Delhi

West Delhi

CC/12/574

MITHILESH KUMAR - Complainant(s)

Versus

BAJAJ ALLIANZ GEN INSURANCE - Opp.Party(s)

13 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.574/2012

 

In the matter of:

 

	Mithilesh Kumar Pandey S/o Shri T.N.Pandey, R/o D-1/123, Mansa Ram Park, Uttam Nagar, New Delhi – 110059                                        ........Complainant
	Versus

Bajaj Allianz Insurance Company Limited,

4^th & 5^th Floor, 54 Mahatta Tower,

Block-B, Community Centre,

Near Happy Model School,

Janak Puri,  New Delhi-110058

                                                                                                       ........Opposite Parties

 

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:           DATE OF DECISION:

23.08.2012 13.09.2022     13.10.2022

 

 

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: Complainant in person.

    Mr.P.S.Tomar, counsel for the OP.

 

ORDER

Per: Anil Kumar Koushal, Member

 

Facts of the  present  complaint in brief  are as under:

1. Complainant  states that he had taken a cashless medical insurance policy No.OG-12-1102-6001-00000720  for himself and his family members comprising his wife and three minor children from the OP. The same was valid from 29.12.2011 to 28.11.2012. As per complainant, in terms of the medical insurance policy, his daughter Anshika Yogesh Pandey was issued medical card bearing No.HFF-12-1102-42598B.  His daughter Anshika, aged 7-1/2  years fell ill and was admitted in Rescue Hospital, Vishwas Park, Dwarka, New Delhi from 31.1.2012 to 05.02.2012 .  After medical tests it was found that  she was suffering from Enteric fever.  According to complainant, his daughter  remained hospitalised  from 31.1.2012 to 05.02.2012.  The complainant applied for availing the benefit of cashless  policy through the hospital vide  claim No.OC-12-1002-6001-00002317. According to the complainant, the hospital raised a bill  for the medical treatment of complainant’s daughter   for Rs.18,500/-. However, the OP vide letter dated 01.02.12 denied the cashless facility on the ground that the pre-authorisation  request states that the patient is diagnosed of having the said ailment within first 30 days from the date of inception of the policy, hence cashless stands denied under exclusion C-4”.  Complainant, however,  stated that his daughter was admitted in the hospital after 30 days of taking the policy.
2. According to the complainant, at the time of purchasing  the mediclaim policy, the complainant was never informed about the aforesaid condition of the policy.  Therefore, the  conduct of OP in denying the  cashless facility  was arbitrary, unreasonable and against the principles of Competition Act.  Complainant submitted that “Enteric fever” is a common disease and the same can arise  at any point of time. It cannot be said that the said fever was  a result of continuous disease.  Further, the age of the patient was only 71/2 years and it cannot even be assumed that the patient was suffering from  “Enteric fever” prior to the date of purchase of medical insurance policy.  Complainant submitted that the Enteric fever does not come under the exclusion clause C-4, as alleged by OP.  The complainant had trusted the brand name of OP before purchasing the medical insurance policy. Because of the denial of cashless facility of medical  policy, the complainant had to pay the hospital bill  and because of this, he suffered mental  tension, agony, financial loss etc.  Complainant submitted that due to  illness  of his daughter, he was admitted in the hospital  with the hope that  he shall get the benefit of cashless medical insurance policy hassle free but all his hopes were dashed and was forced to immediately  arrange money to save the life of his daughter. According to complainant, the said act of denial of cashless medical facility amounts to deficiency in service by cheating the gullible customers.
3. Complainant submits that he has been thrust upon  to file the present complaint and, therefore seeking the following relief against the OP:

1. to  direct the OP to pay a sum of Rs.2,00,000/- to the complainant along with pendent lite interes @ 18% per annum.

2. to direct the OP to pay litigation cost.

4. Along with the complainant, the complainant filed copy of the repudiation letter dated 01.02.2012, details of amount paid to  Rescue hospital  towards treatment of his daughter, copy of pre-authorisation form for seeking cashless facility from OP,  copies of treatment papers in relation to daughter of complainant, discharge summary, receipts for payments made to the Hospital for treatment, Regn. Certificate  of the Hospital with Dte. Of Health Services, Govt. of NCT of Delhi.
5. Upon admission of the complaint on 23.08.2012, notice was issued to OP who filed written statement.  In the reply filed by the OP, it refuted the averments of the complainant and submitted that the complainant has not approached this Commission with clean hands and not disclosed material facts.  The OP admitted that the complainant had  taken a family floater Health Guard Policy  vide  No.OG-12-1102-6001-00000720 for the period from 29.12.2011 to 28.12.2012 and the liability of the OP was to indemnify the complainant subject to the terms and conditions of the insurance policy.  According to the OP, sub-clause 4 of  Clause C of the terms and conditions of the insurance policy which is relevant to the facts of the present case is as under:

“What we will NOT pay

• Any  medical expenses incurred for any illness diagnosed or diagnosable within 30 days of the commencement of the policy period except those incurred as a result of accidental bodily injury.  In case of enhancement of sum insured the waiting periods shall apply afresh only to the extent of the amount by which the limit of indemnity has been increased (i.e. enhanced sum insured) if the policy is a renewal of Health policy without break in cover”.

•  

6. OP submitted that the complainant did not disclose the fact that his daughter Anshika  Yogesh Pandey who had allegedly been suffering from ‘Enteric fever’ was diagnosed of the ailment on or before  27.01.2012 and the same is evident from the prescription given by the Rescue Hospital dated 27.01.2012, much before the alleged date of admission in hospital, i.e. 31.1.2012.  Therefore, it is established that the patient was diagnosed of the said ailment on the 29^th day from the commencement of the policy period and thus fell within 30 days from the commencement of the Insurance Policy and because of this reason, the claim of the complainant fell under the exclusion clause-4 of Clause C of the terms and conditions of the insurance policy.  According to the OP the act of denial of cashless facility is bona fide and does not fall under the purview  of deficiency in service and in this manner, the present complaint is liable to be dismissed.
7. The OP further submitted that the  denial of cashless facility does not mean repudiation of the claim and was specifically restricted to the denial of cashless facility.  The cashless rejection letter dated 01.02.2012 clearly stated that:

“Please note that the denial of authorisation for cashless facility does not necessarily imply or we do not advise the denial of treatment and also does not in any way prevent patients from seeking necessary medical attention or hospitalisation/claiming at his cost and or arrangement with you and then make claim for reimbursement which will be strictly subject to admissibility of claim as per our Policy terms and conditions…”

8.   As per OP, the above position abundantly makes it clear that the OP had never repudiated the claim of complainant under the Insurance policy. Furthermore, the complainant failed to comply with the process of claim wherein the complainant was under obligation to lodge claim with the OP before approaching this Commission.  In the absence of such act on the part of complainant, the present complaint is premature and is liable to be dismissed with cost.  The OP further stated that the insurance policy is a contract and the insured has to act according to the terms and conditions  of the policy which does not cover any illness incurred within 30 days of commencement of policy except in cases of accidental injuries.  As per the own admission of the complainant, the case of complainant does not fall under the accidental injuries, therefore, the OP is not liable to pay.
9. According to the OP, the terms and conditions of the policy were provided to him on the date of issuance of the policy on 30.12.2011 and he cannot deny that he was unaware of such terms.  The cashless facility was not denied in an arbitrary manner but  in accordance with the terms and conditions of the insurance policy. According to the OP, there is no omission on its part which led the complainant to mental tension, agony, torture, harassment and financial loss.  Since the complainant  did not exercise the option  of providing all medical and treatment documents related to the hospitalisation of his daughter to the OP, his claim under the insurance policy could not be perused and processed by the OP.  OP  stated that for the foregoing reasons, no occasion arises for awarding of Rs.2,00,000/- in favour of the complainant and against the OP .
10. Along with the written statement, OP submitted  copy of the Insurance Policy taken by the complainant along with the terms and conditions appurtenant to it, copy of the prescription issued by the Rescue Hospital for the treatment taken by daughter of complainant on 27.01.2012.
11. Being dissatisfied with the reply of  OP,  complainant filed replication and denied all the averments of OP unless specifically admitted.  Complainant drew the attention to Sections 3, 4, 48 and 49 of the Competition Act, 2002. He submitted that even if it is assumed that the conditions embodied in the insurance policy are binding on him, still they  are one sided, arbitrary and violative of  provisions of the Contract Act, 1872.  Complainant relied on the judgment of the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. Vs Pushpalaya Printers, decided on 25.02.2004 wherein it was held as under:

“It is settled position of law that if there is any ambiguity or a term is capable of two possible interpretations, one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event.”

12. The aforesaid view was again expressed by the Hon’ble NCDRC in the case of New India Assurance Company Limited  vs. Mary Jane Govias and Ors, decided on 14.09.2006, IV (2006)CPJ 228 NC. 
13. Complainant submitted that the OP cannot run away from its liabilities towards the complainant under the guise of exclusion clause which is not at all applicable to the facts and circumstances of the present case.
14. Complainant also denied the allegation of the OP that  he was under obligation to lodge claim with the OP before approaching this Commission and the present complaint is pre-mature.
15. Complainant submitted that the law is well settled  right upto the Hon’ble Supreme Court  regarding the one sided, arbitrary contracts having no sanctity.  He submitted that his daughter was admitted in the hospital for treatment after  30 days from the date of purchase of policy and not within 30 days as alleged by the OP.  He reiterated that his daughter remained in the Hospital for treatment from 31.1.2012 to 05.02.2012.
16. Evidence by way of affidavit was filed  by the complainant whereby he exhibited the documents filed on record as Ex.C.W.1/A to C.W.1/E.  Complainant thereafter filed  additional evidence by way of affidavit by  which the certificate issued by the Doctor of Rescue Hospital dated 07.01.2015 was placed on record to prove that his daughter   had been seen in OPD by the Doctor of Rescue Hospital on 27.01.2012 without investigation and diagnosis and after three days again the patient (Anshika Yogesh Pandey) visited the hospital on 31.1.2012 whereafter some blood tests and other tests were done and finally the patient was admitted on 31.1.2012.   The said certificate is  exhibited as C.W.1/E1. 
17. Evidence by way of affidavit was filed by the OP and the documents placed on record were exhibited as R.W.1/1 to R.W.1/3.     
18. Written arguments were filed by the complainant as also by the OP.  Oral arguments of the parties  were heard on 13 September,2022 and orders reserved.   
19. During arguments, counsel-cum-complainant in person, who is fighting the case of his own daughter  submitted that his daughter was simply suffering from the “Enteric Fever” and therefore,  consultation was taken in the OPD from the Doctor of the Rescue Hospital  on 27.1.2012.  However, seeing no relief  from the OPD treatment, his daughter  was finally admitted in the Hospital on 31.1.2012, i.e. clearly after 30 days from the date of  issue of policy on 30.12.2011 (effective  from 29.12.2011 to 28.12.2012) for diagnosis of the disease and further follow up treatment.  According to him consultancy means to see the patient  outside without any pathological or medical tests and to provide some medicines on the basis of expertise in the field whereas diagnosis means to distinguish or to identify a particular disease of a person on the basis of pathological or other tests. Complainant submitted that he has not claimed any amount from the OP for the period starting from 27.1.2012 but from 31.1.2012. The action of the OP in repudiating the claim of complainant for cashless treatment amounted to deficiency in service and unfair trade practice as he had spent a sizeable amount on the family floater policy taken to safeguard the medical health of his family.  He also stressed the fact that the terms and conditions of the policy were not supplied to him along with the policy.
20. On the other hand, counsel for the OP reiterated the stand taken in the written statement that the exclusion clause C-4 in the mediclaim policy terms and conditions issued to the complainant prevailed upon them in denying the cashless claim to the complainant but they are not denying taking medical treatment and thereafter seeking reimbursement of the medical expenses by the complainant as per admissible terms.  On a pointed query  raised  to counsel for OP regarding the OPD treatment taken by the daughter of the complainant on 27.1.2012 and the actual date of admission for treatment was 31.1.2012, from which date the cashless treatment was requested,  counsel for the OP had no answer.
21. We have gone through the pleadings filed on record, the arguments advanced by the rival parties and the judicial pronouncements cited by the complainant.  We find that the certificate dated 07.01.2015 filed by the complainant to press his plea that the  treatment was taken after thirty (30) days of taking the policy, i.e. to say  the exclusion clause C-4 has no applicability on the present case, clearly  comes to the rescue of the complainant  as the daughter of the complainant was actually admitted in the Rescue Hospital on 31.1.2012  for diagnosis of the disease and further follow up treatment. Even the pre-authorisation form filled by the complainant for seeking cashless treatment  of his daughter mentions the date of treatment from 31.1.2012. Therefore, the argument of  the complainant that  his daughter  was admitted in the hospital after thirty days of issuance of the policy is well founded as he has not claimed the treatment amount from 27.1.2012 but from 31.1.2012.    
22. Now reverting to the arguments  of the complainant that the exclusion clause C-4 quoted by the OP has no applicability on the facts in hand, the daughter of complainant was  suffering from  ‘Enteric fever’ which is  another form of ‘Typhoid fever which spreads through contaminated food and water and as per the discharge summary placed on record, it has not been proved by the OP through any document or interrogatories that it stemmed from  any pre-existing disease. Such a “fever” can be contracted at any stage without any  symptoms of  a pre-existing chronic disease.  Symptoms of Typhoid fever include high fever, headache, stomach pain, weakness, vomiting and loose stools.  
23.   The complainant also relied on the judgment in the case of Hari Om Agarwal vs. Oriental Insurance Co. Ltd, decided by the Hon’ble High Court of Delhi on 17.09.2007 in which, relying on the judgment of the Apex Court in the case of Life Insurance Corporation of India vs. Consumer Education and Research Centre, 1995(4) SCC 482,  it was observed that  actions of the State, its instrumentalities and public authorities or of persons whose actions bear insignia of public law element or public character are amenable to judicial review  and that legality of such actions would be tested upon the anvil of Article 14.  Fairness and non-arbitrariness are considered as two immutable pillars supporting the equality principle, an unshakable threshold of state and public behaviour.  Every action, policy or even change of policy in the realm of State activity should be informed, fair and non-arbitrary. Further the exclusion clause  in the context of a contract of insurance, which is an assurance whose main purpose has to be given prominence, should be construed strictly.  The primacy given to the “main purpose” notwithstanding that contracting parties agreed to certain exclusions, is founded on the principle of interpretation that if contracting parties seek to achieve  a certain purpose by entering into an agreement, the existence of exclusion clauses should be strictly interpreted and if it tends to defeat the main purpose, should be read down by the Court and if that is not possible, the Court should altogether ignore it (ref. Halsbury, LC in Glynn v. Margeston  Co. 1893 AC 351).  We may observe that the object of the insurance policy  is to cater to medical expenses incurred by the insured.  That is the “main purpose” of the contract of insurance. If the insurer accepted the proposal  and issued the insurance cover, what for the said cover  would be if such exclusion clauses are allowed to impede.  Giving textual effect to such exclusion clauses  would in most cases render the mediclaim cover meaningless; the policy would be reduced to a contract with no content in the event of happening of a contingency.  Such clauses cannot be allowed to override the insurer’s primary liability to indemnify the insured.
24.  We find that while denying the cashless claim to the complainant, the OP  mentioned in the repudiation letter, as quoted above,  that  though it was bound by the exclusion clause C-4  in denying  the cashless claim but not  averse to the  patient taking treatment  or denied the treatment and the patient can seek reimbursement of the expenses later on subject to admissibility of claim as per policy terms and conditions.  This is a standard protocol (SOP) followed by all the Insurance companies.  
25. Based on the above conclusion arrived at by us, we find that the complainant has also not submitted the claim form or raised reimbursement request to OP till date.   The complainant is directed  to submit the claim in the proper form with the OP for reimbursement of medical expenses incurred by him in relation to the  treatment of his daughter in the Rescue Hospital within 15 days  of receipt of copy of the order.  The OP shall then process the claim of the complainant for reimbursement of medical expenses incurred in relation to his daughter in the sum of Rs.18,500/- within 30 days of submission of claim form.   Let this order be complied with by both the parties  within the stipulated time period  as directed by the order.        

  A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them in the name of  President of this Commission.

RICHA JINDAL                     ANIL KUMAR KOUSHAL             SONICA MEHROTRA

MEMBER	MEBER	President