Complaint under section  34 & 35  of the Consumer Protection Act, 2019

Result : Complaint Allowed

Counsel for the parties  :

For the  Complainants   : Sh.Updip Singh,Adv.     

For the Opposite Party  No.1: Sh.Mohan Arora, Advocate

For the Opposite Party No.2 : Sh.Veenu Bhatia, Advocate

CORAM

Mr.Jagdishwar Kumar Chopra, President

Mrs.Mandeep Kaur, Member

Mr.Lakhwinder Pal Gill, Member

ORDER:-

Mr.Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by the complainant u/s 34   & 35 of the Consumer Protection Act, 2019.

Brief facts and pleadings

1.       Brief facts of the case are that     under the influence of opposite party No.2, the complainant obtained medical health insurance policy from Bajaj Allianz Gen. Insu.Co. on 11.5.2017 then renewed the same for the year 2018 and 2019 till 9.5.2020. Before expiry of the last policy, the complainant contacted opposite party No.2 for renewal of the same, however the representative of opposite party No.2 claimed that the Bajaj Allianz Gen.Insu. company limited is no longer issuing insurance policies to its customers and opposite party No.2 will provide mediclaim insurance policy of opposite party No.1 as they provide the best coverage. Accordingly on the aforesaid assurances the opposite party No.2 got Group Active Health Insu.Policy from opposite partyNo.1 in favour of the complainant for the period from 18.7.2020 till 17.7.2021 for the sum assured Rs. 10,00,000/-. The insurance policy was supplied to the complainant through email dated 18.7.2020. It  is pertinent to mention here that  since the policy in question was issued by the opposite parties in continuation to the earlier insurance policies, therefore , the opposite parties had neither got any medical check up of the complainant nor the opposite parties demanded any self declaration form or any other document in this regard. It is pertinent to mention here that apart from aforesaid insurance policy no terms and conditions were ever supplied to the complainant. Unfortunately the complainant fell ill on 19.8.2020 and was rushed to Ivy Hospital at Amritsar in emergency where he was admitted on the same day where he had undergone coronary Angiography and Angioplasty. The attendants of the complainant immediately informed opposite party No.1 about the condition of the complainant and lodged cashless claim. However, opposite party No.1 vide letter dated 21.8.2020 denied the cashless claim on the ground that complainant had earlier contracted the same problem and the same was not disclosed in the policy. Whereas the complainant had suffered from the aforesaid disease for the first time on 19.8.2020  and has earlier neither taken any treatment  for the said disease nor suffered from the same. In this regard the complainant  sent mail dated 21.8.2020 and also tried to approach the agent of opposite party No.2 namely Mr. Prashant Panwar numerous times but he did not answer to the grievances of the complainant.  The complainant also sent email to opposite party No.2  but of no use. The complainant then wrote email dated 23.8.2020 to opposite party No.1 clarifying the fact that the opposite party No.2 had assured that the policy in question would be in continuation of the earlier insurance policies and as such,  the case at hand is not covered by exclusion clause, if any. Moreover such exclusion clause was neither explained to the complainant  at the time of issuing the policy nor the said conditions were ever supplied to the complainant, copy of email dated 22.8.2020. The representatives of the opposite party No.1 assured that the matter would be thoroughly looked into by them  and a resolution would be provided to the complainant. But to the utter surprise of the complainant instead of providing solution  the opposite party No.1 unilaterally refunded the premium amount of the policy in question i.e. Rs. 13,309/- in the account of the complainant.  On repeated asking of the complainant about the status of the policy the opposite party NO.1 informed  vide email dated 278.8.2020 and 30.8.2020 that the policy in question has been cancelled  and the premium has been refunded in the account of the complainant.  The complainant had never given any instructions or consent to cancel the policy. The complainant has incurred huge amount of Rs. 2,29,163/- for his treatment at IVY hospital for which opposite party No.1 is liable to reimburse the same . The aforesaid act of the opposite parties amounts to deficiency in service, malpractice, unfair trade practice  and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

1. Opposite parties be directed to reinstate the insurance policy in question i.e. GH120-2154025 alongwith continuity of previous insurance policies ;
2. Opposite parties be directed to reimburse  Rs. 2,29,163/- for the treatment taken under the insurance policy in question alongwith interest @ 18% p.a from 25.8.2020 till its realization;

(c)      Opposite parties be also directed to pay compensation to the tune of Rs. 1,50,000/- to the complainant.

( d)    Opposite parties be also directed to pay Rs.20000/- as  litigation expenses to  the complainant.

(e)      Any other relief to which the complainant is entitled be also awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party  No.1 appeared and filed written version   in which it was submitted that  policy bearing No. GH120-2154025 was issued in the name of Satish Kumar Malik. Satish Kumar Malik was insured under the Group Active Health Policy for the period from 18.7.2020 to 17.7.2021 . On  19.8.2020 opposite party received the pre-authorization request from Ivy Hospital Amritsar  and on receipt of the claim intimation  the opposite parties scrutinized all the documents and medical records. On verification of the documents it was noted that patient underwent treatment for coronary artery disease and cashless claim was received just after completion of 30 days of the policy. The cashless claim  was denied on the ground that the cashless claim was received just after completion of 30 days as per ICP patient was on insulin and cashless claim was denied  of non disclosure  and pre-existing nature of illness. It is also pertinent to mention here that query was raised by the claims team regarding additional  information/documents which was not responded by the hospital and for want of complete information the cashless claim was denied. The answering opposite party is not liable to pay any amount beyond the terms and conditions of the policy. While submitting that there is no deficiency in service and while denying and controverting other allegations, dismissal of complaint was prayed.

3.       Whereas opposite party No.2 appeared and filed written version in which it was submitted that complainant has taken the medical policy from Bajaj Allianz General Insu. company. But it was  denied that Bajaj Allianz General Insurance company is agency of have any connection with opposite party No.2 but however, opposite party No.2 had only financed the premium of complainant of insurance policies  and complainant had to pay its finance premium to opposite party No.2 in installments which the complainant had duly paid to opposite party No.2  and his account has duly been closed with no due certificate.  It was  admitted that complainant has taken the policy of opposite party No.1 but it was denied that it was taken on the instance of opposite party No.2 but opposite party No.2 only promises to finance the premium of policy of complainant. It was submitted that when opposite party No.2 financed the policy of complainant then opposite party No.2 sent the policy documents alongwith terms and conditions  to the complainant on behalf of opposite partyNo.1. Thus the relationship of insurer and insured exists between the complainant and opposite party No.1 and opposite party No.2 has no role  except to finance the premium of policy. While submitting that there is no deficiency in service and while denying and controverting other allegations, dismissal of complaint was prayed.

Evidence of the parties and Arguments

4.       Alongwith the complaint, complainant has filed his self attested affidavit Ex.C-1,   cop of insurance policies Ex.C-2 (colly), copy of email dated 18.7.2020 Ex.C-3, cop of policy Ex.C-4,, copies of emails/reply Ex.C-5 to Ex.C8, copy of email dated 27.8.2020 and 30.8.2020 Ex.C-8A(colly), copy of hospital bills Ex.C-9.

5.       On the other hand opposite party No.1 alongwith written version has filed  affidavit of Sh.Abhinandan Sharma, Branch Operation Executive Ex.OP1/1, copy of power of attorney dated 15.7.2020 Ex.OP1, copy of claim form Ex.OP2, copy of ICP Ex.OP3, copy of policy alongwith terms and conditions Ex.OP4, copy of denial letter dated 20.8.2020 Ex.OP5.

6.       Whereas opposite party No.2 alongwith written version has filed affidavit of Sh. Shivani Garg, Authorized representative Ex.OP2/1, special power of attorney Ex.OP2/2, copy of loan account statement Ex.OP2/3 to Ex.OP2/6, copy of policy Ex.OP2/7.         

7.       We have heard the Ld.counsel for the parties and have carefully gone through the record on the file . We have also gone through the written arguments submitted by both the parties.

Findings

8.        From the pleadings of the parties and the evidence produced on record  the case of the complainant is that he has obtained medical health insurance policy from Bajaj Allianz Gen. Insu.Co. on 11.5.2017 then renewed the same for the year 2018 and 2019 till 9.5.2020.  It is the case of the complainant that before expiry of the last policy, the complainant contacted opposite party No.2 for renewal of the same, however the representative of opposite party No.2 claimed that the Bajaj Allianz Gen.Insu. company limited is no longer issuing insurance policies to its customers and opposite party No.2 will provide mediclaim insurance policy of opposite party No.1 as they provide the best coverage. Accordingly on the aforesaid assurances the opposite party No.2 got Group Active Health Insu.Policy from opposite partyNo.1 in favour of the complainant for the period from 18.7.2020 till 17.7.2021 for the sum assured Rs. 10,00,000/-. The insurance policy was supplied to the complainant through email dated 18.7.2020. It  is pertinent to mention here that  since the policy in question was issued by the opposite parties in continuation to the earlier insurance policies, therefore , the opposite parties had neither got any medical check up of the complainant nor the opposite parties demanded any self declaration form or any other document in this regard. No policy terms and conditions were ever supplied to the complainant. Unfortunately the complainant fell ill on 19.8.2020 and was rushed to Ivy Hospital at Amritsar in emergency where he was admitted on the same day where he had undergone coronary Angiography and Angioplasty. The attendants of the complainant immediately informed opposite party No.1 about the condition of the complainant and lodged cashless claim. The complainant has incurred huge amount of Rs. 2,29,163/- for his treatment at IVY hospital for which opposite party No.1 is liable to reimburse the same. However, opposite party No.1 vide letter dated 21.8.2020 denied the cashless claim on the ground that complainant had earlier contracted the same problem and the same was not disclosed in the policy. Whereas the complainant had suffered from the aforesaid disease for the first time on 19.8.2020  and has earlier neither taken any treatment  for the said disease nor suffered from the same.  The opposite party No.1 instead of providing solution  unilaterally refunded the premium amount of the policy in question i.e. Rs. 13,309/- in the account of the complainant and also cancelled the policy in question . 

9.       On the other hand the opposite party No.1 has repelled the aforesaid contention of the complainant and submitted that policy bearing No. GH120-2154025 was issued in the name of Satish Kumar Malik. Satish Kumar Malik was insured under the Group Active Health Policy for the period from 18.7.2020 to 17.7.2021 . On  19.8.2020 opposite party received the pre-authorization request from Ivy Hospital Amritsar  and on receipt of the claim intimation  the opposite parties scrutinized all the documents and medical records. On verification of the documents it was noted that patient underwent treatment for coronary artery disease and cashless claim was received just after completion of 30 days of the policy. The cashless claim  was denied on the ground that the cashless claim was received just after completion of 30 days as per ICP patient was on insulin and cashless claim was denied  of non disclosure  and pre-existing nature of illness.

10.     From the appreciation of the facts and circumstances of the case the present policy for the period from 18.7.2020 to 17.7.2021 is not in dispute. The contention of the complainant is that earlier under the influence of opposite party No.2  he has been obtaining the policy from Bajaj Allianz General Insurance Policy  since 2017 and then renewed the same for the years 2018 and 2019 till 9.5.2020 and in this regard the complainant has placed on record copies of policies Ex.C-2(colly). Thereafter  the opposite party No.2 claimed that   Bajaj Allianz Insu.Company Limited is no longer issuing the Insu.policies  and they will provide the  policy of opposite party No.1. As such the opposite party No.2  got the mediclaim policy from opposite party No.1 for the period from 18.7.2020 to 17.7.2021.  In this regard the  only plea taken by the opposite party  No.2 is that they are only a financing company  and the issuance of insurance policy depends upon opposite party No.1. However, perusal of previous policy which was issued on 11.5.2017 , 25.3.2019 Ex.C-2(colly) shows  that  under the column agency code & name  , the name of opposite party No.2 was duly mentioned.   However from the letter written by opposite party No.2 of Ex.C-2 (colly) at page 60 it also stands proved that the complainant also got the current policy through opposite party No.2. No doubt there is gap between the current policy as well as previous policy . But however, the opposite party No.1 without getting any medical tests got issued the policy to the complainant. So at this stage when the opposite party No.1 without getting any medical tests issued the policy on the asking of opposite party No.2 , can’t say that cashless claim received just after completion of 30 days, whereas the complainant has been taking the policy since 2017 through opposite party No.2.  Reliance in this connection has been placed upon Simrit Kaur Vs. New India Assurance Co.Ltd & another  in Appeal No. 276 of 2015 decided on 10.3.2016 in which it has been held that XXXXX complainant subscribing to policy since 2004 by paying yearly premium of Rs.  25,758/- and when after ten years, filed claim for first time with respondents for treatment undertaken by her, same was denied on one pretext or other without any justified reasons which definitely caused physical harassment and mental agony to complainant. Further reliance has been placed upon National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC)relying upon various decisions in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC),has held that“the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”.

11.     It  is also not disputed that  during the currency of the policy period complainant fell ill and was hospitalized to Ivy Hospital for the period from 19.8.2020 to 25.8.2020 and in this regard complainant has placed on record  copy of  hospital bill Ex.C-9 on record.  As the policy was issued on cashless  basis as such the claim was lodged but the opposite party vide letter dated 21.8.2020 denied the claim on the allegation that  the complainant  had earlier contracted    the same problem and the same was not disclosed in the policy. The opposite party instead of paying the claim amount refunded the premium amount of Rs. 13,309/- in the account of the complainant and also cancelled the policy.  But we are not agreed with this plea of the opposite party No.1  as once the opposite party No.1 has taken the premium without any medical tests of the complainant and when the complainant lodged cashless claim the opposite party instead of making claim amount refunded the premium only to escape themselves from paying the claim amount and also cancelled the policy which act of the opposite party not only amounts to deficiency in service but also an unfair trade practice. Not only this the opposite party  No.1 has neither placed on record any previous record of any hospital from where the complainant has been taking the treatment for the said disease nor any doctor of the said hospital has been summoned nor affidavit of any doctor of the said hospital has been placed on record. Moreover opposite Party No. 1 has not filed any treatment record of any hospital from where the deceased life assured has taken the treatment for the abovesaid  disease prior to taking of the policy. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd&Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India &Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case Life Insurance Corporation of India Vs. Miss VeenuBabbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India &Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. &Anr Vs. HansabenDeeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of heart disease, the repudiation of the claim on the ground of suppression of material fact is totally illegal. It has been  held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta &Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease of diabetes mellitus which was not disclosed- apparently, burden to prove lies  upon the insurer- If assured was suffering from pre-existing disease why insurer  had not checked it at the time when proposal form was accepted by its  staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled  to claim alongwith interest.  

12.     Moreover there was no bar on the Opposite Party to get the thorough medical check up at the time of issuance of the policy.  The Opposite Party was within their right to cancel the policy if it doubted or found any information supplied by the life assured being false or wrong, but this has not been done by the Opposite Party. The investigation has been got done at the time when the claim was lodged by the complainant. It was for the Opposite Party to ensure about the health of the insured before issuance of the policy of such amount. Many times a person may not know himself/ herself if he/ he is suffering from any particular disease. Moreover, prior  to issuance of the policy, it was required to check up life assured thoroughly. It was the bounden duty of the Opposite Party to make thorough investigation at the initial stage. It appears that the Opposite Party has different yard stick at the time of accepting the policy  for procuring the business and different face at the time of discharge of its lawful liability. The act of the Opposite Party No. 1 in declining the cashless facility on false and frivolous ground  for such a long period, amounts to deficiency in service.   This is a common practice of the Insurance Companies to repudiate the claim on flimsy grounds without any justification. In this regard, we are supported  with the rulings: Life Insurance Corporation of India Vs. Ambika Prasad Pandey, AIR 1999 MP 13 and Life Insurance Corporation of India Vs. Narmada Agarwalla, AIR 1993 Ori 103. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., 2008(3) CPJ 377 (SC) is fully attracted.  It was held that

“Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.” 

13.     On this point, Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

14.     Regarding the quantum of claim the complainant has sought  claim to the tune of Rs. 2,29,163/- incurred  on his treatment and in this regard complainant has placed on record copy of bill Ex.C-9 (colly), whereas the sum insured is Rs. 10 lacs, as such the complainant is entitled to the full claim amount of Rs. 2,29,163/-.

15.     In view of the above discussion, we allow the complaint and the opposite party No.1 is directed to make payment of the claim amount   i.e. Rs. 2,29,163/- to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint till its realization. Opposite party No.1 is also directed to reinstate the policy by taking the premium amount which the opposite party No.1 has refunded to the complainant i.e. Rs. 13,309/- from the complainant.  Opposite  party No.2 being agent is liable to pay compensation as they got issued the policy of opposite party No.1 to the complainant after gap of two months. As such opposite party No.1 & 2 are jointly directed to pay  compensation of Rs. 20000/- and litigation expenses of Rs. 5000/- to the complainant.  Compliance of the order be made  within one month  from the date of  receipt of copy of this order, failing which the Opposite parties shall be liable to get the order executed through the indulgence of this Commission. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this commission.

Announced in Open Commission               (Jagdishwar Kumar Chopra)                                                                                                                                                                           President

Dated: 20.12.2022

                                      (Lakhwinder Pal Gill)         ( Mandeep Kaur )               

Member                      Member