BEFORE THE HON’BLE DELHI STATE CONSUMER DISPUTE

REDRESSAL COMMISSION, AT NEW DELHI

APPEAL NO._______ OF 2024

IN THE MATTER OF:-

M/S HDFC ERGO General Insurance CO. Ltd. …. APPELLANT

VERSUS

Shailendra Kumar …RESPONDENT

MEMO OF PARTIES

M/S HDFC ERGO General Insurance CO. Ltd.

Stellar IT Park, Tower-I, 5th Floor, C-25, Sector-62,
Noida-201301 …. APPELLANT

VERSUS

Shailendra Kumar
S/o Sh. Kedar Singh Tomar
R/o 470, Forst Floor, Pocket –E Mayur Vihar,
Phase-II, Delhi- 110091 …..RESPONDENT

Dated: 08.03.2024
New Delhi

Filed by:

SS Law Partners
(Counsel for Appellant)
B-5, Ground Floor, Jangpura
Extension, New Delhi – 110014.
 BEFORE THE HON’BLE DELHI STATE CONSUMER DISPUTE
REDRESSAL COMMISSION, AT NEW DELHI
APPEAL NO._______ OF 2024

In the Matter of: -

M/S HDFC ERGO General Insurance CO. Ltd.
Stellar IT Park, Tower-I, 5th Floor, C-25, Sector-62,
Noida-201301 …. APPELLANT

VERSUS

Shailendra Kumar
S/o Sh. Kedar Singh Tomar
R/o 470, Forst Floor, Pocket –E Mayur Vihar,
Phase-II, Delhi- 110091 …..RESPONDENT

APPEAL UNDER SECTION 41 OF THE CONSUMER PROTECTION

ACT, 2019, AGAINST ORDER DATED 31.10.2023 PASSED BY
DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION, EAST
DISTRICT, SAINI ENCLAVE, IN CASE NO. 306/2020.

MOST RESPECTFULLY SHOWETH:-

1. That the present Appeal is preferred by the Appellant before

this Hon’ble Commission for setting aside of the final order

dated 31.10.2023 passed by the Ld. District Consumer

Disputes Redressal Commission, East District, Saini Enclave

(hereinafter referred to as said “Ld. District Forum”) in

Complaint No. 306/2020 (hereinafter referred to as “the

impugned order”), whereby the Ld. District Forum has partly

 allowed the Complaint filed by the Respondent and directed

the Appellant to pay Rs. 10,00,000/- as insurance amount

along with interest @ 6% per annum from the date of filing of

the complaint till realization, Rs. 30,000/- as compensation

and Rs. 20,000/- as cost of litigation within 30 days after

receipt of this order failing which the OP will pay interest @

9 % p.a. The Appellant humbly submits that the impugned

order is contrary to the terms of the policy and is based on

the wrong surmises; it is specifically mentioned in the policy

schedule that the exclusion clause in the terms and

conditions of the policy is a part of the policy schedule

provided to him and as per the said clause the illness falls

under the 2 year waiting period. The claim is not payable

within the said waiting Period as per the terms and

conditions of the Policy. The Ld. District Forum has failed to

consider the above contentions. A Certified copy of the

impugned order, dated 31.10.2023, passed by Ld.

District Forum is annexed herewith as Annexure- A-1.

2. That Housing Development Finance Corporation Ltd. ("HDFC

Ltd) has acquired a majority stake (i.e., 51.16%) of Apollo

Munich Health insurance Company Ltd, post receipt of the

necessary regulatory approvals. Based on the said

acquisition, Apollo Munich Health Insurance Company

Limited has been renamed as HDFC ERGO Health Insurance

Limited with effect from January 9th 2020 and later changed
 to HDFC ERGO General Insurance Limited, a company

incorporated under the Companies Act, 1956, having its

Corporate Identity Number U66030MH2006PLC331263 and

having its Registered Office at 101, First Floor, Inizio,

Cardinal Gracious Road, Chakala, Opposite Party Plaza,

Andheri (East), Mumbai City, Maharashtra, (lndia) - 400069

and its Central Processing Centre at 5th Floor, Tower-1,

Stellar IT Park, C-25, Sector 62, Noida – 201301. The copy of

the relevant document issued by ROC is annexed herewith

as Annexure –A-2.

3. That Appellant is a Company incorporated under the

Companies Act, having its registered office at the address

mentioned above. The Appellant Company is engaged in the

business of providing various insurance policies/facilities to

its customers. That vide Power of Attorney dated ………….,

Ms. Shweta Pokhriyal has been authorized to sign and file

the present appeal. A copy of said Power of Attorney is

annexed herewith and marked as ANNEXURE A-3.

4. It is humbly submitted that the brief facts involved in the

present case are as follows:-

a. Respondent is a policy holder and initially availed a policy

from the Appellant from 2011 to 2017. However failed to

renew the said policy in 2017. The Respondent after gap of 1

year and 2 months applied for fresh policy to the appellant

 company and accordingly, a fresh policy bearing No.

110100/11121/AA00972323 was issued which was valid

from 15.12.2018 to 14.12.2019 for sum assured of Rs.

10,00,000/- from the Appellant Company. The said policy

was later renewed till 14.12.2020. The Copy of the Policy

Schedules are annexed herewith Annexure-A-4 (Colly).

b. That the Policy Holder submitted a Proposal Form (the

“Proposal Form”) proposing the issuance of the above said

Policy. The Proposer had signed and submitted the Proposal

Form after going through the terms and conditions of the

Policy. On the basis of the Proposal Form and upon

completion of formalities, the Policy was issued to the

Policyholder by the Appellant Company and the above policy

was governed by its terms and conditions. It is pertinent to

mention that alongwith the Policy Schedule ther policy

wordings/Terms and conditions of the policy were duly

supplied to the complainant. The Copy of the terms and

conditions/Policy Wordings of the Policy is annexed herewith

as Annexure A-5.

c. That in November 2019, Appellant Company received cashless

request from the Max super Specialty Hospital, Patpar Ganj

with respect to the hospitalization of the Respondent. It is

pertinent to mention that the Respondent was admitted in

 the Hospital after a fall in the bathroom on 03.11.2019 with

complaint of inability to move with both the legs, history of

nasal bleed, fever from 2-3 days (diagnosed with dengue).

d. That after going through the medical documents, the appellant

company, rejected the cashless request vide letter dated

06.11.2019 on the ground that the treatment of PIVD falls under

the waiting period of 2 years and excluded from the policy. The

copy of the cashless denial letter dated 06.11.2019 is annexed

herewith as Annexure-A-6.

e. That the Appellant Company had received request for

reimbursement of the claim from the Respondent on 06.01.2020

with respect to the hospitalization of the Respondent at two

hospitals viz Max Super specialty Hospital, Patparganj and Max

Hospital, Vaishali from 03.11.2019 to 21.11.2019 and total

claimed amount is Rs. 17,99,423/-( Rupees seventeen lakhs

ninety nine thousand four hundred and twenty three). The copy

of the claim form alongwith medical documents is annexed

herewith as Annexure-A-7 (Colly).

f. That after verification of the claim documents, the Appellant

Company repudiated the claim vide repudiation letter dated

07.12.2020 on the ground that treatment of PIVD is excluded

from the policy and falls under the 2 year waiting period and

falls under the exclusion clause under the terms and conditions

of the policy.
 The relevant clause is reproduced below for ready reference.

Section V A Waiting Period

……

b) A waiting Period of 24 months from the first policy

commencement date will be applicable to the medical and surgical
treatment of illnesses/diagnosis or surgical procedures mentioned
in the following table.

c. Orthopedic

………………

. Prolapsed Intervertebral Disc

Copy of the rejection letter dated 07.12.2020 is annexed herewith

as Annexure A-8.

g. That the Respondent/ Complainant aggrieved by said rejection of

his claim, filed a Consumer Complaint against the Appellant
seeking direction from the Hon’ble Forum against Appellant for
payment of the claim amounting to Rs. 17,99,423/- covering in
the two policy periods 2018-19 and 2019-20; also to pay Rs.
5,00,000/- as compensation and Rs. 2,20,000/- towards cost of
litigation. The Copy of Complaint is filed by Respondent before
Ld. District Forum is annexed herewith as ANNEXURE A-9.

h. That the Appellant appeared before the Ld. District Forum and
filed Reply to the Complaint stating that the illness PIVD falls
under the 2 year waiting period and excluded till 2 years from the
issuance of the policy. Since the hospitalization falls within two
years of initiation of the policy, therefore the claim is not payable
as per terms and conditions of the policy. The copy of
reply/written statement filed by Appellant before District Forum
is annexed herewith as ANNEXURE A-10.
i. That the Complainant has filed the Rejoinder and evidence by
way of affidavit in the captioned matter. It is pertinent to mention
that the Complainant/Respondent for the first time alleged that
he has not received the terms and conditions of the policy, which
is a afterthought defense taken due to the fact that the claim was
rejected on the basis of terms and conditions of the policy. Copy
of the Rejoinder filed by the Complainant/Respondent is
annexed herewith as ANNEXURE A-11 and Copy of the Evidence
by way of Affidavit filed by the Complainant/Respondent is
annexed herewith as ANNEXURE A-12.

j. That vide order dated 13.10.2022, the OP has not appeared due
to personal difficulty of the counsel of the OP. The Learned
Forum pleased to proceed ex-parte to the OP. The Opposite Party
however, filed the OP Evidence on 18.10.2022 before the Registry
which was subsequently not taken on record due to the ex-parte
order.

j. The OP has also filed application for setting aside the ex-parte
order dated 13.10.2022. However, the said application was
dismissed vide Order dated 11.01.2023 on the ground that the
Learned Forum has no power to set aside the ex-parte
proceedings. The copy of the order dated 13.10.2022, 22.11.2022
and 11.01.2023 are annexed herewith as ANNEXURE A-
13(Colly).

5. It is pertinent to mention that the counsel who represented the

Appellant in the Ld. District forum did not inform the dismissal of

the above said application. That Ld. District Forum reserved the

matter for orders on 09.10.2023 and passed the impugned order

 dated 31.10.2023 directing the Appellant to pay Rs. 10,00,000/-

towards insurance claim available under the policy along with

interest @ 6% per annum from the date of filing of the complaint

till realization, Rs. 30,000/- as compensation and Rs. 20,000/-

as cost of litigation within 30 days after receipt of this order,

failing which the OP will pay interest @ 9 %.

7. That the Appellant respectfully submits that the impugned order

dated 31.10.2023 passed by the Ld. District Forum is arbitrary,

illegal and perverse to the facts and circumstances of the case. In

fact, the impugned order dated 31.10.2023 sets a bad judicial

precedent. The Appellant challenges the impugned order dated

31.10.2023 which is liable to be set aside for the following

amongst other grounds:-

GROUNDS

A. Because the Ld. District Forum wrongly held that the terms and

conditions of the policy was not supplied to the complainant in

absence of evidence which needs to be proved by the Appellant.

The Policy Cover filed by the complainant on record clearly

mentioned the fact that policy wording are attached along with

the policy cover. Even otherwise the Complainant/ Respondent

neither raised the issue before filing of the complaint nor

mentioned in the complaint. The issue of non supply of terms

and conditions is first raised in the rejoinder filed by the

 Respondent. Therefore Ld. Forum erred in holding that the

exclusion clause is not applicable in the present case as the

terms and conditions were not supplied. The above finding of the

Ld. District forum is incorrect and perverse to the records filed

before the Ld. Forum. Hence the impugned order is liable to be

set aside on the basis of it.

B. Because the Ld. District Forum erred by not considering the fact

that there was a two year waiting Period in the policy terms and

conditions for treatment of PIVD, the policy inception date being

15.12.2018 and treatment taken by the OP was 02.11.2019.

Since the treatment falls under the two year waiting period, the

claim is rejected as per the terms and conditions of the policy.

C. Because the Ld. District Forum has ignored the fact that the

Respondent was never raised the issue of non-receipt of terms

and conditions after rejection of the claim on the basis of terms

and conditions of the policy not even mentioned in the

complaint filed before Ld. District Forum. That the

Complainant/Respondent had already received the terms and

conditions of the Policy and was fully aware about the same. It

is reiterated that Complainant/Respondent has never raised the

issue before. The contention of the Respondent/ Complainant is

after thought. It is pertinent to mention that the terms of the

policy are otherwise available in the website of the Appellant

and is available for viewing.

D. Because Ld. District Forum has ignored that the
Complainant/Respondent misled the Forum by the averments
that the complainant was hospitalized for Dengue Fever.
However, the Complainant was hospitalized for fall and
diagnosed as PIVD which is falls under the 2 years waiting
period. The Complainant/ Respondent has twisted the facts
which the Ld. Forum ignored just to grant relief to the
Complainant/Respondent.

E. Because Ld. District Forum erroneously held that there was

deficiency in service for rejection of the claim whereas the claim
was rejected due to the two year waiting period which falls under
the exclusion clause based on the terms and conditions of the
Policy.

F. Because Ld. District Forum erred in placing reliance on the

judgement held in Bharat Watch Company through its partners
vs. NIC Ltd. where the terms of exclusion were not known to the
insured. However, in the present case, the policy cover filed on
record itself shows that policy wordings/ terms and conditions
are attached with the policy schedule.

G. Because the Impugned Order is erroneous in law as the same

has been passed contrary to the terms and conditions of the
insurance contract between the parties, which determines the
relationship between the parties. Hence, the same is liable to be
set aside. It is submitted that the Ld. District Forum did not
appreciate that the claim falls under the exclusion clause and is
not payable. It is well settled law that if the policy contains a
recital that the proposal referred to shall be the basis of the
contract and if the Policy holder violates the contract, the
Appellant is not liable to pay the claim benefits available under
the policy.
H. BECAUSE the impugned order passed by Ld. District Forum is
contrary to the law laid down by Hon’ble NCDRC in Bhajan
Bhagwant Singh vs United India Insurance Co. Ltd. & Anr.
[RP 2167/2018]. In said case in the similar facts Hon’ble NCDRC
had held the repudiation of the insurance company is as per the
terms of the policy.

I. Because Ld. District Forum has failed to consider that as per

the settled law the complainant has to prove his own case. It is
pertinent to mention that in the present case the complainant
has failed to prove his own case. The Ld. District Forum has
failed to consider the policy schedule filed by Complainant
himself on record. The Policy Schedule duly disclosed the fact
that the terms and conditions attached to the policy. In the
above circumstances, the burden of proof lies on the
complainant\ Respondent to prove that he has not received the
terms and conditions.

J. Because as per the facts and documents filed on record, it is

evident that the Appellant Company has acted as per the
statutory guidelines and terms of the proposal Form and Policy,
therefore there has been no deficiency in the services provided
by the Company. It is well settled law that courts of tribunals
cannot rewrite the terms of the insurance contract. Thus, the ld.
District Forum ought to have dismissed the complaint of the
respondent as the hospitalization falls under the waiting period
of 2 years and claim is not maintainable.

K. The Appellant craves leave of this Hon’ble Commission to urge

further grounds at the time of hearing of this Appeal.
8. It is submitted that the Appellant has not filed any other Appeal

or petition before this Hon’ble Commission or any other

Commission or Court challenging the impugned order.

PRAYER

It is therefore most respectfully prayed that in view of aforesaid facts

and submissions, this Hon'ble Commission may be pleased to:-

a) Set-aside the impugned Judgment and final order dated

31.10.2023, passed by the District Consumer Dispute
Redressal Forum, East District, Saini Enclave in Case no.
306/2020;

b) Pass any other and such other order, as this Hon’ble

Commission may deem fit and proper in the facts and
circumstances of the present case and in the interest of justice.

AND FOR THIS ACT OF KINDNESS, YOUR APPELLANT, AS

IS DUTY BOUND, SHALL EVER PRAY.

APPELLANT

THROUGH
Dated: .03.2024
New Delhi SS Law Partners
(Counsel for Appellant)
B-5, Ground Floor, Jangpura
Extension New Delhi – 110014.
 BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, NEW DELHI

Appeal No. ________/2024

In the matter of:-

M/s HDFC Ergo General Insurance Co. Ltd …. Appellant

Versus

Mr. Shailendra Kumar …Respondent

APPLICATION FOR STAY THE OPERATION OF THE IMPUGNED

ORDER TILL ADJUDICATION OF THE PRESENT APPEAL

Most Respectfully Showeth:-

1. That the present Appeal is preferred by the Appellant before this

Hon’ble Commission for setting aside of the final order dated
31.10.2023 passed by the Ld. District Consumer Disputes
Redressal Commission, East District, Saini Enclave
(hereinafter referred to as said “Ld. District Forum”) in
Complaint No. 306/2020 (hereinafter referred to as “the
impugned order”), whereby the Ld. District Forum has partly
allowed the Complaint filed by the Respondent and directed the
Appellant to pay Rs. 10,00,000/- as insurance amount along
with interest @ 6% per annum from the date of filing of the
complaint till realization, Rs. 30,000/- as compensation and Rs.
20,000/- as cost of litigation within 30 days after receipt of this
order failing which the OP will pay interest @ 9 % p.a.

2. It is submitted that the aforesaid impugned order is erroneous

and is liable to be set-aside on the grounds mentioned in
appeal. The said grounds of appeal may be treated as grounds
of present application.
3. That the Appellant has prima-facie case in its favour and is
likely to succeed. It is submitted that balance of convenience
also lies in favour of the Appellant.

4. That the Appellant shall suffer irreparable injury and loss in

case the impugned order is not stayed.

5. That the present application of the appellant is bonafide and it

is in the interest of justice that the impugned order be stayed as
otherwise the present appeal shall become infructuous.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Commission

may be pleased to:-

a) Stay the operation of the impugned order dated 31.10.2023 till

adjudication of the present appeal;

b) Pass such other and further order(s)/direction(s) as this Hon’ble

Commission deems fit and proper in the circumstances of the
case.

Appellant

Through

SS Law Partners
(Counsel for Appellant)
B-5, Ground Floor, Jangpura
Extension New Delhi – 110014.