AFFIDAVIT-IN-CHIEF by HDFC ERGO CC-353-2022

The AFFIDAVIT-IN-CHIEF has been converted from hard copy to soft copy using Optical Character Recognition.

Received on 19 July 2024

District- North 24 Parganas

Before the District Consumer Disputes Redressal Commission at Barasat

C.C. №353/2022

Ratul Aich

………..Petitioner/Claimant

Vs.

HDPC ERGO General Insurance Co. Ltd.

………..Opposite Party

AFFIDAVIT-IN-CHIEF UNDER ORDER 18, RULE 4 OF THE CIVIL PROCEDURE CODE ON BEHALF OF THE OPP. PARTY ABOVENAMED

I, Avik Ghosh, Son of Sri Ajoy Ghosh, by faith Hindu, by Occupation Service, aged about 43 years, Working for gain as Manager, Legal Claimsat HDFC ERGO General Insurance Co. Ltd., P255B, CIT ROAD, Scheme VIM, Kankurgachi, Kolkata — 700054 do hereby solemnly affirm and declare as follows :-

1. That I am an employee of HDFC ERGO General Insurance Co. Ltd. working as a Manager, Legal Department and looking after the different legal matters lodged against the company and I am duly authorized to file the present affidavit before this Ld. Forum.
2. That the Complainant has no cause of action against these O.Ps. in respect to the present case. This Ld. Forum has also got no jurisdiction to adjudicate the present case as the present dispute is outside the purview of Consumer Protection Act and also as only summary procedure is followed before the Ld. Forum, the present dispute can not be adjudicated by this Ld. Forum. The complainant is not consumer within the meaning and scope of definition of consumer under the Consumer Protection Act, 1986 as amended till date. Therefore the present case is not maintainable before this Ld. Forum and the present case is also not maintainable before this Ld. Forum as this Ld. Forum has no pecuniary jurisdiction.
3. That the purported application (hereinafter referred to as the said application) is defective, incomplete, suppressive of material facts and in particular , frivolous and is not maintainable in law and on facts in the present form , and also it is bad for non-joinder for necessary parties and mis joinder of unnecessary parties. Therefore due to the grounds aforesaid the said application should be rejected.
4. That the Complainant has not filed the said application along with the necessary documents prescribed in law and as such the application is liable to be dismissed.
5. There has been no deficiency of service committed by the Opposite Parties which can entail any relief as claimed for in the said complaint being granted in favour of the complainant.
6. That, based on the information received from complainant, this Opposite Party had issued an Optima Restore Individual Policy bearing no. 110103/11119/AA01265980 for the period 30th Nov 2019 to 29th Nov 2020 subject to the term/s and/or condition/s incorporated and to the extent of limits mentioned in the said Policy. Copy of Policy along with Term & Conditions was annexed with the Written Version as Annexure A and Annexure B respectively. Subsequently during renewal, the complainant had requested for reduction of the sum insured to Rs 5 Lakh and based on such request, policy bearing number 2805 2035 5354 0501 000 was renewed from 30th Nov 2020 to 29th Nov 2021 with reduced Sum Insured. Copy of the Renewed Policy was annexed with the Written Version and marked as Annexure C.
7. That, the Policy Kit containing all relevant documents were duly received by the policy holder thereby giving him an opportunity to verify and examine the benefits, terms and conditions thereof obtained by him with the Policy Bond. It is pertinent to mention herein that the complainant/proposer never approached the Company stating that any information given in the documents contained within the Policy Kit was incorrect, incomprehensible or unacceptable to him within the free look up period, i.e. 15 days from receipt of the policy document. Considering that no objection was received from Complainant during such time, he is strictly bound by the terms and conditions of the Insurance Contract.
8. That, on 29th Nov 2021 a claim for reimbursement was received by this OP Insurance Company from Complainant vide Reimbursement ID RR-FC21–12734614 for his health check up procedures dated 27th Nov 2021. It is pertinent to mention herein that the insured had undergone blood tests and all such investigative procedures required for a general routine health check up. Copy of the Claim Form and Medical Records were annexed with the Written Version and marked as Annexure D and Annexure E respectively.
9. That, upon receipt of such claim intimation, this OP had scrutinized complete records in respect of the claim and it was gathered that the present policy had not completed a period of 2 years on the date of investigation. Considering that policy terms and conditions under an Optima Restore Individual Policy render very clearly that any claim for preventive health check-up will be payable at Rs, 1500 wherein Sum Insured is 5 Lakh only once and at the end of every 2 continuous policy years. As the present policy end date was on 29th Nov 2021 and the investigative procedures were done on 27th Nov 2021 and claim was lodged on 29th Nov 2021, claim was inadmissible as per policy terms and conditions.
10. This OP draws the attention of this Ld Forum towards the relevant clauses from the Policy Wording;
    When is benefit under Preventive Health Check Up available to Insurer/Member;
    3. Preventive Health Check-up
    This benefit is effective only if mentioned in the schedule of benefits.
    A) If You have maintained an Optima Restore Policy with Us for the period of me mentioned in the schedule of benefits without any break, then at the end of each block of continuous years (as mentioned in the schedule of benefits) We will pay upto the amount mentioned in the Schedule of Benefits towards the cost of a preventive health check-up for those Insured Persons who were insured for the number of previous Policy Years mentioned in the Schedule.
    Note: If member has changed the plan in subsequent year and in the new plan the waiting period is less than previous plan then waiting period mentioned in the current plan would be applicable.
    IMPORTANT: This benefit does NOT carry forward if it is not claimed and would not be provided if Optima Restore Policy is not renewed further.
11. Preventive Health Check-up means a package of medical test(s) undertaken for general assessment of health status, it does not include any diagnostic or investigative medical tests for evaluation of illness or a disease.
12. That in light of aforesaid findings, this OP Insurance Company was constrained to repudiate the claim vide letter dated 09th Dec 2021 declaring the same. Copy of the Repudiation letter was annexed with the Written Version and marked as Annexure F.
13. That, following the repudiation, the Complainant instituted the aforesaid grievance along with another dispute with respect to eligibility of discount on renewing his policy with this OP at 8%. Both disputes were brought before the Hon’ble Ombudsman at West Bengal which were carefully scrutinized by the Insurance Ombudsman in depth. Upon evaluation of contents of the dispute along with complete documents from both parties, the Hon’ble Ombudsman upheld that the decision of this OP was in order, in respect of both aforesaid disputes. This OP would like to submit that the Complainant was eligible for 0% discount. as he had completed around 3433 steps against a minimum step count of 5000. As the Complainant had not completed the required step count, he was not eligible for the discount under the policy and this fact was ascertained before the Ombudsman too by this OP. Copy of the Award passed by the Hon’ble Ombudsman was annexed with the W.V. and marked as Annexure G.
14. That, despite the decision from the Insurance Ombudsman which was quite clear and within the four corners of the policy terms and conditions and IRDA Guidelines, the Complainant has continued to harass this OP vide legal notices, registering complaints and has left no stone unturned to malign this OP Insurance Company’s reputation on social media platforms too.
15. That, this OP is not legally obliged to honor the Complainant’s claim and there cannot be any further deliberation on the grounds of rejection as the matter has already been taken up before a competent judicial authority prior to institution of the present complaint before this Ld. Forum, and a justiciable award has been passed too after careful evaluation of his claim.
16. That this OP Insurance Company, once again repudiates the Complainant’s repeated statements and representations as absolutely false, ingenuously fabricated and maliciously concocted.
17. That the defamation committed by the Complainant and disseminated through print and electronic media were directed to tarnish the reputation of this OP in professional capacity. These statements have tended to only injure and lower the Company’s reputation in the estimation of right and fair minded members of the society and have exposed this OP to unjust criticism, ridicule, dislike and irreparable damage.
18. That, at the outset, there is no deficiency in service on the part of Opponent. An act of repudiation of a claim is done by company after considering all the material and relevant facts. This can by no stretch be termed as “deficiency in service” on the part of opponent. To determine an act of “deficiency in service” the court must consider what specific acts of an Insurance Company would amount to deficiency of service? when does the limit of such deficiency in service end? and when the limits of an inquiry into facts and evidence akin to that of a civil court commence?. It is respectfully submitted that there is no body of Indian law on the point and the only pronouncement of law by the Hon’ble Supreme Court on the test to be applied is found in the judgment of “Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66” where the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the Complainant proving that there was some fault, imperfection, shortcoming or inadequacy in the manner of the Insurance Company and further such fault etc. must be will ful. More importantly the Hon’ble Supreme Court has held that where there is a bona fide dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service. Thus, as there is no “deficiency in service” on the part of this respondent, the complaint is liable to be dismissed on this count alone.
19. That, the averments made and / or allegations levelled by petitioner in the claim petition against this respondent, if not specifically admitted by this respondent hereinafter, be hereby deemed to have been reproduced and denied in toto. The Petitioner/s be put to strict proof of all such averments and/or allegations.
20. That, the petition is not maintainable either in law or on facts and the same is liable to be rejected in limine.
21. That, in reply to Para 14 of the complaint petition, it is submitted that the alleged claim/compensation is frivolous, vexatious and devoid of merits and hence, the question of payment of alleged compensation for no fault of Opposite Parties do not arise at all.
22. This OP craves leave of the Hon’ble commission to file additional or amended Affidavit in chief as and when necessary or on filing of any documents by the complainant.
23. That being aggrieved and dissatisfied with the said rejection of the claim, the complainant has filed the instant complaint claiming the reliefs as prayed for therein.
24. That it is humbly stated that the Opposite Party is a company of repute and have been operating strictly as per the laws of the land. The allegations of the complainant are incorrect, false, vague, frivolous, baseless and devoid of any merit and no reliance ought to be placed by this Learned Forum on the same.
25. That in order to gain unjust enrichment, the Complainant has tried to make out a false case harassment against the Opposite Parties.
26. That the instant proceeding should be dismissed immediately as no cause of action has arisen against the insurance company.
27. That the complainant has not been able to make out any case of unfair trade practice or deficiency of service on the part of the insurance company inasmuch as there has not been any unfair trade practice or deficiency of service on the part of the insurance company.
28. That in the circumstances as above, the said complaint ought to be dismissed with exemplary cost to discourage all such frivolous and whimsical litigations in the future, as such litigations are not only harassing the insurance company but are also a waste of precious time of the Learned Forum.
29. That in view of the above, the said application ought to be dismissed by this Learned Forum with cost.
30. That from the points discussed in the aforesaid two letters of this O.P., it is crystal clear that the claim of the Complainant is totally baseless; the Complainant with a view to file this case and also to grab huge money illegally from this O.P. has made out all the stories mentioned in the petition of Complainant.
31. The Complainant has deliberately failed and neglected to comply/follow the terms and conditions of the policy of contract. And it is submitted by this O.Ps. that as terms of the policy has been violated by the Complainant and so the Complainant is a wrong doer and as per settled position of Law a wrong doer cannot get any relief from any Court of Law. In the given case, the Complainant is not entitled to get the fruit of the contract which is legally dead for non performance of the part by the Complainant who is guilty of breach of contract.
32. That I on behalf of the O.P. prayed before this Ld. Forum that this Ld. Forum considering the aforesaid submissions & the submissions the O.P. in the Written Version and all the annexed documents and records filed by the O.P. as well as the facts and circumstances of the case and also the present position of the law of the land may be graciously pleased to dismiss the present case and pass such further order and / or orders as Your Honour may deem fit and proper.
33. So in view of the above discussion it is clear that this O.Ps. have no liability in this case and is not liable to pay any compensation in this case. Under the aforesaid facts and circumstances, it is most respectfully submitted that until and unless the instant case is not dismissed and the complainant is not directed to pay cost to the Opp. Parties for such unnecessary harassment, they will suffer from irreparable loss and injury.
34. That I swear this Affidavit only to declare the above mentioned facts. That the foregoing statements are all true to the best of my knowledge and belief and as per official record maintained in our office.

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