JACOB PUNNEN Vs. UNITED INDIA INSURANCE CO. LTD.

JUDGEMENT

(1.) AGGRIEVED by the order dated 16.04.2011 passed by the Kerala State Consumer Disputes Redressal Commission (for short he State Commission in Appeal No. 273/ 2010, the original complainant has filed the present petition purportedly under section 21(b) of the Consumer Protection Act, 1986. The appeal before the State Commission was filed against an order dated 25.02.2010 passed by the District Consumer Disputes Redressal Forum, Kottayam in CC No. 166 / 2009, by which order, the District Forum partly allowed the complaint and directed the respondent insurance company to pay a sum of Rs.1,75,000/ - being the balance amount payable under policy Exhibit A2 and a compensation of Rs.5,000/ - with interest @9% p.a. in case, the amount was not paid within stipulated period. In appeal, the State Commission has reversed the said finding and order of the District Forum and has allowed the appeal and dismissed the complaint.

(2.) WE have heard Mr. Abid Ali Beeran P, Advocate, counsel for the petitioner and Mr. V.S. Chopra, Advocate, counsel for the respondent Insurance Company and have considered their submissions. The facts and circumstances on the basis of which the complaint was filed are amply noted in the orders passed by the Fora below and need no repetition at our end. The complainant had taken medi -claim policy from the respondent Insurance Company for a sum of Rs.8 lakh, i.e., Rs.4,25,000/ - for Mr. Jacob Punnen, petitioner no. 1 and Rs.3,75,000/ - for Ms. Maria Punne, petitioner no. 2. The second petitioner required treatment of her heart ailment and undergone an angioplasty. She incurred an expenditure of Rs.3,82,705.27ps. for the said procedure. A claim for the said amount was lodged with the respondent Insurance Company. The Insurance Company partially settled the claim at Rs.2 lakh, being the optimum amount payable for such a procedure under the policy. Dissatisfied with the same, complaint was filed which was resisted on the ground that under the policy in vogue, the claim of the petitioner could not be settled at more than Rs.2 lakh going by the terms and conditions of the policy. The District Forum swayed with the plea of the petitioner that the subsequent second policy, i.e., Ex. P -2 was a continuation of the earlier policy, i.e., Ex. P -1 held that the terms and conditions of the policy have been altered to the disadvantage of the petitioners without their consent and, therefore, upheld the claim by observing as under: - aterial question to be considered in this case is whether the uni -lateral inclusion of terms of the existing policy without the knowledge and consent of the petitioner is legal. Petitioner produced individual medi -claim policy of the petitioner for a period from 28.03.2006 to 27.03.2007. Said document is marked as Ex.A1. As per Ex.A1 the sum insured for both petitioners are for Rs.3,00,000/ -. Petitioner produced the individual health insurance policy for the period of insurance from 28.03.2008 to 27.03.2009. Said document is Ex.A2. As per Ex.A2, the sum insured for the first petitioner is Rs.4,25,000/ - and the second petitioner is Rs.3,75,000/ -. In Ex.A2 as per conditions 1.2 (d) in case of major surgery and Angioplasty the limit of the policy restricted to 70% of the sum insured or maximum Rs.2,00,000/ -. According to the petitioner the limits and restrictions on insured sum is varied without knowledge and consent of the petitioners. According to the opposite party the terms and conditions of the policy is prepared by the insurance company by approval of the IRDA and is common for all for a special period. Counsel for opposite party vehemently argued that an insurance is contract between two parties and terms and conditions of the policy for a type of policy is binding on parties. So, petitioner is binding by the varied terms in Ex.A2 policy. In our view argument raised by learned counsel for opposite party is not acceptable because an insurance contract is a specie of commercial transactions and must be constructed like any other contract on its own terms and by itself albeit subject to the additional requirement of uberrima fides i.e. good faith on the part of the insured. Opposite party has no case that the vary of the terms of existing policy is noticed to the knowledge of the petitioner. Further more, before varying the terms on the previous proposal or declaration opposite party has not given any intimation to the petitioner or else the consent of the petitioner is brought. So, in our view the act of the opposite party in allowing a part of the claim of the petitioner is a clear deficiency in service. 3. In appeal, the Insurance Company pleaded that the finding recorded by the State Commission was manifestly erroneous in as much as it failed to consider the circumstances in which the second policy, under which the claim was lodged, was issued. The State Commission accepted the same by observing as under: - e find that the Forum has also noted the Condition No.1.2(d) in the policy wherein expenses with respect to major surgery -Angioplasty is limited to 70% of the sum insured or maximum of Rs.2 lakhs. Ex.A1 policy produced is for the period from 28.03.2006 to 27.03.2007. Ex.A1 would not show that it is OLD POLICY medi claim as is mentioned I Ex.A2. Further Ex.A1 was with respect to the complainants and their son whereas Ex.A2 is with respect to the complainants alone. It has also to be noted that Ex.A2 was produced by the complainants themselves. Hence they cannot plead ignorance of the conditions in Ex.A2. The opposite parties as per Ex.A6 has intimated the complainant in response to the letter of the complainant that as per clause 1.2 of the policy, the claim is restricted to 70% of the sum insured or maximum 2 lakh and that they can only pay Rs.2 lakh. The contention of the counsel for the respondent / complainant that the opposite parties had no such is without merits. We find that the parties are bound by the terms of the agreement / contract. Hence, we find that the liability of the appellant is limited to the amount mentioned in clause 1.2(d) of the policy. In the circumstances, the order of the Forum is set aside and the appeal is allowed. 4. Counsel for the petitioner would assail the impugned order primarily on the ground that it is not based on the correct and proper appreciation of the facts and the material placed on record, least based on correct interpretation of the policy in question. On the other hand, counsel for the respondent Insurance Company has supported the impugned order mainly on the premise that the second insurance effective from 26.03.2009 is a fresh contract of insurance which was entered into between the parties in as much as certain changes were carried out in the fresh policy. It is pointed out that the earlier policy, i.e., Ex. P -1, had the coverage of three persons, viz., petitioner no. 1, petitioner no. 2 and their son while the Ex. P -2, the second policy has the coverage of petitioner no. 1 and petitioner no. 2 only. The conditions of the policy were well -known to the petitioner and we should presume it so because the claim has been made by the petitioner under the said policy and not under the earlier policy which had already expired before issuing the fresh policy. In our opinion, it is too late in the day for the petitioner to express ignorance about the terms and conditions of the policy which was in vogue at the time when second petitioner had undergone an angioplasty and incurred certain expenditure on that account. The conditions in regard to restricting the claim to 70% or optimum of Rs.2 lakh for the procedure of angioplasty very much exist in the policy and, therefore, the respondent Insurance Company was fully justified in restricting the claim to the extent of Rs.2 lakh. We accordingly find that the impugned order does not suffer from any illegality, material irregularity, much less any jurisdictional error which warrants interference of this Commission. The revision petition is accordingly dismissed as without any merit. Revision Petition dismissed.