Sri Subhra Sankar Bhatta, Judicial Member
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed at the behest of the Appellant viz. Star Health and Allied Insurance Company Limited who was the Opposite Party before the District Consumer Disputes Redressal Commission, South 24 Parganas at Baruipur (hereinafter referred to as the “District Commission” for short) assailing the impugned judgment and order dated 04.06.2019 passed by the District Commission in connection with Consumer Complaint Case no. 139 of 2018 whereby Ld. District Commission was pleased to pass the following order:-
“Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the OP/Insurance Company with a cost of Rs. 10,000/-.
The OP is directed to indemnify Rs. 2 lac to the Complainant and also to pay a sum of Rs.30,000/- as compensation for harassment and mental agony sustained by the Complainant within a month of this order failing which the amount of reimbursement, the compensation amount and the cost amount as referred to above will bear interest @ 10% p.a. till full realisation thereof.
Registrar-in-Charge of this Forum is directed to send a copy of this judgment free of cost at once to the parties concerned by speed post.”
Present Respondent Abhijit Roy as Complainant instituted the petition of complaint on 11.12.2014 against the present Appellant/Opposite Party Star Health and Allied Insurance Company Limited and prayed for relief/reliefs more particularly described in the prayer portion of the petition of complaint.
Case of the Complainant, in brief, is that the Complainant availed of on-line health insurance policy from the Opposite Party through policybazar.com on 09.02.2017 for himself and for his wife. The said policy was renewed on 09.02.2018 with the same terms and conditions. It has been contended that the initial policy value was Rs.5,00,000/- which was subsequently increased to Rs. 6,25,000/- after adding bonus. It has been also contended that at the time of taking the policy Complainant was asked to undergo few medical tests and on the basis of these tests they were asked to provide consent letter for exclusion of certain diseases which will not be covered under the policy. Accordingly, the Complainant provided the letter and in his case following diseases were excluded from the policy.
- Treatment of diseases related to Cardio Vascular System.
- Hypertension and its complications apart from the said diseases, no other diseases were excluded from the policy.
Further case of the Complainant, is that, in the month of May, 2018 the Complainant fell seriously ill and it was detected that he was suffering from Gall bladder stone. The Complainant was advised for immediate operation. Then and then he contacted with the Insurance Company for the formalities to be completed but he was shocked to learn that this disease is not covered under the policy before the expiry of two years. It has been categorically contended that the Complainant made several communications with the broker through policybazar.com to know when and where it was informed to him. The Complainant alleged that he did not receive any reply. On 7th June, 2018 he was admitted at the hospital and underwent surgical operation and spent around Rs.80,000/- for the said operation. On getting release from the hospital the Complainant lodged the petition of complaint before the Consumer Forum through on-line mode on 16.06.2018. On 28.06.2018 he received the reply from the OP/Insurance Company to the effect that “as per waiting periods clause 3 ii (b) this disease is not covered till the expiry of 24 months”. The Complainant repeatedly asked both the insurer and the broker as to whether they had informed this particular clause to the Complainant at the time of taking the policy. It has been also contended that the Complainant did not receive any reply on this aspect from the Opposite Party.
Further case of the Complainant, is that, on 27.06.2018 he again suffered severe stomach pain and he consulted the doctor on 28.06.2018. As per advice of the doctor he underwent MRCP Test and it was detected that few stones were still left. On 13.08.2018 he was again admitted for open cholecystectomy and had to spend around Rs. 1.3 lacs. On getting release from the hospital on 21.08.2018 the Complainant was in bed rest for two months and as such he could not lodge the petition of complaint in time. On 17.09.2018 the Complainant again sent letter to the local office of Star Health and Allied Insurance Company disclosing details of his claim for acceptance and reimbursement but till date the OP/Insurance Company did not give any positive reply. Under such compelling circumstances the Complainant was compelled to file the petition of complaint before the District Commission for redressal.
The OP/Insurance Company contested the case by filing written version on 08.02.2019 wherein they denied all the material allegations as portrayed in the body of the petition of complaint. It has been specifically contended that the averments made in the body of the petition of complaint are frivolous, vexatious and devoid of merit. It has been also contended that the definitions of Complainant, Complaint, Consumer disputes, Unfair trade practices and Service as per provisions of the said Act do not cover the claim under the present dispute and the present dispute is neither a consumer dispute nor deficiency in service/unfair trade practices on the part of the Insurance Company. The Opposite Party has further contended that the allegations as brought in the body of the petition of complaint are baseless, unfounded and unsustainable in the eye of law and as such ought to be dismissed at the threshold for the reasons as disclosed above. Specific case of the defence is that the Complainant obtained on-line family health Optima Policy through policybazar.com covering Mr. Abhijit Roy (Self) and Mrs. Sutapa Roy (Spouse) for a sum insured of Rs. 5,00,000/- under Policy Nos. P/700002/01/2017/094988 having the coverage period from 10.02.2017 to 09.02.2018 and subsequently Policy no. P/161130/01/2018/016051 for the coverage period from 10.02.2018 to 09.02.2019. It has been clearly contended that the above policies were not obtained through the agent or from any branch office of the Insurance Company directly by the Complainant and the policy document was served upon the Complainant along with the policy schedule wherein it has been stated in the policy schedule that “THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ATTACHED”. It has been admitted that the first insurance policy was duly renewed for the period from 10.02.2018 to 09.02.2019 having freelook period with the clause that if the insured is not satisfied with any condition, he may return the policy within 15 days to the company for collection of the cover. According to the defence the Complainant did not communicate anything on this regard and consequently he accepted the terms of the policy. It has been also stated in the policy that “two years waiting periods” has been clearly mentioned in the policy under item no. 3 ii (b). There is also the clause that Gall bladder and Pancreatic Calculi are not covered for two years period and as such the Complainant is not entitled to get the claim. It has been further contended that the Opposite Party did not violate any condition of the policy and there was no negligence or deficiency in service on their part. However, it has been unequivocally admitted that if the Hon’ble Forum finds any liability upon the Opposite party/Insurance company that may be limited to five lakhs only on submission of PAN Card/Aadhar Card as per guidelines of IRDA. The Opposite Party prayed for outright dismissal of the complaint petition with exemplary cost.
After evaluating the pleadings of the respective parties to the complaint case and having considered the evidence (both oral and documentary) on record adduced from the end of the respective parties Ld. District Commission was pleased to allow the petition of complaint of the Complainant on contest against the Opposite party/Insurance Company. Ld. Commission below was also pleased to give certain directions upon the OP/Insurance Company.
Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Commission the Opposite Party/Star Health and Allied Insurance Company as Appellant has preferred the present appeal on various grounds as highlighted in the body of the memorandum of appeal. It has been contended that the Ld. District Commission below failed to appreciate the case of the Appellant/Opposite party in its proper perspective and arrived at an erroneous conclusion; that the Ld. Commission below ignored the materials and evidence on record; that the Ld. Commission below did not apply its judicial mind in order to come to a efficious remedy; that the impugned judgment is bad in law and as such liable to be set aside and quashed; that the Ld. District Commission failed to give proper reasoning for allowing huge amount of compensation to the Complainant; that the Ld. District Commission failed to observe that at the very inception of the policy the insured Complainant/Respondent had not disclosed the medical history/health details which tantamounts to mis-representation and non-disclosure of the material facts. On all such grounds the Appellant/Insurance Company has prayed for allowing the present appeal after setting aside the impugned judgment and order of the Ld. Commission below.
POINTS FOR DETERMINATION
i) Whether the Ld. Commission below was justified in passing the impugned judgment and order in the complaint case being CC No. 139/2018.
ii) Whether the Ld. Commission below has committed gross error, irregularity or illegality in passing the impugned judgment and order.
iii) Whether the impugned judgment and order deserve interference of this Appellate Commission.
iv)Whether the impugned judgment and order of the Ld. Commission below can be sustained in the eye of law.
DECISIONS WITH REASONS
All the above four points are taken up together for the convenience of discussion and in order to avoid unnecessary repetitions.
Ld. Counsel appearing for the Appellant/Star Health and Allied Insurance Company Limited has advanced an elaborate argument on the point of exclusion clause and submitted that the Respondent/Complainant had taken the health insurance policy from Star Health and Allied Insurance Company Limited through policybazar.com on 09.02.2017 for himself and his wife. At the time of taking the policy Complainants were asked to undergo few medical tests and on the basis of those tests Petitioners/Complainants were asked to provide consent letter for the exclusion of certain diseases which will not be covered under the said policy. According to the Ld. Counsel the Respondent/Complainant’s case certainly falls under the exclusion clause of the said policy. Ld. Counsel has further submitted that the Appellant/Insurance Company sent reply to the Respondent/Complainant on 28.06.2018 disclosing the fact that as per waiting periods 3(ii)(b) the disease in question will not be covered till the expiry of 24 months. Ld. Counsel has also submitted that knowing full well about the terms and conditions of the policy specially the exclusion clause the Respondent/Complainant instituted the petition of complaint before the District Commission for redressal. It has been argued that the policy schedule was duly provided to the Respondent/Complainant from the end of the Insurance Company and it has been categorically mentioned in the policy schedule that “the insurance under this policy is subject to condition, clauses, warranties, exclusions etc. attached”. It has been also argued that the terms and conditions of the policy in question were certainly known to the Complainant and the Complainant cannot escape or evade the exclusion clause by merely submitting that the exclusion clause was not brought to his notice. Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned judgment and order.
In order to refute the above submission Ld. Counsel appearing for the Respondent/Complainant has boldly submitted that there was no dispute that the Respondent/Complainant had taken the on-line health insurance policy from the Appellant/Insurance Company and uploaded the said policy through the website policybazar.com. It has been also submitted that the Appellant/Insurance Company had invited general public in order to render its services under its various Health Insurance Scheme upon accepting medical premiums from the insured persons. There is no doubt that the Respondent/Complainant took that policy for himself and for his wife. Ld. Counsel has further submitted that the Respondent/Complainant contacted with the Appellant/Insurance Company on several occasion for getting the medical assistance but the Respondent/Complainant was shocked to learn from the Appellant/Insurance Company that the disease “Gall bladder stone/Calcholecystisis” is not covered under the said insurance policy which stands in the name of the Complainant/Respondent before the expiry of two years and as such Complainant/Respondent is not illegible to have such claim. It has been further submitted that the Complainant made several communications with the broker/agent appointed by the Appellant/Star Health and Allied Insurance Company Limited to enquire into the matter of non-eligibility to get reimbursement of claim for Gall bladder stone/Calcholecystisis but the Complainant did not get any reply either from the broker or from the agent appointed by the Appellant/Insurance Company. According to the Ld. Counsel the Respondent/Complainant was totally in dark about the terms and conditions of the policy as the Complainant took the policy through website policybazar.com. It has been also submitted that renewal of the said policy was also done through online and no insurance policy was ever supplied by the Appellant to the Respondent on the point of exclusion clause at any point of time. Ld. Counsel has prayed for outright dismissal of the appeal with compensatory cost. In support of the above submission Ld. Counsel for the Respondent/Complainant has referred the following citations:-
i) Revision Petition no.113 of 2021 M/S Oriental Insurance Company Limited….(Petitioner)—vs.—Harinder Pal Singh…(Respondent) passed by Hon’ble National Commission on 13th August, 2021.
Herein the present case the following facts are admitted by both the parties to the appeal:
i) That the Respondent/Complainant Mr. Abhijit Ray obtained on-line Family Health Optima Policy through ‘policybazar.com’ on 09.02.2027covering for self and spouse (Mrs. Sutapa Roy) for the sum insured of Rs. 5,00,000/- (Five Lakhs) being policy no. P/700002/01/2017/094988 with the coverage period from 10.02.2017 to 09.02.2018.
ii) That the said policy was renewed on 09.02.2018 with the same terms and conditions and the policy value was increased to Rs. 6,25,000/- being Policy No. P/161130/01/2018/016051 with the coverage period from 10.02.2018 to 09.02.2019.
iii) That the above policies were obtained through on-line and not through any of the agent or Branch office of the insurance company.
It is the categorical version of the Respondent/Complainant that they were asked to undergo few medical tests and they were further asked to provide consent letter on the basis of those tests for exclusion of certain diseases which will not be covered under the policy. It has been candidly contended that the Respondent/Complainant and his wife provided the said consent letter to the Insurance Company. It has been further contended by the Respondent/Complainant that in his case the following diseases were excluded from the policy:
- Treatment of Diseases related to Cardiovascular System.
- Hypertension and its complications apart from the said diseases, no other diseases were excluded from the policy.
It is the case of the Respondent/Complainant that in the month of May, 2018 he was having gastric problem and on being checked up it was diagnosed as Gall bladder stone. Accordingly, Respondent/Complainant was advised for immediate operation then and then the Respondent/Complainant contacted with the Insurance Company for the formalities to be completed for reimbursement of the medical bills but he was shocked to learn that Gall bladder stone operation will not be covered under the policy before the expiry of two years. The Respondent/Complainant also made several communications with the broker, policybazar.com in order to know when and where the above information was informed to him at the time of taking the policy in question but the Respondent/Complainant did not receive any reply. Ultimately, on 7th June, 2018 Respondent/Complainant was admitted at “Sri Aurobindo Seva Kendra” and underwent surgical operation. Thereafter, again on 13.07.2018 the Respondent/Complainant was admitted for open Cholecystectomy and had to spend around 1.3 lakh. The Respondent/Complainant was released on 21.07.2018 and since discharge the Complainant was on bed rest for two months. Subsequently, the Respondent/Complainant lodged the petition of complaint before the Ld. District Commission praying for reimbursement to the tune of Rs. 2,00,000/- and Rs. 75,000/- for mental agony and harassment and cost of litigation as the Hon’ble Commission deems fit and proper.
On the other hand the Appellant/Insurance Company denied the claim of the Respondent/Complainant on the very ground that in the body of the insurance policy it has been clearly mentioned under the head note waiting periods (item no.3) that an insured will have to wait for 24 months from the date of commencement of the policy for getting insurance coverage in case of some listed diseases including Gall bladder stone operation. According to the Appellant/Insurance Company the Respondent/Complainant underwent surgical operation within a period of two years and as such he is not entitled to get any insurance coverage.
Controversy lies in a narrow campus. The moot point is urged on behalf of the Appellant/Insurance Company that the claim of the Respondent/Complainant was not covered under the exclusion clause of the policy in question. On the other hand Respondent/Complainant raises the plea that the terms and conditions of the policy were not supplied to him as he took the policy online and not through any agent or directly from any Branch Office. Now, the question certainly arises as to whether the Appellant/Insurance Company could reject or deny the claim on the basis of the exclusion clause which was never furnished or supplied to the Complainant Insurer. The answer is negative.
Admittedly, the contract of insurance is based on utmost bonafide intention of the parties and both the parties are expected to disclose each other relevant fact at the time of commencement of the policy. As the insured is expected of disclosing every aspect as to his state of health so is Insurer bound to supply all relevant documents including the terms and conditions of the policy to the insured. However, in the present case the insured Complainant has taken a specific stand as to non-supply of the terms and conditions with the policy. It has been emphatically denied by the Appellant/Insurance Company. The evidence and materials on record go to establish that the Appellant/Insurance Company did not supply the terms and conditions to the Respondent/Complainant either at the time of execution of the policy or any time subsequent thereto. It is now well settled law that the Insurance Company cannot escape under the umbrella of so called terms and conditions to thwart legitimate and justified claim of the insured, if the said terms and conditions were not supplied to the insured. In the present case there is no iota of evidence as regards supply of the terms and conditions to the Complainant by the Insurance Company. The plea of the Appellant/Insurance Company that the claim of the Respondent/Complainant was not considered due to the very fact that as per terms and conditions of the policy “Gall bladder stone” is not covered within two years of taking first insurance cover as mentioned in the policy under item no. 3 (waiting periods) ii (b) and the said insurance policy is subject to the conditions, clauses, warranty, endorsements as per form attached is a printed material of standard form of policy. Merely writing so does not absolve the Insurance Company from its liability to send the copy of the terms and conditions along with the policy.
It is to be borne in mind that the Respondent/Complainant purchased the policy in question from policybazar.com through internet. The Respondent/Complainant has categorically alleged that he simply received the Insurance policy without any policy schedule attached with the said policy and as such from the very inception the Respondent/Complainant was totally in dark about the exclusion clauses.
Curious enough to note here that in the written version at Paragraph no. 29 the Appellant/Insurance Company has submitted to the effect that “even if the Hon’ble Forum finds any liability upon the Opposite Parties that may be limited to 5,00,000/- (on submission of PAN Card/Aadhar Card as guidelines of IRDA”. Such averment speaks a lot about the genuineness and truthfulness of Appellant’s version and tantamounts to admission of the Complainant’s case.
Another vital aspect is that annexure 1 is the Family Health Optima Insurance Plan issued by the Appellant/Insurance Company in favour of Abhijit Ray goes to prove that at the bottom it has been categorically mentioned that THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC, ATTACHED. But it is crystal clear that there is no attachment with the said policy schedule and the Appellant/Insurance Company has miserably failed to produce any cogent document to prove that the entire policy schedule along with the attachments were sent to the policy holder at the time of starting the policy or any times subsequent thereto. Thus being the position it can be safely concluded that the repudiation of claim of the Respondent/Complainant by the Appellant/Insurance Company was unwarranted and unjustified. Merely writing that THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC, ATTACHED does not excuse the Insurance Company from its liability to send the copies of terms and conditions along with the policy schedule. We are unable to persuade ourselves with the argument advanced on behalf of the Appellant/Insurance Company. There is no doubt that the Appellant/Insurance Company had cleverly tried to absolve itself of liability. It is the settled principle of law that burden to proof exclusion clause is on the Insurance Company. It is also the settled principle of law that the burden lies on the party who aver the fact.
Considering all aspects from all angles and keeping in mind the submission of the Ld. Counsels for the respective parties to the appeal and regard being had to the cited decisions of the Hon’ble Apex Court and Hon’ble National Commission we have no hesitation to hold that the exclusion clause of the policy schedule was not supplied to the Respondent/Complainant at any point of time and as such the repudiation of claim of the Respondent/Complainant by the insurance company is nothing but a glaring example of deficiency in service on the part of the OP/Insurance Company.
It transpires from the materials and evidence on record that the Respondent/Complainant incurred an expenditure of Rs. 2,00,000/- (Two Lakhs) towards his treatment and hospitalization. The Appellant/Insurance Company did not deny the said expenditure towards treatment and hospitalization within the four corners of the written version. The written version specially paragraph no. 29 (last portion) goes to prove beyond any shadow of doubt that the Appellant/Insurance company is ready to pay Rs. 5,00,000/- (Five Lakhs) on submission of PAN Card/Aadhar Card as per guidelines of IRDA if the Hon’ble Forum finds liability of the Opposite Party/Insurance Company. Such version on behalf of the Insurance Company inspires us to hold that the claim of the Respondent/Complainant towards medical reimbursement is genuine and consequently Respondent/Complainant is entitled to get the relief/reliefs as sought for. We do not find any irregularity, illegality or infirmity in the judgment and order passed by the Ld. District Commission. We hold and firmly hold that the observation and ultimate conclusion arrived at by the Ld. District Commission were absolutely correct and justified. No interference is called for.
The judgment and order of the Ld. Commission below deserve to be sustained in the eye of law.
All the points are thus decided and answered against the Appellant/Insurance Company and in favour of the Respondent/Complainant.
In the result the present appeal fails.
It is, therefore,
O R D E R E D
That the present First Appeal being no. A/496/2019 be and the same is dismissed on contest against the Respondent but considering the circumstances without any order as to costs.
The impugned judgment and order passed by the Ld. District Commission South 24 Parganas at Baruipur in connection with Complaint Case no. CC/139/2018 on 04.06.2019 are hereby affirmed.
Let a copy of this judgment and order be transmitted to the Ld. District Commission at Baruipur forthwith for information and taking necessary action.
Let copy of this judgment and order be supplied to both the contesting parties free of costs.
Interim order, if any, be vacated at once.
Thus, the Appeal stands disposed of.
Note accordingly.
