes mellatitus is not such a disease, suppression of which would be sufficient ground for repudiation of claim. There was no evidence to establish that the insured deceased knew his ailment and he was guilty of a fraudulent suppression of any material facts at the time of proposal of policy and the doctor who medically examined him was not subjected to cross-examination . It was held that onus probandi in cases of fraudulent suppression of material facts rested heavily on Life Insurance Corporation. Learned counsel has further relied upon 2005(2) CLT 37 Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd.,, wherein it was held by the Hon'ble National Commission that Consumer Forum has jurisdiction to decide a matter which has already been decided by 'Insurance Ombudsman' appointed under the Redressal of Public Grievances Rules, 1998 under Sub Section (1) of Section 114 of the Insurance Act, 1938. It is also held that decision of 'Insurance Ombudsman' is not binding upon the complainant and it is subject to adjudication by the Forum constituted under the Act.
- On the other hand, Sh. Sunder Gupta, Advocate, learned counsel for the contesting opposite parties, has argued that complainant has secured Insurance policy after expiry of previous Insurance policy and the opposite parties have imposed punishment upon the delinquent official because of his omission to secure the fresh proposal form. Learned counsel has argued that the complainant had been suffering from pre-existing heart ailment, as such, his claim has been rightly repudiated as per terms and conditions of the policy. Learned counsel has further argued that complainant himself filed complaint before 'Insurance Ombudsman', who has allowed the same to the extent of 75 percent alongwith interest and complainant has accepted the said amount without lodging any protest and has not availed further remedy open to him, as such, instant complaint being after-thought on his part and is not maintainable. In support of his contentions, learned counsel has relied upon 2007(1) CLT 150 Union of India and another Vs Som Parkash and Brothers, wherein it has been held that when a Central Statute bars the jurisdiction of other Court, then Section 3 of the Act would not be applicable. Learned counsel has further relied upon 2008(2) R.A.J. 496 National Insurance Company Limited Vs. Sehtia Shoes, wherein complainant as secured a sum of Rs. 2,72,000/- from the Insurance Company as full and final settlement. It was held by the Hon'ble Apex court that aggrieved party can file a complaint before Consumer Forum but he has to prove that he had to accept the amount on account of coercion and Consumer Forum has to decide whether discharge was voluntary or under coercion. Learned counsel has further placed reliance on 1996(2) CPR 15 The New India Assurance Co. Ltd., Vs. M/s. Geetanjali Silk House & Another, wherein it has been held that record shows that insured accepted the amount settled by the Insurance company under the policy without objection and there was no allegation that he was coerced to accept that amount, as such, there is no deficiency in service. Learned counsel has further relied upon 2004(2) CLT 117 M/s. Desk to Desk Courier & Cargo Vs. Kerala State Electronics Develolpment Corpn. Ltd., wherein it has been held by the Hon'ble National Commission that a person who signs a document containing contractual terms is normally bound by them even though he had not read them or was ignorant of their precise legal effect thereof. Learned counsel has argued that in view of the facts and proposition of law referred above, the complaint filed by the complainant, being abuse of process of the Forum, is liable to be dismissed with special costs.
- Admittedly, the complainant secured Medi-claim Insurance policy in question covering risk of his life for the period 30-08-2006 to 29-08-2007. As per order dated 16-01-2008 passed by the 'Insurance Ombudsman', complaint filed by the complainant has been allowed treating the policy issued in the name of the complainant as continuous policy allowing 75 percent of amount of claim on the basis of letter dated 06-07-2007 Ex. C-12, written by the Insurer to Third Party Administrator, and on the ground that fresh proposal form has not been secured from the complainant and he was not medically examined afresh after lapse of previous policy secured by him. The opposite parties have been further directed to pay interest at the rate of 8 percent per annum w.e.f. 01-10-2007, till the date of payment. However, 'Insurance Ombudsman' has adjudicated the controversy on the basis of complaint made by the complainant himself. As per Section 3 of the Act, remedy before the Consumer Forum is additional remedy but the 'Insurance Ombudsman' has partly allowed the complaint in favour of the complainant. In compliance to the said order, the contesting opposite parties have paid to the complainant a sum of Rs. 4,05,517/- as full and final claim amount vide receipt Ex. R-6 and the said amount has been received by the complainant without lodging protest. In the receipt Ex. R-6, complainant has appended his signatures on the revenue stamp and his complete address has been given therein but column meant for date and place are left blank. The mere omission to fill all requisite details in appropriate columns shows casual approach of official concerned but facts borne on record do not suggest that complainant appended his signatures under coercion or distress. As per our opinion, the complainant after receiving the amount awarded by the 'Insurance Ombudsman', without lodging protest, cannot invoke the jurisdiction of this Forum for the payment of remaining amount payable under the policy and re-agitate controversy. Therefore, the complaint is bound to fail on the ground of maintainability. Had his complaint been dismissed by the 'Insurance Ombudsman', then he was entitled to maintain the complaint before this Forum if felt aggrieved, because the decision given by the 'Insurance Ombudsman' is considered recommendatory in nature. The same was the position if the complainant might have refused to accept the amount awarded by the 'Insurance Ombudsman', but after receiving the amount, he cannot be permitted to start de novo trial. We have carefully gone through the authorities relied upon by the learned counsel for the complainant on this aspect of controversy but have come to the conclusion that their facts and circumstances are not attracted to the peculiar facts and circumstances of instant case where the opposite parties have complied with the order passed by the 'Insurance Ombudsman' in letter and spirit and complainant has accepted the amount without lodging any protest, as such, ratio of judgements delivered in the authorities relied upon by the complainant in this regard, does not advance his case.
- In the light of our above discussion, we consider it appropriate not to dewell upon the merits of the decision given by 'Insurance Ombudsman' and about controversy in dispute in the present complaint.
- For the aforesaid reason, we dismiss the complaint and leave the parties to bear their own costs. However, the complainant is at liberty to avail the remedy open to him against the award given by 'Insurance Ombudsman', if so he desires or advice. He may seek condonation of delay of the period consumed for pursuing the complaint before this Forum from the civil court as permissible under Section 14 of the Indian Limitation Act, 1963. The copies of this order be sent to the parties, free of costs as per rules, on the subject.
File be indexed and consigned.
24-03-2009 (Pritam Singh Dhanoa)
(Dr. Phulinder Preet)