V.S. KAPOOR vs UNITED INDIA ASSURANCE CO. LTD.

THIS appeal has been filed by the appellant assailing the order dated 27.6.2000 passed by the District Forum (Central), Kashmere Gate, Delhi in Complaint Case No. 2740/1999-entitled Shri V.S. Kapoor v. United India Assurance Co. Ltd. and Another.

SHORT question involved for determination in this appeal is as to whether the acceptance of amount against the claim of medical insurance policy without raising protest operates estoppel or not. It is the admitted case that the appellant and the family members obtained insurance policy for the period 20.9.1996 to 19.9.1997 -after paying premium of Rs. 4,630/- under the said policy, which was floated under the new scheme. The appellant was entitled to claim actual medical expenses incurred subject to the maximum limit prescribed in the policy. There is no dispute that the old scheme where the insured was not entitled to claim actual medical expenses came to an end on 31.8.1996 and was replaced by a new scheme w.e.f. 1.9.1996. In the instant case it is contended by the respondent that the policy covering 10% under the medical scheme policy and on the basis of cover note the respondent issued policy on the prescribed format and the appellant neither objected nor desired to take policy under the new scheme and furthermore the appellant accepted the amount of Rs. 38,930/- in full and final settlement of his claim and signed the discharge voucher and has collected the cheque personally on 3.3.1997 along with forwarding letter without any caveat.

We are afraid the aforesaid contention does not hold water and is devoid of merit as mere form or cover note prepared on the application form of the old scheme did not render the insurance made under the new scheme ineffective and that the very fact that the old scheme ceased to be in operation w.e.f. 30.8.1996 and the premium charged @ 4,630/- was as per rates of premium under the new scheme shows that the policy was taken under the new scheme. Even if it is presumed that premium charged was not under new scheme still the fact remains that the appellant got himself insured when the old scheme ceased to be in operation and not applicable to those who were insured w.e.f. 1.9.1996.

MERELY because the appellant accepted the amount towards full and final settlement did not debar him from claiming the actual expenses incurred by him under the new scheme in which he was insured. Consumer is always entitled to claim on account of deficiency in service and mere acceptance of any amount without protest does not debar him from his rightful claim. In the case of United India Assurance v. Ajmer Singh Cotton and General Mills and Others, reported in II (1999) CPJ 10 (SC)=VI (1999) SLT 590=AIR 1999 Supreme Court 3027, Supreme Court held that mere execution of the discharge vouchers, by an insured in respect of claim raised under the insurance policy would not always deprive the insured consumer from preferring claim in respect of deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like.

IN the instant case the conduct of the respondent does not appear to be above board as the respondent did not respond to the protest made by the appellant on 27.3.1997 i.e., immediately after receiving the discharge voucher and on 28.8.1997 the date when the legal notice was served on the respondent. However, even if we assume that the appellant did not raise any protest it did not mean that the appellant can be deprived of his rightful claim inspite of having executed the discharge vouchers and accepted the amount without any protest. There can be no estoppel against legally sustainable and rightful claim arising out of insurance policy. Rather the consumer has the remedy to claim his rightful dues arising out of deficiency in service. IN the instant case the appellant is entitled to recover the actual medical expenses incurred by him and, therefore, the learned District Forum fell in grave error in not allowing the claim of the appellant and dismissing the complaint. Since the appellant has actually incurred expense of Rs. 86,690/- the service provider cannot be allowed to make capital out of providing inadequate and deficient service in proof of which the appellant has produced the voucher of medicines, room rates, operation and doctors fees. These have been duly verified by the hospital authorities. In the result, the appeal is allowed and the impugned order is set aside. The respondent is directed to make the payment of balance amount of Rs. 46,000/- with interest @ 9% p.a. from the date of claim besides Rs. 1,000/- towards cost of litigation. Appeal allowed with costs.